Hell to pay: Patronage in Crisis
An excerpt from When the Levee Breaks by Bill Keisling
Cynthia B. Rutan worked for the state of Illinois as a rehabilitation counselor. She lived with her family in Springfield, the state capitol of Illinois, the hometown and final resting place of Lincoln.
She got her first state job in 1974. In 1983 Cynthia Rutan applied for a promotion. She was tested and interviewed, and was even chosen for the job by a supervisor. There was one last hurdle. Her application had to be sent to the governor's office for approval. She was denied the promotion.
This was happening to a lot of people she knew. The prevailing attitude, she says, was defeatist. What's the point of trying to fight the governor's office?
Rutan's problem was the result of an executive order issued by Republican governor James Thompson of Illinois on November 12, 1980. The order proclaimed a hiring freeze for every agency, bureau, board, or commission subject to his control. It prohibited state officials from hiring any employee, filling any vacancy, or creating any new position. Approximately 60,000 state jobs were affected, as well as more than 5,000 openings that became available each year due to resignations, retirements, deaths, expansion, or reorganization. Thompson's order stated that "no exceptions" were permitted without the governor's "express permission."
Requests for the governor's "express permission" became routine. Permission was granted or withheld through an agency created for this purpose, the Governor's Office of Personnel. Agencies screened applicants under Illinois' civil service system, made their personnel choices, then submitted them to the governor's office for approval or disapproval. Among the decisions requiring approval were new hires, promotions, transfers, and recalls after layoffs.
"By means of the freeze... the governor has been using (his) office to operate a political patronage system to limit state employment and beneficial employment-related decisions to those who are supported by the Republican Party," U.S. Supreme Court justice William Brennan would later note. "In reviewing an agency's request that a particular applicant be approved for a particular position, the governor's office looked at whether the applicant voted in Republican primaries in past elections years, whether the applicant has provided financial or other support to the Republican Party and its candidates, whether the applicant has promised to join and work for the Republican Party in the future, and whether the applicant has the support of the Republican Party officials at state or local levels."
In 1984 Cynthia Rutan applied for a second promotion. She was picked a second time, by a second supervisor. Again she was refused the job.
"It was getting to everybody," she told me. "These were jobs that were posted and advertised. But I kept seeing I was losing promotions to people who weren't even qualified." Her job, she says, is complicated -- determining eligibility for Social Security -- yet the state was hiring unqualified people who seemed to lack aptitude.
One day she decided to follow the procedure outlined by the governor for landing a job. She visited the appropriate party boss, and asked for a patronage application. She describes the application as ludicrous. How had she voted in the last fourteen primary elections? the form wanted to know. It asked kids how they'd voted. "It was ridiculous. For some of these summer jobs for kids -- like a job at the state fair -- most of the kids were fifteen or sixteen years old and couldn't vote. So they wanted to know how did your parents vote?"
Testing the waters, she asked the patronage boss if it would help if she gave money to the Republican Party. "Oh yes," he told her.
"How much should I give?"
"That's up to you."
Later she learned the going rate for the promotion she sought was $2,000 to $3,000. "I'd only get that much more if I got the promotion."
Cynthia Rutan had become a victim of patronage. She wasn't alone. Americans have spent more than two hundred years wrestling with patronage. Patronage caused the assassination of one of our presidents. Patronage has been a snake in the garden since the earliest days of the republic. Its history is entangled in the roots of our two-party system. Patronage, and the debate over it, you begin to see, is at the very heart and soul of our country's history.
Patronage has been around forever, predating the Roman Empire. (Our word "patronage," of course, has its roots in the Latin pater, or father.) The Chinese are credited with having the first patronage and the first merit systems. Ancient Chinese bought and sold public offices as far back as 243 B.C. Mandarin status, the highest rank of Chinese civil service, required years of preparation and a tough examination.
Job selling rose to new heights in the Roman Empire when the Praetorian Guard began auctioning the office of emperor. The praetorians were higher paid than others, and even had their own set of legal privileges before the courts. They'd defend their privileged social order, and rid themselves of unprofitable emperors, with daggers and poison. They were finally abolished by the first Christian emperor, Constantine, in A.D. 312.
Patronage, oddly enough, was kept alive by the Roman Catholic church, apparently the first institution to sanction patronage by law. "References to it in canon law describe the practice as the benevolent exercise of privilege," write Martin and Susan Tolchin in their book To the Victor.... "The term patronage was also used to describe the transfer of power by the Pope to his natural sons, euphemistically called nephews (hence, nepotism), and to his other relatives. 'Juspatronatus,' the sum of privileges according to canon law, was derived from the Roman system, which contained within itself an entire class of free men -- not citizens -- who attached themselves to patrons." A patron to the church was someone who financed the building of a parish, who in return was allowed to control the lives of some of those involved. "This included," the Tolchins note, "the occasional right to appoint lower clergy and, more often, to assign candidates who would take part in church ceremonies or enjoy certain of its privileges. After the Middle Ages, the ability of the Church to retain its patronage depended on its power vis-á-vis the monarchy. Thus early in its development, patronage became an index of the power of political institutions."
To make money, the bankrupt French and British crowns sold offices. An English Stuart might pay between 6,000 to 10,000 pounds to become secretary of state. Most offices were hereditary, though poor inheritors often sold their offices like stock on the open market. This undermined the loyalty of those holding the office. Those most able to pay weren't necessarily the ablest to govern. A bad administrator could sometimes spark a rebellion.
Upstart Americans quickly evolved their own methods of moving the levers of government. Parties and patronage weren't mentioned in the constitution, but the divisive debate over federalism laid the groundwork. By the time the constitution had been adopted, it simply seemed logical to put your guys in, and keep their guys out.
President George Washington at times pretended to disapprove of parties and patronage. His farewell address cautions against the formation of parties. In reality he deferred most matters of patronage and appointments to his secretary of the treasury, Alexander Hamilton, who nearly always appointed Federalists. Washington witnessed a growing rift between Hamilton and Thomas Jefferson. Jefferson's followers, the Republican-Democrats, soon were excluded.
The second president, John Adams, another Federalist, saw further factionalism in his own party eventually contribute to his electoral defeat to Thomas Jefferson. Adams made political appointments right up to his last day in office. One of his last acts was to appoint chief justice John Marshall to the supreme court. The Judiciary Act of 1801 allowed Adams to make last-minute appointments of more than 200 Federalist "midnight judges," who had no commission, duties or salary.
Jefferson disliked the idea of patronage, and preferred a merit system. By the time he was elected president, after twelve years of Washington and Adams, Federalists held all the offices. Jefferson observed that job vacancies "by death are few; by resignation none." Awash in Federalists, the pragmatist in him bailed the boat, tossing the opposition overboard. He systematically replaced them with his own partisans. His administration repealed the Judiciary Act of 1801, and informed the midnight judges to consider their appointments as never having been made.
William Marbury was one of forty-two justices of the peace appointed by Adams for the District of Columbia. He petitioned the U.S. Supreme Court to force secretary of state James Madison, by order of what was called "writ of mandamus," to deliver the commission. A section of the Judiciary Act of 1789 had empowered the supreme court to issue the mandamus writs. Mandamus, Latin for "we order," is a writ from a superior court ordering a public official, or a lower court, to perform a specified duty. This became the landmark 1803 case Marbury v. Madison, in which the supreme court under John Marshall struck down the part of the Judiciary Act of 1789 empowering the court to issue the writs of mandamus. The courts won that case: Marbury never got his job, and Jefferson was appalled that the court could overturn a law of congress. The Federalists still controlled the supreme court, and the Democratic-Republicans feared that the court's new-found power would be used to help the opposition. The Democratic-Republicans soon turned to the tactic of impeachment to check the courts.
The Marbury v. Madison decision set the precedent for judicial review of the constitutionality of laws. Today, when Marbury v. Madison is discussed it's usually from this perspective, and the decision's claim on implied powers. Often forgotten is that patronage was the cause of the decision. Our ongoing wrestling match with patronage is at the heart of not only our two-party system, but also the formation of judicial oversight and independence.
'The Marbury v. Madison decision set the precedent for judicial review of the constitutionality of laws. Today, when Marbury v. Madison is discussed it's usually from this perspective, and the decision's claim on implied powers. Often forgotten is that patronage was the cause of the decision. Our ongoing wrestling match with patronage is at the heart of not only our two-party system, but also the formation of judicial oversight and independence.'
Jefferson, as said, opposed patronage, yet proceeded to use it. Thomas Jefferson was a walking contradiction. A landed aristocrat who fought for the rights of the common man, he often found himself derided as a traitor to his class. He wrote promissory words about self-evident truths of equality, and the endowment of certain unalienable rights, while he held slaves. He fretted over the tyranny of institutions, but created so many. He was an anti-federalist who used his executive power to double the nation's size with the Louisiana Purchase. Jefferson, the practical politician, proceeded to pack the government with members of his own party, so that by the end of his term most offices were filled by Democratic-Republicans. The strengthening of parties and their lifeblood, patronage, proved irresistible. Though all three wrote and spoke against the formation of parties, Jefferson, Adams, and Washington can be credited with laying the groundwork for the spoils system to come.
It came full force in 1828 with president Andrew Jackson. "The people expect reform," Jackson told his political lieutenant, secretary of state and successor Martin Van Buren. "They shall not be disappointed." Hoping to shake things up by removing wealthy office holders, Jackson in time dismissed 2,000 of the federal government's 11,000 employees. Jackson's friend, New York senator William L. Marcy, immortalized the slogan, "To the victor belong the spoils of the enemy." Jackson insisted on personally overseeing all patronage appointments, a job he conducted from a pub called Gadsby's. One applicant requested a position paying $300 to $3,000 a year, anything but a clerkship since he couldn't write. By this time the spoils system was well established in states such as Pennsylvania and New York. The Jackson administration merely articulated, legitimized and introduced it unfettered to national government. (History also remembers Jackson as the only president to completely pay off the national debt.)
"Patronage, Jackson believed, could give the common man the opportunity to participate in government," write Martin and Susan Tolchin in their book To the Victor.... "He was galled by the fact that one social class -- the aristocracy -- had monopolized public office for so long."
Patronage was so out of hand by 1841, with the inauguration of president William Henry Harrison, that upwards of 40,000 office seekers swarmed Washington in search of 23,700 jobs. Many office holders were incompetent, dishonest, or had no inclination for work.
Abraham Lincoln was one of the more adroit practitioners of patronage. Following his election in 1860 he kicked out 1,195 appointees to make room for Republicans, one of the more sweeping displays of patronage up to that time. In his day Lincoln was criticized for spending too much time doling out jobs, but historians consider its use vital in keeping the Union together, and a secret ingredient of his re-election. Most of the legions he put in office worked for him and the Union. Nevertheless he didn't enjoy fielding job requests. When he came down with a slight case of smallpox he told his secretary, "Tell all the office seekers to come at once, for now I have something I can give to all."
To become president would literally mean to become a moving target for office hopefuls. President James Garfield, having spent most of his time filling offices, complained in his diary, "Some civil service reform will come by necessity after the wearisome years of wasted Presidents have paved the way for it." By this time, in the early 1880s, the Republican party had split into two factions, the Stalwarts and the Half-Breeds. The factions wrangled mostly over patronage jobs and personalities, not politics. Garfield won office thanks to the support of the Half-Breeds. A Stalwart, Chester A. Arthur, won the vice presidency. Garfield repaid the Half-Breeds by appointing them to most of the jobs, passing over many Stalwarts. Awaiting a train to take him to a college reunion, Garfield was shot and mortally wounded by a disappointed job seeker. As Garfield lay bleeding on the platform the assassin yelled, "I am a Stalwart and Arthur is president now!" The aspiring job seeker won an appointment at the end of a rope.
This insanity finally shocked the public and congress into action. In 1883 congress passed the Pendleton Civil Service Act, which created a civil service commission to conduct examinations, and limited political interference. Cynical historians point out that by the 1880s kickbacks from office seekers no longer were as important to the two political parties, which now could rely on fat contributions from the trusts and smaller business interests.
The twentieth century was marked by various court and congressional efforts to keep politics out of the bureaucracy, and various efforts by politicians to ignore the same. The Hatch Act of 1939 (amended in 1940), limited the political involvement of government employees (in Pennsylvania this prohibition has often been ignored). Presidents trying to implement new policy meanwhile complained of an increasingly unresponsive bureaucracy. Issuing a directive, Harry Truman observed, was like "pushing on a string." Jimmy Carter tried to make the bureaucracy more efficient and responsive, in part by making it easier to fire civil servants.
Unionization and several U. S. Supreme Court rulings tore into state governments. In the 1976 case Elrod v. Burns, a newly elected Democratic sheriff was found to have unconstitutionally dismissed office workers and replaced them with supporters from his own party. Justice Brennan wrote that the court in Elrod reasoned "conditioning employment on political activity pressures employees to pledge political allegiance to a party with which they prefer not to associate, to work for the election of political candidate they do not support, and to contribute money to be used to further policies with which they do not agree. The latter, the plurality noted, had been recognized by this court as 'tantamount to coerced belief.'"
In the Elrod decision the court cited among other precedents a 1972 case, Perry v. Sindermann, in which it held that a teacher was unconstitutionally refused a new contract by a school board "because he had been publicly critical of its policies."
Free speech and the First Amendment were increasingly viewed by the court as at odds with patronage. Coerced opinion, the court recognized, was unhealthy to a free society.
In a 1980 case, Branti v. Finkel, the court decided that the First Amendment prohibited a newly appointed Democratic public defender from discharging assistant public defenders who weren't Democrats. These two cases, Elrod and Branti, ruled out dismissing most employees for reasons of patronage, and set the stage for the next big hit at patronage, Rutan v. the Republican Party of Illinois.
One day while Cynthia Rutan was grousing about her inability to get a promotion a friend suggested she call Springfield attorney Mary Lee Leahy. As it turned out, several other state workers had recently contacted Leahy.
Rutan told me she was lucky to "find someone like Mary Lee Leahy who isn't interested in the buck but in doing the right thing." It turned out to be a long, bumpy road, taking eight years. They lost in court the first time out, then partly won an appeal. Word came that the United States Supreme Court agreed to hear the case.
Right up to the time when the supreme court verdict came in, Rutan says, she expected she'd lose. "I knew how deeply rooted patronage was in this country," she recalls, "so we knew we were taking on the big monster."
The big monster almost won. Rutan and four other state workers --a road equipment operator, a prison guard, a garage worker and a dietary manager -- won the case, but only by a five-to-four margin. Justices Brennan, John P. Stevens, Byron White, Thurgood Marshall and Harry Blackmun sided with the workers; chief justice William Rehnquist, justices Antonin Scalia, Anthony Kennedy and Sandra O'Connor dissented.
"To the victor belong only those spoils that may be constitutionally obtained," Brennan pithily summarized in the majority opinion. "...The same First Amendment concerns that underlay our decisions in Elrod, and Branti, are implicated here. Employees who do not compromise their beliefs stand to lose the considerable increases in pay and job satisfaction attendant to promotions...and even their jobs if they are not rehired after a 'temporary' layoff. These are significant penalties and are imposed for the exercise of rights guaranteed by the First Amendment. Unless these patronage practices are narrowly tailored to further vital government interests, we must conclude that they impermissibly encroach on First Amendment freedoms."
A key argument in all this would center on whether the business of government would come to a grinding halt if the political parties lost control of the bureaucracy. The phrase "vital government interests" becomes a linchpin in these patronage decisions. It would be held that the government's "vital" policy interests could be met by firing incompetents, or appointing only a limited number of key, high-level political positions, such as a governor's immediate staff. "A government's interest in securing effective employees can be met by discharging, demoting or transferring staff members whose work is deficient," Brennan opined. "A government's interest in securing employees who will loyally implement its policies can be adequately served by choosing or dismissing certain high-level employees on the basis of their political views."
Will Rutan mean the end of the two-party system or democracy itself? Brennan, in his opinion, states that previous patronage restrictions haven't hurt the parties, or the republic. He recalls the Elrod decision: "The 'preservation of the democratic process' is no more furthered by the patronage promotions...than it is by patronage dismissals. ...Political parties have already survived the substantial decline in patronage employment practices in this century." Here Brennan cites the book Goodbye to Good-time Charlie: The American Governorship Transformed by Larry Sabato: "'The number of patronage positions has significantly decreased in virtually every state.'" As well, Congressional Quarterly's Guide to Current Issues and Activities: "'Linkage(s) between political parties and government office holding... have died out under the pressures of varying forces (including) the declining influence of election workers when compared to media and money-intensive campaigning, such as distribution of form letters and advertising."
The really interesting arguments are found in justice Scalia's dissenting opinion, and particularly in an opinion concurring with the majority written by justice Stevens. The exchange between Stevens and Scalia ends up questioning whether the two parties may, in fact, be bad for the country. This debate seems like heresy when expressed in a lofty forum like the high court (it would be called fringe-thinking if expressed anywhere else). Their tiff over the propriety of the two-party system wasn't widely reported in the popular press. No use troubling the public with the thought that the two ruling parties might be complementary cups of poison.
Scalia begins his descent by complaining, "Today the court establishes the constitutional principle that party membership is not a permissible factor in the dispensation of government jobs, except those jobs for the performance of which party affiliation is an 'appropriate requirement.' It is hard to say precisely (or even generally) what that exception means, but if there is any category of jobs for whose performance party affiliation is not an appropriate requirement, it is the job of being a judge, where partisanship is not only unneeded but positively undesirable. It is, however, rare that a federal administration of one party will appoint a judge from another party. And it has always been rare. See Marbury v. Madison. Thus, the new principle that the court today announces will be enforced by a corps of judges (the members of this court included) who overwhelmingly owe their office to its violation."
Scalia seems to be questioning whether they are crippling the hand what feeds them. He launches into a defense of the two-party system, reciting a quotation from George Washington Plunkitt of New York's corrupt Tammany Hall political machine:
"I ain't up on sillygisms, but I can give you some arguments that nobody can answer.
"First, this great and glorious country was built up by political parties; second, parties can't hold together if their workers don't get offices when they win; third, if the parties go to pieces, the government they built up must go to pieces, too; fourth, then there'll be hell to pay."
This is a nicely colorful quote to find in a high court ruling. In many ways it sums up the strengths and weaknesses of Scalia's argument. Scalia is by far a better, more inviting writer than his fellow justices Brennan and Stevens, but his reasoning seems based on false assumptions and unthorough (and, one senses, even frightened) thinking. This country after all was built up thanks to its great natural resources, not the two political parties, both of which are arguably parasites at the fat picnic. To quote a member of Tammany Hall for his enlightened insights on the conduct of government is a little like asking Charles Manson to comment on the Scriptures.
"The whole point of my dissent," Scalia writes, "is that the desirability of patronage is a policy question to be decided by the people's representatives; I do not mean, therefore, to endorse that system...." He nonetheless proceeds to endorse the status quo for greedy professional political careerists. "A major study of the patronage system describes the reality as follows: 'Although men have many motives for entering political life...the vast underpinning of both major parties is made up of men who seek practical rewards. Tangible advantages constitute the unifying thread of most successful political practitioners.'"
Scalia cites the politics of self-interest and greed as something we'd be best learn to live with and accept. For the broad masses plagued by politicians and special-interest constituencies he says too bad, this is the world in which we find ourselves, and any antiquated notions of the common wealth be damned. Where politicians are concerned, he hypocritically waxes nostalgic for a better world. While lamenting that media and big money have high-jacked our political campaigns, he argues that patronage of yesteryear was a better system. "Increased reliance on money-intensive campaign techniques tends to entrench those in power much more effectively than patronage -- but without the attendant benefit of strengthening the party system. A challenger can more easily obtain the support of party-workers (who can expect to be rewarded even if the candidate loses -- if not this year, then the next) than the financial support of political action committees (which will generally support incumbents, who are likely to prevail)."
Scalia writes, "The patronage system does not, of course, merely foster political parties in general; it fosters the two-party system in particular." He seems, in a nutshell, protective of our two-party system, thankful for its fruits, and worried about tinkering with it.
The gloves come off and we get to the real mambo in justice Stevens' concurring opinion for upholding Rutan. He launches a frontal assault at Scalia's reasoning. Stevens seems to be tweaking the noses of the Reagan court appointees, of which Scalia is one, and their battle cry of a strict, "original intent" reading of the constitution. They say the constitution should be read literally and not reinterpreted by latter-day bench setters, yet patronage is never sanctioned by the document.
Scalia, Stevens writes, "makes the startling assertion that a long history of open and widespread use of patronage practices immunizes them from constitutional scrutiny.... Justice Scalia asserts that 'when a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back to the beginning of the republic, we have no proper basis for striking it down.'.... The argument that traditional practices are immune from constitutional scrutiny is advanced in two plurality opinions that justice Scalia has authored, but not by any opinion joined by a majority of the members of this court."
Stevens cites a previous opinion in which he noted, "if the age of a pernicious practice were a sufficient reason for its continued acceptance, the constitutional attack on racial discrimination would, of course, have been doomed to failure."
Here, in a remarkable footnote, Stevens takes a direct swing (shudder the thought!) at the two-party system, and the hypocrisy of the Reagan appointed "strict constructionists" who support it. "Ironically," he writes, "at the time of the adoption of the Bill of Rights, the party system itself was far from an 'accepted political nor(m).'" Stevens quotes a passage from Richard Hofstadter's book, The Idea of a Party System. "Our founders viewed it as a pathology: 'Political discussion of eighteenth-century England and America was pervaded by a kind of anti-party cant. Jonathan Swift, in his Thoughts on Various Subjects, had said that "Party is the madness of many, for the gain of the few." This maxim, which was repeated on this side of the Atlantic by men like John Adams and William Paterson, plainly struck a deep resonance in the American mind. Madison and Hamilton, when they discussed parties or factions, (for them the terms were usually interchangeable) in The Federalist, did so only to arraign their bad effects. In the great debate over the adoption of the Constitution both sides spoke ill of parties. The popular sage, Franklin (who was not always consistent on the subject), gave an eloquent warning against factions and "the infinite mutual abuse of parties, tearing to pieces the best of characters." George Washington devoted a large part of his political testament, the Farewell Address, to stern warnings against "the baneful effects of the Spirit of Party." His successor, John Adams, believed that "a division of the republic into two great parties... is to be dreaded as the greatest political evil under the Constitution." Similar admonitions can be found in the writings of the arch-Federalist Fisher Adams and the "philosopher of Jeffersonian democracy," John Taylor of Caroline. If there was one point of political philosophy upon which these men, who differed on so many things, agreed quite readily, it was their common conviction about the baneful effects of the spirit of party.'"
Stevens is saying that those who pretend to read the constitution literally have little understanding of the dynamic genesis of the document. Politics is a flowing river, not a stone tablet. Not to change simply because things have always been is to refuse a lifeboat because the Titanic has taken us this far.
The supreme court, in this discussion of the worthiness and appropriateness of our parties, proved to be well out in front of both politicians and the media. The national press generally greeted the Rutan decision with a smarmy tone, rounding up the usual suspects -- politicians and "political scientists" -- who for the most part issued bland reassurances that nothing much would change. A few good-government types were allowed to cackle that the decision marked a new day. A dejected governor Thompson of Illinois told the Chicago papers, "I think this will strike a severe blow at whatever is left of political parties in America." For the most part, to my ear, the press marked Rutan with yawning derision. Aside from Thompson's funereal lament, I could find no other hints that the parties of Jefferson and Lincoln might soon join the party of Lenin and Stalin on the trash heap of history. Just the opposite. We were reassured by the high priests to expect business as usual.
Former Illinois legislator James Nowlan wrote an article for the Chicago Tribune entitled, "Death knell for patronage? Hardly." "There will still be job patronage," he writes. "Bureaucrats and government union officials will continue to use their special knowledge of the personnel game to help their friends secure jobs and promotions." He cites what he calls the "new patronage." "...Since television has replaced precinct workers for the most part, money to buy TV spots has become the most important medium of the new patronage. Banks, law firms, investment houses, contractors and interest groups -- those who do business in government and legislation -- fuel campaigns with annual contributions of $10,000 to $100,000, often in the expectation of state business." (Thomas Nast and other cartoonists of the late nineteenth century, who regularly depicted the trusts as moneybags with overpowering, corrupting influence on politicians, would be amused by Nowlan's assertion that big money is a new patronage.)
In a New York Times article titled, "Why Patronage is Unlikely to Fade" (subtitled "An Ingrained American Tradition"), writer Martin Tolchin interviews several professors who snicker at Rutan. "The supreme court decision is going to be devilishly hard to enforce," one ivory-towered observer posits. Tolchin notes, "Elected officials can also place their supporters in jobs in private industry. The late mayor Richard J. Daley of Chicago was said to control 30,000 jobs in private industry -- janitors, carpenters and electricians as well as corporate positions -- nearly as many as his Democratic organization controlled in city and county government. Experts on Illinois patronage say the practice continues." (This trick also lives on in Pennsylvania, where turnpike employees complain that relatives of commissioners hold jobs with contractors.)
Taking the opposite view, the Washington Post quoted "political scientists" who said the decision is "likely to mark the end of the long-standing but waning American tradition of patronage." The Post noted that the decision came at a time when "many political scientists are arguing that expanding the patronage power of elected officials might make bureaucracies more accountable and strengthen beleaguered political parties." By coincidence, Rutan was handed down the same day the senate failed to overturn a patronage-related veto by president George Bush. Bush's veto prevented a weakening of the 1939 Hatch Act, which prohibits political involvement of government employees. They're still wrangling over patronage in congress. So it's too early to write patronage's obituary.
The Washington Post went so far as to dig up author Larry Sabato, political scientist at the University of Virginia. Sabato, it reported, "described himself as 'horrified and saddened' that his work had been cited by justice William J. Brennan Jr. in the majority opinion limiting patronage. Sabato argues that the elected officials need more, not less, political discretion." He tells the Post, "This is a very far-reaching decision. It's going to reach into the lowest and mid-levels of government."
Paul Tully, of the Democratic National Committee, was quoted by the Post as saying that "he thought the decision would affect political organizations in suburban areas such as Long Island, N.Y., and in some parts of the Deep South and some jobs 'tucked away' in some cities and state governments." The Pennsylvania turnpike would prove to be even more resistant to change, more "tucked away" than even the Deep South.
Another political scientist, Esther Fuch of Bernard College, was less convinced, telling the Post that local politicians were already "one step ahead of the supreme court. 'Many cities are hiring temporaries or provisionals when they want to circumvent civil service rules, so the decision may not have much of an impact,' she said. Referring to local politicians, she added: 'They're not dumb, these guys.'"
The Boston Globe ran a headline reading, "In Massachusetts, mixed reviews," beneath which Martin Linsky of the John F. Kennedy School of Government is quoted as scoffing, "It appears that it (Rutan) means nothing. All it means: if you want to hire someone, you have to make a case for their competency."
All this mugwumpery is fine and entertaining, but, as I said, I was struck that I could find no mention in any newspaper of the court's debate over whether our two parties were unhealthy for the country. In this sense, the supreme court seemed to be one step ahead of the mugwumps and the wags, and in tune with the public.
Mary Lee Leahy, the attorney for Cynthia Rutan, told me all this grumbling about the enforceability of Rutan was just a lot of whistling past the graveyard. She said she was in the process of pursuing several punitive damage suits against Rutan violators. In Illinois the state doesn't reimburse those found guilty of employment violations. When individual supervisors feel the sting in the pocketbook, she said, illegal hiring should stop.
Might a hiring committee merely have to make a case for an employee's competency? I asked.
She laughed and said that was precisely the argument that had lost before the supreme court. "That's exactly the position the respondents took."
In certain states, she said, Rutan has meant a revolution in public employment. Following the decision, the Illinois state government examined 67,000 patronage jobs and ruled only 3,000 of them were exempt from Rutan. The remaining 64,000 would now be free of patronage. These jobs are now picked by aptitude or lottery, not political bosses.
"I think there are some people in Illinois who are genuinely trying to enforce Rutan," she said, "and others who are not."
As predicted by some, the latest trick of those trying to get around the law in Illinois is to hire workers on six-month, non-renewable retainers. The first time a worker came to Leahy complaining of this she said she thought it was a fluke. Soon she learned some 1,400 highway workers had been hired on six-month retainers. This not only violates the spirit of Rutan, she said, it subverts the personnel code. Six-month jobs have no benefits.
She plans more court action to fight infractions. Ignoring Rutan could prove politically embarrassing, she said. The governor and others have sworn to uphold the law.
Leahy expressed interest in the Rutan violations in Pennsylvania. She said her husband, when they were researching the case, had identified Pennsylvania as one of the states with a historically bad patronage problem. The other problem states, she found, were Massachusetts, West Virginia and Illinois. Many states west of the Mississippi, such as Wisconsin and Minnesota, were blessed with good-government crusades at the start of the century. Those states now find themselves remarkably free of patronage. One Californian told Leahy he was amazed at the extent of patronage in the East.
Why was patronage such a bad thing? I asked her. Patronage, she said, was bad for efficiency and kept the most competent from getting a job.
Cynthia Rutan and the four other plaintiffs in the case got their promotions. In a fairness hearing in April 1992, each also was awarded a $6,000 settlement from the state of Illinois.
I asked Rutan whether she was concerned about the impact the decision might have on the two-party system. "Everybody was so fed up we didn't care about the two-party system," she laughed. Let the best workers be hired, she said, and let the public vote for the best candidates, regardless of party.
When she spoke with me about the decision that came to bear her name, Rutan seemed to bubble. After the decision was handed down she'd experienced a few humorous incidents at work. In January 1991, while she was filling-in temporarily for a supervisor, she and others were called to a meeting where they received "Rutan training" from a higher-up. The supervisor began lecturing to Rutan on Rutan. The others turned in their seats to look at the woman who'd changed the law.
Rutan, like attorney Leahy, was interested in Rutan violations at the Pennsylvania turnpike. I listed some examples of husbands, girlfriends, relatives and cronies who'd been given jobs and promotions. Yes, Rutan laughed, they were all Rutan violations. She encouraged Pennsylvania public employees to come together and fight. "But if all you want to do is stand around the water cooler and whine then forget it."
Gather evidence, keep eyes and ears open, was her advice. The patronage form that the Illinois Republican Party had asked her to fill out ended up as an exhibit before the U. S. Supreme Court.
"One thing I've learned from all this is that there isn't one thing that isn't important. Write down everything you hear."
She said one of her co-workers overheard a party operative demanding $50 from a doctor, threatening not to renew the doctor's state contract if he didn't "contribute." A local newspaper got ahold of that story and created bad publicity for the state.
"There's strength in numbers," she says. "Band together. They can't find excuses to fire four or five of you, like they can fire a single worker. It really does intimidate them."
She said supervisors who violate Rutan are liable to have their personal assets attached by the courts.
"They cut me a wide path at work, now."
Editor's note: This essay originally appeared as Chapter 5 of When the Levee Breaks by William Keisling.