518 U.S. 668116 S.Ct. 2342135 L.Ed.2d 843
BOARD OF COUNTY COMMISSIONERS, WABAUNSEE COUNTY, KANSASv.UMBEHRCertiorari to the United States Court of Appeals for the Tenth Circuit.
No. 94-1654.
Supreme Court of the United States
Argued November 28, 1995
Decided June 28, 1996

Syllabus
During the term of his at-will contract with Wabaunsee County, Kansas   (County), to haul trash, respondent Umbehr was an outspoken critic of  petitioner Board of County Commissioners (Board).  After the  commissioners voted to terminate (or prevent the automatic renewal of)  the contract, allegedly because they took Umbehr's criticism badly, he  brought this suit against two of them under 42 U. S. C. Section(s) 1983.  The District Court granted them summary judgment, but the Tenth Circuit  reversed in relevant part and remanded, holding that the First Amendment protects independent contractors from governmental retaliation against  their speech, and that the extent of that protection must be determined  by weighing the government's interests as contractor against the free  speech interests at stake in accordance with the balancing test applied  in the government employment context under Pickering v. Board of Ed. of  Township High School Dist. 205, Will Cty., 391 U. S. 563, 568.
Held:  The First Amendment protects independent contractors from the  termination or prevention of automatic renewal of at-will government  contracts in retaliation for their exercise of the freedom of speech,  and the Pickering balancing test, adjusted to weigh the government's  interests as contractor rather than as employer, determines the extent  of that protection.  Pp. 4-17.
(a) Because of the obvious similarities between government employees and  government contractors with respect to this issue, the Court is guided  by its government employment precedents. Among other things, those  precedents have recognized that government workers are constitutionally  protected from dismissal for publicly or privately criticizing their  employer's policies, see, e.g., Perry v. Sindermann, 408 U. S. 593, but  have also acknowledged that the First Amendment does not guarantee  absolute freedom of speech, see, e.g., Connick v. Myers, 461 U. S. 138, 146, and have required a fact-sensitive and deferential  weighing of the  government employer's legitimate interests against its employees' First  Amendment rights, see, e.g., Pickering, supra, at 568. The parties'  attempts to differentiate between independent contractors and government  employees are unavailing. Each of their arguments for and against the  imposition of liability has some force, but all of them can be  accommodated by applying the existing government employee framework.  Moreover, application of the nuanced Pickering approach is superior to a brightline rule giving the government carte blanche to terminate independent contractors for exercising their speech rights. Although  both the individual's and the government's interests are typically-though not always-somewhat less strong in an independent contractor case, the fact that such contractors are similar in most  relevant respects to government employees compels the conclusion that  the same form of balancing analysis should apply to each.  Pp. 4-12.
(b) Neither the dissent's fears of excessive litigation, nor its  assertion that the allocation of government contracts on the basis of  political bias is a longstanding tradition, can deprive independent  contractors of protection.  Its own description of ``lowest-responsible-bidder'' requirements in a wide range of government  contracting laws voluntarily adopted by federal and state authorities  suggests that government contracting norms incompatible with political  bias have proliferated without unduly burdening the government, and such  laws have a long history.  Pp. 12-16.
(c) Because the courts below assumed that Umbehr's termination (or nonrenewal) was in retaliation for his protected speech activities, and  did not pass on the balance between the government's interests and his  free speech interests, the conclusion that independent contractors do  enjoy some First Amendment protection requires affirmance of the Tenth  Circuit's decision to remand the case.  To prevail, Umbehr must show initially that the termination of his contract was motivated by his  speech on a matter of public concern, see Connick, supra, at 146; he  must therefore prove more than the mere fact that he criticized the  Board members before he was terminated.  If he can do so, the Board will  have a valid defense if it can show, by a preponderance of the evidence,  that, in light of their knowledge, perceptions, and policies at the time  of the termination, the Board members would have terminated the contract  regardless of his speech.  See Mt. Healthy City Bd. of Ed. v. Doyle, 429  U. S. 274, 287.  The Board will also prevail if it can demonstrate that  the County's legitimate interests as contractor, deferentially viewed,  outweigh the free speech interests at stake.  See, e.g., Pickering,  supra, at 568.  And, if Umbehr prevails, evidence that the Board members  discovered facts after termination that would have led to a later termination anyway, and evidence of mitigation of his loss by means of  subsequent trash hauling contracts with cities in the County, would be  relevant in assessing the appropriate remedy. Because Umbehr's suit  concerns the termination or nonrenewal of a pre-existing commercial  relationship with the government, this Court need not address the  possibility of suits by bidders or applicants for new government  contracts who cannot rely on such a relationship.  Pp. 16-17.  44 F. 3d  876, affirmed and remanded.
O'Connor, J., delivered the opinion of the Court with respect to Parts  I, II-A, II-B-2, and III, in which Rehnquist, C. J., and Stevens,  Kennedy, Souter, Ginsburg, and Breyer, JJ., joined, and the opinion of  the Court with respect to Part II-B-1, in which Stevens, Kennedy,  Souter, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed a  dissenting opinion, in which Thomas, J., joined.
NOTICE: This opinion is subject to formal revision before publication in  the preliminary print of the United States Reports.  Readers are  requested to notify the Reporter of Decisions, Supreme Court of the  United States, Washington, D.C. 20543, of any typographical or other  formal errors, in order that corrections may be made before the  preliminary print goes to press.
Justice O'Connor delivered the opinion of the Court.1


1
This case requires us to decide whether, and to what extent, the  First Amendment protects independent contractors from the termination of  at-will government contracts in retaliation for their exercise of the  freedom of speech.

I.

2
Under state law, Wabaunsee County, Kansas (County) is obliged to  provide for the disposal of solid waste generated within its borders. In  1981, and, after renegotiation, in 1985,  the County contracted with  respondent Umbehr for him to be the exclusive hauler of trash for cities  in the county at a rate specified in the contract.  Each city was free  to reject or, on  90 days' notice, to opt out of, the contract.  By its  terms, the contract between Umbehr and the County was automatically  renewed annually unless either party terminated it by giving notice at least 60 days before the end of the year or a renegotiation was instituted on 90 days' notice.  Pursuant to the contract, Umbehr hauled  trash for six of the County's seven cities from 1985 to 1991 on an  exclusive and uninterrupted basis.


3
During the term of his contract, Umbehr was an outspoken critic  of petitioner, the Board of County Commissioners of Wabaunsee County   (Board), the three-member governing body of the County.  Umbehr spoke at  the Board's meetings, and wrote critical letters and editorials in local  newspapers regarding the County's landfill user rates, the cost of  obtaining official documents from the County, alleged violations by the  Board of the Kansas Open Meetings Act, the County's alleged  mismanagement of taxpayers' money, and other topics.  His allegations of  violation of the Kansas Open Meetings Act were vindicated in a consent decree signed by the Board's members.  Umbehr also ran unsuccessfully  for election to the Board.


4
The Board's members allegedly took Umbehr's criticism badly, threatening the official county newspaper with censorship for publishing  his writings.  In 1990, they voted, 2-to-1, to terminate (or prevent the  automatic renewal of) Umbehr's contract with the County.  That attempt  at termination failed because of a technical defect, but in 1991, the  Board succeeded  in terminating Umbehr's contract, again by a 2-to-1  vote.  Umbehr subsequently negotiated new contracts with five of the six  cities that he had previously served.


5
In 1992, Umbehr brought this suit against the two majority Board  members in their individual and official capacities under 42 U. S. C.  Section(s) 1983, alleging that they had terminated his government  contract in retaliation for his criticism of the County and the Board.  The Board members moved for summary judgment.  The District Court  assumed that Umbehr's contract was terminated in retaliation for his  speech, and that he suffered consequential damages.  But it held that  "the First Amendment does not prohibit [the Board] from considering   [Umbehr's] expression as a factor in deciding not to continue with the  trash hauling contract at the end of the contract's annual term," because, as an independent contractor, Umbehr was not entitled to the  First Amendment protection afforded to public employees. Umbehr v.  McClure, 840 F. Supp. 837, 839 (D. Kan. 1993).  It also held that the  claims against the Board members in their individual capacities would be  barred by qualified immunity, id., at 841, a ruling which was affirmed  on appeal and which is not at issue here.


6
The United States Court of Appeals for the Tenth Circuit reversed (except as to qualified immunity), holding that "an independent  contractor is protected under the First Amendment from retaliatory  governmental action, just as an employee would be," and that the extent  of protection is to be determined by weighing the government's interests  as contractor against the free speech interests at stake in accordance  with the balancing test that we used to determine government employees'  First Amendment rights in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568 (1968).  44 F. 3d 876,  883 (CA10 1995).  It therefore remanded the official capacity claims to  the District Court for further proceedings, including consideration of  whether the termination was in fact retaliatory.  The Board members who  were the original defendants in this suit subsequently resigned their  positions on the Board, so in this Court, the Board was substituted for  them as petitioner.  See this Court's Rule 35.3.


7
We granted certiorari to resolve a conflict between the Courts  of Appeals regarding whether and to what extent independent contractors  are protected by the First Amendment. The Fifth and Eighth Circuits  agree with the Tenth Circuit.  See Blackburn v. Marshall, 42 F. 3d 925,  931-935 (CA5 1995); Copsey v. Swearingen, 36 F. 3d 1336, 1344 (CA5  1994); North Mississippi Communications, Inc. v. Jones, 792 F. 2d 1330   (CA5 1986); Smith v. Cleburne County Hospital, 870 F. 2d 1375, 1381   (CA8), cert. denied, 493 U. S. 847 (1989); but see Sweeney v. Bond, 669  F. 2d 542 (CA8), cert. denied, 459 U. S. 878 (1982).  See also Abercrombie v. Catoosa, 896 F. 2d 1228, 1233 (CA10 1990) (allowing an  independent contractor to sue for termination based on his speech and  political activities).  The Third and Seventh Circuits have, however,  held that an independent contractor who does not have a property  interest in his contract with the government has no right not to have  that contract terminated in retaliation for his exercise of First  Amendment freedoms of political affiliation and participation.  See Horn  v. Kean, 796 F. 2d 668 (CA3 1986) (en banc); O'Hare Truck Serv., Inc. v. Northlake, 47 F. 3d 883 (CA7 1995), reversed, post, at ___; Downtown  Auto Parks, Inc. v. Milwaukee, 938 F. 2d 705 (CA7), cert. denied, 502 U.  S. 1005 (1991); Triad Assocs., Inc. v. Chicago Housing Auth., 892 F. 2d  583 (CA7 1989), cert. denied, 498 U. S. 845 (1990).


8
We agree with the Tenth Circuit that independent contractors are  protected, and that the Pickering balancing test, adjusted to weigh the  government's interests as contractor rather than as employer, determines  the extent of their protection.  We therefore affirm.

II.
A.

9
This Court has not previously considered whether and to what extent the First Amendment restricts the freedom of federal, state, or  local governments to terminate their relationships with independent  contractors because of the contractors' speech.  We have, however,  considered the same issue in the context of government employees' rights  on several occasions.  The similarities between government employees and  government contractors with respect to this issue are obvious.  The government needs to be free to terminate both employees and contractors  for poor performance, to improve the efficiency, efficacy and  responsiveness of service to the public, and to prevent the appearance  of corruption. And, absent contractual, statutory or constitutional  restriction, the government is entitled to terminate them for no reason  at all.  But either type of relationship provides a valuable financial  benefit, the threat of the loss of which in retaliation for speech may  chill speech on matters of public concern by those who, because of their dealings with the government, "are often in the best position to know  what ails the agencies for which they work,"  Waters v. Churchill, 511  U. S. ___, ___ (1994) (slip op., at 11) (plurality opinion).  Because of  these similarities, we turn initially to our government employment  precedents for guidance.


10
Those precedents have long since rejected Justice Holmes' famous  dictum, that a policeman "may have a constitutional right to talk  politics, but he has no constitutional right to be a policeman,"  McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N. E. 517   (1892).  Recognizing that "constitutional violations may arise from the  deterrent, or `chilling,' effect of governmental [efforts] that fall  short of a direct prohibition against the exercise of First Amendment  rights," Laird v. Tatum, 408 U. S. 1, 11 (1972), our modern  "unconstitutional conditions" doctrine holds that the government  "may  not deny a benefit to a person on a basis that infringes his  constitutionally protected . . . freedom of speech" even if  he has no  entitlement to that benefit, Perry v. Sindermann, 408  U. S. 593, 597   (1972).  We have held that government workers are constitutionally  protected from dismissal for refusing to take an oath regarding their political affiliation, see, e.g., Wieman v. Updegraff, 344 U. S. 183   (1952); Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U.  S. 589 (1967), for publicly or privately criticizing their employer's  policies, see Perry, supra; Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.  S. 274 (1977); Givhan v. Western Line Consol. School Dist., 439 U. S.  410 (1979), for expressing hostility to prominent political figures, see  Rankin v. McPherson, 483 U. S. 378 (1987), or, except where political  affiliation may reasonably be considered an appropriate job  qualification, for supporting or affiliating with a particular political  party, see, e.g., Branti v. Finkel, 445 U. S. 507 (1980).  See also  United States v. Treasury Employees, 513 U. S. ___ (1995) (government  employees are protected from undue burdens on their expressive  activities created by a prohibition against accepting honoraria); Abood  v. Detroit Bd. of Ed., 431 U. S. 209, 234 (1977) (government employment  cannot be conditioned on making or not making financial contributions to  particular political causes).


11
While protecting First Amendment freedoms, we have, however, acknowledged that the First Amendment does not create property or tenure  rights, and does not guarantee absolute freedom of speech. The First  Amendment's guarantee of freedom of speech protects government employees  from termination because of their  speech on matters of public concern.  See Connick v. Myers, 461 U. S. 138, 146 (1983) (speech on merely  private employment matters is unprotected).  To prevail, an employee  must prove that the conduct at issue was constitutionally protected, and  that it was a substantial or motivating factor in the termination.  If  the employee discharges that burden, the government can escape liability  by showing that it would have taken the same action even in the absence  of the protected conduct.  See Mt. Healthy, supra, at 287.  And even  termination  because of protected speech may be justified when legitimate  countervailing government interests are sufficiently strong.  Government  employees' First Amendment rights depend on the "balance between the  interests of the [employee], as a citizen,  in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its  employees."  Pickering,  391 U. S., at 568.  In striking that balance, we  have concluded  that "[t]he government's interest in achieving its goals  as effectively and efficiently as possible is elevated from a relatively  subordinate interest when it acts as sovereign to a significant one when  it acts as employer."  Waters, 511 U. S., at ___ (slip op., at 12) (plurality opinion).  We have, therefore, "consistently given greater  deference to government predictions of harm used to justify restriction  of employee speech than to predictions of harm used to justify  restrictions  on the speech of the public at large."  Id., at ___ (slip  op., at 10); accord, Treasury Employees, supra, at ___.


12
The parties each invite us to differentiate between independent  contractors and employees.  The Board urges us not to "extend" the First  Amendment rights of government employees to contractors.  Umbehr, joined  by the Solicitor General as amicus curiae, contends that, on proof of  viewpoint-based retaliation for contractors' political speech, the  government should be required to justify its actions as narrowly  tailored to serve a compelling state interest.


13
Both parties observe that independent contractors in general, and Umbehr in particular, work at a greater remove from government officials than do most government employees.  In the  Board's view, the  key feature of an independent contractor's contract is that it does not  give the government the right to supervise and control the details of  how work is done.  The Board argues that the lack of day-to-day control  accentuates the government's need to have the work done by someone it  trusts, cf. Branti, supra, at 518 (certain positions in government  employment implicate such a need for trust that their award on the basis  of party political affiliation is justified), and to resort to the  sanction of termination for unsatisfactory performance.2 Umbehr, on  the other hand, argues that the government interests in maintaining harmonious working environments and relationships recognized in our  government employee cases are attenuated where the contractor does not  work at the government's workplace and does not interact daily with  government officers and employees.  He also points out that to the  extent that he is publicly perceived as an independent contractor, any  government concern that his political statements will be confused with  the government's political positions is mitigated.  The Board and the  dissent, post, at 12-15, retort that the cost of fending off litigation, and the potential for government contracting practices to ossify into  prophylactic rules to avoid potential litigation and liability, outweigh  the  interests of independent contractors, who are typically less  financially dependent on their government contracts than are government  employees.


14
Each of these arguments for and against the imposition of liability has some force.  But all of them can be accommodated by applying our existing framework for government employee cases to independent contractors.  Mt. Healthy assures the government's ability  to terminate contracts so long as it does not do so in retaliation for  protected First Amendment activity.  Pickering requires a fact-sensitive  and deferential weighing of the government's legitimate interests.  The  dangers of burdensome litigation and the de facto imposition of rigid  contracting rules necessitate attentive application of the Mt. Healthy  requirement of proof of causation and substantial deference, as mandated  by Pickering, Connick and Waters, to the government's reasonable view of  its legitimate interests, but not a per se denial of liability.  Nor can  the Board's and the dissent's generalization that independent  contractors may be less dependent on the government than government  employees, see post, at 12, justify denial of all First Amendment  protection to contractors. The tests that we have established in our  government employment cases must be judicially administered with  sensitivity to governmental needs, but First Amendment rights must not  be neglected.


15
Umbehr's claim that speech threatens the government's interests  as contractor less than its interests as employer will also inform the  application of the Pickering test.  Umbehr is correct that if the Board  had exercised sovereign power against him as a citizen in response to  his political speech, it would be required to demonstrate that its  action was narrowly tailored to serve a compelling governmental  interest.  But in this case,  as in government employment cases, the  Board exercised contractual power, and its interests as a public service  provider, including its interest in being free from intensive judicial  supervision of its daily management functions, are potentially  implicated. Deference is therefore due to the government's reasonable assessments of its interests as contractor.


16
We therefore see no reason to believe that proper application of  the Pickering balancing test cannot accommodate the differences between  employees and independent contractors. There is ample reason to believe  that such a nuanced approach, which recognizes the variety of interests  that may arise in independent contractor cases, is superior to a  brightline rule distinguishing independent contractors from employees.  The brightline rule proposed by the Board and the dissent would give the  government carte blanche to terminate independent contractors for  exercising First Amendment rights.  And that brightline rule would leave  First Amendment rights unduly dependent on whether state law labels a  government service provider's contract as a contract of employment or a  contract for services, a distinction which is at best a very poor proxy  for the interests at stake. See Comment, Political Patronage in  Public  Contracting, 51 U. Chi. L. Rev. 518, 520 (1984) ("no legally relevant  distinction exists between employees and contractors in terms either of  the government's interest in using patronage or of the employee or contractor's interest in free speech"); cf. Perry, 408 U. S., at 597   (the prohibition of unconstitutional conditions on speech applies  "regardless of the public employee's contractual or other claim to a  job"). Determining constitutional claims on the basis of such formal distinctions, which can be manipulated largely at the will of the government agencies concerned, see Logue v. United States, 412 U. S.  521, 532 (1973) (noting that independent contractors are often employed  to perform "tasks that would . . . otherwise be performed by salaried  Government employees"), is an enterprise that we have consistently  eschewed.  See, e.g., Lefkowitz v. Turley, 414 U. S. 70, 83 (1973) (in  the context of the privilege against self-incrimination, "we fail to see  a difference of constitutional magnitude between the threat of a job  loss to an employee of the State, and the threat of loss of contracts to  a contractor"); cf. Colorado Republican Campaign Committee v. Federal  Election Commission, ___ U. S. ___ (1996) (slip op., at 15) (opinion of  Breyer, J.) ("the government `cannot foreclose the exercise of [First  Amendment] rights by mere labels'") (quoting NAACP v. Button, 371 U. S.  415, 429 (1963)); Escobedo v. Illinois, 378 U. S. 478, 486 (1964)  (declining to "exalt form over substance" in determining the temporal  scope of Sixth Amendment protections); Crowell v. Benson, 285 U. S. 22,  53 (1932) ("regard must be had, . . . in . . . cases where constitutional limits are invoked, not to mere matters of form but to  the substance of what is required"); Chicago, B. & Q. R.  Co. v. Chicago,  166 U. S. 226, 235 (1897) ("In determining what  is due process of law  regard must be had to substance, not to form"); Browning-Ferris  Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U. S. 257, 299   (1989) (O'Connor, J., concurring in part and dissenting in part) ("the  applicability of a provision of the Constitution has never depended on  the vagaries of state or federal law").


17
Furthermore, the arguments made by both parties demonstrate that  it is far from clear, as a general matter, whether the balance of  interests at stake is more favorable to the government in independent  contractor cases than in employee cases.  Our unconstitutional  conditions precedents span a spectrum from government employees, whose  close relationship with the government requires a balancing of important  free speech and government interests, to claimants for tax exemptions   (Speiser v. Randall, 357 U. S. 513 (1958)), users of public facilities (e.g., Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U.  S. 384, ___-___ (1993); Healy v. James, 408 U. S. 169 (1972)), and  recipients of small government subsidies  (e.g., FCC v. League of Women  Voters of Cal., 468 U. S. 364 (1984)), who are much less dependent on  the government but more  like ordinary citizens whose viewpoints on  matters of public concern the government has no legitimate interest in  repressing.  The First Amendment permits neither the firing of janitors  nor the discriminatory pricing of state lottery tickets based on the government's disagreement with certain political expression. Independent contractors appear to us to lie somewhere between the case  of government employees, who have the closest relationship with the  government, and our other unconstitutional conditions precedents, which  involve persons with less close relationships with the government.  The  Board's and the dissent's assertion, post, at 2, 12, that the decision  below represents an unwarranted "extension" of special protections  afforded to government employees is, therefore, not persuasive.

B.
1.

18
The dissent's fears of excessive litigation, see post, at 12-15,  cannot justify a special exception to our unconstitutional conditions  precedent to deprive independent government contractors of protection.  Nor can its assertion that the allocation of government contracts on the  basis of political bias is a "long and unbroken tradition of our  people."  Post, at 4. We do not believe that tradition legitimizes  patronage contracting, regardless of whether one approaches the role of tradition in First Amendment adjudication from the perspective of Part I  of the Rutan dissent, see post, at 2-3 (quoting Rutan v. Republican  Party of Ill., 497 U. S. 62, 95 (1990) (Scalia, J., dissenting)) (a  practice that "`bears the endorsement of a long tradition of open,  widespread, and unchallenged use that dates back to the beginning of the  Republic'" is presumed constitutional) (emphasis added), or from that of  Justice Holmes, compare post, at 5-6 (quoting Holmes' discussion of  traditional usage of legal terminology in a tax case) with Abrams v.  United States, 250 U. S. 616, 630 (1919) (Holmes, J., dissenting) (rejecting both the self-interested "logi[c]" and the long history of  the suppression of free speech, including the Sedition Act of 1798 and  "the common law as to seditious libel," in favor of the true "theory of  our Constitution," which values free speech as essential to, not subject  to the vicissitudes of, our political system).


19
The examples to which the dissent cites, post, at 3-4, are not,  in our view, "`the stuff out of which the Court's principles are to be  formed,'" post, at 3 (quoting Rutan, supra, at 96 (Scalia, J.,  dissenting)).  Consider, for example, the practice of "courtroom  patronage," whereby "[e]lected judges, who owe their nomination and  election to the party, give the organization lucrative refereeships,  trusteeships, and receiverships which often yield legal fees unjustified  by the work required," M. Tolchin & S. Tolchin, To The Victor: Political Patronage from the Clubhouse to the White House 15 (1971); see also  Wolfinger, Why Political Machines Have Not Withered Away and Other  Revisionist Thoughts, 34 J. Politics 365, 367, 371 (1972) (similar), or  the award of "gift[s]" to political supporters under the guise of  research grants, Tolchin, supra, at 61, or the allocation of contracts  based on "contributions resulting from the compound of bribery and  extortion" and "kickbacks," A. Heard, The Costs of Democracy 143, 144   (1960),  or the practice of "`beer politics,'" whereby "wholesale liquor   licenses issued by the state were traded for campaign contributions,"  id., at 144, or the extortion of political support and "campaign contributions" on pain of being branded a  "Communist," R. Caro, The  Power Broker: Robert Moses and the Fall of New York 726 (1975), or the  "favorable consideration in  the courts or by public agencies" expected  in one city by the clients of "`political' attorneys with part-time  public jobs," Wolfinger, supra, at 389, or the question reportedly asked  by a  party official of a businessman who was reluctant to contribute to  a mayoralty campaign, "`Look, you [expletive deleted], do you want a snow-removal contract or don't you?,'" id., at 368.  These examples,  cited by the dissent, many of which involve patronage in employment and  appointments rather than in contracting, cf. Comment, Political  Patronage, at 518, n. 4 ("patronage systems have traditionally centered  around the distribution of government jobs") (emphasis added), may  suggest  that abuses of power in the name of patronage are not "highly  unusual," post, at 27. It may also be the case that the victims whose  speech is chilled and whose contributions are extracted by such  government action are often "`honorable and prudent businessmen.'"   Post, at 4 (quoting Heard, supra, at 145).  But  the dissent's examples  do not establish an "open and unchallenged" tradition of allocating government contracts on the basis of political bias-much less on the  basis of disapproval of political speech.  The dissent's own sources  note that the patronage practices that they report were denied and  disavowed by their alleged practitioners, see Wolfinger, supra, at 367,  n. 2, 372-373, n. 11, that they were most significant in secret and  specialized contexts such as defense contracting that "operat[e] in an  atmosphere uninhibited by the usual challenges  of representative  government," Tolchin, supra, at 233, and that  in many cases they were  illegal, see Heard, supra, at 143-144, n. 4.  We of course agree with  the dissent that mere "obnoxious[ness]," post, at 5, and criminality do  not make a practice unconstitutional. Nor, however, do the dissent's  examples of covert, widely condemned and sometimes illegal government  action legitimize the government discrimination based on the viewpoint  of one's speech or one's political affiliations that is involved here.

2.

20
The dissent's own description of the "lowest-responsible-bidder"  and other, similar requirements covering a wide range of government  contracts that  the Federal Government, all 50 States, and many local  government authorities, have voluntarily  adopted, see post, at 6-10, at  least suggests that government contracting norms incompatible with  political bias have proliferated without unduly burdening the  government. In fact,  lowestand lowest-responsible-bidder requirements  have a long history, as a survey of 19th century state constitutions and federal territorial legislation reveals.  See, e.g., Ala. Const., Art.  IV, Section(s) 30 (1875) in 1 Federal and State Constitutions 161 (F.  Thorpe ed. 1909); Civil Government in Alaska Act, Tit. I, Section(s) 2   (1900) in id., at 243; Ark. Const., Art. XIX, Section(s) 15, 16 (1874)  in id., at 366; Colo. Const., Art. V, Section(s) 29 (1876) in id., at  485; Del. Const., Art. XV, Section(s) 8 (1897) in id., at 631; Permanent  Government for District of Columbia Act, Section(s) 5 (1878) in id., at 645-646; Ill. Const., Art. III, Section(s) 39 (1848) in  2 id., at 991;  Ill. Const., Art. IV, Section(s) 25 (1870) in id., at 1022; Kan. Const.,  Art. XVI, Section(s) 2 (1858) in id., at 1236; Ky. Const., Section(s)  247 (1890) in 3 id., at 1353; La. Const., Art. 42 (1879) in id., at  1447-1478; La. Const., Art. 44 (1898) in id., at 1529; Mich. Const.,  Art. IV, Section(s) 22 (1850) in 4 id., at 1948-1949; Miss. Const., Art.   4, Section(s) 107 (1890) in id., at 2102; Mont. Const., Art. V,   Section(s) 30 (1889) in id., at 2308; Neb. Const., Art. II, Section(s)  23 (1866-1867) in id., at 2353; Ohio Const., Art. XV, Section(s) 2   (1851) in 5 id., at 2932; Pa. Const., Art. III, Section(s) 12 (1873) in  id., at 3127; Tex. Const., Art. XVI, Section(s) 21 (1876) in 6 id., at 3658-3659; W. Va. Const., Art. VI, Section(s) 34 (1872) in 7 id., at  4044; Wisc. Const., Art. IV, Section(s) 25 (1848) in id., at 4083; Wyo.  Const., Art. III, Section(s) 31 (1889) in id., at 4124; see also Ky.  Const., Section(s) 164 (1890) in 3 id., at 1341 ("highest and best  bidder" rule for municipal and local franchise awards); Miss. Const.,  Art. I, Section(s) 5 (1817, 1832) in 4 id., at 2033, 2049 ("no person  shall be molested for his opinions on any subject whatsoever, nor suffer  any civil or political incapacity, or acquire any civil or political advantage, in consequence of such opinions, except in cases provided for  in this constitution").  We are aware of no evidence of excessive or  abusive litigation under such provisions.  And, unlike the dissent,  post, at 14-15, we do not believe that a deferentially  administered  requirement that the government not unreasonably terminate its  commercial relationships on the basis of speech or political affiliation  poses a greater threat to legitimate government interests than the  complex and detailed array of modern statutory and regulatory government  contracting rules.


21
In sum, neither the Board nor Umbehr have persuaded us that there is a "difference of constitutional magnitude," Lefkowitz, 414 U.  S., at 83, between independent contractors and employees in this  context. Independent government contractors are similar in most relevant  respects to government employees, although both the speaker's and the  government's interests are typically-though not always-somewhat less  strong in the independent contractor case.  We therefore conclude that  the same form of balancing analysis should apply to each.

III.

22
Because the courts below assumed that Umbehr's termination (or  nonrenewal) was in retaliation for his protected speech activities, and  because they did not pass on the balance between the government's  interests and the free speech interests at stake, our conclusion that  independent contractors do enjoy some First Amendment protection  requires that we affirm the Tenth Circuit's decision to remand the case.  To prevail, Umbehr must show that the termination of his contract was  motivated by his speech on a matter of public concern, an initial  showing that requires him to prove more than the mere fact that he  criticized the Board members before they terminated him.  If he can make that showing, the Board will have a valid defense if it can show, by a  preponderance of the evidence, that, in light of their knowledge,  perceptions and policies at the time of the termination, the Board  members would have terminated the contract regardless of his speech. See  Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274 (1977).  The Board  will also prevail if it can persuade the District Court that the  County's legitimate interests as contractor, deferentially viewed,  outweigh the free speech interests at stake.  And, if Umbehr prevails,  evidence that the Board members discovered facts after termination that would have led to a later termination anyway, and evidence of mitigation  of his loss by means of his subsequent contracts with the cities, would  be relevant in assessing what remedy is appropriate.


23
Finally, we emphasize the limited nature of our decision today.  Because Umbehr's suit concerns the termination of a pre-existing  commercial relationship with the government, we need not address the  possibility of suits by bidders or applicants for new government  contracts who cannot rely on such a relationship.


24
Subject to these limitations and caveats, however, we recognize  the right of independent government contractors not to be terminated for  exercising their First Amendment rights.  The judgment of the Court of  Appeals is, therefore, affirmed, and the case is remanded for  proceedings consistent with this opinion.


25

It is so ordered.



26
Justice Scalia, with whom Justice Thomas joins, dissenting.


27
Taken together, today's decisions in Board of Comm'rs, Waubansee  Cty. v. Umbehr, ante, p. ___, and O'Hare Truck Service, Inc. v.  Northlake, ante, p. ___, demonstrate why this Court's Constitution-making process can be called "reasoned adjudication" only  in the most formalistic sense.

I.

28
Six years ago, by the barest of margins, the Court expanded Elrod v. Burns, 427 U. S. 347 (1976), and Branti v. Finkel, 445 U. S.  507 (1980), which had held that public employees cannot constitutionally  be fired on the basis of their political affiliation, to establish the  new rule that applicants for public employment cannot constitutionally  be rejected on the basis of their political affiliation.  Rutan v.  Republican Party of Ill., 497 U. S. 62 (1990).  The four dissenters  argued that "the desirability of patronage is a policy question to be  decided by the people's representatives" and "a political question if  there ever was one."  Id., at 104, 114 (Scalia, J.,  dissenting).  They were "convinced" that Elrod and Branti had been "wrongly decided," 497  U. S., at 114; indeed, that those cases were "not only wrong, not only  recent, not only contradicted by a long prior tradition, but also . . .  unworkable in practice" and therefore "should be overruled," id., at  110-111.  At the very least, the dissenters maintained, Elrod and Branti  "should not be extended beyond their facts," 497 U. S., at 114.


29
Today, with the addition to the Court of another Justice who believes that we have no basis for proscribing as unconstitutional practices that do not violate any explicit text of the Constitution and  that have been regarded as constitutional ever since the framing, see,  e.g., Bennis v. Michigan, 516 U. S. ___, ___ (1996) (slip op., at 1-2)  (Thomas,  J., concurring), one would think it inconceivable that Elrod  and Branti would be extended far beyond Rutan to the massive field of  all government contracting.  Yet amazingly, that is what the Court does  in these two opinions-and by lopsided votes, at that. It is profoundly  disturbing that the varying political practices across this vast  country, from coast to coast, can be transformed overnight by an  institution whose conviction of what the Constitution means is so  fickle.


30
The basic reason for my dissent today is the same as one of the  reasons I gave (this one not joined by Justice O'Connor) in Rutan:


31
"[W]hen 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.  Such a  venerable and accepted tradition is not to be laid on the examining  table and scrutinized for its conformity to some abstract principle of  First Amendment adjudication devised by this Court.  To the contrary,  such traditions are themselves the stuff out of which the Court's  principles are to  be formed. They are, in these uncertain areas, the  very points  of reference by which the legitimacy or illegitimacy of  other practices is to be figured out.  When it appears that the latest  `rule,' or `three-part test,' or `balancing test' devised by the  Court  has placed us on a collision course with such a landmark practice, it is  the former that must be recalculated by us, and  not the latter that must  be abandoned by our citizens.  I know of no other way to formulate a  constitutional jurisprudence that reflects, as it should, the principles  adhered to, over time, by the American people, rather than those favored  by the personal (and necessarily shifting) philosophical dispositions of  a majority of this Court."  Rutan, supra, at 95-96 (Scalia, J., dissenting) (footnote omitted).


32
There can be no dispute that, like rewarding one's allies, the  correlative act of refusing to reward one's opponents-and at bottom both  of today's cases involve exactly that-is an American political tradition  as old as the Republic.  This is true not only with regard to employment  matters, as Justice Powell discussed in his dissenting opinions in  Elrod, supra, at 377-379, and Branti, supra, at 522, n. 1, but also in  the area of government contracts, see, e.g., M. Tolchin & S. Tolchin, To  the Victor: Political Patronage from the Clubhouse to the White House 14-15, 61, 233-241, 273-277 (1971); A. Heard, The Costs of Democracy  143-145 (1960); R. Caro, The Power Broker: Robert Moses and the Fall of  New York 723-726, 738, 740-741, 775, 799,  927 (1975); M. Royko, Boss:  Richard J. Daley of Chicago 69 (1971); Wolfinger, Why Political Machines  Have Not Withered Away and Other Revisionist Thoughts, 34 J. Politics  365, 367-368, 372, 389 (1972); The Bond Game Remains the Same, Nat'l L.  J., July 1, 1996, pp. A1, A20-A21.  If that long and unbroken tradition  of our people does not decide these cases, then what does?  The  constitutional text is assuredly as susceptible of one meaning as of the  other; in that circumstance, what constitutes a "law abridging the  freedom of speech" is either a  matter of history or else it is a matter  of opinion.  Why are not libel laws such an "abridgment"?  The only  satisfactory answer is that they never were.  What secret knowledge, one  must wonder, is breathed into lawyers when they become Justices of this  Court, that enables them to discern that a practice which the text of the Constitution does not clearly proscribe, and which our people have  regarded as constitutional for 200 years,  is in fact unconstitutional?  The Court seeks to avoid the charge that it ignores the centuries-old  understandings and practices of our people by recounting, , ante,  at 13-14, shocking examples of raw political patronage in contracting,  most of which would be unlawful under the most rudimentary bribery law.  (It selects, of course, only the worst examples from the sources I have  cited, omitting the more common practices that permit one author  to say, with undeniable accuracy, that "honorable and prudent businessmen competing for government ventures make campaign contributions" out of "a  desire to do what [is] thought necessary to remain eligible," and that  "[m]any contractors routinely do so to both parties."  Heard, supra, at  145.)  These "examples of covert, widely condemned and sometimes illegal  government action," it says, do not "legitimize the government  discrimination."  Umbehr, ante, at 14.  But of course it is not the  County's or City's burden (or mine) to "legitimize" all patronage  practices; it is Umbehr's and O'Hare's (and the Court's) to show that  all patronage practices are not only "illegitimate" in some vague moral  or even precise legal sense, but that they are unconstitutional.  It  suffices to demonstrate  the error of the Court's opinions that many  contracting patronage practices have been open, widespread, and  unchallenged since the beginning of the Republic; and that those that  have been objected to have not been objected to on constitutional  grounds.  That the Court thinks it relevant that many patronage  practices are "covert, widely condemned and sometimes illegal" merely  displays its persistent tendency to equate those many things that are or should be proscribed as a matter of social policy with those few things  that we have the power to proscribe under the Constitution.  The  relevant and inescapable point is this: No court ever held, and indeed  no one ever thought, prior  to our decisions in Elrod and Branti, that  patronage contracting could violate the First Amendment.  The Court's  attempt to contest this point, or at least to becloud the issue, by  appeal  to obnoxious and universally condemned patronage practices simply displays the feebleness of its case.


33
In each case today, the Court observes that we "have long since  rejected Justice Holmes' famous dictum, that a policeman `may have a  constitutional right to talk politics, but he has no constitutional  right to be a policeman.'"  Umbehr, ante, at 5 (quoting McAuliffe v.  Mayor of New Bedford, 155 Mass. 216, 220, 29 N. E. 517 (1892)); see  O'Hare, ante, at 3 (quoting same).  But this activist Court also  repeatedly rejects a more important aphorism of Justice Holmes, which  expresses a fundamental philosophy that was once an inseparable part of  our approach to constitutional law.  In a case challenging the  constitutionality of a federal estate tax on the ground that it was an unapportioned direct tax in violation of Article I, Section(s) 9, Justice Holmes wrote:


34
"[The] matter . . . is disposed of . . ., not by an attempt to  make some scientific distinction, which would be at least difficult, but  on an interpretation of language by its traditional use-on the practical  and historical ground that this kind of tax always has been regarded as  the antithesis of a direct tax . . . . Upon this point a page of history  is worth a volume of logic."  New York Trust Co. v. Eisner, 256 U. S.  345, 349 (1921) (emphasis added).

II.

35
The Court's decision to enter this field cannot be justified by  the consideration (if it were ever a justification) that the democratic  institutions of government have not been paying adequate attention to  the problems it presents.  The American people have evidently decided  that political influence in government contracting, like many other  things that are entirely constitutional, is not entirely desirable, and  so they have set about passing laws to prohibit it in some but not all  instances. As a consequence, government contracting is subject to the  most extraordinary number of laws and regulations at the federal, state,  and local levels.


36
The United States Code contains a categorical statutory prohibition on political contributions by those negotiating for or performing contracts with the Federal Government, 2 U. S. C. Section(s)  441c, competitive bidding requirements for contracts with executive  agencies, 41 U. S. C. Section(s) 252-253, public corruption and bribery  statutes, e.g., 18 U. S. C. Section(s) 201, and countless other  statutory requirements that restrict government officials' discretion in  awarding contracts.  "There are already over four thousand individual  statutory provisions that affect the [Defense Department's] procurement  process." Pyatt, Procurement Competition at Work: The Navy's  Experience, 6 Yale J. Reg. 319, 319-320 (1989).  Federal regulations are  even more widespread.  As one handbook in the area has explained, "[t]heir procedural and substantive requirements dictate, to an oftentimes astonishing specificity, how the entire contracting process  will be conducted."  ABA General Practice Section, Federal Procurement  Regulations: Policy, Practice and Procedures 1 (1987).  That is why it  is no surprise in this area to find a 253-page book just setting forth  "fundamentals," E. Massengale, Fundamentals of Federal Contract Law   (1991), or a mere "deskbook" that runs 436 pages, ABA Section of Public  Contract Law, Government Contract Law: The Deskbook for Procurement Professionals (1995).  Such "summaries" are indispensable when, for  example, the regulations that comprise the "Federal Acquisition  Regulations System" total some 5,037 pages of fine print.  See Title 48  CFR (1995).


37
Similar systems of detailed statutes and regulations exist throughout the States.  In addition to the various statutes criminalizing bribes to government officials and other forms of public  corruption, all 50 States have enacted legislation imposing competitive  bidding requirements on various types of contracts with the  government.3  Government contracting is such a standard area for  state regulation that a model procurement code has been developed, which  is set forth in a 265-page book complete with proposed statutes,  regulations, and explanations. See ABA Section of Urban, State and Local  Government Law, Model Procurement Code for State and Local Governments   (1981).  As of 1989, 15 States had enacted legislation based on the  model code. See ABA Section of Urban, State and Local Government Law, Annotations to the Model Procurement Code, at vii-viii (2d ed. 1992)  (and statutes cited).


38
By 1992, more than 25 local jurisdictions had also adopted legislation based on the Model Procurement Code, see id., at ix, and  thousands of other counties and municipalities have over time devised  their own measures.  New York City, for example, which "[e]ach year  . . . enter[s] into approximately 40,000 contracts worth almost $6.5  billion," has regulated the public contracting process by a myriad of  codes and regulations that seek to assure "scrupulous neutrality in  choosing contractors and [consequently impose] multiple layers of  investigation and accountability." Anechiarico & Jacobs, Purging  Corruption from  Public Contracting: The `Solutions' Are Now Part of the  Problem, 40 N. Y. L. S. L. Rev. 143, 143-144 (1995) (hereinafter  Anechiarico & Jacobs).


39
These examples of federal, state, and local statutes, codes, ordinances, and regulations could be multiplied to fill many volumes.  They are the way in which government contracts have been regulated, and  the way in which public policy problems that arise in the area have been  addressed, since the founding of the Republic.  See, e.g., Federal  Procurement Regulations: Policy, Practice and Procedures, at 11-196   (describing the history of federal government procurement regulation).  But these laws and regulations have brought to the field a degree of  discrimination, discernment, and predictability that cannot be achieved  by the blunt instrument of a constitutional prohibition.


40
Title 48 of the Code of Federal Regulations would not contain the 5,000+ pages it does if it did not make fine distinctions, permitting certain actions in some government acquisition areas and  prohibiting them in others.  Similarly, many of the competitive bidding  statutes that I have cited contain exceptions for, or are simply written  not to include, contracts under a particular dollar amount,4 or those  covering  certain subject matters,5 or those that are  time-sensitive.6  A political unit's decision not to enact  contracting regulations, or to suspend the regulations in certain  circumstances, amounts to a decision to permit some degree of political  favoritism.  As I shall discuss shortly, O'Hare's and Umbehr's First  Amendment permits no such selectivity-or at least none that can be known before litigation is over.

III.

41
If inattention by the democratic organs of government is not a  plausible reason for the Court's entry into the field, then what is?  I  believe the Court accepts (any sane person must accept) the premise that  it is utterly impossible to erect, and enforce through litigation, a  system in which no citizen is intentionally disadvantaged by the  government because of his political beliefs.  I say the Court accepts  that, because the O'Hare opinion, in a rare brush with the real world,  points out that "O'Hare was not part of a constituency that must take  its chance of being favored or ignored in the larger political process-for example, by residing or doing business in a region the government rewards or spurns in the construction of public works." Ante,  at 8.  Of course.  Government favors those who agree with its political  views, and disfavors those who disagree, every day-in where it builds  its public works, in the  kinds of taxes it imposes and collects, in its  regulatory prescriptions, in the design of its grant and benefit  programs-in a million ways, including the letting of contracts for  government business.  What good reason has the Court given for  separating out this last way, and declaring it to be (as all the  others  for some reason are not) an "abridgment of the freedom of speech"?


42
As I  have explained, I would separate the permissible from the impermissible  on the basis of our Nation's traditions, which is what I believe sound  constitutional adjudication requires.  In Elrod and Branti, the Court  rejected this criterion-but if what it said did not make good  constitutional law, at least it made some sense: the loss of one's job  is a powerful price to pay for one's politics.  But the Court then found  itself on the  fabled slippery slope that Justice Holmes's aphorism about  history and logic warned about: one logical proposition detached  from history leads to another, until the Court produces a result that bears  no resemblance to the America that we know.  The next step was Rutan,  which extended the prohibition of political motivation from firing to  hiring.  The third step is today's Umbehr, which extends it to the  termination of a government contract.  And the fourth step (as I shall  discuss anon) is today's O'Hare, which extends it to the refusal to  enter into contractual relationships.


43
If it is to be possible to dig in our cleats at some point on this slope-before we end up holding that the First Amendment requires  the City of Chicago to have as few potholes in Republican wards (if any)  as in Democratic ones-would not the most defensible point of termination  for this indefensible exercise be public employment?  A public employee  is always an individual, and a public employee below the highest  political level (which is exempt from Elrod) is virtually always an individual who is not rich; the termination or denial of a public job is  the termination or denial of a livelihood.  A public contractor, on the  other hand, is usually a corporation; and the contract it loses is  rarely its entire business, or even an indispensable part of its entire  business.  As Judge Posner put it:


44
"Although some business firms sell just to government, most government contractors also have private customers.  If the contractor  does not get the particular government contract on which he bids,  because he is on the outs with the incumbent and the state does not have  laws requiring the award of the contract to the low bidder (or the laws  are not enforced), it is not the end of the world for him; there are  other government entities to bid to, and private ones as well.  It is  not like losing your job."  LaFalce v. Houston, 712 F. 2d 292, 294 (CA7  1983).


45
Another factor that suggests we should stop this new enterprise  at government employment is the much greater volume of litigation that  its extension to the field of contracting entails.  The government  contracting decisions worth litigating about are much more numerous than  the number of personnel hirings and firings in that category; and the  litigation resources of contractors are infinitely more substantial than  those of fired employees or rejected applicants.  Anyone who has  had  even brief exposure to the intricacies of federal contracting law knows  that a lawsuit is often used as a device to stay or frustrate the award of a contract to a competitor.  See, e.g., Delta Data Systems Corp. v.  Webster, 744 F. 2d 197 (CADC 1984); Delta Data Systems Corp. v. Webster,  755 F. 2d 938  (CADC 1985).  What the Court's decisions today mean is  that all  government entities, no matter how small, are at risk of  Section(s) 1983 lawsuits for violation of constitutional rights,  unless  they adopt (at great cost in money and efficiency) the detailed and  cumbersome procedures that make a claim of political favoritism (and a  Section(s) 1983 lawsuit) easily defended against.


46
The Court's opinion in O'Hare shrugs off this concern with the  response that "[w]e have no reason to believe that governments cannot  bear a like burden [to that in the employment context] in defending  against suits alleging the denial of First Amendment freedoms to public  contractors."  Ante, at 12.  The burden is, as I have suggested, likely  much greater than that in the employment context; and the relevant  question (if one rejects history as the determinant) is not simply  whether the governments "can bear" it, but whether the inconvenience of  bearing it is outbalanced by the degree of abridgment of supposed First Amendment rights (of corporate shareholders, for the most  part) that  would occur if the burden were not imposed.7  The Court in Umbehr  dismisses the risk of litigation, not by analogy to the employment  context, but by analogy to the many government-contracting laws of the  type I have discussed.  "We are aware," it says, "of no evidence of  excessive or abusive litigation under such provisions."  Umbehr, ante,  at 15.  I am not sure the Court would be aware of such evidence if it  existed, but if in fact litigation has been "nonexcessive" (a  conveniently imprecise term) under these provisions, that is scant  indication that it will be "nonexcessive" under the First  Amendment. Uncertainty breeds litigation.  Government-contracting laws are clear  and detailed, and whether they have been violated is typically easy to  ascertain: the contract was put out for bid, or it was not.  Umbehr's  new First Amendment, by contrast, requires a sensitive "balancing" in  each case; and the factual question of whether political affiliation or  disfavored speech was the reason for the award or loss of the contract  will usually be litigable. In short, experience under  the  government-contracting laws has little predictive value.


47
The Court additionally asserts that the line cannot be drawn between employment and independent contracting, because "`the applicability of a provision of the Constitution has never depended on  the vagaries of state or federal law.'"  Umbehr, ante, at 11 (quoting  Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U.  S. 257, 299 (1989) (O'Connor, J., concurring in part and dissenting in  part)); see also Umbehr, ante, at 10-11 (citing other cases).  That is  not so. State law frequently plays a dispositive role in the issue of  whether a constitutional provision is applicable.  In fact, before we invented the First Amendment right not to be fired for political views,  most litigation in this very field of government employment revolved  around the Fourteenth Amendment's Due Process Clause, and asked whether  the firing had deprived the plaintiff of a "property" interest without  due process.  And what is a property interest entitled to Fourteenth  Amendment protection?  " [P]roperty interests," we said, "are not  created  by the Constitution.  Rather, they are created and their  dimensions are defined by existing rules or understandings that stem  from an independent source such as state law . . . . If it  is the law of Texas that a teacher in the respondent's position  has no contractual or  other claim to job tenure, the respondent's [federal constitutional]  claim would be defeated."  Perry v. Sindermann, 408 U. S. 593, 602, n. 7   (1972) (internal quotation marks and citation omitted).  See also Mt.  Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 280-281 (1977) (whether  a government entity possesses Eleventh Amendment immunity "depends, at  least in part, upon the nature of the entity created by state law").


48
I have spoken thus far as though the only problem involved here  were a practical one: as though, in the best of all possible worlds, if  our judicial system and the resources of our governmental entities could  only manage it, it would be desirable for an individual to suffer no  disadvantage whatever at the hands of the government solely because of  his political views-no denial of employment, no refusal of contracts, no  discrimination in social programs, not even any potholes.  But I  do not  believe that.  The First Amendment guarantees that you and I can say and believe whatever we like (subject to a few tradition-based exceptions,  such as obscenity and "fighting words") without going to jail or being  fined.  What it ought to  guarantee beyond that is not at all the simple  question the Court assumes.  The ability to discourage eccentric views  through the mild means that have historically been employed, and  that the Court has now set its face against, may well be important to social  cohesion.  To take an uncomfortable example  from real life: An  organization (I shall call it the White Aryan Supremacist Party, though  that was not the organization involved in the actual incident I have in  mind) is undoubtedly entitled, under the Constitution, to maintain and  propagate racist and antisemitic views.  But when the Department of  Housing and Urban Development lets out contracts to private security  forces to maintain law and order in units of public housing, must it  really treat this bidder the same as all others?  Or may it determine that the views of this organization are not political  views that it  wishes to "subsidize" with public funds, nor political views that it  wishes to hold up as an exemplar of the  law to the residents of public  housing? The state and local regulation I described earlier takes  account of this reality.  Even where competitive-bidding requirements  are applicable (which is far from always), they almost invariably  require that  a contract be awarded not to the lowest bidder but to the  "lowest responsible bidder."8  "The word `responsible' is as  important as the word `lowest,'" H. Cohen, Public Construction Contracts  and the Law 81 (1961), and has been interpreted in some States to permit  elected officials to exercise political discretion.  "Some New York courts," for example, "have upheld agency refusals to award a contract  to a low bidder because the  contractor, while technically and  financially capable, was not morally responsible."  Anechiarico & Jacobs  146-147. In the leading case of Picone v. New York, 176 Misc. 967, 29 N.  Y. S. 2d 539 (Sup. Ct. N. Y. Cty. 1941), the court stated that in  determining whether a lowest bidder for a particular contract was the  "lowest responsible bidder," New York City officials had permissibly considered "whether [the bidder] possessed integrity and moral worth."  Id., at 969, 29 N. Y. S. 2d, at 541.  The New  Jersey Supreme Court has  similarly said "[i]t is settled that the legislative mandate that a  bidder be `responsible' embraces moral integrity just as surely as it  embraces a capacity to supply labor and materials."  Trap Rock  Industries, Inc. v. Kohl, 59 N. J. 471, 481, 284 A. 2d 161, 166 (1971).  In the future, presumably, this will be permitted only if the disfavored  moral views of the bidder have never been verbalized, for otherwise the First Amendment will produce entitlement to the contract, or at least  guarantee a lawsuit.


49
In treading into this area, "we have left the realm of law and  entered the domain of political science."  Rutan, 497 U. S., at 113   (Scalia, J., dissenting).  As Judge Posner rightly perceived, the issue  that the Court today disposes of like some textbook exercise in logic  "raises profound questions of political science that exceed judicial  competence to answer." LaFalce v. Houston, 712 F. 2d, at 294.

IV.

50
If, however, the Court is newly to announce that it has discovered that the granting or withholding of a contract is a First  Amendment issue, a coherent statement of the new law is the least that  those who labor in the area are entitled to expect. They do not get it  from today's decisions, which contradict each other on a number of  fundamental points.


51
The decision in Umbehr appears to be an improvement on our Elrod-Branti-Rutan trilogy in one sense.  Rutan, the most recent of  these decisions, provided that the government could justify patronage  employment practices only if it proved that such patronage was "narrowly  tailored to further vital governmental interests."  Rutan, supra, at 74.  The four of us in dissent explained that "[t]hat strict-scrutiny  standard finds no support in our cases," and we argued that, if the new  constitutional right was to be invented, the criterion for violation  should be "the test announced in Pickering [v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563 (1968)]."  Rutan, supra,  at 98, 100 (Scalia, J., dissenting).  It thus appears a happy  development that the Court in Umbehr explicitly rejects the suggestion,  urged by Umbehr and by the United States as amicus curiae, that "on  proof of viewpoint-based retaliation for contractors' political speech,  the government should be required to justify its actions as narrowly  tailored to serve a compelling state interest," Umbehr, ante, at 7;  accord, ante, at 9, and instead holds "that the Pickering balancing  test, adjusted to weigh the government's interests as contractor rather  than as employer, determines the extent of [independent contractors'] protection" under the First Amendment, ante, at 4.  Pickering balancing,  of course, requires a case-by-case assessment of the government's and  the contractor's interests.   "Pickering and its progeny . . . involve a  post hoc analysis of  one employee's speech and its impact on that  employee's public responsibilities."  United States v. Treasury  Employees, 513 U. S. ___, ___ (1995) (slip op., at 11).  See also id.,  at ___ (slip op., at 2) (O'Connor, J., concurring in judgment in part  and dissenting in part) (Pickering requires "case-by-case application");  Rankin v. McPherson, 483 U. S. 378, 388-392 (1987); Connick v. Myers,  461 U. S. 138, 150-154 (1983); Pickering v. Board of Ed. of Township  High School Dist. 205, Will Cty., 391 U. S. 563, 568-573 (1968).  It is  clear that this is what the Court's opinion in Umbehr anticipates: "a fact-sensitive and deferential weighing of the government's legitimate  interests," ante, at 8-9 (emphasis added), which accords "[d]eference  . . . to the government's reasonable assessments of its interests as  contractor," ante, at 9 (emphasis removed).  "[S]uch a nuanced  approach," Umbehr says, "which recognizes the  variety of interests that  may arise in independent contractor cases, is superior to a brightline  rule." Ante, at 9-10.


52
What the Court sets down in Umbehr, however, it rips up in O'Hare.  In Part III of that latter opinion, where the Court makes its  application of the First Amendment to the facts of the case, there is to  be found not a single reference to Pickering.  See O'Hare, ante, at  7-13. Indeed, what is quite astonishing, the Court concludes that it  "need not inquire" into any government interests that patronage  contracting may serve-even generally, much less in the particular case  at hand-"for Elrod and Branti establish that patronage does not justify  the coercion of a person's political beliefs and associations."  O'Hare,  ante, at 5. Leaving aside that there is no coercion here,7 the  assertion obviously contradicts the need for "balancing" announced in  the companion Umbehr decision.  This rejection of "balancing" is evident  elsewhere in O'Hare-as when  the Court rejects as irrelevant the Seventh  Circuit's observation in LaFalce v. Houston, 712 F. 2d 292 (1983), that  some contractors elect to "curr[y] favor with diverse political   parties," on the ground that the fact "[t]hat some citizens [thus] find  a way to mitigate governmental overreaching, or refrain from  complaining, does not excuse wrongs done to those who exercise their  rights."  O'Hare, ante, at 11.  But whether the government action at  issue here is a "wrong" is precisely the issue in this case, which we  thought (per Umbehr) was to be  determined by "balancing." One would have thought these two opinions the products of the courts of last resort of  two different legal systems, presenting fertile material for a  comparative-law course on freedom of speech . . . were it not for a  single paragraph in O'Hare, a veritable deus ex machina of legal  analysis, which reconciles the irreconcilable. The penultimate  paragraph of that portion of the O'Hare opinion which sets forth the  general principles of law governing the case, see ante, at 6-7, advises  that henceforth "the freedom of speech" alluded to in the Bill of Rights  will be divided into two categories: (1) the "right of free speech,"  where "we apply  the balancing test from Pickering," and (since this  "right of free speech" presumably does not exhaust the Free Speech  Clause), (2) "political affiliation," where we apply the rigid rule of  Elrod and Branti.  The Court (or at least the O'Hare Court) says that  "[t]here is an advantage in so confining the inquiry where political  affiliation alone is concerned, for one's beliefs and allegiances ought  not to be subject to probing or testing by the government."  O'Hare,  ante, at 6.


53
Frankly, the only "advantage" I can discern in this novel distinction is that it provides some explanation (no matter how difficult to grasp) of how these two opinions can issue from the same  Court on the same day. It raises many questions.  Does the "right of  free speech" (category (1), that is) come into play if the contractor  not only is a Republican, but says "I am a Republican"?  (At that point,  of course, the fatal need for "probing or testing" his allegiance  disappears.)  Or is the "right of free speech" at issue only if he goes  still further, and says "I believe in the principles set forth in the  Republican platform"?  Or perhaps one must decide whether the Rubicon between the "right of free speech" and the more protected "political  affiliation"  has been crossed on the basis of the contracting  authority's motivation, so that it does not matter whether the  contractor says he is a Republican, or even says that he believes in the  Republican platform, so long as the reason he is disfavored is simply  that (whatever he says or believes) he is a Republican.  But the  analysis would change, perhaps, if the contracting authority really has  nothing against Republicans as such, but can't stand people who believe  what the Republican platform stands for. Except perhaps it would not  change if the contractor never actually said he was a Republican-or  perhaps only if he never actually said that he believed in the  Republican platform. The many variations will provide endless diversion  for the courts of appeals.


54
If one is so sanguine as to believe that facts involving the "right of free speech" and facts involving "political affiliation" can  actually be segregated into separate categories, there arises, of  course, the problem of what to do when both are involved.  One would  expect the more rigid test (Elrod nonbalancing) to prevail.  That is  certainly what happens elsewhere in the law.  If one is categorically  liable for a defamatory statement, but liable for a threatening  statement only if it places the subject in immediate fear of physical  harm, an utterance that which combines both ("Sir, I shall punch  you in your lying mouth!") would be (at least as to the defamatory portion)  categorically actionable.  Not so, however,  with our new First Amendment  law.  Where, we are told, "specific instances of the employee's speech  or expression, which require  balancing in the Pickering context, are  intermixed with a political affiliation requirement," balancing rather  than categorical liability will be the result.  O'Hare, ante, at 6-7.


55
Were all this confusion not enough, the explanatory paragraph makes doubly sure it is not setting forth any comprehensible rule by  adding, immediately after its description of how Elrod, rather than the  Pickering balancing test, applies  in "political affiliation" cases, the  following: "It is true, on the other hand, . . . that the inquiry is  whether the affiliation requirement is a reasonable one, so it is  inevitable that some case-by-case adjudication will be required even  where  political affiliation is the test the government has imposed."  O'Hare, ante, at 6.  As I said in Rutan, "[w]hat that means is anybody's guess."  497 U. S., at 111 (Scalia, J., dissenting).   Worse still, we  learn that O'Hare itself, where the Court does not conduct balancing,  may "perhaps [be] includ[ed]" among "those many cases . . . which  require balancing" because it is one of the "intermixed" cases I  discussed in the paragraph immediately above.  O'Hare, ante, at 6.  Why,  then, one is inclined to ask, did not the Court conduct balancing? The  answer is contained in the next brief paragraph of the O'Hare opinion:


56
"The Court of Appeals, based on its understanding of the pleadings, considered this simply an affiliation case, and held, based  on circuit precedent, there was no constitutional protection for one who  was simply an outside contractor.  We consider the case in those same  terms, but we disagree with the Court of Appeals' conclusion."  Ante, at  7.


57
This is a deus ex machina sent in to rescue the Court's deus ex  machina, which was itself overwhelmed by the plot of this tragedy of  inconsistency.  Unfortunately, this adjutor adjutoris (to overextend,  perhaps, my classical analogy) is also unequal to the task: The  respondent in this case is entitled to defend the judgment in its favor  on the basis of the facts as they were alleged, not as the Court of  Appeals took them to be.  When, as here, "the decision we review  adjudicated a motion to dismiss, we accept all of the factual  allegations in petitioners' complaint as true and ask whether, in these  circumstances, dismissal of the complaint was appropriate."  Berkovitz  v. United States, 486 U. S. 531, 540 (1988) (emphasis added).  It is at  least highly arguable that the complaint alleged what the Court calls a violation of the "right of free speech" rather than merely the right of  "political affiliation."  The count at  issue was entitled "FREEDOM OF  SPEECH," see App. in No. 95-191,  p. 15, and contended that petitioners  had been retaliated against because of "the exercise of their  constitutional right of freedom of speech," id., at 17.  One of the two  central factual allegations is the following: "John A. Gratzianna openly  supported Paxson's opponent for the office of Mayor.  Campaign posters  for Paxson's opponent were displayed at plaintiff O'Hare's place of  business."  Id., at 16.  It is particularly inexcusable to hide behind  the Court of Appeals' treatment of this litigation as "simply an  affiliation case," since when the Court of Appeals wrote its opinion the  world had not yet learned that the Free Speech Clause is divided into  the two categories of "right of free speech" and "political  affiliation."  As far as that court knew, it could have substituted  "freedom of speech" for "freedom of political affiliation" whenever it  used  the term, with no effect on the outcome.  It did not, in other  words, remotely make a "finding" that the case involves only the  right of political affiliation.  Unavoidably, therefore, if what the O'Hare  Court says in its first explanatory paragraph is to be believed-that is,  what it says in the latter part of that paragraph, to the effect that  "intermixed" cases are governed by Pickering-there is simply no basis  for reversing the Court of Appeals without balancing, and directing that  the case proceed, effectively depriving the City of its right to  judgment on the pleadings.


58
Unless, of course, Pickering balancing can never support the granting of a motion to dismiss.  That is the proposition that today's  O'Hare opinion, if it is not total confusion, must stand for.  Nothing  else explains how the Court can (1) assert that an "intermixed" case  requires Pickering balancing, (2) acknowledge that the complaint here  may set forth an "intermixed" case, and yet (3) reverse the dismissal  without determining whether the complaint does set forth an "intermixed"  case and, if so, proceeding to conduct at least a preliminary Pickering  balancing. There is of course no reason in principle why this  particular issue should be dismissal-proof, and the consequence of  making it so, given the burdens of pre-trial discovery (to say nothing  of trial itself) will be to make litigation on this  subject even more  useful as a device for harassment and weapon of commercial competition.  It must be acknowledged, however, that proceeding this way in the  present case has one unquestionable advantage: it leaves it entirely to  the district  court to clean up, without any guidance or assistance from  us, the mess that we have made-to figure out whether saying "Vote  against Paxson," or "Paxson is a hack," or "Paxson's project for  a  100,000-seat municipal stadium is wasteful," or whatever else  Mr.  Gratzianna's campaign posters might have said, removes this  case from  the Political Affiliation Clause of the Constitution and places it  within the Right of Free Speech Clause.


59
One final observation about the sweep of today's holdings. The  opinion in Umbehr, having swallowed the camel of First Amendment  extension into contracting, in its penultimate paragraph demonstrates  the Court's deep-down judicial conservatism by ostentatiously straining  out the following gnat: "Finally, we emphasize the limited nature of our  decision today. Because Umbehr's suit concerns the termination of a  pre-existing commercial relationship with the government, we need not  address the possibility of suits by bidders or applicants for new government contracts who cannot rely on such a relationship." Umbehr,  ante, at 17.  The facts in Umbehr, of course, involved the termination  of nothing so vague as a "commercial relationship with the government";  the Board of Commissioners had terminated Umbehr's contract.  The  fuzzier terminology is used, presumably, because O'Hare did not involve  termination of  a contract.  As far as appears, O'Hare had not paid or  promised  anything to be placed on a list of tow-truck operators who  would be offered individual contracts as they came up.  The company had  no right to sue if the city failed to call it, nor the city any right to sue if the company turned down an offered tow.  It had, in short, only  what might be called (as an infinity of things might be called) "a  pre-existing commercial relationship" with the city: it was one of the  tow-truck operators they regularly called.  The quoted statement in  Umbehr invites the bar to believe, therefore, that the Court which  declined to draw the line of First Amendment liability short of firing  from government employment (Elrod and Branti); short of nonhiring for  government employment (Rutan); short of termination of a government  contract (Umbehr); and short of denial of a government contract to  someone who had a "pre-existing commercial relationship with the  government" (O'Hare); may take  a firm stand against extending the Constitution into every little thing when it comes to denying a government contract to someone who had no "pre-existing commercial relationship."  Not  likely; in fact, not even believable.


60
This Court has begun to make a habit of disclaiming the natural  and foreseeable jurisprudential consequences of its pathbreaking (i.e.,  Constitution-making) opinions.  Each major step in the abridgment of the  people's right to govern themselves is portrayed as extremely limited or  indeed sui juris.  In Romer v. Evans, 517 U. S. ___, ___ (1996) (slip  op. at 11, 12), announced last month, the Court asserted that the  Colorado constitutional amendment at issue was so distinctive that it "defies . . . conventional inquiry" and "confounds [the] normal process  of judicial review."  In United States v. Virginia, ante, at ___ n. 7   (1996), announced two days ago, the Court purported to address  "specifically and only an educational opportunity recognized by the  District Court and the Court of Appeals as `unique.'"  And in the cases  announced today, "we emphasize the limited nature of our decision."  Umbehr, ante, at  17.  The people should not be deceived.  While the  present Court sits, a major, undemocratic restructuring of our national institutions and mores is constantly in progress.


61
They say hard cases make bad law.  The cases before the Court today set the blood boiling, with the arrogance that they  seem to display on the part of elected officials.  Shall the American System of  Justice let insolent, petty-tyrant politicians get away with this?  What  one tends to forget is that we have heard only the plaintiffs' tale.  These suits were dismissed before trial, so the "facts" the Court  recites in its  opinions assume the truth of the allegations made (or the  preliminary evidence presented) by the plaintiffs.  We have no idea  whether the allegations are true or false-but if they are true, they are  certainly highly unusual.  Elected officials do not thrive on arrogance.


62
For every extreme case of the sort alleged here, I expect there  are thousands of contracts awarded on a "favoritism" basis that no one  would get excited about.  The Democratic mayor gives the city's  municipal bond business to what is known to be a solid Democratic law  firm-taking it away from the solid Republican law firm that had the  business during the previous, Republican, administration.  What else is  new?  Or he declines to give the construction contract for the new  municipal stadium  to the company that opposed the bond issue for its  construction, and that in fact tried to get the stadium built across the  river in the next State. What else would you expect?  Or he awards the cable monopoly, not to the (entirely responsible) Johnny-come-lately,  but to the local company that has always been a "good citizen"-which  means it has supported with money, and the personal efforts of its  management, civic initiatives that the vast majority of the electorate  favor, though some oppose. Hooray!  Favoritism such as this happens all  the time in American political life, and no one has ever thought that it  violated-of all things-the First Amendment to the Constitution of the  United States.


63
The Court must be living in another world.  Day by day, case by  case, it is busy designing a Constitution for a country I do not  recognize. Depending upon which of today's cases one chooses to consider  authoritative, it has either (O'Hare) thrown out vast numbers of  practices that are routine in American political life in order to get  rid of a few bad apples; or (Umbehr) with the same purpose in mind  subjected those routine practices to endless, uncertain, case-by-case, balance-all-the-factors-and-who-knows-who-will-win litigation.


64
I dissent.



1
 The Chief Justice joins all but Part II-B-1 of this  opinion.


2
 The Board also asserts that state and local government decisions on individual contracts are insulated by the Tenth Amendment  or legislative immunity from constitutional scrutiny and liability.  See  Brief for Petitioner 23-26, 37.  The Tenth Amendment claim was not  raised in its petition, so we do not address it.  See this Court's Rule  14.1(a). Because only claims against the Board members in their official  capacities are before us, and because immunity from suit under  Section(s) 1983 extends to public servants only in their individual  capacities, see, e.g., Leatherman v. Tarrant County Narcotics  Intelligence and Coordination Unit, 507 U. S. 163, 166 (1993), the  legislative immunity claim is moot.


3
 See, e.g., Ala. Code Section(s) 11-43C-70 (1989); id., Section(s) 24-1-83 (1992); id., Section(s) 41-16-20 (Supp. 1995); Alaska  Stat. Ann. Section(s) 36.30.100 (1992); Ariz. Rev. Stat. Ann. Section(s)  41-2533 (1992); Ark. Code Ann. Section(s) 14-47-120, 14-47-138,  14-48-117, 14-48-129 (1987); Cal. Pub. Cont. Code Ann. Section(s) 10302,  10309, 10373, 10501, 10507.7, 20723, 20736, 20751, 20803, 20921, 21501,  21631 (West 1985 and Supp. 1996); Cal. Pub. Util. Code Ann. Section(s)  131285 (West 1991); Cal. Rev. & Tax. Code Ann. Section(s) 674 (West  Supp. 1996); Colo. Rev. Stat. Section(s) 24-103-202 (Supp. 1995); Conn. Gen. Stat. Section(s) 4a-57 (Supp. 1996); Del. Code Ann., Tit. 9, Section(s) 671 (1989); id., Tit. 29, Section(s) 6903(a) (1991); Fla.  Stat. Section(s) 190.033 (Supp. 1996); id., Section(s) 287.057 (1991 and  Supp. 1996); Ga. Code Ann. Section(s) 2-10-10 (1990); id., Section(s)  32-10-7, 32-10-68 (1991 and Supp. 1995); Haw. Rev. Stat. Section(s)  103D-302 (Supp. 1995); Idaho Code Section(s) 33-1510 (1995); id.,  Section(s) 43-2508 (Supp. 1995); id., Section(s) 50-1710 (1994); id.,  Section(s) 67-5711C (1995); id., Section(s) 67-5718 (1995 and 1996 Idaho  Sess. Laws, ch. 198); Ill. Comp. Stat., ch. 50, Section(s) 20/20 (1993);  id., ch. 65, Section(s) 5/8-10-3 (1993); id., ch. 70, Section(s) 205/25, 225/25, 265/25, 280/1-24, 280/2-24, 290/26, 310/5-24, 320/1-25, 320/2-25, 325/1-24, 325/2-24, 325/3-24, 325/5-24, 325/6-24, 325/7-24,  325/8-24, 340/25, 2305/11, 2405/11, 2805/14, 2905/5-4 (1993 and Supp.  1996); Ind. Code Section(s) 2-6-1.5-2, 10-7-2-28, 4-13.6-5-2,  8-16-3.5-5.5 (Supp. 1995); Iowa Code Section(s) 18.6 (1995); Kan. Stat.  Ann. Section(s) 49-417(a) (Supp. 1990); id., Section(s) 75-3739 to  75-3741 (1989, Supp. 1990, and 1996 Kan. Sess. Laws); Ky. Rev. Stat.  Ann. Section(s) 162.070 (Baldwin 1990); La. Rev. Stat. Ann. Section(s)  39:1594 (West 1989); Me. Rev. Stat. Ann., Tit. 5, Section(s) 1743,  1743-A (1989); Md. Ann. Code, Art. 25, Section(s) 3(l) (Supp. 1995, and  1996 Md. Laws, ch. 66); id., Art. 25A, Section(s) 5(F) (Supp. 1995); Md.  Nat. Res. Code Ann. Section(s) 3-103(g)(3), 8-1005(c) (Supp. 1995); Mass. Gen. Laws, ch. 149, Section(s) 44A-44M (1989 and Supp. 1996);  Mich. Comp. Laws Ann. Section(s) 247.661c (West Supp. 1996); Minn. Stat.  Section(s) 16B.07 (1988 and Supp. 1996); Miss. Code Ann. Section(s)  27-35-101 (1995); id., Section(s) 31-7-13, 37-151-17 (Supp. 1995); Mo.  Rev. Stat. Section(s) 34.040.1, 34.042.1, 68.055.1 (Supp. 1996); Mont.  Code Ann. Section(s) 7-3-1323, 7-5-2301, 7-5-2302, 7-5-4302, 7-14-2404   (1995); Neb. Rev. Stat. Section(s) 81-885.55, 84-1603 (1994); Nev. Rev.  Stat. Section(s) 332.065 (1984); N. H. Rev. Stat. Ann. Section(s) 28:8 (1988); id., Section(s) 186-C:22(VI) (Supp. 1995); id., Section(s) 228:4   (1993); N. J. Stat. Ann. Section(s) 28:1-7 (West 1981); N. M. Stat. Ann.  Section(s) 13-1-102 (1992); N. Y. Alt. County Govt. Law Section(s) 401   (McKinney 1993); N. Y. Gen. Mun. Law Section(s) 103 (McKinney 1986 and  Supp. 1996); N. C. Gen. Stat. Section(s) 133-10.1 (1995); id.,  Section(s) 143-49 (1993); N. D. Cent. Code Section(s) 54-44.4-05 (Supp.  1995); Ohio Rev. Code Ann. Section(s) 307.90, 511.12 (1994); id.,  Section(s) 3381.11 (1995); Okla. Stat., Tit. 11, Section(s) 24-114   (1994); id., Tit. 52, Section(s) 318 (1991); id., Tit. 61, Section(s)  101 (1989); Ore. Rev. Stat. Section(s) 279.015 (1991); 53 Pa. Cons.  Stat. Section(s) 23308.1 (Supp. 1996); R. I. Gen. Laws Section(s)  45-55-5 (Supp 1995); S. C. Code Ann. Section(s) 11-35-1520 (Supp. 1995);  S. D. Codified Laws Section(s) 5-18-2, 5-18-3 (1994); id., Section(s)  5-18-9 (Supp. 1996); id., Section(s) 9-42-5 (1995); id., Section(s)  11-7-44 (1995); id., Section(s) 13-49-16, 42-7A-5 (1991); Tenn. Code  Ann. Section(s) 12-3-202, 12-3-203, 12-3-1007 (1992 and Supp. 1995); Tex. Educ. Code Ann. Section(s) 51.907 (1987); Tex. Loc. Govt. Code Ann.  Section(s) 252.021, 262.023, 262.027, 271.027, 375.221 (1988 and Supp.  1996); Utah Code Ann. Section(s) 17A-2-1195 (1991); Vt. Stat. Ann., Tit.  29, Section(s) 152(12) (1986); Va. Code Ann. Section(s) 11-41, 11-41.1   (1993); Wash. Rev. Code Section(s) 28A.160.140, 36.32.250 (Supp. 1996);  W. Va. Code Section(s) 4-7-7, 5-6-7 (1994); Wis. Stat. Section(s) 30.32 (1989 and Supp. 1995); id., Section(s) 60.47 (1988 and Supp. 1995); Wyo.  Stat. Section(s) 35-2-429 (1994).


4
 See, e.g., 41 U. S. C. Section(s) 252a(b), 403(11) (certain federal contracting laws rendered inapplicable "to a contract or subcontract that is not greater than" $100,000); Cal. Pub. Cont. Code  Ann. Section(s) 10507.7 (West Supp. 1996) (lowest-responsible-bidder  requirement for certain goods and materials only applicable to  "contracts involving an [annual] expenditure of more than fifty thousand  dollars"); Ill. Comp. Stat., ch. 50, Section(s) 20/20 (1993)  (lowest-responsible-bidder requirement for certain construction  contracts not applicable to contracts for more than $5,000); N. Y. Gen.  Mun. Law Section(s) 103.1 (McKinney Supp. 1996) (not covering  public-work contracts for $20,000 or less or purchase contracts for  $10,000 or less); S. D. Codified Laws Section(s) 5-18-3 (Supp. 1996)  (requiring competitive bidding process for certain public-improvement contracts "involv[ing] the expenditure of twenty-five thousand dollars  or more"); Texas Local Govt. Code Ann. Section(s) 262.023(a) (Supp.  1996) (applying only to "a contract that will require an expenditure  exceeding $15,000").


5
 See, e. g., Idaho Code Section(s) 33-1510 (1995); N. J.  Stat. Ann. Section(s) 28:1-7 (1981); Ohio Rev. Code Ann. Section(s) 511.12 (Supp. 1995); Okla. Stat., Tit. 52, Section(s) 318 (1991); Utah  Code Ann. Section(s) 17A-2-1195 (1991).
See, e.g., Del. Code Ann., Tit. 29, Section(s) 6903(a)(2) (1991); Fla. Stat. Section(s) 287.057(3)(a) (Supp. 1996); Minn. Stat.  Section(s) 16B.08(6) (1988); N. H. Rev. Stat. Ann. Section(s)  228:4(I)(e) (1993); Tenn. Code Ann. Section(s) 12-3-202(3), 12-3-206   (1992).


7
 O'Hare makes a brief attempt to minimize the seriousness of  the litigation concern, pointing out that "[t]he amicus brief filed on behalf of respondents' position represents that in the six years since  our opinion in [Rutan] . . . only 18 suits alleging First Amendment  violations in employment decisions have been filed against Illinois  state officials."  Ante, at 11.  In fact the brief said "at least  eighteen cases," Brief for Illinois State Officials as Amici Curiae, at  3 (emphasis added), and that includes only suits against state  officials, and not those against the officials of Illinois' 102 counties  or its even more numerous municipalities.  Those statistics pertain to  employment suits, moreover-and as I have discussed, the contracting  suits will be much more numerous.
O'Hare also says that "we have found no reported case in the Tenth Circuit involving a First Amendment patronage claim by an independent contractor in the six years since its Court of Appeals first  recognized such claims, see Abercrombie v. Catoosa, 896 F. 2d 1228   (1990)." O'Hare, ante, at 11-12.  With respect, Abercrombie (which  discussed this issue in two short paragraphs) was such an obscure case  that even the District Court in Umbehr, located in the Tenth Circuit,  did not cite it, though it discussed cases in other jurisdictions.  Umbehr v. McClure, 840 F. Supp. 837 (Kan. 1993).  And when the Tenth Circuit reversed the District Court, it did not do so on the basis of  Abercrombie-which, it noted, had "simply assumed that an independent  contractor could assert a First Amendment retaliation claim" and had  given "little reasoning" to the matter but merely so "suggested, without  analysis."  44 F. 3d 876, 880 (1995) (emphasis added).  Abercrombie was,  in short, such a muffled clarion that even the courts did not hear it,  much less the public at large.


8
 See, e.g., Cal. Pub. Cont. Code Ann. Section(s) 10302,  10507.7, 20803 (West 1985 and Supp. 1996); Ill. Comp. Stat., ch. 50, Section(s) 20/20, 25/3; id., ch. 70, Section(s) 15/8, 15/9, 205/25,  220/1-24, 220/2-24 (1993); N. Y. Gen. Mun. Law Section(s) 103.1   (McKinney Supp. 1996).


9
 As the dissenters in Rutan v. Republican Party of Ill., 497  U. S. 62 (1990), agreed, "it greatly exaggerates [the constraints entailed by patronage] to call them `coercion' at all, since we generally make a distinction between inducement and compulsion. The  public official offered a bribe is not `coerced' to violate the law, and  the private citizen offered a patronage job is not `coerced' to work for  the party." Id., at 109-110 (Scalia, J., dissenting).


