518 U.S. 712116 S.Ct. 2353135 L.Ed.2d 874
O'HARE TRUCK SERVICE, INC., et al.v.CITY OF NORTHLAKE et al.Certiorari to the United States Court of Appeals for the Seventh Circuit.
No. 95-191.
Supreme Court of the United States
Argued March 20, 1996
Decided June 28, 1996

Syllabus
Respondent city maintains a rotation list of available companies to  perform towing services at its request.  Until the events recounted  here, the city's policy had been to remove companies from the list only  for cause.  Petitioner O'Hare Truck Service, Inc., was removed from the  list after its owner, petitioner Gratzianna, refused to contribute to  respondent mayor's reelection campaign and instead supported his  opponent. Alleging that the removal was in retaliation for Gratzianna's campaign stance and caused petitioners to lose substantial income, petitioners filed this suit under 42 U. S. C. Section(s) 1983. The  District Court dismissed the complaint in conformity  with Seventh  Circuit precedent that Elrod v. Burns, 427 U. S. 347 (plurality  opinion), and Branti v. Finkel, 445 U. S. 507-in which the Court held  that government officials may not discharge public employees for  refusing to support a political party or its candidates, unless  political affiliation is an appropriate requirement for the job in  question-do not extend to independent contractors.  The Seventh Circuit  affirmed.
Held:  The protections of Elrod and Branti extend to an instance where  government retaliates against a contractor, or a regular provider of  services, for the exercise of rights of political association or the  expression of political allegiance. Pp. 3-14.
(a) In assessing when party affiliation, consistent with the First  Amendment, may be an acceptable basis for terminating a public employee,  "the ultimate inquiry is not whether the label `policymaker' or  `confidential' fits a particular position; rather, the question is  whether the hiring authority can demonstrate that party affiliation is  an appropriate requirement for the effective performance of the public  office involved." Branti, supra, at 518.  A different, though related,  inquiry, the balancing test from Pickering v. Board of Ed. of Township  High School Dist. 205, Will Cty., 391 U. S. 563, is called for where a government employer takes adverse action on account of an employee or  service provider's right of free speech.  In Elrod and Branti, the raw  test of political affiliation sufficed to show a constitutional  violation.  However, since the inquiry  is whether the affiliation  requirement is reasonable, it is inevitable that some case-by-case  adjudication will be required  even where political affiliation was the  test the government imposed.  The analysis will also accommodate cases  where instances of the employee's speech or expression are intermixed   with a political affiliation requirement.  Pp. 3-7.
(b) Despite respondents' argument that the principles of Elrod and  Branti have no force here because an independent contractor's First  Amendment rights, unlike a public employee's, must yield to the  government's asserted countervailing interest in sustaining a patronage  system, this Court cannot accept the proposition that those who perform  the government's work outside the formal employment relationship are  subject to the direct and specific abridgment of First Amendment rights  described in petitioners' complaint.  The government may not coerce  support in the manner petitioners allege, unless it has some  justification beyond dislike of the individual's political association.  As respondents offer no other justification for their actions, the complaint states a First Amendment claim.  Allowing the constitutional  claim to turn on a distinction between employees and independent  contractors would invite manipulation by government, which could avoid  constitutional liability simply by attaching different labels to  particular jobs, Board of Comm'rs, Wabaunsee County v. Umbehr, ante, at  ___.  Accord, Lefkowitz v. Turley, 414 U. S. 70.  Respondents present no  convincing data to support their speculation that a difference of  constitutional magnitude exists because independent contractors are less dependent on the government for income than employees are.  There is  little reason to suppose that a decision in petitioners' favor will lead  to numerous lawsuits.  While government officials may terminate at-will  relationships, unmodified by any legal constraints, without cause, it  does not follow that this discretion can be exercised  to impose  conditions on expressing, or not expressing, specific  political views,  see Perry v. Sindermann, 408 U. S. 593, 597.  In view of the large  number of legitimate reasons why a contracting decision might be made, fending off baseless First Amendment lawsuits should not consume scarce  government resources.  If the government terminates its affiliation with  a  service provider for reasons unrelated to political association, Mt.  Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 287, as, for example,  where the provider is unreliable, or if the service provider's political  ``affiliation is an appropriate requirement for the effective  performance'' of the task in question, Branti, supra, at 518, there will  be no First Amendment violation.  The absolute right to enforce a  patronage scheme as a means of retaining control over independent  contractors and satisfying government officials' concerns about  reliability has not been shown to be a necessary part of a legitimate  political system in all instances.  This was the determination  controlling the Court's decisions in Elrod, supra, at 365-368, 372-373,  and Branti, supra, at 518-520.  There is no basis for rejecting that reasoning in this context and drawing a line excluding independent contractors from the First Amendment safeguards of political association  afforded to employees.  Pp. 7-13.
(c) The lower courts, upon such further proceedings as are deemed appropriate, should decide whether the case is governed by the  Elrod-Branti rule or by the Pickering rule.  P. 13.  47 F. 3d 883,  reversed and remanded.
Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C.  J., and Stevens, O'Connor, 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 Kennedy delivered the opinion of the Court.


1
Government officials may not discharge public employees for refusing to support a political party or its candidates, unless political affiliation is a reasonably appropriate requirement for the  job in question.  Elrod v. Burns, 427 U. S. 347 (1976); Branti v.  Finkel, 445 U. S. 507 (1980).  We must decide whether the protections of  Elrod and Branti extend to an independent contractor, who, in  retaliation for refusing to comply with demands for political support,  has a government contract terminated or is removed from an official list  of contractors authorized to perform public services.  Although the  government has broad discretion in formulating its contracting policies,  we hold that the protections of Elrod and Branti extend to an instance  like the one before us, where government retaliates against a  contractor, or a regular provider of services, for the exercise of  rights of political association or the expression of political  allegiance.

I.

2
The suit having been dismissed by the District Court for failure  to state a claim, the complaint's factual allegations are taken as true.  Leatherman v. Tarrant County Narcotics Intelligence and Coordination  Unit, 507 U. S. 163, 164 (1993). John Gratzianna is the owner and  operator of O'Hare Truck Service, which provides towing services in Cook  and DuPage Counties, Illinois.  Gratzianna and his company are  petitioners here, and we sometimes refer to them as O'Hare.


3
The city of Northlake, a respondent in this Court, coordinates  towing services through its Police Department and for at least 30 years  has maintained a rotation list of available towing companies.  When the  police receive a tow request, they call the company next on the list to  provide the service.  Until the events recounted here, the city's policy  had been to remove a tow truck operator from the rotation list only for  cause.  O'Hare had been on the list since 1965, performing towing  services at the city's request.  O'Hare and the city's former Mayor,  Gene Doyle, had a mutual understanding that the city would maintain O'Hare's place on the rotation list so long  as O'Hare provided good  service.  In 1989, soon after being elected Northlake's new Mayor,  respondent Reid Paxson told Gratzianna he was pleased with O'Hare's work  and would continue  using and referring its services.


4
Four years later, when Paxson ran for reelection, his campaign  committee asked Gratzianna for a contribution, which Gratzianna refused  to make.  Gratzianna instead supported the campaign of Paxson's opponent  and displayed the opponent's campaign posters at O'Hare's place of  business.  Soon after, O'Hare was removed from the rotation list.  We  shall assume, as the complaint alleges, that the removal was in  retaliation for Gratzianna's stance in the campaign.  Petitioners allege  the retaliation caused them to lose substantial income.


5
O'Hare and Gratzianna sued in the United States District Court  for the Northern District of Illinois, alleging infringement of First  Amendment rights in violation of Rev. Stat. Section(s) 1979, 42 U. S. C.  Section(s) 1983.  In conformity with binding Seventh Circuit precedent,  which does not extend Elrod and Branti to independent contractors, see,  e. g., Downtown Auto Parks, Inc. v. Milwaukee, 938 F. 2d 705, cert. denied, 502 U. S. 1005 (1991), the District Court dismissed the complaint, 843 F. Supp. 1231 (1994).  The Court of Appeals affirmed,  adhering to the view that "it should be up to the Supreme Court to  extend Elrod."  47 F. 3d 883, 885 (1995).  (The Court of Appeals also  affirmed dismissal of O'Hare's claim that respondents' failure to give  it notice of removal from the list or provide a hearing on the matter  deprived O'Hare of due process of law. That ruling is not before us.)


6
The Courts of Appeals take different positions concerning Elrod  and Branti's applicability to independent contractors. Compare 47 F. 3d  883 (1995) (opinion below); Horn v. Kean, 796 F. 2d 668 (CA3 1986) (en  banc); Sweeney v. Bond, 669 F. 2d 542 (CA8), cert. denied sub nom.  Schenberg v. Bond, 459 U. S. 878 (1982), with Blackburn v. Marshall, 42  F. 3d 925 (CA5 1995); Abercrombie v. Catoosa, 896 F. 2d 1228 (CA10  1990).  We granted certiorari to resolve the conflict, and now reverse.

II.

7
The Court has rejected for decades now the proposition that a  public employee has no right to a government job and so cannot complain  that termination violates First Amendment rights, a doctrine once  captured in Justice Holmes' aphorism that although a policeman "may have  a constitutional right to talk politics . . . he has no constitutional  right to be a policeman," McAuliffe v. Mayor of New Bedford, 155 Mass.  216, 220, 29 N. E. 517 (1892). A State may not condition public  employment on an employee's exercise of his or her First Amendment  rights. See, e. g., Keyishian v. Board of Regents of Univ. of State of  N. Y., 385 U. S. 589 (1967); Pickering v. Board of Ed. of Township High  School Dist. 205, Will Cty., 391 U. S. 563 (1968); Perry v. Sindermann, 408 U. S. 593 (1972).  See also Board of Comm'rs, Wabaunsee Cty. v.  Umbehr, ante, at 5-6 (collecting cases).  As we have said: "[I]f the  government could deny a benefit to a person because of his  constitutionally protected speech or associations, his exercise of those  freedoms would in effect be  penalized and inhibited.  That would allow  the government to `produce a result which [it] could not command  directly.'  Such  interference with constitutional rights is  impermissible."  Perry v. Sindermann, supra, at 597, quoting Speiser v.  Randall,  357 U. S. 513, 526 (1958).  Absent some reasonably appropriate  requirement, government may not make public employment subject to the  express condition of political beliefs or prescribed expression.


8
In Elrod v. Burns, 427 U. S. 347 (1980), we considered whether  to apply the principles of the unconstitutional conditions cases to  public employees dismissed on account of their political association.  In keeping with local tradition, a newly elected county sheriff had  discharged non-civil-service employees because they were not members of  his political party. It was by no means self-evident whether our First  Amendment precedents applied, for as Justice Powell explained in  dissent, id., at 377-387, the patronage practices at issue had been sanctioned by history and had been thought by some to contribute to the  effective operation of political parties.  See also Branti v. Finkel,  445 U. S., at 522, n. 1, 527-532 (Powell, J., dissenting); Rutan v.  Republican Party of Ill., 497 U. S. 62, 104-109 (1990) (Scalia, J.,  dissenting).  If indeed those patronage practices fortify the party  system, they may serve important First Amendment interests, since  parties promote and generate political discourse, see, e. g., Buckley v.  Valeo, 424 U. S. 1, 14-15 (1976) (per curiam); Democratic Party of  United States v. Wisconsin ex rel. La Follette, 450 U. S. 107, 121-122 (1981).


9
We need not inquire, however, whether patronage promotes the party system or serves instead to entrench parties in power, see Elrod  v. Burns, supra, at 364-373 (plurality opinion); Rutan v. Republican  Party of Ill., supra, at 88-89, n. 4 (Stevens, J., concurring), for  Elrod and Branti establish that patronage does not justify the coercion  of a person's political beliefs and associations.  Although no opinion  in Elrod commanded a majority of the Court, five Justices found common  ground in the proposition that subjecting a nonconfidential,  nonpolicymaking public employee to penalty for exercising rights of  political association was tantamount to an unconstitutional condition  under Perry v. Sindermann, supra.  See Elrod v. Burns, supra, at  359 (plurality opinion) ("The threat of dismissal for failure to provide   [support for the favored political party] unquestionably inhibits  protected belief and association, and dismissal for failure to provide  support only penalizes its exercise"); id., at 375 (Stewart, J.,  concurring in judgment) ("The single substantive question involved in  this case is whether a nonpolicymaking, nonconfidential government  employee can be discharged or threatened with discharge from a job that  he is satisfactorily performing upon the sole ground of his political beliefs.  I agree with the plurality that he cannot").


10
Four Terms later, in Branti v. Finkel, supra, we reaffirmed Elrod's common holding and said government termination of a public  employee on account of his political affiliation brings our  unconstitutional conditions cases into play, for "[i]f the First  Amendment protects a public employee from discharge based on what he has  said, it must also protect him from discharge based on what he  believes," 445 U. S., at 515.  We also modified the standard, announced  in the two opinions supporting the Elrod judgment, for assessing when  party affiliation, consistent with the First Amendment, may be an  acceptable basis for terminating a public employee: "[T]he ultimate  inquiry is not whether the label `policymaker' or `confidential' fits a  particular position; rather, the question is whether the hiring  authority can demonstrate that party affiliation is an appropriate  requirement for the effective performance of the public office  involved." 445 U. S., at 518.


11
Our cases call for a different, though related, inquiry where a  government employer takes adverse action on account of an employee or  service provider's right of free speech.  There,  we apply the balancing  test from Pickering v. Board of Ed. of Township High School Dist. 205,  Will Cty., supra.  See generally Board of Comm'rs, Wabaunsee Cty. v.  Umbehr, ante, at 6-9.  Elrod and Branti involved instances where the raw  test of political affiliation sufficed to show a constitutional  violation, without the necessity of an inquiry more detailed than asking  whether the requirement was appropriate for the employment in question. There 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. It is true,  on the other hand, as we stated at the outset of our opinion, supra, at  1, 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.  A reasonableness analysis will also accommodate  those many cases, perhaps including the one before us, where specific  instances of the employee's speech or expression, which require  balancing in the Pickering context, are intermixed with a political affiliation requirement.  In those cases, the balancing Pickering mandates will be inevitable.  This case-by-case process will allow the  courts to consider the necessity of according to the government the  discretion it requires in the administration and awarding of contracts  over the whole range of public works and the delivery of governmental  services.


12
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.

III.

13
There is no doubt that if Gratzianna had been a public employee  whose job was to perform tow truck operations, the city could not have  discharged him for refusing to contribute to Paxson's campaign or for  supporting his opponent.  In Branti, we considered it settled that to  fire a public employee as a penalty for refusing a request for political  and financial support would impose an unconstitutional condition on  government employment. See 445 U. S., at 516.  Respondents insist the  principles of Elrod and Branti have no force here, arguing that an  independent contractor's First Amendment rights, unlike a public  employee's, must yield to the government's asserted countervailing  interest in sustaining a patronage system.  We cannot accept the proposition, however, that those who perform the government's work outside the formal employment relationship are subject to what we conclude is the direct and specific abridgment of First Amendment rights  described in this complaint.  As respondents offer no justification for  their actions, save for insisting on their right to condition a  continuing relationship on political fealty, we hold that the complaint  states an actionable First Amendment claim.


14
The complaint alleges imposition of a burden on an individual's  right of political association, a concerted effort to coerce its  relinquishment.  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.  Gratzianna instead was targeted with a specific demand for political  support.  When Gratzianna refused, the city terminated a relationship  that, based on longstanding practice, he had reason to believe would  continue. We see nothing to distinguish this from the coercion   exercised in our other unconstitutional conditions cases.  See, e. g., Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S. 589   (1967) (teaching position conditioned upon nonmembership in "subversive"  organizations); Perry v. Sindermann, 408 U. S. 593 (1972) (teaching  position conditioned  upon not criticizing college administration).  Had  Paxson or his backers solicited the contribution as a quid pro quo for  not terminating O'Hare's arrangement with the city, they might well have  violated criminal bribery statutes.  Cf. Ill. Comp. Stat.,  ch. 720,  Section(s) 5/33-1, 5/33-3; ch. 65, Section(s) 5/4-8-2 (1994).  That  Paxson may have steered clear of criminal liability, however, does little to diminish the attempted coercion of Gratzianna's political  association, enforced by a tangible punishment.  Our cases make clear  that the government may not coerce support in this manner, unless it has  some justification beyond dislike of the individual's political association.  See, e. g., Branti v. Finkel, 445 U. S., at 516-517.


15
Respondents say this case is different because it involves a claim by an independent contractor.  We are not persuaded.  A rigid rule  "giv[ing] the government carte blanche to terminate independent  contractors for exercising First Amendment rights . . . would leave   [those] 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."  Board of Comm'rs, Wabaunsee Cty. v. Umbehr, ante,  at 10.  It is  true that the distinction between employees and  independent contractors has deep roots in our legal tradition, see, e.  g., 9 W. Jaeger, Williston on Contracts Section(s) 1012A (3d ed. 1967);  1 Restatement of Agency Section(s) 2, 220 (1933), and often serves as a  line of demarcation for differential treatment of individuals who  otherwise may be situated in similar positions, see, e. g., Community  for Creative Non-Violence v. Reid, 490 U. S. 730 (1989); Nationwide Mut.  Ins. Co. v. Darden, 503 U. S. 318 (1992); 2 Restatement (Second) of  Torts Section(s) 409 (1964). We see no reason, however, why the  constitutional claim here should turn on the distinction, which is, in  the main, a creature of the common law of agency and torts.  Recognizing  the distinction in these circumstances would invite manipulation by government, which could avoid constitutional liability simply by attaching different labels to particular jobs, Board of Comm'rs, Wabaunsee Cty. v. Umbehr, ante, at 10.  The fact of interference here is  not altered by the circumstance that the victims are not classified as  employees.


16
Our conclusion is in accord with Lefkowitz v. Turley, 414 U. S.  70 (1973), where independent contractor status did not suffice to allow  government to insist upon a waiver of the Fifth Amendment's privilege  against self-incrimination.  After reviewing our rulings extending the  Fifth Amendment's privilege to government employees, we said that "[w]e  fail to see a difference of constitutional magnitude between the threat  of job loss to an employee of the State, and a threat of loss of contracts to a contractor."  Id., at 83.


17
Some Courts of Appeals, refusing to extend Elrod and Branti to  independent contractors, find "a difference of constitutional magnitude"  in the relative degree to which employees and contractors depend on  government sources for their income.  See LaFalce v. Houston, 712 F. 2d  292, 294 (CA7 1983) ("An independent contractor would tend we imagine to  feel a somewhat lesser sense of dependency"), cert. denied, 464 U. S.  1044 (1984); Horn v. Kean, 796 F. 2d, at 675 (same).  Respondents present no convincing data to support this speculation, however, and we  doubt it is true for many service providers who come under the formal  classification of "independent contractor," cf., e. g., Havekost v.  United States Dept. of Navy, 925 F. 2d 316 (CA9 1991) (worker was  licensed grocery bagger at Navy commissary). The only statistics  presented to us in the briefs  are relevant to tow truck services, and  these data point the other way.  A national association of towing and  recovery service operators, appearing as amicus, estimates that 75  percent of towing companies provide services in connection with   government requests, the referrals generating between 30 and 60 percent  of their gross revenues.  Brief for Towing & Recovery Assn. of America,  Inc., as Amicus Curiae 9.  Petitioners, furthermore, allege a loss of  substantial income due to their termination.


18
Perhaps some contractors are so independent from government support that the threat of losing business would be ineffective to coerce them to abandon political activities.  The same might  be true of  certain public employees, however; they, too, might find work elsewhere  if they lose their government jobs.  If results were to turn on these  sorts of distinctions, courts would have to inquire into the extent to  which the government dominates various job markets as employer or as  contractor. We have been, and we remain, unwilling to send courts down  that path. See, e. g., Perry v. Sindermann, 408 U. S., at 597-598.  Courts are not well suited to the task of measuring levels of employee  dependence, but there is a more fundamental concern.  Independent contractors, as well as public employees, are entitled to protest wrongful government interference with their  rights of speech and association.


19
Some Courts of Appeals surmise that independent contractors doing business with the government "are political hermaphrodites," LaFalce v. Houston, supra, at 294, who find it  in their self-interest to  stay on good terms with both major political parties and so are not at  great risk of retaliation for political association.  The facts here, if  the allegations in the complaint are true, indicate this dubious course  of action may not be followed by many small independent contractors  who  are either unable or unwilling to maintain close ties to all the  organized political forces in their communities.  In all events, even if some independent contractors adjust to their precarious position by  currying favor with diverse political parties, the question here  concerns coercive government action taken against those who do not.  That some citizens find a way to mitigate governmental overreaching, or  refrain from complaining, does not excuse wrongs done to those who  exercise their rights.


20
Respondents argue that any decision in O'Hare's favor will lead  to numerous lawsuits, which will interfere with the sound administration  of government contracting.  We have little reason to accept the  assessment. The amicus brief filed on behalf of respondents' position  represents that in the six years since our opinion in Rutan v.  Republican Party of Ill., 497 U. S. 62 (1990), which extended Elrod and  Branti to public employment promotion, transfer, recall, and hiring  decisions based on political affiliation, only 18 suits alleging First  Amendment violations in employment decisions have been filed against Illinois state officials, Brief for Illinois State Officials as Amicus  Curiae 3. Furthermore, 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).  We have  no reason to believe that governments cannot bear a like burden in  defending against  suits alleging the denial of First Amendment freedoms  to public contractors, and we doubt that our decision today will lead to the imposition of a more extensive burden.


21
Cities and other governmental entities make a wide range of decisions in the course of contracting for goods and services. The  Constitution accords government officials a large measure of freedom as  they exercise the discretion inherent in making these decisions.  Board  of Comm'rs, Wabaunsee Cty. v. Umbehr, ante, at 5.  Interests of economy  may lead a governmental entity to retain existing contractors or  terminate them in favor of new ones without the costs and complexities  of competitive bidding.  A government official might offer a  satisfactory justification, unrelated to the suppression of speech or  associational rights, for either course of action.  The first may allow  the government to maintain stability, reward good performance, deal with  known and reliable persons, or ensure the uninterrupted supply of goods or services; the second may help to stimulate competition, encourage  experimentation with new contractors, or avoid the appearance of  favoritism.  These are choices and policy considerations that ought to  remain open to government officials when deciding to contract with some  firms and not others, provided of course the asserted justifications are  not the pretext for some improper practice.  In view of the large number of legitimate reasons why a contracting decision might be made, fending  off baseless First Amendment lawsuits should not consume scarce  government resources.  If the government terminates its affiliation with  a service provider for reasons unrelated to political association, Mt.  Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 287 (1977), as, for  example, where the provider is unreliable, or if the service provider's  political "affiliation is an appropriate requirement for the effective  performance" of the task in question, Branti v. Finkel, 445 U. S., at  518, there will be no First Amendment violation.


22
Respondents' theory, in essence, is that no justification is needed for their actions, since government officials are entitled, in  the exercise of their political authority, to sever relations with an  outside contractor for any reason including punishment for political  opposition.  Government officials may indeed terminate at-will  relationships, unmodified by any legal constraints, without cause; but  it does not follow that this discretion can be exercised to impose  conditions on expressing, or not expressing, specific political views,  see Perry v. Sindermann, 408 U. S., at 597.


23
The absolute right to enforce a patronage scheme, insisted upon  by respondents as a means of retaining control over independent  contractors, Brief for Respondents 13, and satisfying government  officials' concerns about reliability, Tr. of Oral Arg. 34-39, has not  been shown to be a necessary part of a legitimate political system in  all instances.  This was the determination controlling our decisions in  Elrod, 427 U. S., at 365-368, 372-373 (plurality opinion), and Branti,  supra, at 518-520, and we see no basis for rejecting that reasoning in  this context.  We decline to draw a line excluding independent contractors from the First Amendment safeguards of political association  afforded to employees.

IV.

24
Upon such further proceedings as are deemed appropriate by the  Court of Appeals or the District Court, including upon motion for  summary judgment if there is no genuine issue as to material facts, the  courts on remand should decide whether the case is governed by the  Elrod-Branti rule or by the Pickering rule.


25
The judgment of the Court of Appeals is reversed, and the case  is remanded for further proceedings consistent with this opinion.


26

It is so ordered.



27
Justice Scalia, with whom Justice Thomas joins, dissenting.


28
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.

29
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.


30
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.


31
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:


32
"[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).


33
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?


34
The Court seeks to avoid the charge that it ignores the centuries-old  understandings and practices of our people by recounting, Umbehr, 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.


35
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:


36
"[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.

37
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.


38
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).


39
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.1  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).


40
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).


41
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.


42
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,2 or those  covering  certain subject matters,3 or those that are  time-sensitive.4  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.

43
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"? 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.


44
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:


45
"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).


46
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.


47
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.5  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.


48
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").


49
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."6  "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.


50
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.

51
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.


52
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.


53
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.


54
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.


55
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.


56
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?


57
The  answer is contained in the next brief paragraph of the O'Hare opinion:


58
"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.


59
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.


60
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.


61
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.


62
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.


63
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.


64
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.


65
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.


66
I dissent.



1
 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).


2
 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").


3
 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).


4
 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).


5
 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.


6
 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).


7
 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).


