Document Type



Branti v. Finkel, 445 U.S. 507 (1980).

“When … all who [hold] office hold by tenure of partisan zeal and party service … the certain, direct and inevitable tendency … is to convert the entire body of those in office into corrupt and supple instruments of power and to raise up a host of hungry, greedy and subservient partisans, ready for every service, however base or corrupt.”

Despite this early warning issued by a special Senate Committee inquiring into executive patronage under Andrew Jackson, patronage remains a long-accepted tradition in American political life. Patronage is alternately credited with “democratizing American politics” and criticized for inducing government inefficiency and corruption. Reform efforts have greatly diffused the power of “professional” politicians by reducing the number of patronage appointments and by placing most public employees within a competitive civil service. But a danger that overrides both the malady and the cure in public employment practices is the burden they may impose on first amendment rights.

Employment practices ranging from patronage appointments and dismissals to more subtle restraints on the political activities of public employees have been the focus of frequent judicial review. In the ongoing conflict between government interests in a loyal, efficient work force and first amendment interests of free political expression and affiliation, the Supreme Court has recently tightened its standard of scrutiny. In 1976, in Elrod v. Burns, a divided Court found that “a nonpolicymaking, nonconfidential government employee cannot be discharged or threatened with discharge from a job he is satisfactorily performing on the sole ground of his political beliefs.” Lacking definitive criteria for determining whether a position is “nonpolicymaking” and “nonconfidential,” the Court in Branti v. Finkel refined the Elrod principle. Under the new Branti rule, the hiring authority must demonstrate that party affiliation is an appropriate requirement for the effective performance of the particular public office. Absent such a showing, a person’s continued employment cannot be conditioned upon his allegiance to the in-party.

The impact of Branti may extend well beyond patronage dismissals. Its language is sufficiently broad to apply to political appointments, transfers, promotions, contract awards, and other popular forms of patronage. Carried to a logical end, Branti could so stifle American principles of participatory democracy that only those persons able to prove their political neutrality would be eligible for reward in the public service.

Publication Date


Included in

Law Commons



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.