The spoils system in the current administration is truly a many-tentacled thing.

In the Executive Branch, we have George Bush, Dick Cheney and their close (or now not so close) relationship to Ken Lay and the Enronistas. Dick Cheney and his relationship (or is it a non-relationship?) to Halliburton, KBR, and their many, many subsidiaries. This administration’s appointees have been given fox-access to hen houses all over America, handing over our educational system, environmental health, health care system, and economy to the administration’s supporters.

In the Legislative Branch, Bill Frist and HCA and Tom Delay – a man who needs his own set of octopi, there are so many tentacles – lead the charge for the lootocracy.

And in the Judiciary, Antonin Scalia roots for the kleptocracy. It’s not just the blatant impropriety of the duck hunting trip taken with Vice President Dick Cheney to a private luxury camp in southern Louisiana while the Supreme Court had a case pending before it over Cheney's clandestine and chummy handling of the administration's energy task force. Scalia never did recuse himself for this blatant appearance of impropriety, if not impropriety itself.

Of course, this was the same Scalia who helped this administration to power and put in place what history may judge as the greatest example of the spoils system in the history of this country.

You could only be surprised by all this if you had not made the acquaintance of Scalia of Tammany Hall. For most of us, Tammany Hall and George Washington Plunkitt are symbols of corruption. (For links to information about them, go to the end of this post).

But Scalia doesn’t see it that way. So let me introduce you. In the famous words of Scalia’s hero, George Washington Plunkitt of Tammany Hall, “I seen my opportunities, and I took’em.” Clearly the words of the patron saint of the current administration and all the branches of government today.

Plunkitt, who grew wealthy through his government service, was famous for introducing the concepts of honest graft and dishonest graft. Said Plunkitt, “The day may come when we'll reject the money of the rich as tainted, but it hadn't come when I left Tammany Hall at 11:25 today.”

But let Scalia explain his long-held love and admiration for the spoils system in his own words. The case of Rutan v. Republican Party, 497 U.S. 62 (1990) was a suit against Illinois Governor James Thompson who issued an executive order freezing hiring for all agencies, bureaus, boards, and commissions under his control. None was allowed to hire, fill any vacancy, or create any new position unless it had Governor Thompson’s express permission. That permission could only be granted if an applicant was a Republican operative. This could be shown by voting in Republican primaries, giving financial or other support to the Republican Party and its candidates, joining and working for the Republican Party, and having recommendations from officials of the Republican Party.

The Supreme Court majority struck down this spoils system.

Scalia wrote the dissent. He was joined by Chief Justice Rehnquist and Justices Kennedy and O’Connor. Here, in his own words, is Scalia’s paean of praise to political patronage:

The merit principle for government employment is probably the most favored in modern America, having been widely adopted by civil service legislation at both the state and federal levels. But there is another point of view, described in characteristically Jacksonian fashion by an eminent practitioner of the patronage system, George Washington Plunkitt of Tammany Hall:

"I ain't up on sillygisms, but I can give you some arguments that nobody can answer.

“First, this great and glorious country was built up by political parties; second, parties can't hold together if their workers don't get offices when they win; third, if the parties go to pieces, the government they built up must go to pieces, too; fourth, then there'll be hell to pay." W. Riordon, Plunkitt of Tammany Hall 13 (1963).

It may well be that the Good Government Leagues of America were right, and that Plunkitt, James Michael Curley, and their ilk were wrong; but that is not entirely certain. As the merit principle has been extended and its effects increasingly felt; as the Boss Tweeds, the Tammany Halls, the Pendergast Machines, the Byrd Machines, and the Daley Machines have faded into history; we find that political leaders at all levels increasingly complain of the helplessness of elected government, unprotected by "party discipline," before the demands of small and cohesive interest groups.

The choice between patronage and the merit principle – or, to be more realistic about it, the choice between the desirable mix of merit and patronage principles in widely varying federal, state, and local political contexts – is not so clear that I would be prepared, as an original matter, to chisel a single, inflexible prescription into the Constitution. Fourteen years ago, in Elrod v. Burns, 427 U.S. 347, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976), the Court did that. Elrod was limited however, as was the later decision of Branti v. Finkel, 445 U.S. 507, 63 L. Ed. 2d 574, 100 S. Ct. 1287 (1980), to patronage firings, leaving it to state and federal legislatures to determine when and where political affiliation could be taken into account in hirings and promotions. Today the Court makes its constitutional civil service reform absolute, extending to all decisions regarding government employment. Because the First Amendment has never been thought to require this disposition, which may well have disastrous consequences for our political system, I dissent.

Many of the Tammany men went to jail for their graft and corruption. Scalia’s hero, Plunkitt, did not.

A few links to information about Tammany Hall and Plunkitt:

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