[In a recent speech,] Housing and Urban Development Secretary Alphonso Jackson . . . recounted a conversation he had in the nation's capital with a minority publisher.
"He had made every effort to get a contract with HUD for 10 years," Jackson said of the bidder, according to an account of the speech in the Dallas Business Journal. "He made a heck of a proposal and was on the GSA [General Services Administration] list, so we selected him. He came to see me and thank me for selecting him.
"Then he said something. . . . He said, 'I have a problem with your president.' I said, 'What do you mean?' He said, 'I don't like President Bush. ' I thought to myself, 'Brother, you have a disconnect — the president is elected, I was selected. You wouldn't be getting the contract unless I was sitting here. If you have a problem with the president, don't tell the secretary.'
"He didn't get the contract," Jackson continued. "Why should I reward someone who doesn't like the president, so they can use funds to try to campaign against the president? Logic says they don't get the contract. That's the way I believe."
Does Jackson's decision, if the newspaper account is correct, violate the First Amendment? Generally speaking, terminating a contract — or failing to renew a usually renewable contract or removing a contractor from a list of regular service providers — based on the contractor's speech or political affiliation is presumptively unconstitutional. If the speech is on a matter of purely private concern, or if the speech was disruptive to the government's functioning (quite unlikely in this case), this presumption can be rebutted. But the First Amendment rules apply to termination of contracts as much as to government employement. So the Supreme Court decided in Board of County Comm'rs v. Umbehr (1995) and O'Hare Truck Servs. v. City of Northlake (1995).
But does this extend to initial refusals to award a contract? (It sounds like in this case the contractor was selected, but no contract had yet been signed.) On the one hand, Umbehr said it wasn't addressing the First Amendment implications of denying an initial contract — as opposed to canceling or refusing to renew an existing contract — based on the contractor's speech. On the other hand, Umbehr and O'Hare expressly analogized contractors to government employees, and in Rutan v. Republican Party (1990) the Court expressly extended the First Amendment limits on political patronage firing to apply also political-patronage-based refusal to hire. (The limits don't apply to high-level, mostly policymaking, employees, but do apply to most lower-level employees and would by analogy apply to most contractors.)
Lower courts seem to be split on the issue, as a First Circuit case from 2002 reports, citing (internal cert. denied notation omitted) "Lucas v. Monroe County, 203 F.3d 964, 972 (6th Cir.2000) (tow truck operator who had never been called was protected from removal from the call list), McClintock v. Eichelberger, 169 F.3d 812, 817 (3d Cir. 1999) (limiting Umbehr and O'Hare to ongoing commercial relationships); Tarpley v. Jeffers, 96 F.3d 921, 924 (7th Cir.1996) ('The First Amendment bars patronage hiring of independent contractors.')." So it's a tough constitutional question, though I lean to the conclusion that such contractor selection based on the contractor's political preferences is indeed as unconstitutional as employee selection based on the employee's political preferences.
The Post also suggests that the Secretary's reported decision "may violate federal procurement law, which requires 'complete impartiality and . . . preferential treatment for none,'" but I'm not knowledgeable on that area of the law and thus can't do more than just flag the issue.
UPDATE: A reader points to this Chicago Tribune news blog item, from Frank James:
I called HUD and talked with Jackson's spokesperson, Dustee Tucker, about the incident. After talking with Jackson, she returned with information that made the matter even more extraordinary.I don't quite know what to make of this, but even if it's right and Jackson wasn't admitting to denying contracts based on politics, it doesn't sound great. As the Tribune blogger points out, "Clearly, Jackson very much would prefer to have evaporate the notion that he's torpedoeing contracts of administration critics, so much so that he'd rather push the idea that he says untruths in his speeches. Either way, it's all very strange."
She essentially said that Jackson made the whole story up. He told a room full of people something happened which didn't.
"What the secretary was talking about (in his speech) was all of our accomplishments with minority contracts. At at the very end of his statement, the secretary offered an anecdote to explain politics in Washington D.C. He was speaking to a group of business leaders in Dallas and there were lots of Dallas Cowboys in the room.
"So he was offering an anecdote to say, this is how politics works in DC. In DC people won't just stab you in the back, they'll stab you in the front. And so the secretary's point was a hypothetical, what he said was an anecdote. It did not happen....
"You know when you tell a joke you put yourself in first person, for delivery," she said. "You say I was on this train and so and so did this even if you know it wasn't a train. The secretary was putting himself in that first person to make the story more effective...
"The secretary was taking situations that have happened to him in the past. As you know, people come up to political figures all the time and say 'I don't like you, I don't like your politics, I don't like the president... He was blending together things that happened to him in the past." ...
The main message Tucker wanted to leave me with was that Jackson didn't yank anyone's contract because he vehemently disagreed with the Bush administration....
FURTHER UPDATE: Reader David Smith passes along this item, from the Washington Post:
Housing and Urban Development Secretary Alphonso Jackson apologized yesterday for telling a Dallas business group that he had rejected a HUD contract because the contractor had criticized President Bush.
Jackson said he made up the story. "I deeply regret the anecdotal remarks I made at a recent Texas small-business forum and would like to reassure the public that all HUD contracts are awarded solely on a stringent merit-based process," Jackson said in a statement. "During my tenure, no contract has ever been awarded, rejected, or rescinded due to the personal or political beliefs of the recipient."
Alphonso Jackson said HUD contracts are awarded based solely on merit....