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Did Cabinet Secretary Admit to Violating the First Amendment?

The Washington Post reports:

[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.

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....

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."

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....

Prefer Not 2 Say:
As a contractor at a government agency, I can say that most state and federal contracts that our oganization comes in contact with are equipped with a 30-day escape clauses as part of the boilerplate. A contract can be terminated for any (or no) reason and at any time.

Such terminations are not rare, but far more common is the process of writing bids in such a way so that the requirements of a bid can only be met by preferred vendors.

It's all quite dirty, but still technically legal.
5.10.2006 4:37pm
Perseus:
I'd hope that Secretary Jackson would take this opportunity to challenge the line of cases leading to Umbehr and O'Hare, which are rotten to the core.
5.10.2006 4:48pm
David A. Smith (mail) (www):
The issue is not First Amendment but Federal procurement. I plan to do a blog post on the subject when I'm a little more certain, but my preliminary take is that allowing extra-contractual political opinions to influence an award decision is absolutely a breach of the applicable Federal Acquisition Regulations.
5.10.2006 4:48pm
Dylanfa (mail) (www):
His spokesman says this conversation/decision didn't actually happen, it was an invented anecdote to show the weirdness of Washington where someone will insult your political philosophy and then ask for a favor.

Link
5.10.2006 4:49pm
Steve:
There's a public policy argument that you might not want every contract decision to be litigated under the guise of "Hey! You only turned me down because I voted for the other guy last election!" It's possible that some courts have been swayed by this in the context of holding that an initial contract cannot be challenged on the basis of political affiliation. Where the applicable official out-and-out admits that a political opinion was the basis for denial, however, I doubt a court would go in that direction.

It's certainly arguable that the social harm is greater where contracts are awarded on the basis of political affiliation, as opposed to where they are awarded on the basis of race or other protected classification. Both are arbitrary and unfair, but political discrimination also leads to patronage and corruption as additional evils. (Political affiliation is mutable, of course; but changing your political affiliation because you have to in order to get a government contract sounds like part of the problem rather than part of the solution.)

The story that this was just a made-up anecdote is likely false, by the way, although you can't blame a guy for trying since I'm not sure what other defense he could offer. Prior to making the claim that the story was made-up, Jackson's office actually offered details on the supposedly made-up contract, telling the media that it was an advertising contract with a minority contractor.
5.10.2006 5:00pm
Nobody (mail):
Dylanfa,
A federal official awarding a contract is not doing the contractor "a favor." It's not the official's money.

As noted elsewhere (I read this somewhere, just can't remember where), it seems unlikely that the contractor would have volunteered his non-support of the president out of the blue. Far more likely, he was ASKED to make some contribution to the president, and stated that he wouldn't because (like 69% of the poplulace) he doesn't like the president, and only then was denied the contract. If this is the case, of course, it's much uglier.

As for Jackson's claim that the anecdote was made up, does anyone think that makes any sense? Why would a senior presidential appointee make up a story that casts himself in such an unflattering (if not illegal) light? Far more likely that it's true, and he's just too stupid to keep his mouth shut.
5.10.2006 5:04pm
Observer (mail):
A government contract is not a favor - it is a competition that should be won by the proposal that promises the best use of taxpayers money.

Jackson has sent a message about how he operates, and to the extent that claims that this is simply a parable about how Washington operates, he is indicting the entire administration.

I don't really see any recourse that the administration would have other than to demand his immediate resignation. To leave him in place, even if apologies are forthcoming, would leave in place his message - that partisan loyalites are an accepted criterion for awarding contracts. I don't suspect that the administration would really like to have that hanging around their neck in such an explicit manner.
5.10.2006 5:07pm
Eugene Volokh (www):
Prefer Not 2 Say: Whatever the contract may say, the First Amendment may impose extra obligations on the government. Just as a provision in a government contract that says "this contract can be terminated for any (or no) reason within 30 days" doesn't let the government terminate the contract because it learns the contracting party is black or Catholic, so it wouldn't let the government terminate the contract in violation of the Free Speech Clause.
5.10.2006 5:09pm
Steve:
I'm not trying to be nakedly partisan here, but I really, truly don't think this administration minds the perception that partisan loyalty is an important precondition to getting things from this government. That's the entire premise of the K Street Project, after all. The administration has been quite open about it in other contexts.
5.10.2006 5:12pm
Thorley Winston (mail) (www):
His spokesman says this conversation/decision didn't actually happen, it was an invented anecdote to show the weirdness of Washington where someone will insult your political philosophy and then ask for a favor.


That's what I took it for as well. The story that the SecHUD was telling seemed more like him relaying an anecdote ("here's what you don't do if you need a favor") than him confessing to have violated federal law in an open forum. The problem is that there are enough people suffering from BDS that they just sort of assumed that the actually happened.
5.10.2006 5:25pm
Rational Actor (mail):
Thorley -
If Jackson was relating a story about an actual incident, it seems pretty clear that he violated federal contracting laws. If he was merely relating a non-factual anecdote, then he was simply conveying the message that he doesn't give a damn about following the law.
I, for one, do not want government officials to have the right to believe that they are using taxes imposed on me (and those that will be imposed on my children) to do political favors.
5.10.2006 5:55pm
Ship Erect (mail) (www):
The story that the SecHUD was telling seemed more like him relaying an anecdote ("here's what you don't do if you need a favor") than him confessing to have violated federal law in an open forum.

You're right; he's saying that he will violate federal law. Important difference.
5.10.2006 5:57pm
Steph (mail):
If the story were not true, he would have said, "He says", "I say", "He doesn't get the contract", not "He said", "I said", "He didn't get the contract".
5.10.2006 6:23pm
JunkYardLawDog (mail):
This may not be the law, but what should be the law is that not only should you be able to not award contracts to people stupid enough to make a point of telling the awarding parties they don't support them, but you should be able to fire government employees for any and all the same reasons that employees in the private sector can be fired in an employment at will state. New elected bosses don't like your haircut. Fire them. New management in private sector doesn't like your haircut they can fire you. Same rules should apply to government employees. An employee hoping for the death of President Reagan over the company/government loudspeaker should be able to be fired if that is the view of her superiors. The whole employment with the government is a property right with due process implications line of cases are a bunch of BS in my humble opinion.

Regarding this particular contractor. He shouldn't get the contract on the basis that he is too damned stupid and not sensitive enough to the viewpoints of others to be trusted with a government contract. I mean really, could this guy be a bigger bonehead than to tell a prospective customer's agent that he doesn't like the customer's boss?

Says the "Dog"
5.10.2006 6:23pm
Observer (mail):
The dog is quite the moron, isn't he? Now we have a new standard. Federal contractors need to be "sensitive" to the feelings of government officials. Heh heh. Hillary and Co. are taking due note, I guarantee you.
5.10.2006 6:38pm
Dovid (mail):
On the other hand, I have five fingers.
5.10.2006 6:39pm
crane (mail):

I mean really, could this guy be a bigger bonehead than to tell a prospective customer's agent that he doesn't like the customer's boss?


Except that the president isn't the boss; ultimately, the American people are the boss, and we have so many different opinions about your haircut that allowing one of our agents to fire you because he personally doesn't like it is absurd. I don't know about you, but I'd rather see that my tax dollars are spent as efficiently as possible, and if that means hiring someone with bad hair then so be it.
5.10.2006 6:41pm
Justin (mail):
"That's what I took it for as well. The story that the SecHUD was telling seemed more like him relaying an anecdote ("here's what you don't do if you need a favor") than him confessing to have violated federal law in an open forum. The problem is that there are enough people suffering from BDS that they just sort of assumed that the actually happened."

Yes, us Bush-hating nutty people, actually taking an admission against self interest, which is of such reliability as to be a specific exception to the hearsay ban, at its face. We're just loony that way.
5.10.2006 6:42pm
Dufus:
Look at it this way.
5.10.2006 6:43pm
Dufus:
Click here to see the real answer to this problem.
5.10.2006 6:48pm
Dufus:
Click here to see the real answer to this problem. Sorry about the previous post.
5.10.2006 6:50pm
Dufus:
Click here to see the real answer to this problem. Sorry about the previous post.
5.10.2006 6:51pm
Thorley Winston (mail) (www):
If Jackson was relating a story about an actual incident, it seems pretty clear that he violated federal contracting laws. If he was merely relating a non-factual anecdote, then he was simply conveying the message that he doesn't give a damn about following the law.


Right so let's see the options you laid out are:

1) There really was a contractor who went through a ten year process to get on the GSA list and then when he was just within reach of his goal, decided out of the blue to announce to the SecHUD, "oh yeah by the way, I don't like President Bush."

2) The SecHUD, decided "while I'm speaking to this group of small business people in a public forum, why don't I just confess that I've either broken the law or have problem with breaking the law."

Actually neither of those are likely to be true:
Dustee Tucker, a spokeswoman for Jackson, told the Dallas Business Journal Tuesday that Jackson's comments at his April 28 speech were purely "anecdotal."
"He was merely trying to explain to the audience how people in D.C., will say critical things about the secretary, will unfairly characterize the president and then turn around and ask you for money," Tucker said. "He did not actually meet with someone and turn down a contract. He's not part of the contracting process."


I suppose one could believe the story is true -- that is that someone will invest ten years in going through process across at least two administrations and when they're almost done spontaneously decide to insult the boss of the guy they're speaking to.

Just as likely it is that cabinet secretaries who speak in a public forum decide to spontaneously confess to breaking the law. Or would be breaking the law if the SecHUD really was part of the contracting process.

What's completely improbable though is that someone giving a speech might invent a story to illustrate a concept like the absurdity of asking someone for help and then insulting them. Far more likely that the SecHUD would take that opportunity to confess to law breaking.

/sarcasm
5.10.2006 7:06pm
eddie (mail):
JunkYardLawDog

The only statement you made with any authority and logic was your first six words.

The government is not the private sector, so get over it. You make a big assumption, namely, that the contractor was as big a buffoon as the Secretary. The real point is that there can not be a quid pro quo in government contracting. If you think that this creates "a property right with due process implications" you really don't understand our government and the laws. Unless you really think it's okay that the government waste your dollars by awarding contract on the basis of cronyism, connections and political back-scratching.

Let's get real: a haircut is one thing; my beliefs are quite another and are expressly protected in the constitution. I suppose those framers had a few "liberal" ideas in them.
5.10.2006 7:08pm
Davebo (mail):
I'd agree that telling the official you don't support his boss was a dumb idea, but I really doubt that is the way it actually went down.

But given that, how stupid do you have to be to tell the story in a public forum??

As to his claims not that it was all just made up.. Puhleaze....... You'd have to be able to deep throat a broom handle to swallow that one. But then, we've seen a lot of swallowing lately so perhaps....
5.10.2006 7:10pm
Dylanfa (mail) (www):
Okay, here's the real link:

HUD explanation

Daniel Drezner offered some puzzled commentary
5.10.2006 7:13pm
Christopher Cooke (mail):
To use one of my favorite questions:

was he lying then or is he lying now (through his spokesperson)?

I vote the former, i.e., he made up the story, unaware of the legal implications to what he had admitted, intending to send a message to his audience about how Washington only rewards its friends. Now, after being told of the legal implications, he is forced into saying he made it up, but spinning it as an "anecdote" to avoid admitting he lied earlier.

Secretary Jackson makes me long for the days of HUD Secretary Sam Pierce, whom Reagan thought was a mayor of Indianapolis during a Cabinet meeting, and who reportedly slept through his meetings (like good old Ronnie).



He was lying
5.10.2006 7:40pm
MnZ (mail):
It must be true. Washington politicians never make up stories out of stupidity.
5.10.2006 7:42pm
Steve:
"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."


Yes, I'm sure these are the words of a man who was making up an illustrative anecdote. "Oh, of course I didn't really mean that's the way I believe. I just mean that's the way I would believe if I were like this guy in the hypothetical story, which of course isn't true, because that would be illegal. I would never break the law, I was just making a point about how stupid it is to make Constitutionally protected comments to other government officials who might get offended and break the law."

I could accept that this was a made-up story... if it was made up for the purpose of delivering a message to these contractors that they had better not cross the administration. Otherwise, I really can't tell what message he'd be trying to send by telling a hypothetical story about himself breaking the law to screw a prospective contractor.
5.10.2006 7:43pm
Nobody (mail):
Thorley said:


I suppose one could believe the story is true -- that is that someone will invest ten years in going through process across at least two administrations and when they're almost done spontaneously decide to insult the boss of the guy they're speaking to.


(emphasis added)

The most likely scenario is that the "insult" was not "spontaneous." It seems likely that what happened is, at the last minute, before being awarded the contract, the contractor was essentially told "you'll have to make a donation to the Bush campaign" (or to some other campaign, PAC, etc. favored by the administration) "if you want this contract." The contractor said "I don't like Bush," and lost the contract. This is called "pay to play," and is common in some states.
5.10.2006 7:49pm
JunkYardLawDog (mail):
eddie said:

The government is not the private sector, so get over it.

Yes how silly of me to want the federal government to run with the efficiency and cost reductions of the private sector. Much better to have a bloated bureacracy protecting the jobs of the inefficient, unresponsive, and incompetent from having to produce results acceptable to their employer. Much better to give the clerks constitutional property rights subject to the takings clause and due process requirements of endless hearings and appeals.

The only thing you said that had any authority and accuracy is that the federal goverenment doesn't operate like the private sector. Much the worse for the taxpayers as a result.

As for your wandering off into quid pro quo discussions, I don't know where that came from or how you connected it up to my comments on employment with the federal government is a property right line of cases. Perhaps you don't understand the difference between employees and contractors.

Eddie also said:

Unless you really think it's okay that the government waste your dollars by awarding contract on the basis of cronyism, connections and political back-scratching.

I never said this was a good thing so I don't know where you are getting this from. Its not a good thing in private business either. What wastes tax dollars is keeping incompetent and unruly employees on the payroll and through useless due process appeals and hearings and other bullshit not applicable to the private sector.

Eddie finally said:

Let's get real: a haircut is one thing; my beliefs are quite another and are expressly protected in the constitution.

Your beliefs don't entitle you to a job or a contract for your employer. That's the point. Anybody stupid enough to insult a potential customer isn't smart enough to be trusted to deliver on the contract they were seeking to sell to that customer. That rule applies in business and should apply to the federal government as well. You have a constitutional right to your beliefs, but you don't have a constitutional right to make a sale to any particular customer. That customer has a right to not give you the sale and so should the federal government.


crane said:


ultimately, the American people are the boss, and we have so many different opinions about your haircut that allowing one of our agents to fire you because he personally doesn't like it is absurd.

Precisely because there are so many of us, we elect a single person to be the boss for a term of 4 years. That person is the BOSS for those 4 years in regards to making these kinds of decisions. So your claims that the President isn't the boss for purposes of government property and contracting is just flatly wrong. If you disagree try jumping the fence to the whitehouse and taking a shit on your lawn there. You'll find out whose the boss of that lawn fairly fast. Or just try the same thing at any local federal courthouse or other government agency building. If you are the boss, nobody will say anything to you.


I don't know about you, but I'd rather see that my tax dollars are spent as efficiently as possible

Me too, and if that means firing the trouble maker, lazy, incompetent, unqualified, or persons with just personality disorders that disrupt the team building needing for efficiency then the managers responsible for providing efficiency and results should be able to fire people on the spot just like in the private sector, without lawsuits and claims of due process property rights and hearings and other bullshit that make governments works so inefficiently. Just like in the private sector.

Observor said:

Now we have a new standard. Federal contractors need to be "sensitive" to the feelings of government officials.

People seeking to make a SALE to a potential customer need to be sensitive to that customer's feelings. If they aren't they won't make the sale. That's EXACTLY how it works in the private sector, and only a MORON would pontificate on how it doesn't really work that way. Only someone whose never ran a business, been in sales, or had to meet a payroll would so glibly pass on what is so plainly obvious to anyone with any real world business experience.

This guy was attempting to make a sale to a customer and it is or should be irrelevant that the customer in question happened to be a government agency. You want a customer to buy what you are selling you'd better be damned sensitive to their needs and feelings or it will be you looking for another job for failing to close the deal for your employer.

Putz,

Says the "Dog"
5.10.2006 8:14pm
Dirty Thirty-First:
Was this your exam question today?
5.10.2006 8:31pm
Josh_Jasper (mail):
Greeeeat. So we actually have one person here defending the right of the government to essentually shake down anyone doing business with them for votes.

Oh, and look, he calls people who disagree with him names. Whats next? Threats?

I hope some day you turn that scintilating wit and charm onto a judge. How many contempt citations before they yank your license?
5.10.2006 8:49pm
Christopher Cooke (mail):
JunkYardDog:

Try researching the Competition in Contracting Act, before you dig yourself in too deep that this was all okay. I think the conduct in the Secretary's storylikely violates that federal statute, among others, but I don't believe the story was "real" just a made up anecdote by a political hack moron (who mimics his boss well, in that respect).
5.10.2006 8:57pm
I.I (www):
Agreed with David Smith et. al. that the FAR violation is much more clear cut than the constitutional violation. Federal contractors have a specifically-defined duty to award the contract in the best financial interests of the government and taxpayers, and specifically-defined rules for how to judge where that best interest lies. Liking the president ain't a part of it.

I don't see a constitutional issue here. Granted that there are cases which stretch the meaning of "speech" and "due process" like a funhouse mirror, but the bill of rights is meant to protect rights, and there's no fundamental right to be awarded a government contract. We as taxpayers have a right to demand an impartial procurement process, but that's what the FAR is for. "Deprive" and "Refuse to award" are to very different concepts.
5.10.2006 9:06pm
Steve:
Well, you don't have a fundamental right to be hired for a government job, either, but the Rutan case cited by Prof. Volokh says you can't condition a hiring decision (for a non-political position, obviously) on political affiliation. So I wouldn't be so quick to write off the constitutional claim.
5.10.2006 9:14pm
JunkYardLawDog (mail):
Christopher, see my first post. I started by saying this may not be the law but it is in my opinion the way the law should be. I'm not arguing its the law. I'm arguing that the law should be to make the federal government run more like business and that since this particular matter was originally analogized in part to the employment with the government is a property right subject to constitutional protections line of cases, I went on to say that I personally thought that whole line of cases was in my opinion bullshit and that government managers should be free to fire employees to the same extent as a private sector manager in an employee at will state.


To Josh_Jasper

Your reading comprehension skills are in question because that's not at all what I've said nor is part of the fact situation being discussed. As for name calling, yes its true I RESPONDED to some name calling with a bit of my own. I'll await for you to read up thread and then post something about contempt citations to Observer since you seem to have particular sensibilities in this area, or do you support name calling when its done by those with whom you share similar ideas. Reading a complete thread for context can be helpful if you wish to avoid jumping in and placing foot squarely in mouth.

Says the "Dog"
5.10.2006 9:18pm
Dave Hardy (mail) (www):
As noted elsewhere (I read this somewhere, just can't remember where), it seems unlikely that the contractor would have volunteered his non-support of the president out of the blue. Far more likely, he was ASKED to make some contribution to the president, and stated that he wouldn't because (like 69% of the poplulace) he doesn't like the president, and only then was denied the contract. If this is the case, of course, it's much uglier.

While I would never underestimate the foolishness of some folks in DC, I'd hope they steered clear of asking a gov't contractor, in a government building, while on official business, to make a campaign donation. I seem to recall that just asking for one in a federal building is a criminal offense.
5.10.2006 9:53pm
EricRasmusen (mail) (www):
Rutan would apply here, but it was a stupid decision, and perhaps the Court today would disagree with it. Cabinet members, for example, get hired and fired for what they say, including what they say off the job.

Rustan was about jobs rather than contracts, but it is interesting that there is a lot more reason to allow patronage hiring than patronage contracting. Having loyal employees is important. Just see what the Democrats in the CIA are doing to Bush and to the agency's effectiveness. Having a loyal supplier is not important; he can be more easily controlled by means of contract law. And that is why we have the procurement laws that it seems Secy. Jackson has violated.

If those are criminal laws, then it makes sense for him to change his story now. It is just like a murderer saying his confession was a lie, just made up to impress someone he was talking to. Implausible, but enough for reasonable doubt.
5.10.2006 10:00pm
Jeff Brooks (mail):

...Jackson closed with a cautionary tale, relaying a conversation he had with a prospective advertising contractor.

"He had made every effort to get a contract with HUD for 10 years," Jackson said of the prospective contractor. "He made a heck of a proposal and was on the (General Services Administration) list, so we selected him.


I can understand not wanting to believe this story actually occurred, but doesn't the above strike you as awfully specific for a made-up fairy tale? He specifies the type of contractor (advertising)... he discusses how long the contractor has been attempting to get a contract... when I weave tales out of whole cloth, I generally don't add superfluous details and end with a thinly veiled threat. And now his spokesperson is on a "leave of absence"? This isn't looking good.

I'm with Prof. Volokh on the constitutional issue. And needless to say, The Competition in Contracting Act (41 U.S.C. 253(b)(1)) doesn't seem to list political affiliation as one of the acceptable reasons to disqualify a contractor. (The text of the Federal Acquisition Regulations - "Government business shall be conducted in a manner above reproach and, except as authorized by statute or regulation, with complete impartiality and with preferential treatment for none" - also seem to preclude his actions.)

Jackson should resign.
5.10.2006 10:43pm
JosephSlater (mail):
Eric:

Rutan doesn't apply to policy-making jobs. Obviously, Bush can discriminate in favor of Republicans and against Democrats in making Cabinet appointments. But, Rutan held, you can't discriminate against, say, janitors and secretaries that work in public jobs on the basis of their political affiliation.

Those types of decisions in personnel matters not only implicate the constitution, they would typically violate civil service laws that we've had for over a century. The point of those laws is to avoid patronage and cronyism problems. That's because we want a workforce based on competence, not blind political loyalty. Well, I say "we"; obviously, some folks in the Bush admin. feel differently. And I don't just mean this unethical idiot who has been caught out in an obvious lie.
5.10.2006 10:44pm
Perseus:
Oh, and look, he calls people who disagree with him names. Whats next? Threats?

Those who live in glass houses...



As for the constitutional issue, Justice Scalia summed it up best in his dissent in O'Hare.


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.
5.10.2006 11:07pm
Christopher Cooke:
As I recall, from researching this issue 10 years ago, willful violations of the Competition in Contracting Act are criminal offenses. Thus, the "duck and cover" being demonstrated by the HUD spokesperson.

To Junk Yard Dog: yes, your first post did make it clear that you were saying "if this isn't the law, it ought to be" type of post.

Of course, I suspect one might reasonably disagree with your basic premise, which seems to be that using taxpayer dollars to reward political cronies and punish political enemies is an appropriate way to allocate taxpayer dollars, but that perhaps we can discuss another day. Boss Tweed, however, would undoubtedly agree with you, as would Randy Duke Cunningham (before he was caught).
5.11.2006 12:37am
Smithy (mail) (www):
Oh, spare me the sanctimony from the left. Scalia is right -- this kind of thing is routine. You think it didn't happen under Clinton? You can't be that naive.

Two points here:

(1) This is how government contracts have always been awarded, at least since Andrew Jackson put in the spoils system

(2) If this contractor was too dumb to keep his opinions to himself, then he doesn't deserve the contract. Why waste money on an idiot who doesn't know when to shut up?
5.11.2006 1:09am
Eugene Volokh (www):
JunkYardLawDog: I don't know how they do things in your junkyard, but here please don't call people "putz."

Observer: Same as to "moron."

Smithy: There's nothing sanctimonious about suggesting that the Secretary's actions, as he himself described them, may be unconstitutional (and perhaps violations of federal contracting regulations). And one can be concerned about this without being "from the left" (consider me). You can make your substantive points in ways that are both nicer and more persuasive.

JunkYardLawDog: Back to you -- I'm not sure the "Says the 'Dog'" thing works; it might come across as more an annoying affectation than a gag. But in any event, please do not set it in boldface. Bold text draws the reader's eye, and distracts him from other things. A modest amount of boldfacing is sensible to help readers focus on the most important parts of one's writing. I hope that "Says the 'Dog'" is not the most important part of your comment (or of the comment thread more generally); and if it's not particularly important, it's a disservice to readers to boldface it.
5.11.2006 2:14am
Steve:
I hope that "Says the 'Dog'" is not the most important part of your comment (or of the comment thread more generally)

It is, indeed, the most important part of the comment; for it signifies that it has come to a merciful end. For regular VC readers it signifies where our weary eyes should resume reading the comment thread.
5.11.2006 2:38am
Mr L (mail):
Federal contractors have a specifically-defined duty to award the contract in the best financial interests of the government and taxpayers, and specifically-defined rules for how to judge where that best interest lies. Liking the president ain't a part of it.

Ironically, as someone mentioned earlier, this particular contractor was a minority contractor, and hence very likely to be the beneficiary of substantial preferences and subsidies when bidding for the contract. So much for 'a specifically-defined duty to award the contract in the best financial interests of the government and taxpayers.'
5.11.2006 9:59am
LR:
Per JunkYardDog "I went on to say that I personally thought that whole line of cases was in my opinion bullshit and that government managers should be free to fire employees to the same extent as a private sector manager in an employee at will state."

Would that extend to removing Presidents, Senators and Representatives when their poll ratings fell, or do they have special protection as most CEOs seem to?
5.11.2006 11:46am
JunkYardLawDog (mail):
LR,

There's no special protection for the managers or the elected pols. For elected Pols there is always the next election.


Says the "Dog"
5.11.2006 11:58am
JunkYardLawDog (mail):
Christopher Cooke,

I've neither said nor advocated punishing enemies and rewarding supporters, but that kind of thing always exists to some extent. It exists in the private sector as well. If the practice interferes with efficient operation then in the private sector need for profits will cause the practice to change and elections are what can be used to change political practice. It should not be for the courts to change.

Says the "Dog"
5.11.2006 12:04pm
Martin Grant (mail):
JYLD:
>but you should be able to fire government employees for any and all the same reasons that employees in the private sector can be fired in an employment at will state.

The Boy Scouts can dismiss a troop leader for coming out Gay. The Catholic Church can fire a priest who converts to Judaism.

>I started by saying this may not be the law but it is in my opinion the way the law should be.
Really?

Private orginzations can discriminate through freedom of association. Are you arguing that like the Boy Scouts the government should be able to fire someone for being gay? Or like the Catholic church, not hire someone based on their religeon.

It seems you are arguing that for employment purposes the goverment should be exempt from the 1st amendment. What gives the 1st amendment it's power without restricting our freedoms is the fact that it applies to the Government (and NOT private orginizations).
5.11.2006 1:57pm
logicnazi (mail) (www):
First of all I want to take issue with the idea that the awarding of government contracts is not a right. I mean in some sense this is of course true but as Prof. Volokh has already pointed out we would probably all feel the 1st amendment has been violated if the government refused to give any contracts to practicing catholics.

Ultimately the issue is that good old quote, "the power to tax is the power to destroy." If the government got it's money directly from god or even perhaps if it still came from custom duties the idea that it is the governments money and they can do what they want with it would be much more compelling. As it is though the government is taking money from the people and then giving it back to the people in various ways.

Thus, a policy which preferentially gives money to Bush supporters is really equivalent to a policy which fines you for not supporting bush. I mean just consider the extreme hypothetical where the government taxes everyone at 50% and then gives back all that money as a 'contract' to bush supporters. This would accomplish exactly the same thing as a fine of 50% of your income for not being a bush supporter. Of course this situation with contractors is nothing like this hypothetical but it does show you can't draw a simple line between preferences for government expenditure and illegal penalties for certain sorts of speech or political views.

JunkYardLawDog,

Yes, I think that any inefficiency that oversight may insert into the government is worth having a government that behaves fairly, doesn't work on patronage, graft and is otherwise upstanding. Besides, the choice isn't between an efficient government that fires some people with bad haircuts and an inefficient one that is burdened by policies requiring fairness and viewpoint neutrality. It is between a somewhat efficient government that has policies against graft and corruption and an extremely inefficient government where a huge percent of tax revenues get used to pay for a system of patronage and for favors. I challenge you to find a government that works as you think ours should and is substantially more efficient.

Ultimately the reason the government is inefficient isn't because it is laden with policies about not denying contractors by political persuasion, plenty of companies have tons of company policies themselves and the government is just a lot bigger, but because it is a monopoly. I recently signed up for cable at my new place and I can assure you private companies in monopoly positions are just as inefficient and frustrating. This is also why it needs more laws guaranteeing fairness because if it behaves badly and starts losing money because it won't work with democratic contractors no one will start stealing it's business.


Finally on this believability point it is totally plausible that some contractor insulted president Bush at a late stage in his contract. Many people feel very strongly about these matters and if the subject came up I can totally see them unloading. Hell, some people even (strangely) would assume the secretary would agree with them. It is the suggestion that not one of the many contractors who have met with the secretary have criticized president Bush that is unbelievable. Even if the probability is low for any one person doing this the secretary interacts with many contractors.

I think it is most likely that the secretary really did this and is now covering up but the only way to be sure is to have a prosecutor start investigating the matter. Whether he made up the anecdote or not it will say something very troubling about president Bush if he doesn't demand the secretary's resignation and thereby implicitly condones the message that illegal political patronage is acceptable.

Of course if the contractor was just extremely rude or anti-social, e.g., walked in and started screaming obscenities about Bush or launched on an offensive rant in the middle of a buisness meeting, then the situation is somewhat different. It seems perfectly reasonable to deny contracts for gross rudeness or other behavior that would make it impossible for them to discuss the contract politely but I somehow don't think this is what happened.
5.11.2006 3:01pm
Josh_Jasper (mail):
Someone who engages in bigoted, petty, mean spirited behavior is a bigot etc... That's not profanity, it's a description. We may disagree over the behavior being bigoted, but if you can't see the differnce betwen that and using profanity (in yiddish, but that still counts) you're not seeing clearly.

There's a difference between what I wrote, and shoting "asshole!" at anyoen who disagrees with me. I was critical, and harsh, but I was not using invective just to be insulting.
5.11.2006 3:02pm
Josh_Jasper (mail):
If it were actually legal to blatantly use political granting of contracts to reward the faithful and punish the opposition, our standard of granting political contracts would be based, not on serving the public, but on serving political contributors.

We'd be seeing a requirement of party registration for jobs in various industries. If you don't think that would really happen, you're fooling yourself.
5.11.2006 3:05pm
JunkYardLawDog (mail):
Martin Grant,

"Private Sector" in my posts refers to private business and not private clubs and churches. Therefore, your examples and questions about churches and private clubs are not applicable. I'm not advocating private club rules for use by the government. I'm advocating that employment with the government is not or should not be considered a property right subject to the takings and due process clauses of the constitution. I'm advocating that employees of the federal government who don't perform or need to be let go for any reason should be able to be fired without a court intervention and several layers of administrative hearings.

Logicnazi,

You may a good and reasonable point about the government being comparable to a monopoly and that greater regulation is required because it is a monopoly. I don't disagree with that point or the need for greater regulation of some types because of its monopoly status. However, even the local electric company monopoly can hire and fire its employees at will in an employment at will state. So should the federal government be able to do this.

I'm also not advocating an official system of awarding contracts solely on the basis of political allegience. In the facts of the particular case at hand, the particular company trying to sell its services/products to the Feds was too stupid in protocol and general common sense to be awarded the contract.

Says the "Dog"
5.11.2006 3:26pm
Randy R. (mail):
I take strong objection to an assumption made here, that if a contractor is so "stupid" as to express his opinion about Bush to the Secretary, then he must be too stupid to get a contract and execute it professionally. There is a huge logical disconnect here, and the one premise has nothing to do with the conclusion.

Whatever he may or may not have said says nothing about how well he would have completed the project. There are plenty of instances of contractors who plied heaps of praise on the president only to have wasted tax payer monies.
5.12.2006 2:22am