If the contractor does not get the particular government contract on which he bids, because he is on the outs with the incumbent ..., 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.
Against the uncertain benefits of such a rule in promoting the values of the First Amendment must be set the unknown but potentially large costs. To attempt to purge government of politics to the extent implied by an effort to banish partisan influences from public contracting will strike some as idealistic, others as quixotic, still others as undemocratic, but all as formidable. Patronage in one form or another has long been a vital force in American politics.
We are particularly reluctant to take so big a step in the face of the Supreme Court's apparent desire to contain the principle of Elrod and Branti....
Under the first amendment, government actions receive a much higher degree of scrutiny when those actions are aimed at restricting the content of speech, than when the burden on the protected activity is an incidental consequence of other legitimate governmental concerns.
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