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DOUGLAS, J., dissenting in part.

The fact that he is in the classified civil service is not, I think, relevant to the question of the degree to which his political activities may be curtailed. He is in a position not essentially different from one who works in the machine shop of a railroad or steamship which the Government runs, or who rolls aluminum in a manufacturing. plant which the Government owns and operates. Can all of those categories of industrial employees constitutionally be insulated from American political life? If at some future time it should come to pass in this country, as it has in England, that a broad policy of state ownership of basic industries is inaugurated, does this decision mean that all of the hundreds of thousands of industrial workers affected could be debarred from the normal political activity which is one of our valued traditions?

The evils of the "spoils" system do not, of course, end with the administrative group of civil servants. History shows that the political regimentation of government industrial workers produces its own crop of abuses. Those in top policy posts or others in supervisory positions might seek to knit the industrial workers in civil service into a political machine. As a weapon they might seek to make the advancement of industrial workers dependent on political loyalty, on financial contributions, or on other partisan efforts. Or political activities of these workers might take place on government premises, on government time, or otherwise at government expense. These are specific evils which would require a specific treatment.

There is, however, no showing of any such abuse here. What Poole did, he did on his own without compulsion or suggestion or invitation from any one higher up. Nor does it appear that what he did was done on government time or on government premises. Moreover, as MR. JUSTICE BLACK points out, laws can be drawn to punish those who use such coercion. See Ex parte Curtis, 106 U. S. 371. Such activity is more than the exercise of

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330 U.S.

political prerogatives; it is the use of official power as well, and hence can be restrained or punished. Cf. Bakery Drivers Local v. Wohl, 315 U. S. 769, 776–777; Thomas v. Collins, 323 U. S. 516, 543–544.

The question is whether a permissible remedy is complete or partial political sterilization of the industrial group. There is, of course, the possibility of the mobilization, whether voluntary or otherwise, of millions of employees of the Federal Government and federally assisted state agencies for the purpose of maintaining a particular party or group in power. The marked increase in the number of government employees in recent years has accentuated the problem. The difficulty lies in attempting to preserve our democratic way of life by measures which deprive a large segment of the population of all political rights except the right to vote. Absent coercion, improper use of government position or government funds, or neglect or inefficiency in the performance of duty, federal employees have the same rights as other citizens under the Constitution. They are not second-class citizens. If, in the exercise of their rights, they find common political interests and join with each other or other groups in what they conceive to be their interests or the interests of the nation, they are simply doing what any other group might do. In other situations where the balance was between constitutional rights of individuals and a community interest which sought to qualify those rights, we have insisted that the statute be "narrowly drawn to define and punish specific conduct as constituting a clear and present danger to a substantial interest" of government. Cantwell v. Connecticut, 310 U. S. 296, 311. And see Murdock v. Pennsylvania, 319 U. S. 105, 116; Thornhill v. Alabama, 310 U. S. 88, 104-105.

That seems to me the proper course to follow here. The prohibition in § 9 (a) of the Hatch Act against government employees taking an "active part in political man

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DOUGLAS, J., dissenting in part.

agement or in political campaigns" applies without discrimination to all employees whether industrial or administrative. The same is true of the Civil Service Rules. See Rules I, § 1, XV, 5 C. F. R. Cum. Supp., §§ 1.1, 15.1. But the supposed evils are both different and narrower in case of industrial workers than they are in the case of the administrative group." The public interest in the political activity of a machinist or elevator operator or charwoman is a distinct and different problem.13 In those cases the public concern is in the preservation of an unregimented industrial group, in a group free from political pressures of superiors who use their official power for a partisan purpose. Then official power is misused,

12 See Morstein Marx, op. cit., supra, note 10, pp. 205-206; Report of the Committee on Parliamentary, etc., Candidature of Crown Servants, supra, note 8, p. 32; Finer, The British Civil Service (1937), pp. 203-204.

13 As stated in Morstein Marx, op. cit., supra, note 10, pp. 205-206: "The political neutrality of a postal clerk, of a conductor on the city-owned subway system in New York, of a technician in the Chicago sanitary district, or of an artisan in the labor class, does not have the same significance as the political neutrality of the prominent section chiefs of the Department of State or the political neutrality of an assistant to a commissioner in a New York City department. No discussion of the problem which ignores the differences between categories of employees is anything but an academic consideration of the problem. Top officialdom has such marked opportunities of shaping policy that its political behavior must be so neutral as to raise no question of a divergence in point of view between it and the executive officers of government. It is quite proper, therefore, to require the most impeccable political neutrality from such officials. But the average or typical civil servant has no more opportunity in the sphere of policy making than does the average citizen. He is entrusted with a function ministerial in nature, a routine task almost wholly unaffected by his political point of view. This principle is recognized in the English rule that industrial workers in government employment may stand for election, a privilege denied administrative employees."

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perverted. The Government is corrupted by making its industrial workers political captives, victims of bureaucratic power, agents for perpetuating one party in power.

Offset against that public concern are the interests of the employees in the exercise of cherished constitutional rights. The nature and importance of those rights have been fully expounded in MR. JUSTICE BLACK'S opinion. If those rights are to be qualified by the larger requirements of modern democratic government, the restrictions should be narrowly and selectively drawn to define and punish the specific conduct which constitutes a clear and present danger to the operations of government. It seems plain to me that that evil has its roots in the coercive activity of those in the hierarchy who have the power to regiment the industrial group or who undertake to do so. To sacrifice the political rights of the industrial workers goes far beyond any demonstrated or demonstrable need. Those rights are too basic and fundamental in our democratic political society to be sacrificed or qualified for anything short of a clear and present danger to the civil service system. No such showing has been made in the case of these industrial workers" which justifies their political sterilization as distinguished from selective measures aimed at the coercive practices on which the spoils system feeds.

14 Whether the Act, being unconstitutional as applied to Poole, could be separably applied to civil service employees in other categories is a question I do not reach.

Syllabus.

OKLAHOMA v. UNITED STATES CIVIL SERVICE COMMISSION.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT.

No. 84. Argued October 17, 18, 1946.-Decided February 10, 1947.. A member of the State Highway Commission of Oklahoma, whose principal employment was in connection with an activity financed in part by loans and grants from a federal agency, served at the same time as Chairman of the Democratic State Central Committee. During his service on the Highway Commission, there was no general election in the State; but he advised with the Governor concerning a dinner sponsored by his Committee to raise funds for political purposes, called the meeting to order, and introduced the toastmaster. Pursuant to § 12 of the Hatch Act, 18 U. S. C. § 611, the United States Civil Service Commission determined that these activities constituted taking an “active part in political management or in political campaigns" and that this warranted his removal from the office of Highway Commissioner. It so notified him and the State. Pursuant to § 12 (c) of the Hatch Act, the State instituted proceedings in a federal district court to review this determination. Held:

1. In this proceeding, the State may properly challenge the constitutionality of § 12 of the Hatch Act. Pp. 134–142.

(a) Since § 12 (c) authorizes the reviewing court to decide whether any order or determination made under § 12 (b) is "in accordance with law," the State can properly challenge, and the court is authorized to consider and determine, the constitutionality of the law upon which the order under review is predicated. Massachusetts v. Mellon, 262 U. S. 447; Perkins v. Lukens Steel Co., 310 U. S. 113; Alabama Power Co. v. Ickes, 302 U. S. 464, differentiated. Pp. 135-139.

(b) If the contention that the State has no standing to challenge the constitutionality of the Act be treated as an objection to its capacity to bring the suit, it was waived by failure to object in the trial court. P. 134.

(c) If it be treated as meaning that no justiciable controversy exists as to the constitutionality of § 12, it is timely although first made in this Court. P. 134.