Author:Richard L. Hasen

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Political patronage has had a long tradition in parts of the United States, particularly in cities dominated by so-called "machine politics." Patronage entails government officials' exchanging government jobs or other discretionary government benefits for political support. In the first Mayor Daley's Chicago, for example, city employees were expected to work for the election of Democratic Party candidates as well as to contribute 2 percent of their salary to the party if they wanted to keep their jobs.

Beginning with a PLURALITY OPINION in the 1976 case of Elrod v. Burns, the Supreme Court has made it increasingly difficult for government officials to take party affiliation into account in making employment or contracting decisions. In Elrod, the newly elected Democratic sheriff of Cook County, Illinois sought to fire Republican employees in the Sheriff's office. Justice WILLIAM J. BRENNAN, JR. , in a three-Justice plurality opinion, held that firing a government employee based solely on the employee's party affiliation violated the employee's FIRST AMENDMENT right of FREEDOM OF ASSOCIATION. Two additional Justices concurred in the result that the sheriff's conduct violated the First Amendment.

The sheriff had argued that patronage practices could be justified on three grounds: (1) insuring effective government and the efficiency of public employees; (2) insuring employees' political loyalty so that employees

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would not block implementation of a new administration's policies; and (3) preserving the democratic process through a strong party system. Applying STRICT SCRUTINY, the Elrod plurality rejected the first and third of these interests outright. It stated that the sheriff's interest in effective and efficient government could be protected through the less restrictive means of discharging employees for cause. It also disbelieved that the elimination of patronage practices would bring about the demise of party politics.

The plurality agreed that the sheriff's second asserted ground of insuring employees' political loyalty was valid insofar as it applied to employees in "policymaking positions," but it did not serve to "validate patronage wholesale." In the 1980 case of Branti v. Finkel, a majority further explained that a government official could take party affiliation into account in firing employees only when such affiliation is "an appropriate requirement for the effective performance of the...

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