During the 19th century, public employees routinely campaigned and raised funds for the political parties or executives who appointed them. Now, government workers are limited in the political activity in which they may engage by the federal Hatch Act of 1939, as amended, and state and local “little Hatch Acts.” These acts restrict a person’s First Amendment right to political expression, but they pass muster with courts because they reduce political coercion of the bureaucracy and promote a nonpartisan, efficient government workforce. Congress retreated from some initial broader restrictions because it feared that denying so many Americans their right to engage in political activity was negatively affecting the quality of democracy.
The impact of this retreat—whether it is repoliticizing the bureaucracy—is unclear. The U.S. Office of Special Counsel publishes guides to the Hatch Act, provides advisory opinions to government employees contemplating political activity, and prosecutes violators.
The office divides federal employees into two groups: “Further restricted” employees in intelligence and enforcement-type agencies have little ability to participate in partisan politics; “less restricted” employees face fewer restrictions. What happens when a victorious political leader takes office and wants to replace current civil servants with loyal party supporters? Classified civil servants, who may be discharged only “for cause,” are protected, but exempt civil servants, who serve “at will,” are not.
Here, the First Amendment potentially bars the way because it forbids adverse action based on beliefs as well as on speech. In Elrod v. Burns, the Supreme Court held that patronage dismissals are allowed only if the person being discharged occupies a policy-making or confidential position.
A decade later, in Rutan v. Republican Party of Illinois (1990), the Court extended this holding to personnel actions other than discharge—including hirings, promotions, transfers, and recalls. Now, a government leader who uses party affiliation for any of these decisions must show that it is necessary for job performance.
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