John Langford and Erica Newland in The Atlantic:
Political-patronage systems promote corruption at the expense of effective governance, and Americans grew dissatisfied with the cronyism and moblike rule that flowed from the spoils system. Following decades of effort to enact civil-service reform, momentum surged when a disgruntled office-seeker assassinated President James Garfield in 1881. In response, Congress passed the Pendleton Act in 1883 to “regulate and improve the civil service of the United States,” establishing a merit-based system for federal hiring.
Under the current federal civil-service regime, fewer than 4,000 federal employees—including constitutional officers, such as the attorney general and secretary of state, and top agency officials—serve at the president’s pleasure, fireable for political disagreements or pretty much any other reason. The overwhelming majority of the more than 2 million workers who daily serve the American people in the federal civil service are wisely protected from political firings.
That protection flows from something even deeper than the Pendleton Act and other federal statutes. In 1947, the Supreme Court was faced with a First Amendment challenge to the Hatch Act, which limits the extent to which most federal officials can engage in overt political activity while in office. The Court upheld the act but made clear that the First Amendment would prohibit Congress from directly restricting the ability to hold federal offices to members of one party, such as by enacting “a regulation providing that no Republican … shall be appointed to federal office.” Notwithstanding the Court’s guidance, the worst practices of political patronage continued to crop up in state and local governments, forcing the Supreme Court to elaborate the point and put a stop to spoils practices in a series of cases.
The most relevant case to our present-day situation began in 1980, when Republican Illinois Governor Jim Thompson issued an executive order freezing all hiring across state agencies absent express permission from his office. Requests for exceptions became routine, and an agency was set up inside the governor’s office to vet them. Five job-seekers sued, claiming that in practice, the order and exceptions were being used to create a political-patronage system favoring Republicans.
When the case reached the Supreme Court, the Court held that systems of political patronage like the one established by Thompson violate the First Amendment. Quoting one of its first patronage decisions, the Court reaffirmed that “conditioning public employment on the provision of support for the favored political party ‘unquestionably inhibits protected belief and association.’” Doing so “pressures employees to pledge political allegiance to a party with which they prefer not to associate, to work for the election of political candidates they do not support, and to contribute money to be used to further policies with which they do not agree.” It is “tantamount to coerced belief,” something the First Amendment plainly forbids. Nor did it matter that Thompson had not issued a direct order specifying that only Republicans would be hired, because “what the First Amendment precludes the government from commanding directly, it also precludes the government from accomplishing indirectly.”
There is an exception to the First Amendment bar on political hirings and firings. Those officials in legitimate policy making positions can be dismissed for political reasons without offending the Constitution. That’s because in America’s representative democracy, it is important that lawful policy reflects the political will of the voters, as voiced by the executive. But the executive cannot simply label large numbers of officials “policy makers” and render them all fireable at will. Instead, courts must look through labels to the substance of an official’s role and determine whether political alignment is necessary in that role. In any given dispute, the government has the burden of demonstrating that a particular position is in fact a policy-making one before the job-holder may be fired based on raw political allegiance.