A DECISION which may change the nature of politics as practiced in Illinois and many other states was handed down by the U.S. Supreme Court at the end of June. The case was Elrod v. Burns, and the opinion was given by a divided court, with five agreeing, three dissenting, one not taking part. The decision prohibits the firing of a non policy-making patronage employee (who got his job by politics) when his party candidate loses. With this decision, it appears that only those patronage positions where policy-making is involved can change hands. In practice, when the "other" party wins, it is possible that other non-civil service jobs will become available through resignations or discharges for cause; and who knows what other devices will be tried.
The Elrod in the case is Democrat Richard J. Elrod, elected sheriff of Cook County in November 1970, succeeding Joseph I. Woods, a Republican. "It has been the practice of the Sheriff of Cook County when he assumes office from a Sheriff of a different political party, to replace non-civil service employees of the Sheriffs Office with members of his own party when the existing employees lack or fail to obtain requisite support from or fail to affiliate with that party," Justice Brennan said in the principal opinion.
The Burns of the case is John Burns, chief deputy of the process division. In the face of actual dismissal (or, in one case, threatened dismissal) he and others in the Sheriffs office (Frank Vargas, a bailiff; Fred L. Buckley, a process server; and Joseph Dennard, an employee) went to the federal district court, asking an injunction to stop Elrod from dismissing them. When the district court would not give the order, they appealed to the Court of Appeals, which did issue the injunction.
The employees' basic argument was that patronage dismissals restrict freedom of political belief and association, which are protected under the First and Fourteenth Amendments. But the constitutional guarantee of protection is not absolute, the court pointed out, and infringement of constitutional rights may be permitted for good cause. But in the present case, the court said, that if firing public employees on partisan grounds is to be permitted, "it must further some vital governmental end by a means that is least restrictive of freedom of belief and association in achieving that end, and the benefit gained must outweigh the loss of constitutionally protected rights."
The opinion listed and rejected the following reasons offered to justify patronage:
2. Patronage gives "employees of an incumbent party the incentive to perform well in order to insure their party's incumbency and thereby their jobs." The court: "means less intrusive than patronage still exist for achieving accountability in the public work force and, thereby, effective and efficient Government."
3. "The need for political loyalty of employees ... to the end that representative government not be undercut by tactics obstructing the implementation of policies of the new administration." The court: "Limiting patronage dismissals to policy making positions is sufficient to achieve this governmental end. Non policymaking individuals usually have only limited responsibility and are therefore not in a position to thwart the goals of the in-party."
4. The system for support of political parties places "considerate reliance on patronage" and will not work without it. The court: "we are not persuaded that the elimination of patronage practice or ... the interdiction of patronage dismissals, will bring about the demise of party politics."
Strongly worded dissents came from Justice Powell, joined by Justice Rehnquist, and Chief Justice Burger. Powell contended that "patronage hiring practices have contributed to American democracy by stimulating political activity and by strengthening parties, thereby helping to make government accountable." He said this was particularly true of minor offices where campaigns attract little attention. "Unless the candidates for these offices are able to dispense the traditional patronage that has accrued to the offices, they are also unlikely to attract donations of time and money from voluntary groups .... Patronage hiring practices also enable party organizations to persist and function at the local level." Justice Burger decried the majority decision as an example of "Constant inroads on the powers of the States to manage their own affairs" and thus "complicate our system and centralize more power in Washington."
If the decision is not weakened in future cases, it also has important implications for civil service systems. If applicants can obtain jobs by political influence, but cannot be discharged because of politics, one of the arguments for a civil service system is gone — that it protects capable personnel from arbitrary dismissal. On the other hand, if patronage loses its value to the political parties, will not the extension of merit systems follow?
26 / September 1976 / Illinois Issues