If it is correct that Republican Doug Wardlow would fire all the Democrats in the Attorney General’s office if elected, he would be acting illegally, violating the Constitution, and opening him and the State up to numerous lawsuits that he would lose.
Media accounts indict that Doug Wardlow said at a recent fundraiser that he would fire all the DFLers “right away” in the Minnesota Attorney General’s office if elected. Whether such a statement contradicts prior statements of his that he would not politicize the office is another issue. However, while at one time it may have been true that to “the victor belongs all the spoils” when it comes to considering partisanship or party in public employment decisions, that is generally unconstitutional.
In the old era of spoils and patronage, partisanship or party affiliation could be considered in personnel decisions such as hiring, firing, and promotions. Yet those days are long since gone. In addition to civil service laws dating back to the nineteenth century limiting such a practice, the U.S. Supreme Court has weighed in, ruling that except in the case of some narrowly defined confidential and policy positions, it is a violation of one’s First Amendment free speech and association rights to have employment decisions in government decided on the basis of one’s political party or political views.
In a series of what are called the patronage decisions, that include Elrod v. Burns, 427 U.S. 347 (1976), Branti v. Finkel, 445 U.S. 507 (1979), Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990), Board of County Commissioners v. Umbehr, 518 U.S. 668 (1996), and O'Hare Truck Service Inc. v. City of Northgate, 518 U.S. 712 (1996), the Court ruled that the consideration of partisan affiliation or party activity in the hiring, firing, promotion, or letting of contracts was a violation of the First Amendment. It did so by declaring the use of partisanship or party preference is not a compelling governmental interest in employment decisions.
For example, in Elrod v. Burns Justice Brennan argued that patronage is a threat to democracy and popular government because of the advantage it gives to one party in the electoral process.
It is not only belief and association which are restricted where political patronage is the practice. The free functioning of the electoral process also suffers. Conditioning public employment on partisan support prevents support of competing political interests...As government employment, state or federal, becomes more pervasive, the greater the dependence on it becomes, and therefore the greater becomes the power to starve political opposition by commanding partisan support, financial or otherwise. Patronage thus tips the electoral process in favor of the incumbent party, and where the practice's scope is substantial relative to the size of the electorate, the impact on the process can be significant (356).
The Branti Court reaffirmed their holding in Elrod. In the latter Justice Stevens’ majority opinion stated that the real question in the case was "whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved” (445 U.S. at 518). The Court found that except in a few narrow circumstances, partisanship was not an appropriate requirement. In Rutan Justice Brennan stated that: “Today we are asked to decide the constitutionality of several related political patronage practices—whether promotion, transfer, recall, and hiring decisions involving low-level public employees may be constitutionally based on party affiliation and support. We hold that they may not” (497 U.S. at 65).
Justice O'Connor wrote for the Court in Umbehr and ruled that the First Amendment protects independent contractors. In O'Hare, Justice Kennedy wrote for the Court, also holding that independent contractors have First Amendment protections against municipalities considering support for a particular candidate influence the awarding of contracts. In reaching this conclusion, the Court stated that past precedents established by Elrod and Branti, holding that public employees could not be dismissed because of their political affiliation or views, extended to independent contractors. Kennedy also ruled that the First Amendment protects the rights of government contractors against dismissal for their political views or affiliation. The moral of the story: Independent contractors enjoy First Amendment protection against the termination of contracts with the government as a result of their expression of their political views.
Overall, in five cases, bipartisan Supreme Court majorities ruled unconstitutional what Doug Wardlow wants to do, if done in a wholesale fashion. He might be able to consider partisanship and political views for a small number of close senior advisors, but certainly not in the way he is quoted in the media.
Were Wardlow to fire all or some of the assistant attorneys general based on party, he would open up his office and the state to potentially scores of lawsuits. This alone is a problem. But second, if in fact the primary job of the Attorney General is to represent the State of Minnesota in Court, the question then would raise a legal ethics conflict of interest problem. An attorney dismissed from the AG’s office based on claims of partisanship would name the Attorney General and his office as well as the state of Minnesota as the respondent. What if a DFL governor objected and wished to oppose the firings, the AG could not be the one being sued and defend the State of Minnesota at the same time. There is a clear conflict of interest that would force the State to spend money to hire an outside law firm to sue the AG. Such a scenario creates numerous ethical and legal problems for the state.
Overall, whether Wardlow was serious about his intention to fire Democrats or it was simply a stump fundraising speech to rally Republicans is immaterial. An attorney general cannot take actions that violate clearly settled constitutional law, and were he to do so it would raise many legal and ethical problems for him and the state.
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