When are the private lives of public officials our concern?

Please note: This piece originally appeared in the St. Paul Pioneer Press.
Note also: I took some time off this summer from blogging; I hope to be more active again this fall.


When are elected officials’ personal lives a matter of legitimate public concern? U.S. Rep. Ilhan Omar of Minneapolis refuses to discuss her personal life, including her marriage and possible extramarital romantic relationships. She declares it is not the public’s business. While generally an elected official’s personal life is not the public’s business, there are cases where it is. For Omar, her personal life has become a public concern, and she has an obligation to respond to questions about it, much in the same way Donald Trump does.


Generally what others do in their private lives is none of our business. Traditionally in American culture there is a public/private wall. Matters that do not affect others are private.  If they do impact others perhaps the public has some right to know more or do something, but generally only to prevent harm to others. Our society is premised on the belief of a right to privacy; that no government official has the right to tell us what to do with our private life, including our sexual behavior.

The same rule traditionally applied to public officials. The focus in theory was on their stand on public issues. Running for or serving in public office did not constitute a privacy waiver.

This public-private wall when it came to public officials cut two ways: It respected the privacy of public figures and didn’t deter people from running for office out of fear embarrassing things in their private or family lives. And yet the wall hid many stories, the many extramarital affairs of President Kennedy for example, the affairs that so many other male elected officials had, as well as other issues. Should the public have been informed about them? Should we not hold public officials up to a higher standard of personal conduct?

One theory says that what public officials do in their private lives is not the public’s business so long as private behavior does not impact their job. Another holds that the public has a right to know and judge because personal behavior tells us something about public performance.

Supporting the latter theory, few of us can lead dual lives – be ethically good or bad in private but the opposite in public. Most of us live more integrated lives – who we are and how we behave in our personal lives is suggestive of our public behavior. Character matters. There is a connection between private and public ethics. This is what the “Me Too” movement is about in part. To be ethical as a public official one needs to be personally ethical. I as a voter may not know or grasp complex issues of public policy, but if I can trust a person’s character then I will trust that person to make good choices as an elected official.

Increasingly the belief that one’s personal life is a marker of public ethics accounts for part of the erosion of the right to privacy for public officials. So, too, does the increased celebrity culture of American politics, by which candidates for office make their personal biographies the centerpiece of their campaigns. Traditionally, the private lives of Hollywood or musical stars is the core of gossip and celebrity magazines. This is because these individuals often make their private lives public through interviews, their music, or simply out of desire to get media attention to help their careers. These individuals have generally chosen to put their private lives in play to advance their careers.

Public officials open their private lives to public scrutiny, too, when they put their personal behavior into play. A personal affair of a politician may not be the public’s concern, but if the candidate runs as a “family values” candidate it may be relevant. Additionally, elected officials who do things privately that break the laws they are sworn to uphold may be an example. Is it illegal to pay someone so that they will not disclose an affair you had with them? Generally no. But in the case of Donald Trump, paying Stormy Daniels to silence her so the story of the affair would not affect the 2016 presidential election violated federal campaign finance laws. Or maybe his business dealings implicate his presidential duties, which is why his tax records are relevant. He should be held accountable for his behavior to make sure his personal interests do not compromise his public duties.

Ilhan Omar refuses to comment on her private life. This is despite legitimate questions regarding her marriage status and how it may relate to immigration, tax, and Minnesota election laws. The Minnesota Campaign Finance and Public Disclosure Board already adjudicated that Omar misspent campaign funds and perhaps used them for private purposes. Now there is a Federal Election Commission complaint regarding her possible misuse of congressional campaign funds to pay someone who worked for her and with whom, as alleged in recent divorce filings, she may be romantically involved.

Trump, Class, and Identity Politics in the 2020 Presidential Campaign

Donald Trump has made it clear his 2020 presidential campaign is about identity politics. Unlike 2016 where  economic anxiety and nationalism were pretexts for race and identity, in 2020 white nationalism and racism toward immigrants, Muslims, and people are color are out front and central to his message.  Trump is no long Richard Nixon of 1968 using code words for race, he is George Wallace of 1968 overtly running on race.
Yet Trump is not the first and probably the last candidate to run on identity politics.  Appeals to it have a long American history, dating back to and encouraged by the constitutional framers.
America was born a nation of identity politics.  It was a nation defined by being White, Anglo-Saxon and Protestant (WASP), but also a nation hostile to Catholics, Jews, Native-Americans, and Blacks, the latter who were kept as slaves.  The US was defined both by who “we” were, and by the “other.”  The US is the only country that has the concept “Un-American”; no other national has a similar phrase to identify and define.  Identity is inborn in the logic of American politics, as scholars such as Richard Hofstadter and Perry Miller point out.
But while cultural values may drive identity politics, American political institutions inflame it.  Historian Charles Beard controversially contended in his 1913 An Economic  Interpretation of the Constitution that one the constitutional framers did was to recognize the potency of class politics and seek to transform it into identity or group politics. 
James Madison’s Federalist Paper number 10 opens recounting the dangers of factions or groups that can divide a society.  But he tells us that “the most common and durable source of factions has been the various and unequal distribution of property.”  Decrying the impracticality or desirability  of eradicating property differences as a threatening liberty, Beard seeks Madison’s call in Federalist 51 that “Ambition must be made to counteract ambition” and in Federalist 10 for “greater variety of parties and interests” to check one another.  Pit groups against one another, divide up the people, and prevent a majority from suppressing the rights of the minority who, in the eyes of Madison according to Charles Beard, were the property holders.
The Beardian gloss on the Constitution and the  Federalist Papers saw the brilliance of American politics in how the framers recognized the potency of American politics and sought to transform, sublimate, or displace it into interest group politics.  Eventually mainstream American political science would call a variant of this politics pluralism–the competition of groups for power desegregates it, producing the power-sharing supposedly characteristic of American politics. In theory, such politics would be less confrontational and conflictual than class, arguably allowing for more compromise and sharing of power as coalitions of groups change to pursue their interests.
Nice theory, but there is a problem.  Combine the institutional framework of America’s constitution and pluralism with the deep seated culture of identity and one gets a political system that institutionally encourages identity politics.  Of course racism toward African-Americans has always been there, as has that toward Native-Americans, Latinos, and Asian-Americans.  But over time persecution of the Irish, Italians, Catholics, and other groups have also been a mainstay of America and its politics.  Political campaigns have been defined by both by the “us” and who are the real Americans, and the “others,” those Un-Americans whom we need to purge from out soils.  Moreover, appeals to identity have proved to be anything but less conflictual than class politics; instead they have elicited some of the most passionate and hateful fights in American history.
Throughout American history class and identity have dueled as contenders driving American politics.  While class is always there, and has become more so as the gap between the rich and power in the US has exacerbated since the 1970s, the focus of American politics has mostly been dominated by identity politics in the last 50 years.  For progressives supportive of a civil rights agenda, there are good and important reasons to do that.  But as Tom and Mary Edsell pointed out in their 1991 Chain Reaction: The Impact of Race, Rights, and Taxes on American Politics, progressive identity politics produced a counter or chain reaction in reactionary identity politics that is at the core of the  ideology of Donald Trump’s political message to white working class America today.
Donald Trump’s attacks on Representative Ilhan Omar and three other female members of Congress who are persons of color simply elevates and removes any lasting doubt about intentionality of Trump’s narrative of identity politics in 2020.  It lays bare and returns American politics to its roots, one where race and identity are central.  It shows how combining cultural identity  that defines us versus them, with institutional design, and not party polarization produce a potent recipe for that politics that is driving the 2020 presidential campaign.

The Nixon-Trump Southern Strategy Goes North: The Midwest, Race, and the 2020 Presidential Election

Donald Trump’s recent tweet telling Congresswomen  Ocasio-Cortez, Tlaib, Pressley, and Omar  (all female and people of color) to leave the country is the most recent example of his effort to take Richard Nixon’s old southern strategy and apply it to the Midwest.  Trump is betting that it will work as effectively in 2020 as did it work for Nixon in 1968.  Whether it does, tells us a lot about where the US is today in terms of race relations.

Consider some American history.  From the US Civil War until the 1960s political scientists such as V.O. Key refer to the “Solid South.”   Republican Party opposed slavery and Democrats resisted civil rights.  The result was that the US South voted consistently for Democrats at all levels of office, but especially for president.  The south was a mainstay for the Democratic Party.

But beginning in the 1960s the Solid South cracked, and it did so over civil rights.  First it was the 1954 Supreme Court’s Brown v. Board of Education decision that demanded integrated schools.  Then it was President Lyndon Johnson’s signing of the 1964 Civil Rights bill (and where he reputedly declared that with the signing of the bill the Democrats had lost the south for the rest of the century).  These two events launched a chain reaction of events. In 1963  George Wallace inaugurated his Alabama governorship by declaring “"segregation now, segregation tomorrow, segregation forever," and he mounted his 1968 presidential campaign on opposition to civil rights.

While never as overtly racist as Wallace, Richard Nixon’s 1968 campaign centered on race.  Nixon ran as a law and order, war on drugs, get tough on crime president.  Given the unrest in urban cores in the US and the civil rights demonstrations, these phrases of Nixon were code words for race.  The strategy worked–Nixon won, and he did so by winning several southern states no Republican had secured in 100 years.

The Republican Southern strategy of appealing to race and white conservatism was well described by Kevin Phillips, the architect of Nixon’s 1968 campaign and author of the 1969 The Emerging Republican Majority.  It described a majority of white working class American who in reaction to civil rights and cultural progressivism, would break away from the Democrats and vote Republican.
Largely the strategy worked.  Subsequent Republicans appealed to race and also to economic insecurities and anxieties to move working class Democrats over.  At first they were called “Reagan  Democrats, then perhaps Tea Parties, then perhaps now Trump Democrats.  Race was covert in moving them.  But sometimes, such as in the presidential race between George  H.W. Bush and Michael Dukakis, race was overt.  In that campaign the “Willie Horton” ads depicted a Black felon who had raped and murdered a woman.  Polls and evidence suggested these ads were decisive in helping Bush win by peeling off white voters from the Democrats.  All this was part of the Republican Southern Strategy.

And it worked.  By the mid 1990s Democrats had all but disappeared from the South at all levels of office.  The solid south was now a Republican south.

Enter Donald Trump.  His 2016 presidential campaign was famous for at least two points.  One, it appealed to the economic and racial anxiety of white working class America.  Two, it was a Midwest strategy.  Attacks on Mexicans and immigrants as rapists, drug smugglers, and criminals who take American jobs and collect welfare were a mainstay of his 2016 campaign. No surprise that such rhetoric appealed to many southern whites, but what surprised many was its success in appealing to working class whites in the Midwest.    These were individuals who had seen their coal mine, auto, or steel plants disappear.  Trump offered an answer–it was immigration, immigrants, and off-shoring of jobs that was to blame.  Bringing back coal was less about really bringing back coal than it was code word for race.  And it worked.  Trump split the Midwest–one described as a firewall for Democrats, by winning all the states there except for Illinois and Minnesota.

What Trump did in 2016 was to take Nixon’s Southern Strategy that split the Solid South  in 1968 and use it in the Midwest to break the Democrats’ firewall.  Only now for 2020, the rhetoric  is more explicit–it looks more like George Wallace than Richard Nixon.  Attacking Representatives  Congresswomen  Ocasio-Cortez, Tlaib, Pressley, and Omar was explicitly and outwardly racist.  The House of Representatives will condemn it, the media will attack it, many Republicans will renounce it.  But it may work as an effective 2020 strategy, further motivating Trump’s base to show up and vote.

Longer term the Trump’s Southern Strategy in the Midwest will fail.  Demographic trends  point to working class whites as a decreasing percentage of the electorate each year.  But right now this group is still the largest voting bloc in America.  For Trump to win in 2020 he needs the Midwest, but he needs his base to come out to vote in even greater percentages than in 2016.  Were he to win in 2020 it suggests that America is not yet “post-racial.” that large chucks of the American electorate still resonates to racial cues, and that Nixon’s 1968 Southern Strategy is not dead but has shifted to the Midwest.

Unconventional Minnesota Political Wisdom and the 2020 Elections

Three conventional wisdoms pervade the 2020 Minnesota political landscape.  They are: 1) Donald Trump cannot win the upcoming Minnesota’s presidential race: 2) Ilhan Oman is safe to win re-election in the Fifth Congressional District; and 3) the DFL will hold the State House of Representatives and pick up control of the State Senate.  While all three of these scenarios are entirely possible and maybe likely, there are reasonable scenarios where all three could be wrong and that the Republicans have a good 2020 year in Minnesota.

            Consider first the case for convention wisdom.

            Minnesota is the most reliable Democratic Party presidential state in the country, with the last time a Republican winning its electoral votes was in 1972 with Richard Nixon.  Yes, Donald Trump got to within 50,000 votes of beating Hillary Clinton in 2016, but that was a fluke.  Clinton was a horrible candidate, was beaten badly by Sanders in the caucuses, and did not come back to campaign during the general election while Trump did, especially during the closing days of the election.

            No Republican has won state-wide office in Minnesota since Tim Pawlenty did it in 2006.  In 2018, Senator Klobuchar won 60% of the statewide vote, with Governor Walz nearly winning  54%, Senator Smith 53%, and Keith Ellison (for Attorney General), the weakest performing statewide DFLer at 49%.

            The DFL flipped 18 seats to retake the Minnesota House.  Had the State Senate been up for re-election, convention wisdom is that they would have flipped it too given that there are several vulnerable Republican senators located in suburbs that the DFL won in 2018 House  elections.

            In the Fifth Congressional District, Ilhan Oman won election with 78% of the vote. The last time the Republicans won Minnesota’s Fifth Congressional District was 1960.  Since taking office Omar has acquired a national base and has already raised at least $800,000 if not now nearly $1,000,000 for her reelection.

            As of June 019, Trump’s approval rating in Minnesota was barely 40%.

            Conventional wisdom looks terrific for the DFL going in to 2020 given these statistics.  Trump’s low approval should help the DFL easily hold the state house, pick up the state senate, assistant Tina Smith win reelection, and perhaps allow the Democrats to pick up the First and Eighth congressional seats lost in 2018.  Given all this, this should be little hope for optimism among Republicans and that Minnesota is a lost cause for them. 

Yet Minnesota Republican party chair Jennifer Carnahan  and Donald Trump are optimistic the Republicans can win  the state in 2020.  Perhaps it is not so bleak for the GOP next year and that the conventional wisdom that DFL holds unto may not be correct.

Here is the counterventional wisdom.

Trump’s core base remains highly motivated and if anything, even more united perhaps that before.  Trump has consolidated support in Minnesota outside the Twin Cities metro region, especially in the Iron Range, which used to be a strong DFL center.  The Iron Range has been moving Republican for years.  Trump has indicated he wants to move Minnesota in 2020—the only Midwest state he did not win in 2016—and he plans to campaign  here a lot.

Evidence suggests that Minnesota was moving Republican even before Trump and that the DFL base may be contracting.  In 2008 Obama won  42 of the 87 counties in the state, in 2012 he won 28, and in 2014 Dayton won 34.  In 2016 Clinton wins only 9 counties.  In 2018, Walz wins only 22 counties, Smith 20, Ellison 14.  From 2008 to 2016, the GOP presidential vote increased 47,500, the DFL vote decreased 205,000.  According to CNN exit polls, the partisan voter identification for  the DFL was 37%, for Republicans 35%.  This was the narrowest gap between the two parties in decades for a presidential election, and the lowest partisan identification for the DFL in decades according to presidential exit polls.

In the Fifth District, Omar has made several moves that potentially could alienate voters.  He comments about Jews and Israel, even if not accurately reported, have created a storm of controversy among many voters for her.  With a congressional district with a high percentage of Jewish voters, this is a cause of concern.  Omar is also dogged by campaign finance violations, new allegations about her immigration and marriage status, and perhaps concerns about false tax  returns.  She has become a major foil of Donald Trump who constantly tweets comments about her when he comes to Minnesota, and it is clear that part of his 2020 Minnesota presidential run will be to make it a referendum on Omar.

A critical realignment may place many of the large Twin Cities suburbs in the hands of the DFL for a long time.  This does potentially suggest DFL state senate pick ups there.  But as several 2019 special elections demonstrated, the DFL is vulnerable in rural and greater Minnesota.  The Senate currently is 35-32 GOP.  There may be about four vulnerable suburban GOP senators, but  there is an equal number of DFL ones in greater or rural Minnesota.  For the Democrats to capture the state senate  they may need to flip six or more seats in order to offset losses.

A counterventional GOP strategy begins with Trump campaigning heavily in the state, strengthening his support in rural and greater Minnesota areas.  Democrats did well in 2018 because Trump himself was not on the ballot and with him now actively campaigning in Minnesota it will energize the GOP even more.    Nationally, if Minnesota has become a swing state, it competes for Democrat dollars that could also go into Ohio or Florida, much richer and perhaps even more critical electoral vote states (Yet if Democrats nationally lose Minnesota or have to really defend it, they are in trouble in the 2020 presidential race).

As part of Trump’s 2020 Minnesota campaign, he and other Republicans ratchet up the attacks on Omar.  If her political and personal problems continue to mount, Omar because a potential problem for state Democrats who need to distance themselves from her.  Within her district, while very popular, it would not be impossible to beat her.  Scenario one:  Within a DFL primary someone challenges her.  In the last week reports have been that Minneapolis Councilwoman Andrea Jenkins’ name is being polled as a possible candidate.  In a district where identity is important, Jenkins could split DFL support, giving voters who dislike Omar’s political views and personal problems an alternative.  Scenario two:  Someone like Jenkins opts not to challenge in the DFL primary but go to a general election instead.  Possibly splitting the DFL vote and picking up the GOP in the district elects her.  Scenario three:  In a three way race featuring  Omar, Jenkins, and a centrist pro-Israel Republican, the latter sneaks in to win the Fifth.

Whether the counterventional wisdom or even the strategy is viable is a matter of much debate.  However, it does suggest that the DFL  may not have it easy in 2020 and that there are avenues for the GOP to do well in 2020.

Minneapolis Residential Discrimination: Why Eliminating Single-Family Housing with Neo-Liberal Zoning will Fail

The spatial distribution of housing in Minneapolis and all of the Twin Cities metro area is a

product of race and class.  Yet curing this discrimination does not reside in the elimination of single-family housing through changes in zoning or a comprehensive plan.  Such an approach, call it neo-liberal zoning, is destined to achieve the same results in land use that neo-liberalism achieved economically over the last 40 years domestically and internationally.
Residential housing patterns are the product of discrimination.  Private discriminatory preferences coupled with market decisions were enabled by racial covenants, government redlining, and zoning to produce the segregation patterns we see today. Countless books, such as Douglas Massey and Nancy Denton’s classic American Apartheid, tell this story well.  Nearly 25 years ago at the Institute of Race and Poverty at the University of Minnesota, I helped author a study pointing to the Twin Cities Metro region being the third most segregated urban area in the nation.  More recently, the University of Minnesota’s Institute on Metropolitan Opportunity located  persistent segregation in the placement of low income housing and education policy choices that concentrate low income people of color in specific neighborhoods and schools.
Fixing this segregation demands a metro-wide solution.  Yet Minneapolis has acted on its own via its 2040 comprehensive plan to address this problem.  It solution mostly includes elimination of single-family zoning, believing that intensification of land use along with market incentives will encourage the building of more housing.  Presumably this market-driven approach will mean more housing in more places, thereby fixing the economic and racial residential discrimination.
Both the New York Times and current Housing and Urban Development Secretary Ben Carson laud this market-driven fix.  Unfortunately, this approach will fail, exacerbating existing problems.
The Minneapolis approach to liberating the market to address its housing woes is neo-liberal zoning.  Neo-liberalism is the term used to describe a series of US domestic and international economic policies that begin with Ronald Reagan and Margaret Thatcher (in the UK)  and continued through Bill Clinton and Tony Blair and into the present with Donald Trump.  Neo-liberals believe that a return to market fundamentalism–cutting government regulation and business taxes along with globalization in free trade–would rejuvenate domestic and world economies.  The reality, as many economists such as Thomas Piketty, Amartya Sen, and Joseph Stiglitz have described and statistics show, is that neo-liberalism has produced the greatest gaps between the rich and poor in the US since before the Great Depression.  The rich have truly gotten richer, with the middle and lower classes gaining little.  Maybe we are overall richer as a nation as a result of neo-liberalism, but the externalities of these policies have produced powerful economic inequities that overlap with race.
The elimination of single-family zoning to encourage intensified land use across the  city rests on a similar logic that will yield parallel results.  In theory the breaking up of  large single family houses in South Minneapolis will produce more housing, but it is doubtful it will be low income or affordable.  Conversely, permitting the break up of existing homes in North Minneapolis into multi-family units or their demolishing and replacement with multiple units too will not guarantee affordable housing in integrated neighborhoods.  This is a recipe for gentrification as developers will enter areas, buy homes, and dislocate current residents by building  more high end units. 
The Minneapolis comp plan fix ignores the realities of how housing markets  work.  While there may be a local demand for affordable housing, housing is also a national market  sensitive to price, profit, and cost issues that often are not local.  Developers have few incentives to provide affordable housing, and Minneapolis’s neo-liberal zoning amounts to no more than government sanctioned market red lining.
Beyond the fact the neo-liberal zoning will not fix the segregation problems, elimination of single family zoning will produce additional problems.  One, there is an inherent value in preserving  a mixture of uses both from a historic preservation perspective, but also in terms of how a multiplicity of uses, ages, and styles of buildings and residential options appeals to the widest variety of individuals.  As Jane Jacobs, perhaps the greatest 20th century scholar on cities wrote in her Death and Life of Great American Cities, cities are generators of diversity, it is that which makes them interesting and centers of commerce.  Two, phasing out single family zoning does not eliminate a demand for these types of units and people seeking them, often middle class and those starting families, will flee to the suburbs. Three, for many, single family homes represent a sense of community, connectedness, and stability that are worth preserving.  Finally, given how interconnected  residential and education discrimination are, tackling one without addressing the other dooms solving both problems.
Minneapolis’s population is exploding and more housing is needed to address that demand.   This housing needs to address all income levels and needs, and be spatially distributed in a way that is economically and racially fair.  Unfortunately, Minneapolis’s neo-liberal zoning policies will do little to address these issues.

PS:  David Schultz is Hamline University Professor of Political Science.  He is a former city director of code enforcement, zoning, and planning and  a former housing and economic planner.  He also served on the St. Paul Housing Board of Appeals, appointed to it by then Mayor George Latimer.

Kellyanne Conway versus the Law: What is the Hatch Act and Why Do We Have It?

Note: I have written four books and at least seven articles that have discussed or examined the Hatch Acts.

Kellyanne Conway serves in her official capacity as White House counselor to President Donald Trump. She  has been accused by the Office of Special Counsel of violating the Hatch Act and should be dismissed from office.  Most people have not heard of the Hatch Act, yet the Act, actually several Acts, are important federal public administration laws.  They are part of a cluster of federal laws and Supreme Court decisions going back 150 years seeking to limit the ability of the president or his staff from using federal office or resources for partisan
At the end of the nineteenth century public administration scholars such as future president Woodrow Wilson, Frank Goodnow, and other reformers sought to clean up the federal government which had become corrupted by the patronage or spoils system.  The spoils system gave the president to politicize the federal bureaucracy and use it for partisan and political gain. The argument of the reformers was that the administration of government should be separate from politics.  Public administrations should be guided by the public interest, not partisan politics, and no one should be allowed to use their position for personal or party interest.
This move to separate politics from administration and prevent the president from politicizing the federal government began in 1876 when Congress passed a law that prohibited all members of the Executive branch who had received Senate confirmation from "requesting, giving to, or receiving from, any other officer or employee of the government, any money or property or other thing of value for political purposes."  In Ex Parte Curtis, 106 U.S. 371 (1882) the Supreme Court upheld the Act.
Second,  the 1883 passage of the Pendleton Act  initiated the creation of the federal service.  This Act and its extensions placed the employment of most federal employees under a merit system that limited the ability of the president to make hiring and firing decisions based on partisanship.
Third in United States v. Wurzbach, 280 U.S. 397 (1929) the Court upheld a 1925 Corrupt Practices Act that made it illegal for officers and employees of the United States to promote their candidacy or reelection in a party primary.  Justice Holmes, writing for the Court, ruled that Congress could provide measures that would limit the political pressure that employees might face to contribute money if they were to retain employment.   In both the Curtis and Wurzbach cases, the First Amendment rights of workers could be limited in order to encourage political neutrality and abate potential political corruption.
Fourth, starting in 1939, Congress passed a variety of acts that sought to place limits upon the ability of the Roosevelt administration to use the federal bureaucracy for political/partisan purposes. The Act, bared employees and officers of the executive branch from taking any active part in political management or in political campaigns.  It also barred them, while on government time or in their official capacity, from using their office for partisan purposes.  “Partisan purposes” includes among other things, making endorsements for candidates, working for them, using government resources, or in a way, shape or form using public office, position, or resources for partisan purposes.  The Hatch Acts make clear which government agencies and officials are covered by the law, and it also  makes it generally clear the type of permitted and prohibited political activity.
The primary purpose of the Hatch Acts was to depoliticize the federal government so that no president, subordinate, or political party could use the government for partisan benefit.  Twice the US Supreme Court was asked to adjudicate the constitutionality of the Hatch Acts, and the laws were upheld as not a violation of the First Amendment.
First in United Public Workers v. Mitchell, 330 U.S. 75 (1947) and then again in United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548 (1973)  the Court upheld against First Amendment challenges  the political activity bans in the Hatch Act.
In Mitchell the Court stated that "the interference with free expression is seen in better proportion as compared with the requirements of orderly management of administrative personnel” (94)   For the Court, several factors contribute to the need to limit the political activity of workers in order to promote good administrative management.  First, it notes how if political activity of federal workers hurts the civil service, its damage is no less than if the activity occurs after work hours (95-6).  Second, the Court indicated how free speech rights had to be balanced against the needs to protect a democratic society against the evils of political partisanship in the federal service (95-6).  The Court, in citing public administration scholarship as authority (97), argued that there was a need to limit political activity in order to promote "political neutrality for public servants as a sound element for efficiency” (97). Elsewhere, the Court also noted how an "actively partisan governmental personnel threatens good administration” (98), hurts political neutrality and that, overall, partisan political activity is a threat to efficiency, political neutrality, and discipline.
United States Civil Service Commission v. National Association of Letter Carriers was also a challenge to Section 9 of the Hatch Act and again the Court upheld the Act.  The Court stated that "federal service should depend upon meritorious performance rather than political service, and that the political influence of  federal employees on others and the electoral process should be limited” (548)  The basis of this claim rested in the majority's recounting the 19th century reforms directed against spoils and in their agreement that "partisan political activities by federal employees must be limited if the Government is to operate effectively and fairly” (547)  Political neutralization is thus required by the First Amendment.
The Hatch Acts decisions stated that the political neutrality of federal employees was dictated by the First Amendment.  Taxpayers had a right not to have public officials use public resources for  partisan purposes. However, the Hatch Acts need also to be read in conjunction with five Supreme Court decisions that also sought to depoliticize the federal bureaucracy, promote political neutrality, and respect the First Amendment rights of taxpayers and employees.
The patronage decisions (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)) placed limits upon the government using political affiliation as a factor in hiring, firing, and promotion decisions.  In these decisions the Court engaged in extensive debate concerning the merits of patronage with arguments over the supposed contributions that spoils had to the maintenance of democracy, political parties, public accountability, and administrative control.  These debates made significant reference to political science and public administration scholarship on these topics.  These debates were framed within the rhetoric of the neutral competence.  In all five of these decisions the Court finds 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. In all of these decisions, the Court also appeals to the ideology of neutrality and neutral competence.
If one reads the patronage, Hatch Act, Wurzbach, and Curtis cases together, they demonstrate  a commitment to taking the partisan politics out of public administration and service.  These laws have been instrumental and important tools in abating government corruption and promoting neutral government.  If, as the Office of Special Counsel has shown, Kellyanne Conway has made repeated  partisan statements in her official government capacity, she has clearly violated the Hatch Acts, as well as nearly 150 years of growing norms to prevent this type of abuse of government position or authority.  Should Trump not dismiss her it would be yet another example of how his administration has simply disregarded the law and norms governing America, seeking to limit presidential power.

Fixing Minnesota Government: Why Cultural Change Requires Structural Change

Merely pledging “cultural change” at the Minnesota State Capitol and hoping the politics will be different  is reminiscent of  the Scottish proverb "If wishes were horses, beggars would ride."  Declarations of good intentions are nice but naive:  It is not just about leaders saying they will work together, but instead the state government needs to build new structures and institutions if it truly wishes to change the culture and politics at the Capitol and avoid in the future the problems that defined the 2019 session.
Promises at the start of the session were made by all to play nice and cooperate.  Yet it is no surprise that the 2019 Minnesota legislative session ended with another gridlock that went into overtime and accomplished far less than most hoped.  It was also eventually a clandestine process where many critical decisions took place in secret.  The reason for all this is elementary–fundamentally nothing structural was changed in the process of how the legislature and the governor do their business.  The rules and processes for the last generation that have led to special budget sessions 80% of the time, three partial or near governmental shutdowns, and two major State Supreme Court fights were  the same one in place this year.
As the cliche goes, insanity is doing the same thing over and over and expecting to get different results.  Political insanity is the same–following the same process deployed in the past and expecting different results.  Expecting  different results this year simply because political leaders wanted it to be different ignores the incentives that have produced the breakdown at the Capitol.
Polarization is a fact of life there now.  It  is more than a result of partisan attitudes, a result of many forces, including deep-seated party differences over the role government should have.  But these attitudes are also reinforced by election rules that produce few swing districts that converge toward center, election rules that augment the power of divergent interest groups, and lobbyist and campaign finance laws that do little to curb the impact of big money.  All of these forces create political incentives not to cooperate, no matter what the intentions at the Capitol.
But in addition, the rules for doing business at the Capitol may be broken. There is perhaps too much work and too little time to do a near $50 billion budget under constitutional rules established decades ago.  The budget process does not work, the legislature flouts the single-subject and germaneness rules (and the State Supreme Court gives them a pass), and the most basic requisites of a democracy–respect for openness and transparency–are ignored.
Minnesota politics needs to be fixed, but somewhere in the last generation the appetite for reform died.  Back in the early 1990s Minnesota was a national leader in campaign finance reform, open government, lobbyist disclosure, and other innovations that gave the state high marks for it government.  But since then the state has done little, now meriting near failing grades from the Center for Public Integrity.  The state rested on its laurels, letting others surpass Minnesota in critical areas.  Fundamentally, there has not been a major piece of political or campaign reform adopted in Minnesota in over a generation.  The state is no longer a cradle for innovative good government.  Politics has changed in Minnesota, but the basic governing processes and institutions have not.
That is why it is not a surprise nothing changed this year in Minnesota.  Instead of opting for  political reform of the process, use partisanship and gridlock as a strategic tool to campaign on in the next election.  “Political reform” is beating up the other party, seeking single-party dominance where one can move an agenda without serious opposition.
This year there were pledges of cultural change, but no legislative proposals to enable that.  No legislator seems interested in political reform anymore.  Cultural change necessitates institutional change; alter the rules regarding how the process operates and you will create the incentives and capabilities to change the results.
So if the legislature and the governor really want cultural change, they need to consider rules changes and institutional reform.  What might these reforms be?  Here is a list of possibilities, some big and small, that need to be considered as either constitutional, statutory, or joint chamber reforms.
Change the budget process.  This includes timing of fiscal forecasts, when budget targets are set, and perhaps creating joint House-Senate committees to expedite decisions.  Also, change the law  tht allows inflation to count for state revenues but not obligations when making the budget and fiscal  forecasts.  Among the worst feature of Minnesota politics is budgetary dishonesty.
Adopt a permanent automatic continuing resolution law that would guarantee state funding at current levels plus inflation if no budget is adopted on time.
Serious adherence to the single-subject and germaneness rules.
Apply the rules of open meeting laws to all activities of the legislature.  This would require all conference committees, budget negotiations, and legislation to be done in public.  The current  closed door negotiations undermined the ability of legislators, especially new ones, to learn policy and negotiation skills, thereby undermining the development of new leadership.
Rethink campaign finance rules, including limits on special interest money contributions to the parties and legislative caucuses.
Strengthening of the public financing for campaigns.
Increase lobbyist disclosure rules so we know what legislators they are talking to and about what.
Creation of a non-partisan redistricting commission to draw legislative districts.
Replacement of current single-member, first-past-the-post election districts with multi-member ones selected with ranked choice voting.
Consider a constitutional convention to undertake a more comprehensive review of the structures of state government (the last major constitutional reforms were in the 1970s).  Many states  have changed their constitution more than one since statehood.  Minnesota more or less has the same one in place from 1857.
Certainly these are not the sum of possible political reforms the state should consider, but the important point is that real political reform needs to go back on to the legislative agenda.  Maybe the ugly 2019 session will the catalyst for that.