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What Is the Hatch Act and Why Was Established in 1939?

What Is the Hatch Act and Why Was Established in 1939?


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The Hatch Act was signed into law in 1939 to keep federal employees from engaging in political activities while they’re on the job. It was also designed to ensure federal employees don’t face political pressures as they perform their work. While numerous federal employees have been cited with violating the act over the years, high-ranking political appointees have rarely faced any repercussions.

The act was initially passed in reaction to a scandal during the administration of Franklin D. Roosevelt. Sponsored by, and named after, New Mexico Senator Carl A. Hatch, a Democrat nicknamed “Cowboy Carl,” the legislation defines political activity as “any activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group. Violations of the Hatch Act carry serious penalties, which may result in disciplinary action or removal from Federal employment."

FDR Ally Promised Jobs, Promotions for Campaigning

Donald Sherman, deputy director of the nonpartisan, nonprofit Citizens for Responsibility and Ethics in Washington, and former senior counsel on the Senate Homeland Security and Governmental Affairs Committee, says the Hatch Act was created following concern that FDR had pressured federal employees from the Works Progress Administration, a relief agency, into working on campaigns of candidates who were his allies or supporters.

According to Time magazine, Harry Hopkins, the director of the WPA and a Roosevelt crony, "had promised jobs and promotions within the WPA in exchange for votes in the U.S. Senate election in Kentucky. During the Great Depression, such promises would have carried great weight."

The federal government, Sherman says, is supposed to not only represent, but also serve all Americans regardless of their party affiliation.

“The other function of the Hatch Act is preventing, say a veteran who calls the local VA about services, or someone who calls the CDC for information about COVID-19, from being asked the question, ‘Well, are you a Republican or a Democrat? Do you support, or will you support, this president?’” he says.

President and VP Exempt From Parts of Hatch Act

According to the U.S. Office of Special Counsel (OSC), which oversees violation complaints, except for the president and vice president, the Hatch Act covers all federal civilian executive branch employees, including those of the U.S. Postal Service. These employees may not use their official authority or influence to interfere with or affect election results, solicit, accept or receive donations or contributions for a partisan political party, candidate or group, run for partisan political office, engage in political activity while on duty, on federal property, while wearing a uniform or official insignia or using any federally owned or leased vehicle.

Formally named the "Act to Prevent Pernicious Political Activities," Hatch also states that while at work, federal employees may not distribute or display campaign materials, perform campaign-related chores, wear or display partisan buttons, T-shirts or signs, make political contributions to a partisan political party, candidate or group, post comments to a blog or a social media site, or use email or social media to distribute, send, or forward content advocating for or against, a partisan political party, candidate or group.

The president and vice president are exempt from the civil provisions of the Hatch Act because those positions are both officeholders and candidates.

“You can’t really take off both hats when you run the government 24 hours a day,” Sherman explains. “You can’t tap out of being president without resigning your post. So there’s a carve-out for them for the civil provisions of the Hatch Act, which basically means they can still campaign while on the job, unlike other folks.”

However, the president and vice president are not exempt from criminal Hatch Act provisions, which prohibit intimidation, threats, commands or coercion of federal government employees to engage, or not engage, in any political activity, such as casting votes, making political contributions or working on behalf of any candidate. “Any person who violates this section shall be fined under this title or imprisoned not more than three years, or both,” the code states.

Hatch Act Amendments and Violations

Since its enactment, the Hatch Act has been amended a couple of times. A 1940 amendment extended the act to cover certain state and local government employees with salaries mostly paid using federal money. In 1993, under President Bill Clinton, the act was further amended to allow most federal employees to engage in voluntary, partisan political activities during their off-duty time, away from federal premises.

And, the Hatch Act Modernization Act of 2012, passed under President Barack Obama’s administration, altered the status of District of Columbia employees and made changes to enforcement, allowing more disciplinary actions.

Should the OSC find disciplinary action is warranted, it provides a complaint and statement of facts to the employee and the Merit Systems Protection Board. Current Hatch Act penalties include job removal, reduction in grade, debarment from federal employment for up to five years, suspension, reprimand or a civil fine, according to the Congressional Research Service, which adds that employees are entitled to representation and a hearing.

Much gray area, however, surrounds the actual enforcement of the Hatch Act. Generally, the independent OSC points out violations and then the Merit Systems Protection Board or even the president, doles out the discipline. While civil servants can lose their jobs if found in violation of the Hatch Act, punishment is rare for political appointees.

Recent high-profile Hatch Act violations include Health and Human Services Secretary Kathleen Sebelius, in 2012, for making a political speech during an official government event. In 2016, Housing and Urban Development Secretary Julián Castro was found in violation during a media interview for touting presidential candidate Hillary Clinton while appearing with the official HUD seal.

During the Trump administration, the OSC found at least 13 violations. Among them were six Trump officials found in violation for posting partisan tweets to their Twitter accounts in 2018, and violations by White House counselor Kellyanne Conway.

In all of those cases, no action was taken by the Obama or Trump administrations.


The Hatch Act

The Hatch Act is the 1939 law that regulates the political activities of federal employees and some state and local government workers. The legislation originally prohibited nearly all partisan activity by federal employees, banning them from endorsing candidates, distributing campaign literature, organizing political activities and holding posts in partisan organizations.

On October 6, 1993, former President Clinton signed the Hatch Act Reform Amendments (P.L. 103-94) modifying the 1939 law to allow federal workers to participate in partisan political activities during off-duty hours. Former FMA National President Michael B. Styles was proud to represent FMA at the White House ceremony for the signing of this landmark legislation. These reforms allow federal employees to participate in political activity. You are able to contact your elected officials, petition them to vote on bills, and donate to election campaigns.

You are prohibited, however, from doing these things on federal time and with federal resources. This means, petitions cannot be sent while you are at work, with your government issued computer, or using your government e-mail address. But once you know these restrictions, it is easy to work around them and ensure your voice is heard. Additionally, FMA worked with Members of Congress to enact further reforms that amend the penalties of violation. Now, the Office of Special Counsel reviews infractions and judges appropriate repercussions, instead of outright termination of an employee.

Despite these revisions, you are still limited in your political actions. Here is a list of Dos and Don?ts:

  • be candidates for public office in nonpartisan elections
  • use official authority or influence to interfere with an election
  • register and vote as they choose
  • assist in voter registration drives
  • solicit or discourage political activity of anyone with business before their agency
  • campaign for or against referendum questions, constitutional amendments, municipal ordinances
  • solicit or receive political contributions (may be done in certain limited situations by federal labor or other employee organizations
  • express opinions about candidates and issues
  • be candidates for public office in partisan elections
  • wear partisan political buttons on duty
  • hold office in political clubs or parties
  • engage in political activity while:
  • attend political fundraising functions
  • attend and be active at political rallies and meetings
  • sign nominating petitions
  • join and be an active member of a political party or club
  • campaign for or against candidates in partisan elections
  • make campaign speeches for candidates in partisan elections
  • distribute campaign literature in partisan elections
  • contribute money to political organizations

Employees of the following agencies (or agency components), or in the following categories, are prohibited from engaging in partisan political activity:

Administrative Law Judges (positions described at 5 U.S.C. ? 5372)
Central Imagery Office
Central Intelligence Agency
Contract Appeals Boards (positions described at 5 U.S.C. ? 5372a)
Criminal Division (Department of Justice)
Defense Intelligence Agency
Federal Bureau of Investigation
Federal Elections Commission
Merit Systems Protection Board
National Security Agency
National Security Council
Office of Criminal Investigation (Internal Revenue Service)
Office of Investigative Programs (Customs Service)
Office of Law Enforcement (Bureau of Alcohol, Tobacco and Firearms)
Office of Special Counsel
Secret Service
Senior Executive Service (career positions described at 5 U.S.C. ? 3132(a)(4))

Federal employees desiring further clarification or legal opinions on permissible and prohibited political activities should visit the Hatch Act: Political Activity page of the U.S. Office of Special Council.

FMA?s lobbyists are working hard in D.C. to present the Association?s viewpoint to lawmakers, but your grassroots efforts are critical to our success. Many of FMA?s chapters have great working relationships with their Representatives and Senators, benefiting the Association?s legislative agenda and ensuring they fully understand how you and your colleagues serve the country on a daily basis.

Advocating Excellence in Public Service

Why Join FMA?

The Association’s considerable political influence stems from a team approach to advocacy. When lawmakers or agency decision-makers consider proposals that could adversely affect the management of the federal workforce, they quickly realize that TEAM FMA stands together to protect the interests of all its members.


Hatch Act

Enacted in 1939, the Hatch Act (5 U.S.C.A. 7324) curbs the political activities of employees in federal, state, and local governments. The law's goal is to enforce political neutrality among civil servants: the act prohibits them from holding public office, influencing elections, participating in or managing political campaigns, and exerting Undue Influence on government hiring. Penalties for violations range from warnings to dismissal. The law's restrictions have always been controversial. Critics have long argued that the act violates the First Amendment freedoms of government employees. The U.S. Supreme Court has disagreed, twice upholding the law's constitutionality. Congress has amended the Hatch Act several times since 1939. In 1993, a number of amendments to the act sought to limit the effects of political patronage in federal hiring.

The Hatch Act grew out of nineteenth-century concerns about the political activities of federal employees. As early as 1801, President Thomas Jefferson issued an Executive Order that said federal workers should neither "influence the votes of others, nor take part in the business of electioneering." He saw such activities as "inconsistent with the spirit of the Constitution." Jefferson was primarily concerned with what government employees did while in office subsequently, concerns developed in another area. Throughout the nineteenth century, appointments to the federal bureaucracy were viewed as the natural spoils of political success. The prevalent awarding of jobs for political loyalty created a so-called spoils system and, ultimately, a reaction against it.

The long process of neutralizing politics in federal employment continued into the twentieth century. Attempts began with the Pendleton Act of 1883 (22 Stat. 403), a comprehensive anti-patronage law named after its sponsor, Senator george h. pendleton , who argued that "the spoils system needs to be killed or it will kill the republic" (14 Cong. Rec. 206 [1882]). The law sought to eliminate patronage by insulating federal employees from coercion. It provided that they could not be fired for refusing to work on behalf of a candidate or for choosing not to make campaign contributions. In 1907, President Theodore Roosevelt instituted even broader controls through Executive Order 642. Its two major prohibitions addressed employees in the executive civil service and the larger class of federal civil servants. The former were forbidden to use their authority to interfere in elections, and the latter were barred from taking part in political management or campaigning. This order marked the first time that federal employees had limits placed on their First Amendment right to engage in political speech.

The passage of the Hatch Act in 1939 combined the prohibitions of earlier executive orders and the Pendleton Act. The act includes restrictions on political activity for the whole federal bureaucracy. The act stated,"[N]o officer or employee in the Executive Branch of the Federal government, or in any agency or department thereof, shall take any active part in political management or in political campaigns" (ch. 410, § 9(a)). The measure received bipartisan support in a response to concern about the New Deal—President franklin d. roosevelt 's economic program for relieving the effects of the Great Depression—which significantly increased the ranks of federal employees. Congress wanted to rein in Roosevelt's power, especially following allegations that he had used Works Progress Administration employees to influence the 1938 congressional elections. Opponents of patronage in general and enemies of Roosevelt in particular thought the New Deal represented an opportunity for the president to meddle with elections while perpetuating his hold on the White House.

Congress increased the scope of the Hatch Act in 1940 by extending its restrictions to employees of state and local governments that receive federal funds (Act of July 19, 1940, ch. 640, 54 Stat. 767), although it cut back certain applications of this measure in 1974. At various times it has also increased or decreased the penalties for Hatch Act violations—notably, by including suspension without pay as a lesser penalty. In 1993, Congress made yet more changes aimed at curtailing patronage in jobs: amendments to 5 U.S.C.A. § 3303 restricted elected officials from making unsolicited recommendations for job applicants seeking federal employment. States, meanwhile, have broadly incorporated the principles of the Hatch Act in their own statutes, which have also undergone revision over time.

Debate over the Hatch Act has been vigorous since its inception. Critics have portrayed it as an unfair restriction on the First Amendment rights of government employees, especially violative of their fundamental right to engage in political speech. This argument formed the basis of an early suit that the U.S. Supreme Court heard in 1947, United Public Workers of America v. Mitchell, 330 U.S. 75, 67 S. Ct. 556, 91 L. Ed. 754. In sustaining the legality of the Hatch Act, the Court balanced individual speech rights against the "elemental need for order," and found the latter more important. The Court rejected another challenge to the law in 1973 in United States Civil Service Commission v. National Ass'n of Letter Carriers, 413 U.S. 548, 93 S. Ct. 2880, 37 L. Ed. 2d 796. Opponents continued to attack these rulings throughout the 1990s. "Unfortunately for those individuals who have chosen a career in the federal public service," argued author Michael Bridges in a 1993 law review article, "the Court has found that Congress may place an asterisk beside their First Amendment rights."

Further readings

Bridges, Michael. 1993. "Release the Gags: The Hatch Act and Current Legislative Reform." Capital University Law Review (winter).

Feinstein, Andrew A., and Douglas K. Nelson. 1988. "Hatch Act Reform." Federal Bar News and Journal (July/August).

Gely, Rafael, and Timothy D. Chandler. 2000. "Restricting Public Employees' Political Activities: Good Government or Partisan Politics?" Houston Law Review 37 (fall).

Polley, James D. 1994. "Hatch Act Reform Amendments of 1993." Prosecutor (September/October).

Segal, Lydia. 1998. "Can We Fight the New Tammany Hall?: Difficulties of Prosecuting Political Patronage and Suggestions for Reform. Rutgers Law Review 50 (winter).


What Is the Hatch Act and Why Was Established in 1939? - HISTORY

By Joshua P. Geist
Goodrich & Geist, P.C.

There are few subjects more in the news today than the Hatch Act. Scroll through any of your favorite social media and on any given day the Act will be trending.

So what is the Hatch Act, why are we really only learning about it now, and why it is important in 2020?

The Hatch Act is a federal rather than a state law. Its full name is the Hatch Act of 1939, An Act to Prevent Pernicious Political Activities. Every federal civilian employee is covered by the Hatch Act except for the vice-president and the president.

Federal employees are divided into two categories as regards the Hatch Act: Less Restricted and Further Restricted, and even part-time employees are covered by the Act.

Per a 2020 opinion by the U.S. Office of Special Counsel, most federal executive branch employees are considered Less Restricted under the Hatch Act. Less Restricted employees may take an active part in partisan political management or partisan political campaigns. However, Further Restricted federal executive branch employees are prohibited from engaging in partisan political management or partisan political campaigns.

Further Restricted employees are any employee of one of a large number of federal agencies, including the Central Intelligence Agency, the Criminal Division of the Department of Justice, the Federal Bureau of Investigation, and the National Security Agency.

The motivation behind the 81-year-old act is easy to understand. So that we as a nation can prevent abuse of power and corruption, federal employees &mdash especially those engaged in fundamentally nonpartisan activities such as diplomacy &mdash are prohibited from engaging in a range of political activity. This was deemed important in 1939 and it is arguably more important in 2020 than at any time since the signing of the Act.

As part of the 2020 Republican National Convention, the campaign to re-elect Donald J. Trump decided to hold part of the convention in the White House and to broadcast a speech from Jerusalem by the United States Secretary of State. If just these two actions do not shatter the letter of the Hatch Act, there is a weighty argument to be made that they obliterate the spirit of the law. Some political and legal observers were almost speechless as they saw these acts as severe and intentional violations of an Act created to protect the foundations of democracy.

While some pundits have argued that the Hatch Act exemption of the President and Vice-President is a kind of legal escape valve for many of the events of the RNC, it is clear that many Further Restricted Employees must have been involved in, for example, setting up the First Lady&rsquos RNC speech at the White House. While COVID-19 has admittedly rounded the edges of certain activities the political establishment may have thought twice about in more normal times, it is difficult to make a cogent argument that the Hatch Act has not &mdash at least on its face &mdash been violated multiple times during the RNC.

But even if this is the case, does the Hatch Act have teeth in 2020? While loud voices on the social medium of your choice may rail against perceived egregious violations, how enforceable is the Hatch Act today?

Probably not very, is the most practical answer to materialize. The most realistic punishment for the Trump administration&rsquos perceived violation of the Hatch Act could come when the national electorate votes in just over two months. The timeline for a Congressional investigation and any sanctions (such as another Impeachment) that might naturally follow are simply unrealistic given the timing of these violations. As happens so frequently in law and politics, what is written can dictate one direction while pressing practical considerations can make enforcement virtually impossible.

How history will treat current violations of the Hatch Act as well as other federal election regulations that may have their elasticity tested over the next weeks remains to be seen. There are strong historical antecedents that speak to federal officials having a black mark on their careers after involvement in an administration accused of corrupt activities. Perhaps the real teeth of the Hatch Act and the system&rsquos ability to penalize its violators will only be seen months and years from now as legal academics may trace the career paths of some of the people in roles under today&rsquos spotlight.

As we move forward towards the federal election, it is worth considering the Hatch Act as well as other laws relating to accepted political behavior as we trace the acts and omissions that may influence the nation&rsquos political future as they test the viability of long standing laws and the judicial interpretations thereof.

Joshua Geist is a trial lawyer who represents individuals and families harmed by careless corporations, individuals and insurance companies. He is a partner with Goodrich & Geist, P.C. in Pittsburgh.

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What is the Hatch Act? Here Are 4 Things You Should Know

The Hatch Act was passed in 1939 as a response to issues that surfaced claiming federal employees were used to endorse candidates for the 1938 congressional elections. The main purpose behind passing this Act is to restrict federal public servants in joining political campaign activities. This is because their authority can be used to interfere with the result of the elections.


In 1940 Congress amended the act to include state and local employees whose salaries included federal funds. The amendment created campaign expenditure limits on political parties and contribution limits on individuals. In 1993 Congress again amended the Hatch Act to allow most federal employees to engage actively in partisan political management and political campaigns. The amendment allowed employees to express opinions on political subjects more openly. Specific exceptions to this general policy, as well as general prohibitions, are included in the Office of Personnel Management Regulations.

The Supreme Court has twice considered challenges to the Hatch Act and has twice upheld its constitutionality. The Court applied a balancing test between the presumptively valid interests of the government in regulating its employees with the individual&rsquos interests in free speech.

In United Public Workers of America v. Mitchell (1947), the Court balanced the rights of individuals to free speech with the &ldquoelemental need for order.&rdquo In upholding the enforcement of the law, the Court deferred to Congress&rsquos judgment regarding the amount of political neutrality necessary for federal employees. It explained that Congress was not unconcerned about its employees and that it had left &ldquountouched full participation by employees in political decisions at the ballot box and forbids only the partisan activity of federal personnel deemed offensive to efficiency.&rdquo In dissent, Justice Hugo L. Black argued that the rights to vote and privately express political opinions were part of the broader freedoms protected by the Constitution, and he saw no reason to limit the range of freedoms for federal employees.

The Hatch Act, introduced by Senator Carl Hatch (pictured here in 1939), was amended many times to allow federal employees more political expression. (Image via Library of Congress, public domain)

The Court again reviewed the Hatch Act as amended in United States Civil Service Commission v. National Association of Letter Carriers (1973). In this case the Court overturned a lower appellate court decision and upheld the constitutionality of the Hatch Act&rsquos ban on federal employees&rsquo ability to take an active part in certain political activity. The Court believed that Congress had enacted a constitutional balance between the interests of an individual employee and the government-employer&rsquos interests in maintaining limitations on partisan political activities.

The Court found that Congress used the act to avoid &ldquopracticing political justice&rdquo and also to avoid the appearance of currying federal government favor through political activity. Further, the Court explained that by limiting the political activities of federal employees, Congress protected the employees&rsquo interests to be free from tacit coercion to become politically active. The 1993 amendments superseded this opinion, at least with respect to most federal employees.


Why Federal Employees Can Thank FDR for Some Restrictions on Their Tweets

P resident Donald Trump&rsquos social media director Dan Scavino is under fire for sending a tweet over the weekend that called for the primary-election defeat of Michigan GOP congressman John Amash, a member of the so-called Freedom Caucus group that the President implied he might go after during the 2018 midterm elections if they did not support his attempt to overhaul healthcare.

The reason why the tweet is so controversial is that some see it as a violation of the Hatch Act, which generally prohibits civilian officers and employees in the Executive Branch from &ldquousing their official authority or influence to interfere with an election.&rdquo Though they are free to express their opinions privately and participate in the political process as citizens, they cannot participate in or advocate for partisan political activities while they’re on the clock, on federal property, in a government vehicle or wearing anything that identifies them as a federal employee. This is not the first time the Hatch Act has made news in recent memory.

Former White House ethics lawyers Daniel Jacobson and Richard W. Painter, who worked in the administrations of Barack Obama and George W. Bush, respectively, argued in response to the tweet that Scavino’s Twitter avatar was a photo of him in the White House and that his bio at the time identified him as a federal employee, which may mean that his statement would still fall under the law’s scope. However, ABC News quoted an unnamed White House official arguing that the tweet is not a violation of the act because it came from Scavino’s personal account.

One thing that is clear: when the law was created, those who crafted it weren’t exactly worried about Twitter.

The man who conceived the “Act to Prevent Pernicious Political Activities” was New Mexico Democratic Senator Carl &ldquoCowboy Carl&rdquo Hatch, and the law was passed in 1939.

It came about shortly after President Franklin Delano Roosevelt unsuccessfully tried to &ldquopurge&rdquo members of Congress from his own party who didn&rsquot fully support his policies, when it turned out that attempts to sway the vote may have gone beyond the President’s stumping for his preferred candidates.

According to FDR scholar William Leuchtenburg, a series of newspaper articles alleged that the Works Progress Administration (WPA), one of the New Deal&rsquos biggest relief agencies, had been involved in what was essentially vote buying. The core of the charge was that WPA director Harry Hopkins &mdash a powerful New Deal administrator and close associate of the President’s &mdash had promised jobs and promotions within the WPA in exchange for votes in the U.S. Senate election in Kentucky. During the Great Depression, such promises would have carried great weight. “It was never clearly demonstrated that this happened,” Leuchtenburg says, “but in general, [the newspaper company] Scripps-Howard was a liberal chain well-disposed towards FDR, so the allegations got a lot of credence.”

And the Kentucky case wasn’t everything. Susan Dunn, author of Roosevelt’s Purge: How FDR Fought to Change the Democratic Party, points to another similar incident involving Hopkins and a Senator named Guy Gillette, who was elected in a 1936 special election for a U.S. Senate seat in Iowa and who was “one of FDR&rsquos least favorites in the Senate,&rdquo as Dunn puts it.

Sure enough, Gillette got a challenger: 35-year-old Congressman Otha Wearin, who supported FDR&rsquos executive reorganization plan, but was better known for participating in a hog-calling contest on the Capitol steps and for his annual proposals to move the nation&rsquos capital from Washington to the Midwest. Hopkins told The Des Moines Register that, if he were an Iowa voter, he would go for Wearin, “on the basis of his record,” prompting outrage from those in Iowa and Washington alike who felt that Hopkins was interfering inappropriately.

That&rsquos when Hatch, considered a moderate Democrat, introduced an amendment to a relief spending bill. His amendment would prohibit officials and employees of federal relief programs from engaging in partisan political activities. Though the Senate rejected Hatch&rsquos original proposal, a version passed in July 1939, after a Senate Committee on Campaign Expenditures found that Works Progress Administration funds and manpower had been used for political purposes in 1938 in three states &ldquosometimes under pressure,” as John W. Jeffries writes in his new book A Third Term for FDR: The Election of 1940.

&ldquoThe Hatch bill effectually demolished the national Roosevelt political machine,&rdquo TIME reported in the July 31, 1939, issue.


Contents

Widespread allegations that local Democratic Party politicians used employees of the Works Progress Administration (WPA) during the congressional elections of 1938 provided the immediate impetus for the passage of the Hatch Act. Criticism centered on swing states such as Kentucky, [6] Tennessee, Pennsylvania, and Maryland. In Pennsylvania, Republicans and dissident Democrats publicized evidence that Democratic politicians were consulted on the appointment of WPA administrators and case workers and that they used WPA jobs to gain unfair political advantage. [7] In 1938, a series of newspaper articles exposed WPA patronage, and political contributions in return for employment, prompting an investigation by the Senate Campaign Expenditures Committee, headed by Sen. Morris Sheppard, a Texas Democrat. [8]

Despite that investigation's inconclusive findings, many in both parties determined to take action against the growing power of the WPA and its chief administrator, Harry Hopkins, an intimate of President Franklin Roosevelt. The Act was sponsored by Senator Carl Hatch, a Democrat from New Mexico. At the time, Roosevelt was struggling to purge the Democratic party of its more conservative members, who were increasingly aligned with the administration's Republican opponents. The president considered vetoing the legislation or allowing it to become law without his signature, but instead signed it on the last day he could do so. His signing message welcomed the legislation as if he had called for it, and emphasized the protection his administration would provide for political expression on the part of public employees. [9]

The 1939 Act forbids the intimidation or bribery of voters and restricts political campaign activities by federal employees. It prohibits using any public funds designated for relief or public works for electoral purposes. It forbids officials paid with federal funds from using promises of jobs, promotion, financial assistance, contracts, or any other benefit to coerce campaign contributions or political support. It provides that persons below the policy-making level in the executive branch of the federal government must not only refrain from political practices that would be illegal for any citizen, but must abstain from "any active part" in political campaigns, using this language to specify those who are exempt: [10]

  • (i) an employee paid from an appropriation for the Executive Office of the President or
  • (ii) an employee appointed by the President, by and with the advice and consent of the Senate, whose position is located within the United States, who determines policies to be pursued by the United States in the nationwide administration of Federal laws.

The act also precludes federal employees from membership in "any political organization which advocates the overthrow of our constitutional form of government", [11] a provision meant to prohibit membership in organizations on the far left and far right, such as the Communist Party USA and the German-American Bund. [12]

An amendment on July 19, 1940, extended the Act to certain employees of state and local governments whose positions are primarily paid for by federal funds. It has been interpreted to bar political activity on the part of employees of state agencies administering federal unemployment insurance programs and appointed local law enforcement agency officials with oversight of federal grant funds. The Hatch Act bars state and local government employees from running for public office if any federal funds support the position, even if the position is funded almost entirely with local funds. [13]

The Merit Systems Protection Board and the Office of Special Counsel (OSC) are responsible for enforcement of the Hatch Act. [14] During the Trump administration, watchdog group CREW claimed the White House or the OSC overlooked apparent Hatch Act violations until groups like CREW or government whistleblowers filed official complaints. [15] [16]

The Supreme Court has several times declined to hear challenges to the act and has twice upheld its constitutionality. In a 1947 case brought by the CIO, a divided court found that Congress had properly exercised its authority as long as it had not affected voting rights. Justice William O. Douglas objected to the assertion that "clean politics" required the act's restrictions: "it would hardly seem to be imperative to muzzle millions of citizens because some of them, if left to their constitutional freedoms, might corrupt the political process." [17] In 1973, in a case brought by the National Association of Letter Carriers, a 6 to 3 decision found the act neither too broad nor unclear. The court's three most liberal justices, Douglas, William J. Brennan, and Thurgood Marshall, dissented. Douglas wrote: "It is no concern of government what an employee does in his or her spare time, whether religion, recreation, social work or politics is his hobby, unless what he or she does impairs efficiency or other facets of the merits of his job." [18]

In 1975, the House passed legislation allowing federal employees to participate in partisan elections and run for office, but the Senate took no action. [19] In 1976, Democrats who controlled Congress had sought to win support by adding protections against the coercion of employees by their superiors and federal employee unions had supported the legislation. It passed the House on a vote of 241 to 164 and the Senate on a vote of 54 to 36. President Ford vetoed the legislation on April 12. He noted that coercion could be too subtle for the law to eliminate and that the Supreme Court had said in 1973 that the Hatch Act had achieved "a delicate balance between fair and effective government and the First Amendment rights of individual employees." [20] President Carter proposed similar legislation in 1977. [21]

A proposed amendment to permit federal workers to participate in political campaigns passed the House on a 305 to 112 vote in 1987. [22] In 1990, a similar bill passed the House on a vote of 334 to 87 and the Senate on a vote of 67 to 30. President George H.W. Bush vetoed the legislation, [23] which the House voted to override 327 to 93 and the Senate sustained on a vote of 65 to 35, with 55 Democrats and 10 Republicans voting to override and 35 Republicans supporting the president's veto. [24]

In 1993 the advocates for removing or modifying restrictions on the political activities of federal employees succeeded in enacting the Hatch Act Reform Amendments of 1993 (107 Stat. 1001) that removed the prohibition on participation in "political management or political campaigns." Federal employees are still forbidden to use their authority to affect the results of an election. They are also forbidden to run for office in a partisan election, to solicit or receive political contributions, and to engage in political activities while on duty or on federal property. [25]

President Barack Obama signed the Hatch Act Modernization Act of 2012 on December 28, 2012. It modified penalties under the Hatch Act to allow for disciplinary actions in addition to removal for federal employees clarified the applicability to the District of Columbia of provisions that cover state and local governments limited the prohibition on state and local employees running for elective office to employees whose salary is paid completely by federal loans or grants. [26] [27]

The Hatch Act does not apply to military members of the uniformed services of the United States, although it does apply to Department of Defense civil servants, as well as Department of Homeland Security civil servants in direct support of the United States Coast Guard. Members of the U.S. Armed Forces are subject to Department of Defense Directive 1344.10 (DoDD 1344.10), Political Activities by Members of the Armed Forces, and the spirit and intent of that directive is effectively the same as that of the Hatch Act for Federal civil servants. By agreement between the Secretary of Defense and the Secretary of Homeland Security, DoDD 1344.10 also applies to uniformed personnel of the Coast Guard at all times, whether it is operating as a service in the Department of Homeland Security or as part of the Navy under the Department of Defense. As a directive, DoDD 1344.10 is considered to be in the same category as an order or regulation, and military personnel violating its provisions can be considered in violation of Article 92 (Failure to obey order or regulation) of the Uniform Code of Military Justice. [28] [29] [30]

Members of the United States Public Health Service Commissioned Corps are subject to specific Health and Human Service regulations found in Title 44, Code of Federal Regulations Part 73 Subpart F. [31] Hatch Act guidelines for NOAA Corps Officers are provided by United States Department of Commerce, Office of the General Counsel, Ethics Law and Program Division. [32] Career members of the Senior Executive Service, administrative law judges, and National Oceanic and Atmospheric Administration Corps officers are all subject to Hatch Act restrictions and have additional limitations on their off-duty political activities. [33]

  • In 2006, the Utah Democratic Party challenged the candidacy of Ogden City Police Chief Jon Greiner for State Senate. The challenge was upheld by the U.S. OSC because the year prior the Ogden City Police Department received a federal grant to help pay for bulletproof vests. Jon Greiner appealed the decision, remained on the ballot, won the election and served one term (2006–2010) as Utah State Senator while the results of the appeal were unknown. [34]
  • In January 2007, the OSC announced the results of investigations into whether certain events during the election campaigns of 2004 and 2006 violated the Hatch Act. [35]
    • It found no violation when Kennedy Space Center officials allowed Senator John Kerry's presidential campaign to use a NASA facility for a 2004 campaign event, because no government employees worked at the facility in question. It found streaming the event to NASA employees and contractors violated the Hatch Act.
    • It reviewed a 2006 speech by NASA Administrator Dr. Michael D. Griffin in which he appeared to endorse Representative Tom DeLay for re-election. It determined that he "should have exercised better judgment" and took no further action.
    • In June 2017, the OSC issued a warning to White House Deputy Chief of Staff for Communications Dan Scavino Jr. for an April 2017 tweet that Scavino sent advocating for a primary challenge against U.S. Representative Justin Amash. [49]
    • In October 2017, the OSC issued a warning to United States Ambassador to the United NationsNikki Haley over a June 2017 tweet that she retweeted from President Donald Trump endorsing Republican Congressional candidate Ralph Norman. [50]
    • In November 2017, former Office of Government Ethics head Walter Shaub filed a complaint against White House counselor Kellyanne Conway charging that her opposition to Roy Moore opponent Doug Jones during a segment on Fox and Friends violated the Hatch Act. [51] In March 2018, the OSC announced that Conway violated the Hatch Act on that occasion and one other. [52]
    • In February 2018, FCC Commissioner Michael O'Rielly, in a speech at the Conservative Political Action Conference, "advocated for the reelection of President Trump in his official capacity as FCC Commissioner". [53][54]
    • In September 2018, the OSC issued a warning letter to Stephanie Grisham, the Press Secretary and Communications Director for the First Lady of the United States, for violating the act by including Trump's campaign slogan in a post on her government Twitter account. [55][56]
    • In November 2018, the OSC ruled that six Trump administration officials violated the Hatch Act in posts to their government Twitter accounts, but declined to take disciplinary action. The OSC warned the officials—Raj Shah, deputy press secretary Jessica Ditto, deputy director of communications Madeleine Westerhout, executive assistant to the president Helen Aguirre Ferré, former director of media affairs Alyssa Farah, press secretary for the vice president and Jacob Wood, deputy communications director of the Office of Management and Budget—that future infractions would be interpreted as willful violations subject to further action. [57]
    • In June 2019, the OSC sent a letter to President Trump recommending that White House counselor Kellyanne Conway be removed from federal service for repeatedly violating the Hatch Act. [58] This report follows the March 2018 OSC finding that Conway was a "repeat offender" for disparaging Democratic presidential candidates while in her official capacity during televised interviews and on social media. [59][60] President Trump, when asked at a press conference, stated he thought the provision violated her free speech rights. [59]
    • In August 2020, Department of Agriculture secretary Sonny Perdue supported the president's re-election while promoting the Farmers to Families Food Box Program Perdue was fined for violating the Hatch Act. [61][62][63]
    • In August 2020, President Trump announced that, as a result of the COVID-19 pandemic in the United States, and the move of the 2020 Republican National Convention to a largely online format, he would make his speech accepting the Republican Party nomination for the presidential election from the South Lawn of the White House. In response, the OSC sent a letter to President Trump indicating that, while both the President and Vice-President are not covered by the terms of the Hatch Act, White House staffers are, and would therefore not be able to assist with such an address. Moreover, other portions of the Convention included clips recorded at the White House (e.g. an interview with freed hostages, and a naturalization ceremony [64] ). While Republicans argued that the South Lawn forms part of the President's residence, and therefore should not be classed as part of a federal building, legal experts point out that "[i]t's still illegal under the Hatch Act for any White House staffer to participate in executing a campaign photo op/video segment in the White House". [65] This could also lead to investigations for staffers that may have aided Secretary of StateMike Pompeo (but not Pompeo himself) in his convention activities as he delivered a speech while on official business in Jerusalem. [66]
    • As of mid-October 2020, 14 members of the Trump administration had been accused by Citizens for Ethics of Hatch Act violations to promote the incumbent's re-election. [67] By the beginning of November it was up to 16. [68] Senator Elizabeth Warren's staff released a report in which they "counted more than 54 violations of the Hatch Act by 14 administration officials dating back to 2017, as well as nearly 100 additional pending investigations for alleged violations by 22 officials." [69]
    • On November 5, the United States Office of Special Counsel opened an investigation into the campaign's use of the White House for campaign purposes. [70] In January 2021, emails from before the election were reported to feature a "top" Interior department official instructing staff to reference the president's account in each post on social media. [71]
    • In March 2021, Housing and Urban Development Secretary Marcia Fudge reportedly violated the Hatch Act by signaling support for Democrat candidates for the upcoming 2022 Ohio Senate election. Secretary Fudge reportedly only received a warning from the Office of Special Counsel for the comments. [72]
    Permitted and prohibited activities for Federal Employees
    Activity Regular Federal Employees [73] Restricted Federal Employees [74]
    Active in partisan political management Permitted Prohibited
    Assist in voter registration drives Permitted Non-partisan only
    Attend political rallies, meetings, and fundraisers Permitted
    Be candidates in non-partisan elections Permitted
    Be candidates in partisan elections [a] Prohibited
    Campaign for or against candidates Permitted Prohibited
    Campaign for or against referendum questions, constitutional amendments, or municipal ordinances Permitted
    Circulate nominating petitions Permitted Prohibited
    Contribute money to partisan groups and candidates in partisan elections Permitted
    Distribute campaign literature to include via email or social media Permitted Prohibited
    Engage in political activity while on duty Prohibited
    Express opinions about partisan groups and candidates in partisan elections while not at work or using official authority Permitted
    Express opinions about political issues Permitted
    Invite subordinate employees to political events or otherwise suggest that they engage in political activity Prohibited
    Join partisan groups Permitted
    Make campaign speeches for candidates in partisan elections Permitted Prohibited
    Participate in campaigns Permitted Only if candidates do not represent a political party
    Register and vote as they choose Permitted
    Sign nominating petitions Permitted
    Solicit or discourage the political activity of any person with business before the agency [b] Prohibited
    Solicit, accept, or receive political contributions (including hosting or inviting others to political fundraisers) Prohibited
    Use official authority to interfere with an election or while engaged in political activity Prohibited
    Notes:
    1. ^ Federal employees are allowed to be independent candidates in partisan elections for offices of certain localities where most voters are federal employees. Most of these localities are in the Washington metropolitan area. [75]
    2. ^ Allowed if both persons are members of the same federal labor or employee organization, the person solicited is not a subordinate employee, the solicitation is for a contribution to the organization’s political action committee, and the solicitation does not occur while on duty or in the workplace

    Agencies and employees prohibited from engaging in partisan political activity Edit

    Employees of the following agencies (or agency components), or in the following categories, are subject to more extensive restrictions on their political activities than employees in other departments and agencies.

      (positions described at 5 U.S.C.§ 5372)
  • Contract Appeals Boards (positions described at 5 U.S.C.§ 5372a)
  • Office of Criminal Investigation (Internal Revenue Service)
  • Office of Investigative Programs (Customs Service)
  • Office of Law Enforcement (Bureau of Alcohol, Tobacco, Firearms and Explosives)
  • Employees identified at 5 U.S.C.§ 7323(b)(2)(B)-(3)
  • Additionally, one of the early consequences of the act, were disparate court rulings in union busting cases which forbade the use of voter information from initiative and recall petitions for any purposes outside the intended elections.

    Permitted candidacies Edit

    Federal employees are allowed to be candidates in non-partisan elections, meaning where no candidates are identified by political party. [75] This type of election is used by most municipalities and school boards in the United States. [76]

    They are also allowed to be independent candidates in partisan elections for offices of certain localities where most voters are federal employees, as designated by the Office of Personnel Management: [75]


    What does it mean to violate the Hatch Act? | Roegner

    If there was any doubt that President Donald Trump viewed himself as a monarch, it was laid to rest by his use of public employees &mdash and public property, including the White House &mdash as props for the Republican National Convention in violation of the Hatch Act.

    The Hatch Act prohibits public employees from using their position to participate in political activity.

    When I first started my career, I worked for the Employment Security Department, which was partially funded by the federal government, which made me subject the Hatch Act. All employees receive training in the act&rsquos provisions.

    The Hatch Act is a federal law established in 1939, with only minor changes since, to provide a clear line between partisan campaigning and governing. The law restricts the political activity of executive branch employees of the federal government and seeks to ensure federal programs are administered in a non-partison manner. The act also protects employees from political coercion and ensures that advancement is based on merit.

    An employee who violates the act is subject to removal from their position and loss of pay. The president, along with Vice President Mike Pence, are exempt and allowed to attend the RNC. But everyone else who participated and is paid by the federal government does not have that privilege, and neither Trump nor Pence should have used federal property for partisan gain. Everything for those four days of the convention was for political gain.

    It is also a violation to use official authority or to engage in political activity while on duty, in a government office or wearing a government uniform. That included Marines who opened the doors for Trump, the staff who set up the chairs, mopped the floors, trimmed the plants or worked to make everything in the White House beautiful.

    Secretary of State Mike Pompeo called in from Israel, serving as another prop. Pompeo was in a government-paid room and got there by a government-paid plane. The federal government was paying for the border guards&rsquo expenses and salaries while in Washington, D.C., and they were another prop for Trump&rsquos ego. So was the naturalization ceremony, although we later learned two of the people had no idea what was going on, or that Trump would be there.

    I have been to Fort McHenry in Maryland, and anyone who knows history will tell you it is a special place. You feel like you are walking through history, and you are.

    But the saddest and most troubling of all was the politicization of the White House. That is the &ldquopeople&rsquos house.&rdquo It belongs to all of us. The president is a temporary resident. Trump has shown no interest in all the people who make the government work, and none will or should face repercussions for Trump&rsquos decisions and violations. But another area of concern was there may have been 1,500 people in attendance, and very few had masks on or maintained any social distancing. How many RNC attendees came into contact with federal employees who were just doing their job?

    The Hatch Act also covers the use of official authority to influence or interfere with an election. Does that sound like Trump opposing additional funding for the U.S. Postal Service to make it harder to use mail-in ballots? With the pandemic, mail-in ballots have become very popular, and Trump believes more people who are not likely to vote for him will use them. Is that why Trump is urging voters to vote twice, which in some states is a felony? But then if they get caught, he could pardon them.

    The U.S. Office of Special Counsel said Kellyanne Conway, a counselor to the president, violated the Hatch Act on two occasions: one in the special Senate election in Alabama in 2017, and another time on &ldquoMeet the Press&rdquo with her comment about former White House Press Secretary Sean Spicer using &ldquoalternative facts&rdquo in suggesting Trump had the &ldquolargest audience to ever witness an inauguration.&rdquo

    Enforcement of the Hatch Act is determined by the executive branch. So there won&rsquot be consistency from one administration to the next, although there should be, and Conway is not going to lose her job. One media source said prior to the RNC at the White House, there had been 13 violations of the Hatch Act under Trump and two under previous President Barack Obama. In fact, media reports say that the Office of Special Counsel ruled that the gardens and residence were not government property to get around the act. Really? Then who is paying the bill for us taxpayers?

    The Hatch Act was passed to ensure fairness in our government, and all government employees know about it. It should never be violated &mdash and certainly not so willingly by an incumbent president who was undoubtedly warned, but didn&rsquot care.


    Key Players

    Clinton, William J. (1946-): Clinton is the U.S. president (1993-2001) who signed the Hatch Act Reform Amendments, or P.L. 103-94, on 6 October 1993. The amendments allow certain federal employees to participate in political management or campaigns.

    Glenn, John H. (1921-): Glenn is the Democratic senator from Ohio who sponsored the Hatch Act Amendments of 1993 to loosen the law with regard to federal employees.

    Hatch, Carl A. (1889-1963): Hatch was the Democratic senator from New Mexico who introduced the "Act to Prevent Pernicious Political Activity" to protect civil servants from partisan pressures. The act would later become the 1939 Hatch Act.

    Jefferson, Thomas (1743-1826): Jefferson was the U.S. president (1801-1809) who issued an executive order in 1801 to stop the partisan activities of government employees. This executive order later became the foundation of the Hatch Act in 1939.

    Roosevelt, Franklin D. (1882-1945): Roosevelt was the U.S. president (1933-1945) who signed the Hatch Act into statute after Congress passed it in 1939.

    Bibliography

    Books

    Office of Personnel Management. The United States Civil Service Commission, Biography of an Ideal: A History of the Federal Civil Service. Washington, DC: The Office of Personnel Management, 1977.

    Schrecker, Ellen. The Age of McCarthyism: A Brief History with Documents. Boston: St. Martin's Press, 1994.

    Periodicals

    Ballard, Tanya N. "Caught in the Hatch [Legal Briefs]."Government Executive Magazine (12 July 2002).

    Moffit, Robert E. "Gutting the Hatch Act: Congress's Plan to Re-politicize the Civil Service." The Heritage Foundation Issues Bulletin 180 (6 July 1993).

    ——. "Personnel Is Policy: Why the New President Must Take Control of the Executive Branch." The Heritage Foundation Backgrounder 1403 (8 January 2001).

    Other

    Schwemle, Barbara L. Hatch Act Amendments: Political Activity and the Civil Service. Doc. #87153. 1996 [accessed 12 December 2002]. <http://fas.org/irp/crs/87-153.htm>.

    United States Office of Special Council. Political Activity (Hatch Act). 2002 [accessed 12 December 2002]. <http://www.osc.gov/hatchact.htm>.

    U.S. Public Law 103-94, 103rd Cong., 1st sess., 6 October 1993. Hatch Act Reform Amendments of 1993.

    U.S. Public Law 252, 76th Cong., 1st sess., 2 August 1939. Hatch Political Activities Act.

    Additional Resources

    Books

    Bolton, John R. The Hatch Act: A Civil Libertarian Defense.Washington, DC: American Enterprise Institute for Public Policy Research, 1976.

    Periodicals

    Vaughn, Robert G. "Restrictions on the Political Activities of Public Employees: The Hatch Act and Beyond." George Washington Law Review 44 (1976): 516-553.

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