GovernmentExecutive.com

What Is It?

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.

Those restrictions were loosened in the early 1990s after a battle that dated back to the 1984 presidential campaign, when a federal mediation board found that three union leaders violated the Hatch Act by expressing support for Democratic candidate Walter Mondale. A federal court overturned that opinion, but the incident sparked a campaign to change the law. Advocates for amending the act, including the AFL-CIO and the American Civil Liberties Union, said the original language violated federal employees' constitutional rights. Opponents such as the nonpartisan advocacy organization Common Cause said changing the rules would politicize the civil service. President George H.W. Bush agreed with the opponents, vetoing changes to the Hatch Act in 1990. But President Bill Clinton supported the modifications, and they became law in 1993.

Today, most career federal employees can run for nonpartisan offices, make financial contributions to political organizations, get involved in political groups, and campaign for candidates by making speeches, distributing literature and signing nominating positions. The remaining restrictions on federal employees' activities are tailored more narrowly to their jobs: they still are banned from using their authority to exert influence over an election; encouraging or discouraging political activity by anyone with business before their agency; doing political work while on duty, in uniform, in the office or in a government vehicle; running for partisan office; and wearing political buttons while on duty.

Political appointees operate under the same rules with some exceptions. They are allowed to engage in political activity while on duty, in government buildings, wearing official uniforms or insignias, or using government vehicles, provided their actions don't amount to coercive use of the office to which they have been appointed. They cannot pay for political activities with taxpayer dollars, however. And after the 1993 Hatch Act reforms, Walter Dellinger, an assistant attorney general at the Justice Department's Office of Legal Counsel, wrote an advisory opinion for the Office of Personnel Management suggesting the president can restrict the political activities of employees he appoints. "It would be inconsistent with the character of such appointments if the appointees were free to disregard or contradict the political positions of the administration," Dellinger wrote.

Members of the Senior Executive Service and officials in certain sensitive positions at agencies such as the CIA, Merit Systems Protection Board, Federal Election Commission and Office of Special Counsel are held to a higher standard than their colleagues. They can vote for whomever they choose, participate in nonpartisan voter registration drives, join political organizations, express political opinions and campaign for or against ballot questions, but they cannot participate in partisan elections by making campaign speeches, circulating nominating positions, or running for office themselves. They also cannot hold office in political organizations.

Why Should I Care?

Because your job depends on it. The mandatory penalties for career employees caught violating the Hatch Act start with a 30-day suspension without pay and can result in termination. If an action is close to the line but not an actual violation, OSC, which enforces the law, can write an employee a warning letter. But if an employee clearly violates the rules, there is no option for a cease-and-desist order and OSC brings the case before an administrative law judge appointed by the Merit Systems Protection Board. Employees can appeal the administrative law judge's decision to the full MSPB. It takes a unanimous vote by the board, however, to reverse decisions to fire an employee and reduce the penalty to a suspension.

The penalties for political appointees are less clear because OSC refers cases to the president, who can decide whether to pursue disciplinary action. This has drawn complaints from some federal employee groups, which argue that it creates a disparity in enforcement.

Nonetheless, government employees at all levels should familiarize themselves with the law. The current special counsel, Scott Bloch, has been known for aggressive pursuit of Hatch Act cases. As the conventions get under way and presumptive presidential nominees Sens. Barack Obama, D-Ill., and John McCain, R-Ariz., inspire record-setting levels of voter registration and political participation, the temptation for federal employees to push send on a politically motivated e-mail or to get involved in campaigns in other ways will be higher than ever, so it's important to be clear on the rules.

Is the Law Actually Enforced?

Anyone can file a complaint of a potential Hatch Act violation by filling out a form available on OSC's Web site.

Enforcement of the law has had something of a rocky ride during the Bush administration. During the 2004 election, whistleblower groups filed a complaint alleging that OSC was biased in deciding which potential violations to pursue. The office aggressively followed up on a complaint against Sen. John Kerry, D-Mass., for visiting Kennedy Space Center but did not investigate whether Condoleezza Rice, then the national security adviser, used government funds for travel inappropriately in the weeks leading up to the election, the groups said.

Thomas Devine, legal director of the Washington nonprofit Government Accountability Project, said at an October 2007 hearing that the administration had become less transparent about how it approaches the Hatch Act. In 2005, OSC stopped disclosing the number of complaints referred for field investigation and the number of outreach programs to prevent Hatch Act violations.

The agency's clearance rate, the number of cases decided or dismissed, also declined, from 15 percent in 2003 to 11 percent in 2006.

OSC has pursued some high-profile cases. In 2007, the office found that the General Services Administration chief at the time, Lurita A. Doan, violated the Hatch Act by holding a briefing for agency political appointees that ended with her asking how they could help support Republican candidates.

"I have determined that you violated the Hatch Act's prohibition against using your official authority or influence for the purpose of interfering with or affecting the result of an election when you solicited over 30 subordinate employees to engage in political activity," Special Counsel Bloch wrote in his report on the matter.

Bloch himself is now under pressure to resign for his handling of a governmentwide probe into Hatch Act violations that began in 2007 after OSC found that Doan had violated the act, and for allegedly retaliating against employees who disagreed with his approach.

What Are Some Common Pitfalls?

The Internet is often a co-conspirator in Hatch Act violations. James Mitchell, acting chief of staff at OSC, said that in the 120 federal Hatch Act cases OSC has pursued in 2008, the most common violation he's noticed has been sending or forwarding political e-mails. The number of Hatch Act complaints reached a high of 299 in 2006 as the use of e-mail increased and the proliferation of political videos on Web sites like YouTube made it much easier to exchange political opinions during work hours. In one high-profile case earlier this year, a NASA employee was suspended for 180 days without pay for sending political e-mail messages and using his Web log to solicit campaign contributions, all during work hours. Employees also have gotten themselves in trouble for running for partisan office or soliciting partisan endorsements for a nonpartisan office.

But if you check first, it's easy to stay out of trouble. OSC keeps an archive of its advisories to federal employees, along with answers to frequently asked questions about political activity. And federal employees who want to know whether or not a particular activity is permitted can ask OSC to render an advisory opinion.