Hatching a New Plan
Reform of the 72-year-old law that restricts certain political activities by government workers has been slow in coming.
A small federal agency with a hefty caseload is trying to reform a 72-year-old law to improve its enforcement and save resources at the same time.
The Office of Special Counsel, which oversees the law that restricts government workers from certain political activities, has proposed legislative reforms to the 1939 Hatch Act-a law that hasn't been updated since 1993. The agency received slightly fewer complaints in fiscal 2011 than in 2010. But overall OSC's Hatch Act unit, which has nine attorneys and one administrative assistant, has seen its workload increase more than 400 percent since 2000.
Special Counsel Carolyn Lerner is recommending some significant reforms, including expanding the range of penalties for federal workers under the law, allowing state and local government employees to run in partisan elections, and asking Congress to define what passes for political activity in the age of BlackBerrys and telework.
The law is confusing, outdated in many instances, and in desperate need of an overhaul, most observers agree. For example, a Pennsylvania police officer who works in a K-9 unit had to drop out of a local school board election because his dog was paid for with Homeland Security Department funds. Under the Hatch Act, state and local government employees with any connection to federal funds cannot run in partisan elections.
Lerner, who pledged to seek changes to the Hatch Act during her confirmation hearing last spring, calls such a situation an "absurd result." It's also time- consuming. Typically, there are more complaints at the state and local levels than at the federal level, according to OSC. Of the complaints filed in fiscal 2011, more than half involved state or local workers. OSC acknowledges that educating the state and local government workforce is a challenge for several reasons. "First, only those state and local employees who have duties in connection with federally funded programs are covered by the act," says Ana Galindo-Marrone, chief of that unit. "Thus, before advising an employee about the prohibitions of the act, it must be determined (through a fact-intensive inquiry) if the employee is even covered by the act."
At the state and local levels, the Hatch Act also is being used as a political weapon, the agency says, to force certain candidates out of races.
"I think we should get out of the business of enforcing the Hatch Act in these state and local cases," Lerner says. While OSC is seeking to allow state and local government employees to run in partisan elections, those workers still would be subject to other restrictions under the proposed reforms. Federal employees still would be prohibited from running for partisan office under the draft bill, except in geographic locations that are exempt from that restriction.
The current law contains several exceptions and does not provide clear guidance in many areas. Prohibited activities include running for office in partisan elections or engaging in political activity while on duty or in a government office. Federal workers also cannot solicit or receive political contributions from any person except in certain instances involving labor organizations or employee groups. Federal employees are allowed to be candidates for office in nonpartisan elections, contribute money to political organizations, and campaign for or against candidates in partisan elections, among other freedoms.
Even with all the exceptions and gray areas, most government employees know what they can and cannot do on government property. The lines on acceptable political activity outside the office, however, have become increasingly blurry. For example, a government employee cannot host a fundraiser for a partisan candidate in her home. But the Hatch Act does not prohibit the spouse or roommate of a federal employee from hosting such an event in the home they share with the federal employee. The government worker can attend the event but cannot invite guests.
Another murky area involves the application of the Hatch Act to career employees and political appointees. Certain political appointees can participate in political activities, including campaigning for partisan candidates while on duty or on government property as long as the government does not fund the activities. The Hatch Act does not apply to the president or the vice president.
Richard W. Painter, a law professor at the University of Minnesota, believes Congress needs to get rid of the exemptions for political appointees. "It's not a good thing to have a special rule that is more lenient for White House staff and Senate-confirmed Cabinet members and other Senate-confirmed people than it is for the rank and file," Painter says.
He thinks now is the most opportune time for the administration and Congress to work on reforming the Hatch Act-as the 2012 presidential campaign gets into full swing. "We've had problems under both Republican and Democratic administrations," Painter says. "It's time to get the partisan operations out of the White House." Painter praises President Obama for taking the Office of Political Affairs out of the White House, but officials should go further, he says. In January, OSC released a report that studied the George W. Bush administration's political activity during the 2006 election cycle, concluding that staff for the White House Office of Political Affairs, as well as several agency political appointees, violated the Hatch Act. Around the time of the report's release, Obama moved staff from the Office of Political Affairs to the Democratic National Committee and his reelection campaign.
OSC's proposed reforms also include better guidance from Congress on political travel and political briefings.
It's unlikely that any serious effort in Congress to overhaul the Hatch Act will take place in the coming months, given the distractions of the presidential election and the high-stakes deliberations over deficit reduction. The House Oversight and Government Reform Committee is interested in clarifying and reforming the law, but it is unclear whether it's ready to introduce legislation on the issue.
"Over the last few years, OSC's conduct has raised serious questions about the agency's ability to fulfill its statutory mission," said committee Chairman Darrell Issa, R-Calif., in response to questions about the agency's proposed reforms. "It has demonstrated an inability to conduct professional, nonpartisan investigations in a timely manner. A resolution of core weaknesses within OSC is essential. Special Counsel Lerner faces considerable challenges in putting the agency back on the right track."