"I am concerned about the differences in treatment between civil servants and presidential appointees," said Sen. Daniel Akaka, D-Hawaii, at the hearing before the Homeland Security and Governmental Affairs Subcommittee on Oversight of Government Management and the Federal Workforce.
The Office of Special Counsel, the small independent agency in charge of investigating potential Hatch Act violations, can prosecute cases involving career civil servants before the Merit Systems Protection Board. But MSPB lacks jurisdiction over most Senate-confirmed political appointees and White House staffers, Akaka noted. In those cases, the OSC can send its findings to the president, but the president is not obligated to take any action.
"As a result, the president has little incentive to punish his political appointees and staff if they step over the line to help his political party," Akaka said.
But when he asked James Byrne, the OSC deputy special counsel, if he found that restriction frustrating, Byrne responded that his job was to follow the letter of the law.
"We're law enforcement," Byrne said. "And we follow it within the constraints of the statutes. We forward recommendations to the president, leave it to his discretion what to do in the disciplinary action. I don't really have any other comment."
John Gage, president of the American Federation of Government Employees, recalled that when Vice President Dick Cheney held a political rally at a New Mexico military base, AFGE's complaints about possible Hatch Act violations were ignored.
"E-mails went out from management that people would have approved leave, free passes were passed out by the public relations office of the base, and we complained," Gage said. "That investigation went nowhere. I really couldn't understand. It just seemed so blatant, all this activity occurring on the base. That seems to be over the line. Yet there was nothing that came of it."
In contrast, the penalties for civil servants who violate the Hatch Act are severe and mandatory, Gage testified.
"The presumptive penalty for Hatch Act violations is termination, with 30-day suspension as the minimum penalty," Gage said. "The current [OSC] policy is that the Hatch Act does not provide for a warning to workers, or an opportunity to cease and desist from a violation before seeking the harshest penalties."
Those penalties have a significant chilling effect, National Treasury Employees Union President Colleen Kelley said.
"I would advise anyone who I represent that they do not want to be set up to be a test case before the Office of Special Counsel," Kelley said. "If they believe for a minute that a manager could zero in on them and make them a test case for OSC, their interest in exercising their rights is squelched quite a bit."
Thomas Devine, the legal director of the Washington nonprofit Government Accountability Project, agreed: "The chilling of freedom of speech in the civil service is unprecedented," he said.
Not only are the penalties far too severe, but the current head of OSC, Scott Bloch, has gone too far in cracking down on civil servants, Kelley added.
"There is no way around the fact that the present special counsel seems to have lost all sense of proportion in exercising his prosecutorial discretion under the Hatch Act by pursuing the removal of relatively low-ranking career employees for what are at most technical violations of the prohibition against on-duty political activity, such as sending an e-mail with political content to a small group of friends and work colleagues," Kelley said.
Devine noted that despite harsh prosecution of relatively minor violations, the total percentage of Hatch Act cases that were resolved and closed between 2003 and 2006 fell to 11 percent from 15 percent between 2001 and 2003. In addition, he noted that in 2005, the OSC stopped disclosing the number of complaints referred for field investigation and the number of outreach programs to prevent Hatch Act violations.
When Akaka asked OSC's Byrne about outreach programs to educate civil servants about what actions the Hatch Act does or does not permit, he said that those programs continued. He added that he felt the law was common knowledge among federal employees.
"Fortunately, or unfortunately, there have been some higher-profile investigations covered in the media, and we think that raises awareness of the Hatch Act," Byrne said. "This hearing, which we thank you for, raises awareness."