Complaints of improper political activity rise in 2010

By Kellie Lunney

June 21, 2011

The number of complaints related to inappropriate political activity in the federal workplace increased in fiscal 2010, according to the Office of Special Counsel.

OSC, which enforces the Hatch Act, received 526 complaints last year, said Ana Galindo-Marrone, chief of the agency's Hatch Act unit, in testimony submitted to the House Oversight and Government Reform Committee for a hearing Tuesday afternoon. In fiscal 2009, the agency, which has 15 employees, received 496 new Hatch Act complaints, an 11 percent increase from fiscal 2008. In fiscal 2010, OSC issued more than 4,000 advisory opinions related to the Hatch Act.

"Growing public awareness of OSC's enforcement efforts and increased media attention contributed to record numbers of Hatch Act complaints and advisory opinions issued in fiscal year 2010," Galindo-Marrone said.

Since January, Congress and the Obama administration have been looking more closely at the Hatch Act, which restricts the political activity of federal, state and local government employees. That month, OSC released a report that studied the George W. Bush administration's political activity during the 2006 election cycle and concluded staff for the White House Office of Political Affairs, as well as several agency political appointees, violated the Hatch Act. The Obama administration eliminated the Office of Political Affairs around the time OSC released its report, moving staff to the Democratic National Committee and the president's reelection campaign.

But confusion still surrounds the details of the Hatch Act, and some believe OSC's guidance on the law is too ambiguous. Part of the problem stems from the growth of the now-defunct OPA, the increased difficulty in distinguishing between official activities and communications and political ones, and the somewhat lax attitude during both Republican and Democratic administrations with respect to policing the separation of politics and government work.

"Official titles may not be used when a White House staff member speaks for a political fundraiser (the term 'presidential adviser' is sometimes used instead), but the subject of the speech is almost invariably the president's policies and just about everyone in the room knows that the speaker works at the White House," Richard Painter, a professor at the University of Minnesota Law School, said in his written testimony before the committee. Painter said the dissolution of OPA does not go far enough, since, for example, White House staff can continue to engage in political activity off-site on weekends and evenings, and Hatch Act guidance also does not adequately address issues such as what a government official is allowed to say about his or her official job when giving a political speech, or what constitutes political fundraising.

A former official during the Reagan and George W. Bush administrations said the absence of the Office of Political Affairs makes transparency even harder. "With the political affairs office closed, it is unclear who at the White House would be involved in organizing and executing meetings ostensibly to solicit policy input from key supporters of the 2008 campaign and in ensuring they complied with the Hatch Act and campaign finance laws," testified Scott Coffina, who now works in the Philadelphia office of law firm Montgomery McCracken. Coffina suggested OSC consider a timekeeping requirement to help evaluate the percentage of time exempt government employees spend on partisan political activities, as well as encouraging the national political parties to provide more equipment so official resources are not used for political activity.

In his opening statement, committee Chairman Rep. Darrell Issa, R-Calif., said technology, including the expansion of social media tools like Facebook and Twitter, has made it easy "for federal employees to circumvent the law and engage in political activities." Issa also expressed concern over a "confusing legal framework" created by the Hatch Act "that frustrates compliance by well-meaning people."

Galindo-Marrone said OSC conducted 30 outreach presentations in fiscal 2010 to various federal agencies and employees on their rights and responsibilities under the Hatch Act -- discussions that also involved high-level officials and other political appointees, she added. The agency is educating federal employees about the Hatch Act and the use of social media as well, Galindo-Marrone said.

Painter urged the committee to consider legislation that would "sharply curtail the range of permissible work for political campaigns by White House staff and senior appointees in the executive branch," adding, "partisan political operations will be more effective, and subject to fewer constraints, if they are run from outside the White House."

By Kellie Lunney

June 21, 2011