OSC OKs White House nomination speech -- but Hatch Act dangers loom

The Office of Special Counsel recently answered a vexing legal question, defining the line between what’s illegal—and what’s simply counter to tradition—in the president’s use of the White House during his re-election campaign.

With the COVID pandemic curbing 2020 campaign events, President Donald Trump earlier this month floated the idea of using the White House as part of his party’s “virtual” convention, for his televised acceptance speech and keynote in his run for a second term.

That raised several questions: Can a president deliver a purely political speech from 1600 Pennsylvania Avenue? Or must the “people’s house” remain neutral—as it normally has—regarding political speeches, nominations and convention events?

The White House is not just the president’s temporary residence. It is a federal workplace, and its many civil service employees must obey the Hatch Act’s prohibition against workplace politicking. As a result, political party events and speeches traditionally are held offsite.

The OSC—the first stop in adjudicating Hatch Act controversies—quickly found in favor of the president, that he and the vice-president are not restricted by that law.

“The President and Vice President are not covered by any of the provisions of the Hatch Act. Accordingly, the Hatch Act does not prohibit President Trump from delivering his RNC acceptance speech on White House grounds,” the OSC wrote in its Aug. 12 advisory opinion.

“However, White House employees are covered by the Hatch Act,” OSC added in a second piece of its opinion. ”So there may be Hatch Act implications for those employees, depending on their level of involvement with the event and their position in the White House.”

Unless the president’s opponents file further legal action, the matter is decided. But some experts are pushing back against the president’s plans.

Kenneth Warren, a professor of political science at St. Louis University conceded the technical legality of the president alone giving a political speech from the White House—but spotlighted the limits of the OSC’s greenlight.

“As the OSC says, the Hatch Act restrictions do not apply to President Trump—or Vice President Pence,” Warren told FederalSoup. “But the law does not allow federal employees—and that means just about all of the people who work in White House offices or do technical work there—to be involved or assist him in a political event.”

“The OSC didn’t say exactly that doing the speech from the White House would be A-OK,” Warren said, pointing to the second piece of the advisory.

Warren also highlighted the risk any such event poses for federal employees who might assist: “OSC simply said the president and vice president are exempt from the Hatch Act—but it also cautioned that federal employees working in any way alongside to make the event possible really might present some problems,” Warren said. “Naturally, it would be much better if he did that speech elsewhere. That’s pretty clear.”

Some government watchdog organizations are also frowning on the idea of a convention speech from the White House.

"This is an overt campaign act," Kedric Payne, the nonprofit Campaign Legal Center’s general counsel and senior director of ethics, recently said. "[Trump]'s been riding the line in making statements about Biden at White House events. This is beyond the line."

James Perry, professor of public administration at Indiana University, also complained of the fuzzy nature of the OSC advisory, and argued that the tradition of avoiding purely political events at the White House should be respected.

“Yes, legally, the president and vice president are exempt from the Hatch Act, and its controls on politics at work by people on the federal payroll,” Perry told FederalSoup. “But, historically, this kind of thing just isn’t done—not at the White House.”

“In future, we need to solve the ambiguity of this,” Perry said. “Meanwhile, sure, it may be cheaper for the president to use his campaign people on the White House lawn or something, rather than flying off somewhere for the speech. But there is still real legal ambiguity here.”