AFGE argues the 2018 Office of Special Counsel Hatch Act guidance infringes on federal workers' First Amendment rights.
The nation’s largest federal employee union last week asked a federal judge to suspend controversial guidance from the Office of Special Counsel that curbs federal employees’ right to discuss impeachment while at work.
The American Federation of Government Employees filed an emergency motion for a preliminary injunction dated Jan. 24 to block enforcement of a 2018 memo cautioning federal employees from using slogans like “resistance” and “impeachment” in the workplace, citing the Hatch Act’s prohibition on feds from using their positions and government resources to influence electoral politics. AFGE initially filed a lawsuit challenging the legality of OSC’s guidance in August 2019.
The guidance prohibited employees from advocating in favor of or against impeachment, but did not ban general discussion of the matter. In AFGE’s motion, attorneys argued the memo misclassifies impeachment as an electoral topic, rather than a legislative process, noting that Congress’ actions in an impeachment inquiry do not legally prevent a defendant from holding elective office in the future.
“The policy is unconstitutionally overbroad,” AFGE wrote. “It prohibits speech by public employees on a manner of utmost public concern, and OSC cannot demonstrate a compelling government interest to justify these restrictions where the policy restricts speech that has nothing to do with a political campaign.”
AFGE argued that the distinction between general discussion of impeachment and advocacy is a difficult line for employees to parse, effectively barring impeachment as a topic for discussion altogether.
“The Trump impeachment is the major news story dominating the headlines,” said AFGE National Secretary-Treasurer Everett Kelley. “For federal employees, he is top management, and it is absurd to think impeachment of the boss will not be discussed at lunch and at the water cooler. Worse yet, it is a legislative act not related to electoral activity as defined under the Hatch Act.”
Union attorneys also argued that the policy is unworkable, given the lack of enforcement against political appointees who have been active in defending President Trump from allegations of abuse of power and obstruction of Congress. The court filing specifically cites remarks from Commerce Secretary Wilbur Ross, White House adviser Kellyanne Conway and Attorney General William Barr.
“With respect to impeachment, numerous senior administration officials covered by the Hatch Act have publicly advocated against impeachment—while on duty and speaking in their official capacities—but to plaintiffs’ knowledge, none of these officials have been subject to adverse action from OSC for violating the policy,” attorneys for AFGE wrote. The lack of any enforcement of the policy against these officials strongly underscores that the policy’s purpose and effect is to silence only one side of the debate.”