Good Governance Paper No. 1: The Hatch Act Ban on Political Use of Government Resources

[Editors’ note: This essay is one in a series—the Good Governance Papers—organized by Just Security. In each essay, a leading expert will explore actionable legislative and administrative proposals to promote non-partisan principles of good government, public integrity, and the rule of law. For more information and a complete list of the essays published so far, you can read the Introduction by the series’ editors.]

The American public deserves a government that works for all of them regardless of political affiliation. The Hatch Act became law in 1939 to prevent federal employees from engaging in partisan politics while performing their official government duties and protects those employees’ right to engage in private political conduct without pressure or intimidation from their superiors. Unfortunately, the Trump administration has seen a cavalcade of violations of the Hatch Act by cabinet officials and other senior aides. The Hatch Act codifies some of the fundamental tenets of American democracy by ensuring that “federal programs are administered in a nonpartisan fashion” and that government officials do not abuse taxpayer funded resources to hold onto political power.

As the Office of Special Counsel (OSC) noted in its unprecedented decision to recommend the firing of Counselor to the President Kellyanne Conway, Hatch Act violations “erode the principal foundation of our democratic system—the rule of law.” Violations are hardly unique to any party or administration, but the Trump administration stands apart in the scope and scale of its abuses. While political appointees should abide by federal law as it is written, the Trump administration’s public unwillingness to comply with the Hatch Act demands a response to strengthen the statute. Listed below are significant problems limiting Hatch Act enforcement as well as proposed policy solutions to close those gaps. Some of these ideas are already part of bills currently moving through Congress, but there are still more areas in need of reform.

Problem: The Office of Special Counsel Does Not Self-Initiate Hatch Act Investigations

Following egregious Hatch Act violations committed by numerous Trump administration officials during the Republican National Convention (RNC) including the recording of videos during a naturalization ceremony and with public housing residents for airing at the RNC, there were numerous calls for OSC to intervene. In response to this public furor, Special Counsel Henry Kerner released a statement explaining: “Ultimately, officials and employees choose whether to comply with the law. Once they make that choice, it is OSC’s statutory role to receive complaints, investigate alleged Hatch Act violations, and determine which ones warrant prosecution.” OSC’s position that it will not investigate apparent Hatch Act violations without a complaint puts the burden on whistleblowers especially in cases where the violations may be hidden from the public. And it puts the burden on the public and the good government community to police the Hatch Act even in the case of brazen, public violations.

The Solution: Give OSC Explicit Authority to Open Investigations

Depending on your reading of existing law, OSC already has the authority and discretion to investigate Hatch Act violations without a complaint. However, given OSC’s stance regarding the initiation of investigations, Congress should amend the provisions of 5 USC § 1216 regarding “Other matters within the jurisdiction of the Office of Special Counsel” to include more explicit language such as:

Regardless of whether the Special Counsel has received an allegation or complaint, the Special Counsel may conduct any investigation as the Special Counsel considers appropriate concerning political activity prohibited under such subchapter.

Alternatively, the Office of Personnel Management could amend the provisions of 5 CFR § 734.102 regarding Political Activities of Federal Employees to include similar language.

Problem: Enforcement of the Hatch Act Against White House Staff Left to the President

Although OSC should be applauded for taking the “unprecedented” step of recommending that President Trump fire repeat offender Kellyanne Conway for her “egregious, notorious, and ongoing” violations of the Hatch Act, OSC did not actually follow the letter of the law in Conway’s case. Pursuant to 5 USC § 1215(a), OSC must file a complaint with the Merit Systems Protection Board (MSPB) against a covered employee like Conway if OSC “determines that disciplinary action should be taken against any employee for having … violated” the Hatch Act. Under the statute’s plain terms, OSC’s duty to file an MSPB complaint is mandatory, not discretionary, if the triggering conditions are met. The statute, at 5 USC § 1215(b), carves out a limited exception for Senate-confirmed presidential appointees (PAS): whereby “the complaint … shall be presented to the President for appropriate action in lieu of being presented” to MSPB.

White House officials like Conway are not Senate-confirmed, and thus not subject to the PAS exception. Although Special Counsel Kerner appeared to acknowledge the distinction in testimony before Congress, he did not refer Conway to MSPB, instead writing that “[l]ike with other presidential appointees, the President has the authority to discipline Ms. Conway for violating the Hatch Act.” Predictably, President Trump declined to discipline Conway, and Trump’s allies attacked Kerner’s credibility. CREW eventually sued OSC to get the agency to follow the law and refer Conway to MSPB for discipline, but the court ultimately dismissed the case on standing grounds, without reaching the merits of OSC’s interpretation of the statute. OSC’s interpretation is not only incorrect; it ensures that career employees will be punished more severely than White House staffers for similar violations.

Solution: Clarify that White House Hatch Act Violators Must Be Referred to MSPB

The Conway debacle demonstrates that Congress needs to explicitly reject OSC’s position that Hatch Act violators who are White House staff but not Senate-confirmed may only be disciplined by the President. Congress can do so by amending the law to specifically address this category of employees.

For example, Congress should amend the definition of “employee” in 5 USC § 7322 to include:

any individual, other than the President and the Vice-President, employed or holding office— in the Executive Office of the President, the White House Office, the Office of the Vice President, and any other office of the White House.

In addition, Congress should amend 5 USC § 1215 to include a subsection making explicit that:

In the case of any individual employed or holding office— in the Executive Office of the President, the White House Office, the Office of the Vice President, and any other office of the White House, except the President or the Vice President, and appointed without the advice and consent of the Senate, the Special Counsel shall prepare a written complaint against the employee containing the Special Counsel’s determination, together with a statement of supporting facts, and present the complaint and statement to the employee and the Board, in accordance with this subsection.

It would be advisable for OSC to revise its current position, but even that internal reform would still leave too much room for OSC reversals or creative interpretations in future. Hence the need for congressional action.

Although OSC has suggested that making White House employees subject to removal by MSPB could raise “separation of powers appointments clause” issues, the Hatch Act includes lesser penalties (including monetary fines) that do not raise such constitutional questions.  Congress should at least amend the statute to make clear that those penalties are enforceable against White House employees. In cases that involve presidentially-appointed, Senate-confirmed appointees, Congress should require the president to send OSC a written explanation of the decision to accept or decline OSC’s recommendation, and OSC should be required to publish that explanation along with OSC’s report of its findings.

Problem: Increased Frequency of Hatch Act Violations by Political Appointees

While Hatch Act violations by career federal employees do occur from time to time, the Trump administration has distinguished itself by the staggering number of abuses by members of the President’s cabinet and other high level political appointees. To date, OSC has found 14 senior Trump administration officials broke the law by using their government positions for partisan politics including, most recently, Secretary of Agriculture Sonny Perdue. Despite this increase in violations, Trump administration officials have avoided facing accountability.

Solution: Increased Penalties for Hatch Act Violations by Political Appointees

In addition to ensuring that White House staff who warrant discipline for violating the Hatch Act are referred to the MSPB, Congress should increase the penalties for violations by political appointees to promote accountability at the highest levels of government. Congress should amend 5 USC § 7326 to include a provision such as:

An employee or individual who is a political appointee and violates section 7323 or 7324 shall be subject to an administrative fine, not to exceed $50,000 per violation.

In this subsection, the term “political appointee” means any individual, other than the President and the Vice-President, employed or holding office—

(A) in the Executive Office of the President, the White House Office, the Office of the Vice President, and any other office of the White House, but not including any career employee; or ‘(B) in a confidential, policy-making, policy-determining, or policy-advocating position appointed by the President, by and with the advice and consent of the Senate (other than an individual in the Foreign Service of the United States).

Problem: Use of Government Resources to Support Exploration of Political Campaigns

While federal regulations have clear guidelines under the Hatch Act when a federal official becomes a candidate for partisan office, there is no guidance or restriction on the use of federal funds for exploring a potential run for office. In May, the New York Times reported that Secretary of State Mike Pompeo was using government resources to “quietly” visit conservative donors and political figures on State Department trips as part of an effort to “nurture[] plans for a presidential bid in 2024 and as he considered a run for the Senate from Kansas.” Pompeo subsequently released a letter from OSC stating that he did not violate the Hatch Act because OSC “cannot conclude that you are currently a candidate in the 2020 Senate election in Kansas.” OSC relied in part on assertions from Pompeo that he was not running for Senate.

Solution: Issue Guidance or Regulations on Exploratory Efforts for a Potential Campaign

Secretary Pompeo’s conduct clearly exploited a loophole in the Hatch Act to support his potential future candidacy for federal office. If OSC’s interpretation is allowed to stand, more political appointees could use government resources to build relationships with supporters and potential donors before quitting federal service to officially become a candidate. OSC should work with officials at the Office of Personnel Management and Federal Election Commission to amend federal regulations or issue public guidance to prevent federal resources being used for exploratory efforts to support a potential campaign for partisan office. 

About the Author(s)

Donald K. Sherman

Deputy Director at Citizens for Responsibility and Ethics in Washington (CREW); Adjunct Professor of Law at the Georgetown University Law Center. Follow him on Twitter (@donaldonethics).