Hatch Act of 1939

The Hatch Act of 1939, officially An Act to Prevent Pernicious Political Activities, is a United States federal law whose main provision prohibits employees in the executive branch of the federal government, except the president, vice-president, and certain designated high-level officials of that branch,^[1] from engaging in some forms of political activity. The law was named for Senator Carl Hatch of New Mexico. It was most recently amended in 2012.

Background

Widespread allegations that local Democratic Party politicians used employees of the Works Progress Administration (WPA) during the congressional elections of 1938 provided the immediate impetus for the passage of the Hatch Act. Criticism centered on swing states such as Kentucky,^[2] Tennessee, Pennsylvania, and Maryland. In Pennsylvania, Republicans and dissident Democrats publicized evidence that Democratic politicians were consulted on the appointment of WPA administrators and case workers and that they used WPA jobs to gain unfair political advantages.^[3] In 1938, a series of newspaper articles exposed WPA patronage and political contributions in return for employment, prompting an investigation by the Senate Campaign Expenditures Committee, headed by Sen. Morris Sheppard, a Texas Democrat.^[4]

Despite that investigation's inconclusive findings, many in both parties determined to take action against the growing power of the WPA and its chief administrator, Harry Hopkins, an intimate of President Roosevelt. The Act was sponsored by Senator Carl Hatch, a Democrat from New Mexico. At the time, Roosevelt was struggling to purge the Democratic party of its more conservative members who were increasingly aligned with the administration's Republican opponents. The president considered vetoing the legislation or allowing it to become law without his signature, but instead signed it on the last day he could do so. His signing message welcomed the legislation as if he had called for it and emphasized the protection his administration would provide for political expression on the part of public employees.^[5]

Provisions

The 1939 Act forbids the intimidation or bribery of voters and restricts political campaign activities by federal employees. It prohibits using any public funds designated for relief or public works for electoral purposes. It forbids officials paid with federal funds from using promises of jobs, promotion, financial assistance, contracts, or any other benefit to coerce campaign contributions or political support. It provides that persons below the policy-making level in the executive branch of the federal government must not only refrain from political practices that would be illegal for any citizen, but must abstain from "any active part" in political campaigns, using this language to specify those who are exempt:^[6]

• (i) an employee paid from an appropriation for the Executive Office of the President; or
• (ii) an employee appointed by the President, by and with the advice and consent of the Senate, whose position is located within the United States, who determines policies to be pursued by the United States in the nationwide administration of Federal laws.

The language was crafted so that the Secretary of State is covered by the Act's restrictions on political activity.^[6]

The act also precludes federal employees from membership in "any political organization which advocates the overthrow of our constitutional form of government,"^[7] a provision meant to prohibit membership in organizations on the far left and far right, such as the German-American Bund and the Communist Party USA.^[8]

An amendment on July 19, 1940 extended the Act to certain employees of state and local governments whose positions are primarily paid for by federal funds. It has been interpreted to bar political activity on the part of employees of state agencies administering federal unemployment insurance programs and appointed local law enforcement agency officials with oversight of federal grant funds. The Hatch Act bars state and local government employees from running for public office if any federal funds support the position, even if the position is funded almost entirely with local funds.^[9]

The Merit Systems Protection Board and its Office of Special Counsel are responsible for enforcement of the Hatch Act.^[10]

Supreme Court challenges

The Supreme Court has several times declined to hear challenges to the act and has twice upheld its constitutionality. In a 1947 case brought by the CIO, a divided court found that Congress had properly exercised its authority as long as it had not affected voting rights. Justice William O. Douglas objected to the assertion that "clean politics" required the act's restrictions: "it would hardly seem to be imperative to muzzle millions of citizens because some of them, if left to their constitutional freedoms, might corrupt the political process."^[11] In 1973, in a case brought by the National Association of Letter Carriers, a 6 to 3 decision found the act neither too broad nor unclear. The court's three most liberal justices, Douglas, William J. Brennan, and Thurgood Marshall, dissented. Douglas wrote: "It is no concern of government what an employee does in his or her spare time, whether religion, recreation, social work or politics is his hobby, unless what he or she does impairs efficiency or other facets of the merits of his job."^[12]

Amendments

In 1975, the House passed legislation allowing federal employees to participate in partisan elections and run for office, but the Senate took no action.^[13] In 1976, Democrats who controlled Congress had sought to win support by adding protections against the coercion of employees by their superiors and federal employee unions had supported the legislation. It passed the House on a vote of 241 to 164 and the Senate on a vote of 54 to 36. President Ford vetoed the legislation on April 12. He noted that coercion could be too subtle for the law to eliminate and that the Supreme Court had said in 1973 that the Hatch Act had achieved "a delicate balance between fair and effective government and the First Amendment rights of individual employees."^[14] President Carter proposed similar legislation in 1977.^[15] A proposed amendment to permit federal workers to participate in political campaigns passed the House on a 305 to 112 vote in 1987.^[16] In 1990 a similar bill passed the House on a vote of 334 to 87 and the Senate on a vote of 67 to 30. President George H.W. Bush vetoed the legislation,^[17] which the House voted to override 327 to 93 and the Senate sustained on a vote of 65 to 35, with 55 Democrats and 10 Republicans voting to override and 35 Republicans supporting the president's veto.^[18]

In 1993 the advocates for removing or modifying restrictions on the political activities of federal employees succeeded in enacting the Hatch Act Reform Amendments of 1993 (107 Stat. 1001) that removed the prohibition on participation in "political management or political campaigns." Federal employees are still forbidden to use their authority to affect the results of an election. They are also forbidden to run for office in a partisan election, to solicit or receive political contributions, and to engage in political activities while on duty or on federal property.ADDED CITATION SOURCE , Retrieved Nov 4, 2016 http://uscode.house.gov/statutes/pl/103/94.pdf and specific to "affect results of an election" citation  : http://www.ipmall.info/sites/default/files/hosted_resources/crs/R44469_2016-04-13.pdf page 4. President Barack Obama signed the Hatch Act Modernization Act of 2012 on December 28, 2012. It modified penalties under the Hatch Act to allow for disciplinary actions in addition to removal for federal employees; clarified the applicability to the District of Columbia of provisions that cover state and local governments; limited the prohibition on state and local employees running for elective office to employees whose salary is paid completely by federal loans or grants.^[19]

Applicability to U.S. military personnel

The Hatch Act does not apply to actively serving uniformed members of the U.S. Armed Forces, although it does apply to Department of Defense civil servants, as well as Department of Homeland Security civil servants in direct support of the United States Coast Guard. Uniformed personnel are subject to Department of Defense Directive 1344.10 (DoDD 1344.10), Political Activities by Members of the Armed Forces, and the spirit and intent of that directive is effectively the same as that of the Hatch Act for Federal civil servants. By agreement between the Secretary of Defense and the Secretary of Homeland Security, DoDD 1344.10 also applies to uniformed personnel of the Coast Guard at all times, whether it is operating as a service in the Department of Homeland Security or as part of the Navy under the Department of Defense.

As a directive, DoDD 1344.10 is considered to be in the same category as an order or regulation, and military personnel violating its provisions can be considered in violation of Article 92 (Failure to obey order or regulation) of the Uniform Code of Military Justice.^[20][21][22]

Recent events

• In 2006, the Utah Democratic Party challenged the candidacy of Ogden City Police Chief Jon Greiner for State Senate. The challenge was upheld by the U.S. Office of Special Counsel because the year prior the Ogden City Police Department received a federal grant to help pay for bulletproof vests. Jon Greiner appealed the decision, remained on the ballot, won the election and served one term (2006-2010) as Utah State Senator while the results of the appeal were unknown.^[23]
• In January 2007, the United States Office of Special Counsel (OSC) announced the results of investigations into whether certain events during the election campaigns of 2004 and 2006 violated the Hatch Act.^[24]
  • It found no violation when Kennedy Space Center officials allowed Senator John Kerry's presidential campaign to use a NASA facility for a 2004 campaign event, because no government employees worked at the facility in question. It found streaming the event to NASA employees and contractors violated the Hatch Act.
  • It reviewed a 2006 speech by NASA Administrator Dr. Michael D. Griffin in which he appeared to endorse Representative Tom DeLay for re-election. It determined that he "should have exercised better judgment" and took no further action.
• In June 2007, the OSC found that Lurita Alexis Doan, Administrator of the General Services Administration, violated the Hatch Act when she took part in a video conference with Karl Rove and other White House officials, and sent letters asking how to help Republican politicians get elected.^[25]
• In November 2007, Terre Haute, Indiana, mayor, Kevin Burke, challenged the candidacy of mayor-elect Duke Bennett under provisions of the Act. In November 2008, the Indiana Court of Appeals ruled that Bennett, who took office after a Vigo County, Indiana, judge ruled that he was eligible to serve, was ineligible under the terms of the Act. The ruling was nonbinding, pending Bennett's appeal to the Indiana Supreme Court.
• On May 6, 2008, FBI agents raided OSC offices and the home office of its director, Scott Bloch. The raids related to an investigation into allegations that Bloch's office had attempted to obstruct justice by hiring an outside company to delete computer files beyond recovery in order to prevent authorities from proving Bloch had violated the Hatch Act by retaliating against whistle-blowers in his office, an independent U.S. government agency "charged with protecting the rights of government whistle-blowers".^[26][27]
• In 2009 two scholars urged Congress to consider tightening the Hatch Act's restrictions.^[28]
• On September 13, 2012, the OSC charged Health and Human Services Secretary Kathleen Sebelius with violating the Hatch Act by making a political speech during an official government event. Sebelius later said she had made a mistake and that the error was "technical" in nature.^[29]
• On July 18, 2016, the OSC concluded that Housing and Urban Development Secretary Julian Castro violated the Hatch Act during an interview with Katie Couric. Castro admitted the violation, but denied any intent to violate the act. ^[30]
• On October 30, 2016, U.S. Senate Democrat Minority Leader Harry Reid stated that FBI Director James Comey may have violated the Hatch Act by sending a letter to the Congress on October 28, 2016, which stated that the FBI would be reopening their investigation of the Hillary Clinton email controversy.^[31][32] Also on October 30, Richard Painter, a chief White House ethics lawyer for the George W. Bush administration, published an op-ed saying that he had filed a complaint against the FBI with the OSC and with the Office of Government Ethics about the same matter.^[33]

Current restrictions

(See U.S. Office of Special Counsel "Hatch Act for Federal Employees")

Permitted and prohibited activities for employees who may participate in partisan political activity

These federal and D.C. employees may:

• be candidates for public office in nonpartisan elections
• register and vote as they choose
• assist in voter registration drives
• express opinions about candidates and issues
• contribute money to political organizations
• attend political fundraising functions
• attend and be active at political rallies and meetings
• join and be an active member of a political party or club
• sign nominating petitions
• campaign for or against referendum questions, constitutional amendments, municipal ordinances
• campaign for or against candidates in partisan elections
• make campaign speeches for candidates in partisan elections
• distribute campaign literature in partisan elections
• hold office in political clubs or parties

These federal and D.C. employees may not:

• use official authority or influence to interfere with an election
• solicit or discourage political activity of anyone with business before their agency
• solicit or receive political contributions (may be done in certain limited situations by federal labor or other employee organizations)
• be candidates for public office in partisan elections
• engage in political activity while:
  • on duty
  • in a government office
  • wearing an official uniform
  • using a government vehicle
• wear partisan political buttons on duty

Agencies and employees prohibited from engaging in partisan political activity

Employees of the following agencies (or agency components), or in the following categories, are subject to more extensive restrictions on their political activities than employees in other Departments and agencies:

• Administrative law judges (positions described at 5 U.S.C. § 5372)
• Central Intelligence Agency
• Contract Appeals Boards (positions described at 5 U.S.C. § 5372a)
• Criminal Division (Department of Justice)
• Defense Intelligence Agency
• Federal Bureau of Investigation
• Federal Election Commission
• Merit Systems Protection Board
• National Geospatial-Intelligence Agency
• National Security Agency
• National Security Council
• Office of Criminal Investigation (Internal Revenue Service)
• Office of Investigative Programs (Customs Service)
• Office of Law Enforcement (Bureau of Alcohol, Tobacco, Firearms and Explosives)
• United States Office of Special Counsel
• Secret Service
• Senior Executive Service

(career positions described at 5 U.S.C. § 3132(a)(4))

Permitted and prohibited activities for employees who may not participate in partisan political activity

These federal employees may:

• register and vote as they choose
• assist in voter registration drives
• express opinions about candidates and issues
• participate in campaigns where none of the candidates represent a political party
• contribute money to political organizations or attend political fund raising functions
• attend political rallies and meetings
• join political clubs or parties
• sign nominating petitions
• campaign for or against referendum questions, constitutional amendments, municipal ordinances

These federal employees may not:

• be candidates for public office in partisan elections
• campaign for or against a candidate or slate of candidates in partisan elections
• make campaign speeches
• collect contributions or sell tickets to political fund raising functions
• distribute campaign material in partisan elections
• organize or manage political rallies or meetings
• hold office in political clubs or parties
• circulate nominating petitions
• work to register voters for one party only
• wear political buttons at work

Additionally, one of the early consequences of the act, were disparate court rulings in union busting cases which forbade the use of voter information from initiative and recall petitions for any purposes outside the intended elections.

See also

• Office of Personnel Management
• United States civil service
• Smith Act
• House Un-American Activities Committee
• U.S. Public Workers v. Mitchell

Footnotes

Further reading

• Brown, Cynthia and Maskell, Jack. Hatch Act Restrictions on Federal Employees’ Political Activities in the Digital Age. Congressional Research Service, April 13, 2016.
• Dorothy Ganfield Fowler, "Precursors of the Hatch Act,: Mississippi Valley Historical Review, vol. 47, no. 2 (Sept. 1960), pp. 247–262. In JSTOR

External links

• Discussion of Hatch Act on federal, state, and local government employees by the U. S. Office of Special Counsel
• Hatch Act: Candidacy for Office by Federal Employees in the Executive Branch Congressional Research Service