04 September 2008

Law on Political Activity Restricts, Protects Government Workers

Hatch Act promotes nonpolitical civil service, but limits free speech

 

The 1881 attack on President James Garfield by a disgruntled job-seeker lent impetus to civil service reform.

The 1881 attack on President James Garfield by a disgruntled job-seeker lent impetus to civil service reform.

By Bridget Hunter
Staff Writer

Washington – A 70-year-old U.S. law attempts to strike a balance between ensuring a politically neutral government work force and protecting the constitutional rights of government workers.

The 1939 Hatch Act, named for its sponsor, Senator Carl Hatch, is formally titled “An Act to Prevent Pernicious Political Activities.” It prohibits government employees from holding most elected public offices, participating in political campaigns, raising money for political candidates or considering political affiliations in hiring decisions. Violations of the act carry penalties that range from a warning letter to termination of employment.

But the act also protects government workers by insulating them from political coercion. For instance, a civil servant cannot be fired, disciplined or discriminated against for refusing to work on a political campaign or to contribute to a political party or candidate. In addition, the Hatch Act restricts political patronage – awarding government jobs based on relationships with or the influence of elected officials.

One section of the act provides an exemption from the ban on political activities for high-ranking officials appointed by the president. This allows people like the president’s personal advisers and Cabinet secretaries to continue to participate in the political activities of their party.

Many lawsuits have challenged the act, alleging it infringes on a worker’s First Amendment right to free speech, but the Supreme Court has upheld it twice. In 1947, in United Public Workers of America v. Mitchell, the Supreme Court weighed individual free speech rights against the "elemental need for order" in government operations and found the latter more important. In 1973, the court rejected a similar challenge, United States Civil Service Commission v. National Association of Letter Carriers, with the same reasoning.

"Unfortunately for those individuals who have chosen a career in the federal public service," writes author Michael Bridges in a 1993 Houston Law Review article, "the Court has found that Congress may place an asterisk beside their First Amendment rights."

In 1993, Congress amended the law to keep elected officials from making unsolicited recommendations for federal employment and to impose tighter restrictions on a select group of workers engaged in law enforcement, intelligence and security operations.

It also expanded permissible activities for most government workers, who are allowed to run for public office in nonpartisan elections, assist in voter-registration drives, contribute money to political organizations, attend political fundraisers, participate in political rallies and meetings, and distribute campaign literature, among other activities.

However, employees remain banned from: using official authority to interfere with an election; soliciting or discouraging political activity of anyone with business before their agencies; soliciting political contributions; running for office in partisan elections; and engaging in political activity while on duty, in uniform, at work or in a government vehicle.

DEPOLITICIZING THE CIVIL SERVICE

Representative Henry Waxman, chairman of the House Oversight and Government Reform Committee

The Hatch Act was a response to the alleged use of federal workers for partisan political purposes during President Franklin Roosevelt’s administration, but its roots can be traced to civil service reforms in the 1880s and perhaps even to concerns raised shortly after the nation’s founding.

In 1801, an executive order of President Thomas Jefferson said federal workers should neither "influence the votes of others, nor take part in the business of electioneering." Throughout the 19th century, U.S. presidents used executive orders to restrict various political activities of government workers.

During the same period, the “spoils system” of rewarding political loyalty with government jobs expanded tremendously, especially in the years following the U.S. Civil War. Between 1865 and 1891, the number of federal workers tripled, from 53,000 to 166,000, many working short hours for high pay.

In 1881, the formation of the National Civil Service Reform League and President James Garfield’s assassination by a mentally ill job seeker helped draw popular support to the reform movement. Senator George Pendleton championed the 1883 law (the Pendleton Act) to limit patronage, saying “"the spoils system needs to be killed or it will kill the republic."

In 1939, the Hatch Act combined the Pendleton Act restrictions with prohibitions in the various executive orders to create a comprehensive approach to depoliticizing the civil service.

THE 2008 ELECTION

The U.S. Office of Special Counsel, an independent agency that enforces the Hatch Act, the Civil Service Reform Act and the Whistleblower Protection Act, advises government employees on whether contemplated political activities would be illegal. It issues more than 1,000 advisory opinions each year.

During a presidential election year, federal workers get regular reminders of Hatch Act restrictions, such as this notice from the Internal Revenue Service:

"With the Presidential and other campaigns in full swing, it is important to remind all Service employees of the rules surrounding political activities of federal employees. … While as U.S. citizens we all have the right to vote and express our personal opinions on political subjects and candidates, the Hatch Act does restrict certain political activities of federal employees.” The note includes a list of allowed and prohibited activities.

Guidance for Department of State employees, who represent U.S. interests around the world, is a bit more complicated. An August notice states, “Because the Department of State has a longstanding tradition of nonpartisanship in carrying out U.S. foreign policy, the Department has imposed rules in addition to the Hatch Act that govern the political activities of certain of its employees with respect to political party conventions.” It goes on to outline the restrictions that apply to various ranks within the department.

Early in 2008, the House Oversight and Government Reform Committee, chaired by Representative Henry Waxman, held hearings aimed at ensuring the Bush administration was not violating the Hatch Act. In the U.S. government, Congress (the legislative branch) has the authority to oversee the activities of the executive branch.

"If public officials are making poor decisions, abusing the public trust or wasting taxpayer dollars, they need to know that there's a cop on the beat," Waxman said.