Casting more than your vote: the Hatch Act and political involvement for law enforcement personnel.

'The basis of effective government is public confidence, and that confidence is endangered when ethical standards falter or appear to falter." (1)

--John F. Kennedy

Every election year brings more than simply the ability of exercising an individual's democratic right to vote. Elections also generate questions from legions of government workers concerning the impact of the federal statute governing partisan political activity, often referred to as the Hatch Act. Most federal employees know that the act applies to them in some way but they may not know how or why. More baffled yet are the unsuspecting state and local employees who find that the act may apply to them as well. This article explores the history and rationale behind the Hatch Act as well as to whom it applies and the scope of its reach.

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HISTORICAL BACKGROUND

In 1800, President Thomas Jefferson, in response to last-minute presidential appointments of key government positions by his predecessor designed to hamper his term, issued an Executive Order that said federal workers should neither "influence the votes of others nor take part in the business of electioneering." (2) He saw such activities as being "inconsistent with the spirit of the Constitution." (3) In issuing this Executive Order, President Jefferson began what would become a long and arduous attempt to neutralize politics in federal employment.

In 1882, Senator George H. Pendleton, perhaps in response to the 1881 assassination of President Garfield by a disappointed patronage seeker, argued that "the spoils system needs to be killed or it will kill the republic." (4) His argument led to the passage of the Pendleton Act of 1883. (5) The law, in addition to creating the Civil Service Commission, sought to eliminate patronage by insulating federal employees from coercion. It provided that they could not be fired for refusing to work on behalf of a candidate or for choosing not to make campaign contributions.

In 1907, President Theodore Roosevelt instituted additional measures to neutralize politics in federal employment through Executive Order 642. (6) The order forbid executive civil service employees from using their authority to interferein elections and barred federal civil servants from taking part in political management or campaigning. This order marked the first time that federal employees had limits placed on their First Amendment right to engage in political speech.

Finally, in 1939, led by the efforts of Senator Carl Hatch, Congress enacted "An Act to Prevent Pernicious Political Activity," which became known as the Hatch Act, out of concern that the administration, through the increase in the number of federal workers, sought to influence congressional elections. (7) Congress hoped that the act would curtail the president from meddling with elections while perpetuating his hold on the White House. The act combined the prohibitions of earlier Executive Orders and the Pendleton Act. It went further than previous attempts to end patronage by including restrictions on political activity for the entire federal bureaucracy.

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Congress further extended the scope of the Hatch Act in 1940 by including state and local government employees who work in connection with federal funds in the form of aid or grants. (8) Initially, state employees were not included in the act to enable states to function independent of the federal government. However, Congress quickly changed its mind and extended the act's ethical standards to state employees whose positions are tied to federal funds. The Hatch Act was amended in 1974 to allow for greater political activity by state and local employees. (9) This liberalization was given to most federal employees in a 1993 amendment to the act. (10)

JUDICIAL REVIEW

Freedom of speech is one of the "Four Cornerstones" of freedom listed in the First Amendment of the Constitution. (11) The most protected type of speech is political speech. The crux of the argument is whether government employees whose political activities are constrained by the Hatch Act are subjected to a watered-down version of constitutional rights. The U.S. Supreme Court has addressed whether the restrictions of the Hatch Act can be reconciled with the First Amendment's right to engage in political speech in a number of cases.

The Supreme Court first addressed the constitutionality of the Hatch Act in United Public Workers v. Mitchell.' (12) The Court sustained its constitutionality despite its infringement on speech, citing the significant government interests advanced by the act. In this case, the Civil Service Commission charged a government employee with off-duty political activity that violated the Hatch Act, and the employee faced dismissal for his conduct. The Court accepted the employee's contention that the Hatch Act creates a measure of interference with the nature of political rights reserved to the people by the Constitution. The Court did not accept the argument that such expression is not subject to regulation if done while not on the job, although admittedly could be regulated during work hours. The Court reasoned "the influence of political activity by government employees, if evil in its effects on ... the employees or people dealing with them, is hardly less so because that activity takes place after hours." (13)

The Supreme Court recognized the sanctity of the rights protected by the First Amendment but reaffirmed constitutional doctrine that such rights are not absolute. The Court stated that the "essential rights of the First Amendment in some circumstances are subject to the elemental need for order without which the guarantees of civil rights to others would be a mockery." (14) Thus, the Court must balance the extent of the guarantees of freedom against a congressional enactment to protect a democratic society from the supposed evil of political partisanship by classified employees of the government.

The Court stated that the Hatch Act leaves untouched full participation by employees in political decisions at the ballot box and forbids only the partisan activity of federal personnel deemed offensive to efficiency. With that limitation only, employees may make their contributions to public affairs as they did prior to the Hatch Act. The Court reasoned that Congress and the president are responsible for an efficient public service. If, in their judgment, efficiency may be best obtained by prohibiting active participation by classified employees in politics as party officers or workers, no constitutional objection could be made.

The Supreme Court upheld the Hatch Act ban on partisan political activities of federal employees. The Court concluded that the employee's first amendment right to engage in political speech and activity was subject to regulation within reasonable limits to protect the competency and integrity of the public service and to maintain authority over its discipline and efficiency.

In 1947, the Court considered a state challenge to the Hatch Act in Oklahoma v. Civil Service Commission. (15) In this case, the state of Oklahoma appealed a Civil Service Commission determination that a member of the Oklahoma Highway Commission be suspended or federal funds be withheld from the state for refusing to suspend the state employee. The Supreme Court affirmed the district court decision sustaining the order of the Civil Service Commission.

The commission determined that a state employee whose job was essentially financed through federal funds violated the Hatch Act by participating in improper political activity. A violation of this kind warranted removal from the office of Highway Commissioner of Oklahoma pursuant to the Hatch Act. If the employee was not removed, then highway grants to Oklahoma would be withheld in an amount equal to 2 years of the employee's wages.

The Court concluded that the Tenth Amendment, which protects the sovereignty of the states, did not deprive the federal government of the authority to exercise a granted power and apply it to an acceptable end. The end sought by Congress was better public service achieved through the Hatch Act by requiring state employees whose positions are tied to federal funds to abstain from active partisan participation. The Court did not see any violation of the state's sovereignty in the commission's hearing or order. The Court concluded that the state employee's partisan position clearly violated the Hatch Act and that the determination of the commission in ordering his removal was not an abuse of its discretion. Oklahoma decided not to yield to what it considered to be federal coercion and chose not to remove the employee. As an alternative enforcement measure in extending the Hatch Act to state employees, Congress settled on withholding federal funds as a remedy for violations if a state refused to remove an employee pursuant to a commission order. This enforcement mechanism allowed Congress to leave the ultimate employment decision to the states and to extend federal authority no further than federal money. This decision preserves the sovereignty of the states pursuant to the Tenth Amendment.

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The Supreme Court rejected another challenge to the Hatch Act in 1973 in U.S. Civil Service Commission v. National Ass 'n of Letter Carriers. (16) A three-judge district court decision recognized the government's interest in restricting political activities by federal employees yet held that the statutory definition of political activity was too vague and overbroad and, thus, unconstitutional. In this case, the Supreme Court disagreed, concluding that the Hatch Act prohibitions were neither unconstitutionally vague nor fatally overbroad.

The Court stated that its decision merely confirmed the judgment of history made over the last century by Congress and by the president that federal service should depend upon meritorious performance, rather than political service. The Court reasoned that the government's interest in regulating First Amendment activities of its employees differs greatly from those implicated with regulation of speech of general citizens with more deference afforded the government as employer. (17)

The Court said that Congress, in the Hatch Act, had struck a balance sustainable by the obviously important interests sought to be served by the limitations on partisan political activities contained in the act. While restraining First Amendment activities of government employees, the Hatch Act furthers the promotion of impartiality and fairness and protects the public by minimizing partisan enforcement of laws. (18)

Opponents of the Hatch Act have continued to attack the act throughout the subsequent years without success. (19) Although it may appear to some as a restraint of First Amendment speech, the act is "aimed to protect employees' rights, notably their right to free expression, rather than to restrict those rights." (20) Public confidence is paramount to efficient government and even the appearance of unethical partisan activity erodes that confidence to a disastrous extent. To ensure the rights of all citizens, Congress has balanced the rights of the people against the rights of individual government employees, providing protection for all from even the appearance of unethical partisan activities.

RESTRICTION COVERAGE AND SCOPE

Federal Executive Employees

All federal executive branch and civil service employees except the president and vice president are subject to the Hatch Act. Congress amended the act in 1993 permitting most federal employees to participate in some off-duty partisan political activities. (21) However, under the 1993 amendment, federal employees are placed into two categories, less restricted and further restricted employees. (22) Less restricted employees enjoy the looser restrictions of the 1993 amendment, permitting more partisan political activity than further restricted employees who generally work for agencies involved in law enforcement or national security issues. This would include, for example, personnel with the U.S. Department of Justice and the Central Intelligence Agency, along with some Treasury Department employees, to name a few.

Prohibited Activities

Regardless of an individual's status as either less restricted or further restricted, the act enumerates a number of political activities prohibited for all employees that it covers. Note that an employee of the government is still an employee even if on leave of any kind. (23) Prohibited activities include running for office in a partisan election, soliciting political contributions, soliciting or encouraging political activity of those with business before your agency, or using your official authority to affect the outcome of an election. (24) In addition, political contributions may not be received from subordinates, (25) and covered employees also may not participate in fundraising for political purposes. (26) Political activity on duty, as well as in government offices or vehicles or while wearing government uniforms, also is restricted. (27) On-duty political activity would include, for example, using government e-mail for political purposes, i.e., soliciting large numbers of employees as opposed to commenting in regard to political issues to a small number of associates similar to "water cooler" talk. (28) Another example would be participating in partisan voter registration drives during office hours. (29)

Further restricted employees may not "take an active part in political management or political campaigns." (30) This means that further restricted employees may not manage a partisan political campaign, (31) canvass for votes, or endorse or oppose a candidate in political literature in concert with a partisan group or person. (32) Political activity is restricted in regard to political groups by forbidding service as an officer of a political party or group; serving as a delegate, alternate, or proxy at a party convention; and making speeches for or against a candidate in connection with a political group. (33)

Further restricted employees, of course, may vote in all partisan elections and express opinions on political subjects. (34) They also may work in nonpartisan campaigns; attend political meetings; donate money to political parties and candidates; and sign, but not distribute, nominating petitions. (35)

State and Local Employees

Employees of state or local executive agencies are covered by the Hatch Act if, incident to their primary position, they perform duties connected to programs financed wholly or in part by federal funds. (36) If executive branch state or local employees as a normal incident of their job perform duties even in part financed by federal funds, they are bound by the Hatch Act limitations. (37) This does not mean that such employees must have discretionary authority over the funds. (38) Federal grant and loan programs typically triggering the Hatch Act include programs funding training, employment, overtime, community and regional development, emergency preparedness, and homeland security.

Select employees are specifically exempt from the restriction against running for office in partisan elections. These would include publicly elected offcials, such as sheriffs, mayors, and governors. (39) However, the other Hatch Act restrictions covering these officials still apply.

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Prohibited Activities

The provisions of the Hatch Act that apply to state and local employees employed in positions with duties connected to federal funds are not as restrictive as those relating to federal employees. Generally, covered state and local employees are restricted from 1) running for partisan political office, 2) coercing donations from subordinate employees, or 3) using their official authority to influence the results of an election. (40) For covered employees, the prohibition against candidacy includes not only running as a candidate but also preliminary activities to "test the water" for possible candidacy. (41) In addition, the prohibition against coercing donations refers not only to money but to time as well. (42)

Permitted Activities

There are a number of things that covered state and local employees may do even if they are considered covered employees under the Hatch Act. They may run for public office in nonpartisan elections, campaign for and hold office in political clubs and organizations, and actively campaign for candidates for public office in partisan and nonpartisan elections to include engaging in activities, such as drafting speeches, writing letters, contributing money to political organizations, and attending political fundraisers. (43)

VIOLATIONS AND PENALTIES

The Office of Special Counsel (OSC), established by the Civil Service Reform Act of 1978, is tasked with investigating Hatch Act violations. (44) All violations of the Hatch Act, whether by federal employees or by covered state and local employees, are subject to OSC investigation. Federal agencies involved in loaning or granting funds must report to OSC any activity of state and local officers that the agency has reason to believe violates the Hatch Act. (45) Private individuals also may submit complaints about Hatch Act violations.

If an OSC investigation uncovers evidence of a violation of the Hatch Act warranting prosecution, OSC files a written complaint before the Merit Systems Protection Board, which is responsible for adjudicating these complaints. A copy of the complaint is served on the employee. The employee has the right to contest the charges, including the right to a hearing before the board. (46)

Based on an investigation conducted by the OSC, the U.S. Merit Systems Protection Board determines if a Hatch Act violation has occurred and whether removal from employment is warranted. (47) For federal employees, those who violate the Hatch Act may lose their job or receive time off without pay. (48) Factors considered in the severity of discipline include 1) the nature of the offense and the extent of participation, 2) motive and intent, 3) whether legal advice was received concerning the act, 4) whether the activities ceased, 5) past employment history, and 6) the political coloring of the activities. (49)

With respect to state and local employees found to violate the Hatch Act, the federal government may recommend forfeiting the job; however, as the federal government lacks the ability to remove the state or local employee from employment, it is up to the state or local government to do so. If the decision is made by the state or local entity involved not to dismiss the employee, the entity may be directed to forfeit a portion of its federal funding equal to 2 years' salary of the employee. (50)

OSC can bring an enforcement action whether or not the employee is aware of the restrictions. If a violation is not severe and the employee was unaware of the provisions, OSC can issue a letter to allow the employee to come into compliance. If an employee disregards the letter, OSC can bring an enforcement action before the board. (51)

The best way to ensure that your actions conform to the Hatch Act is to confirm compliance with the Office of Special Counsel. The Office of Special Counsel issues advisory opinions on the application of the Hatch Act to a given employee, as well as the extent of the restrictions at issue and interpretation of applicable regulations. An advisory opinion can be obtained by contacting the Office of Special Counsel at 1-800-85-HATCH; or by e-mail at [e-mail]; by fax at 202-853-5151; or by mail at Office of Special Counsel, Hatch Act Unit, 1730 M Street NW, Suite 218, Washington. DC 20036-4505. The Office of Special Counsel also has an informative Web site at www.osc.gov.

CONCLUSION

The Federalist Papers discussed the fact that unchecked partisanship within the government will endanger the public's rights. (52) Given that Congress may not unduly make a law abridging freedom of speech, the press, or the right of the people to peaceably assemble, it cannot maintain a bureaucracy that works the same infringement. The Hatch Act was in response to scandals involving misuse of position and coercion of subordinates for partisan gain during a period of great expansion of federal power and political dominance by one party. The intent of the Hatch Act is to preserve and to protect the rights of government employees, as well as the public's right to an impartial bureaucracy that does not chill its right to free expression. The act fights corruption and political machines while trying to preserve the appearance of nonpartisanship, gain respect for the government, and ensure a professional civil service that protects the rights of the people.

Endnotes

(1) President John F. Kennedy, April 27, 1961, (special message to the Congress on the Conflict of Interest Legislation and on problems of ethics in government).

(2) James D. Richardson, A Compilation of the Messages and Papers of the Presidents, 1789-1897. at 98-99 (1899).

(3) Id

(4) 14 Cong. Rec. 206 (1882).

(5) 22 Stat. 403.

(6) Reprinted in I Presidential Executive Orders 61 (1944).

(7) An Act to Prevent Pernicious Political Activity (Hatch Act), 5 U.S.C, [section][section]1501-1508,7321-7326(1939).

(8)'See 5 U.S.C. [section] 1502(a)(3).

(9) Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, 88 Stat. 1290 (1974) (codified at 5 U.S.C. [section][section]1501-1503).

(10) Hatch Act Reform Amendments of 1993, Pub. L. No. 103-94, 107 Stat. 1001 (1993) (codified at 5 U.S.C. [section][section]7321-7326).

(11) U.S. CONST. amend. I.

(12) 67 S.Ct. 556(1947).

(13) Id

(14) Id

(15) 67 S.Ct. 544(1947).

(16) 93 S.Ct. 2880(1973).

(17) Id. at, citing Picketing v. Board of Education, 88 S.Ct. 1731,at 1734(1968).

(18) 93 S.Ct. at

(19) See Alexander v. U.S. Merit Sys. Prol. Bd, 165 F.3d 474 (6th Cir. 1999)( Hatch Act imposition of different punishments on state and federal employees does not violate the Equal Protection Clause as this was a rational response to diminish federal power regarding state and local employees by Congress.); Merle v. Untied States. 351 F.3d 92 (3d Cir. 2003)(noted that covered state employees could not run for office under the Hatch Act but could quit their jobs and do so finding no violation of the Qualifications Clause of the Constitution.); and, Burus v. Vegliante, 336 F.3d 82 (2d Cir. 2003)(held that reasonable regulation was appropriate for a union bulletin board in an interior nonpublic forum.).

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(20) United States v. Nat'I Treasury Employees Union, 513 U.S. 454, at 471 (1995).

(21) Hatch Act Reform Amendments of 1993, Pub. L. No. 103-94, 107 Stat. 1001 (1993) (codified at 5 U.S.C. [section][section]7321-7326).

(22) 5 U.S.C. [section]7323(b)(2)(B) (2000) lists the agencies whose employees are subject to the additional restrictions; some of these are the Federal Bureau of Investigation, the Secret Service, the Central Intelligence Agency, the National Security Council, the National Security Agency, the Defense Intelligence Agency, the Office of Special Counsel, the Office of Criminal Investigation of the Internal Revenue Service, the Office of Investigative Programs of the U.S. Customs Service, and the Office of Enforcement Programs and Services of the Bureau of Alcohol, Tobacco, and Firearms. (Some of the names have changed, but they are still considered under the restrictions).

(23) See Alexander v. United States Merit Sys. Prot. Bd., 165 F.3d 474 (6th Cir. 1999).

(24) 5 U.S.C. [section]7323(a) (2000).

(25) Id. at [section]7323(a)(2)(B).

(26) 5 C.F.R. 734.303(a) (2004).

(27) Ibid., 10 at [section]7324(a) see also 5 C.F.R. 734.306 ex. 11 (2000).

(28) Letter by William E. Reukauf, Associate Special Counsel for Investigation and Prosecution, U.S. Office of Special Counsel (May 30, 2002), available at http: //www.osc.gov/documents/halchact/federalJfha-29.htm.

(29) See Am. Fed'n of Gov't Employees v. O'Connor, 589 F. Supp. 1551 (D.D.C. 1984), vacated on other grounds, 747 F.2d 748 (B.C. Cir. 1984); see also Letter from K. William O'Connor, Special Counsel, U.S. Office of Special Counsel (Apr. 6, 1984) (on file with U.S. Office of Special Counsel); Letter from Scott .J. Bloch, Special Counsel, Office of Special Counsel (Apr. 14, 2004) [hereinafter Voter Registration Drive Advisory I], available at http://www.ose.goy/dneiiments/hatchact/federal/fha-31.htm ("In determining whether a voter registration drive is partisan, OSC considers all of the circumstances surrounding the drive. Some of the factors relevant to this inquiry, as discussed in our 1984 opinion, include: 1) the political activities of the sponsoring organization; 2) the degree to which that organization has become identified with the success or failure of a partisan political candidate, issue, or party (e.g., whether it has endorsed a candidate); 3) the nexus, if any, between the decision to undertake a voter registration drive and the other political objectives of the sponsor; 4) whether particular groups are targeted for registration on the basis of their perceived political preference; and 5) the nature of publicity circulated to targets of the drive immediately prior to or during the drive.").

(30) Ibid-, 10 at [section]73230X1).

(31) 5 C.F.R. 734.403.

(32)Id. at 734.404(a)(3) and (4).

(33) Id at 734.409(a) and (d).

(34) Id. at 734.203(a).

(35) Id. at 734.402-405.

(36) U.S.C. [section]1501(4)

(37) U.S.C. [section]1501 (2000); see also Special Counsel v. Gallagher. 44 M.S.P.B. 57 (1990); In re Hutchins, 2 P.A.R. 160. 164(1944).

(38) See 5 U.S.C. [section] 1501; see also Williams, 55 F.3d at 920-21; Gallagher, 44 M.S.P.B. at 57.

(39) 5 U.S.C. [section] 1502(a).

(40) U.S.C. [section] 1502(a).

(41) See In re Lukasik, 3 P.A.R. 34, 35 (1969).

(42) See Special Counsel v. Gallagher, 44 M.S.P.B. 57(1990).

(43) 5 U.S.C. 1502.

(44) 5 U.S.C. [section]1101.

(45) 5 U.S.C. [section]1504(2000).

(46) 5 U.S.C. [section]1505(2000).

(47) 5 U.S.C. [section]1505(2000).

(48) Id.

(49) See Special Counsel v. Purnell, 37 M.S.P.B. 184, 200 (1988), aff'd sub nom. Fela v. U.S. Merit Sys. Prot. Bd, 730 F. Supp. 779 (N.D. Ohio 1989); see also Alexander v. Merit Sys. Prot. Bd., 165 F.3d 474, 483 (6th Cir. 1999); Williams v. Merit Sys. Prot. Bd., 55 F.3d 917, 922 (4th Cir. 1995); Special Counsel v. Lee, 58 M.S.P.B. 81,91 (1993) (explaining and applying both the aggravating and mitigating factors).

(50) 5 U.S.C. [section]1506(a) (2000).

(51) Ibid. 46.

(52) The Federalist No. 76 (Clinton Ros-sitered. 1961).

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.