Hatch Act of 1939

The Hatch Act of 1939, An Act to Prevent Pernicious Political Activities, is a United States federal law. Its main provision prohibits all employees in the executive branch of the federal government[3], except the president and vice president[4], from engaging in some forms of political activity. It went into law on August 2, 1939. The law was named for Senator Carl Hatch of New Mexico. It was most recently amended in 2012.[5]

For other uses, see Hatch Act.
Hatch Act of 1939
Long titleAn Act to Prevent Pernicious Political Activities
Enacted bythe 76th United States Congress
EffectiveAugust 2, 1939
Citations
Public lawPub.L. 76–252
Statutes at Large53 Stat. 1147
Codification
U.S.C. sections created5 U.S.C. §§ 7321–7326[1]
Legislative history
Major amendments
1993, 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,[6] 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 advantage.[7] 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.[8]

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 initiate 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.[9]

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:[10]

  • (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 act also precludes federal employees from membership in "any political organization which advocates the overthrow of our constitutional form of government,"[11] a provision meant to prohibit membership in organizations on the far left and far right, such as the Communist Party USA and the German-American Bund.[12]

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.[13]

The Merit Systems Protection Board and the Office of Special Counsel (OSC) are responsible for enforcement of the Hatch Act.[14]

Supreme Court challenges
Further information: United Public Workers v. Mitchell and United States Civil Service Commission v. National Association of Letter Carriers

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."[15] 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."[16]

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.[17] 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."[18] President Carter proposed similar legislation in 1977.[19] A proposed amendment to permit federal workers to participate in political campaigns passed the House on a 305 to 112 vote in 1987.[20] 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,[21] 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.[22]

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.[23]

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.[24]

Applicability to U.S. uniformed service personnel

The Hatch Act does not apply to actively serving uniformed members of the uniformed services of the United States, 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. Members of the U.S. Armed Forces 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.[25][26][27]

Members of the United States Public Health Service Commissioned Corps are subject to specific Health and Human Service regulations found in Title 44, Code of Federal Regulations Part 73 Subpart F.[28] Hatch Act guidelines for NOAA Corps Officers are provided by United States Department of Commerce, Office of the General Counsel, Ethics Law and Program Division.[29] Career members of the Senior Executive Service, administrative law judges, and National Oceanic and Atmospheric Administration Corps officers are all subject to Hatch Act restrictions and have additional limitations on their off-duty political activities.[30]

2006–present
  • 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. OSC 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.[31]
  • In January 2007, the OSC announced the results of investigations into whether certain events during the election campaigns of 2004 and 2006 violated the Hatch Act.[32]
    • 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.[33]
  • In November 2007, the mayor of Terre Haute, Indiana (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".[34][35]
  • In 2009 two scholars urged Congress to consider tightening the Hatch Act's restrictions.[36]
  • 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.[37]
  • 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.[38]
  • On October 30, 2016, U.S. Senate Democratic 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.[39][40] 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.[41]
  • In November 2016, two Bay Area federal employees who were elected to school boards were told that they would have to resign their federal positions in order to serve on the boards, as their running for a non-partisan seat that had party political involvement contravened the Hatch Act. Both Jerrold Parsons, President of the John Swett Unified School District, and Ana Galindo-Marrone, Vice Mayor of Pacifica, chose not to serve in order to retain their federal jobs.[42]
  • In June 2017, the OSC issued a warning to Dan Scavino Jr. for an April 2017 tweet that Scavino sent advocating for a primary challenge against U.S. Representative Justin Amash.[43]
  • In October 2017, the OSC issued a warning to United States Ambassador to the United Nations Nikki Haley for a June 2017 tweet that Haley retweeted from President Donald Trump endorsing Republican Congressional candidate Ralph Norman.[44]
  • In November 2017, former Office of Government Ethics head Walter Shaub filed a complaint against White House counselor Kellyanne Conway charging that her opposition to Roy Moore opponent Doug Jones during a segment on Fox and Friends violated the Hatch Act.[45] In March 2018, the OSC announced that Conway violated the Hatch act on that occasion and one other.[46]
  • In September 2018, the OSC issued a warning letter to Stephanie Grisham, the Press Secretary and Communications Director for the First Lady of the United States, for violating the act by including Trump's campaign slogan in a post on her government Twitter account.[47]
  • In November 2018, the OSC ruled that six Trump administration officials violated the Hatch Act after in posts to their government Twitter accounts, but declined to take disciplinary action. The OSC warned the officials—Raj Shah, deputy press secretary; Jessica Ditto, deputy director of communications; Madeleine Westerhout, executive assistant to the president; Helen Aguirre Ferré, former director of media affairs; Alyssa Farah, press secretary for the vice president; and Jacob Wood, deputy communications director of the Office of Management and Budget—that future infractions would be interpreted as willful violations subject to further action.[48]
  • In June 2019, the OSC sent a letter to President Trump recommending that White House counselor Kellyanne Conway be removed from federal service for repeatedly violating the Hatch Act. This report follows the March 2018 OSC finding that Conway was a "repeat offender" for disparaging Democratic presidential candidates while in her official capacity during televised interviews and on social media.[49] President Trump, when asked at a press conference, stated he thought the provision violated her free speech rights.[49]

Current restrictions
Permitted and prohibited activities for Federal Employees
ActivityRegular Federal Employees[50]Restricted Federal Employees[51]
Active in partisan political managementPermittedProhibited
Assist in voter registration drivesPermittedNon-partisan only
Attend political rallies, meetings, and fundraisersPermitted
Be candidates in non-partisan electionsPermitted
Be candidates in partisan electionsProhibited
Campaign for or against candidatesPermittedProhibited
Campaign for or against referendum questions, constitutional amendments, or municipal ordinancesPermitted
Circulate nominating petitionsPermittedProhibited
Contribute money to partisan groups and candidates in partisan electionsPermitted
Distribute campaign literature to include via email or social mediaPermittedProhibited
Engage in political activity while on dutyProhibited
Express opinions about partisan groups and candidates in partisan elections while not at work or using official authorityPermitted
Express opinions about political issuesPermitted
invite subordinate employees to political events or otherwise suggest that they engage in political activityProhibited
Join partisan groupsPermitted
Make campaign speeches for candidates in partisan electionsPermittedProhibited
Participate in campaignsPermittedOnly if candidates do not represent a political party
Register and vote as they choosePermitted
Sign nominating petitionsPermitted
Solicit or discourage the political activity of any person with business before the agency[lower-alpha 1]Prohibited
Solicit, accept, or receive political contributions (including hosting or inviting others to political fundraisers)Prohibited
Use official authority to interfere with an election or while engaged in political activityProhibited
Notes:   
  1. Allowed if both persons are members of the same federal labor or employee organization, the person solicited is not a subordinate employee, the solicitation is for a contribution to the organization’s political action committee, and the solicitation does not occur while on duty or in the workplace

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.

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.

gollark: I'm aware. Work is in progress to enfastify it.
gollark: ELIZA is also bad though? Giant multi-hundred-million-parameter language models are not that bad but too slow?
gollark: Oh. Markov chains. Denied.
gollark: They need food and sleep though. I can enslave neural networks more easily.
gollark: Kidnap "Mark V. Shaney" and make them chat to people?

See also

Footnotes
  1. "Political Activities". oge.gov. U.S. Office of Government Ethics. Retrieved August 8, 2020.
  2. "TO PASS S. 1871, A BILL TO PREVENT PERNICIOUS POLITICAL ACTIVITIES (THE HATCH ACT)". govtrack.us. Govtrack. Retrieved August 12, 2020.
  3. Brown, Cynthia; Maskell, Jack (April 13, 2016). "Hatch Act Restrictions on Federal Employees' Political Activities in the Digital Age" (PDF). Congressional Research Service. p. 4. Retrieved November 3, 2016.
  4. "Federal Employee Hatch Act Information". osc.gov. U.S. Office of Special Counsel. Retrieved August 8, 2020.
  5. "Hatch Act". Encyclopedia Britannica. 20 July 1998. Retrieved 13 June 2017.
  6. Robert J. Leupold (1975). "The Kentucky WPA: Relief and Politics, May–November, 1935". Filson Club History Quarterly. 49 (2): 152–168. Archived from the original on 2012-03-28.
  7. Priscilla F. Clement (1971). "The Works Progress Administration In Pennsylvania: 1935–1940". Pennsylvania Magazine of History and Biography. 95 (2): 244–260. JSTOR 20090543.
  8. Tindall, George B. (1967). The Emergence of the New South, 1913–1945. Louisiana State University Press. pp. 629–20. ISBN 9780807100202.
  9. Smith, Jason Scott (2006). Building New Deal Liberalism: The Political Economy of Public Works, 1933–1956. NY: Cambridge University Press. pp. 184–6. ISBN 9780521828055.
  10. "Envoys Declared Outside Hatch Act" (PDF). New York Times. 24 October 1940. Retrieved 6 September 2012.(subscription required)
  11. Moynihan, Daniel Patrick (1998). Secrecy: The American Experience. Yale University Press. pp. 159. ISBN 0300080794.
  12. Stone, Geoffrey R. (2004). Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism. W.W. Norton. pp. 342. ISBN 9780393058802.
  13. Jason C. Miller, The Unwise and Unconstitutional Hatch Act: Why State and Local Government Employees Should be Free to Run for Public Office, 34 S. Ill. U. L.J.___ (forthcoming 2010)
  14. William V. Luneburg. Hatch Act (1939). enotes.com
  15. Walz, Jay (February 11, 1947). "CIO Fails in Highest Court to Void 'Clean Politics' Act" (PDF). New York Times. Retrieved June 12, 2013.
  16. "Supreme Court Upholds Hatch Act, 6–3; Says Curbs on Political Activity Are Fair" (PDF). New York Times. June 26, 1973. Retrieved June 12, 2013.
  17. Madden, Richard (December 21, 1975). "Congressional Session Marked by Clashes with Ford on Energy and Tax Cut" (PDF). New York Times. Retrieved June 13, 2013.
  18. Naughton, James M. (April 13, 1976). "Ford Vetoes Bill to Ease Hatch Act" (PDF). New York Times. Retrieved June 13, 2013.
  19. Weaver, Jr., Warren (March 23, 1977). "Carter Proposes End of Electoral College in Presidential Votes" (PDF). New York Times. Retrieved 13 June 2013.
  20. Pear, Robert (November 18, 1987). "House Approves Bill to Lift Curbs On Federal Employees in Politics". New York Times. Retrieved June 13, 2013.
  21. Dowd, Maureen (June 16, 1990). "President Vetoes a Bill and Makes a Threat on Second". New York Times. Retrieved June 13, 2013.
  22. Berke, Richard L. (June 22, 1990). "Senate Upholds Veto of Bill On U.S. Workers in Politics". New York Times. Retrieved June 13, 2013.
  23. 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.
  24. "Statement by the Press Secretary..." Statements and Releases. whitehouse.gov. Retrieved February 9, 2013.
  25. Directive 1344.10. Political Activities by Members of the Armed Forces. Department of Defense (2008-02-19).
  26. Cpl. R. Drew Hendricks, "DoD policy limits political practices in the workplace". Marine Forces Pacific. marines.mil (2008-01-31).
  27. Christopher Garcia. Political Activities. Office of Under Secretary of Defense for Personnel & Readiness.
  28. "45 CFR Part 73, Subpart F – Political Activity". Legal Information Institute. Cornell Law School. Retrieved 31 May 2018.
  29. US Dept of Commerce, Office of the General Counsel, Ethics Law and Programs Division (ELPD)
  30. US Dept of Commerce, Office of the General Counsel,Political Activities
  31. Loftin, Josh (November 1, 2006). "Police chief plans to stay in Senate race". Deseret Morning News. Retrieved July 8, 2012.
  32. "OSC: High Level NASA Hatch Investigations Present Cautionary Tale". OSC.gov (Press release). January 29, 2007. Archived from the original on February 5, 2007. Retrieved June 16, 2019.
  33. "Doan's fate up to president; Hatch Act violation could prompt firing," Federal Times, May 28, 2007
  34. Rood, Justin (May 6, 2008). "FBI Raids Bush Official's Office". ABCNews.Go.com. Retrieved February 10, 2012.
  35. Shenon, Philip (May 7, 2008). "F.B.I. Raids Office of Special Counsel". New York Times. Retrieved February 12, 2013.
  36. Bowman, James S.; West, Jonathan P. (2009). "To 'Re-Hatch' Public Employees or Not? An Ethical Analysis of the Relaxation of Restrictions on Political Activities in Public Service". Public Administration Review. 69 (1): 52–63. doi:10.1111/j.1540-6210.2008.01940.x.
  37. "White House indicates Sebelius won't be punished over Hatch Act violation". Fox News. September 13, 2012. Retrieved September 17, 2012.
  38. Korte, Gregory (July 18, 2016). "Investigation: HUD Secretary Julian Castro broke law by endorsing Clinton". USA Today. Retrieved July 20, 2016.
  39. "Harry Reid says FBI Director James Comey 'may have broken' federal law". FoxNews.com. October 30, 2016. Retrieved June 16, 2019.
  40. "Letter to Congress From F.B.I. Director on Clinton Email Case". The New York Times. October 28, 2016. Retrieved October 28, 2016.
  41. Painter, Richard W. (October 30, 2016). "On Clinton Emails, Did the F.B.I. Director Abuse His Power?". The New York Times. Retrieved June 16, 2019.
  42. "Hatch Act torpedoes Bay Area officials' re-election bids". East Bay Times. Retrieved 5 November 2016.
  43. Lipton, Eric (June 9, 2017). "White House Official's Political Tweet Was Illegal, Agency Says". New York Times. Retrieved June 20, 2017.
  44. Cohen, Zachary (October 3, 2017). "UN ambassador Nikki Haley warned over Trump retweet". CNN.com. Retrieved October 4, 2017.
  45. Gerstein, Josh (November 22, 2017). "Legal complaint filed over Kellyanne Conway's comments on Roy Moore race". POLITICO.com. Retrieved November 23, 2017.
  46. Lee, MJ (March 6, 2018). "Office of Special Counsel: Conway violated Hatch Act". CNN.com. Retrieved March 6, 2018.
  47. Bennett, Kate (September 21, 2018). "Melania Trump's spokeswoman reprimanded for Hatch Act violation". CNN.com. Retrieved December 9, 2018.
  48. Kaufman, Ellie (December 3, 2018). "6 White House officials found in violation of the Hatch Act". CNN.com. Retrieved December 9, 2018.
  49. Gallu, Joshua; Allison, Bill (June 13, 2019). "Kellyanne Conway Should Be Removed From White House Job, U.S. Agency Says". Bloomberg.com. Retrieved June 16, 2019.
  50. "Permitted and Prohibited Activities for Most Federal Employees" (PDF). osc.gov. U.S. Office of Special Counsel. September 2017. Retrieved August 5, 2020.
  51. "Permitted and Prohibited Activities for Federal Employees Subject to Further Restrictions" (PDF). osc.gov. U.S. Office of Special Counsel. September 2017. Retrieved August 5, 2020.

Further reading
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