Hatch Act

by:

The Hatch Act of 1939 dictates that employees of the executive branch of the federal government, the District of Columbia government, as well as state and local employees who are affiliated with federally funded programs, are prohibited from publicly take a side when it comes to engaging in political activities.

The Hatch Act (the “Act”) was amended in 1993 to allow most federal employees participate in certain types of political activities, provided they do it on their own time and not while on the job. To explore this concept, consider the following Hatch Act definition.

Definition of Hatch Act

Noun  

  1. A law that limits the types of political activities in which employees of the federal, state, and local governments can participate.

Origin

1939                U.S. federal legislation

What is the Hatch Act

The is a federal law that bars certain governmental employees from taking part in political activities. Members of the Armed Forces are not covered by the Hatch Act, though their activities are governed by the Department of Defense (“DoD”). Prohibited activities include such things as holding public office while still employed in a covered government job, managing a politician’s campaign, or taking part in any activities that attempt to sway a person’s vote one way or another. Civil servants are prohibited from publicly taking a political side, but must remain neutral always, when in their public capacities.

Violating the Hatch Act

Violating the Hatch Act can result in punishments range from a warning to an outright dismissal. The Act has inspired its fair share of controversy over the years, as some have argued that it is a direct violation of an American citizen’s rights under the First Amendment to the U.S. Constitution. The U.S. Supreme Court has struck down this claim on two separate occasions.

There have actually been several examples of Hatch Act violations in the past ten years. Some of these incidents include:

  • June 2007 – Lurita Alexis Doan, the administrator of the General Services Administration, was found to have violated the Hatch Act for her involvement in attempting to get Republican politicians elected.
  • May 2008 – Scott Bloch, Director of the Office of Special Counsel (“OSC”), which is a government agency responsible for enforcing the Hatch Act, and protecting the rights of people who report wrongdoing, or illegal activities, within the government. The FBI raided OSC offices, as well as Bloch’s home, as part of an investigation into allegations that Bloch had violated the Hatch Act in trying to exact revenge upon whistle-blowers in his office. Bloch was accused of obstructing justice by hiring an independent company to shred computer files proving the Hatch Act violations.
  • September 2012 – Kathleen Sebelius, the Health and Human Services Director, was accused of violating the Hatch Act when she made a political speech during a government event. Sebelius claimed that she had made a mistake due to a technical error.
  • July 2016 – Julian Castro, the Housing and Urban Development Secretary, was found by the OSC to have violated the Hatch Act while being interviewed by television journalist Katie Couric. Castro admitted to the violation, but denied that the violation was done on purpose.

Hatch Act History

The Hatch Act came about as a result of growing concerns over the political activities in which people in positions of power were engaging. As far back as 1801, President Thomas Jefferson was so concerned about this issue that he issued an Executive Order, which established that federal workers were prohibited from influencing others in who they would vote for, and from taking part in “electioneering,” or campaigning.

The Pendleton Act was introduced in 1883, in an effort to establish a fair way to determine how government employees are to be selected for hire, and what must occur in order for them to be fired. A major concern throughout Hatch Act history, and goal of the Pendleton Act was to prohibit the firing of government employees because of their political affiliation, or for their support of, or contributions to, a candidate’s campaign.

Hatch Act history continued as President Theodore Roosevelt issued Executive Order 642 in 1907. This order prohibited certain government employees from using their positions to skew elections, or engaging in political management and campaigning. This Executive Order 642 was an important moment in Hatch Act history because it was the first instance of federal employees having their First Amendment rights to political speech limited.

The Hatch Act can be considered a mash-up of the Pendleton Act and Roosevelt’s Executive Order 642. Instead of coming up with individual rules for different employees of the government, the Hatch Act offers a blanket law that covers all federal employees. When President Franklin D. Roosevelt put the New Deal into effect, people’s concerns grew because those in federal positions received higher rankings; they were also concerned because they saw the New Deal as a way for the President to have greater influence over upcoming elections. The enactment of the Hatch Act on the heels of the New Deal relieved many people.

Hatch Act Amendments

There have been several Hatch Act Amendments since the law was established in 1939. The first occurred only a year later, in 1940, when Congress extended the Act’s influence, by including more types of federal employees, and employees of state and local governments which receive federal funds. Though, some of the restrictions of this new amendment were later relaxed.

In 1975, the House passed an amendment that would permit federal employees to both participate in partisan elections, and run for public office, though the Senate did not respond. In 1987, another Hatch Act amendment was passed by the House to allow federal workers to actively participate in political campaigns, though it failed to gain Senate approval. A similar bill was approved by both houses of Congress in 1990, but President George H.W. Bush vetoed it.

Currently, examples of Hatch Act restrictions still imposed upon federal employees include prohibitions against:

  • Using their political positions to sway an election.
  • Running for public office.
  • Campaigning for, or receiving political contributions.
  • Engaging in political activities while either on the job, or on federal property.

However, they can now participate in political management and/or taking an active role in a political campaign, thanks to the Hatch Act Reform Amendments of 1993, which lifted these prohibitions. Additionally, the 1993 amendments barred elected officials from offering unsolicited recommendations for those in the job market who were seeking federal positions.

In 2012, President Barack Obama signed the Hatch Act Modernization Act of 2012; though, rather than arguing for more rights for federal employees, this Hatch Act amendment actually served to clarify the punishments one might receive, should he or she choose to break the law. Now, disciplinary actions can be taken against the employee, including termination of employment, or removal from office. The new amendment also permits federal employees whose salaries are paid entirely via federal loans or grants to run for elective office.

Over the years, examples of Hatch Act penalties that a federal employee could face for violating the law have varied. For instance, an offending employee could face suspension without pay for violating the Hatch Act. At the state level, the Hatch Act has been significantly revised over time in accordance with the statutes for each particular state.

Hatch Act Example in Raucous Presidential Election Campaign

In the early stages of the 2016 presidential race, the Secretary of Housing and Urban Development, Julian Castro, agreed to be interviewed by journalist Katie Couric. Castro told Couric that he thought Hillary Clinton was right for the Presidential job, and that her opponent, Donald Trump, was unfit to run. At the time, Castro was rumored to be in the running for Democratic Vice President, alongside Presidential candidate Hillary Clinton, and special counsel found that he had violated the Hatch Act as a result of making these comments while giving the interview in his “official capacity.”

Defending his position, Castro said he had told Couric specifically that he was “taking off [his] HUD hat” and that he never intended to violate the Hatch Act, but counsel found otherwise, considering how he specifically discussed HUD alternatives over the course of an 18-minute portion of the interview. Investigators believed that Castro deliberately mixed business with his personal beliefs, and when Castro was given more time to reflect on his actions, he too came to a conclusion that he “blurred” the line between his business-related responsibilities and his personal political beliefs. President Obama has made similar remarks in favor of Hillary Clinton, and denouncing Donald Trump, however the same rules do not apply to the President or the Vice President.

Although the President is immune to the Hatch Act, members of the President’s cabinet must remain mum on the topic of partisan politics. Castro is not the first offender here either; in 2012, Kathleen Sebelius, the former Secretary of Health and Human Services for the Obama administration, was also found to be in violation of the Hatch Act while offering personal political commentary during a speech she gave while traveling with government funding – which she later reimbursed.

Related Legal Terms and Issues

  • Executive Order – An order made by a U.S. President, or a government agency, that has the same force of law.
  • Injunction – A court order preventing an individual or entity from beginning or continuing an action.
  • New Deal – A group of government programs established by President Franklin D. Roosevelt, for the purpose of improving conditions for people suffering during the Great Depression.