Hatch Act and Political Activity in the Workplace
AS THE ELECTION DRAWS NEARER during this year’s contentious campaign season, experts are warning feds to redouble their efforts to keep their political views and activities well clear of the federal workplace.
Restrictions to those activities are laid out in the Hatch Act, a 1939 law named for Sen. Carl Hatch (R-N.M.).
“The Hatch Act, and its amendments, is intended to keep partisan political activity out of the federal workplace,” said Cheri L. Cannon, an attorney and managing partner with the federal labor and employment practice group of the D.C. office of Tully Rinckey PLLC. “It is a complicated system, really, but for the average employee the restrictions in effect basically demand that employees remain politically neutral in the office, at any kind of federal work, and to not use their influence to act in any partisan way.”
“So, for example, the regular restrictions include if you are engaging in political, partisan activity from home— say, writing something on behalf of a candidate or something—you cannot use your title or position, at all, in any kind of correspondence or writing,” Cannon told FEND.
Cannon added that no federal employee—except for the president, vice president and certain Senate-confirmed political appointees—can solicit or accept a donation, or any kind of political contribution, on behalf of a political candidate or group—or even sell tickets to political fundraisers.
“Now, you can attend political fundraisers, on your own personal time— you can go to a house or rally, and campaign for candidates or constitutional amendments or whatever you’d like,” Cannon clarified. “But you cannot host anything like that at your home.”
Cannon said that, under the Hatch Act, all covered feds cannot run for any political office—and if they are holding one when they get a federal job, they have to give it up immediately or face prosecution.
“You cannot do anything political while on duty—and you cannot do anything in a federal building or—and not everyone remembers this—a federal vehicle,” Cannon said.
“You might think this is obvious— but in my years on this work I have seen feds running for political office, and they really should have known better,” Cannon told FEND. “I have also seen people sending out political information, cartoons and the like to their subordinates, at all times, and all kinds of mistakes like this.”
SPECIAL PROBLEMS IN 2016
Endless newspaper, magazine and television news stories also have acted to reinforce the partisan nature of this year’s political campaigns.
“One or the other of the candidates is easier to make fun of, with lots of jokes being generated,” Richard Painter, an expert on the Hatch Act and law professor at the University of Minnesota told FEND. “When these jokes are brought into the office—like posters, papers, cartoons—it can cause a problem, and it will lead to accusations of a Hatch Act violation.”
“With this year’s election, you’re going to have a one or two people in many offices who will make these mistakes, and a few who will be upset and will report it,” he said.
“People are getting emotional about this election—getting worked up,” Painter said. “You just have to keep it out of the office—and that goes for every single federal employee, other than those who are Senate-confirmed and some in the White House,” Painter said.
“This election is one of heavy passions—and not just about issues, but about personalities. We’ve never seen this in recent times—well, there was the 1998 [Bill Clinton] scandal, but all that happened after that president had been re-elected, so it didn’t get into the campaign.”
“You just cannot have a situation where there are people bringing it into the office,” Painter pointed out. “This election season is also seeing emails and other political messages. People really must keep all this off of government email and out of the office.”
Painter noted there also are some things feds can do. “You can have a non-political photo of yourself next to Mrs. Clinton in her role as secretary of state, for instance—but you just cannot have any political aspect to it,” he said.
AVOIDING ONLINE PERILS
Online, there are many, and in some cases complicated, restrictions on what federal employees can and cannot do, as Tully’s Cannon explained to FEND.
“You don’t check your First Amendment rights at the door when you take a federal job, but there are certain things every fed should be aware of,” Cannon said. “You cannot use a social media account that notes your official capacity for anything political—and you cannot tweet, retweet, share or solicit political contributions, and you cannot fundraise through your social media.
“Do not use your government computers and devices for anything political—and you can’t ‘like’ candidates or partisan groups while you are on duty or on your social media—even using your own personal Facebook page,” Cannon said. “Now, if you are at home, and on your personal Facebook page, you can ‘like.’”
“You do meet feds who have official capacity social media pages, and they also create private pages for off-duty, off-campus use—and even then you must be cautious about how you use social media,” Cannon said.
“This is the future of the Hatch Act and its enforcement,” Cannon said. “As different platforms and programs develop and change, I see the law will have to develop and change too.”