WASHINGTON, D.C. (Government Executive) — The Trump administration on Friday relaxed enforcement of certain rules under the Hatch Act, a law that restricts the partisan political activity of federal employees.
Specifically, the Office of Special Counsel, which enforces the Hatch Act, rescinded a May 2024 advisory opinion put out under former Special Counsel Hamption Dellinger. After a legal battle, the president ultimately removed him in March.
One of the changes would allow federal employees to once again wear campaign paraphernalia as long as the items are not in support of an individual who is actively running for office. Dellinger had reversed a policy under which government workers could wear campaign items in the workplace after Election Day, opting instead for a year-round prohibition.
“Having seen the policy applied in practice, OSC concludes that the rule creates too great a burden on First Amendment interests and must therefore be discarded,” according to Friday’s advisory opinion.
Stephanie Rapp-Tully, an attorney who specializes in federal employment law, said that the changes suggest that federal employees could wear “Make America Great Again” gear. But that also implies they could wear items supporting 2024 Democratic presidential candidate Kamala Harris.
“If you have a Harris hat, it could just be a historical item now, or she could run in four years,” she said. “If there is a Hatch Act violation found for things like a Harris hat, for example, and discipline is issued, I think that could open up the way for litigation because it is unclear.”
Also, OSC will again refer Hatch Act violations against non-Senate confirmed political appointees in the White House to the president for disciplinary action rather than the Merit Systems Protection Board, an independent, quasi-judicial federal employee appeals board.
Dellinger had closed that “loophole,” arguing in a May 2024 op-ed in Politico that: “This distinction creates separate and not automatically equal systems of accountability for violators, one where an independent adjudicator (the MSPB) can impose sanctions and another where it is left to the president to dole out — or not — any consequences.”
On the other hand, OSC is now arguing that there’s jurisdictional concerns over whether the MSPB can discipline White House officials. The three-member MSPB currently lacks a quorum because Raymond Limon left when his term ended and Trump fired Cathy Harris, who is currently challenging her termination.
OSC also said that it would stop seeking disciplinary action against individuals who have left federal service before a Hatch Act complaint is filed against them.
“OSC is currently litigating such a case before the MSPB. Until the legal question concerning jurisdiction is resolved to OSC’s satisfaction, OSC will refrain from filing any new complaints against former employees,” according to the advisory opinion.
