The Hatch Act is a federal law that restricts the political activity of executive branch employees of the federal government, District of Columbia government, and some state and local employees whose salaries are paid for partially or entirely with federal money.
The Hatch Act was passed in 1939 to ensure that federal programs "are administered in a nonpartisan fashion, to protect federal employees from political coercion in the workplace, and to ensure that federal employees are advanced based on merit and not based on political affiliation," according to the U.S. Office of Special Counsel.
Examples of Violations
In passing the Hatch Act, Congress affirmed that partisan activity government employees must be limited for public institutions to function fairly and effectively.
The courts have held that the Hatch Act is not an unconstitutional infringement on employees' First Amendment right to freedom of speech because it specifically provides that employees retain the right to speak out on political subjects and candidates.
All civilian employees in the executive branch of the federal government, except the president and the vice president, are covered by the provisions of the Hatch Act.
These employees may not:
- use official authority or influence to interfere with an election
- solicit or discourage political activity of anyone with business before their agency
- solicit or receive political contributions (may be done in certain limited situations by federal labor or other employee organizations)
- be candidates for public office in partisan elections
- engage in political activity while:
- on duty
- in a government office
- wearing an official uniform
- using a government vehicle
- wear partisan political buttons on duty
While the Hatch Act has been described as an "obscure" law, it is taken seriously and enforced. Health and Human Services Secretary Kathleen Sebelius was ruled to have violated the Hatch Act in 2012 for making “extemporaneous partisan remarks” on behalf of a political candidate.
Another Obama administration official, Housing and Urban Development Secretary Julian Castro, violated the Hatch Act by granting an interview while he was working in his official capacity to a reporter who asked about his political future.
Kellyanne Conway, counselor to President Donald Trump, violated the Hatch Act on "multiple occasions," according to the Special Counsel's Office. Conway gave press interviews in her official capacity as presidential adviser in which she advocator for and against candidates in the 2017 Alabama Senate special election.
Even after being advised she had violated the Hatch Act in doing so, Conway in 2019 disparaged Democratic presidential candidates in media interviews and on social media, the Office of Special Counsel noted, recommending the president fire Conway.
According to the act's provisions, an employee who violates the Hatch Act is to be removed from their position with all pay revoked.
However, if the Merit Systems Protection Board finds by unanimous vote that the violation does not warrant removal, they are to be suspended for at least 30 days without pay.
Federal employees should also be aware that certain political activities may also be criminal offenses under title 18 of the U.S. Code.
Concerns about the political activities of government employees are almost as old as the republic.
Under the leadership of Thomas Jefferson, the nation's third president, heads of the executive departments issued an order which stated that while it is
“the right of any officer (federal employee) to give his vote at elections as a qualified citizen… it is expected that he will not attempt to influence the votes of others nor take part in the business of electioneering, that being deemed Columbia and certain employees of state and local governments."
At the beginning of the 20th century, according to the Congressional Research Service:
"… Civil service rules imposed a general ban on voluntary, off-duty participation in partisan politics by merit system employees. The ban prohibited employees from using their 'official authority or influence for the purpose of interfering with an election or affecting the result thereof.' These rules were eventually codified in 1939 and are commonly known as the Hatch Act."
In 1993, a Republican Congress substantially relaxed the Hatch Act to permit most federal employees to take an active part in partisan management and partisan political campaigns in their own free time.
The ban on political activity remains in effect when those employees are on duty.