The Hatch Act: Showcasing the absurdity of Congress

Chairman Darrell Issa (R-Calif.) plans to introduce legislation to reform the archaic act after the August recess, with changes slated to take effect with the inauguration of the next president in 2013. Ethics experts say it will be a heavy lift to pass the measure by the end of President Obama’s first term, despite broad, bipartisan consensus that the law creates ridiculous rules. After all, it’s Congress.

Rep. Gerry Connolly (D-Va.) and Del. Eleanor Holmes Norton (D-D.C.), who represent a large chunk of the approximately three million federal government employees, sharply criticized the law’s application and construction. The hearing displayed a fair amount of bipartisan unity, despite Republicans’ criticism that the White House declined to send a witness.

Richard Painter, a White House ethics lawyer in President George W. Bush’s administration, praised the Obama administration’s decision in January to abolish the White House Office of Political Affairs (OPA), which the Special Counsel’s office blasted for Hatch Act violations during the 2006 midterm elections. However, Painter criticized the Obama administration for waiting two years to shutter the office and for continuing to sanction political involvement by White House aides in other offices. Painter called for the prohibition of all partisan activity by White House political employees, except the president and vice president.

“One hundred percent of U.S. government employees’ time should be devoted to the public interest, not to the work of a political party,” Painter said.

Scott Coffina, another Bush administration ethics lawyer, disagreed with his former colleague, arguing that abolishing OPA decreased transparency in the Obama administration and will lead to further Hatch Act violations because political staffers are no longer walled off from the rest of the staff.

“Politics in the White House do not just go away,” he said.

Coffina chided the Obama administration for a March meeting with Wall Street executives organized by the Democratic National Committee yet held in the Blue Room of the White House. White House Press Secretary Jay Carney spun the meeting as “totally precedented” and merely a gathering “with [President Obama’s] supporters in the business community to solicit ideas about how to improve the economy.” Carney has yet to provide a satisfactory explanation for why the DNC, rather than the White House, solicited the invitations.

Part of the problem is that the Clinton-era changes to the Hatch Act didn’t contemplate extensive use of e-mail or social networking services. In 2010, the Special Counsel’s office received a record number of complaints (526) and issued a record number of advisory opinions (“well over” 4,000) on how to interpret the law on a case-by-case basis, according to Ana Galindo-Marrone, the chief of the Special Counsel’s Hatch Act Unit. The ad hoc use of thousands of advisory opinions to guide federal employees baffles top ethics attorneys.

“The specific rules of the road for White House employees have never been entirely clear,” Coffina said, lamenting that providing advice to staffers was “more of an art than a science.”

Ranking Member Elijah Cummings (D-Md.) wondered how advisory opinions could simply be revoked after years of use. After the 2000 presidential election, when federal employees began to use e-mail regularly, the Special Counsel’s office issued a much-maligned advisory opinion known as the “water cooler exception” to the Hatch Act in 2002. E-mail or in-person conversations featuring “activity directed at the success or failure of a candidate” or partisan groups was prohibited. All other political conversations of the type engaged in by employees at water coolers were Kosher. The guidance was rescinded in 2007 because “the federal community found it confusing,” Galindo-Marrone said.

Further compounding the problem is that the presumptive punishment for federal employees caught violating the Hatch Act, no matter how minor an infraction, is termination. Technically, the Merit Systems Protection Board, an “independent, quasi-judicial agency,” has the authority to modify the penalty to no less than a 30-day suspension, but that’s rare and requires a unanimous vote (only one federal employee in 2010 received this reprieve). This approach to even trivial violations of the law, which Del. Holmes Norton called “pretty nuclear,” has led to reluctance by federal agency officials to alert the Special Counsel’s office to potential violations for fear of losing quality employees.

Considering that the Hatch Act was last amended the same year members of Congress started accepting e-mails from constituents, Congress should swiftly move to overhaul the law. With the ubiquitous use of Facebook and Twitter, complying with the myriad advisory opinions issued by the Special Counsel’s office is virtually impossible.

For example, the Special Counsel’s office issued a nine-page memorandum to federal employees in Aug. 2010 to answer questions about the legal use of Facebook and Twitter. A federal employee’s Facebook friend may post a comment soliciting a contribution for a partisan candidate on the employee’s Facebook page, but the employee may not post any comments that “would tend to encourage other readers to donate.”

Another common theme of congressional questioning focused on the absurdity of prohibiting partisan political activity but allowing nonpartisan political activity, leading to different standards for federal employees running for office in states with partisan elections (prohibited) and nominally nonpartisan elections (allowed). 

“So, you would agree that it doesn’t make any sense?” Rep. Trey Gowdy (R-S.C.) asked Galindo-Morrone. She declined to answer, deferring to the infinite wisdom of Congress in enacting legislation.

Jeff Patch is an Alexandria, Va.-based writer and political consultant.