A U.S. House committee this week asked the U.S. Office of Special Counsel to investigate possible federal Hatch Act violations by the Trump Administration during last month's Republican National Convention. The U.S. Supreme Court twice has upheld the act's constitutionality but not without serious dissent.
The 1939 law, named after its chief sponsor, limits the political activities of federal employees, as well as some state and local government employees. The act does not apply to the president and vice president. The Office of Special Counsel is an independent federal investigative and prosecutorial agency that oversees compliance with the Hatch Act, among other federal laws.
Some of the concerns raised by the House committee and government ethics groups involved the use of White House grounds for campaign speeches during the convention, the video of a naturalization ceremony led by acting Homeland Security Secretary Chad Wolf and President Donald Trump in the White House, and Secretary of State Mike Pompeo's video speech to the convention while on a government business trip in Israel.
Most Americans have little knowledge of or experience with the Hatch Act. But for federal employees who violate it, the consequences can be quite severe—not just fines or suspensions but sometimes an end to their careers.
Still, Americans should care when the act is violated. The Office of Special Counsel explains on its website that the law's purposes are "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."
The Supreme Court views political speech as at the core of the First Amendment's free speech guarantee. It's not surprising then that a law restricting or limiting political speech—like the Hatch Act—would create difficulty for the Justices.
In 1947 in the case United Public Workers of America v. Mitchell, the court took up a challenge to the law by George Poole who violated the law's provision that “No officer or employee in the executive branch of the Federal Government ... shall take any active part in political management or in political campaigns.”
Poole was a ward executive committeeman of a political party and was politically active on election day as a worker at the polls and a paymaster for the services of other party workers. Poole argued he had the right of a citizen to act as a party official or worker to further his own political views. The Hatch Act violated his rights under the First, Ninth and 10th Amendments, he said.
A seven-justice court heard Poole's arguments and subsequently ruled 4-3 to uphold the act. Justice Stanley Reed, a Kentucky native appointed by President Franklin D. Roosevelt, wrote the majority opinion in which he weighed the interference with Poole's First Amendment rights against Congress' purposes in enacting the law.
Only partisan political activity in political management and campaigns is restricted, Reed wrote. “Expressions, public or private, on public affairs, personalities and matters of public interest, not an objective of party action, are unrestricted by law so long as the Government employee does not direct his activities toward party success,” he said.
Congress and federal agencies have authority over discipline and efficiency in the public service, Reed added. “When actions of civil servants in the judgment of Congress menace the integrity and the competency of the service, legislation to forestall such danger and adequate to maintain its usefulness is required. The Hatch Act is the answer of Congress to this need. We cannot say with such a background that these restrictions are unconstitutional.”
Justice Hugo Black, who, along with Justice William Douglas, was considered a First Amendment “absolutist,” led the dissenters. Black wrote: “In a country whose people elect their leaders and decide great public issues, the voice of none should be suppressed-at least such is the assumption of the First Amendment. That Amendment, unless I misunderstand its meaning, includes a command that the Government must, in order to promote its own interest, leave the people at liberty to speak their own thoughts about government, advocate their own favored governmental causes, and work for their own political candidates and parties.”
Twenty-six years later, the Justices again faced a First Amendment challenge to the act by the National Association of Letter Carriers, six individual federal employees and certain local Democratic and Republican political committees. The six members of the union wanted to campaign for candidates for political office.
Justice Byron White, appointed to the court by President John F. Kennedy, led a 6-3 majority rejecting the challenge. He wrote:
“The problem in any case is to arrive at a balance between the interests of the (employee), as a citizen, in commenting upon matters of public concern and the interest of the (government), as an employer, in promoting the efficiency of the public services it performs through its employees. Although Congress is free to strike a different balance than it has, if it so chooses, we think the balance it has so far struck is sustainable by the obviously important interests sought to be served by the limitations on partisan political activities now contained in the Hatch Act.”
Justice Douglas led the dissenters, writing, “We deal here with a First Amendment right to speak, to propose, to publish, to petition Government, to assemble… Some things, some activities do affect or may be thought to affect the employee's job performance. But his political creed, like his religion, is irrelevant. In the areas of speech, like religion, it is of no concern what the employee says in private to his wife or to the public in Constitution Hall.”
How would the Supreme Court today view a Hatch Act challenge unencumbered by precedents? The court in most First Amendment cases is a strong pro-speech court. But as Justice White aptly said back in 1973, the problem is to arrive at a balance between competing interests, and the Supreme Court twice has disagreed on where that balance is.
The Office of Special Counsel recommended to President Trump that he fire White House counselor Kellyanne Conway for her repeated Hatch Act violations. Her reaction reportedly was: “Blah, blah, blah…Let me know when the jail sentence starts.” On the current controversy, Trump chief of staff Mark Meadows, according to media reports, said, “Nobody outside of the Beltway really cares.”
The current Hatch Act controversy may seem technical or remote from most of our lives. But it is a reminder of how those seemingly remote, technical or procedural laws play a critical role in preserving our democracy.
Marcia Coyle is a regular contributor to Constitution Daily and the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 20 years.
