The Hatch Act, a modern classic

Henry Kerner, the special counsel of the U.S. Office of Special Counsel, explains why the Hatch Act still matters after 80 years on the books and what would hap...

Editor’s Note: This story has been updated to more accurately reflect the statements made in the commentary this column responds to.

Election-year politics are in full swing and dominating the headlines, and with it comes an increased need for federal employees to be aware of the restrictions on political activity placed upon them by the Hatch Act. Unfortunately, some commentators, including a recent Federal News Network opinion contributor, in questioning whether the law has outlived its purpose, incorrectly asserted that the Hatch Act is in effect “muzzling” federal workers from speaking out about politicians and other political subjects.

Reading some of the commentary, one might think the Hatch Act is the federal election law equivalent of the stagecoach — a relic that became obsolete for good reason. But the principles underpinning the Hatch Act are as important today as when the law was first passed.

True, the Hatch Act became law in 1939, the same year that the “The Wizard of Oz” was the latest blockbuster movie and Franklin Delano Roosevelt was president, yet its core mission continues to be as solid as Plymouth Rock.

After evidence showed that many federal employees were pressed to make campaign contributions instead of performing their vital public service duties, the Hatch Act was enacted to avoid a spoils system of government, where political supporters receive civil service jobs as rewards for their loyalty and use those jobs to advance their patrons’ careers. Helping to ensure the execution of government programs on behalf of all Americans is a non-partisan matter.

Even though the Hatch Act is more than 80 years old, many of the restrictions are applied daily throughout the executive branch workforce of about 2.1 million federal employees in much the same way as they were in 1939.

However, as with many laws, the forward march of progress and technology has required the Hatch Act to adapt. Today, with modern technology and social media making political activity as easy as tapping out a message on a smart phone, the act has been interpreted anew to meet the needs of such developments.

If, as some suggested, we were to toss aside this long-standing civil service protection, how would the American people be served under a federal government without the Hatch Act? In short, not well.

When will the mail get delivered if U.S. postal carriers are directed by their supervisors to campaign for a presidential candidate during work hours?

What is a farmer to do when the Agriculture Department employee he is contacting is too busy soliciting candidate donations to answer a question about crop insurance?

How will a veteran’s heart ailment be properly diagnosed when his doctor is busy pitching his own candidacy for public office in the exam room?

Who benefits when the taxpayers are required to pay for employees who should be processing claims but instead are at work tweeting the reasons to vote for a presidential candidate?

All of those scenarios would be disastrous to the efficient and effective implementation of government programs and to the careful stewardship of American tax dollars. Public service, which draws so many good people into government, would be rendered meaningless.

Maintaining a politically neutral civil service system is why the Hatch Act was put in place and why the Office of Special Counsel (OSC), which I head, is charged with investigating and resolving potential violations.

For almost all of the federal workforce, when OSC finds serious Hatch Act violations, we seek penalties through the Merit Systems Protection Board. And in most of the cases for which OSC pursues disciplinary action, the employees’ violations are knowing and willful.

Although we are responsible for enforcing the Hatch Act and prosecuting violations, OSC is not out to play “gotcha” with federal workers. Our main goal, and something that is a foundational pillar of my stewardship of the agency, is to help employees avoid violations in the first place. To assist the federal workforce with understanding their rights and responsibilities under the Hatch Act, OSC has a robust advisory program.

Government employees can write, call, or email our career professional staff to seek and receive timely Hatch Act advice. OSC also, especially in an election year, provides vigorous training assistance to federal agencies.

When the Hatch Act is enforced, and employees are well-informed of their obligations to comply with it, the law works. It protects federal employees from political coercion in the workplace to open their wallets or listen to candidate pitches, instead of performing their taxpayer-funded duties. It also spares the taxpaying public a patronage system in which the victors reap the spoils. It underscores that everyone from the lowest to the highest levels of government is conducting the people’s business, whether working in the public spotlight or in a quiet agency division unknown to most Americans.

And the Hatch Act is not as restrictive as some of its detractors allege. Most federal employees, in their personal capacity, off the clock and away from the workplace, may actively participate in political parties and campaigns, as long as they do not fundraise. It is just a small number of employees who, given their agencies’ sensitive missions, are subject to additional restrictions.  But even these employees, along with the rest of the federal workforce, are free to give full voice to their political views and express their support for or opposition to candidates and political parties, as long as they do so in their personal capacity and not while at work.

The Hatch Act may be over 80 years old, but as the saying goes, age is just a number. The Hatch Act is a classic, born of necessity, evolved in application, and as foundational to good government in an era of soon-to-be driverless cars as when the Model T puttered along newly paved roads.

Henry Kerner is the special counsel of the U.S. Office of Special Counsel. He has held that position since October 2017. The office is an independent, executive agency charged with protecting the merit system and, among other things, enforcing the Hatch Act. 

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