The toothlessness of the Hatch Act is on display again

Watchdog group Citizens for Responsibility and Ethics in Washington (CREW) has filed a Hatch Act complaint regarding White House Press Secretary Jen Psaki’s statement in support of Terry McAuliffe in the Virginia governor’s race. This follows a prior complaint against Department of Housing and Urban Development Secretary Marcia Fudge, and four years of utter disregard of the Hatch Act by numerous officials in the Donald J. Trump administration.

What happens to these senior political appointees when they violate the Hatch Act, which is intended to prohibit government employees from engaging in partisan political activity? Usually nothing. Sometimes a slap on the wrist, more often not even that fig leaf.

The truth is that the Hatch Act, at least in current practice, applies to the career workforce and not to senior political appointees. Like many other topics, this is one where lower ranking employees are held to standards that do not seem to apply to the senior folks. What happened to the idea that people in leadership roles should be held to higher standards?

The problem is that an administration can choose to administer a slap on the wrist or do nothing. There is little that can be done when a presidential appointee ignores the law, as Trump advisor Kellyanne Conway did. The Office of Special Counsel (OSC) found Conway guilty of “disparaging Democratic presidential candidates while speaking in her official capacity during television interviews and on social media.” Nothing happened. OSC has no authority to discipline a presidential appointee.

In the past, administrations have taken OSC recommendations more seriously and made it clear that they will not tolerate Hatch Act violations. When OSC recommended discipline for GSA Administrator Lurita Doan during the George W. Bush administration, the White House asked for her resignation. That does not appear to be what happens now.

What good is a law that applies only to the people who are in a position to do the least damage? One that senior appointees in both democratic and republican administrations have violated? It is long past time for Congress to act to begin restoring some guardrails in Washington. One of those guardrails would be some independent enforcement mechanism that does not require the President to be the one to discipline his appointees. If there is no constitutional way to force a removal or other disciplinary action, there is at least a way that Congress could prohibit funding a salary for any employee who is found to have violated the Hatch Act.

If nothing is going to be done, the playing field should be leveled by abolishing the law altogether. It should apply to everyone or no one. This situation of having something that is a firing offense for a career worker treated as no big deal for an appointee sends the message that appointees are above the law. In the case of the Hatch Act, it appears they are.

Jeff Neal authors the blog ChiefHRO.com and was previously the chief human capital officer at the Department of Homeland Security and the chief human resources officer at the Defense Logistics Agency.

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