What the Hatch Act’s return to the status quo means for feds

In June 2019, the Office of Special Counsel said that the violations of the Hatch Act by Kellyanne Conway were so egregious she should be fired.

“Like with other presidential appointees, the President has the authority to discipline Ms. Conway for violating the Hatch Act. Given that Ms. Conway is a repeat offender and has shown disregard for the law, OSC recommends that she be removed from federal service,” wrote then Special Counsel Henry Kerner nearly six years ago.

The House Oversight and Reform Committee found at the time Conway, then counselor to President Donald Trump, had violated the Hatch Act at least 25 separate times between 2017 and 2019.

Conway’s repeated violations — including publicly daring OSC to silence her — led to what some experts said were much needed reforms to the Hatch Act in May 2024.

Ten months later, the Trump administration’s OSC reversed course on these reforms, saying the “advisory opinions were departures from precedent supported by numerous Special Counsels who had been appointed by multiple administrations over many years.”

Experts say OSC’s April 25 decision to toss the reforms isn’t exactly surprising, but disappointing.

“I think the changes are highly problematic because they are walking back common sense reforms that would have helped to keep politics out of the non-partisan work of the government,” said Donald Sherman, the executive director of Citizens for Responsibility and Ethics in Washington (CREW), in an interview with Federal News Network. “It’s certainly consistent with the President’s attempt to politicize all aspects of our government including the civil service.”

Career employees at greater risk?

Robert Hinckley Jr., a lawyer representing federal employees and managing shareholder of Buchalter’s Denver office, called the changes a “return to the status quo.”

For years, experts have complained that the Hatch Act’s status quo was a “tiger with no teeth,” for not punishing violators, particularly those directly connected to the White House and the administration.

Sherman said backtracking on the recent changes aimed at strengthening the law’s implementation opens the door to not just more violations, but potentially putting career employees at a greater risk.

“Rolling back these rules both make it easier to target civil servants that they don’t like or want to find a way to get rid of. It also insolates political allies who engage in campaign activities while on the clock in service of the president from accountability,” he said.

Congress passed the Hatch Act in 1939 to “limits certain political activities of federal employees, as well as some state, D.C. and local government employees who work in connection with federally funded programs. 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 — not based on political affiliation,” OSC wrote on its website.

Last May, OSC issued two advisory opinions to address a long list of abuses by both Republican and Democrat political appointees. The most recent example is of Martin O’Malley, the former commissioner of the Social Security Administration during the Biden administration, who OSC says in a May 16 letter to President Trump that he violated the Hatch Act “by advocating against a candidate for partisan political office while giving an interview in his official capacity.”

Similar violations to O’Malley’s and many others were the impetus by Dellinger to justify the 2024  reforms.

Two major changes from May

One major change established that non-Senate-confirmed White House officials would be held to the same standards as all other career federal employees. OSC would defer White House staff members who are in violation of the Hatch Act to the Merit Systems Protection Board (MSPB), instead of deferring to the President as the officials were previously.

Dellinger wrote at the time that OSC was closing a loophole that led to disparate treatment of employees.

In a second change, OSC determined that contemporary political memorabilia would now be barred from the workplace year-round — not just before Election Day. It was a notable difference considering that previously, federal employees weren’t expressly prohibited from showing support or opposition for a particular candidate after Election Day had passed.

The wearing of political memorabilia received mixed reactions. Hinkley, for instance, praised the decision as a First Amendment win.

“It was probably hard to manage that rule change in 2024. It created too much of a burden on agencies,” he said. “Now the standard is you can’t wear or display it during the campaign. If this was a new situation it may get more attention. But since it’s historically the case, I’m not sure it’s that big of a deal. Any opportunity to express yourself freely is a win, whether you’re a federal employee or not. It just makes situation easier to manage and less confusing for employees on what they can and can’t do.”

Several headlines proclaimed you can now wear your MAGA hat to the office. Before last May, OSC allowed that anyways as long as it wasn’t during a campaign.

“OSC has received many questions about allowable items indicating confusion based on the 2024 Advisory Opinion, as well as a concern about the Advisory Opinion’s infringement on First Amendment rights. The 2024 Advisory Opinion failed to account for the fact that voters can vote by individual candidate, rather than by party line, i.e., showing support for a candidate does not necessarily equate support for the party,” OSC wrote in April. “Also, because the 2024 Advisory Opinion prohibited only ‘campaign-related items’ post-election, OSC was in the untenable position of advising what employees could and could not display based on, for example, whether the items were purchased at a pre-election political rally or at an inauguration event. Accordingly, OSC has reinstituted its longstanding prior position — based on the Hatch Act. The Hatch Act regulations and the legislative history of the Hatch Act — that the display in the workplace of items promoting or opposing any former candidate of any political party does not constitute a Hatch Act violation.”

Reopening the loophole

Sherman called the Hatch Act reforms around politically-themed clothes or posters as undermining common sense changes that helped depoliticize the government.

“This change seems especially fraught. If the goal is to depoliticize the government, as the Trump administration alleges — because the civil service is filled with people who are political — then one would assume they would be very invested in enforcing the Hatch Act across the board and particularly the kind of reforms Special Counsel Dellinger put in place which incorporates former political leaders into this prohibition,” he said. “It belies the fact that enforcement of law and depoliticization of the government is not their goal.”

Reversing the other advisory opinion is more concerning to Sherman.

He said the decision reinforces the imbalance in the enforcement of Hatch Act between non-Senate confirmed political appointees and regular federal workers.

“In some cases, federal employees committed innocent mistakes and in some cases egregious violations, but are being held accountable. Now political appointees close to the President and serving his political goals by violating the law and given a free pass. The President has a constitutional duty to ensure enforcement of all of our laws,” Sherman said. “What this rule does is elevates some random person who works at the White House, who maybe a commissioned officer, of which there are many, and elevates them to presidentially-appointee, Senate-confirmed status. This is a reoccurring theme of politicization of government operations.”

Hinkley added an additional concern with closing this “loophole” is whether OSC is giving the president powers he shouldn’t have.

“The concern is for abuse. Will they be given special treatment if they are not being evaluated by the MSPB? If only the President can decide what would happen to them if there is bad acting, does that cause unfair treatment?” he said.

It’s clear current and future administration officials will continue to violate the Hatch Act, and attempted reforms by OSC are only as good as the White House supports them. For the Hatch Act to actually be more than a toothless tiger, Congress will have to weigh in with an update by holding current and former employees — presidentially appointed or otherwise — accountable in real ways. Until then, the Hatch Act will remain what it is today, a milquetoast implementation of a law that rarely meets the spirit or intent of Congress.

Copyright © 2026 Federal News Network. All rights reserved. This website is not intended for users located within the European Economic Area.