Hatch Act violation or just free speech?

Would you wear a red MAGA hat to work? How about a t-shirt with #resist45 across the front? It might be your right, but it wouldn’t be a great idea. Count me among those wondering, just a little, if the American Federation of Government Employees lawsuit against Office of Special Counsel Hatch Act guidance is perhaps a wee bit over the top.

To be sure, the unions are sensitive about the First Amendment in a vital area outside the Hatch Act. Last year the Supreme Court ruled that union representation in the public sector and the withholding of wages for union dues are violations of employees’ First Amendment rights. That is, until each employee signs a specific waiver. The “Janus” case was a state and local matter. But now the administration has asked the Federal Labor Relations Authorities to clarify whether the federal government can continue with payroll deductions. The National Right To Work Legal Defense Foundation — a union nemesis — has filed comments with the FLRA asking it to say no.

In the unrelated OSC suit, the AFGE, to its credit, is taking on an issue that would affect all federal employees, not just its members.

That suit makes a careful distinction regarding the Hatch Act. Namely, that discussing, say, impeachment or even yelling, “Impeach!” in a crowded room doesn’t violate the anti-electioneering Hatch Act because such speech isn’t engaging in election activity or benefiting a candidate. Ditto for use of the various forms of “resistance.” Rather, the suit says, those uses would be ordinary, free speech protected under the First Amendment.

OSC guidance focuses on use of “resistance,” saying it would be campaign activity because it’s directed not for but rather against the success of a reelection bid, namely that of President Trump. It cites various political groups dedicated to election of certain candidates have adopted “resistance” in their work. AFGE calls this an “extreme and unprecedented interpretation of the Hatch Act.”

Note that OSC already disposed of the use of “Make America Great Again” (and the short-hand MAGA) or display of stuff with such material on your head or anywhere else in the office. Those are no-nos.

The whole question is colored by the strong feelings the current president engenders, both pro and con. Trump himself is controversial, as much as his policies.

At some point a judge will decide if OSC’s guidance will stand.

Suppose OSC is found to be wrong. My question is, why in the heck does anyone want to drag partisan politics into a workplace that values collaboration and comity? Even if some utterance falls under someone’s constitutional right to advocate for a political stance short of electioneering, it serves little purpose except to tick off the people around you — even people who might agree.

A former co-host in studio years ago liked sardines. Sealed in a soundproof studio together, she one day asked whether I minded if she peeled open a can of sardines. She was considerate. The implication stated, yes it’s my God-given right to eat sardines, but might it offend my colleague to open a can of oily, oderiferous fish in the small, enclosed space we share?

By the same token, it’s good manners and good taste to be careful in what you say and how you say it in these politically difficult times. Nancy Pelosi called Mitch McConnell “Moscow Mitch.” President Trump said of Joe Biden, “Joe is not playing with a full deck.” We know our politicians show less than exemplary manners at times. Shouldn’t the workplace — and especially a federal government workplace populated by people sworn to public service and upholding the constitution — be a place of circumspection?

OSC redid its original MAGA/resist guidance after complaints, to clarify that prohibitions on partisan campaign speech only apply to when you’re at work. And that “merely discussing impeachment, without advocating for or against its use against such a candidate, is not political activity.” OSC even added that “two employees may discuss whether reported conduct by the president warrants impeachment and express an opinion about whether the president should be impeached without engaging in political activity.”

What else do people want?

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