The Office of Special Counsel is looking to close what it says is a loophole in the Hatch Act, a law that limits federal employees’ political activity while on duty.

Among several updates to how OSC — an independent agency that investigates and brings cases before the Merit Systems Protection Board — will enforce and interpret the Hatch Act, one notable change looks at how OSC will handle violations from senior White House officials.

Most Senate-confirmed officials are excepted from MSPB enforcement, but White House staffers are not. As such, non-Senate-confirmed White House officials will now be held to the same standards as all other career federal employees, OSC said in a May 20 advisory opinion.

In practice, that means OSC will defer White House staff members who are in violation of the Hatch Act to MSPB, instead of deferring to the president as the officials were previously. OSC Special Counsel Hampton Dellinger said the decision behind the change is a result of the disparity between what the majority of career federal employees are subject to, and different rules specifically for White House staff.

“White House employees should be treated like every other government worker,” Dellinger said in a May 20 statement on OSC’s website. “My focus is balancing robust Hatch Act enforcement with careful consideration of government employee speech rights.”

The Hatch Act, which has been around since 1939, limits the political activities that federal employees are allowed to take part in while on the clock, at work, or otherwise acting in an official capacity. The rules for the Hatch Act depend on the type of position an employee holds, and what level of restrictions that position falls under.

But the inconsistency of the Hatch Act’s application between most federal employees, and White House staffers, has been a concern for a long time. While federal employees typically face a range of repercussions, some have said that there’s a double standard, as political appointees often don’t face the same level of punishment. Others have gone further to say that the Hatch Act should be reformed, or even replaced.

“This distinction creates separate and not automatically equal systems of accountability for violators, one where an independent adjudicator (the MSPB) can impose sanctions and another where it is left to the president to dole out — or not — any consequences,” Dellinger wrote in a May 20 op-ed in Politico.

At least 13 White House officials during the Trump administration were found to be in violation of the Hatch Act, but didn’t receive any repercussions. More recently, during the Biden administration, former White House Chief of Staff Ron Klain also violated the Hatch Act by retweeting a post from a political group using an official social media account, but OSC did not pursue any disciplinary action.

Over the years, different OSC special counsels have had various approaches to how the Hatch Act should be enforced. The recent changes appear to be a different interpretation of the same language of the law that’s been around for decades.

The timing of OSC’s changes also lines up perfectly ahead of the presidential election this fall, noted Jim Eisenmann, a partner at Alden Law Group, which specializes in representing federal employees.

“It is no coincidence,” Eisenmann, who’s former MSPB executive director and general counsel during the Obama administration, said in an interview. “We’re in an election year — and there’s a brand-new special counsel. I think that’s all related to the timing.”

OSC previously exempted White House personnel from full enforcement of the Hatch Act in part because of the lack of a quorum at the MSPB during the Trump administration. Without quorum, OSC was unable to take action on Hatch Act violations that White House officials made.

“The MSPB’s return to a quorum allows OSC to utilize the agency as the adjudicator for all Hatch Act enforcement actions against individuals who are not presidentially appointed and confirmed by the Senate, instead of relying solely on the president to take action if White House commissioned officers violate the law,” OSC said.

Former employees and political candidate signs

The change for White House staff is just one of several updates OSC made in its recent advisory opinion. In another adjustment, OSC said that former federal employees can now face charges from Hatch Act violations that they may have committed while previously working for the government.

Generally, federal employees who violate the Hatch Act may face a suspension, firing, grade reduction or a debarment for up to five years. They may also have to a pay a $1,000 fine. In many cases, though, OSC attempts to settle with the employee or negotiate an informal resolution.

In light of OSC’s update, one question that may arise is what types of penalties could occur for former employees. If an individual has left government, it’s possible now that they also wouldn’t be able to take another federal job in government for several years to come.

“What they’re saying is just because someone has left government, it doesn’t mean they’re not going to go after them,” Eisenmann said.

In addition to the changes for former feds, OSC is revising the rules about when federal employees can wear or display political candidate signs while at work. During presidential election years, OSC had previously distinguished how that rule operated before and after Election Day.

“This distinction is being withdrawn in favor of a year-round prohibition on political candidate displays in the government workplace, which will now be consistent with the prohibition on party and partisan group items,” OSC said in the advisory opinion.

OSC said presidential candidates’ increasing association with specific political parties is one key reason behind the update. Not to mention, OSC said it should make it easier for federal employees to follow the rules, since it’s now more straightforward with the consistent, across-the-board ban.

But the switch to a year-round ban on candidate items may raise additional questions about what’s allowed and not allowed for federal employees, for example, when it comes to displaying signs from former or historical political candidates.

In the advisory opinion, OSC said the year-round ban on candidate items applies specifically to “current or contemporaneous” candidates or parties — meaning there are exceptions for any historic campaign memorabilia.

OSC said it plans to soon provide federal employees with more clarifications and guidelines on the new advisory opinion to help answer any questions. OSC has also created a list of “dos and don’ts” for feds about the Hatch Act’s rules and parameters.

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