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The Hatch Act, the law Trump flouted at the RNC, explained

The Hatch Act is designed to protect the rule of law. Trump flouts it openly.

First lady Melania Trump waves as President Donald Trump looks on after her address to the Republican National Convention from the Rose Garden at the White House on August 25, 2020, in Washington, DC.
Alex Wong/Getty Images
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.

The United States prohibits most federal employees from engaging in certain political activity — especially if those employees are engaged in fundamentally nonpartisan activity such as diplomacy — in order to prevent abuse of power and corruption. On Tuesday night, however, the Trump administration flouted these limits by holding part of the Republican National Convention at the White House and broadcasting a partisan speech by the nation’s top diplomat.

The Hatch Act of 1939 imposes strict limits on most federal civilian workers who want to engage in political activity, and some Cabinet departments augment these statutory limits with additional policies intended to maintain a clear wall of separation between partisan politics and nonpartisan government functions.

These restrictions on government workers exist for two interlocking reasons. As the Supreme Court explained in United States Civil Service Commission v. National Association of Letter Carriers (1973), “it is in the best interest of the country, indeed essential, that federal service should depend upon meritorious performance rather than political service.” But if civil servants are free to engage in political activities, presidential appointees could reward loyal partisans and punish civil servants who favor the party that does not control the White House.

Government workers, according to the Court, have a responsibility to “administer the law in accordance with the will of Congress, rather than in accordance with their own or the will of a political party.” Limiting these workers’ political activity helps ensure that they do not use their office to dole out political favors or apply the laws selectively to benefit one political party.

Within the Trump White House, however, the Hatch Act and similar restrictions are reportedly viewed with contempt. According to the New York Times’s Michael M. Grynbaum and Annie Karni, “some of Mr. Trump’s aides privately scoff at the Hatch Act and say they take pride in violating its regulations.”

At least some members of Congress, meanwhile, seek investigations into some of the Trump administration’s efforts to blur the line between government and politics. Rep. Joaquin Castro (D-TX), for example, sent a letter to the State Department informing them that he’s probing Secretary of State Mike Pompeo’s decision to address the Republican National Committee from Jerusalem — a clear violation of State Department policy.

Realistically, however, lawmakers and other officials hoping to restore the wall of separation between nonpartisan government functions and the Republican Party have few tools at their disposal. The Merit Systems Protection Board (MSPB), the federal agency tasked with adjudicating violations of the Hatch Act, ordinarily has three board members. But all three seats on the MSPB are currently vacant.

Thus, the best chance to hold the Trump administration to account for mingling governance and politics will come in November, when voters could potentially punish the GOP for flouting the Hatch Act by voting Republicans out of office.

How does the Hatch Act limit federal officials?

The Hatch Act does not absolutely bar federal employees from engaging in any political activity. Federal workers may still vote, for example. And most federal employees remain free to express their political opinions and even to participate in many partisan activities when they are not on duty.

Notably, the president and the vice president are exempt from the Hatch Act, although many White House employees who almost certainly helped set up and coordinate first lady Melania Trump’s RNC speech at the White House are not. (The Office of Special Counsel, an office charged with enforcing the Hatch Act, released a statement on Wednesday saying that federal employees do “not necessarily” violate the Hatch Act by attending political events at the White House.)

The overwhelming majority of federal civilian workers face strict limits while they are performing their official duties. They may not use their “official authority or influence for the purpose of interfering with or affecting the result of an election.” They may not solicit campaign contributions. They may not run for partisan office. And they may not engage in political activity while on duty, while wearing a government uniform or insignia, or while in a government-owned vehicle.

Additionally, the Hatch Act forbids nearly all civilian federal workers from encouraging or discouraging political activity from people doing business before their agency.

The Hatch Act also classifies some government workers who are in especially sensitive jobs as “further restricted” employees. These include law enforcement jobs such as FBI agents, members of the Intelligence community, many prosecutors, and government employees tasked with overseeing the electoral process itself.

Among other things, “further restricted” employees are forbidden from actively participating in political campaigns altogether.

The reasons for these heightened restrictions should be obvious. Law enforcement officers and prosecutors wield the state’s monopoly on violence against individual citizens. Intelligence officials and other national security workers are tasked with protecting the nation from foreign threats, regardless of who occupies the White House. Election officials could fundamentally corrupt elections if they engage in partisan favoritism.

These are the sorts of jobs that should be immune from partisan influence if at all possible, and so the Hatch Act erects an especially robust barrier between these officials and partisan politics.

The consequences for violating the Hatch Act can be quite severe. If the MSPB determines that an individual government employee violated the act, that employee can be fired, demoted, or even barred from federal employment for up to five years.

That is, of course, assuming that the MSPB is capable of acting. Currently, federal officials known as “administrative judges” may adjudicate cases that fall within the MSPB’s jurisdiction, but those decisions may be reviewed by the board itself. According to the MSPB’s website, if a party to such a dispute seeks such review, “a Board decision cannot be issued until a quorum of at least two Board members is restored,” potentially leaving these cases in limbo.

The State Department has especially strict restrictions on political activity

One of the paradoxes of liberal democracy is that we want a government that is responsive to elections but that also administers existing laws without engaging in political favoritism. Political appointees hold the senior-most jobs within the executive branch, and these appointees will unavoidably be torn between their obligation to respect the rule of law and their loyalty to the president who appointed them.

But, just as the Hatch Act recognizes that certain officials in sensitive roles must be especially cautious about partisanship, the State Department has a long tradition of insulating even the highest-ranking diplomats from electoral politics. As Susan Hennessey and Scott R. Anderson write in a Washington Post op-ed criticizing Pompeo for speaking at the RNC, “diplomats are supposed to represent all Americans to the rest of the world, and limiting their political activities ensures that they are able to serve this role effectively.”

For this reason, the State Department’s internal policies are especially strict. According to a 2019 memorandum from the department’s Office of the Legal Adviser, “Senate-confirmed Presidential appointees may not even attend a political party convention or convention-related event.” (In the memo itself, this sentence is bolded and parts of it are italicized, to reflect its importance.)

Pompeo’s decision to speak at the RNC, in other words, directly violates his department’s explicit policy.

The fact that Pompeo spoke while he was abroad in Jerusalem also flouts the State Department’s norms. According to the same memo, State Department political appointees who are not Senate-confirmed may only attend a “partisan political rally” when they are physically present within the United States.

This is a less restrictive policy than the one that applies to Senate-confirmed officials like Pompeo. But it’s noteworthy that, by appearing at a partisan event while he was traveling abroad, Pompeo didn’t even comply with the less onerous restrictions imposed on many of his subordinates.

Trump has long sought to undermine protections for civil servants

The Hatch Act was the culmination of a long process of civil service reform that began with the Pendleton Civil Service Act of 1883. Prior to civil service reform, federal workers were often chosen through a “spoils system.” When a Republican president was elected, they would fill the government with loyal Republicans. Then these Republicans would be replaced by Democrats if a Democratic president took office.

By the late 19th century, however, this system was unworkable. Even setting aside the obvious potential for corruption, the spoils system turned the president of the United States into a glorified HR manager. As Candice Millard wrote in Destiny of the Republic: A Tale of Madness, Medicine, and the Murder of a President, the line of job-seekers waiting to meet with President James Garfield “began to form before he even sat down to breakfast” on his first full day in the White House in 1881. Before long, “it snaked down the front walk, out the gate, and onto Pennsylvania Avenue.”

Just as importantly, civil service protections that insulate government workers from politics and evaluate their job performance based on merit are an essential part of liberal democracy. If these workers can be pressured to act for partisan reasons, then the rule of law could give way to a system where the laws are enforced harshly against the president’s political enemies — and hardly at all against his allies.

And yet, Trump has sought to undermine these protections. In 2018, for example, he signed executive orders making it easier to fire federal workers and weakening federal unions.

At the time, Trump justified these orders as necessary to root out low performers — and certainly the government does waste some money by continuing to pay salaries to workers who eventually deserve to be fired. But there are also worse things than government waste. Strong civil service protections will sometimes make the government less efficient, but they help ward off the kind of corruption that threatens democracy itself.

The Trump administration’s conduct at the RNC is another warning that this president does not respect the need to maintain a wall between governance and partisan politics. And if he wins another term, that wall is likely to crumble even more than it already has.

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