Hatch Act ‘to Prevent Pernicious Political Activities’ is unenforced

By ART CHANCE

Political activity by public employees and use of public employees by public officers for political ends has been a vexatious issue since the beginning of our Republic.  

Resistance by one party to an elected official of another party is nothing new. The contours and limits of our notions of separation of powers were established by Justice John Marshall in Marbury v. Madison (1803), a case about President John Adams and the Federalists packing the federal judiciary with Federalist supporters before Democratic-Republican Party candidate Thomas Jefferson could be sworn in as President and appoint his followers to the positions.  

Also, to demonstrate that closed circles in high places are nothing new, Justice John Marshall had been President John Adams’ secretary of State when the matters at bar occurred. and future President James Madison was President Jefferson’s secretary of State. 

And for those who think that President Trump plays a little hardball, Adams and the Federalists so angered Jefferson and his adherents in Congress that they refused to fund the Supreme Court for the 1802 Session and the Court heard no cases that year.

That’s right, the Supreme Court lost its funding and heard no cases in 1802.

By today’s standards, 19th Century government at all levels was very small, but even so, the federal government had enormous powers; postmasters were presidential appointments and mail handlers and carriers were patronage jobs.  In states with ports engaged in international trade, there was a significant presence of federal Customs employees, which were also patronage appointments.  

It was a significant concern in the South that President Abraham Lincoln had received no significant Southern support and didn’t even appear on the ballot in most Southern states. Consequently, Southern political leaders could expect to have little or no influence on his appointments to federal positions.  The South was deathly afraid of abolitionist appointees inciting a slave rebellion and rumors abounded that John Brown’s raid at Harper’s Ferry had been incited and financed by close Lincoln associates. That just added more flame to the fires of secession.

The federal government grew enormously during the Civil War and never returned to its pre-war size and limited power. President Grant attempted some reform and reducing the patronage and corruption, but to little avail.  Civil service reform was fashionable in the last quarter of the 19th Century with everyone but entrenched politicians.  Reform split the Republican Party and gave the Democrats their first president, Grover Cleveland, since before the Civil War.  

The first major step at reform was passage of the Pendleton Act in 1883, which eliminated “assessments” of political appointees, a form of mandatory campaign contribution, and made steps towards employment based on merit rather than connections. By the end of the 19th Century, most of the federal government was at least nominally a merit system and the reform movement moved to the states, which were fertile ground for both patronage and political machine politics.

Then came the Great Depression. The New Deal fundamentally transformed the federal government and dramatically enlarged it. In 1938 both Republicans and conservative Democrats made serious allegations that federal employees, specifically employees of the Works Progress Administration headed by FDR insider Harry Hopkins, were engaged in political activities and that Democrat Party officials were handing out WPA jobs based on political affiliation and contributions.  An official investigation found the evidence inconclusive, but enough of the Congress was convinced; they passed “An Act to Prevent Pernicious Political Activities,” better known as The Hatch Act, named for New Mexico Democrat Sen. Carl Hatch. 

The Hatch Act prohibited most federal employees from participation in partisan political activities.  Active duty military were exempted but military regulations essentially accomplished the same thing.  It was ultimately extended to state and local government employees who received federal funding.  Since its passage, it has often been attacked and defied, and has been steadily eroded so as to become almost meaningless today.

The law is still on the books; it is still nominally illegal for most government employees to engage in partisan political activities while on duty or under color of office.  

That said, nothing is illegal if nobody enforces the law. It is fair to say that there is no enforcement by Democrats against other Democrats or those who support Democrats.  There is some enforcement by Democrats against Republicans. There is little enforcement by Republicans against either party.  

I believe it is for the same reason there is almost no enforcement of voting laws and campaign finance laws by Republicans except occasionally against other Republicans; they are simply afraid of the screams of outrage from Democrat constituent groups and the media.

The real weakness in the Hatch Act and its state law analogs even before the Clinton and Obama gutting of the law was a very narrow definition of “partisan” and the fact that it doesn’t apply to agents of employees such as unions and employee associations, or to blatantly partisan groups that don’t identify as political parties.  

The only party an anti-development or environmentalist group might support other than the Democrats is the Green Party or some socialist or communist group, and they sure aren’t going to support Republicans, but a public employee can give all the money s/he wants to that group which can then spend money on partisan political activity.  

Likewise, unions that represent public employees covered by the Hatch Act’s restrictions can take money from those employees and then spend that money on partisan activities. Unions can also legally spend dues money on member education and it is a very fuzzy and well-worn line between member education and partisan political activity.

With the State of Alaska, there is a ritual a month or so before an election of sending out a boilerplate memo reminding the employees that they can’t wear buttons on their clothes at work and can’t have signs or stickers in their work area or do any campaigning on work time or under color of office.  How much it is enforced depends on the administration and who complains. During my time there we rousted a few employees but never did much to any of them other than reprimand or warn them.  Had I still been there, the Assistant Attorney General who openly used her job title and information from her State associations in her “One Hot Mess” blog would have at minimum spent some unpleasant time with somebody from the Department of Administration. 

In my time with the State I wrote a fair share of opinion pieces and letters to editors, but at least in Juneau I was well known enough that my identity could not be separated from my job so I always used a disclaimer that mine was a personal opinion and did not represent the State’s position.

Both the Clinton and Obama Administrations used a system of White House staff lawyers who were definitionally exempt from the Hatch Act as their apparatchiks responsible for coordinating the activities of the agencies with the wishes of The White House.  These apparatchiks could hide behind both attorney-client and executive privilege and even blatantly partisan political activity was not per se illegal.  This goes far to explain why the National Security Council has become a vipers’ nest; full of lawyers with high-level security clearances covered by attorney – client and executive privilege and exempt from the Hatch Act.  

If you want to coordinate with a Lois Lerner to stonewall Tea Party non-profit status, this sort of White House staffer is just the person to arrange it.   Likewise, if you want to install a firewall or buy an insurance policy to protect you and your allies from an administration, these are the people to put it together.  It is unlikely that a claim of either or both privileges would survive a court challenge but that is a long hard road and a Democrat Administration can almost be certain of winning at the district court level outside The South and some more rural Western states.  

We’ve seen lots of graphic evidence recently of how partisan the district courts and some circuits can be.   Ole’ John Adams knew what he was doing when he tried to pack the federal courts with Federalists over 200 years ago.

The right answer is to restore and modernize the Hatch Act and extend its coverage to the states and to agents of employees.   I never feared a union at the bargaining table or in a hearing but I was definitely afraid of them on Election Day.  The only political right a public employee or his/her agent should have is the right to close the curtain and cast an individual vote.   The same restrictions should apply to any entity that gets government grants or contracts; the lifeblood of most of the leftist non-profits is government grants and contracts.  The fact that they also get money by private subscription just means they can lie about what money they use for political activity.  

Case in point: If you believe that Planned Parenthood only uses private funds for abortions or for political activity, I want to talk to you about my bridge.

Art Chance is a retired Director of Labor Relations for the State of Alaska, formerly of Juneau and now living in Anchorage. He is the author of the book, “Red on Blue, Establishing a Republican Governance,” available at Amazon.