The United States prohibits most federal employees from engaging in certain political activities – especially if those employees are engaged in fundamentally non-partisan activities such as diplomacy – in order to prevent abuse of power and corruption. On Tuesday night, however, the Trump administration destroyed these limits by holding part of the Republican National Convention in the White House and delivering a partisan speech by the nation’s top diplomat.
The Hatch Act of 1939 sets strict boundaries for most federal civil servants who want to engage in political activity, and some cabinet departments increase these legal boundaries with additional policies intended to maintain a clear wall of separation between party politics and non-partisan government functions.
These restrictions on government workers exist for two coherent reasons. As the Supreme Court explained in Commission of U.S. Officials v. National Association of Letter Carriers (1973), “it is in the best interest of the country, indeed essential, that federal service should be dependent on meritorious performance rather than political service.” But if officials are free to engage in political activities, presidential appointments can reward loyal partisans and punish officials who prevent 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 will or the will of a political party.” Restricting the political activity of these workers helps to ensure that they do not use their office to distribute 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 viewed with contempt. According to Michael M. Grynbaum and Annie Karni of the New York Times, “some of Mr. Trump’s private mockers of the Hatch Act say they are proud of violating their regulations.”
At least some members of Congress are meanwhile seeking investigations into some of the Trump administration’s efforts to blur the line between government and politics. Rep. For example, Joaquin Castro (D-TX) sent a letter to the State Department informing her that he was trying to get Secretary of State Mike Pompeo to address the Republican National Committee from Jerusalem – a clear violation of State Party policy.
Realistically, however, lawmakers and other officials hoping to repair the wall of separation between non-partisan government functions and the Republican Party have a few tools available. The Merit Systems Protection Board (MSPB), the federal agency tasked with adjudicating violations of the Hatch Act, typically has three board members. But all three seats on the MSPB are currently vacant.
Thus, the best chance will be to hold the Trump administration accountable for mixed government and politics will come in November, when voters could potentially punish the GOP for overturning the Hatch Act by voting Republicans out of office.
How does the Hatch Act restrict federal officials?
The Hatch Act does not strictly prohibit federal employees from engaging in political activities. Federal workers, for example, may still vote. And most federal employees remain free to express their political views and even participate in many partisan activities when they are not on duty.
Notably, the president and vice president are exempt from the Hatch Act, although many White House staffers have almost certainly helped set up and coordinate First Lady Melania Trump’s RNC speech in the White House. Do not house. “The Office of Special Counsel, an office charged with enforcing the Hatch Act, issued a statement on Wednesday saying federal employees”not necessarilyIn violation of the Hatch Act by attending political events in the White House.)
The overwhelming majority of federal civil servants face strict boundaries while performing their official duties. They may not use their “official authority as an influence to interfere with or influence the outcome of an election.” They may not ask for campaign contributions. They may not run for party office. And they are not allowed to participate in political activities while on duty, while wearing a government uniform or sign, or while in a government car.
In addition, the Hatch Act prohibits almost all civilian federal employees from encouraging or discouraging political activity from people doing business for their bureau.
The Hatch Act also classifies some government workers who are in particularly sensitive jobs as “further restricted” employees. These include law enforcement agencies such as FBI agents, members of the Intelligence community, many prosecutors, and government employees who are tasked with overseeing the election process itself.
Among other things, “further restricted” employees are prohibited from actively participating in political campaigns.
The reasons for these increased restrictions should be clear. Law enforcement officials and prosecutors are using the state’s monopoly on violence against individual citizens. Intelligence officials and other national security workers are tasked with protecting the people from foreign threats, regardless of who occupies the White House. Election officials could fundamentally corrupt elections if they participated in partisan favoritism.
These are the kinds of jobs that should be immune from partisan influence if possible, and so the Hatch Act creates a particularly robust barrier between these officials and partisan politics.
The consequences for violating the Hatch Act can be quite serious. If the MSPB determines that an individual government employee has violated the act, that employee may be fired, demoted, or even banned from federal employment for a maximum of five years.
That, of course, assumes that the MSPB is capable of acting. Currently, federal officials known as “administrative judges” can decide cases that fall within the jurisdiction of the MSPB, but those decisions can be reviewed by the board itself. According to the MSPB’s website, if a party to such a conflict seeks such a review, “a board decision may not be issued until a quorum of at least two board members is restored,” making these cases potentially in limbo.
The State faction in particular has strict restrictions on political activity
One of the paradoxes of liberal democracy is that we want a government that responds to elections but also manages existing laws without compromising political favoritism. Political appointments have the oldest jobs within the executive branch, and these appointments will inevitably be torn between their obligation to respect the rule of law and their loyalty to the president they appointed.
But, just as the Hatch Act recognizes that certain officials in sensitive roles must be especially careful about partisanship, the State Department has a long tradition of isolating even the highest-ranking diplomats from election politics. As Susan Hennessey and Scott R. Anderson write in a Washington Post op-ed critique of Pompeo for speaking at the RNC, “diplomats should represent all Americans for the rest of the world, and limiting their political activities ensures that they are able to serve this role effectively. “
For this reason, the internal policy of the State Department is particularly strict. According to a 2019 memorandum from the department’s legal counsel’s office, “Senate-confirmed presidential nominees with not even attending a political party convention or covenant-related events. ” (In the memo itself, this sentence is bolded and parts of it are italicized to reflect interest.)
Pompeo’s decision to speak to the RNC, in other words, is contrary to the explicit policy of his department.
The fact that Pompeo spoke while he was abroad in Jerusalem also violates State Department standards. According to the same memo, political appointments of the State Department that have not been approved by the Senate may only attend a “partisan political rally” if they are physically within the United States.
This is a less restrictive policy than that applicable to Senate-confirmed officials such as Pompeo. But it is noteworthy that Pompeo, by appearing at a partisan event while traveling abroad, did not even meet the less severe restrictions imposed on many of his subordinates.
Trump has long sought to undermine protections for officials
The Hatch Act was the culmination of a lengthy civil service reform process that began with the Pendleton Civil Service Act of 1883. Prior to civil service reform, federal workers were often elected through a “booty 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 not working. Even putting aside the obvious potential for corruption, the spoilage system turned the President of the United States into a glorious 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 at the White House in 1881. Before long, “it swallowed the first walk, out. the gate and to Pennsylvania Avenue. ”
Equally important are the protections of civil servants who isolate government workers from politics and evaluate their performance on the basis of merit, 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 strictly enforced against the president’s political enemies – and hardly at all against his allies.
And yet Trump has tried to undermine these protections. In 2018, for example, he signed executive orders making it easier to fire federal workers and weaken federal unions.
At the time, Trump justified these orders as necessary to eradicate low-performing people – and certainly wasted some money on the government by continuing to pay salaries to workers who eventually deserve to be fired. But there are also fewer things than government waste. Strong protection of civil services will sometimes make the government less efficient, but they will help prevent the kind of corruption that threatens democracy itself.
The behavior of the Trump administration at the RNC is another warning that this president does not respect the need to maintain a wall between government 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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