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As campaign heats up, focus on federal Hatch Act grows

September 28, 2020

Amid robust media focus on the use of the White House and federal resources during the Republican National Convention in late August, retired Republican Sen. Orrin Hatch tweeted about the federal Hatch Act, which limits political activities of federal employees, including political appointees: “Friends, I am not in charge of the Hatch Act please stop calling.”

In 1993, Congress amended the Hatch Act to allow federal employees to engage in certain political activities in their free time.

In 1993, Congress amended the Hatch Act to allow federal employees to engage in certain political activities in their free time.

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As a new ABA Legal Fact Check posted Sept. 21 details, the namesake of the federal law is Sen. Carl Hatch, D-N.M. After employees in the New Deal Works Progress Administration engaged in congressional election campaigns, he led the effort in 1939 to enact into law a 32-year presidential executive order that prohibited employees from using their “official authority or influence for the purpose of interfering with an election or affecting the result thereof.”

The law exempts the president and vice president from its provisions. And in 1993, Congress significantly amended the Hatch Act to allow most federal employees to engage in a wide range of voluntary, partisan political activities in their free time, while away from the workplace.

The law still bars federal employees from using their position to support or oppose a candidate or political party or using government funds to support their candidate. Civil penalties, determined by the Merit Systems Protection Board for most civil service employees, include suspension, removal and fines of up to $1,000 — but no jail time. Under the law, presidential appointee violations “shall be presented to the President for appropriate action.”

In 1947, the U.S. Supreme Court ruled the Hatch Act constitutional, saying it balanced the rights of individuals to free speech with the “elemental need for order.” In 1973, the court upheld the provision of the law that banned federal employees from taking “an active part in political management or in political campaigns.”

As the ABA Legal Fact Check points out, violations of the Hatch Act can lead to tough discipline for workers in the federal civil service workforce. But the fact check also cites a handful of prominent cases showing that while political appointees are also subject to it, they seldom are punished because their fate is decided by the boss who appointed them.

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