“Time to Close the Hatch Act’s Escape Hatch”

Hampton Dellinger for Politico:

Since the Hatch Act was passed in 1939, government workers have faced strict limits on their political activity. And rightly so. Federal employees should be on the job for the public good, not partisan ends. Violators can be reprimanded, fined and even barred from federal service.

While the Hatch Act is broad on paper, a loophole has emerged in practice: senior White House personnel (including assistants to the president and others deemed commissioned officers) aren’t being subjected to the law’s full enforcement. Today, that changes.

I was recently nominated and confirmed to lead the Office of Special Counsel, the independent agency responsible for enforcing the Hatch Act for millions of federal workers. And after a careful review of past and present policies, I’m updating my agency’s enforcement approach to put an end to such differential treatment.

OSC brings Hatch Act violations to the Merit Systems Protection Board, an independent and quasi-judicial body, and the board can impose a range of sanctions if it determines the rules were broken.

But, in the past, OSC has declined to bring MSPB cases against White House officials. Instead, OSC has left the question of whether punishment should be imposed to the sole discretion of the president. 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….

And while I have great respect for the Department of Justice’s Office of Legal Counsel, I do not believe (as my office has suggested in recent years) that a 1978 DOJ opinion assessing draft legislation should be considered sufficient support for OSC to unequivocally exempt White House staff from the same Hatch Act enforcement regime other federal workers face.

As a result, I am announcing that prior OSC statements that White House officials cannot face Hatch Act enforcement in the same way other federal civilian employees do are no longer in effect. It is time to close the Hatch Act’s escape hatch….

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