New Guidance for Federal Employees’ Political Activity Goes Too Far

This post was updated on Friday, November 30.

This week, the Office of the Special Counsel (OSC) circulated troubling new Hatch Act guidance about the type of activity permitted for federal employees. The Hatch Act generally prohibits public employees from engaging in partisan political activities while on duty but does not prohibit policy objections or reporting crimes. The new guidance from OSC, which is the agency with primary responsibility for enforcing the Hatch Act, could dangerously stifle whistleblowers who raise concerns about severe misconduct.

The OSC guidance states that activity related to the “Resistance” or the use of that term is considered political activity under the Hatch Act, as is advocating for impeachment of an official who is also a candidate for future office (such as President Trump, who announced his 2020 candidacy in 2017).

American Oversight sent a letter to OSC expressing concern about the guidance and its serious policy and constitutional implications, noting that there is a difference between advocating for or against an official’s election (prohibited by the Hatch Act) and advocating that an official did or did not commit treason or high crimes (impeachable under the Constitution). OSC’s guidance suggests the opposite, arguing that since impeachment bars offenders from future public service it is the same as arguing that an official should not be re-elected.

OSC’s categorical prohibition on the use of “resist” or “resistance” terms as political activity is also too broad. The First Amendment protects employees’ right to object to administration actions and policies, and conflating such terms with electoral advocacy opens the door to public employees being retaliated against for their opinions. With the Trump administration already corruptly trying to root out the “deep state,” the OSC should not empower Trump appointees to target people who “resist” administration policies like family separation.

Statement from American Oversight Executive Director Austin Evers:

The Office of Special Counsel’s new guidance goes too far and opens a dangerous door for the Trump administration to crack down on dissent. Making it illegal to advocate for or against impeachment of Donald Trump or to resist administration policies like family separation or the Muslim ban could operate as a gag order against whistleblowers and impinge on the constitutional rights of public employees.

The Hatch Act bars public servants from engaging in partisan political activities while on duty but does not prohibit them from speaking out as citizens against illegality or bad policy. Indeed, the oath to uphold the Constitution requires them to do so. The OSC should retract its recent guidance and replace it with rules that are appropriately nuanced and do not empower retaliation.

The Office of Special Counsel is essential for ensuring government employees follow the rules regarding political activity while on duty. Individuals who violate the Hatch Act should be held accountable. OSC’s opinions concerning White House and senior administration officials engaging in campaign activity in their official capacities have been important contributions and no doubt the agency is playing an important role behind the scenes protecting whistleblowers from retaliation.

UPDATE: Friday November 30, 2018

On Friday, OSC issued a clarification of the guidance that did little to clear up what is or is not allowed for federal workers. Within two Orwellian sentences, the OSC says that employees can state an “opinion about whether the president should be impeached” but cannot engage in “advocacy for or against the impeachment.”

Statement from American Oversight Executive Director Austin Evers:

“The Hatch Act carries serious penalties, and OSC owes the federal workforce a straight answer about what is and isn’t allowed. This clarification is the opposite of clear, and it underscores why OSC needs to withdraw the guidance and start over at the drawing board. Within two sentences, OSC says employees may “express an opinion about whether the president should be impeached” but may not engage in “advocacy for or against the impeachment” of the president. Whatever imagined distinction OSC sees between these positions, the guidance is completely unclear and confusing, and as a result, the OSC has again sent a chill across the public workforce.

“Federal employees also received the mixed message this week from OSC that supporting “MAGAnomics” is permissible while supporting the “Resistance” is not.”

Reasonable employees would undoubtedly find this distinction confusing, and such incoherence could have no effect except to put a chill on workers’ speech. The so-called clarification comes the same week that employees received the mixed message from OSC that declaring support for “MAGAnomics” — as Office of Management and Budget Director Mick Mulvaney did earlier this year — is permissible, while supporting the “Resistance” is not.

American Oversight’s November 29, 2018 Letter to the Office of Special Counsel:

https://www.documentcloud.org/documents/5332761-2018-11-29-American-Oversight-to-OSC-Re-Hatch.html

The Office of Special Counsel’s November 27, 2018 Guidance on the Hatch Act:

https://www.documentcloud.org/documents/5332756-Office-of-Special-Counsel-Hatch-Act-Guidance.html