What is the Hatch Act?

White House aide Kellyanne Conway on Tuesday ...

Posted: Mar 6, 2018 9:21 PM
Updated: Mar 6, 2018 9:21 PM

White House aide Kellyanne Conway on Tuesday became the latest of President Donald Trump's top employees to receive an official reprimand for violating the Hatch Act, a 1939 law that seeks to keep government functions nonpartisan.

The Office of Special Counsel, an independent agency tasked with enforcing the law, declared Conway in violation of the law two times last year, citing interviews she gave from White House grounds defending Trump's decision to back Roy Moore, who had been accused of sexual abuse, in the Alabama Senate race.

The OSC said in its letter declaring Conway in violation of the law that it would leave the matter to the President, and the White House promptly issued a statement defending Conway.

But what exactly is the Hatch Act, and is Conway's violation out of the norm?

What the law does

The Office of Special Counsel -- not to be confused with the Department of Justice's special counsel investigation led by Robert Mueller -- is a unique government body charged with enforcing a handful of rules, including the Hatch Act.

The law is supposed to stop the federal government from affecting elections or going about its activities in a partisan manner, and according to the OSC's own explanation of the rule, it applies to federal employees as well as state and local employees who work with federally funded programs. The rule is a workplace guideline, and violating it is not a crime. Responses can vary significantly after employees violate the rule, from a slap on the wrist to loss of a job.

The OSC has its own guidelines for those covered by the Hatch Act to avoid violations, and more recently it has posted specific guidelines for social media. Some federal entities, like the Justice Department, have their own guidelines around political speech that go beyond the broad outlines of the Hatch Act.

Complaints are somewhat routine, and the debate over high-profile violations can be sharp, with interest groups and legal experts regularly weighing in and accusing government officials of violations.

Former FBI Director James Comey was himself at the center of a heated Hatch Act debate in the final days of the 2016 campaign. His decision to update Congress on the status of the Hillary Clinton email investigation received widespread criticism, and CNN legal analyst Steve Vladeck noted the varying Hatch Act complaints at the time, although Comey was not ultimately found in violation of the Hatch Act.

While the debate over Comey's actions and cases like Conway's receive the lion's share of attention, the act is a routine boundary for rank-and-file government employees, who have to follow specific protocols to keep political beliefs from being perceived to affect the performance of the government.

Just this week, the OSC handed down an announcement, citing the Hatch Act, telling employees to leave their "Make America Great Again" hats at home now that the President is officially running for re-election.

Who has violated it?

Conway is far from the first person in a high-profile role to violate the Hatch Act. Last year, White House social media director Dan Scavino and US Ambassador to the UN Nikki Haley both received official warnings over tweets that the OSC said broke the rules.

Scavino got his warning in June after calling for a primary challenge to Republican Rep. Justin Amash of Michigan, and Haley got hers in October for retweeting Trump's endorsement of a Republican from her home state of South Carolina. The OSC's warning for Haley noted the Hatch Act does not apply to the president or vice president.

Complaints have cropped up in several other instances, including for Kansas Secretary of State Kris Kobach, who was appointed to the now-defunct presidential commission on voter fraud, and Senate Democrats on Tuesday called on the OSC to review Federal Communications Commission member Michael O'Rielly for a potential violation of the Hatch Act after he appeared at the Conservative Political Action Conference last month.

Likewise, two Obama administration Cabinet heads faced Hatch Act reprimands. The OSC cited Health and Human Services Secretary Kathleen Sebelius for political comments in 2012, and Sebelius said afterward that she regretted her comments but took issue with the degree of the OSC's response.

Obama-era Housing and Urban Development Secretary Julian Castro tried to avoid violating the law during a 2016 interview by saying he was taking off his "HUD hat for a second and just speaking individually," before boosting Clinton.

That didn't work. In its statement announcing Castro had violated the Hatch Act, the OSC noted he was there in his official capacity and had the department seal behind him.

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