Hatch Act: Candidacy for Office by Federal
Employees in the Executive Branch
Jack Maskell
Legislative Attorney
July 8, 2014
Congressional Research Service
7-5700
www.crs.gov
R43630
Hatch Act: Candidacy for Office by Federal Employees in the Executive Branch
Summary
The federal law commonly known as the “Hatch Act†applies to all federal officers and
employees—other than the President and Vice President—in the agencies, departments, bureaus,
and offices of the executive branch of the federal government. Under the significant amendments
made to the law in 1993, the Hatch Act now generally permits most federal employees to engage
in a wide range of voluntary, partisan political activities on their own off-duty time and away
from the federal workplace. Some employees in specified agencies and positions, including those
dealing with law enforcement and national security matters, it should be noted, may be subject to
further restrictions on their off-duty partisan political activities, and may not take any active part
in political management or political campaigns.
Although most officers and employees in the executive branch of the federal government are now
free to engage in most voluntary, partisan political activities on their own free time, employees in
the executive branch may still not be candidates “for election to a partisan political office†(5
U.S.C. § 7323(a)(3)), that is, federal employees may generally not be candidates for elective
office in a partisan election. Most civilian employees in the executive branch may, however,
(1) run for office in a “nonpartisan†election (that is, an election in which none of the candidates
represents a political party); (2) run as an “independent†in partisan elections in certain specified,
exempt communities in which a number of federal employees reside; and (3) be candidates for
and hold positions in political parties and their affiliated organizations.
Congressional Research Service
Hatch Act: Candidacy for Office by Federal Employees in the Executive Branch
Contents
Who Is Covered by the Hatch Act ................................................................................................... 1
Prohibition on Candidacy in Hatch Act Amendments of 1993 ........................................................ 2
When One Becomes a “Candidate†................................................................................................. 2
Nonpartisan Elections ...................................................................................................................... 3
Exemptions for Those in Certain Localities .................................................................................... 4
Political Party Positions ................................................................................................................... 5
Other Restrictions Relative to Running for Office .......................................................................... 6
Holding Other Public Office ............................................................................................................ 6
United States Office of Special Counsel .......................................................................................... 8
Contacts
Author Contact Information............................................................................................................. 8
Congressional Research Service
Hatch Act: Candidacy for Office by Federal Employees in the Executive Branch
his report provides information on the permissibility, under federal law, of a federal
employee in an agency or department of the executive branch of government being a
Tcandidate for elective office.
Under the provisions of federal law commonly known as the “Hatch Act,†civilian employees in
the executive branch of the federal government (other than the President and Vice President)
have, since 1939, been prohibited from running as candidates in partisan elections.1 Amended in
1993, the Hatch Act now permits federal employees to engage in a wide range of voluntary,
partisan political activities on their own, off-duty time, but still prohibits employees from being
candidates “for election to a partisan political office.â€2 Such employees, it may be noted, may run
for office in a “nonpartisan†election (that is, an election in which none of the candidates
represents a political party); may run as an “independent†in partisan elections in certain
specified, exempt localities in which a number of federal employees reside; and may generally be
candidates for and hold positions in political parties and their affiliated organizations.
Who Is Covered by the Hatch Act
The provisions of the “Hatch Act†apply (in one degree or another) to all federal employees, other
than the President and Vice President, in the executive branch of the federal government.3
Although the Hatch Act was significantly amended in 1993 to allow the vast majority of federal
employees to engage in voluntary, off-the-job partisan political activities, certain employees in
the executive branch, including those in law enforcement or national security agencies or offices,
remain under much more restrictive provisions regarding political activities, even on their own
free time.4 These “further restricted†employees are prohibited from taking an active part in
political campaigns or political management in a similar manner as under the old Hatch Act.
1 See original provisions of the “Hatch Act,†Public Law 76-252, 53 Stat. 1157 (August 2, 1939). Prior to the enactment
of the Hatch Act, federal employees were restricted in their political activities by Civil Service Rules.
2 5 U.S.C. §7323(a)(3).
3 The Hatch Act, as amended by the “Hatch Act Reform Amendments of 1993,†P.L. 103-94, 107 Stat. 1001 (1993),
generally applies to an “employee,†meaning “any individual, other than the President and the Vice President,
employed or holding office in—(A) an Executive agency other than the Government Accountability Office; or (B) a
position within the competitive service which is not in an Executive agency.... †5 U.S.C. §7322(1). An “Executive
agency†is defined generally to include an “Executive department, a Government corporation, and an independent
establishment†in the executive branch. 5 U.S.C. §105.
4 Employees of the executive branch remaining under more restrictive provisions regarding political activities include
those in such agencies as the Federal Election Commission; Election Assistance Commission; FBI; Secret Service;
CIA; National Security Council; National Security Agency; Defense Intelligence Agency; Merit Systems Protection
Board; Office of Special Counsel; Office of Criminal Investigation of the IRS; Office of Law Enforcement of the
Bureau of Alcohol, Tobacco, Firearms and Explosives; National Geospatial-Intelligence Agency; Office of the Director
of National Intelligence; Administrative Law Judges; career Senior Executive Service officials; Criminal Division or
National Security Division of the Department of Justice; when such officials are not appointed by the President with the
advice and consent of the Senate. See 5 U.S.C. §7323(b)(2)-(4) for the complete list of the agencies and employees.
Congressional Research Service
1
Hatch Act: Candidacy for Office by Federal Employees in the Executive Branch
Prohibition on Candidacy in Hatch Act
Amendments of 1993
Even for the majority of federal employees in the executive branch—who are under the less
restrictive rules on off-duty political activities adopted in 1993—there are still certain
prohibitions on political activities applicable to them. In addition to prohibitions regarding the
solicitation of campaign contributions from the public,5 the use of one’s official authority to
influence an election,6 on-the-job politics,7 and the solicitation of political participation from
anyone doing or seeking business with one’s agency,8 federal employees continue to be prohibited
by the Hatch Act from running as candidates in a partisan election.9 The statutory prohibition on
candidacy states expressly as follows in Title 5 of the United States Code:
§ 7323. Political activity authorized; prohibitions
(a) Subject to the provisions of subsection (b), an employee may take an active part in
political management or in political campaigns, except an employee may not—
(3) run for the nomination or as a candidate for election to a partisan political office....
A “partisan political office†is expressly defined in the law to mean “any office for which any
candidate is nominated or elected as representing†a political party whose candidates received
votes for presidential elector in the preceding presidential election.10 The restrictions on being a
candidate for office, therefore, bar a federal executive branch employee from running for any
elective public office—including a federal, state, local, or county office—which is filled in an
election where any of the candidates in the election runs as a Democrat, Republican, or as
representing any political party whose presidential electors received votes in the last presidential
election.
When One Becomes a “Candidateâ€
There may be definitional and factual questions about when one becomes a “candidate†for
purposes of the Hatch Act prohibition. “Candidacy†under the Hatch Act is not merely when one
formally “announces,†“declares,†or files for office, but could include preliminary activities and
conduct leading up to a formal declaration of candidacy, including activities commonly referred
to as “testing the waters.â€
In an Advisory Opinion, the United States Office of Special Counsel (OSC)—the federal agency
tasked with Hatch Act interpretation and enforcement—explained that the prohibition in the
Hatch Act against candidacy “extends not merely to the formal announcement of candidacy but
5 5 U.S.C. §7323(2).
6 5 U.S.C. §7323(1).
7 5 U.S.C. §7324(1),(2).
8 5 U.S.C. §7323(4).
9 5 U.S.C. §7323(a)(3). See 5 U.S.C. §7323(a)(1),(2),(4), and §7324, for other restrictions.
10 5 U.S.C. §7322(2); 5 C.F.R. §734.101.
Congressional Research Service
2
Hatch Act: Candidacy for Office by Federal Employees in the Executive Branch
also the preliminaries leading to such announcement and to canvassing or soliciting support or
doing or permitting to be done any act in furtherance of candidacy.â€11 The OSC described the
types of activities which would be prohibited by a federal employee as constituting “candidacyâ€
by such employee:
Because the Hatch Act has been interpreted to prohibit preliminary activities regarding
candidacy, any action that can reasonably be construed as evidence that an individual is
seeking support for or undertaking an initial “campaign†to secure a nomination or election
to office would be viewed as candidacy for purposes of the Hatch Act. The following are
examples of preliminary activities directed toward candidacy that would violate the Hatch
Act: taking the action necessary under the law of a state to qualify for nomination or
election; soliciting or receiving contributions or making expenditures; canvassing for voter
support; conducting polls for name recognition; meeting with individuals to plan the logistics
and strategy of a campaign; circulating nominating petitions, or; giving consent to or
acquiescing in such activities by others on the employee’s behalf.12
Activities which are preliminary to any filing for or declaration of candidacy may be prohibited
under the Hatch Act when they can “reasonably be construed as evidence that the individual is
seeking support for or undertaking an initial ‘campaign’ to secure nomination or election to
office.... â€13 For example, the OSC found Hatch Act violations when a covered employee
submitted his “qualifications†to a party screening committee in contemplation of candidacy, even
before filing or declaring as a candidate.14
Nonpartisan Elections
Although candidacy in an election for a “partisan†office is expressly prohibited for executive
branch employees, the “Hatch Act†is interpreted to allow a federal employee to run as a
candidate in “a nonpartisan election.â€15 The regulations make it clear, however, that the election
itself must be “nonpartisanâ€â€”that is, an election where “none of the candidates is to be
nominated or elected as representing†a national political party.16 The statute would, therefore,
continue to generally bar even an “independent†candidacy by a federal employee in an otherwise
“partisan†election.
With respect to state and local elections, the laws of the state or locality will often designate that
the election is to be “nonpartisan,†such that candidates are not to run as representing political
parties, and such laws will provide a presumption that the election is nonpartisan.17 Merely
because the names of candidates are listed on an election ballot without party designation does
11 OSC File AD-09-xxxx, June 17, 2009, http://www.osc.gov/documents/hatchact/federal/HAFederalAdvOpinion10-
21-09.pdf (redactions by OSC), citing to 86 CONG. REC. 2938-2040 (September 1939), quoting Civil Service
Commission Form 1236 “Political Activities and Assessmentsâ€; ... C.S.C. v. Letter Carriers, 413 U.S. 548, 573, 581
(1973) ...; see also In re Parker, 3 P.A.R. 7, 12 (1969).
12 OSC File No. AD-09-xxxx, June 17, 2009, supra at 2.
13 U.S. Office of Special Counsel, January 10, 2001. http://www.osc.gov/documents/hatchact/federal/fha-25.pdf .
14 Id.
15 5 C.F.R. §734.207(b).
16 5 C.F.R. §734.101 (definition of “Nonpartisan electionâ€). Emphasis added.
17 See, e.g., U.S. Office of Special Counsel, OSC File No. AD-01-0064 (January 16, 2002), and OSC File No. AD-08-
XXXX (December 12, 2007). Copies of the OSC advisory letters may be viewed on their website, http://www.osc.gov.
Congressional Research Service
3
Hatch Act: Candidacy for Office by Federal Employees in the Executive Branch
not necessarily indicate that the election is “nonpartisan,†however, as such candidates could still
be nominated by, or otherwise “represent†political parties, or could seek or accept party
endorsements or resources making the election a “partisan†election.18
One of the problems that could arise for a federal employee who legitimately and in good faith
runs for office in an election that has been designated “nonpartisan†is the fact that the other
candidate or candidates may seek, accept, or advertise the endorsement of a political party. In the
view of the Office of Special Counsel this could “indicate that the election is a partisan one,†and
bring into question the propriety of an employee’s candidacy. The Office of Special Counsel has
explained:
[P]lease be advised that usually a nonpartisan election is so designated by state or local laws.
Such state and local laws, however, create only a rebuttable presumption that an election is
nonpartisan. See Special Counsel v. Yoho, 15 M.S.P.R. 409, 413 (1983), overruled on other
grounds, Special Counsel v. Purnell, 37 M.S.P.R. 184 (1988). Evidence showing that
partisan politics actually enter the campaigns of the candidates may rebut this presumption.
See McEntee v. M.S.P.B., 404 F.3d 1320 (Fed. Cir. 2005); In re Broering, 1 P.A.R. 778, 779
(1955). For example, if a candidate solicits or advertises the endorsement of a political party
or uses a political party’s resources to further his or her campaign, these actions may rebut
the presumption that an election is nonpartisan, and thus, indicate that the election is a
partisan one. As such, if any candidate for Municipal Judge becomes associated with a
political party, you should immediately contact our office for further guidance.19
Exemptions for Those in Certain Localities
In addition to the general exceptions for candidacies in nonpartisan elections, the Hatch Act also
provides that regulations issued by the Office of Personnel Management may establish that
employees in certain communities in and around the Washington, DC, metropolitan area, or in
other communities where the majority of voters residing there are federal employees, may
participate in certain local political activities which might otherwise be prohibited.20 These
regulations allow federal employees in such exempted localities to run as independent candidates
even in partisan elections in that locality or municipality.21 The Office of Personnel Management
has issued regulations specifying those communities in which federal employees may be
independent candidates in partisan elections.22 Such employees may also solicit, receive, and
accept political contributions in connection with that local or municipal election, but would still
be prohibited from soliciting contributions from subordinates or engaging in political activities
while on duty or in federal workspace.23 The Office of Personnel Management regulations note
that a candidacy for or service in the particular office in question will be permitted only if such
18 OSC File No. AD-01-0064 (January 16, 2002), and OSC File No. AD-08-XXXX (December 12, 2007), supra.
19 OSC File No. AD-08-XXXX (December 12, 2007), at 2. Emphasis added. Such an interpretation if enforced strictly
and indiscriminately could, of course, put a valuable weapon in the hands of an opponent who could force the federal
employee/candidate from the race merely by the opponent accepting the endorsement from a political party.
20 5 U.S.C. §7325, as amended by P.L. 112-230, 126 Stat. 1617 (2012), adding Washington, DC, as an exempt
community.
21 5 U.S.C. §7325. See 5 C.F.R. Part 733 and 5 C.F.R. §734.207(a).
22 5 C.F.R. §733.107.
23 5 C.F.R §§733.103, 104.
Congressional Research Service
4
Hatch Act: Candidacy for Office by Federal Employees in the Executive Branch
candidacy and service will not “result in neglect of, or interference with, the performance of the
duties of the employee or create a conflict, or an apparent conflict, of interest.â€24
Political Party Positions
Most federal employees in the executive branch25 are allowed to hold and campaign for positions
and offices in political parties and other partisan political organizations. In prohibiting candidacy
in an election for “partisan political office,†the Hatch Act expressly excludes from the
prohibition “any office or position within a political party or affiliated organizationâ€:
“Partisan political office†means any office for which any candidate is nominated or elected
as representing a party any of whose candidates for Presidential elector received votes in the
last preceding election at which Presidential electors were selected, but shall exclude any
office or position within a political party or affiliated organization.26
Specifically as to the permissibility of a federal employee to run for and to hold a “political party
position,†the Hatch Act regulations permit the following:
§ 734.204 Participation in political organizations.
An employee may:
(b) Serve as an officer of a political party or other political group, a member of a national,
State, or local committee of a political party, an officer or member of a committee of a
political group, or be a candidate for any of these positions.... 27
The U.S. Office of Special Counsel has noted, for example, that a United States Postal Service
employee may be a candidate for what appears to be a county elected position representing the
political party in the county, and for which only members of that same political party would vote
in a primary election:
Specifically, you ask whether the Act would prohibit you, as a United States Postal Service
employee, from being a candidate for Committeeman of xxxx, New Jersey. We understand
that each political party has a Committeeman and Committeewoman who represent xxxx
County. You further explain that only members of the same political party may vote in the
election for Committeeman and Committeewoman.
*
*
*
While the Act prohibits candidacy for public office in a partisan election, it does not prohibit
a covered employee from running for office within a political party.2 Consequently, you
would not be prohibited by the Hatch Act from being a candidate for Committeeman of xxxx
County because it is an office within the Republican Party. However, as a covered employee,
24 5 C.F.R. §733.104(e).
25 This includes employees who are not subject to the more restrictive provisions of 5 U.S.C. §7323(b)(1) and (2),
applicable to law enforcement and some national security positions. See, footnote 2, infra, for a list of agencies with
more restrictions.
26 5 U.S.C. §7322(2). Emphasis added. See also 5 C.F.R. §734.101.
27 5 C.F.R. §734.204.
Congressional Research Service
5
Hatch Act: Candidacy for Office by Federal Employees in the Executive Branch
you are prohibited from soliciting, accepting or receiving political contributions. 5 U.S.C. §
7323(a)(2). Therefore, in addition to other restrictions concerning your political activity, you
would have to refrain from listing your name on any fundraising letters or invitations sent
out on behalf of the Republican Party or any partisan candidate.28
Other Restrictions Relative to Running for Office
If a federal employee in the executive branch is allowed to run for political office in an election
because of one or more of the exemptions and exclusions in the Hatch Act, there remain other
restrictions and limitations in federal law and regulation which may be relevant to such
employee’s activities. Employees are expressly forbidden by the Hatch Act to engage in any
political activities while on duty or in any building in which federal employees are performing
official duties.29
Furthermore, in addition to Hatch Act restrictions on campaigning in one’s office or while on
duty, it should be noted that there are general ethical rules and standards of conduct which
prohibit executive branch employees from using any government property “for other than
authorized purposes,â€30 and thus employees may not use office supplies such as paper, or office
equipment such as printers, copiers, or computers for or on any political campaign, including
their own. In this regard, employees are specifically prohibited by the Hatch Act from engaging in
political activities while “wearing a uniform or official insignia identifying the office or positionâ€
of the employee, and are prohibited from campaigning using any vehicle owned or lease by the
government.31
The general restrictions of the Hatch Act also prohibit executive branch employees from using
their official authority to influence an election (which would include prohibiting the solicitation
of support or requests for support or activity from one’s subordinates in the office or agency)32;
restrict the solicitation of campaign contributions from the public or from subordinates33; and
prohibit the solicitation of support or political participation of any person who is seeking action
from one’s agency or is subject to an ongoing audit or investigation by one’s agency.34
Holding Other Public Office
The Hatch Act addresses the permissibility of a federal employee running for or campaigning for
a public office, but does not address, regulate, or restrict the holding of a state, local, or county
public office by a person who is also a federal employee in the executive branch of the federal
government.35 A federal government employee may have obtained a public office in the state or
28 OSC Advisory Letter, June 4, 2002 (redactions by OSC).
29 5 U.S.C. §7324(1),(2).
30 5 C.F.R. §2635.704.
31 5 U.S.C. §7324(a)(3),(4).
32 5 U.S.C. §7323(1).
33 5 U.S.C. §7323(2).
34 5 U.S.C. §7323(4).
35 The United States Constitution expressly prohibits anyone holding a federal office from being a Member of Congress
at the same time, thus restricting “dual office holding†at the federal level. U.S. CONST., art. I, §6, cl. 2: “... no Person
(continued...)
Congressional Research Service
6
Hatch Act: Candidacy for Office by Federal Employees in the Executive Branch
locality by being appointed to that public office, or may have been an incumbent in the office at
the time of entering federal employment. Although the Hatch Act does not address the holding of
an office, a federal employee who is an incumbent in a state or local position, or who was
appointed to fill a vacancy in such position may be restricted and prohibited from running for re-
election (or election) to such position if the position is filled in a partisan election. The Office of
Special Counsel has explained that the Hatch Act does not bar outside office holding, nor does it
require an incoming federal employee to give up his or her outside elective office:
[W]hile the Hatch Act prohibits candidacy for public office in partisan elections, it does not
prohibit a federal employee from being appointed to or holding public office. Additionally,
when an individual holds elective office at the time that the employee begins federal
employment, he or she may continue to serve in the elected position. However, the employee
may not be a candidate for re-election if the election is partisan and the employee continues
to be employed by a federal agency.36
The permissibility of holding outside positions in state, local, or county governments by federal
employees is generally addressed under federal provisions by conflict of interest and standard of
conduct regulations promulgated by the Office of Government Ethics,37 which are primarily
enforced by each agency or department with respect to their own employees.38 These standards of
ethical conduct expressly restrict outside compensation and positions in two specific instances:
(1) where holding the outside position would create conflicts of interest with one’s federal
governmental duties such that an employee would be required to regularly disqualify (or
“recuseâ€) himself or herself on official federal governmental matters “so central or critical to the
performance of his official duties that the employee’s ability to perform the duties of his position
would be materially impairedâ€;39 or (2) which are expressly restricted by federal law or
regulation, including the regulations of one’s agency.40 Although the ethics regulations in the
executive branch are centralized and promulgated by the Office of Government Ethics (OGE),
each agency may, in consultation with and approval by OGE, promulgate supplemental ethics
regulations limiting or restricting certain types of outside employment, or requiring an employee
to receive prior approval before engaging in certain compensated outside, non-federal
employment.41 These supplemental agency regulations should also be examined for any further
limitations, restrictions, or requirements for outside activities.
(...continued)
holding any Office under the United States, shall be a Member of either House during his Continuance in Office.â€
36 U.S. Office of Special Counsel, “Political Activity and the Federal Employee,†at 5 (December 2005).
37 5 C.F.R. §2635.801 et seq. Such “dual office holding†with respect to state and local offices must also be analyzed
with regard to any state statutory or local ordinance prohibitions.
38 5 C.F.R. §2635.106; 5 C.F.R. §2638.101 et. seq.
39 5 C.F.R. §2635.802(b). An employee must disqualify himself from working on any “particular†official federal
matter which will have a “direct and predictable effect†on the financial interests of that employee, his or her spouse or
dependents, or on entities with which the employee is affiliated as an officer, employee, or agent. 18 U.S.C. §208; 5
C.F.R.§2635.402. An employee must also disqualify himself from working on a “particular matter involving specific
parties†when it may affect the interests of those within his household, or when organizations or persons with which the
employee has a “covered relationship†are parties to or represent parties to that matter. 5 C.F.R. §2635.502.
40 5 C.F.R. §2635.802(a).
41 5 C.F.R. §2635.105; 5 C.F.R. §2635.803.
Congressional Research Service
7
Hatch Act: Candidacy for Office by Federal Employees in the Executive Branch
United States Office of Special Counsel
Questions concerning the specific application and interpretations of the provisions regarding the
permissible political activity and candidacy of a particular federal officer or employee may be
directed to the United States Office of Special Counsel, which has jurisdiction over the
enforcement and interpretations of the Hatch Act provisions. That office may be reached by
telephone at (1-800) 854-2824 or (202) 254-3650; by fax on (202) 254-3700; by e-mail at
Hatchact@osc.gov; or by mail at Office of Special Counsel, 1730 M Street NW, Suite 218,
Washington, DC 20036-4505.
Author Contact Information
Jack Maskell
Legislative Attorney
jmaskell@crs.loc.gov, 7-6972
Congressional Research Service
8