The Hatch Act: A Primer

The Hatch Act: A Primer

April 20, 2020
The Hatch Act: A Primer
The Hatch Act (the Act) is a federal law that regulates the
regulate local political activities, it does have the power to
partisan political activities of most executive branch
attach conditions on the funds it grants to states.
employees as well as certain state and local employees. The
statute seeks to balance the government’s interest in an
The Hatch Act
efficient and impartial workforce with employees’ rights to
In its current form, the Act generally regulates the political
participate in the political process. This In Focus provides
activities of certain government employees. The statute and
an overview of the law, including its origins, its current
corresponding regulations define what employees are
scope, and what activities are prohibited under the Act.
covered under the Act, what activities are permitted and
prohibited, and what entities have the authority to remedy
Background
violations of the Act.
Congress has regulated the political activities of federal
executive branch employees since the passage of the
Who Is Covered
Pendleton Civil Service Act in 1883. The Pendleton Act,
The Act generally defines “employee” as any individual
which sought to create a merit-based federal workforce,
employed or holding office in (A) an “executive agency” or
also established the Civil Service Commission (CSC)—a
(B) a position within the competitive service that is not in
predecessor to the modern-day Merit Systems Protection
an “executive agency.” This definition broadly extends to
Board (MSPB). In 1883, the CSC issued Rule 1, prohibiting
nearly all federal civilian executive branch employees,
employees in the classified civil service from using their
including postal service employees. Legislative and judicial
authority or influence to coerce any other person or
branch employees who serve in positions specifically made
interfere with an election. In 1907, Rule 1 was amended to
subject to civil service rules requiring open competition in
prohibit employees from taking an active part in political
the application process are also covered under the Act.
management or campaigns.
Nonetheless, there are certain exceptions and limitations to
In 1939, Congress passed “An Act to Prevent Pernicious
the Act’s scope. The President, Vice President, members of
Political Activities,” more commonly known as the Hatch
the uniformed services, and Government Accountability
Act. The Act codified Rule 1’s ban on active participation
Office employees are expressly excluded from coverage.
in political management or political campaigns and
Also, because the definition includes only executive branch
extended its coverage to include nearly all federal
employees, the Act does not apply to the judicial or
employees, rather than just those in the classified civil
legislative branch, unless such employees are expressly
service. In 1940, the Act was extended to cover state and
included in the competitive service. Employees of all three
local employees who work on federally financed projects.
branches, however, are still subject to various provisions of
federal law relating to political corruption or campaign
As the civil service became more independent and merit-
finance. Judicial and legislative branch employees also have
based, Congress further altered the Act because the original
their own ethics codes that govern political activities.
rationale for the statute no longer justified broad restrictions
on employee political activity. The Hatch Act Reform
The Act also extends to state or local officers or employees
Amendments of 1993 significantly amended the Act,
“whose principal employment is in connection with an
notably allowing most covered federal employees to engage
activity which is financed in whole or in part” by the
in off-duty political activity. The Act was most recently
federal government. This definition does not include
amended through the Hatch Act Modernization Act of
individuals employed by educational or research institutions
2012. The amendments expanded the available penalties for
that a state or recognized religious, philanthropic, or
violations of the Act and allowed for covered state or local
cultural organization supports. For example, school teachers
employees to run for partisan elective office so long as the
are not covered under the Act.
federal government did not fund the entirety of their salary.
Prohibitions on Federal Employees
The Supreme Court has largely rejected facial constitutional
The Act expressly states that covered employees “retain the
challenges to the statute. Twice—once in 1947 and once in
right to vote” and “express opinion[s] on political subjects
1973—the Court rejected First Amendment challenges to
and candidates.” Most federal employees may also actively
the Act, employing a balancing test to hold that the Act’s
participate in partisan political activities (i.e., activities
restrictions were a reasonable means of ensuring integrity
directed toward the success or failure of a political party,
and competency within the government workforce, relying
candidate for partisan political office, or partisan political
on the government’s unique interests as an employer in
group) so long as the employee is not on duty or in the
regulating the speech and conduct of its own employees.
workplace. For example, these employees—who are also
And in 1947, the Court also rejected a Tenth Amendment
referred to as “less restricted employees”—may, while off
challenge to the statute’s provisions on state and local
duty, campaign for or against candidates in partisan
employees, holding that while Congress may not directly
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The Hatch Act: A Primer
elections, make campaign speeches or distribute campaign
government funds their entire salary. The Act’s prohibitions
literature, and hold office in partisan groups.
on participation in political activities do not apply to state
and local employees.
However, employees who are considered “further
restricted” under the Act are prohibited at all times from
Entities Responsible for Enforcing the Act
participating in political activity on behalf of a political
Multiple agencies are responsible for interpreting,
party, partisan political group, or candidate in a partisan
implementing, and imposing penalties under the Act. The
election. While further restricted employees may still join
Office of Personnel Management issues regulations
partisan groups, contribute money to partisan groups or
describing permitted and prohibited activities. A separate
candidates, and attend political rallies, meetings, and
and independent agency, the U.S. Office of Special Counsel
fundraisers, they may not take an active role in any political
(OSC), renders advisory opinions concerning the law and is
activity, even while off duty. These further restricted
authorized to investigate and prosecute alleged violations
employees are identified in 5 U.S.C. § 7323(b)(2)(B) and
before the MSPB, an independent, quasi-judicial body that
generally include employees of agencies that are
oversees disputes arising from the federal workforce. The
responsible for law enforcement or national security
MSPB then determines whether a violation has occurred
matters, such as the Federal Bureau of Investigation and the
and imposes available penalties, which, for federal
Central Intelligence Agency, as well as agencies that
employees, can include disciplinary action such as removal;
regulate elections, such as the Federal Election
a reduction in grade; debarment from federal employment
Commission.
for a period not to exceed five years; suspension;
In its current form, the Act prohibits all covered federal
reprimand; or civil fines not exceeding $1,000. For
employees from
state/local violations, the MSPB can recommend removal

from employment. If the employee is not removed as
using their “official authority or influence for the
recommended, the federal government can withhold federal
purpose of interfering with or affecting the result of an
funds from the employing agency.
election”;
 generally soliciting, accepting, or receiving political
Considerations for Congress
campaign contributions from any person, including
As the 2020 election season is under way, Congress may
hosting fundraisers;

consider whether the Act continues to balance properly
running for nomination or as a candidate in a partisan
employees’ statutory and constitutional rights to express
election;

their political opinions while still protecting the integrity
soliciting or discouraging participation in political
and proper functioning of the government. The OSC has
activity of any person who either has an application for
described the statute as a “bulwark against undue partisan
any grant, contract, license, or permit before the
influence in the operations of the executive branch.” And
employing agency, or is the subject of or participant in
during the 116th Congress, oversight hearings have
an audit, investigation, or enforcement action by the
examined executive branch compliance with the statute.
employing agency; or

Some critics, however, have argued that the Act’s broad
engaging in political activity while on duty; on federal
prohibitions chill political speech that would otherwise not
property; while wearing a uniform or official insignia;
harm the proper functioning of government. In this vein, the
or in a government vehicle. This restriction covers, for
exact contours of what the statute permits and prohibits
example, distributing campaign materials, displaying
remain open to legal debate. For example, while employees
campaign materials, wearing partisan political buttons,
retain the statutory right “to express [their] opinion on
T-shirts, or signs, posting comments to social media
political subjects and candidates,” the Act also prohibits
sites that advocate for or against partisan political
employees from participating in political activities while on
parties, candidates, or groups, or using any email
duty. Some have asked the OSC to provide guidance on
account to distribute content that advocates for or
when political opinion becomes prohibited political
against partisan political parties, candidates, or groups
activity, and have sought clarity, for example, on matters
while on duty.
such as whether employees may, while on duty, forward an
Additionally, further restricted employees (both while on
email that expresses negative information about a
and off duty) are prohibited from
presidential candidate. Congress may consider providing

further guidance as to what activities the statute prohibits.
partisan political management (e.g., holding office in
political parties, organizing political rallies or meetings,
The evolving digital era has also presented new
assisting in partisan voter registration drives); or
considerations. Employee reliance on modern workplace
 actively participating in political campaigns (e.g.,
platforms such as social media, mobile devices, email, and
speaking/campaigning for or against candidates, sending
telework may create a higher risk of inadvertent Hatch Act
campaign materials, circulating nominating petitions).
violations. Although the OSC continues to issue advisory
opinions on the use of modern technology, these rules lack
Prohibitions on State and Local Employees
any binding legal force. Congress may choose to codify
The Act’s restrictions on state and local employees are
clear rules addressing, specifically, how the Act applies to
narrower than those for federal employees. Covered state
employees’ use of modern technology.
and local employees may not coerce political donations
from other covered employees or use their official authority
Whitney K. Novak, Legislative Attorney
to interfere with an election. And state and local employees
may not run for partisan political office if the federal
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The Hatch Act: A Primer

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