Hatch Act Controversy: Neither Party Ever Intends to Enforce Against Their Own Side


President Donald Trump participates in a naturalization ceremony in the Cross Hall of the White House, August 25, 2020. (Joyce N. Boghosian/White House)

The reality is that nobody in either party has any intention of ever enforcing the Hatch Act against senior people on their own side.

The Trump campaign is under fire in some quarters for violating the Hatch Act during the Republican convention. The episode perfectly illustrates the relationship between Donald Trump, the “Swamp,” and his pledge to drain it. That pledge was always about doing openly and bluntly what Beltway insiders have long done smoothly and discreetly; about breaking the monopoly of establishment Washington over shady business, rather than about actually cleaning up government in any way. If Congress ever gets around to becoming a lawmaking body again, it should end a lot of the pious pretenses in federal law that nobody seriously expects to see enforced against anyone important in politics. Instead, the law should refocus on the sorts of clear, limited rules whose violation can less easily be excused.

The Hatch Act, passed in 1939, is designed to prohibit federal employees from political activity in the workplace, mainly for the purpose of preventing federal managers from pressuring subordinates on how to vote, donate, or get involved. It also serves the secondary purpose of preventing federal resources from being used for campaign purposes. The president and vice president are exempt from the Hatch Act, and the First Lady is not covered because she is not a federal employee, but Cabinet secretaries and many White House staff are. The Hatch Act is one of a series of laws that exist for similar purposes, such as the Pendleton Act of 1883, which forbids soliciting donations on federal property. There are also broader federal criminal prohibitions on misuse of government power, but the Supreme Court has sought to restrict their use to prosecute people who use policy for political ends, noting among other things the difficulty of line-drawing in this area. Presidents can be impeached for misusing government power for political ends, but — as we saw in February — they can only be convicted if there is bipartisan political will to do so.

There are two main sets of Hatch Act complaints at issue. One is that the various events for this convention at the White House — Melania Trump’s speech, Trump conducting a naturalization ceremony, Trump talking to former hostages — violate the Hatch Act. Eric Swalwell tweeted about the naturalization ceremony, “This is not a political convention. It’s a crime scene.” While the law does not apply to the president or Mrs. Trump, it applies to any other federal employee they direct to participate in those events, and it is a crime to direct those employees to violate it. The Trump administration and campaign, somewhat typically, are barely defending this, but may at least have a fig-leaf technical defense. Rebecca Ballhaus of the Wall Street Journal reports that a White House official told her of the naturalization ceremony, the White House “publicized the content of the event on a public website this afternoon and the campaign decided to use the publicly available content for campaign purposes.” This sort of wink-wink approach to creating “B-roll” footage that is then used by a legally separate entity is a quite common means of evading campaign-finance laws that prevent campaigns from coordinating with “independent expenditure” groups, but nobody has any illusions about the intent that always lies behind it. As to Mrs. Trump’s speech, the Office of Special Counsel today reiterated prior interpretations that “there are certain areas of the White House where the Hatch Act does not prohibit federal employees from engaging in political activity. The West Lawn and Rose Garden are two such areas. Therefore, covered federal employees would not necessarily violate the Hatch Act merely by attending political events in those areas.”

The second complaint is that Secretary of State Mike Pompeo spoke at the Republican convention, and did so from an official trip to Jerusalem. The secretary of state is not treated differently under the law than any other cabinet official, but secretaries of state have traditionally avoided convention speeches to maintain the pretense of separation from partisan politics, and the State Department’s own internal regulations — issued on the authority of the secretary of state — are supposed to keep the whole department out of elections. Congressman Joaquin Castro fired off a letter complaining about Pompeo’s appearance.

As far as the norms about secretaries of state are concerned, Pompeo may be breaking with tradition, but it is not an unbroken one, and its value as a norm is somewhat dubious. Contrary to the claim by Fred Kaplan at Slate that “No secretary of state has ever spoken at a party convention,” William Rogers — Richard Nixon’s secretary of state at the time — spoke at the 1972 Republican convention, albeit as part of a tribute to the recently deceased Dwight Eisenhower (Ike’s widow Mamie, as part of the same tribute, endorsed Nixon’s reelection).

The norm, even when respected, has been something of an open fraud. Did anyone actually think that John Kerry or Hillary Clinton or James Baker (who had previously been a campaign manager for Gerald Ford, Ronald Reagan, and George H. W. Bush) were apolitical figures? Or, going further back, that William Jennings Bryan, James G. Blaine, Henry Clay, or Thomas Jefferson were above politics? Three presidents (James Madison, James Monroe, and John Quincy Adams) were elected president while serving as secretary of state. James Buchanan and Daniel Webster both sought their party’s nomination while serving in the job. Jefferson more or less created the Democratic Party while serving as secretary of state; Clay got the job as part of a deal to resolve the 1824 election.

The broader claim that cabinet secretaries don’t speak at political conventions is even more laughable; as Jim Geraghty notes, six members of Barack Obama’s cabinet addressed the Democratic convention in 2012. Like Pompeo, they all engaged in the absurd pretense of not being there in their official capacities by not using their formal job titles. The law is an ass, and also an elephant.

Even when previous cabinet secretaries have been caught in flagrant violation of the Hatch Act, nothing has happened. In 2012, Obama’s Health and Human Services secretary, Kathleen Sebelius, was cited by the Office of Special Counsel for violating the Hatch Act by stumping for Obama’s reelection at a Human Rights Campaign event. Nothing happened. In 2016, another OSC report cited Obama’s HUD secretary (and Congressman Castro’s twin brother) Julian Castro for touting Hillary Clinton’s candidacy during an interview about HUD business. Again, nothing happened. Nobody complaining about Pompeo today is arguing that anything should have happened when Obama officials violated the same law.

In 2014, the Obama administration wouldn’t even comply with House subpoenas investigating Hatch Act issues. And Obama’s wasn’t the first recent administration to run afoul of the Hatch Act:

A 2011 report issued by Acting Special Counsel William Reukauf said that the Bush political affairs office helped coordinate activities that violated the Hatch Act, including sending top appointees to election-battleground states. Additionally, President Bill Clinton and his political affairs staff orchestrated a campaign to raise funds and reward donors with White House perks, such as overnight stays in the Lincoln Bedroom, during his first term.

That’s before we even get into the absurdity of applying the Hatch Act seriously to the more obviously political staff in the White House. As Politico reported in 2011:

The addition of senior adviser David Plouffe, Obama’s outwardly unassuming but commanding 2008 campaign manager, to the White House staff last fall sent an unmistakable message that Obama was trying to get control of his organization with 2012 fast approaching. Since the arrival of Plouffe, the White House hasn’t been especially shy about politicking, organizing and fundraising within ethical guidelines, federal law and their own interpretation of political propriety . . . Besides Plouffe, the list includes chief of staff Bill Daley, Obama’s 2008 campaign chairman and still a key figure in Democratic fundraising; deputy senior adviser Stephanie Cutter, a veteran political operative who held a top post in John Kerry’s 2004 campaign; press secretary Jay Carney; senior adviser Valerie Jarrett; and deputy chief of staff Alyssa Mastromonaco, a former campaign scheduler who helps coordinate logistics between the campaign and White House.

How blatant would a violation have to be in order for something to happen? In 1997, Al Gore was dead-to-rights making fundraising phone calls from government property, an obvious violation of the Pendleton Act. There was also significant evidence that such calls had been made by President Clinton. Gore, citing how long the law had been on the books without enforcement, claimed there was “no controlling legal authority.” Attorney General Janet Reno cleared them both, claiming that Gore had directly raised only “soft money” and had no knowledge that a good deal of it was being immediately rerouted to prohibited “hard money” accounts.

Some of this is simply the practicalities of governing: Why should we make presidents drag their Secret Service details across the street to make a telephone call? Isn’t the secretary of state supposed to be traveling the world? Aren’t Trump and his wife at the White House right now instead of in Charlotte or Jacksonville because there’s a pandemic? There are valid reasons to apply the Hatch Act to, say, civil servants who are not political appointees and are given job protections precisely for that reason. The justification for the law in the first place makes a lot less sense when dealing with people everybody knows to be political actors.

As I argued back in 2011, comparing the Gore case to the IRS investigation of Newt Gingrich and the campaign-finance prosecutions of John Edwards and Tom DeLay, one of the basic principles of clarity in the law is that you shouldn’t pass criminal statutes if you wouldn’t be prepared to see them used against someone you like. What’s worse: high-ranking figures violating laws such as these and getting away with it, or laws being selectively enforced to criminalize easily evaded technicalities? Our laws, as currently written, allow both. I’ve made the same point in arguing for repealing the Logan Act.

The public response from Republicans has been openly contemptuous. White House chief of staff Mark Meadows responded, “Nobody outside of the Beltway really cares. They expect that Donald Trump is going to promote Republican values and they would expect that Barack Obama, when he was in office, that he would do the same for Democrats.” House minority leader Kevin McCarthy: “At any time we hold our convention, there’s a very good chance you’re going to find Mike Pompeo somewhere else around this world. If that’s the only argument you have back to the Republican Convention because you can’t compete on the ideas, that shows the weakness in the Democratic Party.”

That reflects much of the “drain the swamp” ethos: Why shouldn’t Trump and his team be able to just do openly what people in D.C. have been getting away with for years? It’s a dangerous attitude in a nation of laws, but in the Hatch Act area as in so many others, you can’t fix it by drawing a line between the conduct of the Trump and Obama administrations — not unless you want to foster public cynicism about the law. Laws that apply only to one side are not laws, they are weapons. Laws that simply require you to hire lawyers to get around them are just barriers to competition. There’s no principle behind either.

The reality is that nobody in either party has any intention of ever enforcing the Hatch Act against senior people on their own side. This has been true and well known for some time. Congress should end the farce and repeal the law as it applies to political appointees, perhaps with a few narrow exceptions (for example, United States Attorneys). It should leave in place only laws that have no easy escape hatch.





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