Does the Hatch Act Even Matter Anymore?

If an act is read in the woods, and nobody complies, does it really make a sound?
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White House Counselor to the President Kellyanne Conway talks to journalists outside the West Wing of the White House on February 4th, 2019.

White House Counselor to the President Kellyanne Conway talks to journalists outside the West Wing of the White House on February 4th, 2019.

Eighty years ago, Congress established "An Act to Prevent Pernicious Political Activities." The so-called Hatch Act of 1939, named for New Mexico Senator Carl Hatch, prohibits the use of official executive branch authority "for the purpose of interfering with, or affecting" federal elections, as by, say, urging attendees at a dinner to vote for a candidate while attending the event in an official capacity as a cabinet member. In short, you can't conduct political activity while discharging your powers as a government official; your first duty must be to the people, not the party.

Like many sweeping statutes governing politics and power in the United States, the Hatch Act has been subject to several modifications over the course of its near-century in existence. Most recently, under President Barack Obama in 2012, a clause was added to include administrative discipline—admonishment or suspension, but not outright firing—as a penalty for violations. But the basic message has remained the same: Exploiting public power to retain public power is antithetical to the very nature of American democracy.

What relevance, then, does the Hatch Act hold in an era of Trumpian politics?

In a June 13th letter to President Donald Trump, the U.S. Office of Special Counsel argued that White House counselor Kellyanne Conway had completely ignored the Hatch Act during her time in the administration. A "repeat offender" since at least March of 2018, the letter stated that, since February of 2019, Conway used official media appearances to "[make] statements directed at the success of [Trump's] re-election or at the failure of candidates for the Democratic Party's nomination for President" despite repeated requests from the OSC to stop. The only responsible course of action is her removal, the OSC argued: Conway's media appearances, the letter stated, "stand in stark contrast to the culture of compliance promised by your White House Counsel and undermine your efforts to create and enforce such a culture."

"As a highly visible member of the administration, Ms. Conway's violations, if left unpunished, send a message to all federal employees that they need not abide by the Hatch Act's restrictions," reads the letter. "Her actions erode the principal foundation of our democratic system—the rule of law."

The White House responded immediately in a uniquely Trumpian way: by arguing that the OSC's "unprecedented actions against Kellyanne Conway are deeply flawed and violate her constitutional rights to free speech and due process." As NBC News notes, this is an inherently flawed argument: the Supreme Court has considered two challenges to the Hatch Act on First Amendment grounds and rebuked both of them, reiterating in the 2006 decision in Garcetti v. Ceballos that, "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."

But the OSC's letter isn't just a mere argument that the Trump administration should discipline a senior official for wrongdoing. It's an argument for the future of the Hatch Act itself against abuse from Trump. Trump's term in office has been defined by the most marked and prolonged staff attrition within American political institutions (a "dismantling of the administrative state"), and the slow collapse of the internal norms of governance that have defined the explosion of American bureaucracy since the Great Depression. If the Hatch Act is read in the woods, and nobody complies, does it really make a sound?

Conway isn't the only administration official who has steamrolled the Hatch Act since Trump came into office. While the OSC has certainly investigated violations under the previous administrations of Presidents Barack Obama and George W. Bush, there's been an uptick  in violations regarding social media in particular: Indeed, then-United Nations ambassador, and current White House social media chief Dan Scavino, and at least six other communications and media affairs officials, were all found in violation of the Hatch Act in December for embracing partisan messages on government social media accounts. In March of 2018, following Trump's official announcement as a candidate for the presidency in 2020, the OSC even released a new guidance regarding social media ahead of the coming election cycle.

The OSC all but points the finger at Trump, the Twitterer-in-Chief himself, for unleashing this apparent flood of Hatch Act violations by setting a standard for digital engagement among his senior staff with his own freakishly effective short-form tirades. "OSC's career Hatch Act staff have long conducted thorough and impartial investigations of alleged Hatch Act violations, including by senior officials in administrations of both parties," reads the OSC letter. "Never has the OSC had to issue multiple reports to the President concerning Hatch Act violations by the same individual."

It's usually the responsibility of agency heads to enforce the Hatch Act, and that buck stops with Trump when it comes to government principals (although the extent of his removal powers are vaguely defined). But in a Saturday interview with Fox News, he explicitly stated that he has no intention of placing the Hatch Act above the loyalty of his staff. "Well, I got briefed on it ... and it looks to me like they're trying to take away her right of free speech, and that's just not fair," he told Fox News on Saturday. "No, I'm not going to fire her. ... I think she's a terrific person. She's a tremendous spokeswoman. She's been loyal. She's just a great person."

The Hatch Act may not apply to Trump himself—as it exempts presidents—but the subtext of his obstinance is obvious: If you're a senior leader in the executive branch, the Hatch Act has no real teeth so long as you're a loyal member of the Trump apparatus. The White House will back you up against Deep State goons who just want to take down Trump at all costs.

That message, of course, hasn't stopped House Democrats from pushing for the OSC to investigate Jared Kushner for past politically prohibited activities—an effort that serves as yet another reminder that, when it comes to politics and power in the Trump era, the rules only matter so long as the president says they do.

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