Robbins: Trump’s act, the Hatch Act, and what’s next
What’s got a lot of undies in a recent bunch is this administration’s apparent flaunting of the Hatch Act. You might say, the Trump Administration has hatched a plan to undermine it.
But in all earnestness, erosion of the act is sort of a big deal.
Let me count the ways.
First, let’s understand the act.
The Hatch Act, a 1939 law, limits certain political activities by federal employees, as well as some state, D.C., and local government employees who work in connection with federally funded programs. The law’s purposes are to ensure that federal programs are administered in a nonpartisan fashion (read that a “nonpolitical fashion”), to protect federal employees from political coercion in the workplace, and to ensure that federal employees are advanced based on merit and not based on political affiliation.
In short, the act is intended to keep federal employees from directly supporting candidates and — here’s the kicker — from attempting to influence elections. Do your elected or appointed duties and when you’re on the public dime, stay out of politics.
There are some exceptions; the president, for example, may lobby for one candidate or another and try to sway opinion.
The act was originally adopted in response to concerns that federal employees had been used to support candidates during the 1938 congressional elections. My, my, what innocent times those must have been!
Among the things those federal employees covered by under act cannot do is to engage in political campaign activities, solicit campaign donations, or actively work on behalf of a candidate.
The act specifically provides that such employees may not “use [their] official authority or influence for the purpose of interfering with or affecting the result of an election.”
What is worth repeating is that the act is meant to prohibit interference with or affecting the results of an election.
How it’s supposed to work
So strictly has the act been historically construed that if a senator or congressperson wants to talk up a potential donor, he or she must leave his or her governmentally-supported office, wander off to a neutral site, and make the call from somewhere else. While this may seem like an exaggeration, it is not.
Similarly, if an elected federal representative is interviewed on public, governmental grounds, the interview may not wander from policy to politics. If the representative wants to wax political, then he or she must do so far afield from the public trough.
The law has been challenged on the grounds of its interference with the right of free speech as guaranteed under the First Amendment. But the Supreme Court has nixed such arguments, holding that government employees are not completely unfettered in their rights, particularly when speaking in their official capacities.
In order to violate the act, one must not only “act” (that is, engage in political activity) but also must intend to influence or interfere with an election. And that’s the rub with what the president and his White House cadre have been up to.
Leave it to Trump to shatter norms
In employing the Rose Garden as a site for key parts of the Republican National Convention, in using the People’s House as a backdrop for a political campaign speech, in festooning the White House grounds with Trump re-election banners, in deploying Vice President Pence to speak from Fort McHenry (and national monument and shrine and site where the national anthem was penned in the red glare of the War of 1812), in deploying Secretary of State Pompeo to Jerusalem engaging public personnel and resources, in the president himself deploying White House personnel to stage his entrance onto the RNC stage and in the citizenship “ceremony,” he ginned up before the klieg lights on a red carpet at the White House, and in dozens and dozens of other ways both large and small, the Hatch Act was as roundly trampled as South Lawn beneath the feet of the unsocially-distanced guests called forth to listen to the president’s acceptance rant.
All of this is untrod ground, so shocking to the denizens of Washington, there are scarcely printable words to describe it. Not only did this White House violate norms, it shattered them. Not only did this White violate the law, it mocked it.
The rub though is that the act — as currently written anyway — lacks teeth. Yes, there will almost certainly be, along with loud recriminations, inquiries, and investigations. Yes, there will certainly be saber-rattling and scorn. But when it comes down to paying the piper, there will likely be little hell to pay.
One of the sour ironies of this whole sordid affair is that Mark Meadows, the president’s present chief of staff, when he was congressman, labored greatly to shore up the act and to stiffen the act’s punitive spine.
Social and political laws and mores matter. They should. They must. They are the scaffolding upon which our democracy and trust in it are built. Acts like the Hatch Act are consequential in too many ways to count.
At least to most of us they are.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org. Mr. Robbins’ new novel, "How to Raise a Shark (an apocryphal tail tale)," is available at Amazon.com.
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