We previously discussed the complaint filed by Walter Shaub, the former director of the Office of Government Ethics against White House Counselor Kellyanne Conway for violating the Hatch Act. At the time, I discussed my view that the statements of Conway concerning the special Senate election in Alabama were clear violations of the Act. The new report by OSC special counsel, Henry Kerner found two violations in Conway’s making highly political statements in her “official capacity” in November and December of last year in supporting Alabama candidate Roy Moore. Kerner, a Trump appointee, in a letter to President Donald Trump, called on President Trump to take “appropriate disciplinary action.” However, the White House issued an almost immediate dismissal of the findings. That was a mistake in my view. The President can justify not firing Conway but, particularly for an Administration fighting what it considers politicized actions in the Executive Branch, the President should reaffirm the need to comply with the Hatch Act, Some have criticized the act, but it remains federal law.
The two violations occurred on CNN’s “New Day,” and on Fox News’ “Fox & Friends.” On Fox, Conway was introduced by the show’s hosts as a “counselor to President Trump” and shown standing on White House grounds. She discouraged voters from voting for Democratic Senate candidate Doug Jones: “Folks, don’t be fooled. He’ll be a vote against tax cuts. He’s weak on crime, weak on borders. He’s strong on raising your taxes. He’s terrible for property owners.”
On CNN, Conway again was introduced as “counselor to President Trump” and warned voters that Jones would be “for tax hikes,” “against border security,” “against national security,” “against the Second Amendment” and “against life.” She also denounced Jones as “out of step for Alabama voters” and told viewers that Trump “doesn’t want a liberal Democrat representing Alabama in the United States Senate.”
That all seems pretty clearly a violation of the Act. Formally entitled an Act to Prevent Pernicious Political Activities, the Hatch Act passed in 1939 “prohibits federal employees from using their official authority or influence to affect the outcome of an election.” Employees are warned on the Special Counsel site about expressing such political opinions as a federal employee:
May federal employees express their views about current events, policy issues, and matters of public interest at work or on duty?
Generally, all federal employees may discuss current events, policy issues, and matters of public interest at work or on duty. The Hatch Act does not prohibit employees at any time, including when they are at work or on duty, from expressing their personal opinions about events, issues, or matters, such as healthcare reform, gun control, abortion, immigration, federal hiring freeze, etc. For example, while at work employees may express their views about healthcare reform, e.g., “I agree with healthcare reform.”
However, the Hatch Act prohibits federal employees at work or on duty from engaging in political activity. Political activity is activity that is directed at the success or failure of a political party, partisan political group, or candidate for partisan political office. Thus, employees may not express their personal opinions on such events, issues, and matters if such views also are political activity. For example, while at work employees may not express their views about healthcare reform tied to a candidate for partisan political office, e.g., “If you disagree with healthcare reform you should support candidate X.”
Finally, even when federal employees are expressing personal opinions that are permissible under the Hatch Act they should be mindful of how such views may be received by their coworkers and whether such comments are consistent with the Hatch Act’s underlying purpose of maintaining a politically neutral workplace.
Of course, Conway was not just speaking “at work or on duty” but on a national television interview concerning a political race in Alabama — and whether people should vote for one candidate. Conway is clearly trying to influence the election when she states “Doug Jones in Alabama, folks, don’t be fooled. He will be a vote against tax cuts. He is weak on crime, weak on borders. He is strong on raising your taxes. He is terrible for property owners.” In denouncing Jones a s a “doctrinaire liberal” in front of the White House, Conway emphasizes that “I’m telling you that we want the votes in the Senate to get this tax bill through,” Conway said, calling Jones a “doctrinaire liberal.”
5 U.S.C. § 7323(a)(1) was used in the case involving former Secretary of Housing and Urban Development Julian Castro in the Obama Administration. Castro was found to have violated the Hatch Act. Notably, unlike Conway, Castro stressed that he was speaking as an individual and not a public figure when he was asked about the presidential election by Yahoo News anchor Katie Couric, even though he stressed that he was answering her political questions in his personal capacity:
“Now, taking off my HUD hat for a second and just speaking individually, it is very clear that Hillary Clinton is the most experienced, thoughtful, and prepared candidate for President that we have this year.”
“What I am interested in, though, is trying to do a great job here at HUD and serving the people that we do serve, folks that are of modest means but who deserve our attention and our efforts. And so I don’t believe that is going to happen, but I am supportive of Secretary Clinton and I believe she is going to make a great president.”
“OSC concluded that Secretary Castro violated the Hatch Act by advocating for and against Presidential candidates. Secretary Castro’s statements during the interview impermissibly mixed his personal political views with official agency business despite his efforts to clarify that some answers were being given in his personal capacity.”
Similarly, in 2012, OSC found then-Health and Human Services Secretary Kathleen Sebelius violated the law when she gave a speech to a gay rights organization that included an aside comment favoring Obama’s re-election.
To the credit of these prior administrations, they accepted the results and pledged to take action. Instead, White House deputy press secretary Hogan Gidley issued an effective rejection of the conclusions of the Special Counsel:
“Kellyanne Conway did not advocate for or against the election of any particular candidate. She simply expressed the President’s obvious position that he have people in the House and Senate who support his agenda. In fact, Kellyanne’s statements actually show her intention and desire to comply with the Hatch Act — as she twice declined to respond to the host’s specific invitation to encourage Alabamans to vote for the Republican.”