A long-awaited report by the Office of Special Counsel has determined that government employees under former President George W. Bush participated in campaign-related activities during the 2006 midterm elections in violation of a federal law known as the Hatch Act.
The report found that “U.S. Treasury funds were unlawfully used to finance efforts to pursue Republican victories at the polls in 2006” by the Bush administration’s Office of Political Affairs, run at the time by Karl Rove. The report implicates “the entire [Office of Political Affairs] staff,” saying that they were all involved in campaign-related activities and “believed that effort was part of their official duties.” Drawing on over 100,000 pages of documents and interviews with eighty officials from the Bush administration, the report found that political appointees in the administration helped run fund-raising efforts for Republican candidates and were enlisted in GOTV operations, particularly in the three days just before the election. In the end, the efforts fell short, as the Democrats took back both houses of Congress in the midterms. The report does not, however, implicate the president or name individual advisors or cabinet members.
The report names ten agencies and departments that were engaged in political activity and does not stop with implicating the Bush Administration. While it finds that violations in the run-up to the 2006 elections were particularly egregious, it also claims that “the aspects of OPA that came in conflict with the Hatch Act during the Bush II administration have apparently existed for decades.” An exception in the law allows some White House staffers, including top aides in the Office of Political Affairs and the president, vice president and members of the cabinet, to engage in some political activity on federal property—though the use of federal funds for political activities is always barred. The problem with this exception is it has been broadly interpreted to include support and midlevel staff.
Last June, Richard Painter, a University of Minnesota law professor, wrote an opinion piece for the New York Times criticizing the law’s exceptions that allow staff to use public buildings, computers, BlackBerries and the like for political purposes. “I think going forward that the OSC is saying that a very limited number of people should be allowed to do this work in the White House,” he said in a recent interview with C&E. Painter cited an exception in the law that allows for staff and employees at the White House to engage in political activity during working hours inside government buildings. “That is the exception I think should be abolished,” he said. “Everyone has known for a long time that the White House staff does this.”
The maximum penalty that can be applied to Hatch Act violations is dismissal from office—a fate that Bush Administration officials need no longer fear. The Obama administration recently dissolved its White House political affairs division and folded the operation into the soon-to-be-formed Obama re-election campaign headquartered in Chicago. “The implication is clear that the president decided to move the operation to Chicago five days before this report came out,” says Painter. “That is not mere coincidence. He did the right thing in moving that office to Chicago.”
The 1939 Hatch Act, officially known as the Act to Prevent Pernicious Political Activities, is named for Sen. Carl Hatch (D-NM). During the New Deal, Works Progress Administration employees were alleged to be aiding Democratic legislators and misusing federal funds for campaign purposes during the 1938 midterm elections. The act was enacted to curb what Sen. Hatch considered gross corruption and misuse of taxpayer funds.
The Hatch Act expressly forbids federal employees under the president’s direction from engaging in campaigns or political activity. (The act also forbids federal employees from participating in any group that “advocates the overthrow” of the government.) It covers all full and part-time civilian employees of the executive branch, with exceptions as described above. The act also covers employees of the postal service and those of the District of Columbia, except the district’s mayor, city council members and recorder of deeds.
The act has survived several legal challenges, including allegations in 1947 and 1974 that it violated federal workers’ First Amendment rights. The Supreme Court left the act intact both times. In 1984, federal employees’ union leaders were found to be in violation of the act after they voiced public support for presidential candidate Walter Mondale. After nearly a decade-long effort to amend the act, President Bill Clinton signed a bill in 1993 allowing figures such as union leaders to participate in political campaigns.
While the act is fairly clear, violations continue to persist. The OSC keeps an archive of its advisories to federal employees along with an FAQ. Additionally, should questions about a particular political activity persist the OSC allows requests for advisory opinions relating to The Hatch Act. It is always best to ask before getting yourself, or the president of the United States, into trouble.
Noah Rothman is the online editor at C&E. Email him at nrothman@campaignsandelections.com