LEGISLATION TO AMEND THE HATCH ACT THURSDAY, SEPTEMBER 22, 1977 U.S. SENATE, COMMITTEE ON GOVERNMENTAL AFFAIRS, Washington, D.C. The committee met, pursuant to notice, at 10 o'clock a.m., in room 3302 Dirksen Senate Office Building, Hon. Jim Sasser (acting chairman), presiding. Present. Senators Sasser and Stevens. Staff members present: Claudia T. Ingram, professional staff member and Elizabeth A. Preast, chief clerk. Senator SASSER. The committee will come to order. Good morning. First, let me say that I appreciate the flexibility the witnesses have shown in meeting our change in schedule requirements for this hearing. The changes in hearing days have been made necessary because of the need to hold immediate hearings regarding Mr. Lance. So I want to thank all the witnesses for adjusting their schedules to appear here this morning. This is the third day of Senate hearings on H.R. 10, S. 80, and S. 980, which are Hatch Act reform bills. H.R. 10 was passed by the House of Representatives earlier this year. This committee heard testimony on July 18 and 19th and today we resume. The first witness this morning is Mr. Tom Matthews who represents the American Civil Liberties Union. Welcome to the committee, Mr. Matthews, and if you would just come around. In the interest of time I might ask you to summarize your prepared statement if you have one and submit the entire statement for the record if possible, or if you wish to read it in toto, we will be happy to receive it. Would you be good enough for the purpose of the record to introduce your associate, we would appreciate it? TESTIMONY OF THOMAS C. MATTHEWS, JR., AMERICAN CIVIL LIBERTIES UNION Mr. MATTHEWS. Good morning Chairman Sasser and Senator Stevens. Thank you for the opportunity to appear. With me today is Mr. Neal Reichenberg who is a volunteer attorney for the ACLU who has helped me in the preparation of my remarks today. Bert Lance has gone. With him have gone the television cameras, lights, and crowded spectators that filled this hearing room last week. Senator SASSER. Thank goodness. Mr. MATTHEWs. Today's subject, revision of the Hatch Act, does not demand the same attention from the media or the public. Yet in a longer historical perspective I submit the questions before you today are at least as significant as the fitness for public office of one man at one point in time. Today the committee will hear testimony on a bill affecting directly millions of public employees and their freedoms of speech and association as guaranteed by the Bill of Rights. Even though today's subject may not grab the public's attention like a scandal, nothing can be more central to our form of Government than the freedom of its citizens. Before I turn to the substance of the bills before you, a brief background sketch may help put my remarks into context. It has been well said that you can define an expert witness as the one who has traveled the furtherest to testify. By that definition I am not expert, since my office is just downtown. But I have devoted substantial time and study to the Hatch Act over many years. In 1964, working with the committee of the local bar association, I drafted a flyer on do's and don'ts under the Hatch Act, attempting to emphasize the political activities that Government employees remain free to engage in. During 1967 I served as part-time special counsel to the congressionally created Commission on Political Activity of Government Personnel. In 1971 to 1973 I served as chief counsel in the Letter Carriers case in which the Supreme Court rejected our arguments and upheld the Hatch Act's constitutionality. Since 1973 I have frequently prepared and delivered testimony to committees of both Houses on various bills to revise the Hatch Act. Let me emphasize that today I represent only the American Civil Liberties Union and its local affiliate. I am not appearing on behalf of any organization of Government employees. With that background, let us turn to the bills before you. H.R. 10 and the companion bills are intended to relax the Hatch Act's restriction on voluntary, off-duty political activities by employees of the Federal Government. No one has seriously suggested any removal of existing prohibitions against coercion, intimidation or misuse of official authority, and indeed the proposed legislation before you would improve existing enforcement authority and strengthen sanctions in this important area. So the issue presented by H.R. 10 is whether it is wise to relax or even to change that language in the 1939 Hatch Act which makes it unlawful for Federal employees to "take any active part in political management or in political campaigns. Resolution of this issue requires a clear look at the values on each side of the question. On one side we must weigh the value of the unfettered right of free speech and association for a large class of American citizens. Let there be no doubt that the Hatch Act regulates and limits the exercise by millions of American citizens in the employ of the Federal Government of basic freedoms, namely, political speech and association. The present acts leaves civil servants with an important residue of rights for example, the right to vote and the limited right of campaign participation-is beside the point. It cannot be denied that in important respects the Hatch Act restricts first amendment rights that Federal employees would otherwise enjoy. In laying the issue before you, you should recognize, as the Supreme Court has done, that the first amendment rights of free speech and association generally have their fullest and most urgent application precisely to the conduct of campaign for public office. The Hatch Act's restriction of voluntary, off-duty political activities bars Federal employees from engaging in a wide and imprecisely defined range of public affairs activities that is the very essence of self-government. A fundamental "Catch-22" of the Hatch Act is that the more effectively an employee expresses his opinion on political subjects or candidates, a right expressly preserved by the act as it stands, the more likely he is to be caught up in the prohibitions of the act which are so difficult to understand and interpret. Confronted with the present fuzzy line between permitted and prohibited conduct, a prudent employee who wants to keep his job will say nothing. The vagueness of the present statute thus operates to produce self-censorship, perhaps the most pernicious and least remedial way of chilling speech. Nothing that I have said is undermined by the fact that the Supreme Court twice has upheld the constitutionality of the Hatch Act, for the Court simply laid the statute along side the Constitution and found it not wanting. The Congress, as the Court also recognized, has a different and independent obligation, namely, to assess the necessity for, and wisdom of, the act's restrictions on individual liberties. The Court's last opinion on the Hatch Act contained an expressed invitation to Congress to reconsider the need for restrictions on political activity by Government employees in the light of realities of political life and Government service. Defenders of the present statute argue that those realities require continuation of the Hatch Act's generalized and vague restrictions on political activity by Government personnel. Their basic argument is that, if were it not for these sweeping restrictions, Government employees would be subject to coercion by their superiors and others to engage in political activities. Such defenders of the act in its present form fear that coercion is likely to rear its ugly head in forms and shapes too subtle to be dealt with by any direct prohibition such as those contained in H.R. 10. We recognize that these fears are not entirely ephemeral. Coercion can be subtle. Even the best of administrative or criminal sanctions and procedures to prevent intimidation and misuse of official authority are blunt instruments when compared to the devious forms that coercion by powerful interests can take. We do not dismiss lightly the problems presented by efforts that may be made by politicians and their supporters unduly to influence public servants and the resulting dangers of subtle coercion on Government employees. 97-222 O 78 17 We submit however that these dangers do not warrant the present prohibitions of the Hatch Act. The imperatives of the first amendment outweigh these dangers, particularly in the absence of empirical evidence that the remaining safeguards of H.R. 10 will not effectively preserve a neutral and efficient civil service free from coercion and intimidation. The next few pages of my statement outline the types of safeguards that are present in H.R. 10. Since the statement is submitted for the record, I will follow the chairman's suggestions and skip over toward the end of the statement. The fear that the Federal employee unions might be the principal source of coercion has been expressed by a number of people. This antiunion argument is similar to those expressed by private industry during the era of growth and development of labor unions in the private sector. It is difficult to comprehend how unions will exercise this coercion. No one in the Federal Government is forced to join a union. The union officials serve at the pleasure of the membership and must periodically be reelected. In addition, union leaders do not decide if a person works, what his hours are, what his work consists of or his rate of pay. Union leaders are more likely to try to become allied with the Federal employee in order to reassure their reelection and to bolster membership in their union. The claim that union will make the working environment of Federal employees who choose to remain politically inactive or who support candidates other than those backed by the union an unliveable one is unfounded. One of the most careful of the advocates of the status quo is Mr. John Bolton, who has written a book on it. He has advanced the theory that the first amendment almost mandates the prohibition of political, partisan political activity by Government employees. His argument is that we need to restrict the activities of free speech in order to preserve them. To forbid a citizen from taking an active part in political activity is clearly to deny his freedom of speech and association-a right expressly guaranteed by the first amendment. I find it difficult to understand how, through the abridgement of first amendment right of public employes, the Government is following the mandates of the first amendment. It appears to me that the opposite is the case, and Mr. Bolton's argument comes out something like Orewellian "newspeak""war is peace," etc. The proposed legislation, in our opinion, strikes an effective balance between the first amendments rights of Federal employees and the need for an impartial civil service. This legislation prohibits those political activities that would destroy public confidence in the Government and the civil service system. This legislation would give Federal employees the right to either participate or not participate in the furtherance of a political goal. The removal of restrictions on voluntary political activity by Federal employees is not likely to adversely affect the character of the Federal civil service. In summary, the issue before you is really a test of where Congress stands on the first amendment. The division on the question should not be along liberal/conservative or party lines, but rather on the perceived importance to our Nation of the first amendment. If you agree with us that, as the Supreme Court has so often said, the freedom of speech and association is the foundation of the Bill of Rights, without which all of the other constitutional rights cannot exist, you will support H.R. 10. Only if you relegate those freedoms to a lower place in the hierarchy of important values that you, as Senators, must deal with daily, can the status quo be defended responsibly. The American Civil Liberties Union believes that the first amendment requires lifting of restrictions from free political speech and association of our millions of Federal employees. Thank you very much for this opportunity to bring the views of the ACLU to you. Senator SASSER. I am curious as to how the ACLU arrived at its position on this question as an organization. Was a poll taken of the membership? Was it decided by the board of directors? Or just what was the process by which the ACLU arrived at a position of support for this proposed legislation? Mr. MATTHEWs. I would have to check back with the organization. I am not certain of the answer to that question, but I will check back and give you an answer in writing promptly. [The response to Senator Sasser's question follows:] Re H.R. 10 and related bills. WALD, HARKRADER & Ross, Washington, D.C., September 22, 1977. Chairman, Subcommittee on Civil Service, and General Services, Committee on Governmental Affairs, U.S. Senate, Washington, D.C. DEAR SENATOR SASSER: In response to your inquiry of me at this morning's hearing on H.R. 10 and related bills, I have determined that the Board of Directors of the American Civil Liberties Union has, since 1940, supported a policy favoring relaxation of the Hatch Act's restrictions on voluntary, off-duty political activity by government employees on the condition that Congress provides adequate statutory safeguards against coercion and intimidation of government employees for political ends. This policy was most recently reaffirmed by the ACLU Board of Directors at a meeting on May 4, 1967. The Board of Directors is the ACLU's policymaking body. The Board consists of a representative from each of the ACLU's state affiliates plus thirty at-large members. The ACLU wishes to provide all appropriate assistance to the Senate's consideration of this proposed legislative change, which it considers of high significance for the protection of precious First Amendment liberties. If we can provide any help to you or your staff as you proceed to consider these bills, please feel free to call upon me. Sincerely, Senator SASSER. Senator Stevens? THOMAS C. MATTHEWS, Jr. Senator STEVENS. Mr. Matthews, I have expressed some feelings about the use of lists of Federal employees for political purposes. Have you ever examined that question-should we expand H.R. 10 to include a prohibition against the use of the lists of Federal employees for solicitation for political purposes, contributions or otherwise? And particularly, let me address your attention to the question of the use of those lists by fellow employees. |