Senator MATHIAS. This final question. Your statement on page 6, says that the Hatch Act reforms could increase the ability to manipulate the civil service. How do you anticipate that?

Mr. COLE. In my testimony, I describe the type of activity engaged in under the Nixon administration, even under the Hatch Act, pursuant to the manual put together by Fred Malek. I think that any time the Federal bureaucracy is opened up to allowing Federal workers, both superiors and those who work under them, to engage in political activities, the chances of their making decisions or exercising discretionary judgment based on political considerations is greatly increased. Pressure from the top, again may be subtle. but that type of subtle pressure being exerted to reach certain types of discretionary decisions, would lead to the kind of manipulation of the executive decisionmaking process that we are trying to get away from, and that we would like to see guarded against by retaining the current provisions of the Hatch Act.

Senator MATHIAS. Now, Mr. Cole, reverting from my role as a voice for Senator Stevens, if the chairman will allow me a final request, have you been in touch with Don Price? You know him, the School of Politics in Government at Harvard?

Mr. COLE. No; we have not.

Senator MATHIAS. Well, he has some very mature thoughts on the subject. If I could lay it on your shoulders, that Mr. Price be included. Senator SASSER. Without objection, so ordered.

Senator MATHIAS. Thank you, Mr. Chairman.

Senator SASSER. Mr. Cole, you, a moment ago, expressed concern about the possibility of a supervisor soliciting an employee to stuff an envelope. As I remember, H.R. 10 as passed by the House, this would prohibit such action; is that correct?

Mr. COLE. That is correct.

The way you phrased it, it is correct. H.R. 10 would prohibit ordering or requiring somebody to do that. But the type of situation we are concerned about is a more subtle one, where a supervisor, lets it be known he is going down to campaign headquarters on a given evening, to engage in this envelope stuffing, and suddenly is followed out the door by most of the rest of the office, and one person who did not agree, or favor that candidate remains behind. That is not the same situation as where someone is ordered to stuff envelopes. But it is precisely the type of situation where later unfavorable action against the employee unwilling to engage in the envelope stuffing, would be very difficult to prove, and that is our concern.

Obviously, the blatant cases should and are prohibited under the bill. Even in those cases, however, we feel that the problems of proof, and the willingness of the Federal worker to go forward, perhaps jeopardizing his or her job, makes it undesirable to invite that kind of situation.

Senator SASSER. Well, conversely, what if the envelope stuffers' candidate lost, it appears to me the person in the office might be in the superior position under the theory you are advancing.

Mr. COLE. That, perhaps, is right, and that is equally unfair. We do not want to see Federal employees' political activities outside the office taken into account in their career success. That is what we feel would

occur if the restrictions of the Hatch Act were lifted. Whether somebody gains more favorable treatment or less favorable treatment because they did or did not engage in certain political activities is not really the issue. Either result we feel is equally objectionable.

Senator SASSER. Well, you referred a moment ago to depoliticizing the civil service, as much as possible and philosophically, the question has been raised by some: Is this really a good idea? Is the depoliticizing of folks a good idea? Why not carry this ultimately and depoliticize elected officials as much as possible? The question comes to mind, we are all aware of a great alienation on the part of the American people, with the civil service, of people they refer to as bureaucrats. A great alienation with elected officials, public officials, and one reason for their alienation appears to be a feeling on the part of the electorate that the civil service is unresponsive to them, they foist things over onto the people that they don't wish and are not willing to accept.

Now, the Government is no longer a friend; but has come to be seen in some areas as an enemy. And this goes back to the philosophical question, if you divorce entirely these individuals from politics, who are they responsive to?

Mr. COLE. Senator, we feel that there is a great need for civil service reforms to make the bureaucracy function better. We don't see the answer, however, to be opening the bureaucracy to greater political involvement. The Federal civil servant is responsibile to the Cabinet Secretary. He works ultimately for the administration and the President.

Senator SASSER. What if they don't agree with the policy as advanced by the Cabinet and Secretary? How does he push his philosophy down through the bureaucracy at the point where the rubber meets the road with the people? That is the question that concerns many people, I think concerns the electorate, I think concerns me.

Mr. COLE. The Federal elected officials, whether in the Congress or the Presidential level, are elected to make laws or to carry them out. The President, who is charged with executing the laws, is responsible for having the Federal bureaucracy put his programs into effect. If you are saying that the Federal bureaucrats are merely carrying out the policies of the elected officials, we think that is the way it should be.

Senator SASSER. Mr. Cole, thank you very much for your testimony and comments here this morning, and the staff may wish to submit other questions to you later. We appreciate very much your appearing to testify.

Mr. COLE. I would be happy to answer any further questions in writing, and I thank you for this opportunity to testify.

[The prepared statement of Mr. Cole follows:]

PREPARED STATEMENT OF MICHAEL COLE, DIRECTOR, LEGISLATIVE ACTIVITIES,

COMMON CAUSE

Mr. Chairman, on behalf of Common Cause, I wish to thank you and the other members of this committee for the opportunity to testify today on S. 80 and H.R. 10, legislation to revise the Hatch Act. We are pleased that this committee is giving thorough consideration to this legislation. The committee is faced with the difficult task of deciding how to strike the appropriate balance between individuals' rights of free speech and association and the public's right to just and impartial administration of government.

In our view, the underlying question that must be addressed when considering any modification of the Hatch Act is whether further extension of the permissible area of political activity by federal employees can be done without jeopardizing the fair administration of federal programs or undercutting the right of federal employees to work in an environment free from pressures regarding political activity.

The Hatch Act has been the subject of considerable interest and concern since its enactment nearly four decades ago. Opponents have centered their arguments against the Hatch Act on its alleged deprivation of the political rights of federal workers. But the fundamental concern about protecting against a politicized bureaucracy predates the enactment of the Hatch Act by nearly one hundred and fifty years.

Early in this nation's history, President Thomas Jefferson told Americans that the best way to achieve an impartial government and protect the rights of all federal employees is impartial treatment was through the ideal of the politically neutral civil servant. Jefferson declared that a government employee's attempt to influence the votes of others is "inconsistent with the spirit of the Constitution and his duties to it."

Despite Jeffersons' warnings, the government bureaucracy became more and more politicized. Not until the passage of the Civil Service Act of 1883-the Pendleton Act-was any serious attempt made to curb the partisan activities of government employees. Within a few years, however, that Act was being evaded.

In 1907, President Theodore Roosevelt, who had previously served as Civil Service Commissioner, issued an executive order establishing that individuals serving in classified civil service positions could vote and express their views but could not take an active part in political campaigns.

Unfortunately, even that order proved to be inadequate. It was not until a congressional investigation in 1939 revealed the widespread abuse and attempted coercion of WPA employees for political purposes that the Congress moved in a serious and effective way to deal with the problem of partisan political activity by federal employees.

As you know, the 1939 Hatch Act prohibits federal and postal service employees from engaging in certain partisan political activities at the federal, state, and local levels. The Act covers approximately 2.8 million federal workers. It's important to recognize, however, that under the Hatch Act, federal employees have substantial opportunities to participate in political activities. Federal workers may:

Register and vote;

Express their political views as private citizens;

Wear political buttons and display political bumper stickers;

Participate in nonpartisan elections;

Serve as nonpartisan election officials;

Campaign for or against constitutional amendments, referenda, and municipal ordinances;

Participate in the nonpartisan political activities of civic associations and citizens' organizations;

Join political groups and vote at meetings;

Attend conventions and rallies;

Sign petitions; and

Lobby members of Congress or State or local officials.

In the Washington metropolitan area and in other local municipalities where a majority of the registered voters are employed by the federal government, a partial exemption from the Act permits government employees to participate fully in local political campaigns for non-party-independent candidates even in partisan campaigns.

Clearly, the permissible sphere of political activity is extensive. What then are federal employees prohibited from doing? Basically, the Act bars them from running for partisan office, taking an active part in partisan political campaigns, or partisan political management, or engaging in the solicitation of campaign contributions. We believe that these restrictions are both reasonable and necessary in order to protect the pubic and the federal workforce alike. The Supreme Court has made it clear that such restrictions are constitutional.

The issue thus boils down, not to whether federal employees should be accorded political rights, but whether additional more visible and influential levels of political activity should be added to those already permitted.

We therefore disagree with those who insist in characterizing federal workers subject to the Hatch Act as second-class citizens, deprived of basic rights of citizenship. Rather, we see the lines drawn by the Hatch Act, between permitted and prohibited political activities, as a necessary protection of the integrity of our system of government. Just as the recent adoption of Codes of Conduct in both Houses of Congress has required federal elected officials to make disclosures of personal finances that are not required of the average citizen in order to guard against conflicts of interest and promote confidence in government, the Hatch Act asks of those in government service to forego certain levels of political activity in order to help assure the fair administration of federal laws and programs. At a time when the public's confidence in government is consistently shaken, we do not feel it is too much to ask that federal employees retain both the appearance and substance of impartiality.

Some advocates of Hatch Act revision claim the Act is no longer needed, that the kinds of circumstances that existed in the 1930's when the Act was established no longer exist, that the Act was merely an overreaction to problems with the New Deal's WPA. This argument ignores the fundamental point that undoubtedly the biggest reason for the change in climate today—i.e., the depoliticized government service which this country now enjoys-is the existence of the Hatch Act. It also ignores the fact that the civil service has tripled since the 1930's.

The Hatch Act provisions furnish insurance that the party in power in the executive branch will not turn the immense federal workforce into an organized instrument for affecting the outcome of elections. This is not a groundless fear. This country recently experienced serious attempts to politicize the civil service system during the Nixon Administration. The Senate Watergate hearings helped bring to light the efforts during the Nixon years to use the federal bureacracy for maximum political benefit.

The vision conjured up by the Federal Political Personnel Manual, drafted by Presidential assistant Fred Malek, is deeply troubling. Its avowed aim was to maximize the use of political patronage to undercut the objectivity of decision-making under a merit system and to remove personnel who were less "politically responsive". Although all this occurred even with the Hatch Act's provisions in effect, it seems indisputable that, without current restrictions, the abuses would have been far more prevalent and fully legitimized. It was federal employees who kept the government running while its leadership was in crisis and, if those workers had not been able to rely on the Hatch Act to say no to political presure, the results could have been far worse.

We believe that relaxing the Hatch Act's restrictions—as proposed in S. 80— would dangerously increase the risk of politicization of the federal bureaucracy with the following unacceptable consequences:

First, it could enhance the potential for building a powerful political operation based on the use of government workers. As an organization that has long been concerned about the ways in which incumbent officeholders obtain discriminatory advantages over their challengers, we are very disturbed about the potential for unfairly entrenching an incumbent administration through relaxation of the Hatch Act;

Second, it could give the bureaucracy a poliitcal outlook that could erase the narrow line between lawful administrative discretion and political expediency; Third, it could increase the ability of the executive to manipulate the civil service;

Fourth, it could increase the possibility that governmental authority will be exercised to improperly interfere with the rights of private citizens-a risk already recognized by S. 80 in its exemption of CIA, IRS and Justice Department employees.

One section of the proposed legislation that raises unique concerns is section 7325(b)(2), which appears to create a broad exemption allowing hundreds of White House employees to engage in full-time political activities during official business hours. To allow White House employees to engage in more than de minimus political activities during office hours simply cannot be justified. This provision dramatizes the basic problems that would be caused by this type of legislation.

Supporters of this legislation have argued that they can draft legislation that would protect the public, the federal employee and the merit system. We believe

that this ultimately proves to be an impossible task. In our judgment, there is no realistic way to draw a line between sensitive employees who would continue to be restricted from political activity and those in nonsensitive positions who allegedly could not coerce anyone and therefore need not be restricted. While there certainly may be ways to improve the Hatch Act, we consider the type of fundamental change envisioned by S. 80 to be unacceptable.

Strict penalties and prohibitions are simply insufficient to protect against either coercion of employees or the unlawful influencing of elections, because both can occur in subtle as well as blatant ways. In a recent article, published in the Washington Post, Marjorie Fribourg made this point very effectively: "What the authors of the bill fail to consider is that coercion may be subtle. You do not have to go after a worker with a club or threaten to have him transferred. All a boss has to do is be visibly more cordial to those who showed up at a fundraising dinner or rally and the maverick gets the idea. Life in the office will be more pleasant if one fits in with the crowd politically. If great assignments seem to go to the political conformist and lousy ones to the apathetic, that does it. More and more staff members show their eagerness to perform chores for the party after hours. They can no longer get out of it by saying, I'm 'Hatched.'" ("Why the Hatch Act is Worth Keeping," Washington Post, July 24, 1977, pages B1-2)

Moreover, if the Hatch Act protections were lifted, federal workers subjected to political pressures often would not seek redress because proof would be too difficult. For a federal employee to provide that his or her reassignment or failure to win a promotionon was due to his or her partisan political activities (or unwillingness to engage in political activities) may often be impossible. Lodging a complaint could jeopardize the employee's job. The risks of these disturbing consequences outweigh the arguments for heightened political activity by federal employees.

As pointed out earlier, under the Hatch Act, government employees are permitted a wide range of political activities. Admittedly, due to shortcomings in current efforts to inform federal employees of what they can and cannot do politically, there is substantial confusion and, as a consequence, some federal workers choose to do nothing. The answer, however, is better education of federal employees-not relaxation of the Hatch Act. If more and clearer information is needed, a regular, broad-scale education program for government employees should be initiated. Both S. 80 (in section 7330) and H.R. 10 (in section 7329) propose to better inform federal workers of their rights and restrictions in the area of political activity. While we oppose S. 80 and H.R. 10, we believe that just that type of educational campaign can and should be undertaken.

We agree with the Supreme Court which stated, in upholding the constitutionality of the Hatch Act, that: "It is in the best interest of he country, indeed essential, that federal service should depend on meritorius performance rather than political service." Protections against a politicized civil service must be preserved. Our civil service must be respected. That requires federal personnel who are impartial in the administration of our federal laws and policies. Undermining the Hatch Act, as the proposed legislation does, is the wrong way to build respect for our federal civil service.

We believe that the 150 year struggle to provide the protection set forth in the Hatch Act should not be disregarded. The Act may not be perfect, but it has served us well.

For the reasons I have outlined, Common Cause therefore opposes the legislation now pending before this Committee.

Senator SASSER. Mr. Alan Morrison, director of Litigation for Public Citizens.

Mr. Morrison, we welcome you before the committee this morning, and look forward to your comments.

TESTIMONY OF ALAN MORRISON, DIRECTOR OF LITIGATION FOR PUBLIC CITIZENS

Mr. MORRISON. Thank you, Mr. Chairman.