ensure to the best of its ability through adequate funding and staffing that the agency charged with enforcing the anti-corruption laws does in fact enforce them. All other forms of activity—and particularly forms of activity replete with First Amendment implications—should remain pèrmissible. Even if defining "corruption" seems extremely difficult, it is by no means an intractable problem. There is no convincing reason why the intellectual rigor required for an exact definition should be forsaken for the easy alternative of a broadbrush prohibition.18 When political activity is circumscribed, it should be only after failure of other means that intrude less drastically on freedoms of speech and association. This is not only a wise constitutional doctrine, but prudent advice for Congress as well. Even as here, where the Supreme Court has recently sustained a statute's constitutionality, if Congress can achieve its goals by narrower means, it by all means should do so. If corruption alone were the target of the Hatch Act, that goal could not justify prohibitions as broad as those in the statute. 2. Maintaining "Efficiency" and "Professionalism” The notion of “efficiency” has been given considerable prominence in the Hatch Act debates. The term is not intended to be coextensive with the prevention of employee coercion or the impartial and unbiased administration of the laws.19 Instead, it encompasses two separate concerns: first, that the productivity and achievements of the civil service will be diminished or impaired if employees are 18 Although it is not within the scope of this study to provide the proper statutory definition of corrupt activities, there are clearly certain activities that fall within any minimally effective prohibition. Where, for example, there is an explicit quid pro quo arrangement—a promise or delivery of private benefit in exchange for governmental action-Congress clearly can intervene. See United States v. Brewster, 408 U.S. 501 (1972). Beyond such core infractions, however, the legislature must proceed with considerable care. The prudent course would perhaps entail, in the first instance, an underinclusive list of proscribed activities, to which additions could be made as new evidence of improper conduct arose. Concededly, some costs would be incurred in terms of corrupt practices that would escape proscription, but the benefits in terms of enhanced civil liberties that would accrue more than justify such a procedure. Perhaps the most troublesome aspect of this recommendation is that it requires a Congress sufficiently aware of its responsibilities to eschew the "easy" road of generalized prohibitions and to maintain its span of attention on the problem for more than one legislative session. 19 These issues will be discussed in the two subsequent sections. To the extent that "inefficiency" entails employee coercion or a chilling effect on those affected by governmental agencies, of course, different questions arise. The present section examines "inefficiency" as an alleged vice in itself. permitted to engage in political activity; and second, that whether or not there is any impact on the bureaucracy's work, it is simply improper (almost as a matter of professional "ethics") for federal employees to engage in partisan political activities.20 The Supreme Court stated unequivocally in Mitchell that the Hatch Act's "interference with free expression is seen in better proportion as compared with the requirements of orderly management of administrative personnel." The Court noted with considerable approval "... the growth of the principle of required political neutrality for classified public servants as a sound element for efficiency," and concluded that if Congress and the President (those "responsible for an efficient public service") judged that “efficiency may be best obtained by prohibiting active participation by classified employees in politics as party officers or workers, we see no constitutional objection.' // 21 In Letter Carriers, the Court quoted in support of its decision a passage from Pickering v. Board of Education: 22 The problem in any case is to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the [government], as an employer, in promoting the efficiency of the public services it performs through its employees. During the present debate over possible evisceration of the Hatch Act, one witness argued that the matter, at 23 its most fundamental level . . . addresses itself to the ex- 20 Dr. Clyde J. Wingfield (president of the Bernard M. Baruch College of the City University of New York) stated that "[f]or the Public Service to conduct itself in the highest professional manner, it remains desirable that it be protected from the encroachments of partisan politics. . . ." Congressional Record, vol. 121 (daily ed., November 17, 1975), p. S 20210. This position essentially involves a desire to avoid the return of a "spoils system" rather than a "merit system" within the civil service. The anti-spoils system arguments are appropriately considered in this section rather than in the preceding section on corruption because changes in administrations could involve massive non-corrupt changes in the bureaucracy based solely on the concept that the new "ins" have a mandate from the electorate to remove the old "ins" from control of the levers of executive power. Such was certainly Andrew Jackson's original intention. So too was the so-called "Malek Plan," developed by a high official in the Nixon administration to bring the civil service-presumed by many in the Nixon White House to be antagonistic to the President's program-"under control." See, for example, Testimony of Dr. Nathan T. Wolkomir in Hearings on H.R. 3000, p. 142. 21 330 U.S. 75, 94, 97, 99. 22 391 U.S. 563, 568 (1968). 23 413 U.S. 548, 564 (bracketed material in the original). 97-222 O - 78 - 31 [freedom] on the one hand, and those responsibilities en- It is difficult to see how maintaining the productivity of the federal bureaucracy requires the sweeping prohibitions on partisan activity embodied in the Hatch Act. If, for instance, political activities during working hours prevented the accomplishment of assigned tasks, then narrow "time, place, and manner" restrictions forbidding such activity could easily be drawn which are no different in intent or effect from similar rules in private industry, or rules prescribing the length of lunch hours or the working day. If, however, the concern were that political activity after working hours would cause an adverse effect during the working day, narrow regulations similar to rules intended to ensure that an employee's proficiency is maintained at a desired level could alleviate that concern. If, finally, the fear were that overt displays of political involvement would create tensions among the employees that would interfere with their work, again, narrowly drawn restraints could prevent such results in much the same way that attempts are made to minimize racial tensions. Under close examination, therefore, the "efficiency" defense of the Hatch Act falls far short of the persuasiveness required to justify restrictions on First Amendment freedoms. Even if some marginal loss of efficiency were entailed, the general public could not merely for the sake of some undetermined amount of convenience properly deny to federal employees what the public itself retains. If the effectiveness of a governmental program were to be seriously jeopardized because of some degree of political involvement by some of its staff members, then the real question would not be whether the activity should be proscribed, but whether the program itself were at all necessary. The second value encompassed within the notion of "efficiency" and "professionalism"-that civil servants ought to be divorced from partisan politics without regard to whether any political involvement would adversely affect their work performance is quite clearly a "good government" argument. That is, the appearance of a pristine and nonpartisan professionalism is at least as important as the actual presence of professionalism. As one representative of a federal union 24 Statement of Dr. Wingfield, p. S 20209. As reprinted, Dr. Wingfield's statement did not include the word "freedom," printed within brackets in the text. His statement would make sense with either "freedom" or a synonym. opposed to substantial weakening of the Hatch Act testified: "the spectacle of public workers in the Federal departments and agencies up to their eyebrows in partisan political campaigning would tend to increase the criticism and the cynicism which now is so endemic throughout our country." "25 Again, the concern expressed is not the appearance of partiality or coercion, but rather the appearance of politicization standing alone. Resistance to the appearance of political involvement is an often unarticulated and almost emotional rather than a rational position. It is akin in several respects, although with far less persuasive reason, to the doctrine that judges should be "above politics." Indeed, the argument verges on asserting that it is aesthetically unpleasing to see civil servants involved in partisan campaigns. In a nation even minimally committed to First Amendment values, such a defense of the Hatch Act is patently insufficient. As Mr. Justice Brandeis said, the fear "of serious injury cannot alone justify suppression of free speech and assembly. . . . Those who won our independence were not cowards. They did not fear political change. They did not exalt order at the cost of liberty.” 26 The most severe inadequacy of the “efficiency” rationale is, ironically, that it provides a straw target for opponents of the Hatch Act. The Senate Committee on Post Office and Civil Service recently argued in support of H.R. 8617 that ". . . it does not see the continuance of the merit system in public employment as being dependent upon maintenance of the severe restrictions on employees' first amendment rights that now exist." 27 The committee's argument is convincing, and if “professionalism” and “efficiency" were the most persuasive rationales for the Hatch Act, little reason would exist to preserve that statute. 3. The Coercion of Public Employees The Sheppard committee's investigations in 1939 revealed several instances of actual or attempted coercion of public employees for political purposes. Certified Works Progress Administration (WPA) employees in Kentucky holding views contrary to those of Senator Alben W. Barkley (Democrat, Kentucky) were discharged after canvassing of such workers by their supervisors.28 In Tennessee, there 25 Testimony of Dr. Nathan T. Wolkomir in Hearings on H.R. 3000, p. 148. 26 Whitney v. California, 274 U.S. 357, 376-77 (1927) (concurring opinion). 27 S. Rep. No. 94-512, 94th Congress, 1st session (1974), p. 4. 28 Report of the Special Committee, p. 12. were substantial efforts to raise campaign funds from federal employees (both from civil service workers and from those on relief), including in some circumstances the use of intimidation and coercion.29 WPA workers and employees in Pennsylvania were told that there was "no excuse" for not attending a certain political rally in late October 1938.30 Other WPA workers ("even women on sewing projects" as the Senate committee put it) were ordered to change their voter registration from Republican to Democratic, and several who refused to comply were fired from the WPA.31 In a Maryland Senate race, an internal revenue collector took a clearly delineated position on behalf of one candidate by reading a prepared statement to his subordinates.32 Based on these and other similar findings, supporters of the Hatch Act concluded that federal employees needed protection from coercion and threats of coercion by their supervisors.33 Opponents of the act argued to the contrary that "it is wrong and un-American for this Congress to legislate to curtail the political right and the political freedom of the WPA employee in my district, who is laboring with a spade for $26 per month." 34 Representative Vito Marcantonio (American Labor Party, N.Y.) warned that the Hatch Act "is a step in seven-league boots toward disenfranchising the unemployed of this country." "35 Hatch Act supporters brushed aside these objections. 29 Ibid., p. 18. 30 Ibid., p. 24. The Sheppard committee found that the term "no excuse" addressed to WPA workers on relief "is indefensible, and that it is in the nature of an implied threat and a grave interference with the right of relief workers to be free from coercion in the exercise of their political rights." Ibid., p. 25. 31 Ibid., pp. 25, 27. 32 Ibid., p. 31. 33 An enlightening episode during House debate over the Hatch bill corroborates this rationale. Section 6 of the bill (and also of the act) made it unlawful to disclose lists of persons receiving federal aid to political candidates or their associates. Representative Edward Creal (Democrat, Kentucky) proposed to delete the section, stating "I maintain it is a monstrosity to say that we cannot receive such a list, if we want to send our remarks for or against some bill in which they are interested, after having received numerous letters. . . . You cannot in your own county know who is on the WPA or who is on the relief rolls. You may want this information in order to tell them your views on certain legislation in which they are interested." Congressional Record, vol. 84 (July 20, 1939), p. 9620. It is, of course, precisely the fact that elected officials or other partisans "told" too much to WPA employees and others that motivated many legislators to support Senator Hatch's bill. 34 Remarks of Representative Green, Congressional Record, vol. 84 (July 20, 1939), p. 9630. 35 Ibid., p. 9632. |