From George Washington Law Review, Vol. 44, No. 4, May 1976/ Restrictions on the Political Activities of Act and Beyond* ROBERT G. VAUGHN** Both Congress and the Executive have imposed restraints upon the political activities of Federal employees. Since the earliest days of the Republic, the judiciary consistently has upheld such restraints as within the legislative power to promote the efficiency of the federal civil service.1 Nevertheless, debate about the appropriateness of these restrictions continues. This article examines the current limitations on the political activities of public employees and analyzes the legisla 1976 by Robert G. Vaughn. This article is based on material that will appear in PRINCIPLES OF CIVIL SERVICE LAW, to be published in 1976. Associate Professor of Law, American Univ., B.A., Univ. of Oklahoma, 1966; J.D., 1969; LL.M., Harvard Univ., 1970. The author acknowledges the assistance of David Galbraith in preparation of material regarding the history of civil service reform in the United States. 1. In Ex parte Curtis, 106 U.S. 371 (1882), a prohibition on political contributions was challenged as an unconstitutional deprivation of an employee's right to participate as other citizens in political affairs. In sustaining the statute prohibiting political contributions, the United States Supreme Court reasoned that the prohibition was within the legislative power of the Congress to promote the efficiency of the federal civil service. Id. at 373. The Court held that the purpose of protecting employees from demands for political support was sufficient to sustain the legislation, adding that the legislation served other purposes including encouraging decent men to serve in public office, preventing increased public expenditures which indirectly paid the cost of such assessments, and preserving the impartial administration of government. Id. at 374-75. A dissenting opinion emphasized that Congress had no right to restrict political activity as a condition of employment. Id. at 376. See United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548 (1973); United Pub. Workers v. Mitchell, 330 U.S. 75 (1947). In 1930, the Court upheld legislation prohibiting monetary contributions in United States, v. Wurzbach, 280 U.S. 396 (1930). May 1976 Vol. 44 No. 4 516 Hatch Act Restrictions and Beyond THE GEORGE WASHINGTON LAW REVIEW tion recently proposed to alter these restrictions" in light of the experience of other countries, the history of civil service reform in the United States, and the revelations regarding attempts by the Nixon administration to undermine the career service. In 1801, Thomas Jefferson issued a circular articulating the principle of political neutrality for federal employees: [T]he President of the United States has seen with dissatisfac- Jefferson's exhortation was ineffective and he removed a number of employees from office for engaging in political activity, particularly activity against his administration. The spoils system, a practice of staffing federal service positions on a patronage basis, created a climate inhospitable to attempts to limit the political activity of public employees. Subsequent attempts by President Grant in 1873 and President Hayes in 1877 to establish political neutrality by executive order proved similarly unsuccessful.* Civil service reformers, focusing upon appointment and selection procedures, attempted to limit the ability of professional politicians to control the civil service for partisan purposes. Although the product of the reformers' efforts, the Pendleton Act,3 emphasized that the appointment process should be controlled by the principle of merit, the statute also contained limitations on political activity. The last five sections of the Act prohibited political assessments, solicitations, subscriptions, or contributions from or by any employee of the United States. The penalties for violating the Act's anti-assessment provisions included three years imprisonment and a fine of 5,000 dollars." In the climate created by civil service reform, President Theodore Roosevelt, a former Civil Service Commissioner, issued an executive 2. Federal Employees Political Activity Act of 1976, H.R. 8617, 94th Cong., 2d Sess. (1976). 3. See D. ROSENBLOOM, FEDERAL Service and the CONSTITUTION: THE DEVELOPMENT OF A PUBLIC EMPLOYMENT RELATIONSHIP 39-40 (1971). 4. Id. at 95-96. 5. Civil Service Act of 1883, ch. 27, 22 Stat. 403 (codified in scattered sections of 5 U.S.C.). The Civil Service was established by the Act of March 3, 1871, ch. 114, § 9, 16 Stat. 514, 5 U.S.C. § 3301 (1970). 6 Civil Service Act of 1883, ch. 27, §§ 11-15, 22 Stat. 406-07. 7 Id. § 15. 517 order that further restricted the political activities of employees of the classified civil service by forbidding these employees from taking an active part in political management or in political campaigns. This order, almost immediately incorporated into the Civil Service regulations, remained in effect until the passage of the Hatch Act in 1939. The Civil Service Commission developed considerable expertise in administering the executive order and adjudicating alleged violations." The federal bureaucracy grew in both size and influence between 1883, when the Pendleton Act was enacted, and 1939, when the Hatch Act was enacted. Federal positions had multiplied, particularly in the agencies established during the depression. Many agency positions were outside the classified service and outside the reach of the civil service political neutrality rule. Congress feared the development of a partisan political machine run with federal employees. That fear, combined with hostility toward the administration and the bureaucracy, stimulated Congress in 1939 to adopt legislation introduced by Senator Hatch that incorporated the civil service neutrality rule and expanded coverage of political restrictions to both classified and nonclassified employees.10 In 1940, after considerable debate, Congress extended Hatch Act coverage to state and local employees who are principally employed in connection with a federally financed activity.11 The Hatch Act The Hatch Act prohibits a federal employee from using his authority or influence to interfere with or affect an election and from taking an active part in political management or in political campaigns.12 The Act defines the phrase "an active part in political management or in political campaigns" as those acts of political management or campaigning forbidden of competitive or classified service employees by civil service rules prior to June 19, 1940. In effect, this definition incorporates approximately 3,000 pre-1940 rulings of the Civil Service Commission.13 Commission determinations involving federal 8. Roosevelt's executive order read in part: Persons, who by the provisions of these rules are in the competitive classified service, while retaining the right to vote as they please and to express privately their opinions on political subjects, shall take no active part in political management or in political campaigns. Exec. Order No. 642 (June 3, 1907). 9. See Esman, The Hatch Act-A Reappraisal, 60 YALE L.J. 986, 988 (1951). For a current version of the rules, see 5 C.F.R. § 4.1 (1976). 10. See D. ROSENBLOOM, supra note 3, at 105-108. 11. Act of July 19, 1940, ch. 640, 54 Stat. 767, 5 U.S.C. §§ 1501-08 (1970), as amended, (Supp. IV, 1974); see Friedman & Klinger, The Hatch Act: Regulation by Administrative Action of Political Activities of Governmental Employees (pts. 1-2), 7 FED. B.J. 5, 138 (1945). 12. 5 U.S.C. § 7324 (1970). 13. See Rose, A Critical Look at the Hatch Act, 75 HARV. L. REV. 510, 510-13 (1962) (indicating that at the time of the enactment of the Hatch Act, Congress was unaware of the specific content of those civil service rulings). See 1 PoLITICAL ACTIVITY REPORTER, Civil Service Commission, for a summary of the kinds of political activities determined to violate civil service rules in the years 1886-1940. 518 [VOL. 44:516 Hatch Act Restrictions and Beyond THE GEORGE WASHINGTON LAW REVIEW employees indicate that political activity not expressly exempted by the Hatch Act and within the scope of prior Civil Service Commission rulings is prohibited.14 The Commission's decisions suggest a recognition of the concept of individual responsibility. Although an employee may not participate in politics by indirection such as using an agent,15 he is not responsible for the political activities of a spouse without proof of direction,1 and he is not liable for the prohibited political activity of a labor union merely because he is a member.1 17 16 The penalty for a violation of the Hatch Act by either a classified or nonclassified employee is removal from office. The Civil Service Commission, however, may determine by unanimous vote that a violation does not warrant removal and impose a minimum penalty of suspension without pay for 30 days.18 The Civil Service Commission is responsible for investigating and determining allegations of unlawful activity by employees within the competitive service." The em 19 14. See Hobart, 179 Ct. Cl. 931 (1967). Under Civil Service Commission regulations, prohibited activities include, but are not limited to: serving as an officer of a political party, a member of a national, state, or local committee of a political party, an officer or member of a committee of a partisan political club, or a candidate for any of these positions; organizing or reorganizing a political party organization or political club; directly or indirectly soliciting, receiving, collecting, handling, disbursing, or accounting for assessments, contributions or other funds for a partisan political purpose; organizing, selling tickets to, promoting, or actively participating in a fund raising activity of a partisan candidate, political party, or political club; taking an active part in managing a political campaign of a partisan candidate for public office or political party office; becoming a partisan candidate for, or campaigning for an elected public office; soliciting votes in support of or in opposition to a partisan candidate office or political party office; acting as recorder, watcher, challenger, or similar officer at the polls on behalf of a political party or partisan candidate; driving voters to the polls on behalf of a political party or partisan candidate; endorsing or opposing a partisan candidate for political office or political party office in a political advertisement, a broadcast, campaign literature, or similar material; serving as a delegate, alternate, or proxy to a political party convention; addressing a convention, caucus, rally, or similar gathering of a political party in support of or in opposition to a partisan candidate for public office or political party office; and initiating or circulating a partisan nominating petition. 5 C.F.R. § 733.122 (1976). 15. Kerr, 1 P.A.R. 179 (1946). 16. Martin, 1 P.A.R. 245 (1946). 17. Cf. Hardman, 1 P.A.R. 335 (1948). 18. 5 U.S.C. § 7325 (1970). 19. On information that a competitive service employee has engaged in prohibited political activity, the Commission conducts an investigation and, if warranted, the General Counsel may lodge specific charges. See 5 C.F.R. § 733.131 (1976). The General Counsel must serve charges on the employee at least 30 days before the proposed date of the adverse action and the employee has the right to counsel at each stage of the proceedings. He remains on active duty until the Commission makes a final decision. See id. § 733.132. An employee may answer personally and in writing with supporting affidavits within 15 days from the day the charges are received. After review of the answer or after the time for answer has expired, the General Counsel may close the matter or refer the case to an examiner for a hearing. Id. § 733.133. 1976] 519 ploying agency has this responsibility for employees within the excepted service,20 although an employee has the right to appeal any adverse finding to the Commission.21 The Act exempts from its prohibition against taking an active part in political management or in political campaigns an employee paid from the appropriations for the Office of the President, the head or assistant head of an executive or military department, an employee appointed by the President with the consent of the Senate who determines foreign or nationwide federal domestic policies, the mayor of the District of Columbia, the members of the council of the District of Columbia, and the recorder of deeds in the District of Columbia.22 In addition, certain nonpartisan activities are permitted in connection with an election and campaign if none of the candidates to be nominated or elected are representatives of a party whose candidates for presidential electors received votes in the last election.2 An employee may also participate in an election or campaign that concerns a question which is not specifically identified with a national or state political party.24 Questions concerning constitutional amendments, referendums, approval of municipal ordinances, and others of a similar character are deemed to be questions not specifically identified with a national or state political party.25 23 Political activities are permitted also for employees residing in certain municipalities. The Civil Service Commission is authorized to prescribe regulations allowing employees to take an active part in political management and political campaigns in municipal and other political subdivisions in which they reside when the municipality or political subdivision is in Maryland or Virginia and in the immediate vicinity of the District of Columbia, the municipality is one in which the majority of voters are employed by the federal government, or special or unusual circumstances exist in the municipality or political subdivision indicating that it is in the domestic interest of employees and individuals to permit political participation.26 Commission regulations list the municipalities to which the exceptions are applied.27 The Hatch Act expressly preserves the right of federal employees to Unless a hearing is waived, an examiner will conduct a recorded hearing, in which the parties testify under oath and are subject to cross-examination. Id. § 733.135. The examiner forwards his decision and a transcript of the hearing to the Commission. If the Commission decides that the employee has engaged in a prohibited activity, it will notify the agency to apply the prescribed penalty. Id. § 733.137. 20. Id. § 733.201. 21. Id. § 733.202. An employee of the excepted service may appeal to the Commission within 15 days from the date of receipt of notice of the agency decision. Id. § 733.203. The procedures followed on appeal are the same as those for employees in the competitive service. See id. § 733.204. 22. 5 U.S.C. § 7324 (d) (1970), as amended, (Supp. IV, 1974). 23. Id. § 7326 (1). 24. Id. § 7326 (2). 25. Id. 26. Id. § 7327. 27. See 5 C.F.R. § 733.124 (1976). 520 [VOL. 44:516 |