Hatch Act Restrictions and Beyond THE GEORGE WASHINGTON LAW REVIEW political activity because of the restrictions of the Hatch Act. 253 With the removal of the "I'm Hatched" defense, the Federal Employees Political Activities Act undertakes to protect federal employees from coercion by specific prohibitions which are combined with an enforcement structure,254 but the task undertaken truly is a difficult one. Coercion in any large organization based upon a hierarchical structure is difficult to control because it is difficult to detect.235 Subordinates often need little direction to conform their conduct to the wishes of their superiors. 256 For an employee who is slow to understand the unstated expectations of his superior, moreover, the superior-subordinate relationship provides many vehicles for imposing "penalties" through promotions, job assignments, reassignments, and control of the working atmosphere.257 The plans of the Nixon Administration relied heavily on the use of informal structure and sanctions.258 If federal employees perceive that coercion will result from the removal of restrictions on political activities,259 a receptive audience for subtle pressure is clearly available. Furthermore, employees subject to coercion often are not likely to complain because of the dangers of reprisal and the limited availability of relief. A study of the Federal Equal Employment Opportunity Program indicated that a large number of federal employees did not file discrimination complaints for fear of reprisal.260 A study of the reinstatement remedy granted by the National Labor Relations Board found not only that many workers refused reinstatement for fear of retaliation, but also that three-quarters of those reinstated left the company within two years because of “bad company_treatment.”261 253. Statement of Anthony Mondello, General Counsel of the United States Civil Service Commission, Hearings on H.R. 3000, supra note 87, at 33. 254. See text accompanying notes 97-99 supra. 255. See generally WHISTLE BLOWING: THE REPORT OF THE CONFERENCE ON PROFESSIONAL RESPONSIBILITY (R. Nader, P. Petkas, & K. Blackwell eds. 1973). 256. John Macy, Chairman of the Civil Service Commission, in his testimony to the Commission on Political Activity of Government Personnel, observed that " one man's coercion is another man's persuasion, . . .” and that “. [w]here [coercion or persuasion] is involved in an employer/employee relationship, the extent of voluntaryism tends to be rather substantially circumscribed." 3 COMMISSION ON POLITICAL ACTIVITY OF GOVERNMENT PERSONNEL, HEARINGS 759 (1968). 257. See R. VAUGHN, supra note 230, at 13-27. 258. See text accompanying notes 207-12 supra. 259. In a survey of federal employees conducted in 1967, 52% of the employees believed that "things like promotion decisions and job assignments" would change if federal employees were allowed to be more active in politics. 2 COMMISSION ON POLITICAL ACTIVITY OF GOVERNMENT PERSONNEL, RESEARCH 21 (1968). After the Nixon Administration, one wonders what would be the perception of the effects of removing the restrictions today. 260. Brewer, Behind the Promises: Equal Employment Opportunity in the Federal Government (unpublished draft 1972), cited in R. VAUGHN, supra note 230, at 88. 261. Aspin, Reinstatement is Not Enough: Discussion of the Taft-Hartley Act Reinstatement Remedy (draft), cited in R. VAUGHN, supra note 230, at 88. 1976] 551 Even if penalties are available against a superior, a complaining employee may find life in the organization, perhaps under the same supervisor, difficult to endure. The Act's enforcement structure for controlling coercion of federal employees is inadequate. First, given the unique practical problems in discovering coercion, the investigative provisions of the Act were defective. Although the Act required the Civil Service Commission to investigate complaints 262 and the legislative history stresses that the Commission must seek out abuse,243 the ability of the Civil Service Commission to enforce the Act aggressively in the face of an Executive dedicated to a program of coercion is doubtful. Civil Service Commissioners serve at the pleasure of the President24 and the Commission has been clearly identified with the Executive.265 As the history of political encroachment on the civil service shows, 206 the attitude of the President is crucial to the effective operation of the Civil Service Commission. Additionally, by training and program, the Commission is sympathetic to the perspectives of the management of federal agencies.247 Second, the adjudicatory board lacked sufficient independence of the executive. Even if the Board on Political Activities is considered "independent" of the prosecuting authority, the Civil Service Commission, it would have relied upon the Commission for support staff and administrative services.268 The Board would not have been independent of executive pressure or influence since its members, appointed by the President for fixed terms, were not granted tenure for good behavior.209 Furthermore, the Act required members of the Board to be federal employees and did not permit the members to serve on the Board 60 days after separation from this federal service. 270 As employees, members of the Board would have been subject to informal pressures. This adjudicatory structure, combined 262 H.R. 8617, 94th Cong., 2d Sess. § 102 (1976) (amending 5 U.S.C. § 7328 (1970)). 283. See note 115 supra 284. 5 U.S.C. § 1101 (1970). 265. See text accompanying notes 177-240 supra. See also Guttman, Development and Exercise of Appellate Powers in Adverse Action Appeals, 19 AM. U.L. REV. 323 (1970). 266. See text accompanying notes 156-240 supra. 287. In 1970, the following disciplinary action was taken in 15 cases in which supervisors were found guilty of discriminatory conduct: Five supervisors received letters of warning; five were orally admonished; in one case, letters of reprimand were issued to three supervisors; one supervisor was suspended; one foreman was barred from supervisory duty; one supervisor was reprimanded and reassigned to nonsupervisory work; and one supervisor facing disciplinary action retired. During the first half of 1971, the following disciplinary action was taken in 14 cases: Two supervisors were orally reprimanded; in one case, two supervisors received letters of warning; one supervisor was cautioned regarding informal disciplining of employees; in one case, two activity officials were orally admonished; one activity official was admonished; three officials received letters of reprimand; one military chief of staff was relieved of his position and given supervisory training; and two supervisors received "appropriate disciplinary action." R. VAUGHN, supra note 230, at 71-72. 268. H.R. 8617, 94th Cong., 2d Sess. § 102 (1976) (amending 5 U.S.C. § 7327 (1970)). 269. Id. 270. Id. 552 [VOL. 44:516 Hatch Act Restrictions and Beyond THE GEORGE WASHINGTON LAW REVIEW with substantive provisions giving the Board immense discretion in the selection of penalties, makes the inadequacy of the enforcement structure obvious. Even in those instances where employees were found guilty of coercion, only the most moderate penalty might have been applied.271 Finally, the Board would have had no independent budget and would have lacked the structure and prerogatives normally associated with independent regulatory agencies. 272 Although history and logic suggest that the greatest independence is needed by such an enforcement authority, the Act did not provide it. The Hatch Act is certainly far from perfect and legislative modification of it is in order, but considering the risks involved and the defects of the legislation, the case has not been made for the Federal Employees Political Activities Act. 271. Id. 272. See generally Hearings on S. 448 Before the Subcomm. on Intergovernmental Relations of the Senate Comm. on Government Operations, 92d Cong., 2d Sess. (1971). 553 1976] PREPARED STATEMENT OF AMERICAN SOCIETY FOR PERSONNEL ADMINISTRATION is a The American Society for Personnel Administration world-wide professional organization of personnel and industrial relations practitioners in business, industry, government and education. It has more than 22,000 members in almost 300 chapters in all 50 states. ASPA also serves members in 26 foreign countries and has about 100 student chapters in colleges and university campuses across the United States. With this wealth of knowledge and experience available to it, ASPA feels it is uniquely qualified to comment on the problems inherent in this Act. ASPA membership is for the most part comprised of professionals in the private sector. Therefore, its interest in pending bills, regulations, orders, etc., is confined normally to those which affect the private sector. It has departed from its normal area of interest for several reasons. First, a substantial number of federal employees and agencies as well as some societies and associations representing federal employees have asked ASPA to take a position in opposition to H.R. 10. With few exceptions, these requests have come privately and with accompanying requests for anonymity. This request for anonymity is, in our judgment, a perfect example of why this Act should not become law. Secondly, ASPA members have observed first hand the sheer impossibility of writing laws, policies, labor agreements, rules and regulations to protect adequately the subordinate from discriminatory or retaliatory actions by a clever superior. The removal of the proscription against political activity - 2 introduces new hazards for abuse that, far outweigh the wellintentioned purpose for the Act. Third, it would be unconscionable for the Society and its members to stand on the sidelines and watch Congress repeal a law that has in large measure prevented our public employees from gaining the strength to literally halt the nation's acti-vities for days on end as has happened in England, Italy and other nations. BACKGROUND OF THE HATCH ACT The controversy over the political activities of Civil Service people goes back far beyond the enactment of the Hatch Act. In 1791, Georgia Representative James Jackson tried unsuccessfully to limit the political activities of inspectors to casting their own ballots. By 1830, public servants were picked or fired on the basis of party loyalty, and any bills introduced in the Congress designed to keep federal employees from using threats, money or official abuse to affect elections were voted down, In 1876 Congress prohibited all except the highest ranking appointees from "giving or receiving from any of the employees of the government any money.. for political purposes... The Pendleton Act restated the prohibitions passed in 1876 and outlawed collecting political contributions in government buildings. In 1907 President Theodore Roosevelt issued a directive that persons in the classified Civil Service could vote and express their views, but should take no active part in political management or political campaigns. |