Opinion: It’s too easy to escape the Hatch Act

In June 2019, a federal watchdog agency accused Conway, then a top White House aide, of violating the Hatch Act, which forbids most members of the Executive Branch from engaging in partisan political activity while in office. The agency, the Office of Special Counsel, said Conway had violated the Hatch Act several times and should be fired.
It was the second time she had been cited for violating that law, and she had already signaled her disdain for it with a biting response. “Let me know when the jail sentence starts,” she told reporters, her voice dripping with sarcasm.

Perhaps it’s time for Congress to grant Conway’s suggested punishment.

Has any administration been more blatant in its disregard of the Hatch Act than Donald Trump’s?

Fourteen of its members have been found to have violated the law more than 50 times, and at least another 22 are under investigation for nearly 100 more violations, according to a report in October by the staff of Massachusetts Sen. Elizabeth Warren. And that was before the Office of Special Counsel released a report last week accusing the White House trade representative, Peter Navarro, of violating the act. On Wednesday, the OSC said Navarro had indeed done so repeatedly during the presidential campaign.

The list of alleged Hatch Act lawbreakers reported to the Office of Special Counsel reads like a litany of scorn for the rule of law.

After first saying that he “was not supposed to get into politics,” for example, Attorney General William Barr went on to tell a Chicago columnist in September that if Trump lost the election, “We were going to find ourselves irrevocably committed to the socialist path.” Such advocacy for a specific candidate by a government official when acting in their official capacity is expressly forbidden by the act.
Secretary of State Mike Pompeo addressed the Republican National Convention while on an official diplomatic trip to Israel, and the OSC launched a probe into potential Hatch Act violations. A State Department spokesperson told CNN that it expected the complaint would be “soundly rejected” by the OSC like a prior Hatch Act complaint earlier this year.
Then Acting Homeland Security Secretary Chad Wolf appeared in a video administering the oath of citizenship to a small group of immigrants with Trump looking on. The video was later broadcast during the Republican National Convention, the highest profile political event on the election season calendar—and the one at which Trump was officially nominated for a second term.
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Agriculture Secretary Sonny Perdue advocated for Trump’s re-election on an official trip to meet with farmers in North Carolina.
In July, the Office of Special Counsel had sent Navarro a letter stating it was investigating him for his criticism of former Vice President and 2020 Democratic presidential candidate Joe Biden during a Fox News interview. But rather than being chastised by that letter, Navarro went on Fox a month later to trash Biden again.

Also accused by private watchdog groups of blatantly disregarding the law is Ivanka Trump, the President’s daughter, who has served as a senior White House adviser.

“What we are seeing now is totally unprecedented,” Noah Bookbinder, executive director of Citizens for Responsibility and Ethics in Washington, told the Washington Post in October. “The whole co-opting of the federal government to keep a president in power . . . is something that we have never even approached before.”
Trump administration officials — or those of any other administration, for that matter — can get away with such wholesale disregard of the law because the penalties for doing so are so light. Punishments include reprimand, suspension or removal from the job, demotion, a prohibition from holding any federal government post for five years and a fine of up to $1,000.
What’s more, the process for meting out these sanctions has been rendered impotent by the White House. Under the current interpretation of the law, cases brought by the special counsel’s office against career civil servants are adjudicated by a quasi-judicial body called by Merit Systems Protection Board which consist of three members appointed by the President and confirmed by the Senate. Currently, however that board has no members, since Trump has not filled vacancies.
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Punishments against political appointees are meted out by the President. During his term, Trump has declined to punish anyone despite the recommendation by the US Office of Special Counsel that he do so.

The White House has argued that many of these acts took place on these officials’ private time. But Perdue and Wolf’s acts occurred as part of their official duties, and Wolf has asserted he did not know the video of his swearing in the group of new citizens would be used at the convention. The law expressly forbids officials involved in national security, such as the Secretary of State, from taking “an active part in political management of a political campaign,” which the Office of Special Counsel has said includes “making campaign speeches,” or engaging in partisan political activity whether or not they are off the clock.

A more believable explanation for the trampling of the law came from White House Chief of Staff Mark Meadows who told reporters “nobody outside of the Beltway really cares.”
We should all be concerned when officials abuse their taxpayer-funded positions to advocate for a particular candidate and ignore, or even mock, the law that prohibits such activity. “It’s really a key feature of a democracy that you have fair elections where the people can make their decisions unencumbered,” Bookbinder said. “When the government itself is using its powers to push to keep a leader in place, that starts to look like a totalitarian system.”

The way to make people inside the Beltway care is to put some teeth into the Hatch Act, including significantly raising the fines and providing for prison time for “reckless disregard” of the law. Nothing will concentrate the minds of officials like the possibility of a criminal conviction and prison.

Since this would involve criminal penalties, prosecution of violations would need to be removed from a presidential appointed board and placed in the hands of US attorneys who have, on some occasions, demonstrated their independence from White House influence.

Unlike some of its other initiatives, the incoming Biden administration quite possibly has a good chance of getting such reforms through a Republican-controlled Senate. Having seen the disdain the Trump administration has shown for the law, Senate Majority Leader Mitch McConnell might be open to the need to curb similar excesses on the part of Biden’s team.

Moreover, since violations of the Hatch Act also occurred under former President Barack Obama (see, for example, then Housing and Urban Development Secretary Julian Castro’s 2016 comment to Katie Couric that “it is very clear that Hillary Clinton is the most experienced, thoughtful, and prepared candidate for president that we have this year,” for which he was rebuked by the Office of Special Counsel for a violation; he admitted “inadvertent error”), McConnell could argue that the reform is not just focused on Trump, but on bipartisan violations of the law.

Such errors in earlier administrations did not occur anywhere close to the extent to which they took place under Trump.

In the coming months, as they tear into each other over issues such as taxes and spending, Biden and McConnell may be looking ways to demonstrate bipartisan cooperation. Reforming the Hatch Act is one place to start.

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