Patterico's Pontifications

4/21/2008

Federal Government Can Regulate Employees’ Political Activities At Home?

Filed under: Civil Liberties,Constitutional Law,General — Patterico @ 12:06 am



At the Washington Post, Stephen Barr has a piece about the Hatch Act and federal employees. Barr describes the Hatch Act in this way:

The law prohibits federal employees from engaging in political activity while on duty, wearing campaign buttons in the office and putting campaign bumper stickers on a government car. It also bans soliciting, accepting or receiving political contributions, and prohibits employees from using their official positions to influence or interfere with an election.

Most of the piece describes the sanctions that federal employees face for using federal work equipment to electioneer; this seems noncontroversial and completely constitutional. But I am disturbed by the notion that the Hatch Act also regulates what federal employees can do at home, on their own time:

Blogging about politics at work falls into the don’t-do category, but blogging from home may also get a federal employee in trouble.

Presidential campaign Web sites, for example, encourage supporters to create blogs on the site to advocate the candidate’s positions. They also usually carry a link for campaign donations, and that can be trouble for a federal employee, even when using a home computer. The OSC may view the donate button as soliciting for political contributions, another no-no under the Hatch Act, and set off an investigation.

Wow. So if you’re a federal employee, the federal government can prevent you from soliciting political contributions for your preferred candidate? Even when you’re at home, on your own time, using your own communications equipment?

I’m no expert on election law, but my non-legal gut reaction is that this is inconsistent with the First Amendment.

Tell me where I’m wrong.

28 Responses to “Federal Government Can Regulate Employees’ Political Activities At Home?”

  1. The Hatch Act covers any partisan political process. Active federal employees, including the military, cannot engage in most partisan activities, including blogging if you’re talking about anything above a local election where party affiliation is not a factor. It seems like a no-brainer violation of the First Amendment, but it’s been upheld by the USSC twice.

    Stashiu3 (460dc1)

  2. Wow. So if you’re a federal employee, the federal government can prevent you from soliciting political contributions for your preferred candidate? Even when you’re at home, on your own time, using your own communications equipment?

    I’m no expert on election law, but my non-legal gut reaction is that this is inconsistent with the First Amendment.

    The First Amendment applies to political speech? Didn’t John McCain discard that notion already?

    L.N. Smithee (b17309)

  3. No offense, but this is all ado about nothing.

    What can a gov’t employee do?
    Well, a gov’t employee can personally contribute money to political organizations
    They cannot, however, solicit, accept, or receive political contributions

    Explaining the blog example is Ana Galindo-Marrone, chief of OSC’s Hatch Act unit:

    Many campaign sites allow supporters to set up their own Web pages or blogs to support a candidate. The danger for feds who set up a page on a campaign-sponsored site: Many of these pages also contain a big, red “donate” button.

    “Even if you are not on duty or in a government building, it is still viewed as solicitation of the people who read the blog,” Galindo-Marrone told Federal Times. “The prohibition concerning soliciting is 24-7.” If an appeal for funds appears on a government employee’s blog post, that’s a violation even if the employee doesn’t identify himself as a federal employee, posts anonymously or didn’t know a donation appeal was attached to the post, she said.

    The whole blog thing is really unimportant since partisan e-mails from gov’t accounts make up the bulk of the cases under investigation.
    So let’s review…
    You, as a gov’t employee, can vote for and give to the party/individ. of your choice. Your support, however, can’t include resources from your job (work time or gov’t car, office, e-mail acct, etc.) and doesn’t allow you to actively campaign for that party/individ.

    Socrates Abroad (fd3773)

  4. Actually, as a tax-payer, I think it’s reasonable to restrict the ability of Federal Employees to use their position to influence Elections, and that may actually be included as “Off duty time” for the following reason:

    When I was a soldier, it was impressed upon me that I was a Soldier 24/7, for the duration of my employment as a soldier for the United States Army.

    This included my “Off Duty” time. Upon accepting a position in Civil Service, it is presumed that you are a Civil Servant first, last, and always. It is not like being employed in the private sector, you are an appendage of government, and therefore, your position lends your word a weight that us ordinary folks don’t have. This runs another way, as well-it protects the employee from being targeted for political retribution from bosses who may favour the other party in an election-and it DOES happen, by reducing the opportunities for it, you reduce the likelihood of it. Remember also that there have been times when it was ‘unpopular’ to be known as a government employee-how would it have looked, for instance, if it were known that a majority of Federal rank-and-file were, in fact (as opposed to suspicion) Democrats and partisan democrats at that, in 1994’s election, with its baggage of Waco, the House Bank scandal, and the popularity of anti-government rhetoric?

    Finally, there’s the protection of the Parties and Candidates-as I mentioned, Government employees carry a certain weight of credibility with the public, and there’s always the threat of retaliation, but there’s also the threat that one party might use its leverage with Government Workers to an advantage against the other- would Watergate have been a scandal if it were permissible for Federal Agents to be politically active? I suspect the answer is “NO”. Likewise, what kind of shenanigans could an administration use with a handy-dandy list of supporters within the government’s machinery, supporters who are openly partisan?

    As citizens we have the right to free speech, and free assembly, and free association-however, there is no enumerated right to a Civil Service position with all the massive protections from economic downturns that implies. If you wish to be Politically Active, Quit. Go get a REAL job where you can run the risk of being fired for poor performance.

    Cannonshop (4a7435)

  5. From reading this, my understanding is that, if a federal employee wants to blog, the blog must be:

    1 – separate from any official campaign web site

    2 – separate from any web site that is soliciting donations for any campaign

    3 – not include any links to donate to any campaign

    So patterico.com would be fine, as would a Blogger account, but not one of the blogs on DailyKos (they raise money for candidates) or Barack Obama’s campaign web site.

    A further question: can a federal employee be busted for “soliciting” money if his private blog links to another blog with a big red “donate” button? What if you link to a newspaper article with a campaign’s official ad on the side of the page? What if you simply blog about the topic of finances, and let it be known that you wish a certain candidate had more? How subtle do you have to be? Isn’t that just encouraging deception and favoring legally sophisticated people over the masses? Is that really how we want free speech to work in this country?

    Private blogs should be completely off limits, just as private phone calls as a private citizen should be. If Joe Federal calls up his brother from home and tells him he should donate to Obama’s campaign, that shouldn’t be a violation of federal law!

    Solution: let’s put pressure on dKos to dump all federal employees who have blogs on that site. The resulting blowback might result in more reasonable rules. If not, at least maybe we can get some kossacks fired. (Kidding.)

    Daryl Herbert (4ecd4c)

  6. There’s a paternalistic argument here too. I don’t know how much it was factored in. By restricting campaign activities of govt workers, you protect those workers from bosses who would demand that workers engage in partisan activities.

    And you also limit the government’s ability to put campaign staff on its payroll.

    stef (48e229)

  7. Or for the new set of bosses from punishing employees who backed “the other guy”.

    I can tell you, I wouldn’t want to have had a “Donate to McCain” button on anything remotely connected to my name if Sen Clinton won (I’d be only slightly more willing if it were Sen Obama or McCain).

    Scott Jacobs (d3a6ec)

  8. I guess I understand the reasoning behind these laws… but the first amendment was explicitly meant to protect all citizens’ right to speak about political issues.

    Why shouldn’t a soldier speak out? Why shouldn’t a government employee have a voice? Whatever your reasons are, these people are citizens. They have the inalienable right to free speech of this nature. Whatever notions of ‘extra weight’ or ‘miss-perceptions that the government is behind the speech’ are trivialities. Education and common sense solve them. In reality, it may expose bias. For example, if 90% of the CIA’s employees routinely endorsed democrats, wouldn’t that help educate the masses that the organization wasn’t some kind of arch-right wing conspiracy hut?

    Free speech is a pretty important right. Any curtailment had better be important, and any curtailment of political speech had better be in the nuclear weapon category of necessity.

    Jem (4cdfb7)

  9. A soldier does not speak because political arguments don’t make for good order and disciplin.

    A federal employee doesn’t speak because their position could be seen as “abused” if some bit of information came out about the other side.

    And at least for the military, you freely give away a lot of things when you join (of your own free will I might add), one of which is some measure of free speech…

    Scott Jacobs (d3a6ec)

  10. When did the CIA become some right wing punching bag?

    stef (e870b9)

  11. When did alphie change its name to stef?

    JD (75f5c3)

  12. Useful link. The rules apparently are different for different categories of federal employees. The big restrictions, such as posted by our host, seem to be for positions such as administrative law judge, FBI, Secret Service, IRS Criminal Investigators, etc. Much more detail at the link.

    nk (35ac33)

  13. I still don’t see why even the limited categories of federal employees mentioned by nk should be prohibited from soliciting donations on their own time, using their own resources.

    This means, apparently, that they can’t man the phones at their favorite candidate’s headquarters, on their own time, without mentioning their position, and solicit their friends (or strangers!) to contribute to that candidate.

    I just find it hard to believe that squares with the First Amendment.

    Patterico (4bda0b)

  14. Jem, you CAN speak out, and voice your opinion, and blog. You simply can’t solicit donations for your candidate.

    Look at it this way: the civil service protection afforded to rank-and-file federal employees is a TREMENDOUSLY valuable thing to any given employee. It makes them almost impossible to fire, assuring them career-long employment, if they want it. In return for that very valuable thing, they must give up the right to solicit donations for candidates for public office.

    Sounds like a bargain to me. And when you look it in terms of a bargain, it becomes clear that it is permissible and consistent with the First Amendment. Just as you can voluntarily give up the right to say certain things contractually (non-disclosure agreements, agreements to appear and say things in a film or an ad, etc.), so too can that be simply a basic condition of employment.

    PatHMV (653160)

  15. Patterico, the Hatch Act has been upheld by the Supreme Court at least twice. The Court balanced the employees’ free speech rights with the “elemental need for order.”

    I’m staunchly opposed to McCain-Feingold and similar restrictions on the speech of ordinary citizens, but I don’t have a problem with limiting the ability of federal employees to solicit donations for political candidates. If they don’t like it, they don’t need to be paid with my money, and they can get a job elsewhere. As a purely practical matter, it’s essential to keep the civil service system clear of even the whiff of politics.

    The S.Ct. cites are at the bottom here.

    PatHMV (653160)

  16. What’s specially fun about the Hatch Act is that it covers even the people in “Schedule C” (political appointee) positions. So the medium- & small-bore campaign workers, etc., who land plum positions on the federal payroll if their candidate wins find out that their political activities are constrained by the Hatch Act just the same as all the career civil service employees.

    Who’d a-thunk?

    Some of the Schedule C types find out about the Hatch Act the hard way, never imagining that as political people in politically appointed jobs that there are statutory limits on their job-related political activities.

    Is this a great country or what?

    — Alan Cole, McLean, Virginia, USA.

    Alan Cole (e6f540)

  17. When did the CIA become some right wing punching bag?

    When it’s employees began a continuous stream of leaks of national security information to the media or other inappriate sources purely for political gain or embarrassment rather than go through established channels for whistleblowers if there were legitimate concerns with programs.

    Clear?

    FYNQ.

    daleyrocks (906622)

  18. stef…
    Alan @ 16 nails the very reason for the Hatch Act. It was to prevent political types from harrassing Civil Servants for political donations. You really should crack a history book once in a while.

    But, I would have an extreme amount of heartburn if I were told that I could not create an anonymous blog, voice my anonymous opinions about issues of the day, and provide links to those who support those opinions, just because the links might have pay-pal buttons for contributions.

    But, then again, McCain-Feingold eliminated 1st Amendment protections for political speech, didn’t it?

    Another Drew (f9dd2c)


  19. Alan @ 16 nails the very reason for the Hatch Act. It was to prevent political types from harrassing Civil Servants for political donations. ”

    Thats not quite what #16 says, but yeah, I mentioned something similar in #6.

    stef (4daa88)

  20. I agree with Patterico #13, except for maybe the administrative law judges. Maybe. The various judicial codes of conduct have similar restrictions. But there is also the question of voluntary compliance by the judges which permits those restrictions to stand.

    Which leads me to this. One of my neighbors is an administrative appellate judge (his decisions go to the Seventh Circuit) and another is an FBI agent. The selection for both is strenuous. And one of the factors in their selection may be their tolerance for these kind of rules. My neighbors are both the kind of practical, down to earth, people who just want to do their job and come home to their families at the end of the day.

    Consent of the governed?

    nk (35ac33)

  21. In further response to your #13, Patterico, imagine the enforcement difficulties if the rule were: “you can do it anonymously, as long as you don’t tell anybody you solicit for funds that you are federal employee.” With a flat ban, enforcement is relatively simple. Unlike the flat ban, enforcement of a rule allowing anonymous solicitation requires the government to engage in detailed inquiries regarding the speech. The employee is very likely to get away with mentioning their federal job in these phone calls, because the risk of being taped and caught by a whistleblower or a law enforcement agency is small. Suppose one irate caller records the improper call and reports to the Feds. Do the Feds then have probable cause to wiretap the call center where the employee is volunteering in order to determine if this was an isolated event or if the employee was routinely cashing in on his status as a federal employee to sway voters?

    Now put yourselves in the shoes of someone on the receiving end of the call. Suppose you’re the CEO of a local factory. One day, you get a call from “John Smith,” a man whom you happen to know is the civil service district manager of the section of OSHA that regulates your business. John Smith, who identifies himself only by his name (and for the sake of argument let’s assume that “John Smith” is a name sufficiently uncommon that he’s certain it’s the same guy), calls up and asks you for a donation for Candidate X. How comfortable would you feel turning down that request? Anybody who has ever dealt with a bureaucrat knows that there are hundreds of ways they can hurt you, without you ever being able to prove retaliation.

    It’s a good rule, an essential rule. It may benefit from a bit of clarification where blogs are concerned, but the fundamental rule is sound.

    PatHMV (653160)

  22. Another Drew… as I understand the current rule, your anonymous federal employee blogger is welcome to post his blog and provide links to other sites, even if those sites have “donate” buttons. He simply can’t have such a button on HIS site, nor can he say “to donate to Candidate X, click this link, then the ‘donate’ button.”

    PatHMV (653160)

  23. Another blow to Free Speech and the First Amendment to the United States Constitution courtesy of our elected officials.

    Thank you for your time.

    The Outlander (deaf8b)

  24. Anything can be justified if a “rational basis” standard is used, PatHMV. Can you justify it by using the First Amendment standard, “the least restrictive means to advance an important governmental interest”?

    nk (35ac33)

  25. All of those standards are entirely subjective, nk; I’ve never been sure what the objective difference is other than the difference between “I don’t like this,” “I really don’t like this,” and “I really, really don’t like this.” But I’ll play along as best I can, and I won’t even cheat by looking up the Supreme Court cases I cited earlier…

    There are several important governmental interests involved. One is to prevent government employees from using their governmental power to extort political contributions from the people regulated by those government employees, and to prevent the appearance of such. Another is to create a strict distinction between government employees and political parties and partisans. As the old saying goes, justice must not only BE done, it must be SEEN to be done. A third interest is to protect the civil servants themselves from being pressured or compelled by their political superiors to participate in the political campaigns supported by those superiors.

    The flat ban is the least restrictive means available to advance those important governmental interests. From my own experience, living and working in a very political state, pressure on public employees to politically support those currently in power is high. Proving “pressure” or “extortion” from the political superior is often impossible. The employee is asked to participate in the fund-raising activities. Employees do so because they have observed, or have heard horror stories, what happens to other employees who said “no, thank you.” Invariably, those other employees are given stricter job evaluations, less pleasant assignments, are asked for more justification before having leave approved, etc. They are certainly never told that this is in retalation for not being a “team player.”

    Similarly, when a government employee asks the person he regulates for a contribution, the government employee is unlikely to ever say: “if you don’t, your facility will be audited next week.” That would be a crime all by itself. If a regulator asks a regulated person for a contribution, the regulated person (just like the lower level employee in the previous example) will ALWAYS feel some level of suspicion about the consequences of saying no. This is the same reason we have ethics rules banning gifts to public office holders, even while we have criminal statutes prohibiting office holders from taking public action because of gifts or bribes.

    Now, you may say, let’s say the public employee can’t solicit donations from anybody who is regulated by his agency. That right there would be a blanket prohibition on a lot of government employees anyway, these days, as they all touch all of our lives somehow. There are practical problems, too. The local factory owners are likely to ALL know that “John Smith” is the district manager of OSHA, but that doesn’t mean that “John Smith” knows all the factory owners’ names. If he’s making calls off of a call list, he may call half a dozen factory owners without knowing it, all of whom feel compelled to contribute out of fear of what he might do if they decline.

    So then you say, what about allowing anonymous solicitations? That would result in far more intrusive government investigations into the political sphere if and when allegations of non-anonymous solicitations arose. I gave the example above of what might happen if John Smith, who was supposed to be doing “anonymous” solicitations, were to be caught on one call giving his name. That could quickly and easily lead to a government investigation wire-tapping phone calls soliciting political contributions… a very intrusive, very restrictive mechanism. The simple ban need not look at call content for enforcement; it can be enforced simply by knowing whether calls were made.

    Nobody has a right to employment at the taxpayer’s expense, with a near-guarantee of lifetime tenure. Refraining from political involvement to help preserve the independence of the bureaucrats from political partisanship is a small price to pay for that kind of tenure.

    PatHMV (653160)

  26. PatHMV @ 22…
    Thanks for the clarification. That position is one that I could live with if I were a Federal employee.

    Also, as a taxpayer, I believe that the Hatch Act should be vigorously enforced, particularly against elected officials and staff, who seem to have difficulty in seperating their elected lives from their campaign lives.

    It’s too bad we just can’t give all of them a humility enema.

    Another Drew (f9dd2c)

  27. Thank you, Pat #25.

    That I put your hypothetical under the “rational basis” test is because it is hypothetical. If there were proof of pervasive conduct by Secret Service agents assigned to bodyguard Hillary calling her supporters and saying, “You know, I’m the only thing that stands between Hillary and a bullet. I think you should donate $2,300.00 to Barrack I-Can’t-Make-
    My-Boomerang-Come-Back Obama”, then I would say that an important governmental interest kicks in under First Amendment standards.

    nk (35ac33)

  28. Well, nk, all I can say is that I spent 5 years as a prosecutor investigating public officials (elected and otherwise), a year as general counsel to the state’s top auditor, 4 years working for the governor, and 2 years working in a large state agency. I’ve seen it all. Where political activity by public employees is not prohibited, public employees are compelled by their political masters to do political work on their behalf, and the public employees do so out of fear of retaliation.

    Please imagine getting a phone call from the IRS agent auditing your return asking if you are interested in contributing to his favored political candidate…

    PatHMV (0e077d)


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