The slippery slope of unchecked authority
Earlier this year the U.S. Office of Special Counsel (OSC) entered into a settlement agreement with an employee of the Department of Energy (DOE) who violated the Hatch Act.
The employee had given a tour of a nuclear power plant to a candidate for Congress. OSC deemed the employee’s actions to be a “flagrant” Hatch Act violation because three days before she gave the tour, she received a reminder that the tour could violate the Hatch Act. Information and photographs from the tour were then used to further the candidate’s campaign.
The Hatch Act, a federal law passed in 1939, and amended as recently as 2012, limits certain political activities of federal employees, as well as some state and local government employees who work in connection with federally funded programs.
The act prohibits federal employees from engaging in most political activity inside federal buildings or while on duty. The law’s purposes are to ensure that federal programs are administered in a non- partisan fashion, to protect federal employees from political coercion in the workplace, and to ensure that federal employees are promoted based on merit and not based on political affiliation.
Contrast the DOE employee’s conduct with the glitzy Republican National Convention on the lawn of the White House complete with military guard, a naturalization ceremony and an act of clemency by the president. Not to mention speeches by cabinet members and a number of other federal officials.
During the convention, Secretary of State Mike Pompeo delivered a speech in Jerusalem while on a diplomatic mission for the U. S. government. Pompeo praised President Donald Trump’s foreign policy. He also celebrated the relocation of the U.S. embassy from Tel Aviv to Jerusalem -- a talking point of the Trump campaign.
This summer, Pompeo and top State Department officials sent memos to employees reminding them they must be careful to adhere to the Hatch Act. Another memo said, “Senate- confirmed presidential appointees may not even attend a political party convention or convention- related event.”
“This video ( of Pompeo) is an egregious violation of the Hatch Act,” wrote Claire O. Finkelstein and Richard W. Painter, the two law school professors who have filed a Hatch Act complaint over the speech.
Last year, soon departing White House special adviser Kellyanne Conway was cited by the special counsel for violating the Hatch Act. The Special Counsel recommended she be fired. She wasn’t fired and didn’t resign. What she did was defiantly tell reporters, “Blah, blah, blah ... If you’re trying to silence me through the Hatch Act, it’s not going to work. Let me know when the jail sentence starts.”
Disputes over violations of the Hatch Act end up before the Merit Systems Protection Board -- an independent agency created by Congress in the wake of Watergate to provide independent oversight of Hatch Act investigations.
However, Steve Vladeck, a professor at the University of Texas Law School, wrote that the board currently lacks a quorum -- because the Senate has not acted to confirm any of Trump’s nominees. As a result, the board has amassed a backlog of nearly 3,000 cases. Vladeck added, the “board does not even have jurisdiction over presidential appointees.”
Just two days after acting Department of Homeland Security chief Chad Wolf appeared at the Republican National Convention, DHS employees were reminded through an agency wide email not to engage in “partisan political events.”
The agency notified staff that they are prohibited from “conducting any political activity while on duty or while in a government room, building, vehicle” or participating in political activity “wearing a DHS badge or insignia, or while using government equipment.”
When confronted with the seemingly obvious violations of the Hatch Act at the Republican National Convention White House chief of staff Mark Meadows said that “nobody outside of the Beltway really cares.”
Well they should. Every time the Trump Administration flouts laws, rules, regulations or norms -- while those who should care look the other way -- it’s another step toward autocracy. When speaking of Trump’s conduct we often hear the rejoinder, “No one is above the law.” If no one is enforcing the law -- Trump is not only above the law, he has unchecked authority.