November 27, 2011

THE HATCH ACT was passed in 1939 to prevent federal workers from engaging in partisan politics. That remains an important aim, but the law needs updating in two important areas, as recommended by the Office of Special Counsel, the independent agency that enforces the act. The draft legislation proposed by Special Counsel Carolyn N. Lerner fits on a single page. Congress should take up these changes and write them into law in time for the next election.

First, the statute sweeps too broadly. It applies not only to federal workers but to state and local government employees whose work is financed, even in part, by federal loans or grants, and it prohibits them from running in partisan elections. Thus, a Pennsylvania police officer was deemed ineligible to run for the local school board because his canine partner, a black Labrador, was connected to funding from the Department of Homeland Security. This is silly. It turns the Hatch Act from a useful mechanism to keep partisanship out of government employment into a political weapon that can be wielded by one candidate in a race to disqualify a challenger. Meanwhile, it inundates the Office of Special Counsel with trivial inquiries and complaints — the caseload rose from 98 in fiscal year 2000 to 526 in 2010 — and interferes with a more rational allocation of limited resources.

Second, the statute’s unduly draconian penalty structure is counterproductive. Under the current law, a federal worker found to have violated the Hatch Act must be terminated, unless the Merit Systems Protection Board unanimously finds that the violation does not warrant firing. In that case, the alternative is being suspended without pay for at least 30 days. As Ms. Lerner explained in a letter to Congress, “This structure is overly restrictive, can lead to unjust results and may even deter agencies from referring potential violations to OSC.” A broader range of penalties, including reprimand, suspension, civil fine and reduction in grade, would be appropriate.

Ms. Lerner raises other matters for congressional review, including updating the definitions of “political activity” and “federal workplace” to deal with the rise of the Internet and social media and the advent of telecommuting. In addition, she notes that the explosion of federal grants now means that the Hatch Act covers hundreds of thousands of state and local government employees, even if the federal funds are tangential to their jobs. These topics are well worth addressing. The proposed legislation is a good-government no-brainer.