The Washington PostDemocracy Dies in Darkness

Federal judiciary can’t stop support staff from political activity

Administrative court employees can engage in political activity outside of work, an appeals court ruled. (Susan Walsh/AP)

In March 2018, while weighing candidates for governor in Maryland, Lisa Guffey wanted to attend an event featuring Democrat Ben Jealous.

She was told she could not. Her employer, the Administrative Office of the U.S. Courts (AOUSC), had two days earlier imposed new rules barring all employees from expressing political views, attending political events or engaging in political activity.

This week the U.S. Court of Appeals for the D.C. Circuit deemed those restrictions unconstitutional.

“The government cannot condition public employment on the complete surrender of a citizen’s First Amendment rights,” wrote the majority of the three-judge panel in an opinion released Tuesday.

Guffey, 55, of Silver Spring, Md., said in an interview that the rules immediately struck her as unconstitutional, but she complied with them until the courts agreed.

“I can be both an active private citizen and a public servant and I’m glad the court recognized that,” she said. “There is no conflict between my work and what I did on my own time as a private citizen of this country, of the state of Maryland, of Montgomery County.”

A spokeswoman for the Justice Department declined to comment. In court arguments, the government defended the rules as comparable to those of other judicial employees and necessary to “preserve the integrity and impartiality of the judicial branch.”

But the court found that such rules cannot apply to administrators who play no role in judicial rulings or decisions. Guffey assesses resources and operations for federal public defender offices and court-appointed attorneys. A second plaintiff, Christine Smith, previously dealt with information technology needs of those offices. She now leads cybersecurity assessments. Neither sought to affiliate themselves with the judiciary while engaging in politics.

Their work is so anonymous, the court said, that any fear that their political engagement would lead to real or perceived political manipulation of judiciary was “novel, implausible, and unsubstantiated.” To begin with, the court said, “there is nothing in the record to suggest” that “the public is aware” of the AOUSC.

Guffey and Smith filed their suit in 2018; a district judge granted an injunction blocking the government from enforcing most of the restrictive rules in 2020. The appellate court broadened the injunction to include all the new policies but said its ruling could only apply to the two plaintiffs. The small number of the 1,100 AOUSC employees who advise judges on their own ethics or deal with Congress could potentially be subject to different rules.

“We trust that upon receipt of our judgment, [the AOUSC] will reconsider the contested restrictions for employees whose work is comparable to (or less sensitive than) the work Guffey and Smith do,” they wrote.

The ruling comes as law enforcement warns of threats and attacks on federal workers inspired by antigovernmental rhetoric from Republicans regarding new funding for the Internal Revenue Service and the FBI search of former president Donald Trump’s Florida home.

But Scott Michelman, legal director at the ACLU of the District of Columbia and the plaintiffs’ attorney in this case, said threats to public employees can’t be used to justify such extreme restrictions on people whose jobs have no political relevance.

“That’s a kind of heckler’s veto over core First Amendment rights,” Michelman said. “Nobody is going to make political hay out of the political preferences of the person who runs IT for the federal judiciary,” he said. “That’s just a huge chain of speculation.”

The AOUSC rules, he noted, were stricter than those that apply to prosecutors, FBI agents and other Justice Department employees potentially involved in sensitive work.

Under the rules that applied before March 2018, AOUSC employees were barred from endorsing or organizing fundraisers for partisan federal candidates or driving people to the polls for those races, but they could do so for state and local candidates. In any race they could make their political views known while off duty, contribute to candidates and parties, and attend events or fundraisers.

The ruling was written by Justin Walker, a Trump appointee whose own past political commentary inspired Democratic opposition to his 2020 confirmation. He was joined by Senior Judge Harry T. Edwards, a Carter appointee. Karen L. Henderson, a George H.W. Bush appointee, dissented, saying at oral argument that she had no idea administrative staff had been allowed to engage in politics and that knowing they do might change her relationship to those employees.