Here's what White House spokesman Hogan Gidley said:
Kellyanne Conway did not advocate for or against the election of any particular candidate. She simply expressed the president's obvious position that he have people in the House and Senate who support his agenda. In fact, Kellyanne's statements actually show her intention and desire to comply with the Hatch Act — as she twice declined to respond to the host's specific invitation to encourage Alabamians to vote for the Republican.
Let's begin with the background.
In an interview with “Fox and Friends” in November, Conway was asked whether President Trump had the votes to pass his tax-cut bill. But rather than focus on senators set to vote on the legislation, she took the opportunity to attack Doug Jones, the Democrat running in the Alabama special Senate election against Roy Moore. “Folks, don’t be fooled,” Conway said. “He’ll be a vote against tax cuts. He’s weak on crime, weak on borders. He’s strong on raising your taxes. He’s terrible for property owners.” What makes this especially problematic: Conway was introduced by her White House title and was standing in front of the White House.
The second violation came in a Dec. 6 interview on CNN in which Conway was again clearly speaking in her official capacity. And again she attacked Jones. “He'll be a reliable vote for tax hikes,” she said. “He'll be a reliable vote against border security. He'll be a reliable vote against national security and keeping ISIS, and he'll be a reliable vote against the Second Amendment, against life.”
In both of these cases, the White House rather remarkably contends that Conway wasn't advocating “against the election of any particular candidate.” She just happened to attack Jones repeatedly for being “weak” and “terrible” on good things and a “reliable” vote against other good things.
The White House says this was simply her stating that Trump wanted “people in the House and Senate who support his agenda.” But isn't that the very definition of political speech — of advocating for or against the election of a candidate? By this standard, there is basically no such thing as political speech; there is only stating facts about how people align with your agenda.
The last sentence is the most brazen, though. Gidley's statement argues that Conway studiously avoided violating the Hatch Act because she “twice declined to respond to the host's specific invitation to encourage Alabamians to vote for the Republican.” But the Hatch Act doesn't just prohibit endorsing candidates; it prohibits using “official authority or influence for the purpose of interfering with or affecting the result of an election.” If attacking a candidate doesn't qualify, what on Earth would?
And Conway wasn't the only one playing this game. Trump himself had danced around the question of whether he supported Moore for weeks, even as he had no problem attacking Jones. It was clear whose side he was on. And if an explicit endorsement is the new standard for a Hatch Act violation, the act is practically meaningless.