The Washington PostDemocracy Dies in Darkness

How Kellyanne Conway’s rules violations threaten democracy

White House counselor Kellyanne Conway has been under fire for allegedly violating the Hatch Act, which prohibits federal employees from engaging in political activity. (Mark Wilson/Getty Images)
Placeholder while article actions load

After the Office of Special Counsel recommended that White House adviser Kellyanne Conway be removed from her position for repeated violations of the Hatch Act, President Trump told the “Fox & Friends” television program, “I’m not going to fire her,” adding, “I think you’re entitled to free speech in this country.”

Conway had already signaled her lack of concern for the Hatch Act, which requires federal employees to refrain from using their public positions to engage in political activity. Responding last month to reporter questions about her track record of ignoring the act, Conway replied: “Blah, blah, blah. … Let me know when the trial starts.” Last week, the House Oversight Committee voted to subpoena Conway after she failed to appear before the panel to account for her actions.

While the Hatch Act, which became law in 1939, built on past civil service rules that restricted federal employees from engaging in partisan political activities, its history is little known. The difference between the late 1930s and today is captured, in no small measure, by the tenor of Trump’s and Conway’s remarks. What once seemed crucial to lawmakers is now breezily dismissed by administration officials. But we should care a great deal about keeping our bureaucracy and our politics separate, because this distinction lies at the core of a functioning democracy.

The Hatch Act emerged in the 1930s in an era of rising concern about state power, fascism and dictatorship. The author of the Hatch Act, Carl Hatch, was a senator representing New Mexico during the Great Depression. A conservative Democrat, Hatch was worried about the politicization of the Works Progress Administration. The WPA was a key part of President Franklin D. Roosevelt’s New Deal, a federal program aimed at putting millions of Americans back to work building socially useful public-works projects such as roads, schools and other public buildings.

The WPA touched every community in the nation with its relief spending. It was also one of the most polarizing programs of the era. In a 1939 opinion poll, Gallup asked Americans to name the best and the worst thing that the New Deal had accomplished. The WPA topped both lists.

Hatch’s legislation emerged from a full-throated national debate about the legitimacy of the WPA and, more generally, the role of federal bureaucracy in American life. Many people questioned the New Deal’s use of federal authority to employ out-of-work Americans, concerned it marked a step toward socialism. Others worried that federal officeholders might use the power of a WPA paycheck to intimidate workers, pressuring them to vote in support of particular candidates.

While congressional investigations in the 1930s found that attempts to coerce WPA workers were rare and usually ineffective, concern about the issue of “politics in relief” drove politicians such as Hatch to attempt to safeguard the bureaucracy from political interference. As a result, section 9(a) of Hatch’s proposed law declared, “No officer or employee in the executive branch of the Federal Government, or any agency or department thereof, shall take any active part in political management or in political campaigns.”

Hatch was also reacting to statements made by Roosevelt’s close adviser Harry Hopkins, the head of the WPA. In 1938, Hopkins was asked by a reporter to describe the secret of the New Deal’s success. His answer was that the program’s political philosophy was, “We shall tax and tax, spend and spend, and elect and elect.” Although Hopkins later denied he ever said such a thing, his denials mattered little in the heated political world of the late 1930s (and would subsequently gain second life through the derisive phrase “tax-and-spend liberalism”). While the New Deal was enormously popular — witness Roosevelt’s multiple triumphs at the ballot box — it was also, as we see from the Hatch Act and the debate about the politicization of the WPA, controversial.

In a world that was witnessing the reigns of Adolf Hitler in Germany and Benito Mussolini in Italy, as well as a militaristic Japan at war with China, many Americans worried about the political implications of a powerful federal government. Yet in the midst of years marked by global financial crises and world war, they also understood the need for an active and capable state. In the late 1930s, the country thus chose to embrace both a robust welfare state and the legal measures necessary to insulate government employees and the federal bureaucracy from politics. Roosevelt carefully reviewed the Hatch Act before finally signing it into law, declaring, “It is my hope that if properly administered the measure can be made an effective instrument of good government.”

Originally passed to safeguard the New Deal’s welfare state from undue politicization, the Hatch Act became law against a backdrop of rising fascism and authoritarianism around the globe. Today, this law supplies the Office of Special Counsel with the legal authority to call for Trump to dismiss an adviser for repeatedly using her government position to attack his political opponents. Although Conway was not using a government program like the WPA to threaten anyone’s paycheck, she was arguably doing something more serious — using the power and prestige of her official position to influence the results of the coming 2020 presidential election.

Laws, however, are only empty words if they are not upheld and faithfully executed by politically elected leaders and appointed officials. As Henry Kerner, whom Trump appointed to run the Office of Special Counsel, declared in his report, Conway’s “defiant attitude is inimical to the law, and her continued pattern of misconduct is unacceptable.” Conway’s actions, he concluded, “erode the principal foundation of our democratic system — the rule of law.” If Trump fails to dismiss Conway, he, too, will have eroded this crucial pillar of our system.

While many things have changed since the 1930s, the importance of the rule of law to democracy remains the same. Roosevelt recognized this when he reminded Americans how a democracy was supposed to work. “The ultimate rulers of our democracy,” he said, “are not a president and senators and congressmen and government officials but the voters of this country.” It remains to be seen whether Roosevelt’s words hold true.