In a move that some ethics advocates say could be an opening to limit dissent, the federal government has issued a new interpretation of guidance for the political activity of federal government workers, warning that weighing in on impeachment or talking about “the Resistance” may constitute prohibited activity.
The Office of Special Counsel is charged with enforcing the Hatch Act, which prohibits federal employees from engaging in political activity in the course of their work. The office, not to be confused with special counsel Robert S. Mueller III’s investigation, is run by Henry Kerner, whom President Trump nominated to the post.
The unsigned “Guidance Regarding Political Activity,” which was issued Tuesday, uses a question-and-answer format as it seeks to clarify the types of actions and rhetoric considered political activity and therefore prohibited at work.
In a nod to the current climate, it stipulated that advocating for or against impeachment of a candidate for federal office would be considered political because of its implications for future elections, and that any use of terms such as “resistance” and “#resist” would be construed as political activity.
But union officials and some government watchdogs said they feared the guidelines could have wide-ranging effects on the nearly 3 million federal employees in the United States, as well as state and local government employees who work with federally funded programs. The ethics nonprofit American Oversight said the guidance raised “significant concerns” in a letter it sent to the office Thursday, urging it to withdraw the memo.
“OSC’s position on impeachment advocacy or opinions goes too far,” the group’s executive director, Austin Evers, wrote in the letter, adding that “certainly there is a difference between advocating that an official should (or should not) be elected and advocating that an official did (or did not) commit treason or high crimes and misdemeanors under the Constitution.”
In particular, Evers expressed concern that the guidelines could constrain whistleblowers.
“As OSC knows well, it is critically important to ensure public employees are comfortable raising concerns about waste, fraud, or abuse in the government,” he wrote. “Impeachment is primarily a remedy for severe misconduct. If public employees are aware of conduct that could be impeachable but fear civil or criminal liability under the Hatch Act for saying so, they may be reluctant to approach OSA, inspectors general, or Congress.”
On Friday, Office of Special Counsel spokesman Zachary Kurz said that the guidance “was not intended to prevent all such discussions of impeachment in the federal workplace.”
Employees can discuss whether reported conduct by the president warrants impeachment and express an opinion about the news — but not display any materials that advocate for or against his impeachment, Kurz said.
Evers said Friday in an email that the updated policy remains confusing, given that it says federal workers can discuss impeachment but not advocate on the issue.
“The Hatch Act carries serious penalties, and OSC owes the federal a workforce a straight answer about what is and isn’t allowed,” he said. “This clarification is the opposite of clear, and it underscores why OSC needs to withdraw the guidance and start over at the drawing board.”
Federal union officials also challenged the office’s Hatch Act interpretation. In a statement, National Treasury Employees Union President Tony Reardon suggested that the new guidance “could unnecessarily have a chilling effect on employees’ First Amendment free speech.”
Reardon noted that the Hatch Act prohibits federal employees from engaging in activities aimed at bolstering or undermining partisan political candidates or parties.
“That prohibition has always been a fact-specific analysis in which the employee’s intent is relevant,” Reardon said. “This new guidance goes too far because it eliminates that critical factor.”
Nick Schwellenbach, director of investigations at the Project on Government Oversight and an employee of the OSC from 2014 to 2017, said he felt the guidance probably crossed a legal line.
“The way OSC has traditionally balanced its enforcement of that statute with the First Amendment is [focused on] supporting a candidate or political party for election. I think once you start talking about more-general political views, you’re starting to infringe upon people’s rights,” he said. “This one, I think, goes too far for them. It runs the risk of turning the OSC into an Orwellian enforcer inside the federal workforce.”
Schwellenbach said he believed that the guidance could be successfully challenged in court on its constitutionality.
Norm Eisen, a senior fellow at Brookings and the former top ethics lawyer in the Obama White House, said he found the guidance “very peculiar.”
“It’s contrary to my understanding of the Hatch Act and its interpretation, which is confined to what’s more commonly understood as political activity — vote for or against a candidate,” he said. “This infringes into policy questions.”
He too said he feared it could have a chilling effect on the First Amendment rights of government employees and said he thought a legal challenge could be successful.
“I do have to take exception to this advice, and I hope they’ll reconsider,” he said.