“I have two friends that are thinking about it,” she said from the podium. “Tim Ryan of course is thinking about. I understand Nan Whaley is thinking about. I mean I think we’re going to put a good person in that race no matter who we choose, but they’re both friends. I think we have a good shot at it. I know people have written off Ohio. I haven’t written off Ohio. I believe we can win the Senate race.”
Ryan is a Democratic congressman who represents Ohio’s 13th District, and Whaley is the Democratic mayor of Dayton.
The Hatch Act prohibits executive branch officials from engaging in political campaigns and related activities in an official capacity. The Office of Special Counsel, which handles Hatch Act investigations, declined to comment on whether a case has been opened into Fudge’s comments. But an official with the office, speaking on the condition of anonymity because that person was not authorized to comment publicly, outlined how the comments could be in violation.
“If there is a government employee speaking from the White House briefing room and is there in their official capacity, then they’re prohibited from engaging in political activity while they’re speaking,” the official said.
Richard Painter, the chief White House ethics lawyer during the George W. Bush administration, said Fudge’s comments clearly violate the Hatch Act.
“Under the Hatch Act, if you are giving an official policy talk at the White House, you cannot talk about the prospects for the Democratic Party or Republican Party in an Ohio Senate race,” he said. “It’s completely inappropriate and would violate the Hatch Act.”
Citizens for Responsibility and Ethics in Washington, which often referred potential Hatch Act violations to the Office of Special Counsel during the Trump administration, said it is reviewing Fudge’s comments.
“It is entering a dangerous territory when an official starts talking about a specific race and about which party can win and about their own party,” said Noah Bookbinder, the group’s president.
“That’s the kind of thing that administration officials should be very careful about,” he said. “Our strong preference and the right thing to do is to avoid it entirely.”
In a Friday night statement, Fudge said she should not have answered the follow-up question about the Senate race.
“When I was discussing getting relief to the American People and the American Rescue Plan from the briefing room on Thursday, I answered a question from a reporter related to Ohio politics,” she said in a statement. “I acknowledge that I should have stuck with my first instinct and not answered the question. I take these things seriously and I want to assure the American people that I am focused on meeting the needs of our country.”
The White House declined to comment.
Fudge joined press secretary Jen Psaki at the briefing Thursday to discuss the American Rescue Plan relief package and its provisions to fight homelessness. It was Fudge’s first public appearance at the White House since being sworn in last week.
Fudge is one of three members of Congress to join Biden’s administration: Cedric L. Richmond is serving as senior adviser in the White House and Deb Haaland was confirmed this week as interior secretary.
During the Trump administration, senior White House officials frequently violated the Hatch Act with few repercussions. The Office of Special Counsel, for example, found that Kellyanne Conway, a senior adviser to Trump, repeatedly violated the act and recommended she be removed from the federal service. Trump declined to punish Conway.