The Hatch Act Modernization Act: putting the government back in politics.

• Author: Azzaro, Shannon D.
• Position: Introduction through I. Federal Regulation of the Political Activities of Government G. The Hatch Act Modernization Act of 2012, p. 781-810

Introduction I. Federal Regulation of the Political Activities of Government Employees A. The Pendleton Act of 1883 B. The Hatch Act's Prohibitions and Procedures 1. Effects on Federal Employees 2. Effects on State Employees C. Constitutional Challenges to the Hatch Act's Prohibitions D. Federal Election Campaign Act Amendments of 1974 E. Hatch Act Amendment Attempts: 1976, 1977, 1988, and 1990 F. The Hatch Act Reform Amendments of 1993 G. The Hatch Act Modernization Act of 2012 1. Effects of HAMA on Federal Employees 2. Effects of HAMA on State Employees H. "Little Hatch Acts" 1. Comparing Different "Little Hatch Acts" 2. The Constitutionality of "Little Hatch Acts" II. Post-HAMA, Rigid, Inflexible Results Remain Due to the Hatch Act's Disparate Application and Lack of Guidance A. Confusion Over Applicable Regulations Deters Political Participation 1. Disparate State Regulations 2. Overlapping Prohibitions: The Uniform Code of Military Justice B. Lack of Guidance for Bi-and Multi-State Agencies Results in Broad Prohibitions C. Rigid Employee Penalty Provisions Produce Undesirable Results D. Criticisms that HAMA Remains Unduly Restrictive on Some Law Enforcement Officers III. Eliminating Confusion and Unifying Disparate Prohibitions to Foster Healthy Political Discourse A. States Must Provide Guidance to Overcome Wide Disparities in Hatch Act Enforcement B. Exempting all Lower-Level Employees from the Hatch Act's Prohibitions C. Adding a Discretionary Penalty Provision D. Adding a Statute of Limitations E. Taking Realistic Steps Toward the Realization of Greater Predictability and Enforcement of the Hatch Act Conclusion [H]ere in our own country, millions of our own citizens have been denied one of the most basic democratic rights, the right to participate in the political process, because of conditions that haven't existed for a very long time.... The conditions which once gave rise to the Hatch Act as it was before this reform bill passed are no longer present, and they cannot justify the continued muzzling of millions of American citizens. (1)

--President William J. Clinton

Introduction

The Hatch Act of 1939 (the "Hatch Act," or the "Act"), officially named An Act to Prevent Pernicious Political Activities, enacted sweeping prohibitions against certain types of political participation by federal, and later state and local, government employees. (2) The Hatch Act regulates the permissible political activities of government employees. (3) The Act was enacted to achieve four primary goals: (1) to ensure the political neutrality of government workers by barring partisan political activity by government employees; (2) to prevent partisan elected officials from using government employees for their own political purposes; (3) to prevent the public employees' loyalty from going to a single party or public official; and (4) to insulate public employees against politically motivated job actions. (4) As initially drafted, the Act only applied to federal employees. (5) However, on July 19, 1940, the Hatch Act was amended to apply to employees of state and local governments. (6)

Responding to decades of reform efforts (7) and consistent criticisms of the Hatch Act's broad scope, Congress passed the Hatch Act Modernization Act of 2012 (HAMA) after some incremental reforms and failed attempts at wholesale changes proved to insufficiently address the concerns regarding the Hatch Act's disparate effect on state and local employees and its federal employee penalty provisions. (8) HAMA significantly limited the scope of the original Hatch Act's provisions, returning most of the responsibility for regulating the political activities of state and local government employees back to the states from the federal government. (9) While critics of the Hatch Act's application to state and local employees praise HAMA as a step in the right direction, (10) it lacks a mechanism for reversing the widespread incorporation of the Hatch Act's stricter political prohibitions in state regulations and the political activity policies of government agencies. (11)

The government's interest in regulating the political activities of its employees is twofold: first to prevent coercion, and second to preserve the appearance of integrity and neutrality within each department and agency. (12) However, some politicians question whether allegations of political coercion and corruption remain as dangerous today as they were in 1939. (13) For instance, while signing HAMA's predecessor, the Hatch Act Reform Amendments (HARA) in 1993, former United States President Bill Clinton issued an accompanying statement that reflected his belief that many of the Hatch Act's provisions were no longer necessary. Clinton reasoned that many of the concerns that gave rise to the passage of the Hatch Act are no longer sufficient to justify the Act's extensive prohibitions against political participation by federal and state government employees. (14) By including the "vigilant press" in his cited reasons behind loosening restrictions on Hatch Act-covered employees, Clinton presaged the current state of affairs where the media has become an integral part of our everyday lives. (15) Clinton's remarks account for the fact that social and technological developments might provide sufficient deterrence against improper political participation, without some inherent disadvantages of the Hatch Act. (16) Modern society demands the reexamination of the realities of the public workplace and the political engagement of public employees. This Note will not address technology at length; rather it will focus on a discussion of practical policy concerns. However, the rapidly changing climate of media, social media, and technology lays a backdrop for the ripeness and continued relevance of a conversation about the status of political activities policies for public employees.

Advancements in digital communication have dramatically increased societal interconnectedness. (17) Such interconnectedness provides the media with the tools to police the political activities of government employees. (18) Armed with portable electronics, the media and voters are quick to expose perceived corruption. (19) Regardless of whether the actions of state employees actually violate the Hatch Act, "the mere appearance of impropriety is often enough to draw negative attention." (20) Since the media deters at least some intentional misconduct, the Hatch Act as currently applied is unnecessary and provides no unique benefits, yet it causes administrative confusion and unnecessary penalties for various employees. (21)

Technological advancement and interconnectivity can also be a double-edged sword. As a result of these two factors, it is easier than ever for government employees to unwittingly violate the Hatch Act by using their work computers, phones, or e-mail accounts to express their political views in the workplace. (22) E-mails and social media messages are constantly sent to individuals' cell phones, and the ease of sharing information accompanying "smart phones" increases the probability that government employees might forward messages without carefully considering the recipient(s) and whether the messages include political expressions that violate the Hatch Act. (23) Additionally, the definitions of "on duty," "off duty," and "workplace" have become more fluid with the rise of telecommuting. (24)

The increased probability of unintentional Hatch Act violations chills legitimate free speech and may discourage or invalidate quality political candidates. (25) Confusion over employee coverage under the Hatch Act may arise in many situations, such as when covered workers work alongside an employee who is not covered by the Hatch Act. (26) Increased public discussion of potential Hatch Act violations by public employees also encourages federal, state, and local agencies to safeguard their public image by enforcing political prohibitions that vastly exceed those now required by HAMA. (27)

Dramatic differences in state law regulations enacted in accordance with the Hatch Act exacerbate these issues as agencies seek to apply broad policies to avoid violations of diverse state regulations. (28) Because most states have implemented their own political activities policies, disparities between state and federal policies can also generate confusion among employees. (29) Not only have the states passed a wide variety of political activities laws that may be more or less restrictive than the Hatch Act's requirements, but individual agencies have also imposed their own political activities rules. (30) This Note argues that additional changes to the Hatch Act, despite the progress of HAMA, are necessary to produce predictable limits on political speech for government employees, minimize the chilling of legitimate political discourse, and to eliminate costs associated with current conflicting regulations.

Part I of this Note analyzes the United States' history of regulating the political activities of government employees, state regulations applied in conjunction with the Hatch Act, and the constitutionality of these...