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

• Author: Azzaro, Shannon D.
• Position: I. Federal Regulation of the Political Activities of Government H. "Little Hatch Acts" through Conclusion, with footnotes, p. 810-839

H. "Little Hatch Acts"

While the federal government has relinquished much of its control over whether certain state and local employees may run in partisan political elections, the states still maintain their own interest in regulating the political activities of their employees. (209) The OSC asserts that "Little Hatch Acts," still apply to employees exempt from the Hatch Act's prohibitions, and that such employees must look to state prohibitions to determine whether they are in violation (noting that states may impose more rigid standards if they so choose). (210) However, not all states have the same policy regarding what is proscribed as far as political activities and speech of public employees, and which public employees are included under the statute. (211) The OSC has already faced questions about the applicability of HAMA to pending cases; however, the constitutionality of the new law has yet to face a legal challenge. (212)

A major question remains as to whether these agencies can and should retain their current policies if they were closer to the original Hatch Act requirements, where state political activities law is less stringent than the Hatch Act. (213) The OSC reports that new complaints received decreased from 503 in 2012 to 277 in 2013, and advisory opinions decreased from 3448 to 1767. (214) While the effects on the number of complaints post-HAMA have dropped significantly, it is too early to discern whether the precipitous drop will be permanent, especially considering that the number of new complaints was as low as 282 in 2007. (215) It is still unclear which of the HAMA reforms--the federal penalty provisions or the loosening of the restrictions on state and local employees--had more of an impact on the number of complaints. (216)

1. Comparing Different "Little Hatch Acts "

   Individual states have adopted a wide variety of regulations modeled after provisions of the Hatch Act, which apply to state and local employees. (217) In 2000, Professor Rafael Gely of University of Cincinnati College of Law and Professor Thomas D. Chandler of Louisiana State University organized a study of all the states that have enacted "Little Hatch Acts." (218) They found that thirty-one states have adopted less restrictive statutes. (219) Of the less restrictive states, nine (220) have adopted restrictions in at least three of the areas prohibited under the Hatch Act, fourteen (221) have adopted at least two of the prohibitions, and eight (222) have adopted only one of the prohibitions. (223) In total, twenty-three states bar employees from solicitation of contributions or support for a campaign, thirteen states bar holding elected positions, and twenty-two states bar participation in political activities at work, in uniform, or on government property. (224)

   However, four states (222) go beyond the Hatch Act's (226) provisions for state and local employees, barring employees from taking an active part in political campaigning as well as direct participation in partisan elections. (227) Two states bar covered employees from taking part "in the management of the affairs of a political party ... or any political campaign," (228) and two bar covered employees from "becoming members or officers of political parties." (229) This survey reveals that when states consider which activities to restrict, campaign contributions and political activity while on duty are the most important, followed by holding elected positions. (230)

   Adding to the confusion caused by the states' varying implementation of "Little Hatch Act" provisions is the trend of judicial review to loosen such provisions. For example in Pinto v. State Civil Service Commission, the Supreme Court of Pennsylvania examined whether a corrections officer taking a leave of absence to serve as the Vice President of the Pennsylvania State Corrections Officers Association was subject to the Civil Service Act. (231) The Civil Service Act prohibited:

   [T]aking an active part in political management or in a political campaign. Activities prohibited by this subsection include, but are not limited to, the following activities: ... Soliciting votes in support of or in opposition to a candidate for public office in a partisan election or a candidate for political party office.... Endorsing or opposing a candidate for public office in a partisan election or a candidate for political party office in a political advertisement, a broadcast, campaign, literature, or similar material. The court's analysis relied upon the State Employee Retirement Code, which provided for statewide employee organizations to reimburse employers for "[a]n active member on paid leave granted by an employer for purposes of serving as an elected full-time officer for a Statewide employee organization which is a collective bargaining representative under the [Public Employee Relations] Act." (23) Moreover, Commission Rule 103.11(b), which made an exception from the Civil Service Act for those who "who [are] on a regular leave of absence, or leave of absence to take a non[-]civil service position." (234) Relying on the language of these regulations, the court held that the officer was exempt from the state Civil Service Act because the leave of absence was to take a non-civil service position, thus loosening the interpretation of the political activities provision. (235)

   The Supreme Judicial Court of Maine, meanwhile, held in Callaghan v. City of South Portland that a particular prohibition on City of South Portland employees violated the First Amendment rights of two part-time employees who had previously served on the school board before the statute's passage. (236) The provision in question prohibited any City employee from: "(1) seeking election to or serving on the South Portland School Board; and (2) engaging in certain political activities on their own time, specifically circulating petitions or campaign literature in connection with School Board elections, and soliciting or receiving contributions or political service for or against candidates in School Board elections." (237) The court held that the City failed to demonstrate a "necessary impact on the actual operation of the Government," school sufficient to outweigh the employees' First Amendment interests in running in the School Board election. (238) The court also rejected claims that the case should be evaluated like other Hatch Act cases because the City's candidacy restriction in the nonpartisan School Board elections was more restrictive than Maine's "Little Hatch Act." (239) Maine's "Little Hatch Act" not only allows state employees to run as "a candidate for public office in a nonpartisan election," (240) but also allows candidacy in a partisan election for a local office. (241)

   Additionally, the Eighth Circuit held in Republican Party of Minnesota v. White that a Minnesota statute's partisan activities limitation violated judges' freedom of association rights, and the statute's solicitation clause violated judges' First Amendment rights. (242) The court held that the political-activities clause did not survive strict scrutiny, reasoning that, because the law restricted activities related to political parties and not other interest groups, the law was under-inclusive as to its stated interest and therefore it was not narrowly tailored to serve a compelling state interest. (243) While several jurisdictions have addressed the validity of particular regulations, it is as of yet unclear what the true limitations are on state and local political-activities laws.

   The jurisprudence surrounding state and local political activities laws informs an analysis of the constitutionality of "Little Hatch Acts" and illustrates the potential boundaries of state and local regulations. The aforementioned cases may be interpreted to further the position that states should interpret political activities policies narrowly, as seen in Pinto, or, alternatively, that they violate the First Amendment, as seen in Callaghan and White. (244) Interestingly, the Eighth Circuit draws a line in Callaghan where a local regulation is more restrictive than the state and federal regulations. (245) With no uniform rule regarding the extent to which state and local political activities laws may regulate public employees, there is the potential for conflicting case law on the validity of over-inclusive regulations. (246) Such uncertainty poses an issue for both those drafting state and local political activities regulations and those interpreting them.

   Furthermore, the judicial interpretations of "Little Hatch Acts" differ from judicial interpretations of the federal Hatch Act. (247) The interpretations that political activities policies interfere with employees' First Amendment rights in Callaghan and White conflict with the Supreme Court's interpretation of the federal Hatch Act as seen in Letter Carriers and Mitchell. (248) Federal case law has thus far found no conflict between provisions barring partisan political activities and largely has deferred to the government's interest in regulating its own employees. (249) While there is no direct conflict in the interpretation of state and federal provisions, as they remain distinct laws, the disparate interpretation of the political activities provisions heightens the potential for confusion. (250)

2. The Constitutionality of "Little Hatch Acts "

   Just as it upheld the original Hatch Act in 1939, the Supreme Court has upheld the constitutionality of "Little Hatch Acts" and their application to classified service employees. (251) In Broadrick v. Oklahoma, (252) the Supreme Court held that a state statute forbidding political activities of state employees does not violate the Equal Protection Clause of the Fourteenth Amendment. (253) Petitioners argued that the Equal Protection Clause was violated because the political activities law applied to classified service employees and not unclassified service employees...