During the Trump Administration, we discussed a series of Hatch Act violations by officials and the response of the White House Chief of Staff that “nobody really cares.” It is certainly true that the Hatch Act represents little more than a speed bump in governmental ethics as was evident this week when White House press secretary Jen Psaki was hit by a complaint from Citizens for Responsibility and Ethics in Washington (CREW). To the credit of CREW, the group is showing the same vigor in defending ethics in this Administration.
However, these cases highlight the toothless quality of the Act.
Psaki responded to a question about the Virginia gubernatorial race by acknowledging she had “to be a little careful about how much political analysis I do” from the podium. However, she then tossed caution to the winds and declared:
“Look, I think the president, of course, wants former Governor McAuliffe to be the future governor of Virginia. There is alignment on a lot of their agenda, whether it is the need to invest in rebuilding our roads, rails, and bridges, or making it easier for women to rejoin the workforce.”
The key prohibition is that executive branch employees from “us[ing their] official authority or influence for the purpose of interfering with or affecting the result of an election.”
CREW further notes in the complaint:
“Activities covered by this prohibition include a federal employee’s use of their official authority or position while participating in political activity. “Political activity” is defined as “an activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group.” The Hatch Act further prohibits most federal employees from engaging in political activity while on duty, but it does not prohibit certain employees appointed by the President from doing so. However, if these officials do engage in political activity, they must do so in their personal capacities and the costs associated with their political activity must not be paid with money derived from the United States Treasury.”
For her part, Psaki seemed to shrug off the complaint and said that she should probably “choose my words more carefully.”
The Hatch Act remains a largely aspirational law given the lack of real enforcement elements.
These complaints serve a purpose in flagging inappropriate commentary. The line between politics and government can be easily blurred in the White House where officials are asked for the political position of the President on a host of different issues, including close races like the one in Virginia. That does not take away from the important work that CREW does but the law often seems more honored in the breach.