By: Kathryn Suma
While there have been many claims that various persons have broken the law over the course of the 2016 election, the most unique so far happened just ten days before the election. FBI Director James Comey was recently accused of violating the Hatch Act by publicly discussing the possible reinvestigation into Hilary Clinton’s emails just two weeks before the 2016 election[1]. But what is the Hatch Act, and what does this potential charge even mean?
Federal law 5 U.S.C. § 7323, commonly known as the “Hatch Act,” regulates government employees’ political activities.[2] It applies to all federal officers and employees in the agencies, departments, bureaus, and offices of the executive branch of the federal government, with the exception of the Vice President and President of the United States.[3]
The Act allows government employees to “take an active part in political management or in political campaigns,” with clear exceptions.[4] It states that an employee may not:
(1) Use his official official authority or influence for the purpose of interfering with or affecting the result of an election; (2) knowingly solicit, accept, or receive a political contribution from any person 3) run for the nomination or as a candidate for election to a partisan political office; or (4) knowingly solicit or discourage the participation in any political activity of any person who (A) has an application for any compensation, grant, contract, ruling, license, permit, or certificate pending before the employing office of such employee; or (B) is the subject of or a participant in an ongoing audit, investigation, or enforcement action being carried out by the employing office of such employee.”[5]
A previous Hatch Act allegation of note occurred in 2012, when the Office of Special Counsel concluded that Kathleen Sebelius, Secretary of the Department of Health and Human Services, violated the Act by serving as the Guest of Honor and Keynote Speaker at a Human Rights Campaign gala for gay rights in North Carolina.[6]
Additionally, since the Hatch Act was created in 1939, there have been various claims that the Act is unconstitutional because it violates government employees’ First Amendment rights to free speech.[7]
In 2003, a teacher from the District of Columbia school district was removed from his teaching position for a violation of the Hatch Act when he filed a Declaration of Candidacy to run for the District of Columbia Council. The Federal Circuit held in Briggs v. Merit Systems Protection Board that the Hatch Act did not violate the First Amendment and affirmed the school board’s decision to remove Briggs from his position for failing to withdraw his candidacy.[8]
While there have been counter-arguments regarding the necessity of limiting political speech of government employees, specifically those in high positions, the criticism led to extensive amendments to the Act in 1993 and smaller changes through 2012.[9] These amendments essentially allow employees to be involved in most personal political activity.[10] However, the legislation specifically noted that some employees that work in law enforcement and national security may be subject to further restrictions regarding their political involvement outside of the workplace.[11] This list of affected agencies includes the Federal Bureau of Investigation.[12]
Despite the fact that Director Comey is not the first high-level employee from the executive branch to be accused of violating the Hatch Act, it is important in this instance that he is Director of the FBI, a position generally believed to be unbiased. The agency is typically held to a high standard due to its responsibility to investigate high-profile political figures, such as that of Presidential candidate and former Secretary of State, Hilary Clinton.[13] Also important is the fact that the position of FBI Director is politically appointed, but is not political, since the appointment is for 10 years. This means that the Director can have the position throughout very different administrations.
The biggest concern is that a future Director of the FBI wary to put out information he otherwise feels obligated to disclose to the voting public and Congress pursuant to an important and highly publicized case. While it may not have been appropriate in this case with so few days before the election, it would be a shame if an agency such as the FBI could no longer strongly fulfill its investigative role in the future due to political threats of a Hatch Act violation. This no doubt would change the intention of the Act and could actually create some of the problems it was created to avoid with regards to separating politics and the everyday work of government employees.[14] While this specific situation may amount to nothing, it still presents bigger concerns in the future for ensuring checks and balances, as well as the continuation of a system where the FBI retains the discretion to investigate and disclose important information to the public as it sees fit.[15]
[1] Michael C. Bender, Harry Reid: FBI Director’s ‘Partisan Actions’ May Violate Federal Law, Wall Street Journal, Oct. 30, 2016, https://blogs.wsj.com/washwire/2016/10/30/harry-reid-comeys-partisan-actions-may-violate-federal-law/.
[3] https://fas.org/sgp/crs/misc/R43630.pdf
[4] Id.
[6] Jake Tapper, Office of Special Counsel Says HHS Secretary Violated Hatch Act, ABC News, Sept. 12, 2012, https://abcnews.go.com/blogs/politics/2012/09/office-of-special-counsel-says-hhs-secretary-violated-hatch-act/.
[7] See Briggs v. Merit Systems Protection Board, 331 F.3d 1307 (Fed. Cir. 2003); National Association of Letter Carriers v. United States Civil Service Commission, 93 S.Ct. 2880 (1973); United Public Workers v. Mitchell, 67 S.Ct. 556 (1947).
[8] Briggs v. Merit Systems Protection Board, 331 F.3d 1307.
[9] Shannon D. Azarron, Note, The Hatch Act Modernization Act: Putting the Government Back in Politics, 42 FORDHAM URB. L.J. 780, 805-08 (2016).
[10] Jack Maskell, Cong. Research Serv., R43630 Hatch Act: Candidacy for Office by Federal Employees in the Executive Branch, (2014), https://fas.org/sgp/crs/misc/R43630.pdf.
[11] Id.
[12] 5 U.S.C. § 7323(2)(B)(i)(II)
[13] 28 U.S.C. § 533
[14] Jack Maskell, Cong. Research Serv., R43630 Hatch Act: Candidacy for Office by Federal Employees in the Executive Branch, (2014), https://fas.org/sgp/crs/misc/R43630.pdf.
[15] Where is the FBI’s authority written down?, FBI (last visited Nov. 16, 2016), https://www.fbi.gov/about/faqs/where-is-the-fbis-authority-written-down.