What is the Hatch Act and How Did Kellyanne Conway Violate It?

Office of Special Counsel Calls White House Counselor a “Repeat Offender” and Calls for Her Removal

The United States Office of Special Counsel (OSC), an independent federal investigative and prosecutorial agency, issued a recommendation on Thursday, June 20, 2019, that White House Counselor Kellyanne Conway be removed from her position within the Trump administration for repeated violations of the Hatch Act. The OSC, a permanent federal agency, has the responsibility and authority under federal statutes to enforce the provisions of the Hatch Act, as well as the Civil Service Reform Act, the Whistleblower Protection Act, and the Uniformed Services Employment and Reemployment Act. The agency does not have the power to terminate Conway without first prosecuting her for violation of the Hatch Act—only the President can do that. Accordingly, the communication to the President is only a recommendation. The OSC could, however, use its legislative power to prosecute and remove Conway.

According to the OSC, Conway violated the Hatch Act on the following occasions:

• Her recommendation during a 2017 interview on Fox & Friends that the American public “go buy Ivanka’s stuff,” referring to a clothing line offered marketed by the President’s daughter
• Her statements on Fox & Friends in 2017, supporting Alabama Senatorial candidate Roy Moore and asking the television audience not to vote for Democrat Doug Jones (Moore’s opponent and eventual winner of the race).
• Her appearance on CNN’s New Day in December 2016, where she encouraged viewers to vote for Roy Moore.
• Numerous other interviews and use of her Twitter account in violation of the Hatch Act, specifically, an accusation Conway made about Democratic presidential candidate Beta O’Rourke and a tweet about the President’s reelection campaign.

What Is the Hatch Act?

The Hatch Act, also known as “An Act to Prevent Pernicious Political Activities,” was enacted in 1939, introduced by Senator Carl Hatch, a Democrat from New Mexico. Interest in such legislation initially arose during the 1938 mid-term congressional elections, when evidence surfaced that Democrats in a number of swing states were using employees of the Works Progress Administration (WPA), a federal agency, for political purposes. Though an investigation into the allegations was inconclusive, conservative Democrats and Republicans pushed the Hatch Act through Congress, and over the years the Act has survived numerous challenges at the Supreme Court.

The Hatch Act includes broad language that addresses a number of concerns:

• It prohibits intimidation or bribery of voters.
• It bans the use of any public funds designated for public works or relief for political or electoral purposes.
• It outlaws any promise of jobs, promotions, financial assistance, contracts or other benefits to coerce campaign contributions.
• It requires that most federal employees below the policy-making level must forgo involvement in “any active part” of a political campaign.

Who Is Covered by the Hatch Act?

The Hatch Act governs the conduct of federal employees, employees of the District of Columbia, and some state and local government workers. With respect to federal government workers, the statute defines an “employee” to include any individual, other than the president or the vice president, employed or holding office in an executive agency other than the General Accounting Office. Presidential advisors and cabinet officials are typically allowed to engage in political activity while on the job, provided federal funds are not used. If any federal resources are employed, the U.S. Treasury must be reimbursed for all expenses.

What Conduct Is Permitted under the Hatch Act?

The U.S. Office of Special Counsel has established detailed regulations identifying those activities that federal employees may and may not engage in under the provisions of the Hatch Act. The regulations are different, based on whether the employee is with an agency that may participate in partisan political activity. Employees of certain agencies, including the CIA, FBI, and NSA, are prohibited from engaging in most partisan political activity, whether on or off duty. Conway’s job, however, is one that allows her to participate in certain partisan political activity, primarily when she is not acting in an official capacity or being identified by her official title.

Under the Hatch Act, federal employees like Conway are prohibited from any of the following activities:

• Engaging or participating in any political activity while in a government office, wearing a government uniform, using a government vehicle or while on duty
• Discouraging or seeking political action or favors from anyone with business before the employee’s agency
• Attempting to use any official authority, power, or influence to interfere with, influence, or impede an election
• Asking for, requesting, soliciting, or receiving any political contributions
• Running for public office in any partisan election
• Wearing political buttons, t-shirts, hats; displaying signs or bumper stickers; or otherwise displaying political slogans, banners, materials or promotional items while on duty

When they are not on duty or acting in an official capacity, the Hatch Act allows employees like Conway to participate in partisan political activities such as the following:

• Expressing opinions about candidates and issues
• Contributing money to political organizations
• Attending fundraisers for political parties or candidates
• Attending and participating in political rallies and meetings
• Active membership in a political party or club
• Campaigning for or against referendum issues, municipal ordinances, or constitutional amendments
• Campaigning for or against candidates in partisan elections
• Giving speeches for candidates in partisan elections
• Holding office in political parties or clubs

Thus far, the Trump Administration has given no indication that it will take any action against Conway.