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How should employees respond to the new Hatch Act guidance?

The 1939 Hatch Act is meant to prevent federal employees and certain state and local government employees from unduly interfering with elections. It prohibits, for example, things like intimidation, bribery, and promising benefits to coerce political support or campaign contributions. It also prohibits the use of federal funds, which includes federal workers and buildings, to assist in political campaigns. Federal employees are also forbidden from joining "any political organization which advocates the overthrow of our constitutional form of government."

Recently, the Office of Special Counsel Hatch Act Unit issued new guidance on what constitutes prohibited political activity under the act. While it was no doubt meant to clarify the question, some have found it not only confusing but also partisan.

According to the policy memo sent on Nov. 27, the following activities could violate the Hatch Act, if they are performed in the federal workplace, when on duty, or when invoking official authority:

  • Strong criticism or praise of the administration's policies, to the extent that it is "directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group."
  • Advocating for or against the impeachment of a federal candidate. (Advocating for the impeachment of someone who is not a candidate would not be considered prohibited political activity, but keep in mind that President Trump has announced his candidacy for the 2020 Presidential election.)
  • Activity related to "the resistance" or #Resist, as such activity has "become inextricably linked with" efforts to promote the success or failure of a political party or candidate. The OSC notes that "resistance" activity did not violate the Hatch Act before President Trump announced his candidacy.

In summary, the guidance seems to say that opposing a sitting president's policies does not, in itself, violate the Hatch Act, even when done on the job. However, activity aimed at promoting the success of one candidate or another is prohibited.

A spokesperson for the American Federation of Government Employees said that the guidance "would seem to have a real chilling effect." A chilling effect is when a policy tends to pressure people to avoid lawful speech in addition to the speech it is trying to prohibit.

Federal employees may well be concerned that their legitimate, First Amendment-protected speech could subject them to discipline under the Hatch Act. This guidance does not provide many specifics, other than to avoid advocating for the resistance while you are at work. If you are cited for a Hatch Act violation, it is very important to discuss your situation with an employment law attorney who handles federal employee issues.

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