At a time when government employees at all levels are coming under fire for their salaries, benefits and collective bargaining rights, this may not be the best environment to press for even more public workers' rights. But that is exactly what Carolyn Lerner, head of the U.S. Office of Special Counsel, is doing.
The Office of Special Counsel is the federal agency charged with enforcing the Hatch Act, which was enacted 72 years ago to prohibit federal executive branch employees from engaging in political activities in the government workplace and during work hours. Soon after its enactment, the law was extended to cover also state and local employees whose duties are "in connection with" programs financed with any federal funds. Today, with the proliferation of federal social welfare and law enforcement programs that implicate state and local governments, the reach of the Hatch Act has become so expansive that the special counsel is seeking to curtail it. So rare is it for a federal agency to lobby to limit its own jurisdiction that conservatives and libertarians may be wary of this effort as a potential stalking horse for some ulterior agenda.
In a recent New York Times op-ed, Ms. Lerner highlighted the law's prohibition on many state and local employees running for partisan elected positions. For example, a Pennsylvania transit police officer was prohibited from running for school board as a Republican because his bomb-sniffing dog was funded through a Department of Homeland Security grant. Similarly, a local port authority accountant was prohibited from running for county government as a Democrat because his agency received federal stimulus funds. Ms. Lerner has proposed legislative amendments to permit all state and local employees to run for partisan state and local offices.
At first blush, some on the right may suspect the special counsel's proposal is a political payoff to the public-sector unions. After all, the effect of the change would be to give public workers even more political clout. However, such concerns are probably unfounded. To the extent that the current Hatch Act does not prohibit state and local employees from engaging in other political activities, they are already permitted to campaign for all sorts of left-wing causes. Moreover, government employees at all levels are also already permitted to run for nonpartisan elected positions. The law's distinction between permitting employees to campaign for others' elections and for nonpartisan positions, but not to run for partisan office themselves, seems untenable.
Moreover, while conservatives and libertarians may generally believe that candidates with private-sector experience are better suited for elected office than government bureaucrats, it is difficult to justify imposing affirmative legal burdens on the latter group's political rights. And let's not forget the affront to federalism inherent in a federal law purporting to limit eligibility for state and local elections.
In fact, the Hatch Act's burden on state and local elected office has long been noted. Earlier this year, well before the Special Counsel got involved, a bipartisan group in Congress introduced a bill to exempt law enforcement officers from the Hatch Act to permit them to run for sheriff. While the merits are greater for granting a dispensation for sheriff elections (in which public-sector experience is more appropriate), it is difficult to justify exempting certain groups of employees from the law but not others. As the law is written, public school employees are already exempt from the prohibition on running in partisan elections. Adding more carve-outs will tend to create additional favored classes of government employees, and that hardly seems right.
All this is not to say Ms. Lerner's proposed amendment to exempt unconditionally all state and local government employees from the Hatch Act is without fault. Unlike the way the statute is written for federal employees, the law currently does not explicitly prohibit state and local employees from engaging in political activities while using federal funds or resources. Should the special counsel's recommendations be enacted, there should be a concomitant limitation to this effect. For example, state employees whose positions are funded with federal dollars should be limited to politicking during personal time, and those who use a vehicle purchased with federal funds should be prohibited from using it for any political purpose. Such prophylactic measures flow from the bedrock principle (notwithstanding public campaign financing schemes) that government funds and resources should not be used for political activity.
Given the plethora of more pressing concerns, it is debatable whether Hatch Act reform should be at the top of the legislative agenda. But it is certainly an issue worth looking at, and should Congress decide to do so, it should ensure that any loosening of restrictions be accompanied by appropriate safeguards to prevent public employees from misusing government resources for politics.
Eric Wang is a political law attorney and, as a current federal employee, is subject to the Hatch Act.
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