William V. Luneburg
The Hatch Act of 1939 (53 Stat. 1147) restricted the ability of federal, or civil service, employees to participate in partisan political life. The goal of the act was to ensure that the civil service would remain politically neutral and efficient. However, many believed that the restrictions infringed on the constitutional rights of federal employees. In 1993 Congress adopted amendments to the act: "It is the policy of Congress that employees should be encouraged to exercise fully, freely, and without fear of penalty or reprisal, and to the extent not expressly prohibited by law, their right to participate or to refrain from participating in the political processes of the Nation." Those amendments are the latest in a series of attempts to respect the constitutional rights of government employees, in particular the rights to speak, organize, and act peacefully to carry out their personal political views, while at the same time ensuring that the public administration of government is carried out in a neutral and efficient manner.
As early as the presidency of Thomas Jefferson, the political activities of federal employees were restricted in the name of effective government. By executive order, the officers of government could not attempt "to influence the votes of others [or] take any part in the business of electioneering." Later administrations adopted similar restrictions in an effort to foster political neutrality. The Civil Service Act of 1883 (known as the Pendleton Act) limited the influence of party politics in the appointment of federal employees. That act was designed to ensure that the civil service was not used for political purposes.
In the years following the Pendleton Act, many continued to see political activity by federal employees as a problem. In 1907 President Theodore Roosevelt required that civil service rules be adopted to prevent anyone in the civil service from using his or her official authority or influence to interfere with an election. Such rules also forbid employees appointed to their positions on the basis of examinations (such employees were called the "classified" service) from taking part "in political management or in political campaigns." Employees could, however, express "privately" their own political opinions.
In thousands of cases decided over the next thirty years, the Civil Service Commission (established by the Pendleton Act) developed a body of law that attempted to distinguish between, on the one hand, prohibited political activity
The experience over this same period, including the 1938 election, when it was alleged that President Franklin Roosevelt exploited certain government workers for political purposes, persuaded Congress in 1939 to adopt the 1907 civil service rule as the Hatch Act. The Hatch Act (named after Senator Carl A. Hatch of New Mexico) extended the rule to apply to the entire civil service other than high policy-making officials. Removal from office was the designated penalty for violation. In 1940 the act's restrictions were extended to state and local employees whose jobs were funded by federal money (54 Stat. 767). The Civil Service Commission was designated to enforce the Hatch Act restrictions. In 1950 and 1962, the penalty for violations was reduced from removal from office to a thirty-day suspension without pay.
In two cases, United Public Workers of America v. Mitchell (1947) and United States Civil Service Commission v. National Association of Letter Carriers (1973), the Supreme Court rejected constitutional challenges to the Hatch Act. The Court found that Congress could reasonably believe that the restrictions were necessary to ensure neutral and effective public administration. In doing so, it noted that executive branch employees "should administer the law in accordance with the will of Congress, rather than in accordance with their own or the will of a political party."
The Court also noted that the immediate reason for the enactment of the Hatch Act was the fear that a large federal workforce unrestrained in its political activity could become "a powerful, invincible, and perhaps corrupt political machine." (In fact such a prospect struck fear into Republicans during the Roosevelt administration.) Finally, the Court emphasized the concern that, without the Hatch Act restrictions, advancement in government service might occur less because of excellence on the job and more because of the political views of employees. Critics faulted the Court for its apparent failure to put enough weight on the First Amendment right to political speech, a right that is afforded the highest of protections outside the context of government employment.
In 1974 Hatch Act restrictions on state and local government were watered down, and in 1993 the advocates for removing or reducing restrictions on the political activities of federal employees carried the day. The Hatch Act Reform Amendments of 1993 (107 Stat. 1001) removed the prohibition on participation in "political management or political campaigns." Federal employees are still forbidden, however, to use their authority to affect the results of an election. They are also forbidden to run for office in a partisan election, to solicit or receive political contributions, and to engage in political activities while on duty or on federal property. The Merit Systems Protection Board and its Office of Special Counsel are responsible for enforcement of the Hatch Act.
See also: CIVIL SERVICE ACTS.
Eccles, James R. The Hatch Act and the American Bureaucracy. New York: Vantage Press, 1981.
Emerson, Thomas I. The System of Freedom of Expression. New York: Vintage Books, 1971.
Rosenbloom, David H. Federal Service and the Constitution. Ithaca, NY: Cornell University Press, 1971.
U.S. Office of Special Counsel. "Political Activity (Hatch Act)." <http://www.osc.gov/hatchact.htm>.
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