The Hatch Act, which protects the executive branch from partisan exploitation by prohibiting federal employees from using their official authority or influence to affect elections, has long had a loophole: White House staff violations were reported to the president, who could determine whether an employee would receive any discipline. During the Trump administration, despite more than 100 Hatch Act complaints filed with the OSC against senior members of the administration, none of OSC’s citations resulted in any discipline, including when OSC explicitly recommended removal for a senior White House staff member found to have repeatedly violated the law.
But in a historic step on May 20, 2024, the Office of Special Counsel (OSC) released an advisory opinion stating that the office will now pursue disciplinary action with the Merit Systems Protection Board (MSPB) against White House officials for violations of the Hatch Act.
The pitfalls of OSC’s previous policy of exclusively reporting White House staff violations to the president were starkly illustrated by the Trump administration’s unprecedented defiance of the 85 year old law, an attitude and course of conduct that led CREW to file dozens of complaints with OSC. These complaints, coupled with the former administration’s galling unwillingness to comply with the law, led to an unprecedented number of Trump White House employees being cited for violating the Act including an unprecedented thirteen Trump White House employees later being cited for violating the law in the lead up to the 2020 election. OSC also took the unprecedented step of explicitly recommending removal for a senior White House staff member found to have repeatedly violated the law.
That’s because of OSC’s previously incorrect interpretation of the law. In general, the Hatch Act protects the executive branch from partisan exploitation by prohibiting federal employees from “us[ing] [their] official authority or influence for the purpose of interfering with or affecting the result of an election.” In practice, this means that federal employees must refrain from certain political behaviors, including using their official title or position while engaged in political activity, fundraising for a political party or candidate, and even using their official social media accounts to post political messages. For normal government employees, the OSC pursues alleged Hatch Act violations before the MSPB, which in turn may impose disciplinary action ranging from a reprimand to removal from federal service. Rank and file government employees are routinely disciplined for violations, but presidentially appointed, Senate-confirmed employees must be reported to the president for discipline because of an exemption granted by Congress. However, until recently, White House employees who are not Senate confirmed also received special treatment: their infractions were not brought before the MSPB. Rather, OSC, in a deeply misguided understanding of a 1978 Office of Legal Counsel opinion, relied on the president to impose discipline. This policy allowed the Trump White House to completely disregard the law, as the former president refused to discipline his advisors, who routinely and flagrantly violated the Hatch Act.
OSC’s powerlessness in the face of presidential obstruction was particularly evident in its inability to hold former Counselor to the President Kellyanne Conway accountable for her many public statements about political candidates, both in person and on her Twitter account. CREW filed numerous complaints with OSC detailing dozens of violations, and Conway even repeatedly mocked the law, saying, for instance, “[i]f you’re trying to silence me through the Hatch Act, it’s not going to work” and “[l]et me know when the jail sentence starts.” However, OSC failed to act for months. Finally, in a historic decision, Special Counsel Henry Kerner formally recommended to President Trump that Conway be removed from federal service. OSC’s scathing report stated that Conway’s “actions erode the principal foundation of our democratic system—the rule of law” and that “[i]f Ms. Conway were any other federal employee, her multiple violations of the law would almost certainly result in her removal from her federal position by the [MSPB].” President Trump, of course, refused to listen to OSC and Conway maintained her White House position.
That’s why OSC’s latest shift in enforcement is so important. Though Conway and other members of the Trump Administration ultimately did not face disciplinary action for their repeated violations of the Hatch Act, OSC now appears committed to ensuring that will never again be the case. Moreover, it is yet to be seen whether Conway is fully out of the woods: OSC’s advisory opinion also states that it will now bring MSPB cases against former employees in “appropriate cases” involving “material misconduct.” Arguably there is no more appropriate case involving material misconduct than Conway, whose violations the OSC described as being “persistent, notorious, and deliberate” and as having “created an unprecedented challenge to this office’s ability to enforce the Act[.]”
