Federal Restrictions on State or Local Government Officer or Employee Political Activities
Federal Restrictions on State or Local
Government Officer or Employee Political
Activities
Barbara L. Schwemle
Analyst in American National Government
Government Division
Summary
Political activities of federal employees are regulated by the Hatch Act.1 In 1940,
the law was amended to cover certain state (including territories or possessions) or local
government officers or employees. All but three of the prohibitions on political activity
by these individuals were removed in 1974. Enforcement provisions were added in2
1978. Legislation is pending in the House of Representatives in the 105th Congress
to repeal the provision prohibiting state or local government officers or employees from
seeking elective office.
Employees Covered
The Hatch Act covers state or local government officers or employees who are
"employed by a State or local agency [and] whose principal employment is in connection
with an activity which is financed in whole or in part by loans or grants made by the
United States or a Federal agency."3 An individual who exercises no functions in
connection with that activity is not covered. According to the Office of Special Counsel
(OSC),4 when an employee holds two or more jobs, principal employment is usually
1 5 U.S.C. 7321-7326. The law was originally enacted in 1939, and subsequently amended, most
recently in 1993.
2 54 Stat. 767-772; 5 U.S.C. 1501-1508. The 1974 amendments appear at 88 Stat. 1290. The
3 5 U.S.C. 1501(4). See also, U.S. Civil Service Commission, Political Activity Reporter,
(Washington: GPO, 1982), pp. 1-9. State or local agency means the executive branch of a state,
municipality, or other political subdivision of a state, or an agency or department thereof.
Federal agency means an executive agency or other agency of the United States, but does not
include a member bank of the Federal Reserve System.
4 The Office of Special Counsel (OSC) investigates and prosecutes violations of the Hatch Act
(continued...)
deemed to be the job that accounts for more work time and earned income than any other
job. Employees subject to the Hatch Act continue to be covered while on annual leave,
sick leave, leave without pay, administrative leave, or furlough.
The Hatch Act does not cover an individual employed by an educational or research
institution, establishment, agency, or system that is supported in whole or in part by a
state or political subdivision thereof, or by a recognized religious, philanthropic, or
cultural organization.5 The OSC has determined that the law applies to employees of
private, nonprofit organizations which plan, develop, and coordinate federal Head Start
or Economic Opportunity programs. Employees of certain private, nonprofit single
purpose organizations that receive federal assistance are covered only by the prohibitions
against soliciting contributions or using official authority to influence or interfere with the
outcome of elections or nominations. Among programs that frequently receive financial
assistance from the federal government are public health, public welfare, housing, urban
renewal and area redevelopment, employment security, labor and industry training, public
works, conservation, agricultural, civil defense, transportation, anti-poverty, and law
enforcement.
District of Columbia (D.C.) government officers or employees, other than the mayor
or a member of the Council of the District of Columbia or the Recorder of Deeds, are
covered by the Hatch Act provisions for federal employees.6 D.C. government
employees numbered 41,500 as of December 31, 1995. According to the 1990 Census,
there were 61,970 federal employees residing in the District. Under the Hatch Act,
individuals in certain designated localities may take an active part in political
management and political campaigns involving the municipality or other political
subdivision in which they reside. Although the Office of Personnel Management includes
D.C. in the list of designated localities, the United States District Court for the District
of Columbia determined in a 1980 unpublished memorandum opinion that the designation
is not applicable to D.C. because less than 50% of its voters are employed by the United
States government.7 Consequently, the OSC determined that federal and D.C.
government employees who reside in the District are fully covered by the Hatch Act and
may not participate actively in local partisan campaigns.
4 (...continued)
and renders advisory opinions on the law. The Civil Service Commission, forerunner of OPM,
had primary responsibility to enforce the Hatch Act prior to 1979. With enactment of the Civil
Service Reform Act of 1978, the OSC was created as an independent office of the Merit Systems
Protection Board. In 1989, the OSC was established as an independent agency under the
Whistleblower Protection Act of 1989, P.L. 101-12, 103 Stat 16 at 19.
5 The Hatch Act was amended in 1942 to provide such. 56 Stat. 986, 5 U.S.C. 1501(4)(B).
6 107 Stat. 1001-1011; 5 U.S.C. 3303 and 7321-7326. In the 104th Congress, D.C. Delegate
Eleanor Holmes Norton introduced H.R. 3918, which would have treated D.C. government
employees the same as state and local government employees under the Hatch Act. The bill was
referred to the Committee on Government Reform and Oversight.
7 Ward Three Democratic Committee v. United States, D.C. D.C. No. 78-853, August 29, 1980
Statutory Provisions
State or local officers or employees covered by the Hatch Act may not:
!use their official authority or influence for the purpose of interfering with
or affecting the result of an election or a nomination for office;
!directly or indirectly coerce, attempt to coerce, command, or advise a
state or local officer or employee to pay, lend, or contribute anything of
value to a party, committee, organization, agency, or person for political
purposes; or
!be candidates for elective office.8
Such officers or employees retain the right to vote as they choose and to express
opinions on political subjects and candidates. Nor does the prohibition on candidacy for
elected office apply to (1) governors or lieutenant governors, or individuals authorized by
law to act as governors; (2) mayors; (3) duly elected heads of state or municipal executive
departments who are not classified under merit or civil-service systems; or (4) individuals
holding elected office. State or local officers or employees are not prohibited from being
candidates in any nonpartisan election. OPM regulations define this as one in which none
of the candidates nominated or elected represents parties any of whose candidates for
presidential elector received votes in the last preceding election at which presidential
electors were selected.9
Any federal agency making a loan or grant of U.S. funds to a state or local officer
or employee for an activity must report to the Special Counsel if it reasonably believes
that the individual has violated the prohibitions against influencing elections or taking
part in political campaigns. If warranted, the Special Counsel then investigates and
presents its findings and any resulting charges to the Merit Systems Protection Board
(MSPB). MSPB fixes the time and place for a hearing and notifies the officer or
employee being charged and the employing agency of the alleged violation. The hearing
may not be held earlier than 10 days after the notice is mailed.
The state or local officer or employee and/or the agency may appear with counsel at
the hearing. After the hearing, MSPB determines whether a violation has occurred; if so,
the Board determines whether the violation warrants removal from the office or job and
notifies the individual and the agency by mail. MSPB imposes a penalty when it finds
that (1) a state or local officer or employee has not been removed from office or
employment within 30 days of receiving its notice that the individual has violated the law
and must be removed; or (2) a removed state or local officer or employee has been
appointed within 18 months to an office or employment in the same state in a state or
local agency which does not receive loans or grants from a federal agency. In such cases,
MSPB orders the federal agency to withhold from its loans or grants to the state or local
agency an amount equal to two years' pay at the rate the individual was receiving when
8 5 U.S.C. 1502.
9 5 U.S.C. 1503; 5 CFR 151.101.
the violation occurred. If the appointment has been made within 18 months to a state or
local agency that receives federal loans or grants, MSPB directs that the withholding be
made from the agency. The order becomes effective 30 days after it has been mailed to
the agency. MSPB may not require an amount to be withheld from a loan or grant
pledged by a state or local agency as security for its bonds or notes if such withholding
jeopardizes payment of the principal or interest.
MSPB may subpena witnesses to attend and testify and produce documentary
evidence relating to any matter concerning political activity of covered state and local
employees. When a subpena is disobeyed, a U.S. court may require the attendance and
testimony of witnesses and the production of documentary evidence. In case of
contumacy or refusal to obey a subpena, the United States District Court within whose
jurisdiction the inquiry is proceeding, may order the person to appear before MSPB, or
to produce documentary evidence if so ordered, or to give evidence concerning the matter
in question. Any failure to obey the court order may be punished as contempt. MSPB
may order testimony to be taken by deposition at any stage of its proceeding or
investigation. A person subpoenaed by MSPB may not be excused from attending,
testifying, or producing documentary evidence because to do so could incriminate or
subject him to a penalty or forfeiture. A person who falsely testifies may be prosecuted
for perjury.
A party aggrieved by an MSPB action may, within 30 days, petition for a review in
the United States District Court for the district in which he or she resides. The start of
proceedings does not stay the order or determination unless the court so orders, and the
officer or employee is suspended from his office or employment while proceedings are
pending. The court reviews the entire record, including questions of fact and law. It may
direct that additional evidence be taken. MSPB may modify its findings or determination
or order because of additional evidence. The modification is filed with the court if
conclusive. The court affirms the determination or order, or the modified action if it is
in accord with law. If it is not, the court remands the proceeding to MSPB with directions
to comply with the law. The court's actions are final, subject to review by the appropriate
United States Court of Appeals, as are those of the court of appeals subject to review by
the United States Supreme Court on certiorari or certification.10
Implementation of the Law
Office of Personnel Management (OPM) regulations implement the law.11 All state
or local officers or employees are free to engage in political activity to the widest extent
consistent with the law and regulations. These include candidacy for the following
positions: public office in a nonpartisan election; officer of a political party; delegate to
a political party convention, member of a national, state, or local committee of a political
party, or any similar position. The regulations restate activities prohibited by law.
10 5 U.S.C. 1504-1508.
11 5 CFR part 151.
The Office of Special Counsel provides guidance on prohibitions against influencing
elections and taking part in political campaigns.12 These include threatening to deny
promotion to any employee who does not vote for certain candidates; requiring employees
to contribute a percentage of their pay to a political fund; influencing subordinate
employees to buy tickets to political fund raising dinners and similar events; and advising
employees to take part in partisan political activity all constitute misuse of official
authority and coercion. Employees holding elected office when appointed to state or local
positions covered by the Hatch Act may continue to serve in the elected positions,
however, they cannot be candidates for reelection in partisan elections. Employees may
accept appointments to fill vacancies in elected public offices while concurrently serving
in state or local positions covered by the Hatch Act, but they should determine from their
agencies whether the appointments constitute a conflict of interest.
Political management activities permitted by the OSC include (1) being a member
of and holding office in political parties, organizations or clubs; (2) attending meetings;
(3) voting on candidates and issues; (4) taking an active part in the management of clubs,
organizations or parties; (5) attending and participating in political conventions and being
a candidate for or serving as a convention delegate, alternate, or proxy; (6) volunteer work
for partisan candidates, campaign committees, parties or party nominating conventions;
(7) campaigning for candidates in partisan elections by making speeches, writing letters
and speeches for candidates, or soliciting voters to support or oppose candidates; (8)
attending political meetings of political organizations and serving on committees that
organize or direct partisan campaign activities; (9) making financial contributions to
parties or organizations; (10) soliciting and collecting voluntary political contributions;
and (11) serving as election officials, clerks, checkers, watchers or as challengers for
parties and candidates in partisan elections.
105th Congress Legislation
H.R. 308, State and Local Employees Bill of Political Rights, which would repeal
the prohibition on state or local government officers or employees seeking elected office,
was introduced by Representative Gerald B. H. Solomon on January 9, 1997. It was
referred to the House Committee on Government Reform and Oversight, Subcommittee
on Civil Service. He introduced similar measures, H.R. 3889 (referred to Committee on
House Administration, Subcommittee on Elections) and H.R. 151 (referred to House
Committee on Government Reform and Oversight, Subcommittee on Human Resources
and Intergovernmental Relations), in the 103rd and 104th Congresses, respectively.
During debate on the 1993 amendments to the Hatch Act covering federal employees,
Representative Solomon stated that his concern "is that the State and local government
employees whose salaries are paid through Federal funds will still not be entitled to the
same constitutional rights as other Americans. ... It is unconscionable that we have denied
12 U.S. Office of Special Counsel, Political Activity and the State and Local Employee,
(Washington: 1996). 12p. The OSC has established telephone numbers (1-800-85-HATCH or
202-653-7143) for employees to receive advice concerning the Hatch Act. Letters may be sent
to the OSC at 1730 M Street, N.W., Suite 300, Washington, D.C. 20036.
a group of citizens the right to participate with a full voice in the political affairs of the
Nation."13
State Laws
Many states have laws, known as "little Hatch Acts" because of their similarity to the
federal law, which restrict political activity by state employees. In 1987, the then House
Committee on Post Office and Civil Service surveyed the Attorneys General of the 13
states which had liberalized their political activity laws since the 1974 amendments to the
Hatch Act. Of 11 responses, none reported adverse reactions to loosening the restrictions
or expressed concern that coercion or impropriety would result. Only Alabama reported
any allegations of coercion, four states reported an increase in political participation by
state employees, and none reported any increase in prosecutions.14
Conclusion
Among the issues that discussions to amend the Hatch Act covering state or local
government officers and employees might be expected to focus on are these: whether the
availability of federal funds mandates political activity restrictions; whether coercion and
patronage would result from a liberalized political activity law; and whether the "little"
Hatch Acts are sufficiently strong to prevent the misuse of government authority.
13 Congressional Record, daily edition, vol. 139, September 21, 1993, p. H6814.
14 U.S. Congress, House Committee on Post Office and Civil Service, Federal Employees
Political Activities Act of 1993, report to accompany H.R. 20, 103rd Cong., 1st sess., H. Rept.