"HATCH ACT" AND OTHER RESTRICTIONS IN FEDERAL LAW ON POLITICAL ACTIVITIES OF GOVERNMENT EMPLOYEES
CRS Report for Congress
"Hatch Act" and Other Restrictions in
Federal Law on Political Activities of
October 23, 1998
American Law Division
Congressional Research Service ˜ The Library of Congress
This report discusses and summarizes the restrictions on permissible political activities by
civilian employees in the executive branch of the Federal Government, under the provisions
of the law commonly known as the "Hatch Act," as amended and replaced by the "Hatch Act
Amendments of 1993," and under other provisions of federal law. The "Hatch Act" covers
generally only civilian employee in the executive agencies and departments. For related
information on permissible activities of congressional employees, see CRS. Report 96-184.
"Hatch Act" and Other Restrictions in Federal Law
on Political Activities of Government Employees
Most federal officers and employees are now generally free to engage in a broad
range of partisan political activities on their own "free time" or "off-duty" hours. The
provisions of the "Hatch Act Amendments of 1993" removed most of the restrictions
on voluntary, free-time activities by federal employees in the executive branch of
Government for or on behalf of partisan candidates or political parties, while
providing more express prohibitions regarding on-the-job politics in federal offices.
Employees in the executive branch of the Federal Government are, however, still
restricted by the "Hatch Act" provisions in several specific activities. All officers
and employees in the executive branch, other than the President and Vice President,
are still generally restricted in the following ways:
(1) They may not use their "official authority or influence for the purpose
of interfering with or affecting the result of an election."
(2) They are generally restricted from soliciting, accepting or receiving
political campaign contributions from any person.
(3) They may not run for elective office in most "partisan" elections.
(4) They are prohibited from soliciting or discouraging participation in any
political activities by a person who has an application for a grant, contract
or other funds pending before their agencies, or is the subject of an
ongoing audit or investigation by their agencies.
(5) They are generally prohibited from engaging in partisan campaign
activity on federal property, on official duty time, while wearing a
uniform or insignia identifying them as federal officials or employees, or
while using a government vehicle.
Certain federal employees in specified executive agencies, generally those
dealing with law enforcement or national security, are still subject to more restrictive
provisions, similar to the old Hatch Act, which broadly bar such employees from
taking an active part in partisan political activities even on their own, off-duty hours.
The Hatch Act statute applies only to civilian officers and employees of the
executive branch of the Federal Government. Members of the uniformed services
are subject to the military's own restrictions issued as a Department of Defense
Directive, No. 1344.10. Employees of the legislative and judicial branches of the
Federal Government do not come within the restrictions of the Hatch Act, although
some other provisions of federal law, such as the criminal restrictions on campaign
contributions and solicitations, generally apply to all federal officers and employees.
Rules and rulings governing congressional employees are discussed in another
C.R.S. Report, No. 96-184, "Campaign Activities by Congressional Employees."
State or local governmental employees whose principal employment "is in
connection with an activity which is financed in whole or in part" by federal funds,
come within a particular part of the "Hatch Act." Such State and local employees are
prohibited from running for office in a partisan election; using their official authority
to influence an election; or attempting to coerce a state or local employee to make
a political contribution.
Coverage Under the Hatch Act.......................................3
Employees Still Under Strict "No Politics" Rule......................4
Persons Who are Not Federal Employees...........................5
Activities Restricted by the Hatch Act.................................6
Use of Official Authority/Coercion................................6
Fund Raising Activities and Political Contributions...................6
Hatch Act and Campaign Funds..............................6
Campaign Contributions and Criminal Prohibitions...............8
Candidacy For Public Office.....................................9
Holding Public Office.........................................10
Soliciting or Discouraging the Participation in Elections..............11
Politics "On Duty" or in Government Workplace....................11
Use of Federal Funds, Facilities Generally.............................13
State and Local Governmental Employees.............................16
Hatch Act Interpretation and Enforcement.............................17
Summary List of Permitted and Prohibited Political Activities for Federal Employees
Under the "Hatch Act".........................................18
Permissible Political Activities..................................18
Prohibited Political Activities...................................19
APPENDIX: Text of Hatch Act Statute................................20
"Hatch Act" and Other Restrictions in
Federal Law on Political Activities
of Government Employees
Although many restrictions were relaxed in 1993, federal employees in the
agencies and departments of the executive branch of the Government, including also
postal workers, are still subject to certain limitations on their partisan political
activities, even during their off-duty, personal time. Certain public employees in
State and local governmental agencies, when their duties involve federally funded
activities, are also covered by some federal restrictions on political activities.
Employees in the executive branch of the Federal Government have for more
than a century lived with certain statutory and regulatory limitations and restrictions
upon their partisan political activities.1 A general, over-all ban on even voluntary,
off-duty participation in partisan politics by merit system employees was instituted2
by an Executive Order of the President in 1907. Known as Civil Service Rule 1, this
restriction and all of the administrative interpretations under it, were eventually
codified in 1939 and made applicable to most executive branch employees in the law3
commonly called the "Hatch Act." State and local government employees whose
official jobs are connected with activities that are federally funded have, since 1940,
also come within the purview of a part of the federal "Hatch Act" law regarding4
partisan political activities.
The "Hatch Act" and civil service restrictions were seen in some respects as
protections of federal employees from coercion from higher level, politically
1Note Act of August 15, 1876, ch. 287, §9, 19 Stat. 169; and "Pendleton" Civil Service
Act, 22 Stat. 403 (1883), concerning political contributions and political coercion. As early
as 1801, President Thomas Jefferson had urged the principle of political neutrality for federal
employees. See discussion in Vaughn, "Restrictions on the Political Activities of Public
Employees: The Hatch Act and Beyond," 44 George Washington University Law Review
2Executive Order No. 642, June 3, 1907, amending Civil Service Rule I, which had
been adopted originally in 1883 after passage of the Pendleton Act. The Executive Order
of 1907 provided that persons in the "competitive classified service ... shall take no active
part in political management or in political campaigns."
3Public Law 252, 76th Congress, 53 Stat. 1147 (1939).
4Public Law 553, 76th Congress, 54 Stat. 767 (1940), see now 5 U.S.C. §§ 1501 et seq.
appointed supervisors to engage in political activities against their will,5 as well as
an effort by Congress and the Executive to assure a non-partisan and evenhanded
administration of federal laws and programs.6 With the advent of the modern, more
independent and merit-based civil service,7 and the adoption of increased statutory
and regulatory protections of federal employees against improper coercion and
retaliation,8 the need for a broad ban on all voluntary, outside activities in politics as
a means to protect employees was seen as less necessary, and as more restrictive of
the rights of private expression of millions of citizens than was needed to accomplish
the goals of the Hatch Act.9 The 1993 Hatch Act Amendments thus removed many
of the most restrictive limitations in federal law on employees' personal, off-duty
voluntary activity, speech and expression, while at the same time provided more
express statutory prohibitions on work place politicking.
In 1993, the provisions of Hatch Act were significantly amended by the "Hatch
Act Amendments of 1993" to allow most federal employees to engage in a wide
range of voluntary, partisan political activities on their own free time, away from10
their federal jobs and off of any federal premises. While most federal officers and
employees may now generally engage in partisan political activities on their own
"free time" or "off-duty" hours, federal employees in the executive branch of the
Federal Government are still restricted by the "Hatch Act" provisions in several
All officers and employees in the executive branch, other than the President and
Vice President, are still generally restricted in the following ways:
5Senate Report No. 1, 76th Congress, 1st Session (1939). The investigative hearings and
report focused on the abuses of the merit system and use of public work relief funds
(W.P.A.) to coerce political activities, loyalty and contributions from workers. Note
discussions in Bolton, The Hatch Act, A Civil Libertarian Defense, American Enterpriserdst
Institute, at 2-3, 9-16 (1976), and H.R. Rpt. 103-16, 103 Congress, 1 Session, 7-13 (1993).
6United Public Workers, C.I.O. v. Mitchell, 330 U.S. 75, 94-103 (1947); and United
States Civil Service Commission v. National Association of Letter Carriers, AFL-CIO, 413
U.S. 548, 564-567 (1973), upholding Hatch Act against First Amendment challenge.
7The percentage of merit system civil service employees grew from 10% of the federal
workforce at the time of the passage of the Pendleton Civil Service Act in 1883, to 32 % of
the federal workforce at the time of the passage of the Hatch Act in 1939, to the current
figure of more than 80% of all federal workers being in the competitive civil service. See
29, 94 Congress, 2d Session, "History of Civil Service Merit Systems of the United States
and Selected Foreign Countries," at 8 (1976).
8See, for example, 5 U.S.C. § 2302, added by the Civil Service Reform Act of 1978,
and 5 U.S.C. §§ 1201 et seq. and 1211 et seq., creating Merit Systems Protection Board and
Office of Special Counsel. Note also the emergence of employee protections through
recognized bargaining representatives and statutorily required grievance procedures. 5
U.S.C.§§ 7111 et seq., and 7121 et seq.
9H.R. Rpt. 103-16, supra at 5-15 (1993).
10P.L. 103-94, October 6, 1993; 5 U.S.C. §§ 7321 et seq. Some employees of
designated agencies and departments are still restricted in participating in even voluntary,
off duty political activities. 5 U.S.C. § 7323(b).
(1) Officers and employees may not use their "official authority or
influence for the purpose of interfering with or affecting the result of an
(2) Officers and employees are generally restricted from soliciting,12
accepting or receiving political campaign contributions from any person.
(3) Officers and employees may not run for elective office in most
(4) Officers and employees are prohibited from soliciting or discouraging
participation in any political activities by a person who has an application
for a grant, contract or other funds pending before their agencies, or is the14
subject of an ongoing audit or investigation by their agencies.
(5) Officers and employees are generally prohibited from engaging in
partisan campaign activity on federal property, on official duty time, while
wearing a uniform or insignia identifying them as federal officials or15
employees, on in a Government vehicle.
State and local governmental employees whose principal employment "is in
connection with an activity which is financed in whole or in part" by federal funds,
come within certain limitations on political activity in another part of the "Hatch16
Act." Such covered State and local employees are prohibited from running for
office in a partisan election; using their official authority to influence an election; or
attempting to coerce a state or local employee to make a political contribution.17
Coverage Under the Hatch Act
The provisions of the Hatch Act Amendments of 1993, in a manner similar to
the basic provisions of their predecessor statutes, apply generally to all civilian
officers and employees in the executive branch of the Federal Government, other
than the President and Vice President. Included also are employees of the District
of Columbia Government, officers and employees of the United States Postal Service18
or the Postal Rate Commission, and employees in positions expressly placed by
statute in the competitive service, even if not in an "executive agency." The breadth
of coverage of the general provisions of the Hatch Act includes, in addition to rank-
and-file employees in the executive branch of the Federal Government, all officials
of the executive agencies and departments, even agency and department heads
appointed by the President with advice and consent of the Senate, as well as all
115 U.S.C. § 7323(a)(1).
125 U.S.C. § 7323(a)(2). See exceptions to prohibition at § 7323(a)(2)(A)-(C).
135 U.S.C. § 7323(a)(3).
145 U.S.C. § 7323(a)(4).
155 U.S.C. § 7324(a). Note exemptions to "on duty" restriction for certain White
House personnel and presidential appointees, discussed below. 5 U.S.C. § 7324(b).
165 U.S.C. § 1501.
175 U.S.C. § 1502(a).
185 C.F.R. § 734.101.
officials, staff and aides in the offices of the President and Vice President.19 Some
prohibitions in the Hatch Act Amendments, such as the restriction on partisan
political activities while "on duty" time, may not apply to certain presidentially
appointed officials and aides, when there is an express exemption in the statute.
The Hatch Act Amendments of 1993 define a covered "employee" to include
individuals employed in or holding office in "an Executive agency" (other than the
General Accounting Office), or in a position "within the competitive service which
is not in an Executive Agency," but expressly exclude "a member of the uniformed
service."20 The permissible and prohibited political activities of military personnel
are governed generally by rules set out in Department of Defense Directive 1344.10.
Furthermore, by definition and design, the Hatch Act does not apply to employees
in the judicial or the legislative branches of the Federal Government.21 Some
provisions of the federal criminal code relating to campaign funds and contributions
apply, however, to all federal officers and employees in all three branches of
Employees Still Under Strict "No Politics" Rule
It should be noted that certain federal employees in specified executive agencies
are not included in the more "relaxed" Hatch Act rules enacted in 1993, and still
come under more restrictive provisions similar to the former "no politics" rule of the
original Hatch Act. These employees are generally in agencies which deal with law
enforcement or national security matters. Such employees may not "take an active
part in political management or in political campaigns," and are subject to the "no23
politics" rule even while "off duty" or away from their official jobs or workplace.
Employees who remain subject to the old Hatch Act-type of prohibition include
those employees who are not appointed by the President with the advice and consent
of the Senate in the following agencies: the Federal Election Commission, the
Federal Bureau of Investigation, the Secret Service, the Central Intelligence Agency,
the National Security Council, the National Security Agency, the Defense
Intelligence Agency, the Merit Systems Protection Board, the Office of Special
Counsel, the Office of Criminal Investigation of the Internal Revenue Service, the
19Employees in the Office of the President, including those employed directly in the
White House, have historically come within the general provisions of the Hatch Act since
its enactment in 1939, although some were expressly exempt from the strict "no politics"
portion of Section 9(a) of the original Act. See debates on Hatch Act and Dempsey
Amendment concerning the President's staff in the White House office, 84 Congressional
Record 9596-9639, 76th Congress, 1st Sess., July 20, 1939; note 1 Op. O.L.C. 54
(1977)[Vice Presidential staff]; see discussion by Office of Personnel Management, 59
Federal Register 48769, September 23, 1994.
205 U.S.C. § 7322.
21Positions not in an "executive agency" are not covered by the Hatch Act unless such
positions are expressly included in the competitive service by statute.
22For a discussion of the guidelines and rules for congressional employees, see CRS
Rpt. No. 96-184A, "Campaign Activities By Congressional Employees," February 28, 1996.
235 U.S.C. § 7323(b)(2).
Office of Investigative Programs of the United States Customs Service, the Office
of Law Enforcement of the Bureau of Alcohol, Tobacco, and Firearms; employees
who are career Senior Executive Service appointees (5 U.S.C. § 3132(a)(4));
administrative law judges (5 U.S.C. § 5372); contract appeals board members (524
U.S.C. § 5372a); and staff of the Criminal Division of the Department of Justice.
Persons Who are Not Federal Employees
The Hatch Act provisions of federal law which apply to federal employees in
the executive branch of the Federal Government, apply only to government
employees, and do not restrict the political activities of private individuals who may
work for or be employed in private businesses, organizations or entities which are
contractors or grantees of the Federal Government. The restrictions on federal
executive branch employees generally do not follow federal contract or grant funds
to restrict the personal political activities of the individuals who are or who work for
recipients of such funds. Similarly, the Hatch Act provisions which relate to the
permissible political activities of a "State or local officer or employee," generally
apply only to State or local governmental personnel who work on federally funded
projects, and do not apply on their face to personnel who work for private, non-profit
or business organizations merely because they receive federal grant or contract
monies.25 In certain circumstances, and under some programs, it is possible that
certain non-profit organizations which are funded under a particular federal program
might, under federal statutory law, be expressly designated in the law establishing
that program as "State or local" governmental agencies for purposes of those Hatch26
Act provisions. It may be noted that, as opposed to restrictions on individuals,
there are general restrictions on the use of federal funds for political purposes which
generally follow such funds to private recipients under federal programs.27
245 U.S.C. §7323(b)(2),(3).
25See discussion of federal restrictions on State and local governmental personnel
whose employment is in connection with a federally funded activity, see pp. 16-17, infra.
26Note restrictions on "staff attorneys" of recipients of funds from the Legal Services
Corporation, 42 U.S.C. § 2996e(e)(2); 45 C.F.R. Part 1608. It may be noted that the law
establishing the Community Services Block Grant Program had at one time expressly
provided that any private non-profit agency "receiving assistance under this chapter which
has responsibility for planning, developing, and coordinating community antipoverty
programs shall be deemed to be a State or local agency" for the purposes of the portion of
the Hatch Act at chapter 15 of title 5, United States Code. That provision, however, was
repealed by the Hatch Act Amendments of 1993. P.L. 103-94, § 6.
27Federal Acquisition Regulations [FAR], 48 C.F.R. § 31.205-22. OMB Circular A-
Activities Restricted by the Hatch Act
Use of Official Authority/Coercion
A provision of the new Hatch Act, in a fashion similar to the former law,
prohibits any officer or employee in the executive branch of the Federal Government
from using his or her official position, authority or influence to affect the results of28
an election. This provision has generally been directed at coercive activities,
including the coercion by federal supervisory personnel of those employees whom
they supervise to engage in partisan political activities.29 The request or direction by
a supervisor to an employee he or she supervises to engage in partisan political
activity, or to use resources, time or supplies in such activity may, therefore,
implicate this section of the Hatch Act on use of official authority, particularly30
because of the inherently coercive nature of the supervisor-supervisee relationship.
The new Hatch Act Amendments also have added an explicit criminal provision
which prohibits any person from intimidating, threatening or coercing or attempting
to coerce any covered federal employee to engage in or refrain from political
activity, to support or oppose a candidate, or to make or not to make a political
Fund Raising Activities and Political Contributions
All federal officials and employees in the executive branch, other than the
President and Vice President, are now substantially restricted in the permissible
political fund raising activities in which they may engage. Employees are generally
free to make political contributions, however, to candidates, committees and political
parties of their choice.
Hatch Act and Campaign Funds. The new Hatch Act Amendments expressly
provide that no officer or employee in the executive branch of Government, other
285 U.S.C. § 7323(a)(1); under former law, see 5 U.S.C. § 7324(a)(1) (1988 ed.).
29"Section 2, clause second, of the Civil Service Act directs that the civil-service rules
`shall provide and declare as nearly as the conditions of good administration will warrant,
as follows: ... Sixth. That no person in said service has any right to use his official authority
or influence to coerce the political action of any person or body.' In pursuance of this
section, Civil Service Rule IV, section 4.1 provides, in part, that `Persons in the executive
branch ... shall not use their official authority or influence for the purpose of interfering with
an election or affecting the results thereof.' This provision applies to all persons in the
executive civil service, and is held to prohibit a superior officer from requesting or requiring
the rendition of any political service or the performance of political work of any sort by
subordinates." Political Activity of Federal Officers and Employees, U.S. Civil Service
Commission, Pamphlet 20, at p. 23 (March 1964).
30See old Hatch Act cases on use of authority, for example, In the Matter of McLeod,
CSC No. S-19-43 (1943), 2 P.A.R. 42; In the Matter of Fleming, CSC No. S-2-43 (1943),
2 P.A.R. 1. Note current regulation prohibiting the solicitation of uncompensated volunteer
services from a subordinate. 5 C.F.R. § 734.303.
3118 U.S.C. § 610, P.L. 103-94, Section 4(c), 107 Stat. 1005.
than the President and Vice President, may "knowingly solicit, accept, or receive a32
political contribution from any person ...." The only exception to the fund raising
restriction expressed in the statute allows for the solicitation of a fellow member of
a federal employee association or federal employee labor organization who is not a33
subordinate, when that solicitation is for a multicandidate political committee.
It should be noted that there does not currently exist any express exception to
the fundraising prohibition for employees in the Executive Office of the President,
nor is there an exception to the fundraising prohibition for heads of agencies or high-
level presidential appointees who require Senate confirmation. In this sense, with
regard to fundraising activities by such persons, it would appear that the new
provisions of the Hatch Act Amendments are more restrictive than the former
provisions which had provided a general exemption to the prohibitions on engaging
in political activities for certain high-level presidential appointees, agency heads and34
staff in the office of the President. The Office of Personnel Management (OPM),
in a discussion preceding the promulgation of its current Hatch Act regulations, notes
that those employees, including presidential appointees and White House staff paid
from appropriations of the Office of the President, who had been covered under the
general prohibitions of the old Hatch Act on misuse of authority but who had been
exempt from the "no politics" section of the old Hatch Act, will now still be covered
under the general misuse of authority language in the Hatch Act Amendments and
will be additionally covered by those new provisions from which they are not
expressly exempt. The additional restrictions on such employees include the
prohibitions on solicitations of political campaign contributions, as well as running
for office in a partisan election, and the encouragement of political activity by those
with matters pending before one's agency:
Subpart E applies to certain employees who are paid from the
appropriation for the Executive Office of the President. It also applies to
an employee who is appointed by the President by and with the consent of
the Senate, whose position is located within the United States, and who
determines policies to be pursued by the United States in relations with
foreign powers or in the nationwide administration of Federal laws. ...
Under the [old] Hatch Act, these employees were covered by the
prohibition against misusing their official authority to interfere with or
affect the result of an election, but they specifically were excluded from
all aspects of the prohibition against active partisan political participation.
In contrast to the [old] Hatch Act, the Amendments subject these
employees to additional prohibitions. Thus, the Amendments prohibit
these employees from running for partisan political office. They also
prohibit these employees from soliciting, accepting, and receiving political
contributions, except under the conditions specified in the Amendments
325 U.S.C. § 7323(a)(2).
335 U.S.C. § 7323(a)(2)(A)-(C); note 5 C.F.R. § 734.208(b).
34See discussion by OPM in 59 Fed. Reg. 48769, September 23, 1994. Note former
5 U.S.C. § 7324(d)(1),(2), and (3) (1988 Code ed.), exempting from political activities
restrictions (other than the misuse of authority), employees paid from the appropriation for
the office of the President, agency heads, and policy making presidential appointees.
and these interim regulations. However, the Amendments specifically
exclude these employees from the prohibition against political
participation while on duty, in uniform, in a room or building occupied in
the discharge of official duties, or in a Government-owned or leased35
As to the specific activities that are prohibited or may be permitted under the
fundraising restriction of the Hatch Act Amendments, the regulations and
interpretations of the Office of Personnel Management note that employees in the
executive branch may attend a campaign fundraiser, may work behind the scenes in
organizing or managing a fundraising event, and may even speak at a fundraising
event, but may not be involved personally in the actual solicitation, acceptance or
receipt of campaign contributions.36 An employee's name may not appear on a
fundraiser invitation "as a sponsor of the fundraiser," but may appear on an invitation
to a political fundraiser "as a guest speaker as long as the reference in no way
suggests that the employee solicits or encourages contributions."37 Furthermore,38
one's "official title" may not be used "in connection with fundraising activities," but
an employee who "is ordinarily addressed using a general term of address, such as
`The Honorable,' may use or permit the use of that term of address for such a39
Campaign Contributions and Criminal Prohibitions. All federal employees
are prohibited by federal criminal law from knowingly soliciting campaign
contributions from other federal employees, unless such solicitation is from a federal
employee covered by the Hatch Act directed to those persons expressly permitted to40
be solicited under the Hatch Act Amendments. Federal criminal law also expressly
prohibits all federal employees from making political contributions to their
employers or employing authority, that is, to their "bosses."41 Amendments to that
criminal provision by the Hatch Act Amendments of 1993, however, now allow
federal employees covered by the Hatch Act to make such political contributions as
long as no Hatch Act violation occurs.42 Prior to 1993 this criminal statute on
making contributions to one's "employing authority" was interpreted to prevent
contributions from rank-and-file employees of the entire executive branch of the
3559 Fed. Register 48769, September 23, 1994.
36See 5 C.F.R. §§ 734.208(b) and 734.303, and examples that follow. Employees may
anonymously stuff envelopes with campaign literature soliciting campaign contributions.
See 59 Fed. Reg. 48767.
375 C.F.R. § 734.303, Example 2; 5 C.F.R. § 734.208, Example 3.
385 C.F.R. § 734.303(c).
395 U.S.C. § 734.208, Example 3.
4018 U.S.C. § 602. Employees may solicit from other federal employees who are
fellow members of employee associations and organizations, if the solicited employee is not
a subordinate of the employee soliciting, and if the solicitation is made for a multicandidate
4118 U.S.C. § 603.
4218 U.S.C. § 603(c), added by P.L. 103-94, Section 4(b), 107 Stat. 1005.
Federal Government to the committee supporting the re-election of the President;43
however, the 1993 Amendments indicate that such contributions are now permitted.
A federal criminal statute which had originated in the Pendleton Civil Service
Act of 1883 currently prohibits anyone from soliciting or receiving political
contributions in official federal office space.44 While the language of the statute is
very broad, the legislative history, interpretation and application of the provision
have been more narrowly focused. In a recent matter involving allegations of
fundraising telephone calls from the office of the Vice President in the White House,
for example, the Attorney General explained that criminal prosecutions under the
statute, which had been adopted originally to protect federal employees from
coercive and bothersome solicitations in their place of work, would generally be
initiated only in the presence of "aggravated" circumstances of violations of the45
law. Although criminal prosecution might not be initiated except in "aggravated"
circumstances, such political activity in a federal building, in federal workspace or
while an employee is "on duty," would, for most employees covered by the Hatch46
Act, constitute a Hatch Act violation.
Candidacy For Public Office
Employees covered under the Hatch Act may not run as candidates for a
"partisan political office." A "partisan political office" is expressly defined in the
law to mean "any office for which any candidate is nominated or elected as
representing" a political party whose candidates received votes for presidential47
elector in the preceding presidential election. The restrictions on being a candidate
for office thus bar a federal executive branch employee from running for "any"
elective public office, that is, even a State, local or county office, which is filled in
an election where "any" of the candidates in the election run as a Democrat or a
43Compare "Memorandum for the Heads of All Departments and Agencies," from Fred
F. Fielding, Counsel to the President, February 14, 1984 and "Memorandum for the Heads
of All Departments and Agencies," from C. Boyden Gray, Counsel to the President,
November 18, 1991, to "Memorandum for the Heads of All Agencies and Departments,"
from Abner J. Mikva, Counsel to the President, May 2, 1995.
4418 U.S.C. § 607.
45Statement of Attorney General Reno, December 2, 1997. "Aggravating" factors
included evidence of "coercion, knowing disregard of the law, a substantial number of
violations, or a significant disruption of government functions." Concerning campaign fund
raising solicitations in the White House, it should be noted that the White House has
historically been considered a personal "residence" as well as an area containing federal
office space for the conduct of official governmental business, and that the Department of
Justice has found, therefore, that certain areas and rooms in the White House, depending on
their use, are outside of the prohibition on campaign fundraising activities in a "room or
building occupied in the discharge of official duties." 3 Op. O.L.C. 31 (1979).
465 U.S.C. § 7324; see discussion below.
475 U.S.C. § 7322(2). Emphasis added.
The Hatch Act does allow a federal employee to run as a candidate in "a non-48
partisan election." However, the regulations make it clear that the election itself
must be "non-partisan," that is, "none of the candidates is to be nominated or elected
as representing" such political parties.49 The statute would, therefore, continue to bar
even an "independent" candidacy by a federal employee in an otherwise "partisan"
In addition to the general exception for candidacies in a non-partisan election,
the Hatch Act provides that regulations issued by the Office of Personnel
Management may establish that employees in certain communities near the
Washington, D.C. metropolitan area, or in other communities where the majority of
voters residing there are federal employees, may participate in certain local political
activities which might otherwise be prohibited, such as the acceptance of political50
contributions and independent candidacies in partisan elections. The Office of
Personnel Management has issued regulations specifying those communities in
which federal employees may be independent candidates even in partisan elections.51
Concerning such races, an employee could receive or accept political contributions
in connection with that election, but would still be prohibited from soliciting
contributions from the general public.52
Holding Public Office
While the "Hatch Act" provisions generally prohibit employees from running
for a partisan elective office, the language of the Act does not prohibit an employee
from "holding" a public office, even an elective public office. An employee, under
the Hatch Act is thus not necessarily prohibited from being appointed to a public
office, or from holding a public office when he or she enters federal service. If the
public office that the federal employee holds is one where the employee must
normally run in a partisan election, however, then the employee may be barred from
running for re-election to that office.
The regulations of the Office of Personnel Management provide that service in
a particular public office (and candidacy for the office where candidacy is permitted
under the Hatch Act) will be allowed only if such service will not "result in neglect
of, or interference with, the performance of the duties of the employee or create a
conflict, or an apparent conflict, of interest."53 The issue of outside or additional
office holding by a federal employee is thus predominately an ethics or "conflict of
interest" issue, generally addressed in standard of conduct regulations concerning
activity, employment or income outside of or additional to one's Government
employment. The standards of conduct for employees in the executive branch of
government have been promulgated by the Office of Government Ethics, and are
485 C.F.R. § 734.207(b).
495 C.F.R. § 734.101. Emphasis added.
505 U.S.C. § 7325. See 5 C.F.R. Part 733.
515 C.F.R. § 733.102(d).
525 C.F.R § 733.102(b).
535 C.F.R. §733.102(c).
codified at 5 C.F.R. part 2635. These provisions, at 5 C.F.R. § 2635.801 et seq., seek
to restrict outside compensation and employment which create a conflict of interest
with one's governmental duties (such that an employee would be required to "recuse"
himself or herself on governmental matters), or which implicate other ethical issues
because of the source of the compensation and/or the duties of the employee
receiving the compensation. It is possible that an agency, by supplemental
regulation, will require an employee to receive prior approval before engaging in54
compensated outside private employment. In any event, an employee considering
appointment to or otherwise running for or holding an additional public office or
position should check with his or her designated agency ethics officer for conflict of
interest or other ethics considerations.
Soliciting or Discouraging the Participation in Elections
The federal Hatch Act law states that employees in the executive branch may
not solicit political participation, or discourage such participation, by anyone who
has any official matter pending before their agencies, that is, from one who "has an
application for any compensation, grant, contract, ruling, license, permit, or
certificate pending before the employing office of such employee," or who is the
subject of "an ongoing audit, investigation, or enforcement action" carried out by the
employee's office.55 It does not appear that the fact that a private entity is merely
regulated by one's agency (or may be affected by rules promulgated by the agency,
or be subject to future audit or investigation) would be enough, in itself, to come
within this restriction on solicitation of participation; rather the law appears to
require a specific matter to be "pending," or an audit, investigation or enforcement56
action to be "ongoing." Under regulations and examples provided by the Office of
Personnel Management, an employee may address a "large, diverse group" to
promote a candidacy even if it may incidentally contain persons in the audience with
matters before the agency "as long as the group has not been specifically targeted as
having matters before the employing office,"57 but an employee should not address
an industry group on a campaign matter if the event is sponsored by, for example, a
lobby group for the industry when the employee knows that companies with matters
before the employee's agency will be in attendance.58
Politics "On Duty" or in Government Workplace
When the Hatch Act restrictions on voluntary, off-duty political activities were
substantially eased for rank-and-file employees of the executive branch in 1993,
more specific and express restrictions on political activities while "on duty," or in
Government offices were instituted. While "on duty," in a federal office, while
545 C.F.R. § 2635.803
555 U.S.C. § 7323(a)(4).
56See 5 C.F.R. 734.305, Example 2: "An employee of the Federal Deposit Insurance
Corporation (FDIC) may not solicit or discourage the participation of an insured financial
institution or its employees if the institution is undergoing examination by the FDIC."
57Id. at Example 1.
58Id. at Example 3.
wearing a Government uniform or while using a Government vehicle, federal
personnel in the executive branch are generally prohibited from engaging in partisan
"political activity."59 Interpretations of the former Hatch Act indicate that behind-
the-scenes activity and assistance (e.g., preparation of political material, research or
analysis intended for the benefit or use of a partisan candidate or political party in
a campaign or an election, or assisting in organizing political campaign events), even
though not overt electioneering, soliciting or canvassing for a candidate, was
nevertheless the type of activity that traditionally constituted partisan "political
There are certain employees in the executive branch of Government whose
duties and responsibilities "continue outside normal duty hours and while away from
the normal duty post." Such employees, when they are paid from appropriations for
the Executive Office of the President, or are officers appointed by the President with
the advice and consent of the Senate who determine policy with regard to foreign
relations or the nationwide administration of federal laws, are under different rules
concerning campaign activity while on duty status or in federal office space. These
employees or officers are generally permitted to engage in political activity while on
duty status or while in federal office space, or while using federal vehicles, under61
most circumstances. It should be noted that this exemption applies only to the
specific prohibition on campaigning while on duty status or while in federal office
space where official work is carried out, and is not a broad exemption of a general
nature from all of the other specific restrictions of the Hatch Act, such as, for
example, the restrictions on using one's official position to influence an election,
soliciting or discouraging political activity from those with matters "pending" or
"ongoing" before one's agency, or the prohibitions on political fundraising. Thus,
for example, although an agency head may participate in a political meeting during
"official hours" within his or her government office without violating this part of the
"Hatch Act," such agency head may still not be involved in soliciting or receiving62
If such an exempt employee does engage in campaign activity during duty time
or in federal offices, however, additional costs which are associated with such
activity and paid for by moneys derived from the United States Treasury must be
595 U.S.C. § 7324. See 5 C.F.R. § 734.306. The type of activity now prohibited "on
duty" would appear to be of the general type formerly prohibited under the old Hatch Act
even on one's own time "off duty," that is, taking "an active part in political management or
in political campaigns." See former 5 U.S.C. § 7324(a)(2) (1988 Code ed.)
60See, for example, "Political Activity and the Federal Employee," Office of Special
Counsel, at 7 (1984), which noted that activity was covered even if the employee did not
come in contact with the public: "The law prohibits direct action to assist partisan candidates
or political parties in campaigns. Thus, covered employees are not permitted to do clerical
work at campaign headquarters, write campaign speeches ....;" see also "Federal Employees
Political Participation," United States Civil Service Commission, GC-46, at 2 (1972) ("work
for a partisan candidate ... is prohibited, whether the work involves contact with the public
615 U.S.C. § 7324(b). See 5 C.F.R. § 734.502.
625 C.F.R. § 734.502, note Example 3; see also 18 U.S.C. § 607 regarding campaign
contributions in federal buildings.
reimbursed within a reasonable period of time and according to a formula expressed63
in the regulations. This is required because, as a general rule, federal funds will not
have been appropriated by Congress to a particular agency, department, or office for
political campaign uses, and may, therefore, not be spent for purposes other than
those for which they were appropriated. Employees paid from appropriations for the
Executive Office of the President, therefore, if they fit within this exemption, may
participate in political activities even during "on duty" time, and while in official
federal office space, as long as any additional cost to the Government from such
political activity is reimbursed from non-federal monies to the Treasury.64
Employees who do not fall within the exempted class are permitted, when not
"on duty," to be involved in campaign or political events which take place in rooms
or portions of the White House which "are part of the private Residence area" of the65
White House and not used solely for "the discharge of official duties." Such
regulation by the Office of Personnel Management concerning treatment of the
White House premises for Hatch Act purposes appears to comport with
interpretations of the Justice Department which have found, as discussed above
concerning campaign fund raising, such areas to be outside of the prohibition on
campaign fundraising activities in a "room or building occupied in the discharge of66
Use of Federal Funds, Facilities Generally
As discussed above, the Hatch Act provides that employees generally may not
engage in partisan politics while on duty, in official Government work space, or with
a Government vehicle. Even those who are exempt from the "on duty" limitations
on campaign activities are expected to reimburse the United States Treasury for the
federal resources used in campaign activities.
As to the use of federal funds and/or facilities for partisan political activities
generally, it should be noted that although there is no overall, express restriction in
federal statutory law on the use of appropriated funds for partisan "political
purposes,"67 general appropriation principles, ethics rules and laws work to bar the
63See 5 C.F.R. § 734.503.
64Costs which would normally have been incurred by the Government regardless of
whether an activity is political do not have to be reimbursed, such as, for example, the cost
of the official compensation of the officer or employee, the cost of official office space, or
of required security. See 5 C.F.R. § 734.503(b).
655 C.F.R. § 734.502(d).
66See 3 Op. O.L.C. 31 (1979), and note 42, supra.
67Within the parameters of the First and Fifth Amendments, Congress may authorize,
and has expressly authorized, the use of federal funds for partisan political purposes. One
example is the federal monies provided to qualifying candidates for President of the United
States for their partisan political campaign use during a primary campaign, and for the
general election campaign for President, under the provisions of the Presidential Election
Campaign Fund Act. See P.L. 92-178, as amended, note 26 U.S.C. §§9001 et seq., and the
use of federal equipment, supplies, office space and funds, generally, for partisan
political use or advantage of candidates or parties. A general appropriations
principle, codified in federal law at 31 U.S.C. § 1301(a), provides that moneys
appropriated by Congress may only be spent for the purposes for which they were68
appropriated. This provision, in practice, would bar the misapplication or misuse
of federal funds by federal agency personnel. As explained by the General
[T]his statute was originally enacted in 1809 (2 Stat. 535) and is one of the
cornerstones of congressional control over the Federal purse. Since money
cannot be paid from the Treasury except under an appropriation (U.S.
Const. art. I, § 9, cl. 7), and since an appropriation must be derived from
an act of Congress, it is for Congress to determine the purpose for which
an appropriation may be used. Simply stated, 31 U.S.C. § 1301(a) says
that public funds may be used only for the purpose or purposes for which
they were appropriated.69
As to the use of appropriated funds for "political" purposes, and the possible
limitation on such use by 31 U.S.C. § 1301(a), GAO explains:
Generally speaking, funds appropriated to carry out a particular program
would not be available for political purposes, i.e., for a propaganda effort
designed to aid a political party or candidate. See B-147578, November
Presidential Primary Matching Payment Account Act, P.L. 93-443, note 26 U.S.C. §§9031
et seq. See Buckley v. Valeo, 424 U.S. 1, 85-109 (1976), upholding "public financing"
provisions of federal campaign law, noting that there is no "establishment" clause with
respect to politics as there is to religion in the First Amendment, and that Congress may "use
public money to facilitate and enlarge public discussion and participation in the electoral
process." Buckley, supra at 92-93. The "public" space of federal buildings, lands or parks
or other federal property may generally be used for private partisan political activities of
candidates or others, as long as such activity does not interfere with the normal official
functions and governmental activities in that building or property. Note General Services
Administration regulations on use of public buildings, at 41 C.F.R. §§ 101-20.305, 20.308,
20.309. See generally, GSA Memorandum for Regional Administrators, "Political Activity
in GSA-controlled Buildings," April 17, 1992. There may, in fact, be constitutional
limitations on the amount of restraint or prohibition that the government may impose over
the free exercise of political speech and activity on or in any area of federal property which
is considered a "public forum." See, for example, United States v. Grace, 461 U.S. 171
(1983); Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983); United
States v. Kokinda, 497 U.S. 720 (1990).
6831 U.S.C. § 1301(a): "Appropriations shall be applied only to the objects for which
the appropriations were made except as otherwise provided by law."
69United States General Accounting Office. Principles of Federal Appropriations
Law, at 4-2 (July 1991).
a use of funds for other than their intended purpose in violation of 3170
U.S.C. § 1301(a).
Federal agencies and departments have discretion to expend federal funds to
promote and to further the legitimate, official governmental objectives of the federal
agency or department, and the programs and policies within their jurisdiction.71
Federal monies may not be expended "merely because some agency official feels it's
a good idea." Rather, the expenditure of such funds must be in conformance with
"their intended purpose," that is, that the expenditure "will contribute to
accomplishing the purpose of the appropriation the agency wishes to charge."72
The Comptroller General has thus looked to activities to determine if they "can
be said to be so completely devoid of any connection with official functions or so
political in nature that [the expenditures] are not in furtherance of purposes for which73
Government funds were appropriated." Where, however, there has been a
"determination" made by the President, cabinet officer, agency head or assistant that
certain activities "are in connection with official duties," the Comptroller General74
would look merely to see if "there is a reasonable basis for such a determination."
There are not necessarily any clear-cut guidelines or hard-and-fast rules about
categorizing an activity as "official" as opposed to "political," other than those
embodied in the discussion above, that is, that the activity has some reasonable
connection with official functions. It may be noted that the issue of whether an
activity is "official" or "political" has arisen from time to time with respect to travel
by the President and Vice President, including the travel of federal officers and
employees accompanying or in advance of the President and Vice President.
Guidance concerning such travel and the expenditure of funds for travel, including
the reimbursement of the Government from campaign funds for "political" travel,
have been given by the Office of Legal Counsel in the Department of Justice.75 The
O.L.C. has noted: "Thus, funds appropriated for the official functioning of the offices
of the President and the Vice President may be used for travel expenses only if the
70Principles of Federal Appropriations Law, supra at 4-178.
71See discussion of "necessary expense" doctrine, in Principles of Federal
Appropriations Law, supra at 4-14 to 4-20, that the "expenditure must bear a logical
relationship to the appropriation sought to be charged," that is, that "it must make a direct
contribution to carrying out either a specific appropriation or an authorized agency function
for which more general appropriations are available." Id. at 4-16.
72Principles of Federal Appropriations Law, supra at 4-16.
73Decision of the Comptroller General, B-147578, November 8, 1962, at 5; see also
B-144323, November 4, 1960, Principles of Federal Appropriations Law, supra at 4-178.
74Decision of the Comptroller General, B-147578, supra at 5: "Consequently, where
a determination is, in effect, made by the President, a cabinet officer or other agency head
or assistant, that certain activities are in connection with official duties and there is a
reasonable basis for such a determination we do not feel that we would be warranted in
questioning the expenses incurred in connection with such activities."
75See 14 Op. O.L.C. 157 (1990); 6 Op. O.L.C. 214 (1982).
travel is reasonably related to an official purpose."76 If travel or other such activities
that are political/campaign-related in nature have been paid for by the Government,
then such expenses should be reimbursed by a campaign committee in the
In addition to the Hatch Act limitations on political activities while on duty or
in a federal office, and the general appropriations principles discussed, it should be
noted that under ethics regulations Government officers and employees in the
executive branch may generally not engage in unofficial, non-governmental activity
with Government resources, that is, personnel may not use appropriated funds, or use
official federal supplies, equipment or official resources, for any activities which are
not "official" Government activities authorized by a department or agency.
Employees are expressly instructed by ethics and conduct provisions to "protect and78
conserve Federal property and ... not use it for other than authorized activities."
Administrative rulings have upheld disciplinary actions against federal employees
who have misused such Government resources as the telephone, copier, or computer
for certain personal business ventures, as opposed to use for official governmental79
activities. In more severe factual circumstances, the use of Government property
or resources for personal, non-official purposes to such an extent that the property
is deemed to have been wrongfully converted to one's private use, or to have been80
stolen, would implicate criminal statutory violations.
State and Local Governmental Employees
In addition to the statutory restrictions on political activities by federal
employees, there are some employees of State and local governmental units that may
come within a certain part of the federal Hatch Act. The federal statutory provision81
commonly known as the "Hatch Act" has, since 1940, placed certain restrictions on
the permissible partisan political activities of State and local governmental
766 Op. O.L.C. supra at 214.
77See, for example, Federal Election Commission regulations at 11 C.F.R. § 9004.7,
and 9034.7; and Office of Personnel Management Regulations for official time and
compensation of staff working on campaign matters, 5 C.F.R. § 734.503 (sometimes referred
to as the "hard time formula.") Note Memorandum for the Cabinet, from Abner Mikva,
Counsel to the President, "Payment of Expenses Associated with Travel by Senior
Administration Officials during the Presidential Campaign," October 18, 1995.
78See Executive Order No. 12674, as modified by E.O. 12731, October 17, 1990,
Section 101(i); 5 C.F.R. § 2634.704.
79See, for example, Barcia v. Department of Army, 47 M.S.P.R. 423 (1991); Cobb v.
Department of Air Force, 57 M.S.P.R. 47 (1993).
80Note, for example, 18 U.S.C. § 641. For a theft or conversion under this statute, the
improper use of the Government's property must be in such a manner that "serious
interference with ownership rights" of the Government would occur. United States v.
Collins, 56 F.3rd 1416,1420-21 (D.C. Cir. 1995).
81P.L. 76-753, 54 Stat. 767, July 19, 1940. See now, 5 U.S.C. §§ 1501 et seq., as
amended by P.L. 93-443, 88 Stat. 1263, October 16, 1974.
employees whose "principal employment is in connection with an activity which is82
financed in whole or in part by loans or grants made by the United States .... " The
Hatch Act provisions cover such individuals working with federally financed
programs who are employed in State or local agencies in the "executive branch of a83
State, municipality, or other political subdivision of a State .... "
For those covered by the "Hatch Act" applicable to an employee of a "State or
local agency," the provisions set out three general restrictions on employees, whether
they are on or off-duty, or on annual leave, sick leave, or other leave from work. The
first two relate to coercive activities, while the third relates to candidacy for office:
1. Employees are barred from using their official authority or
influence to interfere with or affect the results of an election;
2. Employees are prohibited from coercing or advising fellow
employees to make contributions in support of a party or
3. Employees may not be candidates for public office in a
partisan election. 5 U.S.C. § 1502
Hatch Act Interpretation and Enforcement
The provisions of the Hatch Act are interpreted, and complaints of violations
investigated by the United States Office of Special Counsel (O.S.C.), an independent
executive agency.84 Answers to questions about permitted or prohibited political
activity may be requested from the O.S.C. by telephone at 800-85-HATCH (854-
2824), or (202) 653-7143, and written advisories directed to their offices at 1730 M
Street NW, Suite 300, Washington, D.C. 20036. The O.S.C maintains a web site on
the Internet which provides information on and explanations of the Hatch Act and
other matters under their jurisdiction, at http://www.access.gpo.gov/osc/index.html.
The O.S.C. investigates allegations of Hatch Act violations, and if the O.S.C.
believes that disciplinary action is warranted, will prepare a complaint and statement
forwarded to the employee and to the Merit Systems Protection Board (M.S.P.B.).85
The employee is entitled to certain procedural rights in the matter before the
M.S.P.B., including a hearing. The penalties, if a Hatch Act violation is found, are
in the nature of administrative, personnel actions; the maximum penalty for a
violation found by M.S.P.B. is removal from office, while the minimum penalty for
a violation is suspension without pay for 30 days (5 U.S.C. § 7326).
825 U.S.C. § 1501(4).
835 U.S.C. § 1501(2).
845 U.S.C. §§ 1211, 1216.
855 U.S.C. § 1215(a)(1).
Summary List of Permitted and Prohibited Political
Activities for Federal Employees Under the "Hatch Act"
Permissible Political Activities
Most rank-and-file federal employees in the executive branch now may:
!be a member of a political party, group or club and participate in its activities
(5 C.F.R. § 734.204(a));
!serve as an officer of a political party or other political group, or committee,
and run for such party office (5 C.F.R. § 734.204(b));
!attend and participate in nominating caucuses of political parties (5 C.F.R. §
!organize political party groups or organizations (5 C.F.R. § 734.204(d));
!participate in political conventions, rallies or other political gatherings (5
C.F.R. § 734.204(e));
!display pictures, signs, stickers, buttons, or badges of candidates or parties,
as along as one is not on duty, in uniform or wearing a government agency
insignia, or in a government building (an employee may have a bumper
sticker on his or her private vehicle even if parked in a parking lot of a federal
agency) (5 C.F.R. § 734.205(a));
!initiate or circulate nominating petitions (5 C.F.R. § 734.205(b));
!canvass for votes for a candidate or a party (5 C.F.R. § 734.205(c));
!endorse candidates in political broadcasts, campaign literature or other
advertising (5 C.F.R. § 734.205(d));
!address a rally or caucus in support of or opposition to a partisan candidate (5
C.F.R. § 734.205(e));
!take an active part in managing the political campaign of a candidate (5
C.F.R. § 734.205(f));
!serve as a recorder, watcher, or challenger at a polling place (5 C.F.R. §
!serve as an election official, election judge or clerk (5 C.F.R. § 734.206(c));
!drive voters to the polls for a partisan candidate, political party or group (5
C.F.R. § 734.206(d));
!run as a candidate in a nonpartisan election (5 C.F.R. § 734.207(b));
!make a political contribution to a political party or group, campaign
committee of a candidate, or a multicandidate political committee (5 C.F.R.
!attend a political fundraiser (5 C.F.R. § 734.208(b)(1));
!solicit or accept volunteer services from individuals (5 C.F.R. §
Prohibited Political Activities
The restrictions on political activities of federal employees under the Hatch Act
provide that such employees may not:
!use their offices or official authority to influence an election (5 C.F.R. §
!run for office themselves in partisan elections (5 C.F.R. § 734.304);
!solicit or receive campaign contributions from anyone (other than from fellow
labor organization or employee association members who are not
subordinates, for the multicandidate political action committee of the
organization) (5 C.F.R. §§ 734.303(a), 734.208(b)(4));
!solicit contributions in a speech or keynote address given at a fundraiser (5
C.F.R. § 734.303(b));
!allow one's official title to be used in connection with a fundraising activity
(5 C.F.R. § 734.303(c);
!solicit or accept uncompensated volunteer services from an individual who is
a subordinate (5 C.F.R. § 734.303(d));
!solicit or discourage the political participation of individuals who have an
application for any compensation, grant, contract, ruling, license, permit or
certificate with the employee's employing office (5 C.F.R. § 734.305(a));
!solicit or discourage the political participation of individuals who are the
subject of an audit, investigation or enforcement action by one's employing
office (5 C.F.R. § 734.305(b));
!engage in political activity while on official duty, in any federal building or
office, while wearing a uniform or other official insignia, or while using any
government vehicle (5 C.F.R. § 734.306);
!intimidate, threaten, command or coerce any federal employee to engage or
not to engage in any political activity (18 U.S.C. § 610).
APPENDIX: Text of Hatch Act Statute
Title 5, United States Code
§ 7321. Political participation
It is the policy of the Congress that employees should be encouraged to exercise
fully, freely, and without fear of penalty of 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.
§ 7322. Definitions
For the purpose of this subchapter -
(1) "employee" means any individual, other than the President and the Vice
president, employed or holding office in -
(A) an Executive agency other than the General Accounting Office;
(B) a position within the competitive service which is not in an
Executive agency; or
(C) the government of the District of Columbia, other than the Mayor
or a member of the City Council or the Recorder of Deeds;
but does not include a member of the uniformed services;
(2) "partisan political office" means any office for which any candidate
is nominated or elected as representing a party any of whose candidates for
Presidential elector received votes in the last preceding election at which Presidential
electors were selected, but shall exclude any office or position within a political party
or affiliated organization; and
(3) "political contribution" -
(A) means any gift, subscription, loan, advance, or deposit of money
or anything of value, made for any political purpose;
(B) includes any contract, promise, or agreement, express or implied,
whether or not legally enforceable, to make a contribution for any political purpose;
(C) includes any payment by any person, other than a candidate or a
political party or affiliated organization, of compensation for the personal services
of another person which are rendered to any candidate or political party or affiliated
organization without charge for any political purposes; and
(D) includes the provision of personal services for any political
§ 7323. Political activity authorized; prohibitions
(a) Subject to the provisions of subsection (b), an employee may take an active
part in political management or in political campaigns, except an employee may not--
(1) use his official authority or influence for the purpose of interfering
with or affecting the result of an election;
(2) knowingly solicit, accept, or receive a political contribution from any
person, unless that person is --
(A) a member of the same Federal labor organization as defined under
section 7103(4) of this title or a Federal employee organization which as of the date
of enactment of the Hatch Act Reform Amendments of 1993 had a multicandidate
committee (as defined under section 315(a)(4) of the Federal Election Campaign Act
of 1971 (2 U.S.C. 441a(a)(4)));
(B) not a subordinate employee; and
(C) the solicitation is for a contribution to the multicandidate political
committee (as defined under section 315(a)(4) of the Federal Election Campaign Act
of 1971 (2 U.S.C. 441a(a)(4))) of such Federal labor organization as defined under
section 7103(4) of this title or a Federal employee organization which as of the date
of enactment of the Hatch Act Reform Amendments of 1993 had a multicandidate
political committee (as defined under section 315(a)(4) of the Federal Election
Campaign Act of 1971 (2 U.S.C. 441a(a)(4))); or
(3) run for the nomination or as a candidate for election to a partisan
political office; or
(4) knowingly solicit or discourage the participation in any political
activity of any person who --
(A) has an application for any compensation, grant, contract, ruling,
license, permit, or certificate pending before the employing office of such employee;
(B) is a subject of or a participant in an on going audit, investigation,
or enforcement action carried out by the employing office of such employee.
(b) (1) An employee of the Federal Election Commission (except one appointed
by the President, by and with the advice and consent of the Senate), may not request
or receive from, or give to, an employee, a Member of Congress, or an officer of a
uniformed service a political contribution.
(2)(A) No employee described under paragraph (B) (except one appointed
by the President, by and with the advice and consent of the Senate), may take an
active part in political management or political campaigns.
(B) The provisions of subparagraph (a) shall apply to --
(i) an employee of --
(I) the Federal Election Commission;
(II) the Federal Bureau of Investigation;
(III) the Secret Service;
(IV) the Central Intelligence Agency;
(V) the National Security Council;
(VI) the National Security Agency;
(VII) the Defense Intelligence Agency;
(VIII) the Merit Systems Protection board;
(IX) the Office of Special Counsel;
(X) the Office of Criminal Investigation of the Internal
(XI) the Office of Investigative Programs of the United
States Customs Service; or
(XII) the Office of Law Enforcement of the Bureau of
Alcohol, Tobacco, and Firearms; or
(ii) a person employed in a position described under section
(3) No employee of the Criminal Division of the Department of Justice
(except one appointed by the President, by and with the consent of the Senate), may
take an active part in political management or political campaigns.
(4) For purposes of this subsection, the term "active part in political
management or in a political campaign" means those acts of political management
or political campaigning which were prohibited for employees of the competitive
service before July 19, 1940, by determinations of the Civil Service Commission
under the rules prescribed by the President.
(c) An employee retains the right to vote as he chooses and to express his
opinion on political subjects and candidates.
§ 7324. Political activities on duty; prohibition
(a) An employee may not engage in political activity --
(1) while the employee is on duty;
(2) in any room or building occupied in the discharge of official duties by
an individual employed or holding office in the Government of the United States or
any agency or instrumentality thereof;
(3) while wearing a uniform or official insignia identifying the office or
position of the employee; or
(4) using any vehicle owned or leased by the Government of the United
States or any agency or instrumentality thereof.
(b) (1) An employee described in paragraph (2) of this subsection may engage
in political activity otherwise prohibited by subsection (a) if the costs associated with
that political activity are not paid for by money derived from the Treasury of the
(2) Paragraph (1) applies to an employee --
(A) the duties and responsibilities of whose position continue outside
normal duty hours and while away from the normal duty post; and
(B) who is --
(i) an employee paid from an appropriation for the Executive
Office of the President; or
(ii) an employee appointed by the President, by and with the
advice and consent of the Senate, whose position is located within he United States,
who determines policies to be pursued by the United States in relations with foreign
powers or in the nationwide administration of Federal laws.
§ 7325.Political activity permitted; employees residing in certain
The Office of Personnel Management may prescribe regulations permitting
employees, without regard to the prohibitions in paragraph (2) and (3) of section
7323(a) of this title, to take an active part in political management and political
campaigns involving the municipality or other political subdivisions in which they
reside, to the extent the Office considers it to be in their domestic interest, when --
(1) the municipality or political subdivision is in Maryland or Virginia and
in the immediate vicinity of the District of Columbia, or is a municipality in which
the majority of voters are employed by the Government of the United States; and
(2) the Office determines that because of special or unusual circumstances
which exist in the municipality or political subdivision it is in the domestic interest
of the employees and individuals to permit that political participation.
§ 7326. Penalties
An employee or individual who violates section 7323 or 7324 of this title shall
be removed form his position, and funds appropriated for the position from which
removed thereafter may not be used to pay the employee or individual. However,
if the Merit System Protection Board finds by unanimous vote that the violation does
not warrant removal, a penalty of not less than 30 days' suspension without pay shall
be imposed by direction of the Board