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Hatch Act

HATCH ACT

Enacted in 1939, the Hatch Act (5 U.S.C.A. 7324) curbs the political activities of employees in federal, state, and local governments. The law's goal is to enforce political neutrality among civil servants: the act prohibits them from holding public office, influencing elections, participating in or managing political campaigns, and exerting undue influence on government hiring. Penalties for violations range from warnings to dismissal. The law's restrictions have always been controversial. Critics have long argued that the act violates the first amendment freedoms of government employees. The U.S. Supreme Court has disagreed, twice upholding the law's constitutionality. Congress has amended the Hatch Act several times since 1939. In 1993, a number of amendments to the act sought to limit the effects of political patronage in federal hiring.

The Hatch Act grew out of nineteenth-century concerns about the political activities of federal employees. As early as 1801, President thomas jefferson issued an executive order that said federal workers should neither "influence the votes of others, nor take part in the business of electioneering." He saw such activities as "inconsistent with the spirit of the Constitution." Jefferson was primarily concerned with what government employees did while in office; subsequently, concerns developed in another area. Throughout the nineteenth century, appointments to the federal bureaucracy were viewed as the natural spoils of political success. The prevalent awarding of jobs for political loyalty created a so-called spoils system and, ultimately, a reaction against it.

The long process of neutralizing politics in federal employment continued into the twentieth century. Attempts began with the Pendleton Act of 1883 (22 Stat. 403), a comprehensive anti-patronage law named after its sponsor, Senator george h. pendleton, who argued that "the spoils system needs to be killed or it will kill the republic" (14 Cong. Rec. 206 [1882]). The law sought to eliminate patronage by insulating federal employees from coercion. It provided that they could not be fired for refusing to work on behalf of a candidate or for choosing not to make campaign contributions. In 1907, President theodore roosevelt instituted even broader controls through Executive Order 642. Its two major prohibitions addressed employees in the executive civil service and the larger class of federal civil servants. The former were forbidden to use their authority to interfere in elections, and the latter were barred from taking part in political management or campaigning. This order marked the first time that federal employees had limits placed on their First Amendment right to engage in political speech.

The passage of the Hatch Act in 1939 combined the prohibitions of earlier executive orders and the Pendleton Act. The act includes restrictions on political activity for the whole federal bureaucracy. The act stated,"[N]o officer or employee in the executive branch of the Federal government, or in any agency or department thereof, shall take any active part in political management or in political campaigns" (ch. 410, § 9(a)). The measure received bipartisan support in a response to concern about the new deal—President franklin d. roosevelt's economic program for relieving the effects of the Great Depression—which significantly increased the ranks of federal employees. Congress wanted to rein in Roosevelt's power, especially following allegations that he had used Works Progress Administration employees to influence the 1938 congressional elections. Opponents of patronage in general and enemies of Roosevelt in particular thought the New Deal represented an opportunity for the president to meddle with elections while perpetuating his hold on the White House.

Congress increased the scope of the Hatch Act in 1940 by extending its restrictions to employees of state and local governments that receive federal funds (Act of July 19, 1940, ch. 640, 54 Stat. 767), although it cut back certain applications of this measure in 1974. At various times it has also increased or decreased the penalties for Hatch Act violations—notably, by including suspension without pay as a lesser penalty. In 1993, Congress made yet more changes aimed at curtailing patronage in jobs: amendments to 5 U.S.C.A. § 3303 restricted elected officials from making unsolicited recommendations for job applicants seeking federal employment. States, meanwhile, have broadly incorporated the principles of the Hatch Act in their own statutes, which have also undergone revision over time.

Debate over the Hatch Act has been vigorous since its inception. Critics have portrayed it as an unfair restriction on the First Amendment rights of government employees, especially violative of their fundamental right to engage in political

speech. This argument formed the basis of an early suit that the U.S. Supreme Court heard in 1947, United Public Workers of America v. Mitchell, 330 U.S. 75, 67 S. Ct. 556, 91 L. Ed. 754. In sustaining the legality of the Hatch Act, the Court balanced individual speech rights against the "elemental need for order," and found the latter more important. The Court rejected another challenge to the law in 1973 in United States Civil Service Commission v. National Ass'n of Letter Carriers, 413 U.S. 548, 93 S. Ct. 2880, 37 L. Ed. 2d 796. Opponents continued to attack these rulings throughout the 1990s. "Unfortunately for those individuals who have chosen a career in the federal public service," argued author Michael Bridges in a 1993 law review article, "the Court has found that Congress may place an asterisk beside their First Amendment rights."

further readings

Bridges, Michael. 1993. "Release the Gags: The Hatch Act and Current Legislative Reform." Capital University Law Review (winter).

Feinstein, Andrew A., and Douglas K. Nelson. 1988. "Hatch Act Reform." Federal Bar News and Journal (July/August).

Gely, Rafael, and Timothy D. Chandler. 2000. "Restricting Public Employees' Political Activities: Good Government or Partisan Politics?" Houston Law Review 37 (fall).

Polley, James D. 1994. "Hatch Act Reform Amendments of 1993." Prosecutor (September/October).

Segal, Lydia. 1998. "Can We Fight the New Tammany Hall?: Difficulties of Prosecuting Political Patronage and Suggestions for Reform. Rutgers Law Review 50 (winter).

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Hatch Act (1939)

Hatch Act (1939)

William V. Luneburg

The Hatch Act of 1939 (53 Stat. 1147) restricted the ability of federal, or civil service, employees to participate in partisan political life. The goal of the act was to ensure that the civil service would remain politically neutral and efficient. However, many believed that the restrictions infringed on the constitutional rights of federal employees. In 1993 Congress adopted amendments to the act: "It is the policy of Congress that employees should be encouraged to exercise fully, freely, and without fear of penalty or reprisal, and to the extent not expressly prohibited by law, their right to participate or to refrain from participating in the political processes of the Nation." Those amendments are the latest in a series of attempts to respect the constitutional rights of government employees, in particular the rights to speak, organize, and act peacefully to carry out their personal political views, while at the same time ensuring that the public administration of government is carried out in a neutral and efficient manner.

HISTORICAL BACKGROUND

As early as the presidency of Thomas Jefferson, the political activities of federal employees were restricted in the name of effective government. By executive order, the officers of government could not attempt "to influence the votes of others [or] take any part in the business of electioneering." Later administrations adopted similar restrictions in an effort to foster political neutrality. The Civil Service Act of 1883 (known as the Pendleton Act) limited the influence of party politics in the appointment of federal employees. That act was designed to ensure that the civil service was not used for political purposes.

In the years following the Pendleton Act, many continued to see political activity by federal employees as a problem. In 1907 President Theodore Roosevelt required that civil service rules be adopted to prevent anyone in the civil service from using his or her official authority or influence to interfere with an election. Such rules also forbid employees appointed to their positions on the basis of examinations (such employees were called the "classified" service) from taking part "in political management or in political campaigns." Employees could, however, express "privately" their own political opinions.

In thousands of cases decided over the next thirty years, the Civil Service Commission (established by the Pendleton Act) developed a body of law that attempted to distinguish between, on the one hand, prohibited political activity by federal employees and, on the other, the permissible expression of political opinions.

The experience over this same period, including the 1938 election, when it was alleged that President Franklin Roosevelt exploited certain government workers for political purposes, persuaded Congress in 1939 to adopt the 1907 civil service rule as the Hatch Act. The Hatch Act (named after Senator Carl A. Hatch of New Mexico) extended the rule to apply to the entire civil service other than high policy-making officials. Removal from office was the designated penalty for violation. In 1940 the act's restrictions were extended to state and local employees whose jobs were funded by federal money (54 Stat. 767). The Civil Service Commission was designated to enforce the Hatch Act restrictions. In 1950 and 1962, the penalty for violations was reduced from removal from office to a thirty-day suspension without pay.

COURT CHALLENGE

In two cases, United Public Workers of America v. Mitchell (1947) and United States Civil Service Commission v. National Association of Letter Carriers (1973), the Supreme Court rejected constitutional challenges to the Hatch Act. The Court found that Congress could reasonably believe that the restrictions were necessary to ensure neutral and effective public administration. In doing so, it noted that executive branch employees "should administer the law in accordance with the will of Congress, rather than in accordance with their own or the will of a political party."

The Court also noted that the immediate reason for the enactment of the Hatch Act was the fear that a large federal workforce unrestrained in its political activity could become "a powerful, invincible, and perhaps corrupt political machine." (In fact such a prospect struck fear into Republicans during the Roosevelt administration.) Finally, the Court emphasized the concern that, without the Hatch Act restrictions, advancement in government service might occur less because of excellence on the job and more because of the political views of employees. Critics faulted the Court for its apparent failure to put enough weight on the First Amendment right to political speech, a right that is afforded the highest of protections outside the context of government employment.

1993 AMENDMENTS

In 1974 Hatch Act restrictions on state and local government were watered down, and in 1993 the advocates for removing or reducing restrictions on the political activities of federal employees carried the day. The Hatch Act Reform Amendments of 1993 (107 Stat. 1001) removed the prohibition on participation in "political management or political campaigns." Federal employees are still forbidden, however, to use their authority to affect the results of an election. They are also forbidden to run for office in a partisan election, to solicit or receive political contributions, and to engage in political activities while on duty or on federal property. The Merit Systems Protection Board and its Office of Special Counsel are responsible for enforcement of the Hatch Act.

See also: Civil Service Acts.

BIBLIOGRAPHY

Eccles, James R. The Hatch Act and the American Bureaucracy. New York: Vantage Press, 1981.

Emerson, Thomas I. The System of Freedom of Expression. New York: Vintage Books, 1971.

Rosenbloom, David H. Federal Service and the Constitution. Ithaca, NY: Cornell University Press, 1971.

INTERNET RESOURCE

U.S. Office of Special Counsel. "Political Activity (Hatch Act)." <http://www.osc.gov/hatchact.htm>.

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Hatch Act

HATCH ACT

HATCH ACT (1939), as amended, regulates partisan political activities by U.S. civil servants. The Democratic senator Carl Hatch of New Mexico, protesting the political involvement of federal employees in primaries and general elections, sponsored the bill that became the Hatch Act in order to ban federal employees from participating actively in political campaigns or from using their positions to coerce voters.

The Pendleton Act of 1883 and several executive orders limited partisan political activity by career civil servants. But the number of federal government workers ballooned from 14,000 in 1883 to 560,000 in 1926, so that by the 1930s, conservative Democrats and Republicans feared that these restrictions were insufficient, and that civil servants might shape elections of presidents, senators, and representatives. Also, they believed that the administration of Democratic president Franklin Roosevelt was using relief monies to influence elections. New Deal liberals seeking renomination or attempting to unseat conservative Democrats in Kentucky, Tennessee, and Pennsylvania were accused of diverting Works Progress Administration funds to enhance their prospects at the polls. In January 1939, the Senate Campaign Expenditures Committee upheld those accusations.

Hatch complained that the Democratic National Committee was obtaining gifts from persons working for—and corporations having contracts with—the federal government, and that several relatives of rival New Mexico Democratic senator Dennis Chavez had coerced WPA officials. In January 1939, Hatch introduced legislation to neutralize the federal civil service. While permitting federal employees to vote, his measure prohibited the assessment or solicitation of funds from WPA employees or the removal of any personnel because of refusal to change political affiliation. Section 9 prevented federal officials and workers from using their position to interfere in presidential or congressional elections. Non-policymaking federal officials could not be removed for partisan reasons. Enforcement was left to department heads, with a one-thousand-dollar fine or one-year term of imprisonment for violators.

In April 1939 the Senate adopted his measure with little fanfare, but the House Judiciary Committee infuriated Hatch by deleting section 9. The full House, however, restored much of it in July. President Roosevelt, who privately harbored reservations about section 9, reluctantly signed the bill into law on 2 August. The Hatch Act magnified the influence of local bosses, rural legislators, and labor unions. The original measure, therefore, was broadened in 1940 to include 250,000 state employees paid wholly or partially from federal funds and to require the nonpayment and removal of violators. A 1950 amendment reduced the penalty to ninety days suspension without pay.

Hatch Act supporters considered a politically neutral civil service the best way to achieve an impartial government and protect federal workers from coercion or threats by superiors. They regarded a government employee's attempts to influence the votes of others as inconsistent with the spirit of the Constitution and wanted to limit the growing influence of government employee unions.

In United Public Workers v. Mitchell (1947), the U.S. Supreme Court by a 4–3 vote upheld the constitutionality of the Hatch Act, stating that public employment was a privilege subject to reasonable conditions. The Commission on Political Activity of Government Personnel in 1966 recommended relaxing restrictions and penalties. A 1972 U.S. district court ruled that the Hatch Act was vague, overly broad, and contrary to the First Amendment, but the U.S. Supreme Court in June 1973 again upheld it.

Critics claimed that the Hatch Act denied millions of federal employees the First Amendment rights of freedom of speech and association and discouraged political participation among people who otherwise would be vigorous political activists. Democratic President Bill Clinton encouraged Congress to overhaul the Hatch Act, and. the Federal Employees Political Activities Act of 1993 permitted most federal civil servants to run for public office in nonpartisan elections, contribute money to political organizations, and campaign for or against candidates in partisan elections. Federal officials, however, were still barred from engaging in political activity while on duty, soliciting contributions from the general public, or running as candidates for office in partisan elections.

BIBLIOGRAPHY

Eccles, James R. The Hatch Act and the American Bureaucracy. New York: Vantage Press, 1981.

Ponessa, Jeanne. "The Hatch Act Rewrite." Congressional Quarterly Weekly Report (13 November 1993), 3146–3147.

Porter, David L. "Senator Carl Hatch and the Hatch Act of 1939." New Mexico Historical Review 47 (April 1973): 151–164.

———. Congress and the Waning of the New Deal. Port Washington, N.Y.: Kennikat Press, 1980.

David L.Porter

See alsoCampaign Financing and Resources ; Civil Service .

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