Federal Employees News Digest
OSC cracks down on politics in the workplace, but union cries foul—and expert weighs in
- By Nathan Abse
- Aug 19, 2019
The Office of Special Counsel—the federal entity responsible for protecting federal employees across the federal government from prohibited personnel practices on the job—last November issued guidance cracking down on what OSC has concluded is illegal political activity. The OSC found that displaying an item on the job any political slogans—for example, a “#resist” sign or a “MAGA” hat; or some other expression of such sentiments—can and should be seen as illegal political activity, banned specifically under the Hatch Act. The guidance notes that while there are no “magic words” that cross the line or others that do not, generally employees must “avoid making statements directed toward the success or failure of, among others, a candidate for partisan political office.” Certain federal employee unions have since balked at the crackdown, complaining especially that employees have the right to free speech and should be permitted to call for the impeachment of what they feel are corrupt officials, including a sitting president. The American Federation of Government Employees and one of its locals last week moved to sue the OSC over the matter. The OSC guidance “presumptively restricts federal employees from expressing any opinion on ‘impeachment’ or policy matters if the words ‘#resist’ or ‘resistance’ are used,” the AFGE announcement of the lawsuit noted. “This suit is about protecting federal employees from political retribution in the workplace,” the union’s president, J. David Cox, added. Cox called the guidance “vague” and “overbroad,” and complained that it “creates an opening for managers and political appointees to go after career civil servants for politically-motivated reasons.” This week, Nathan Abse interviews Saint Louis University political scientist Kenneth Warren about the OSC guidance dust-up—tapping Warren’s deep historical knowledge about the more than 100-year history of reformers who have tried to rein in political activity among federal civil servants on the job—while permitting them their rights as citizens to speak and act politically in their private lives. Mr. Warren is an expert in this area—and his latest book, Administrative Law in the Political System, will be released this year.
Q&A with Kenneth Warren
When in history did federal laws start censoring feds’ on-the-job political expressions? It’s all just the last century, right? In the first half of U.S. history, through the 1800s, federal jobs were won as political spoils, and the workplace was often political, true or false?
Warren: That’s about right. The Pendleton Act of 1883 was passed in order to start to de-politicize and professionalize the civil service. It came in direct response to the assassination of President Garfield, by the assassin Charles Guiteau. Let me explain: Guiteau worked for the Garfield campaign, and he was expecting and got a patronage federal job—but he felt it was a lousy, insulting federal position. “I worked hard for you, and you gave me just this lousy job?” He assassinated the president, motivated by this. Essentially, Congress said, “Enough’s enough,” feeling a sense they had to end this kind of patronage politics, and just stop the unprofessional character of patronage politics, since it helped lead to that assassination. That was the purpose: to take politics out of the professional administration, the carrying out of agency missions, from government.
That was a first step—but what happened next?
Warren: Well, President Theodore Roosevelt later issued executive orders to increase the number of federal employees who were covered by this professionalization law. It started out covering only about 10 percent of federal employees, then Theodore Roosevelt increased that percentage considerably. And it grew from there. By the 1930s, under President Franklin Delano Roosevelt, about 90 percent of federal employees were covered. So, most of the government’s officials were in the professionalized civil service.
Isn’t that about the time of the Hatch Act—which explicitly de-politicized the federal government’s civil service?
Warren: Yes, in 1939, the Hatch Act was passed—specifically to protect federal employees from political coercion, to prevent them from having to work in political campaigns. Previous to this law’s passage, many federal—and by the way state—government employees were forced to do this, to work in political campaigns. Federal employees felt intimidated. They felt—often rightly so—intimidated. “Hey, unless I work for this current president’s next political campaign—you know, like unless I campaign for these guys and put up signs pushing people to vote for, say, President Harding, or President Coolidge, or President Hoover—well unless I do that, I have to worry about losing my job,” federal employees had to think back then. That is just the way it was back then. Now, there were some laws that protected them—some—but in practice there were always ways these sitting politicians and [their loyal functionaries] could get back at you as a federal employee if you failed to help them in their politics, by punishments such as demotions and denial of pay raises and so on.
So, after the Hatch Act passed, most feds were prevented from acting or expressing political advocacy in many circumstances?
Warren: That’s right. And the law was passed with a noble aim. To stop all that political patronage and coercion. And remember also the Hatch Act was upheld by the Supreme Court—notably in an early 1970s Postal Service case. It became a very powerful and important law. To summarize, if you were a federal worker after this law you were prevented from working in or being part of political campaigns. And under the original iteration of this law, you were prevented from doing so both on-the-job, during business, but also in your private life, off-duty. That is, the original 1939 Hatch Act stopped you as a fed from working in politics, regardless of whether it was at work or on the weekend, you see? Later however federal employee unions argued successfully that the original law made them second-class citizens. “Everyone else can work for political campaigns and we can’t!” they said. And ultimately under President Bill Clinton, the Hatch Act was revised under the federal Civil Service Reform Act of 1993. Now this law was even harder on any kind of political activity, in your work duties or during work-time, but it eased restrictions such that feds could participate in political activity in their private time. A very big change.
Have there been any major revisions of Hatch Act restrictions since 1993?
Warren: Yes, there was another one in the last decade—in 2012—the Hatch Act Modernization Act. This law made it clear that federal employees can use, for example, social media to share their political beliefs. However, there are some restrictions there too.
OK—so that’s the history. What about the federal employee lawsuit against political expression controls in the recent OSC guidance?
Warren: The idea of keeping politics out of the professional civil service is a very simple principle. I rarely agree with the Trump administration—you know? And that goes for these civil service issues specifically. But I have clear legal reasoning here—and if I were a judge I would rule against the union suit here. I think that in this suit the union is trying to bring us back to pre-1939 times, here. They’re mistaken.
Can you go into greater detail on your analysis here?
Warren: Yes. The union here, in this lawsuit, are saying we should allow federal workers to display signs saying “Resist” or “Impeach,” because that should be just protected free speech. But the union, in effect, is leaning on the idea that, hey, there’s a difference between speech and acting on that speech—and some of that speech should be allowed. This is an old argument about whether advocating is acting, where politics is concerned. I think the union is wrong on what constitutes political activity. If you put a sign on your desk at work that says “Resist!” or “Impeach!” I think you are acting politically—I mean, come on! This is clearly politicizing the workplace. And we should not want that—we should want the federal workplace to be neutral, as is required by the law. We should, as the still-applicable Hatch Act says, be allowed to political activity when off work, but not at work. You should be able to do that in your own time, and you should as long as you don’t use any government premises or equipment and so on. But not to display this kind of political activity on work time—whether it’s a sign on the desk, or posting on Facebook during worktime, that should be against the law. They cannot do that. As a federal worker you cannot engage in political activity at all at work. The union, again, is saying it’s just speech. But speech here is activity. And by the way you cannot advocate against—or for—the president or any political campaign or party, at work! That goes for “Make America Great Again” slogans, too! If I were the judge I would say that it would be appropriate for the Trump administration, through the OSC, to issue these guidelines and to restrict and ban these kinds of activities at work.
Anything else—for instance, don’t you think some official administration have broken Hatch Act and other such laws?
Yes, for instance, Kellyanne Conway has worked to promote President Trump and other political candidates in Senate races. She cannot do that legally, in her work at the time—she was violating not necessarily the Hatch Act—but she did break certain conflict-of-interest laws, I believe, for sure. And there are others who have also violated Hatch Act and conflict-of-interest laws. There are a lot of lines that are being crossed—there are others who have crossed those lines too. But back to the issue of the union lawsuit on the OSC guidance, in the end I believe the union is wrong here.