The Office of Special Counsel has sent a letter to President Trump claiming that Presidential advisor Kellyanne Conway violated the “Hatch Act.” Henry J Kerner of the Office of Special Counsel outlined that the office had conducted an investigation into Ms. Conway after it had received complaints in October of 2018 and again in May 2019 that her twitter activity was in violation of the law. Specifically, the letter that was sent to the President outlines the issue like this:
The Hatch Act prohibits federal civilian executive branch employees from using their official authority or influence for the purpose of interfering with or affecting the result of an election. The
attendant Hatch Act regulation provides that, for example, an employee may not use her official title or position while participating in political activity. Political activity is defined as activity directed at the success or failure of a political party, partisan political group, or candidate for partisan political office. Additionally, an employee may violate this prohibition by misusing either official or personal social media accounts, and, specifically, OSC has advised that an employee may not engage in political activity on a personal social media account if OSC has determined that the account is used for official purposes.
The letter also gives a brief explanation of why office feels that Ms. Conway is subject to the hatch act, stating:
“The Hatch Act restricts the political activity of “any individual, other than the President and the Vice President, employed or holding office in … an Executive agency other than the Government Accountability Office.” The White House Office is a component of the Executive Office of the President, which is considered an Executive agency for purposes of the Hatch Act. Ms. Conway is a commissioned officer in the White House Office and has been serving as Counselor to the President
since January 20, 2017. Therefore, as a presidential appointee employed by the White House Office, Ms. Conway is subject to the Hatch Act.
The section that the office refers to is preceded by the following: “It is the policy of the 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.”
In one example, the Office of Special Counsel offers this evidence as to why Conway is in violation of the law,
On February 1, 2019, Ms. Conway participated in a Fox & Friends interview in her official capacity. At the outset, co-host Steve Doocy introduced Ms. Conway by her title, Counselor to the President. It was also evident that Ms. Conway was standing inside the White House during the interview. As Ms. Conway spoke, the chyron alerted viewers that she was “Counselor to President Trump.” Approximately two minutes into the interview, co-host Ainsley Earhardt asked Ms. Conway for the “Administration’s reaction” to Senator Cory Booker’s candidacy, announced earlier that morning. In response… Ms. Conway rhetorically posited, “What’s wrong with the candidates that are already in there?” and “What’s your objection to Kamala Harris running, Elizabeth Warren, Kirsten Gillibrand, these others who have already announced, Tulsi Gabbard maybe?” Ms. Conway then reflected that if Senator Booker were a “Republican running against them” he would be called a “sexist.” Next, Ms. Conway said she would ask Senator Booker “what exactly” he had accomplished to qualify him to be President. And she responded to her own question with three main points — Senator Booker was a “motivational speaker who can be tinny,” his record as mayor of Newark, New Jersey, was lacking, and he could not “even bring himself to continue to help those school children through school choice” because the Democratic Party had “moved so far to the left.”
While a strict reading of the law would indicate that Ms. Conway was using her influence and authority to “attempt to affect the result of an election” it can be argued that she is, inadvisably, confusing a request for official stance with personal opinion.
The Hatch Act is designed to stop public officials from coercing or influencing the public in a way that is specific to the offices that they hold. To understand what that means, we have to go back to 1938, to the creation of the Hatch Act, and the events that led up to its passage. Trust me when I say, you are going to want to buckle in for the history here.
During the Great Depression, the Works Progress Administration (WPA) was the mechanism the government used to employ millions of Americans, as promised in the New Deal. The administration, headed by Harry Hopkins, became the center of a controversy that eventually led to the passage of the Hatch Act of 1939. FDR had been seeking to purge conservative elements from the Democratic party, with the help of people like Harry Hopkins, Democrat Senator Alben Barkley, and the Works Progress Administration, for the purposes of maintaining power and support for the New Deal.
The Hatch act was born out of corruption in New Mexico, wherein a state Senator was involved in a scandal that led to the indictment of 73 people for conspiracy to use the WPA for political gain. Meanwhile, Senate Majority Leader Alben Barkley (D), who was opposed to the Hatch act, argued that state highway workers were free to participate in political activity, and silencing those who were paid by the WPA was unamerican and unfair. Journalist Thomas Stokes went to Kentucky, which Barkley was representing, to find out if the WPA was indeed extorting workers for political gain.
What he found was shocking. He reported that “WPA foreman are passing out Barkley buttons, instructing workers that they must vote for the Senator, and, in numerous cases, making support for him a prerequisite for jobs.” In his book, Building New Deal Liberalism, Jason Scott Smith claims that “workers who favored Chandler (Barkley’s opponent) were dismissed from their WPA jobs, in several cases, and workers who were registered Republican [perhaps more than 300] were ‘induced’ by WPA officials to register as Democrats.”
Further, the campaign chief for Chandler wrote a letter to President FDR, which was published in the New York Times, stating the extent of the political activities of the WPA as he saw them, stating,
Meetings and conferences have been held in practically every county of the state by key men in places of importance with the Works Progress Administartion, at which definite instructions were given to selected agents that no one should be placed on Federal relief except upon the advice Senator Barkley’s campaign managers in the respective counties. Furthermore, these same agents have been required to inform all those individuals who seek Federal assistance, that unless they are for the candidate whom the heads of the Relief Administration are supporting, there will be neither relief funds, nor jobs for them.
Employees of the Works Progress Administration have been approached for campaign donations for Senator Berkley. And they have been sharpley informed that if they did not give the amounts demanded they would be discharged immediately from their jobs. Very competent men and women have been released from the Works Progress Administration because they would not consent to use their positions and influence to force people to vote for Senator Berkley.
Harry Hopkins, for his part, was alleged to have said that the formula for the New Deal’s political success was “We shall tax and tax, spend and spend, and elect and elect.” While it was disputed whether or not Hopkins made the statement, an interview that he gave three months prior seems to lend itself to the claim. The journalist’s notes on the interview read
Regarding politics. Hopkins says two angles, long range and petty political interference. Regarding long range–he says that his is conscious that WPA and other developments have far reaching political implications. Government checks of one kind or another are going into about 20,000,000 homes—which with friends and relatives creates a vast group of beneficiaries, political group. Says been history in Europe that these benefits never reduce but on contrary tend to enlarge. Politicians run for election on issue of giving more benefits—used to be tarrifs or abstract issues, but now issue is how large a check will you give me. Few years ago were not ten men in Congress who favored Social Security, now not a one would vote against it.
The actions and events that led to the passage of the Hatch Act are inconceivable today. In comparison to true corruption and use of government agencies to directly influence and extort votes, Ms. Conway’s actions and words appear to be those of someone who is simply ignorant of what constitutes professionalism. We should always be on the lookout for corruption in our own government, though I don’t believe that Ms. Conway’s actions rise to the level of what the act was intended to prevent. It is probably better to play it safe and follow the recommendation of the Office of Special Counsel, though we, as Americans, should also be careful to know and understand our own history, so that we do not find ourselves being coerced into action by political operatives. Specifically, as there are more and more calls for increased government benefits and, ironically, the creation of another “New Deal.”