Saturday, November 8, 2008

Is the Hatch Act an "Obscure Law" designed to torment innocent federal employees?

Debate over the Hatch Act has been contentious since it was adopted in 1939. Critics of the law have portrayed it as an abridgement of first amendment rights of government employees to exercise their right to free speech.

But the U.S. Supreme Court disagreed in 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 Association of Letter Carriers, 413 U.S. 548, 93 S. Ct. 2880, 37 L. ED 2d 796. Opponents of the law continue to attack these rulings.

The Hatch Act grew out of nineteenth century concerns about the political activities of federal employees and the harm that activity caused citizens.

In fact, the founding fathers of this nation spent a considerable amount of time debating the dangers of political patronage and other forms of pernicious political activity.

In 1801, President Thomas Jefferson issued an Executive Order that said federal workers should not "influence the votes of others, nor take part in the business of electioneering." Jefferson viewed such activities as "inconsistent with the spirit of the Constitution." The common practice of awarding government jobs as a reward for political loyalty created a spoils system and a strong political reaction against political patronage, beginning in the late 1700's --

But Thomas Jefferson was not the last politician to raise concerns about the dangers of political patronage. Senator George H. Pendleton introduced the Pendleton Act of 1883 (22 Stat. 403) to protect federal civil employees from coercion. The Act provided protection for employees by guaranteeing that employees could not be fired for refusing to participate in political campaigns or donating funds to campaigns.

Concern regarding the practice of political patronage continued and in 1907, President Theodore Roosevelt introduced Executive Order 642. The Order prohibited federal employees from using their authority to interfere in elections. Consequently, a broad class of civil servants were prohibited from running for public office or taking part in the management of political campaigns. (The goal being to prevent federal employees from exercising undue political influence in elections).

In 1939, Roosevelt's Executive Order was expanded through adoption of the Hatch Act. The Act was drafted to enforce political neutrality among civil servants. In order to prevent abuse of power, federal employees are prohibited from holding partisan public office, influencing elections, participating in or managing campaigns and exerting undue influence on government hiring.

In 1940, Congress increased the scope of the Hatch Act by extending its restrictions to state and local employees that receive and administer federal funds as part of their regularly scheduled duties.

Today, the U.S. Office of Special Counsel receives up to 700 complaints per year regarding Hatch Act Violations. It's my understanding that the Hatch Act unit is actively investigating approximately 120 complaints in 2008.

The federal government spends millions of dollars on Hatch Act training - (please see training videos posted on the right hand side of the screen) and it is fair to state that the majority of federal employees are aware of the Hatch Act and the limitations it places on political activity.

Locally, County Council member Ward Nelson has worked hard to comply with the Hatch Act, because he is a covered Hatch Act employee through his service in the military reserves. Many other federal employees, (members of the Coast Guard, other branches of the military, FBI, Border Patrol, Customs and Immigration, Homeland Security, the U.S. Postal Service, the National Guard and a number of federal agencies like Social Security) live and work in Whatcom County.

So much for obscurity...

Why did the founding fathers and others consider political patronage and other forms of pernicious political activity dangerous?

Much has been written about political patronage at the federal level. Nevertheless, just for grins, let's take a look at the history of political patronage in cities.

In most cities, the electorate can be mobilized by tapping in to feelings of solidarity and the promise of material rewards. Politicians who gain control of local government also gain control of important resources that can be distributed among loyal supporters.

For example, Frank Hague, a Jersey City political boss, told journalist Joseph Alsop, that the political structure of the city held together because everyone gained by cooperating in what was, in essence, a "system of organized bribery."

Politicians, political bosses and loyal supporters have at their disposal patronage jobs in the public sector and sometimes even in private industry. Construction projects, such as road building and other public works projects can give a politician control over hundreds of high paying jobs and contracts. A full-fledged political machine is characterized by both machine style politics and a well-defined hierarchy.

If you're thinking that doesn't happen in Bellingham -- think again. Every city has a bit of "Tammany Hall" in it. Albeit, some more than others...

What is "Tammany Hall"?

"George Plunkett was made famous by writer William Riordan who described Tammany Hall as "a series of very plain talk on very practical politics delivered by a Tammany philosopher from his rostrum - the New York County Courthouse bootblack stand."

The book, Plunkett of Tammany Hall, was first published in 1963 and contains chapters like, "honest and dishonest graft," "the curse of civil service reform," "reciprocity in patronage," " Tammany leaders not bookworms," "dangers of the dress suit in politics," "on the uses of money in politics," " bosses preserve the nation," and "Tammany the only lasting democracy."

Plunkett's formula for staying on top for seven decades of New York City rule was; " Tammany is the ocean, reform the waves, and there is a lot of unofficial patronage to ride out the storms if you know the ropes. Why don't reformers last in politics? Because they are amateurs and you must be a pro. Politicians do not have to steal to make a living because a crook is a fool and a politician can become a millionaire through 'honest graft."

Which explains in part, the barrage of personal attacks launched against "reformers or whistle blowers" by politicians, political bosses, members of the media and loyal machine supporters.

Reformers may be subjected to public ridicule, vandalism in the form of property damage and other forms of harassment to embarrass and/or silence them.

Members of a political machine will fight hard to protect the status quo from attacks. (Check out the angry comments on Sam Taylor's article regarding Mayor Pike's violation of the Hatch Act). Or, Ken Mann's podcast interview with Tim Paxton. (I thought it was interesting that the only intelligent comment came from a Canadian caller at the end of the program).

Political machines operate on the basis of mutually beneficial relationships. Political bosses traditionally distribute material rewards and expect political loyalty in return.

If you are interested in learning more about the history of political machines in American cities and/or the role graft and dishonesty played in the development of American city politics, I recommend reading "City Politics: Private Power and Public Policy" by Dennis R. Judd and Todd Swanstrom.

As unbelievable as it may be for the sleepy residents of Bellingham (and Ken Mann) - Professor Todd Donovan, Tim Paxton and I are not the first citizens in this county, state or nation to question a candidate's campaign behavior.

Nor is it inappropriate for us to do so.

Resource Materials: (I would have liked to use footnotes - but blogger does not allow me to do so).

Boss Tweed and Tammany Hall:

"City Politics: Private Power and Public Policy." Third edition. by Dennis R. Judd and Todd Swanstrom. Published by Longman in 2002.

Every federal grant has compliance documents that are signed and acknowledged by the grant applicant and administrator.According to the U.S. Office of Special Counsel - Dan Pike applied for the following federal grants and handled all necessary reporting (administrative) requirements. All grants are subject to Hatch Act restrictions on political activity.

1. Federal Highway Administration Grant
2. The Federal Transit Authority Grant
3. The Surface Transportation Program Grant
4. The North Sound Connecting Communities Project Grant

Additionally, Skagit Council of Governments received the Active Communities Environments Grant from the U.S. Department of Health and Human Services during Mr. Pike's employment with SCOG.

Just for grins, Let's take a look at the Federal Transit Authority (FTA) Grant Certification and Assurances Document for 2006. Page 7 contains language regarding Hatch Act requirements for grant recipient and employees:

15) To the extent applicable, will comply with the requirements of the Hatch Act, 5 U.S.C. 1501 through 1508 and 7324 through 7326, which limit the political activities of state and local agencies and their officers and employees whose primary employment activities are financed in whole or part with Federal funds including a Federal loan, grant agreement, or cooperative agreement except, in accordance with 49 U.S.C. 5307(k)(2) and 23 U.S.C. 142(g), the Hatch Act does not apply to a nonsupervisory employee of a public transportation system (or of any other agency or entity performing related functions) receiving FTA assistance to whom that Act does not otherwise apply;

Mayor Pike also worked for the Washington State Department of Transportation in Tacoma before he accepted a position as Transportation Director for Skagit Council of Governments. I'm confident that WSDOT has Hatch Act training for individuals who work with federal DOT grants.Still think it's an obscure law?

Do a google search --

DOT Hatch Act -- Political Activities of Federal Employees

Need to know Hatch Act

DOT Travel Report

2003 Press Release

OSC brochure on State and Local Employee Hatch Act Restrictions

WA Attorney General Opinion

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