Amend the Hatch Act and Restore Federal Workers’ First Amendment Rights

The Hatch Act, originally passed in 1939, substantially limits the political activity of most federal workers. The Supreme Court has ruled on more than one occasion that the Act is constitutional. Being constitutional does not necessarily make it the right thing to do. Here are the basic restrictions that apply to most federal workers:

And here are the restrictions that apply to “further restricted” employees (those in intelligence or enforcement agencies, SES, ALJs and other highly paid employees):

While the intent of the Hatch Act provisions restricting federal workers may be sound, the result is, in effect, muzzling many federal workers and depriving them of their First Amendment rights. Some of the restrictions as outlined Office of Special Counsel (OSC) guidance border on the absurd. Consider this guidance issued to a member or the Senior Executive Service whose wife was considering a run for Congress. One question was “You first ask whether you can prepare food for fundraising events held at your home.” The response?  “As a further restricted employee, you may not act in concert with a candidate for partisan political office. See 5 C.F.R. § 734.402. The Hatch Act also prohibits further restricted employees from organizing, selling tickets to, promoting, or actively participating in a fundraising activity of a candidate for partisan political office. See 5 C.F.R. § 734.410(b). Therefore, because you may not provide volunteer services to a candidate, you may not prepare food for, or otherwise help organize, any fundraising event.” So he cannot make cookies for an event in his home. OSC also noted that there is no problem with his wife holding the event in their home, but he cannot make a welcoming speech. He is able to welcome them, however.

Does that do anything to protect our democracy? I think not. Does anyone assume this gentleman would not support his wife’s candidacy? Does anyone think his direct reports or co-workers don’t know that? The Hatch Act restrictions serve to limit his right to speak and in the process reduce transparency. They also add confusion about what can and cannot be done. Many federal workers disciplined for Hatch Act violations had no intent to violate the law.

A far better approach is to retain limits on federal workers running for partisan office and absolute prohibitions on federal workers taking official action based on political views. A hiring manager makes a hiring decision based on politics? S/he should be fired. A federal employee awards contracts based on politics? S/he should be fired. A federal executive bakes cookies for his wife’s fundraiser in their home? Who cares?

The way the Hatch Act is working now does nothing to protect our democracy, nor does it do anything to ensure electoral integrity. It prevents many employees from speaking out about the politicians whose decisions affect them, such as employees who are furloughed due to a lapse in appropriations. It drives political activity for many employees underground, and does nothing to limit the political activity of senior political appointees. When Obama Administration Housing and Urban Development Secretary Julián Castro violated the Act in April 2016, nothing happened. The OSC issued a finding that he had, in fact, violated the Hatch Act, and that was it. When Kellyanne Conway violated the Hatch Act at least twice, OSC issued a letter to President Donald Trump saying “If Ms. Conway were any other federal employee, her multiple violations of the law would almost certainly result in her removal from her federal position by the Merit Systems Protection Board.”

In both of these cases, highly ranking political appointees violated the Hatch Act and got away with it. Both spoke in their official capacity in favor of the president they served in a manner that clearly violated the law. OSC’s letter to President Donald Trump was spot on — any career employee who committed the same offense would be fired. One of the glaring weaknesses of the Hatch Act is that it is toothless with respect to an Administration in power. President Obama could ignore Julián Castro’s violation and President Trump can ignore Kellyanne Conway’s violation.

In 1973 the Supreme Court upheld the constitutionality of the Hatch Act. In his dissent, Justice William O. Douglas strongly disagreed with the decision. Justice Douglas said “We deal here with a First Amendment right to speak, to propose, to publish, to petition Government, to assemble. Time and place are obvious limitations. Thus no one could object if employees were barred from using office time to engage in outside activities whether political or otherwise. But it is of no concern of Government what an employee does in his spare time, whether religion, recreation, social work, or politics is his hobby – unless what he does impairs efficiency or other facets of the merits of his job. Some things, some activities do affect or may be thought to affect the employee’s job performance. But his political creed, like his religion, is irrelevant. In the areas of speech, like religion, it is of no concern what the employee says in private to his wife or to the public in Constitution Hall. If Government employment were only a “privilege,” then all sorts of conditions might be attached. But it is now settled that Government employment may not be denied or penalized “on a basis that infringes [the employee’s] constitutionally protected interests-especially, his interest in freedom of speech.” If Government, as the majority stated in Mitchell, may not condition public employment on the basis that the employee will not “take any active part in missionary work,” it is difficult to see why it may condition employment on the basis that the employee not take “an active part … in political campaigns.” For speech, assembly, and petition are as deeply embedded in the First Amendment as proselytizing a religious cause. Free discussion of governmental affairs is basic in our constitutional system.”

I believe Justice Douglas was right, particularly when he said “In the areas of speech, like religion, it is of no concern what the employee says in private to his wife or to the public in Constitution Hall.” What we have is a law that restricts speech of federal workers, but in practice does not restrict the speech of highly visible senior political appointees. It limits transparency by driving political activity underground, where it is less likely to be known to anyone. I prefer transparency, and free exercise of the First Amendment rights of everyone, whether s/he works for the federal government or for Burger King. But — at least we can take comfort in knowing that senior executives will not be baking cookies for their spouse’s political campaigns.

Layers of Problems Drive Morale Issues at the Department of Homeland Security

The Oversight, Management and Accountability Subcommittee of the House Homeland Security Committee held a hearing on January 14 to discuss morale at the the Department of Homeland Security (DHS). The hearing was prompted by DHS once again ranking at the bottom of the Partnership for Public Service Best Places to Work in the Federal Government rankings.

DHS Chief Human Capital Officer Angela Bailey testified that DHS had significantly improved its numbers, citing the Secret Service and its systematic approach to dealing with morale issues, and the Transportation Security Adminstration’s steady improvement in morale. She described the Department’s approach, with focus on areas that employees have identified as critical drivers of morale.

Chris Currie, Director of the Government Accountability Office Homeland Security and Justice Team, testified that current and former DHS leadership clearly care about the issue of morale. He said DHS is making slow and steady progress, in part by following some of the recommendations GAO has made. He said that while DHS has a unique mission, other Departments and Agencies have unique missions and are able to maintain high levels of employee morale. He cited the US Coast Guard as a component of DHS that has far better morale and a long history of strong leadership. He suggested the Committee also talk with DHS leaders and that they put the same level of attention on mission support as on mission issues.

Max Stier, President of the Partnership for Public Service, testified that DHS has an excellent Chief Human Capital Officer in Ms. Bailey. He highlighted the improvements in some components, specifically:

  • The Office of Intelligence and Analysis saw a 13.1 point increase in 2019 and the Office of the Secretary jumped 6.9 points.
  • U.S. Citizenship and Immigration Services, which ranks 90 of 420 subcomponents, has an index score of 72.9 of 100 and has improved 14 points from its 2005 low.
  • The U.S. Coast Guard improved its score, rising 2.7 points. Of all 420 subcomponents across government included in the rankings, the Coast Guard remains the highest-ranked DHS subcomponent – 85th of 420 subcomponents.
  • The U.S. Secret Service is worth highlighting for its 8.9 point jump in 2019 for an index score of 52.9 of 100, a 61% improvement from its 2016 low score of 32.8.
  • The Cybersecurity and Infrastructure Security Agency has improved in five of the last six years, from 36.2 in 2013 to 51.5 in 2019.

Mr Stier also identified specific steps DHS could take to improve morale.

  1. Congress should hold hearings regularly to focus on DHS morale issues
  2. Hold leaders accountable – political appointees should have performance plans
  3. Provide continuity in senior management ranks (5 Under Secretaries for Management in 5 years). DHS has too many political appointees
  4. Provide budget stability. Shutdowns are burning down your own house
  5. Consolidate congressional jurisdiction over DHS
  6. Modernize the Federal Employee Viewpoint Survey
  7. Continue to improve data and metrics
  8. Ensure that political leaders are focused on engagement and management
  9. Enhance career leadership development
  10. Create a culture of continual learning, reskilling and upskilling
  11. Work to fill vacancies

Three issues that the witnesses highlighted stand out. First is the improvement in morale in several components. The improvements they have made are real, and they can make a difference for those components. The problem with DHS-wide numbers is that they are driven by the largest components – TSA and CBP – which comprise 60 percent of the DHS workforce. Here are all of the component Best Places rankings:

DHS morale numbers are unlikely to rise beyond last place in the Best Places rankings if significant morale improvements are not made in TSA and CBP. Between 2018 and 2019, CBP’s overall rating dropped 2.1 points, while TSA dropped 1.1 points. Their number of employees is so large that it is very difficult for DHS to have an overall improvement. What that highlights is that looking at the Department as a whole is a futile exercise. Improvements in morale are not made at the Department level. They come at the component level and below. DHS is not unique in that respect. Highlighting the overall DHS number accomplishes nothing, and may interfere with the ability of the Department’s components to make the improvements they need.

Morale is driven by many factors, but the most consequential are the work itself and the quality of leaders. DHS and its components, like most other agencies, like to point to the employee responses on their dedication to the mission. The problem with that number is that virtually every agency has high numbers. When I say the work itself is a driver, I mean the nature of the work and the conditions under which it is performed. If we use TSA as an example, Transportation Security Officers are clearly dedicated to the mission. The problem is that they carry out that mission with low pay, high stress, and with an unrelenting workload. The quality of leadership is as big a driver as the work itself. Good leaders can relieve stress, ensure fairness in the workplace, make good hires, and deal with problem employees. DHS has made great strides in developing leaders, but far more must be done in leader selection and development to address the morale issues.

The final issue that resonated with me is the effect of political employees on morale and the ability of organizations to make sustained improvements. Mr. Stier highlighted the issue and suggested DHS should have far fewer political appointees. I have been both a career employee and a political appointee, and I believe he is correct. Turnover in political appointees generates a lack of continuity and makes solutions to longstanding problems difficult, if not impossible. The Office of the Chief Human Capital Officer (CHCO) at DHS is a great example. I was a political appointee in that position, and served as the 5th permanent DHS CHCO. There had also been multiple acting CHCOs. When I started the job, DHS had existed for six years. How could anyone expect to see improvement in human capital matters when the CHCOs left every few months? I recommended to Secretary Janet Napolitano that she convert the position to a career job after I left. Since then (eight years ago), DHS has had two CHCOs, and the second (Ms. Bailey) is still there. The issue of political appointees has been made even worse by the current administration’s apparent lack of interest in making permanent appointments to senior political jobs. Here is a look at some of the key senior DHS jobs that are filled by acting officials:

  • Secretary (acting), Chad F. Wolf Deputy Secretary (vacant), Ken Cuccinelli, Senior Official Performing the Duties of the Deputy SecretaryChief of Staff (acting), Chad Mizelle
    • Executive Secretary (acting), Juliana Blackwell
    • General Counsel (acting), Joseph B. Maher
  • Under Secretary, Management (vacant), Randolph D. “Tex” Alles, Senior Official Performing the Duties of the Under Secretary for ManagementChief Financial Officer (acting), Stacy MarcottChief Information Officer (acting), Elizabeth A. Cappello
  • Under Secretary, Science and Technology (vacant), William (Bill) Bryan, Senior Official Performing the Duties of the Under Secretary for Science and TechnologyDeputy Under Secretary (acting), Andre HentzDirector, U.S. Citizenship and Immigration Services (vacant), Ken Cuccinelli, Senior Official Performing the Duties of the Director, U.S. Citizenship and Immigration Services
  • Commissioner, U.S. Customs and Border Protection (acting), Mark A. Morgan
  • Administrator, Federal Emergency Management Agency (acting), Pete T. Gaynor
  • Director, U.S. Immigration and Customs Enforcement (ICE), (vacant), Matthew T. Albence, Senior Official Performing the Duties of the Director, U.S. Immigration and Customs Enforcement
  • Assistant Secretary, Countering Weapons of Mass Destruction Office (acting), Gary Rasicot

Having Acting officials in 15 of the most critical Homeland Security positions makes any kind of sustained improvement far more challenging. The only positions on this list that really need to be political appointees are the Secretary and Deputy Secretary, but making that change would require Congress and the President to agree to change the law, and that is not likely to happen. At a minimum, the positions should have fixed terms, such as the 5-year term for the Administrator of the Transportation Security Administration. If all of the senior DHS political jobs, other than the Secretary and Deputy Secretary, had fixed 5-year terms and could be removed only for cause, we might see all of the components better positioned to make real change.