Rethinking the Hatch Act in a Post-Trump World

In the United States, the Hatch Act has long served as bulwark against the corrosive intersection of partisan politics and government power. Signed into law in 1939, the Hatch Act was designed to combat the corruption associated with the so-called “spoils system,” in which politicians dole out valuable government jobs to their supporters, and those supporters are in return expected to use their government positions to benefit their political patrons. Civil service laws that create a “merit system” attack the spoils system from one direction, by making politically-motivated hiring and firing more difficult. Laws like the Hatch Act complement these efforts by prohibiting government employees from engaging in partisan political activities. More specifically, the Hatch Act prohibits any federal officer or employee (other than the President or Vice President) from engaging in political activity while acting under his or her “official authority or influence.” (This prohibition, as interpreted, covers any sort of partisan political activity while on the job, including displaying political paraphernalia, distributing campaign materials, and soliciting campaign contributions.) Penalties for violating the Hatch Act can include fines, demotion, suspension, removal from office, and temporary debarment from future federal service.

Since its enactment, compliance with the Hatch Act has generally been quite good. But that changed in January 2017, when President Trump took office. Throughout the Trump years, rampant violations of the Hatch Act plagued the federal government. High-level Trump Administration officials like Ivanka TrumpJared KushnerMike PompeoKellyanne Conway, and Stephen Miller, among many others, engaged in likely Hatch Act violations, with no significant consequences. This exposed an uncomfortable truth: At least for high-level political appointees, the Hatch Act’s enforcement mechanisms are too week, and the penalties too negligible, to deter officials uninterested in complying with the law. Indeed, past compliance with the Act was likely more the product of government norms than fear of punishment.

Just to be clear, the situation is likely quite different for career civil servants who serve in government regardless of which political party holds the White House. With respect to these individuals, who comprise the overwhelming majority of the government, the Hatch Act’s prohibitions are strictly enforced, and the penalties are stiff. But for senior political appointees, the Trump Administration exposed glaring weaknesses in the Hatch Act’s efficacy, when the Administration has little interest in adhering to conventional norms of ethics and integrity. Two types of reform are needed:

  • One problem with the current system concerns the enforcement mechanism. The responsibility for enforcing the Hatch Act falls to the Office of the Special Counsel. But this office has proven reluctant to go after political appointees, and has further stated that certain presidential appointees “fall under the president’s authority to discipline for Hatch Act violations.” That means that the Special Counsel thought it was the job of Trump—a man who could not have cared less about anticorruption standards—to police his own appointees. Ensuring high-level compliance with the Hatch Act will require changing this system. The most promising reform along these lines would be to give the Department of Justice (DOJ) concurrent authority with the Special Counsel to prosecute Hatch Act violations. True, the DOJ is led by the Attorney General, who serves at the pleasure of the President. But the Trump years demonstrated that the DOJ’s strong norms of independence can persist even in the face of presidential hostility. The DOJ has shown no qualms in investigating, charging, and successfully prosecuting presidential appointees (look no further than Trump appointee Steve Bannon’s troubles with the Justice Department). Additionally, the Hatch Act does not have a statute of limitations, either for employment discipline (such as suspension or demotion) or fines. This means that even if the sitting U.S. Attorney General simply functioned as a partisan hack, a later Attorney General might still pursue Hatch Act violations by political appointees in the previous administration. 
  • Changing enforcement mechanisms, while necessary, is not enough. The other big problem with enforcing the Hatch Act against senior political appointees is that the current penalties are insufficient. The Hatch Act’s maximum civil penalty of $1,000 is not very high, especially when one considers that many political appointees (especially in the Trump Administration) are fabulously wealthy. The threat of removal from office may seem like a bigger deterrent, but mandating removal of senior officials may run into constitutional barriers, given current Supreme Court doctrine on presidential power over the appointment and removal of senior executive branch personnel. The Hatch Act should therefore be amended to include stiffer penalties specifically for senior political appointees. Most straightforwardly, the maximum Hatch Act fine for those officials could be raised to, say, $50,000. But even stiffer penalties, including criminal sanctions and possibly jail time, should be on the table for repeated or particularly brazen violations committed by high-level political appointees. While Ivanka Trump may not bat an eye at a $50,000 fine, she most certainly would not like to the face the wrath of America’s criminal justice system.

These reforms would ensure that the Hatch Act—a crucial means for ensuring integrity in the U.S. federal government—remains effective, even in the face of disregard for ethical norms at the highest levels. Such a reform would both improve U.S. governance and help to rehabilitate America’s image abroad by sending the strongest of messages that the U.S. has moved beyond and rejected the brazen corruption of the Trump years.

14 thoughts on “Rethinking the Hatch Act in a Post-Trump World

  1. Great post Michael! You mentioned how the Hatch Act has no statute of limitations, so I wonder if the question is be whether a future Attorney General should pursue Hatch Act violations in previous administrations? While violations of the Hatch Act are bad, is it worth marshaling resources to go after cases in the past where evidence may be stale and it could be interpreted as political revenge? After all, you mentioned that prior to President Trump, the Hatch Act was generally obeyed, so President Trump could simply be an anomaly.

    • I definitely think that a new AG would have to make some sort of calculus as to whether it’s worth it to actually go after former officials. I think that an AG would be unlikely to go after former officials purely for revenge if there was no real case to be made. These cases would probably get thrown out, or at the very least come to a not-guilty verdict, and thereby undermine the prestige of DOJ. The structure I propose would hopefully act more as a deterrent than anything else.

  2. Hi Michael – thanks so much for this post! Compliance with the Hatch Act seems like many of the norms that we can no longer take for granted. On your suggestion for more severe penalties – while I agree that the current maximum penalty may not be enough to compel compliance, especially in cases of wealthy politicians, do you worry that too harsh of a penalty (civil or otherwise) would actually result in fewer investigations/prosecutions? How could we mitigate this concern?

    • Laurel, I think your concern could likely be mitigated through careful drafting. For example, higher monetary penalties could apply only to political appointees or, in the alternative, could scale based on the individual’s rating on the GS pay-scale. Or, monetary penalties could be greater for those no longer employed by the government, as those people are less impacted by other penalties.

    • I suspect this could possibly lead to fewer prosecutions, but probably not fewer investigations. I don’t necessarily think, however, that fewer prosecutions would be a bad thing. The point of having a criminal sanction is more than anything to function as a deterrent. I think that if there is a risk of criminal sanctions hanging over someone like an Ivanka Trump, that in and of itself will lead to greater compliance.

  3. Thanks for this post! On the point around current penalties, even if the civil penalties are too low, doesn’t the Act provide enough forms of punishment without needing to raise the penalty amount? I agree entirely with your point that $1,000 is not a strong deterrent, but don’t suspension and removal seem adequate, and perhaps more effective than a higher civil penalty?

    • Part of the problem is that it’s unclear whether the current non-monetary penalties could be applied to senior political appointees. The law around appointment and removal makes it pretty tough to remove a presidential appointee — especially one that serves in the same capacity as, say, Kellyanne Conway.

  4. Thanks for this post, Michael! I wonder if there are any concerns about a future administration potentially seeming to “go after” a previous administration’s officials, even though the DOJ does in theory have this independence–as in, the Biden administration would not want to be seen by everyday Americans who don’t know the ins and outs of agency independence as unfairly punishing Trump appointees just for political retribution. Do you think one potential solution would be to set up some sort of independent body in charge of enforcing the Hatch Act? Like an independent counsel?

    • I share Brooke’s thoughts here! In the last few months, I think we’ve seen the desire of new administrations to start fresh, rather than be viewed by the public as wasting time or money in addressing the misdeeds of past officials. A new body could be established with cultural norms of independence that model those of the DoJ, for instance. This could be a best-of-both-worlds situation, where the new body would have the values of the DoJ, but a focus on Hatch Act violations that would prevent them from experiencing mission drift/resource diversion.

    • I think if DOJ is given jurisdiction over this, that could actually mitigate some of your concerns. AGs are particularly concerned about the prestige of their office, and would likely not allow prosecutions to proceed that were either frivolous or seen simply as a means to get revenge against former officials.

  5. Thanks for your post, Michael.
    I have a question regarding the last part of the first proposal. You mention that even if the sitting U.S. Attorney General functioned as a partisan hack, that could be solved by a later Attorney General. However, could the sitting Attorney General make sure the later one would not be able to do so by simply starting an investigation under the Hatch Act and finding those charged innocent? I wonder whether a later Attorney General could re-open the investigation or open a new one after this.
    Regarding the second proposal, what do you think of establishing the fines in a % of the official’s net income per year, for each year they were appointed in violation of the Hatch Act instead of a strict number (whether it is too low or too high)?

    • On your first point, to the best of my knowledge a future AG could just reopen an investigation. Just because one AG determined that someone is “innocent” doesn’t mean that a future AG is bound by that determination.

      On your second point, I don’t think that’s a bad idea in theory, but I’m not sure how well it would work in practice. For example, Kellyanne Conway is extremely wealthy, but made a pretty modest salary while working in the White House. If there was, say, a 10% fine on her salary while she served in the White House, that would be pretty insignificant from her point of view.

  6. Thank you for this post Michael. I am curious, the Hatch Act seems to cover ” any sort of partisan political activity while on the job.” This seems rather broad and dangerously ambiguous given how widespread the use of social media platforms are today. So your suggestion could potentially levy criminal sanctions and jail time on an individual who unknowingly violates the act, for example by accidentally retweeting or positively commenting on a “political activity” social media post.

    • The current structure of the government places a very big emphasis on Hatch Act violations. Employees undergo strict training on the Hatch Act, so it would be pretty hard for someone to accidentally violate the act. At the same time, the criminal sanctions I propose would only apply to senior political appointees — i.e., individuals who should be careful about their posts to begin with, and should quite frankly “know better.”

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