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 Trump, Jared Kushner, Mike Pompeo, Kellyanne 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.