The Office of Special Counsel (OSC), the agency tasked with investigating violations of and enforcing the Hatch Act, made major waves last week after releasing a report detailing widespread violations by 13 members of the Trump administration.
The Hatch Act prohibits federal employees from engaging in certain partisan political activities. Its purpose is to keep partisan politics independent from the administration of federal programs and ensure that individuals do not use their entrusted authority to affect the political process.
The revelations about the serious violations themselves are troubling enough — such disregard for keeping official business and political activity separate is unprecedented in scope and wildly inappropriate.
But even more explosive and alarming is OSC’s admission that the agency simply does not have enough tools to appropriately investigate and enforce a law that is crucial to the success of our democracy.
As the law currently stands, there are loopholes in the Hatch Act that mean the most senior officials in government can break the law and evade accountability. But the good news is that it doesn’t have to be this way.
The Hatch Act is a crucial law that is designed to keep government free from political interference and prevent public officials from using their influence to intervene in elections. And Trump administration officials did not just break the law – they shattered it.
OSC’s report found that in the waning days of the Trump administration, in the face of a contentious general election, 13 senior officials violated the Hatch Act by choosing “to use their official authority not for the legitimate functions of the government, but to promote the reelection of President Trump in violation of the law.”
They showed “pernicious” and “willful disregard” for the law, and their conduct had a predictable cascading effect: other, less senior members of government questioned whether they too had to comply with the Hatch Act.
Members of the public flooded OSC with complaint requests, showing in real time how violations of the Hatch Act can undermine the public’s confidence in government. The lack of immediate accountability sowed doubt about whether the most powerful members of the most powerful government in the world could be above the law.
That cascading effect is precisely why Hatch Act reform and better enforcement are critical. One person violating the law and avoiding accountability is rarely the end of the story.
When OSC finds Hatch Act violations by senior members of the executive branch and publicizes them, the announcements make a splash. But that is precisely because accountability for the most senior officials is rare and penalties scant.
OSC acknowledged as much: though enforcement is not possible once violators leave office and largely relies on presidential cooperation, OSC issued the report “to fully document the violations, highlight the enforcement challenges that OSC confronted in investigating the violations, and to deter similar violations in the future.”
Public service is a public trust, and using public office for partisan political gain undermines the government's ability to conduct business. If the current paradigm stands, repeated Hatch Act violations will, over time, slowly erode the public’s trust in democracy and the institutions that support it.
In order to close the gaps in Hatch Act enforcement, it is critical that Congress pass the Protect Our Democracy Act. This law would improve Hatch Act enforcement by allowing OSC to specifically enforce the Hatch Act against political appointees who have for too long operated under a different standard than the rest of the federal workforce.
Under the Protect Our Democracy Act, OSC can investigate senior political appointees for Hatch Act violations and impose fines of up to $50,000 for violations. They can also seek to enforce the administrative penalties in the courts.