May 18, 2023

Luján proposes legislation to make Hatch Act violation decisions more transparent

Ben Ray Luján

U.S. Sen. Ben Ray Luján, a New Mexico Democrat, introduced a bill that would require Congress to be notified of alleged Hatch Act violations.

The Hatch Act regulates partisan political activities for most federal executive branch employees and some state and local employees.

“The Hatch Act was signed into law to prevent public officials from using their position for political gain while protecting federal employees from political influence,” Luján said in a news release. “However, when potential violations do occur, the Office of Special Counsel has failed to investigate and prosecute some of the most serious claims, undermining the American people and the rule of law.”

Luján’s bill, which has not been assigned a number yet, would require the OSC to report to Congress in the event it declines to investigate an alleged Hatch Act violation and to provide an annual report to the Chair and Ranking Members Senate Committee on Homeland Security and Governmental Affairs and the House Committee on Oversight and Reform.

The proposed public report would include the number of allegations received by the Special Counsel in the previous year and the number of allegations that resulted in an investigation, with separate data sets for political appointees and career federal workers.

The proposed bill also seeks to require OSC to provide the chair and ranking members of HSGAC and OGR with a confidential addendum to the annual report that includes the name and position of each political appointee (or former political appointee) who was the subject of an allegation, a description of each allegation, and a description of the outcome. In the case of an allegation against a presidential appointee who was not subject to Senate confirmation, the addendum shall include a statement as to whether OSC presented a complaint to the MSPB Board and whether the board collected any civil penalty, the bill states.

“It’s unacceptable when the line between politics and government is ignored,” Luján said in announcing the bill. “That’s why my legislation increases accountability to ensure Americans can have confidence in the public servants who work for them.”

The OSC already provides an annual report to Congress about its work throughout the fiscal year including its Hatch Act activities.

The Fiscal Year 2021 report was released in June 2022 and showed that the OSC issues more than 1,000 advisory opinions each year with the amount slowing from 1,461 in fiscal year 2020 to 1,043 in fiscal year 2021 which was primarily during the COVID-19 global health crisis.

“On the Hatch Act front, OSC resolved 375 Hatch Act cases, which is approximately 64 percent above the average of the five prior years. In addition, OSC issued 62 warning letters and successfully obtained disciplinary actions in seven cases against officials who committed Hatch Act violations,” the report states.

The OSC investigates alleged Hatch Act violations and prosecutes alleged violations in front of the Merit Systems Protection Board.

In the last few years alone, the OSC has investigated Hatch Act violations including alleged violations at the 2020 Republican National Convention by 13 senior officials within former President Donald Trump’s administration.

An OSC report released November 9 2021 on the findings from the 2020 RNC Hatch Act allegations found that at least 13 Trump Administration officials “used their official authority or influence to interfere with or affect the 2020 presidential election in violation of the Hatch Act.”

The 2020 RNC was held at the White House due to the COVID-19 pandemic, which was not found to be a Hatch Act violation, the report states.

The president does not fall under the jurisdiction of the Hatch Act, but senior officials within a president’s administration do fall under its purview, the report states.

“OSC concludes that at least 13 senior Trump administration officials (violated the Hatch Act) and, furthermore, that they did so with the administration’s approval,” the report states.

On Wednesday, the OSC announced that it sent a report to President Joe Biden about their findings that U.S. Attorney for the District of Massachusetts Rachael Rollins “willfully violated the Hatch Act on multiple occasions, thereby exhibiting an extraordinary abuse of her power as U.S. Attorney,” an OSC news release states. “OSC determined that the violations warrant disciplinary action.”

Rollins’ violations include attending a political fundraiser in June 2022 in her official capacity and the second was during August and September 2022 when she “repeatedly attempted to sabotage the campaign of a political candidate by leaking non-public U.S. Department of Justice information to the media to plant a story that the candidate she opposed was facing a DOJ investigation. In its report to the President, OSC characterized this violation as ‘one of the most egregious Hatch Act violations that OSC has investigated.’”