What is the Hatch Act and Why Does it Matter Today?


By Joshua P. Geist
Goodrich & Geist, P.C.

There are few subjects more in the news today than the Hatch Act. Scroll through any of your favorite social media and on any given day the Act will be trending.

So what is the Hatch Act, why are we really only learning about it now, and why it is important in 2020?

The Hatch Act is a federal rather than a state law. Its full name is the Hatch Act of 1939, An Act to Prevent Pernicious Political Activities. Every federal civilian employee is covered by the Hatch Act except for the vice-president and the president.

Federal employees are divided into two categories as regards the Hatch Act: Less Restricted and Further Restricted, and even part-time employees are covered by the Act.

Per a 2020 opinion by the U.S. Office of Special Counsel, most federal executive branch employees are considered Less Restricted under the Hatch Act. Less Restricted employees may take an active part in partisan political management or partisan political campaigns. However, Further Restricted federal executive branch employees are prohibited from engaging in partisan political management or partisan political campaigns.

Further Restricted employees are any employee of one of a large number of federal agencies, including the Central Intelligence Agency, the Criminal Division of the Department of Justice, the Federal Bureau of Investigation, and the National Security Agency.

The motivation behind the 81-year-old act is easy to understand. So that we as a nation can prevent abuse of power and corruption, federal employees — especially those engaged in fundamentally nonpartisan activities such as diplomacy — are prohibited from engaging in a range of political activity. This was deemed important in 1939 and it is arguably more important in 2020 than at any time since the signing of the Act.

As part of the 2020 Republican National Convention, the campaign to re-elect Donald J. Trump decided to hold part of the convention in the White House and to broadcast a speech from Jerusalem by the United States Secretary of State. If just these two actions do not shatter the letter of the Hatch Act, there is a weighty argument to be made that they obliterate the spirit of the law. Some political and legal observers were almost speechless as they saw these acts as severe and intentional violations of an Act created to protect the foundations of democracy.

While some pundits have argued that the Hatch Act exemption of the President and Vice-President is a kind of legal escape valve for many of the events of the RNC, it is clear that many Further Restricted Employees must have been involved in, for example, setting up the First Lady’s RNC speech at the White House. While COVID-19 has admittedly rounded the edges of certain activities the political establishment may have thought twice about in more normal times, it is difficult to make a cogent argument that the Hatch Act has not — at least on its face — been violated multiple times during the RNC.

But even if this is the case, does the Hatch Act have teeth in 2020? While loud voices on the social medium of your choice may rail against perceived egregious violations, how enforceable is the Hatch Act today?

Probably not very, is the most practical answer to materialize. The most realistic punishment for the Trump administration’s perceived violation of the Hatch Act could come when the national electorate votes in just over two months. The timeline for a Congressional investigation and any sanctions (such as another Impeachment) that might naturally follow are simply unrealistic given the timing of these violations. As happens so frequently in law and politics, what is written can dictate one direction while pressing practical considerations can make enforcement virtually impossible.

How history will treat current violations of the Hatch Act as well as other federal election regulations that may have their elasticity tested over the next weeks remains to be seen. There are strong historical antecedents that speak to federal officials having a black mark on their careers after involvement in an administration accused of corrupt activities. Perhaps the real teeth of the Hatch Act and the system’s ability to penalize its violators will only be seen months and years from now as legal academics may trace the career paths of some of the people in roles under today’s spotlight.

As we move forward towards the federal election, it is worth considering the Hatch Act as well as other laws relating to accepted political behavior as we trace the acts and omissions that may influence the nation’s political future as they test the viability of long standing laws and the judicial interpretations thereof.


Joshua Geist is a trial lawyer who represents individuals and families harmed by careless corporations, individuals and insurance companies. He is a partner with Goodrich & Geist, P.C. in Pittsburgh.


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