A federal watchdog agency wants Kellyanne Conway fired for repeatedly flouting the Hatch Act, but President Donald Trump and the White House say it’s a free speech issue. That’s not how this works.
The latest defense from the president involves a claim of free speech. “It really sounds to me like a free speech thing,” Trump said in a Friday interview with “Fox & Friends.”
But is the Hatch Act an unfair burden on Conway’s rights?
What is the Hatch Act?
The Hatch Act, officially titled “An Act to Prevent Pernicious Political Activities,” restricts the political work of government employees. In the simplest terms, the act prevents federal employees from partaking in political activity while they are on the clock or working in their official role.
The act and its enforcement by the Office of Special Counsel gives plenty of room for those employees to partake in the political process, but they must keep that activity outside of the confines of their official duties. And that’s where Conway found herself in trouble.
What did Kellyanne Conway do?
Conway has come under scrutiny multiple times for criticizing Democratic political candidates in media interviews.
The report from OSC recommending Conway’s termination makes clear that she did not run afoul of the Hatch Act by merely offering her political opinions on candidates for office — but that she did so in her position as a counselor to the president (emphasis added):
“Consistent with her duties in the Administration, Ms. Conway routinely gives official interviews promoting the President’s agenda. From February to May 2019, Ms. Conway gave dozens of interviews in her official capacity. During these interviews, some of which occurred on White House grounds, she was introduced as Counselor to the President and discussed official matters. And while speaking in her official capacity, Ms. Conway also engaged in campaign rhetoric, remarking on the strength of President Trump’s candidacy and/or the weaknesses of the Democratic Party’s candidates in the upcoming 2020 presidential election. Her comments were directed at persuading voters not to support the Democratic Party candidates in the 2020 presidential election and garnering support for the President’s candidacy, and therefore constituted political activity under the Hatch Act. By engaging in political activity while speaking in her official capacity, Ms. Conway used her official authority or influence for the purpose of affecting the result of an election in violation of the Hatch Act.”
The recommendation to fire Conway comes after multiple violations, warnings, and guidance on how to comply with the Hatch Act from OSC.
But why wasn’t the Hatch Act enforced during the Obama administration?
OSC is a non-partisan federal watchdog, and members of the Obama administration were found to have violated the act on multiple occasions. The big difference is the handling of those violations — it’s hard to find a past situation to compare to Conway appearing on television to openly flout the Hatch Act and say, “Let me know when the jail sentence starts.”
Former Health and Human Services Secretary Kathleen Sebelius was found to be in violation of the act for political remarks made during a 2012 speech at a Human Rights Campaign Gala, weighing in on the North Carolina gubernatorial race.
In 2016, Housing and Urban Development Secretary Julián Castro was called out by OSC for discussing the presidential candidacy of Hillary Clinton in an interview with Katie Couric. The secretary had attempted to differentiate his political remarks from his official comments by saying he was “taking off [his] HUD hat,” but was still found to be in violation.
Castro, now a candidate for the 2020 Democratic presidential nomination, offered an explanation for the difference between his violation and Conway’s during a Fox News town hall on Thursday:
“The difference between me and Kellyanne Conway, and the Office of Special Counsel pointed this out, she violated the Hatch Act, and instead of saying, ‘OK, look, I’m going to take these efforts to make sure that doesn’t happen again,’ she said, ‘To hell with it.’”
So is the Hatch Act unfairly burdening Kellyanne Conway’s right to free speech?
As outlined in the OSC letter, Conway has been given clear guidance on how to comply with the act. She isn’t restricted from commenting on politics; she’s restricted from making those comments in her official capacity and intermingling them with remarks on her work in the White House.
The Supreme Court has rejected arguments that the Hatch Act violates the First Amendment to the Constitution, most recently in the 1973 ruling of United States Civil Service Commission v. National Association of Letter Carriers.
In a 6-3 decision, the majority opinion found that “partisan political activities by federal employees must be limited if the Government is to operate effectively and fairly.”
And that was before Congress reformed the Hatch Act in 1993 to weaken some of its provisions.
Here’s the bottom-line: No other administration has struggled so much with a reasonably straightforward ethics rule. Why is it suddenly a problem now?
Please note: This is a commentary piece. The views and opinions expressed within it are those of the author only and do not necessarily reflect the editorial opinion of IJR.