Academic Freedom and Expertise at Federal Institutions of Higher Education (and Elsewhere)

The Hatch Act is a law that forbids employees of the executive branch of the United States federal government from taking part in certain forms of political activity, usually in regards to supporting particular candidates or political parties in elections, while acting in their official capacity. What does this mean for academic experts on political matters who are employed by federal institutions of higher education?

In a recent essay at The Conversation, Marcus Hedahl, Associate Professor of Philosophy at the U.S. Naval Academy, discusses the “Fat Leonard” scandal—“the largest bribery and corruption case in U.S. Navy history.” The case is quite interesting in itself, but also, perhaps, for lessons it has “for other cases in which the alleged exchange of official acts for something of personal value is a key element of the crime.” Which other cases?

Professor Hedahl can’t say. He explains:

I am a federal employee, and the U.S. Office of Special Counsel [OSC] has issued unusually broad guidance about the Hatch Act’s limits on federal workers’ partisan political activities. The law generally bars federal employees from advocating in favor of or against the election of a particular candidate, as well from participating in other partisan political activities in an election. Yet the current guidance—which itself has been criticized for taking sides on a political divide—has been taken by some to apply to any analysis of any aspects of the president’s impeachment and trial.

Here’s an excerpt from the OSC’s statement about the Hatch Act and Donald Trump’s re-election campaign:

The Hatch Act prohibits federal employees from engaging in political activity while on duty or in a federal room or building. For purposes of the Hatch Act, political activity is defined as activity directed at the success or failure of a political party, partisan political group, or candidate for partisan political office. This prohibition is broad and encompasses more than displays or communications (including in-person and via email or social media) that expressly advocate for or against President Trump’s reelection. [emphasis added]

Professor Hedahl notes that the guidance is troubling in a couple of ways:

This is a free-speech problem, but it’s more than that. When federal and state governments hire experts and researchers as, in effect, public servants, I believe that expertise should be welcome in the public sphere, helping to inform the people we work for.

I work at a federally run university, which is why I come under these particular government rules. There are relatively few institutions like mine, so it might seem a minor issue. However, numerous states have laws similar to the Hatch Act, at least some of which apply to employees of those states’ public universities. If the current federal rules stand, public state university employees may well find themselves facing similar, or even more problematic, limits in the future, especially if analysis is taken to be a form of advocacy.

I don’t know to what extent “analysis is taken to be a form of advocacy” by those who are responsible for enforcing compliance with the Hatch Act, or how the OSC’s directives are being interpreted by gatekeepers at various federal institutions. I also don’t know how the federal government has been responding to allegations of Hatch Act violations (except for this one well-publicized case). But presumably there’s a reason Professor Hedahl felt obliged to refrain from commenting on President Trump’s impeachment.

Discussion welcome, especially from academics working at federal institutions of higher education and those more familiar with the Hatch Act.

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