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.
At least on paper, the Hatch Act doesn’t prevent federal employees from expressing political views, it instead limits “political activities”, which are ostensibly something else.
As to whether it violates the First Amendment, it has been upheld by the Supreme Court on a number of occasions. *United Public Workers* (1947) promoted a balancing test that deferred to Congress’ judgment on the importance of political neutrality for public employees. *USCSC* (1973) came out similarly, saying there were competing interests and that the Act plausibly balanced them.
Maybe more of interest here is how it’s also been extended to *state* employees. *Broadrick* (1973) allowed similar restrictions against state employees, though NTEU (1995) walked that back, as related to honoraria for speeches and writing (i.e., those can’t be banned to the extent suggested under *Broadrick*).
More generally, a lot of academics seem to think that “free expression” is not limited in the ways that, jurisprudentially, it actually is. I still remember from my First Amendment class what the professor said the first day: “many of us don’t realize all the ways in which our free expression is limited. There are all sorts of things you can’t do, from interrupting judges to playing loud music at night. These are not cognizable First Amendment actions.” And that’s generally true. I don’t think these “balancing tests” are going to appeal to a lot of liberals, but such tests are certainly a constitutionally-validated metric. (And note what that means: it doesn’t mean that the balancing tests come out the way they’re supposed to. It just means they *could* come out that way, at least in principle–i.e., they’re structurally deferential).
Jon – my impression is that the trend in 1st amendment jurisprudence over the last 60-70 years has been fairly consistently towards a broader interpretation of what it protects. Do you think those 1947/1973 judgements would be upheld by the current courts? (I have no idea myself; the partial 1995 walkback you mention got me wondering.)
I’m not sure that’s true, but there are so many currents in 1A that it might be hard to generalize. On the “expansiveness” side: Brandenburg (1969) is probably greater protection against incitement language than its predecessors. Phelps (2011) allowed some pretty substantial hate speech. Alvarez (2012) protected various forms of false speech (e.g., lying about being a military veteran). On the “restrictionist” side: Spock (1976) prevented all sorts of citizens’ activities on military bases. Hill (2000) allowed for limiting protest at abortion clinics. Driehaus (2014) also allowed for injury from speech, and potential injunctions. There’s also a good amount of jurisprudence restricting 1A in prisons and other penal settings–usually institutional deference vis-a-vis security, safety, and so on (e.g., Pell (1974) et seq.).
And it’s not even like all “pro-speech” stuff is good–e.g., most academics would be universally opposed to *Citizens United* (2010), which really needs a legislative, not judicial, solution (e.g., constitutional amendment). So the “pro-speech” side still runs against corporate donations, protests at abortion clinics, and so on, none of which it wants to allow.
But, yes, surely the jurisprudence will need to get revisited in this decade; you’d think social media would be a pretty robust test case for some of this (e.g., wait for some government employee to get fired for some tweet, then sue).
[Apologies for this not being directly relevant to OP, but hope the tangent might be admissible.]
Thanks, that’s helpful. (I was counting things like Citizens United and the abortion protests as part of my “broader conception” comment; it wasn’t intended normatively.)
My (possibly faulty) understanding of the Hatch Act would still forbid a federal employee from publicly espousing a political view aimed at the success or failure of a partisan political campaign if the employee was doing that *qua* federal employee.
In other words, John Q Fed can go to his local democratic political club meeting and say, “President Trump should be impeached!” without violating the act. On the other hand, if John Fed says, “Take it from me as an federal employee, President Trump should be impeached!” then he has violated the act by using his official status as a federal employee towards a partisan political end. That’s as it should be though; the government should be apolitical.
Note that there are some classes of federal employees like FBI agents who have even stricter restrictions on their political activities. And there are other classes of high ranking political appointees who are exempt from the Hatch Act.
Also for what it’s worth, I don’t see where the OSC guidance is too broad in its application of the act. The guidance rightly forbids all sorts of political activities that arent directly campaigning for a candidate. Feds cant have pictures of Trump from campaign rallies, etc. In my mind, letting feds express their views about impeachment qua federal employees is tantamount to that kind of partisanship.
Prof Hedahl is in an unenviable situation here, but I think its pretty clear that his situation is very rare and I wouldn’t support changing the guidance to accommodate a corner case like this. Surely there are plenty of other cases besides Trump’s impeachment that could be used to illustrate the relevant concepts for his students.
Surely too the public good of having tenured professoriate with academic freedom to criticize the president is already adequately served even without the benefit Prof Hedahl’s observations on the matter.
Would commenting on the impeachment of a federal judge be in violation of the act? I’m skeptical that it could be, since judges aren’t elected. So those of us in the federal government that study the history, ethics, and law of impeachments should, would, and have commented on those cases.
To claim that to express one’s views about impeachment of a President qua federal employees is tantamount to that kind of partisanship laid out in the Hatch act must thereby imply that one takes impeachment of a President to be the tantamount to an election of a President. That is a novel position (it has not been not taken before by the OSC) and it seems not only to be counter to the way the Constitution analyzes impeachment, but also, as noted in the original analysis, that position itself is a partisan one. If there is no way out the partisan pickle, better to err on the side of free speech for all sides, rather than to use the partisan position of one side to silence the other.
It is true that the Hatch Act on paper does not limit expressing political views, but rather “political activities”, but endorsing a candidate running for federal under one’s official title would likely (and I take it rightly) be an act type that would fall under both categories. That isn’t problematic in and of itself. I don’t think public discourse is worse off for not having professors at state or federal institutions able to publicly endorse a given candidate under their title. What is problematic is not the Hatch Act, but rather the Office of Special Council’s current guidance regarding the Act (Here’s the guidance update https://web.archive.org/web/20200106212710/https://osc.gov/Documents/Hatch%20Act/Advisory%20Opinions/Federal/Current%20Guidance%20on%20President%20Trump%27s%20Reelection%20Status.pdf
and the clarification
https://int.nyt.com/data/documenthelper/500-osc-hatch-act-advisory-novembe/6255daba98ab1a42d079/optimized/full.pdf#page=1).
Two things are problematic about the current guidance: 1) equating impeachment with an election, an act that seems in and of itself to be a politically charged decision 2) Taking a much broader stance about what constitutes political activity to include much of what many people would consider expressing a political view.
The American Federation of Government Employees is, to the best of my knowledge, still engaging in a legal fight against that guidance. (https://federalnewsnetwork.com/workforce-rightsgovernance/2019/08/afge-sues-osc-over-hatch-act-guidance-on-resistance-impeachment-talk-in-federal-workplace/). We might well worry about the effects on any balancing test if that guidance were allowed to be upheld, especially if the impacts included employees of state institutions.