Editor’s Note: This story was originally published on March 6, 2018, when White House aide Kellyanne Conway received an official reprimand from the Office of Special Counsel for violating the Hatch Act. It was updated after the agency recommended Thursday that Conway be removed from federal service for being a “repeat offender” of the Hatch Act.
A federal agency recommended Thursday that White House aide Kellyanne Conway should be removed from federal service for being a “repeat offender” of the Hatch Act, a 1939 law that seeks to keep government functions nonpartisan.
The Office of Special Counsel, an independent agency tasked with enforcing the law, said in a letter to President Donald Trump that Conway, who serves as counselor to the President, erred by “disparaging Democratic presidential candidates while speaking in her official capacity during television interviews and on social media.”
Though the office said “Conway’s violations, if left unpunished, would send a message to all federal employees that they need not abide by the Hatch Act’s restrictions,” Trump, who is the ultimate enforcer of the act, said Friday that he does not plan on firing her, arguing that the law seemed to be limiting Conway’s right to free speech.
“I got briefed on it yesterday and it looks to me like they’re trying to take away their right of free speech. And that’s just not fair,” Trump told Fox News’ “Fox and Friends.” “She’s got to have the right of responding to questions.”
But what exactly is the Hatch Act, and are Conway’s violations out of the norm?
What the law does
The Office of Special Counsel – not to be confused with the Department of Justice’s special counsel investigation led by Robert Mueller – is a unique government body charged with enforcing a handful of rules, including the Hatch Act.
The law is supposed to stop the federal government from affecting elections or going about its activities in a partisan manner, and according to the OSC’s own explanation of the rule, it applies to federal employees as well as state and local employees who work with federally funded programs. The rule is a workplace guideline, and violating it is not a crime. Responses can vary significantly after employees violate the rule, from a slap on the wrist to loss of a job.
The OSC has its own guidelines for those covered by the Hatch Act to avoid violations, and more recently it has posted specific guidelines for social media. Some federal entities, like the Justice Department, have their own guidelines around political speech that go beyond the broad outlines of the Hatch Act.
Complaints are somewhat routine, and the debate over high-profile violations can be sharp, with interest groups and legal experts regularly weighing in and accusing government officials of violations.
Former FBI Director James Comey was himself at the center of a heated Hatch Act debate in the final days of the 2016 campaign. His decision to update Congress on the status of the Hillary Clinton email investigation received widespread criticism, and CNN legal analyst Steve Vladeck noted the varying Hatch Act complaints at the time, although Comey was not ultimately found in violation of the Hatch Act.
While the debate over Comey’s actions and cases like Conway’s receive the lion’s share of attention, the act is a routine boundary for rank-and-file government employees, who have to follow specific protocols to keep political beliefs from being perceived to affect the performance of the government.
In March 2018, the OSC handed down an announcement, citing the Hatch Act, telling employees to leave their “Make America Great Again” hats at home now that the President is officially running for re-election.
Who has violated it?
Conway is far from the first person in a high-profile role to violate the Hatch Act. In 2017, White House social media director Dan Scavino and then-US Ambassador to the UN Nikki Haley both received official warnings over tweets that the OSC said broke the rules.
Scavino got his warning in June after calling for a primary challenge to Republican Rep. Justin Amash of Michigan, and Haley got hers in October for retweeting Trump’s endorsement of a Republican from her home state of South Carolina. The OSC’s warning for Haley noted the Hatch Act does not apply to the president or vice president.
Complaints have cropped up in several other instances, including for then-Kansas Secretary of State Kris Kobach, who was appointed to the now-defunct presidential commission on voter fraud, and Senate Democrats last year called on the OSC to review Federal Communications Commission member Michael O’Rielly for a potential violation of the Hatch Act after he appeared at the Conservative Political Action Conference in February 2018.
Likewise, two Obama administration Cabinet heads faced Hatch Act reprimands. The OSC cited Health and Human Services Secretary Kathleen Sebelius for political comments in 2012, and Sebelius said afterward that she regretted her comments but took issue with the degree of the OSC’s response.
Obama-era Housing and Urban Development Secretary Julian Castro tried to avoid violating the law during a 2016 interview by saying he was taking off his “HUD hat for a second and just speaking individually,” before boosting Clinton.
That didn’t work. In its statement announcing Castro had violated the Hatch Act, the OSC noted he was there in his official capacity and had the department seal behind him.
CNN’s MJ Lee contributed to this report.