Nikhel Sus · November 2009
78 GEO. WASH. L. REV. 171 (2009)
The Hatch Act is a federal law that restricts the political activities of public employees. Specifically, it prohibits employees from engaging in political activity while they are on duty or in a government building. Although it was originally enacted in 1939 to prevent serious abuses of authority within the government workforce, in modern application, it has been strictly enforced against employees who engage in political discussion via e-mail. This strict enforcement is due in part to the relatively recent advent of the Internet, which has broadened the application of the statute in a way that Congress could not have anticipated when it last amended the Act in 1993. The problem is further exacerbated by ambiguous language within the statute itself. Consequently, many employees who have engaged in trivial or isolated instances of on-duty political expression have been prosecuted under the Act. Thereafter, these employees are either removed pursuant to the default penalty for violating the Act, or suspended without pay for a substantial period of time.
The current enforcement of the Hatch Act is problematic for two primary reasons. First, it chills the protected First Amendment speech of public employees. To be sure, the combination of harsh penalties, vague and conflicting standards, and overzealous prosecutorial efforts has undoubtedly deterred government employees from exercising their rights. Second, it does not meaningfully further, and in some ways is inconsistent with, the policy goals Congress sought to achieve by enacting the law.
The recent transition to the new presidential administration presents an ideal opportunity to implement new policies and legislative initiatives. Regrettably, the previous Administration’s enforcement of the Hatch Act has proven to be demonstrably inconsistent with both the spirit and the letter of the law. With these considerations in mind, this Note proposes that the Hatch Act be amended to (1) permit casual political discourse, either verbal or electronic, in the workplace, and (2) reform the default removal penalty provision.
Part I of this Note discusses the pertinent history of the Hatch Act, its current provisions, and the agencies that enforce and adjudicate Hatch Act violations. Additionally, Part I examines three different approaches taken in response to the widespread use of the Internet and e-mail in the government workplace. Part II identifies the problems with the current enforcement of the Hatch Act. First, it explains how the Internet has fundamentally changed the modern workplace. Second, it discusses the implications of the Act’s current enforcement, such as the chilling of protected speech and the failure to meaningfully further congressional objectives. Finally, it argues that the realities of the government workplace make an absolute ban on political discussion unworkable. Part III proposes that Congress amend the Hatch Act by permitting on-duty political discussion and reforming the Act’s penalty provision. And in order to illustrate the scope of this proposal, Part III applies the proposed amendments to the facts of two cases explored in Part I of the Note.
