Perhaps the biggest revelation in the report released last week by the Office of Special Counsel (OSC) is that the White House Office of Political Affairs (OPA) under Pres. George W. Bush engaged in . . . politics; and, by all indications, in much the same way that the Office of Political Affairs has done since it was first established by Pres. Jimmy Carter. Another significant revelation is that the special counsel has no appreciation for the unique employment environment of the White House, and how that environment necessarily affects any reasonable consideration of Hatch Act compliance.
In its 100-page report — three years in the making and, curiously, released within days of President Obama’s announcement that he is closing the OPA — the OSC alleges numerous violations of the Hatch Act by OPA employees and other Bush administration officials in the 2006 election cycle. These alleged violations primarily involved the participation by members of the OPA in political briefings and their coordinating requests from members of Congress for cabinet secretaries to take part in events in their districts.
To be sure, a few of the political activities cited in the report probably did cross the line. It would violate the Hatch Act, for example, to make attendance at a political briefing “mandatory” — putting aside the question of whether the briefings themselves actually constituted “political activity,” as the OSC alleges. And, of course, the Hatch Act is violated whenever official money is used for political purposes without reimbursement by the benefiting party or candidate. The limited instances where this is alleged to have occurred, however, were within the agencies, not at the White House. More important, the vast majority of the allegations of Hatch Act violations rest upon a fundamentally flawed analysis of the facts and the law that suggests an effort by the OSC to support a pre-determined conclusion that the OPA acted as a political “boiler room” in the run-up to the 2006 congressional elections.
The whole question arises because the president, in addition to being head of state, is uniformly recognized as the head of his political party. That role carries with it certain political responsibilities. The Hatch Act accommodates this fact by expressly excluding the president (and vice president) from its restrictions on the political activities of federal and state employees. Those responsibilities include helping to get like-minded candidates elected to Congress, not for the glory of the party, but to advance the president’s policies for the good of our nation.
Of course, the president cannot do it alone. The singular demands of the presidency require a large, dedicated staff to coordinate all of his activities, political and official. The Hatch Act recognizes this as well, permitting certain members of the White House staff whose duties continue outside of working hours and while they are away from their normal duty post — essentially, staffers who are always “on call” — to engage in political activity while on duty and while in a federal building, which are forbidden zones for political activities by other federal employees except, notably, most Senate-confirmed presidential appointees.
The reality of White House life — which OPC didn’t, or chose not to, understand — is that most employees are on call virtually all the time, and thus properly are exempt from the restrictions on political activity during working hours. To acknowledge that reality, however, would have left the OSC with no one to “cite” for Hatch Act violations for all the political activity that it describes as occurring within the OPA. The OSC therefore limited the scope of the Hatch Act exemption to the director and deputy director of political affairs. In order thus to narrow the exemption, the OSC relied on a separate employment statute governing pay levels and leave requirements, rather than on the criteria in the Hatch Act itself. Accordingly, the OSC (correctly) found that the director and deputy director of political affairs were permitted to engage in political activity, including political briefings, by virtue of their positions, but that other OPA staffers, particularly associate directors, were not. Apparently, in the OSC’s view, they did not work long enough days.
#pageViewed impartially, their duties would certainly seem to continue “outside normal duty hours” for federal employees, as they routinely left the EEOB at 10:00 p.m. and traveled on weekends in support of presidential events, but the OSC applied a standard that relies on status, not function. Since the Hatch Act itself provides a standard by which to evaluate whether an employee is exempt or not, there was no reason for the OSC to look to the “Leave Act” — unless it wanted to be sure to have someone to hold responsible for what it claimed was excessive politicking within the White House. So the folks at the bottom of the org chart, who often work the hardest for the least pay and whose contributions to certain presidential activities are indispensable, had to take the hit.
There are several other points in the OSC report suggesting a results-driven analysis. First, to support its conclusion that the OPA operated as a boiler room, the report cites the use by OPA staffers of Republican National Committee (RNC) e-mail accounts, computers, and cell phones, and the presence at times of RNC staffers in the OPA’s offices. This evidence may paint a picture of significant political activity, but the OSC draws the wrong conclusion. Rather than evidence of violating the Hatch Act, the use of these resources actually demonstrates the OPA’s compliance. As the report points out several times, the Hatch Act prohibits the use of official resources for political purposes. The White House obviously made a decision that OPA employees could lawfully engage in political activity in accordance with the Hatch Act exemption, but that they should use private, not public, resources when doing so. The use of RNC computers, BlackBerries and e-mail accounts, and even RNC employees to assist with some of the political workload, demonstrates an effort to comply with the Hatch Act, but the OSC chose not to consider the evidence in this light.
Finally, the report’s treatment of political, official, and “mixed” travel by cabinet secretaries acting as presidential surrogates further reveals the OSC’s outcome-driven approach. The OSC emphasizes OPA staff making recommendations on requests by members of Congress for political or official events and the surrogate scheduler communicating with agency contacts, but it downplays the fact that the logistical coordination of the events, which consumes a lot more time, was handled between the agency and the various members’ staffs. In concluding that some or all of OPA employees’ salaries should not have been paid with federal funds, the OSC makes no effort to evaluate their political activity in the context of their many other duties with which the OSC does not take issue, including serving as liaison and sounding board on policy and personnel issues with agency counterparts, the RNC, and state and local parties, and the support of presidential political activities. Perhaps if the OSC report had included a more complete discussion of OPA staffers’ duties, this would have offered some much-needed perspective on how their political duties fit into their average (long) workday, and thus a stronger basis to evaluate them against the requirements of the Hatch Act.
More alarmingly, the OSC concludes that certain surrogate events should not have been classified as “official” trips and funded at taxpayer expense because the events were politically inspired. This is a very slippery slope, requiring the discernment of subjective intent and inviting endless second-guessing about whether any policy event that occurs in a political battleground may be properly financed by the taxpayers. President Obama has visited Ohio, a key swing state for 2012, twelve times during his first two years in office, with at least three of those visits coming in the three months before the 2010 midterms. Will the OSC start looking at whether the official events were “politically motivated,” and thus improperly financed by the taxpayers? Will it question a hypothetical trip by the president to a Michigan auto plant to discuss the economy in October 2012? Indeed, the OSC has set up an impossible standard by which to evaluate such official activities. Is three months before an election too close to hold an official event with a vulnerable senator? Must it be four months, six months, or maybe even nine months before? How “vulnerable” must a congresswoman be in her race for reelection to cast suspicion on the “political motivation” behind an official event? Dead heat in the polls? Five points down? Ten points up but losing steam? Should the OSC be the arbiter of every “official” event attended by an administration official in an election year?
#pageThe only way to avoid this morass is to evaluate whether the events themselves objectively crossed the line into improper political activity. This can be judged by asking one question: Was the “official” event, as it actually occurred, essentially a campaign rally? In the OSC report, there is no evidence that, in any of the identified “official” activities, a cabinet secretary advocated the election or defeat of a particular candidate or that the events did not concern matters of legitimate public interest. While the timing and development of the official events identified in the report do raise legitimate questions, the OSC considered them with selective evidence against an impossibly subjective standard, significantly undermining its findings of Hatch Act violations.
As stated above, the Hatch Act specifically excludes the president and vice president from its restrictions and expressly permits political activity by a large, though unspecified, number of White House employees during business hours and in their offices. Add to that the considerable overlap between politics and policy and the fact that the president wears two hats — one official and the other political — and we quickly see that a substantial amount of political activity occurs by necessity in the White House. The OSC report illuminates the struggle that successive White House Offices of Political Affairs and White House Counsel’s Offices have had over the past 30 years in striking the right balance between appropriate and excessive levels of political activity. The questions are much more easily asked than answered, and providing guidance is more art than science.
Unfortunately, rather than acknowledging the ambiguities and making recommendations on how, if at all, the lines can be better drawn, the OSC apparently started with a premise that violations had occurred, and then crafted its analysis accordingly. In the process, the OSC has unfairly and incorrectly labeled as lawbreakers former employees of the Bush Office of Political Affairs, who were performing essentially the same duties as their predecessors of both parties. The OSC ought [a1] to reconsider its report, this time weighing the evidence against the actual provisions of the Hatch Act, and letting that exercise determine its conclusions.
— Scott Coffina served as a staff assistant in the White House Office of Political Affairs under Pres. Ronald Reagan, and as associate counsel to Pres. George W. Bush. He currently is in private practice in Philadelphia, Pa., and Cherry Hill, N.J.