At this writing, the House Oversight and Government Reform Committee is engaged in a dispute with the White House over a subpoena that committee chairman Darrell Issa (R., Calif.) issued to David Simas, director of the White House Office of Political Strategy & Outreach (OPSO), demanding that Mr. Simas appear at a hearing to consider whether OPSO is complying with the Hatch Act. The White House has resisted the subpoena, refusing to produce Mr. Simas for the hearing on the grounds of executive privilege. On July 25, the committee passed a resolution that rejects the White House’s claim that Mr. Simas, as an assistant to the president, is immune from being required to appear before the committee.
It is unclear where this dispute goes from here. The White House undeniably has legitimate separation-of-powers concerns about subjecting an assistant to the president (one of the president’s closest advisers) to process from a co-equal branch of government, even if the White House could be overstepping its bounds under the federal district court’s decision in Committee on the Judiciary v. Miers by declaring that Mr. Simas is absolutely immune from even appearing before the committee.
In the sometimes-heated back and forth about the subpoena, some have questioned the legitimacy of the committee’s inquiry into the activities of OPSO, because there have been no allegations publicly voiced that OPSO has been operating in violation of the law. Nevertheless, there is ample justification for the investigation.
First, this administration has an abysmal record of complying with the Hatch Act, which restricts the partisan political activity of executive-branch employees. In 2010, the White House chief of staff, Rahm Emanuel, offered Representative Joe Sestak of Pennsylvania a government position if he would drop his primary challenge to Senator Arlen Specter. A former White House counsel preposterously claimed that this was legally justified as advancing the “legitimate interest” of the Democratic-party leadership by avoiding a divisive primary and retaining Sestak’s congressional seat. The president declined to punish then–HHS secretary Kathleen Sebelius after the Office of Special Counsel (OSC), which enforces the Hatch Act, found in 2012 that she had violated it by urging the crowd at an official event to reelect President Obama and elect other Democrats. Then–secretary of labor Hilda Solis is on tape soliciting a subordinate to attend a political fundraiser and to encourage others to attend as well — a clear violation of the Hatch Act. Finally, the evidence that the IRS targeted for extra scrutiny groups with conservative-sounding names that applied for tax-exempt status, or delayed their approvals to keep them out of the political arena, indicates Hatch Act violations there as well. Such an atmosphere of noncompliance with the Hatch Act alone raises legitimate questions about whether the White House is adhering to the law in the activities of OPSO.
Second, the circumstances of the rebirth of the White House political office in January, after President Obama closed the Office of Political Affairs three years earlier, provide further justification for the committee’s investigation.
OPSO was opened as this election cycle started to take shape, with President Obama promising Democrats that keeping control of the Senate was his top priority this year. The media have consistently reported that opening the rebranded political office was driven by the midterm elections, and the Washington Post even noted on February 20 that top White House officials, including the new political director, were working with Senate leaders to “align the legislative calendar with the administration’s activities to help endangered Senators.” Such legislative coordination might be business as usual but, under the standards the OSC applied to the Bush administration, suggests a violation of the Hatch Act through the use of official authority to affect the results of an election.
In 2011, the OSC issued a report on the political activities of the Bush White House and other federal officials during the 2006 election cycle. The report was highly critical of how the Office of Political Affairs operated in that cycle, characterizing it as a political boiler room. For reasons discussed here, the OSC used a flawed analysis in reaching many of its conclusions. Nevertheless, the report established standards by which the OSC will judge political activity in the White House, and the main thrust of the Oversight Committee’s investigation is to determine how, under those standards, the activities of the rebranded White House political office compare with those of the Bush OPA.
White House Counsel Neil Eggleston, in correspondence with the committee, has described the functions of OPSO as including (1) providing the president with information about the political environment and political issues nationwide; (2) working with constituent groups to evaluate public support for administration policies; and (3) communicating with these groups and with Democratic organizations to remain informed about the political environment and assist presidential decision-making. These are the traditional activities of the White House Office of Political Affairs, and they are consistent with the restrictions of the Hatch Act. Curiously, however, Mr. Eggleston did not include supporting the president’s political events as one of the functions of OPSO. But as has been well chronicled, the president is engaging in an enormous amount of political activity, presumably with support from his staff.
President Obama has attended around 400 political fundraisers so far in his presidency, including 40 this year and six last week alone. (As a point of reference, President Bush had attended around 216 at this point in his second term.). This level of political activity by the president invites all the same questions the OSC focused on in its 2011 report, including how the president’s activities were coordinated within the White House. With six political fundraisers last week, it is hard to imagine that whoever is supporting the president at these events had much time for any “official” activity. Given the OSC’s findings about the Bush administration, it is reasonable for the Oversight Committee to ask about the degree to which the employees of OPSO are engaged in partisan political activity and whether or not such activity is “incidental” to the official duties the White House counsel described.
Finally, there are legitimate questions about whether the White House is blurring the line between official and political activities. Two recent “mixed” trips involving both official and political events illustrate this concern. During a trip to Minnesota on June 26–27, the White House added official events to a previously scheduled fundraiser for the Democratic Congressional Campaign Committee, including a visit to a job-placement center with Senator Al Franken, who is up for reelection. Three weeks ago, the White House added an economic speech to a fundraising trip to Denver for Senator Mark Udall, who is in a close race for reelection. As a result of the official activities’ being added to these political trips, the cost of the president’s travel was borne to a greater degree by the taxpayers, and the campaign committees caught a financial break. Because this precise scenario was of great concern to the OSC while examining the 2006 cycle, it is fair for the committee to inquire about how these official events were added, and whether there was coordination with the senators’ reelection committees.
The Minnesota trip also presents an example of not blurring, but rather obliterating, the line between official and political activity. Referring to House Republicans explicitly at an official event on the economy, President Obama said, “Rather than invest in working families getting ahead, they actually voted to give another massive tax cut to the wealthiest Americans.” After the audience booed, President Obama responded, “Don’t boo, by the way. I want you to vote. I mean, over and over again, they show that they’ll do anything to keep in place systems that really help folks at the top but don’t help you” (emphasis added). This brief passage in the president’s 35-minute speech — which is qualitatively no different from the political exhortations by his former secretary of health and human services — transforms this official event into a political event. The president cannot violate the Hatch Act — which explicitly does not apply to the president or the vice president — but, just as with the Sebelius matter, his partisan political advocacy, even if spontaneous, means that the expenses for this event should be borne by a campaign committee, not the taxpayers.
Special Counsel Carolyn Lerner wrote to the committee that, on the basis of Mr. Eggleston’s representations in his letter, “it appears that the White House adhered to OSC guidance in determining the scope of activity for OPSO.” Ms. Lerner, however, conducted no investigation and was careful to qualify her assessment, stating, “To the extent that OPSO’s activities are limited to those described in the White House correspondence, OPSO appears to be operating in a manner that is consistent with Hatch Act restrictions.” It thus is an exaggeration to suggest, as Politico did in a headline, that the special counsel “cleared” the White House of Hatch Act violations. While no allegations of wrongdoing by OPSO have been made publicly at this time, we have seen that there are legitimate questions about its activities, particularly under the standards used by the OSC to evaluate the prior administration. With due regard for the substantial separation-of-powers interests of both parties, we may hope the committee and the White House will reach an accommodation that will allow these questions to be asked and answered.
Fundamentally, however, the problem that begets this perpetual cycle of investigations involving the White House is a deficiency in the Hatch Act itself, which allows many White House employees to engage in political activity while on duty without prescribing the limits of that activity, a problem compounded by the OSC’s 2011 report. Congress should work toward providing clear direction to White House employees, so that well-intentioned public servants are not susceptible to unwitting Hatch Act violations and taxpayers are not funding political activities.
— Scott A. Coffina was an associate counsel to President George W. Bush and, before that, an assistant United States attorney in Philadelphia. He currently is in private practice in Philadelphia and Washington, D.C. You can follow Scott on Twitter at @scottcoffina.