The so-called Hatch Act generally prohibits executive-branch officers and employees from “run[ning] for the nomination or as a candidate for election to a partisan political office.” (5 U.S.C. 7323(a)(3).)
The U.S. Office of Special Counsel, which enforces the Hatch Act and has authority to issue advisory opinions about it, has concluded that the Hatch Act’s “prohibition against candidacy ‘extends not merely to the formal announcement of candidacy but also to the preliminaries leading to such announcement and to canvassing or soliciting support or doing or permitting to be done any act in furtherance of candidacy.’” In its words, “any action that can reasonably be construed as evidence that an individual is seeking support for or undertaking an initial ‘campaign’ to secure a nomination or election to office would be viewed as candidacy for purposes of the Hatch Act.” Examples of “preliminary activities directed toward candidacy that would violate the Hatch Act” include “meeting with individuals to plan the logistics or strategy of a campaign.”
Richard Cordray, director of the federal Consumer Finance Protection Bureau, is subject to the Hatch Act bar. The Hatch Act uses the term “employee” but defines that term broadly to include “any individual, other than the President and the Vice President, employed or holding office in … an Executive agency other than the Government Accountability Office” (emphasis added). The law establishing the CFPB specifies that it “shall be considered an Executive agency, as defined in section 105 of title 5,” and that “[e]xcept as otherwise provided expressly by law, all Federal laws dealing with … officers [or] employees … shall apply to the exercise of the powers of the [CFPB].”
With that background, let’s consider this Cleveland Plain Dealer report from a month ago, titled “Richard Cordray is running for Ohio governor, Supreme Court justice was told.” The article begins (emphasis added):
Former Ohio Attorney General Richard Cordray is going to run for governor of Ohio, Ohio Supreme Court Justice Bill O’Neill said he was told last week by a mutual friend.
O’Neill said the friend, whom he declined to name, “openly stated” that Cordray is going to enter the 2018 Democratic gubernatorial primary. The friend called to see whether O’Neill would stick to his past statement that he would stay out of the 2018 Democratic gubernatorial primary if Cordray entered the race.
“The person I was talking to last week was saying that [Cordray] is basically trying to get as many projects done in Washington as he can before he leaves,” said O’Neill, the lone Democrat on the state’s high court. “But they left me with the clear impression that he is leaving.”
O’Neill, who has known Cordray since the two worked together in state government in the 1990s, said he will stick to his promise not to run for governor now that Cordray is entering the race.
It’s theoretically possible that this “mutual friend,” with apparent inside knowledge of Cordray’s plans, was acting as some sort of lone ranger to clear the field for Cordray. But it seems far more plausible that he or she was acting at Cordray’s request, or with his knowledge and approval, to give notice to a potential competitor and to get that competitor to stay out of the race for Ohio governor. If so, why wouldn’t that be the very sort of preliminary activity “directed toward candidacy” that would violate the Hatch Act?