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Editorial Advisory Board: Kellyanne Conway should be fired for violating Hatch Act

Kellyanne Conway, counselor to the president, was recently accused by the U.S. Office of Special Counsel of multiple violations of the Hatch Act, a law passed in 1939. The Hatch Act forbids executive branch employees, except for the president and vice president, from using their official authority or influence for the purpose of interfering with or affecting the result of an election. It is a prohibited use of official authority for employees to use their official title or position while participating in political activity. Political activity includes activity directed at the success or failure of a political party or candidate for partisan political office.

The Hatch Act, thus, prohibits an executive branch employee in her official capacity from promoting the election or defeat of a candidate for partisan political office. What the Hatch Act does not prohibit is a federal employee expressing views about candidates and political issues as a private citizen. But that is not what Conway did. As recounted by the OSC, Conway appeared in her official capacity on two news shows in the fall of 2017. In both she was pictured in front of the White House and was introduced as counselor to the president. Both were arranged by the White House Communications Office. She was speaking in her official capacity, with her official title, amid a full display of the accoutrements of her office. During both interviews she volunteered disparaging comments about Democrat Doug Jones, running for the Senate from Alabama. She urged voters not to be fooled by Jones and reeled off a list of reasons not to vote for him.

The OSC urged the president to fire Conway. He didn’t. Conway stated that she would not be silenced through the Hatch Act. The White House accused the OSC of violating Conway’s constitutional right to free speech.

Perhaps the White House should consult with National Security Adviser John Bolton. Before Bolton entered government, he was active in the First Amendment arena. He represented plaintiffs in Buckley v. Valeo to overturn campaign finance limitations on contributions and expenditures. In 1976, he wrote a monograph defending the Hatch Act’s prohibitions on partisan political activity by federal employees while clothed with official authority: “The Hatch Act: A Civil Libertarian Defense.”

It may seem inconsistent for Bolton to simultaneously defend under the First Amendment a restriction of the speech of federal employees, and to seek to overturn as an infringement of free speech the post-Watergate amendments to the Federal Election Campaign Act. But, as Bolton explained, the Hatch Act protects against political coercion by the federal government of both federal employees and the general public. “A federal employee has no more right to use [the political power that comes from the general public] for purposes of the political coercion of another employee than an agency of the government has the right to use its power for purposes of political coercion of the general citizenry.”

And it is to the protection of the general citizenry that Bolton finally turned in his defense of the Hatch Act: “Those who deal with the federal government or those who are significantly affected by it — and in 1976 that surely includes virtually all Americans — must be concerned about the effects of their political opinions and activities when they face federal bureaucrats able to engage in partisan political activity.” For this reason, the Hatch Act should be seen as a boon to free speech, not as its violation: “[R]estrictions on federal workers’ partisan activities are, in their plain effect, restrictions on governmental interference with speech and associational freedoms.”

What was true in 1976 is even more true today: the pervasive influence of the federal government in our daily lives. And Maryland has a special interest in assuring that our many federal employees are free from coercion. This is not a partisan concern, but an American one. Rep. Elizabeth Holtzman said in 1975: “[I]f there is one lesson we should have learned from Watergate, it is that we must strive to reduce, rather than increase, political influence in the Federal law enforcement and investigative agencies.”

Protecting all Americans from government coercion is what the Hatch Act is all about. Conway, who was thoroughly conversant with the Hatch Act, demonstrated her contempt for the rule of law by refusing to modify her conduct or even admitting blame. Instead, under the false rubric of “free speech,” she promises to continue wrongdoing.

For all our sakes, for the protection of our friends and colleagues in the federal workforce in our state and for everyone who deals with the United States in any capacity, Conway should be fired and the principles that John Bolton, proud of his Baltimore working-class origins, delineated over 40 years ago must be enshrined in practice.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Martha Ertman (on sabbatical)

Arthur F. Fergenson

Nancy Forster

Susan Francis

Michael Hayes

Ericka King

Stephen Meehan

William Michaels

Angela W. Russell

Debra G. Schubert

Mark Stichel

Vanessa Vescio

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.


One comment

  1. glegendre@comcast.net

    This article was an impressive commentary on the ongoing egregious activities of this supposed public servant. Even yesterday her ethic slurs on television interviews are public records of her inappropriate representations.