During his time in the White House, former-President Donald Trump was known to post a lot on social media. As the president, he was not only entitled to do so, but was legally allowed as well. The same isn’t true for those serving in the White House.
That is because the Hatch Act, a federal law passed in 1939—and named for Senator Carl Hatch of New Mexico, who introduced the legislation—prohibits civil-service employees in the executive branch from engaging in some forms of political activity. The president and vice president are exempt.
Earlier this month the Office of Special Counsel also announced it would increase its Hatch Act oversight. Some former federal employees could face proceedings before the independent, quasi-judicial Merit Systems Protection Board despite their departure from government service.
OSC has made clear that all federal employees may use social media and still comply with the Hatch Act, but they must follow three prohibitions:
(1) On Duty or in the Workplace Prohibition – Employees may not engage in political activity while on duty or in the federal workplace.
(2) 24/7 Prohibition – Employees may not knowingly solicit, accept, or receive a political contribution for a political party, candidate in a partisan race, or partisan political group.
(3) 24/7 Prohibition – Employees may not use their official authority or influence to affect the outcome of an election
Moreover, some employees are considered “Further Restricted” and they cannot take part an active part in any partisan political management or campaigning, including on social media.
“The Hatch Act is certainly relevant these days—and the recently confirmed head of the Office of Special Counsel, Hampton Dillinger announced an enforcement update to close a loophole,” said technology industry analyst Susan Schreiner of C4 Trends.
“Since the inception of the Hatch Act in 1939, government workers have faced strict limits on their political activity. Federal employees should be working for the greater public good and not for partisan ends,” Schreiner added. “Violators should face consequences and be reprimanded, fined and even barred from federal service.”
The issue of the Hatch Act does get more confusing as the rules state that employees may not like, follow, or friend the social media account of a political party, a candidate in a partisan race, or partisan political group while on duty or in the workplace. This includes those who work remotely from home—except in their own time, and when using their own personal devices.
“Employees should be aware of the social media rules and as always, if an employee is uncertain, they should contact an attorney,” explained Stephanie Rapp-Tully, partner in the Tully Rinckey Law Firm’s Washington, D.C. office.
“For agencies that have a ‘bring your own device’ policy for telework, employees have to be very intentional about separating time spent working and not working,” Rapp-Tully clarified. “Rules still apply if the employee is posting during duty hours.”
Is This Really Necessary?
It would seem that given how vocal so many Americans are today the rule would seem out of step, but in fact, the Hatch Act would be more important than ever.
“In these times of growing polarization and the future of democracy at stake, the enforcement and closing of the Hatch Act’s loophole has never been more important,” suggested Schreiner. “Dillinger announced the end of deferential treatment for senior White House personnel including assistants to the president and others deemed commissioned officers to the law’s full enforcement. He also announced new enforcement mechanisms and clear guidance and rules for federal workers.”
Given that more and more Americans get their news from social media and the fact that misinformation and disinformation spread so quickly on the platform, those serving in the executive branch—which includes most independent agencies—are bound by the rules put in place by the Hatch Act.
“In this time of social media influence, increasing political polarization, and as seen on and post-January 6th the skyrocketing of intimidation tactics, threats, vulgarity, corruption, and coercion, does the Hatch Act go far enough,” pondered Schreiner. “At a time when we’re witnessing Supreme Court judges voicing political opinions and coercive political support is starting to mainstream, the Hatch Act can be a greater force for good, fairness and decency, and ensuring that democracy prevails.”
Is The Hatch Act Keeping Up With Technology?
Obviously, the Hatch Act was signed into law decades before social media and even the Internet, however, it was only last updated in 2012.
“Like most legislation, the Hatch Act tries to keep up with the technology, but that is where interpretation and enforcement play a critical role,” said Rapp-Tully. “Depending on whether an employee is a further restricted employee or not, one may want to avoid any type of political post on social media altogether. However, it is important to remember that there is a difference between discussing current events or legislation and endorsing a specific candidate or seeking donations to support a candidate.”
In other words, those in the federal government can engage in some political discussions. They just need to be careful how their activity is conducted.
“I don’t think the government will ever seek to silence political discussion of policies or current events because that would potentially infringe on a person’s freedom of speech and be inherently unAmerican,” Rapp-Tully continued. “There will not ever come a time that employees cannot engage at all on social media regarding politics. That is not to say that some will choose not to engage at all because of potentially crossing over that line, even inadvertently.”
