Changes to Both Hatch Act and Anti-Lobbying Act You Should Be Aware Of
Both the Hatch Act, initially signed into law in 1939, and the Anti-Lobbying Act, initially signed into law in 1919, seek to place limits on federal government personnel regarding partisan political activities and lobbying Congress. Recent changes in both laws make it more likely that federal personnel may be found in violation of the statutes, and be subject to penalties.
Partisan Political Activities
The vast majority of executive branch personnel are aware that the Hatch Act places limits on partisan political activities by civilian employees in the workplace. (Members of the military services are subject to similar restrictions under DOD Directive No. 1344.10.) The “Hatch Act Amendments of 1993” removed the majority of restrictions related to voluntary, “free-time” or “off-duty” activities on behalf of partisan candidates or political parties, while not engaged in their federal jobs and away from federal premises.
However, executive branch personnel, other than the president and vice-president, are still prohibited from running for elective office in most partisan elections, from soliciting or accepting political campaign contributions, and from participating in partisan campaign activity on official duty time, or on federal property. Federal personnel in several departments and agencies, mostly those in the area of law enforcement of national security, are subject to far more restrictive provisions that prohibit participation in partisan political activities even when they are on free time.
It’s less well known that the Hatch Act also covers state and local government employees whose activities are in whole or even in part funded by federally appropriated monies, and prevents them from running for office in a partisan election, among other restrictions. In March, a bipartisan group of Members of Congress in both chambers introduced the “Hatch Act Modernization Act of 2012,” which would remove these restrictions on state and local government employees, but preserves them for federal personnel.
The Office of Special Counsel, which enforces the Hatch Act, supports (and actually wrote) the bill, as it removes OSC jurisdiction from state and local government personnel, freeing up resources to investigate alleged violations by federal personnel. The bill would also modify the penalties for violations of the act by federal personnel, allowing for fines, suspensions and reprimands, in addition to termination, which is the only current option. These changes would therefore make it easier for OSC to pursue alleged Hatch Act violations, and levy penalties.
The principal statutory restriction that limits the activities of federal personnel in their relations with Congress is Title 18 Sec 1913 of the United States Code, originally passed in 1919, and commonly known as the Anti-Lobbying Act. The Act places certain restrictions and limitations on career federal officials lobbying Congress, especially with respect to engaging in certain types of grass roots activities aimed at influencing pending legislation.
Title 18 Sec 1913 was originally codified as a criminal statute and therefore under the jurisdiction of the Department of Justice. The Anti-Lobbying Act underwent major revisions in 2002 that broadened but also clarified the restrictions on lobbying activities by federal personnel. In addition, the 2002 amendments removed the criminal penalties and substituted civil penalties, with fines that range from $10,000 to $100,000 dollars for each individual violation of the law which, like the proposed changes in the Hatch Act, make it more likely that federal personnel may be punished for violations of the Anti-Lobbying Act.
In addition to Title 18 Sec 1913, there are additional areas of restrictions on lobbying Congress by federal personnel, as well as non-federal personnel who work for organizations that receive federal funds. First, Congress almost always includes riders to the annual appropriations bills that prohibit career federal personnel from engaging in certain types of lobbying activities, and which generally apply as well to non-federal entities that receive federal appropriated funds.
Second, Title 31 Sec 1352 of the United States Code, commonly referred to as the Byrd Amendment to the Federal Acquisitions Regulations (FAR), places lobbying restrictions on organizations that receive federal grants and federal contractors. These prohibit the use of federal funds for lobbying purposes, but generally allow those organizations to lobby provided they use non-federal funds.
Third, OMB Circular A-122 prohibits non-profit organizations from using federal funds for certain types of lobbying activities.
Finally, individual departments and agencies all maintain their own rules and restrictions on lobbying activities, as well as guidance on what is permitted. These restrictions may well be narrower and stricter than any of the existing statutes and regulations, and it’s incumbent upon individual personnel to learn and follow their own agency rules and guidelines. To make matters even more complicated, jurisdiction over alleged violations of both the Hatch Act and the Anti-Lobbying Act are frequently confusing and overlapping, and may involve the Office of Special Counsel, the Justice Department, OMB, or the Inspector General and/or ethics office of the department or agency.
The bottom line
Ultimately, it’s the responsibility of all federal personnel to be acquainted with the laws, rules and regulations that govern both their partisan political and lobbying activities. Restrictions in these areas are very narrow and specific, and shouldn’t cause you to avoid political activity, or communicating with Congress. If there’s ever a question regarding a specific activity, contact your ethics office, in the case of the Hatch Act, or your ethics office, with respect to lobbying activities.