This is a quiz. Which of the following are basic constitutional rights guaranteed to every American? a) The right to publicly support the candidate of your choice for public office The correct answer is: none of the above. Wait, you say, I thought every American has these rights. Well, not quite every American. To be precise, there are a little over 3 million Americans who cannot do any of the above, under penalty of law. These Americans have a decidedly second-class citizenship, based, can you imagine, on their occupation. It will soon be election time once again, and I always try to do my civic duty. I register to vote, study the issues, listen to the speeches, and select the candidates of my choice. I may even make a very humble financial contribution to some campaign. I want to do more. I would like to go down to the local campaign headquarters of my candidate and stuff envelopes, or answer phones, or even make a speech on my candidates behalf at the local Chamber of Commerce. But then I realize that if I did any of these things I would be guilty of a federal crime. I would immediately be fired from my job, and would be subject to legal proceedings. Thanks to a 1939 law known colloquially as the Hatch Act, civilian employees of the federal government do not enjoy the same political freedoms routinely exercised by every other American. The Hatch Act prohibits federal employees from participating in any partisan political activity. We can vote, and we can even give money to political candidates, but we cannot stuff envelopes, or answer phones, or exercise our right to free speech before the Chamber of Commerce. The rationale for this curious exception to the Constitution is a fear that government employees might somehow use their office in such a way as to unduly influence the outcome of an election. The threat is that incumbent bureaucrats will conspire with incumbent politicians to somehow subvert the will of the electorate. This is a dubious assumption at best. Indeed, there is at least an equal probability that government employees will oppose the incumbent administration, rather than supporting it. But in either case, bureaucrats ought to have the same rights as everybody else to muck up the works with their goofy opinions. In the elections of 1984 a friend from my college days was running in the Democratic primary for a seat in the Pennsylvania state legislature. I briefly entertained the fantasy of visiting him in Philadelphia and, over a glass of his mother's homemade ice tea, helping him plot campaign strategy. For me to do so, however, would have involved an interstate crime, since I was then living and working in Phoenix, Arizona. I was a low-level employee of the Social Security Administration, helping retirees file for their Social Security benefits. And for the life of me I couldn't imagine anything I could have done in my official capacity that would have provoked the slightest notice in Philadelphia! How do we know when a law is broken and needs to be fixed? A law is broken when it leads to absurd results in which perfectly innocent behavior becomes unlawful. There is a legitimate public interest to be served here. It would be wholly unobjectionable to have a law which forbade government workers from using their offices, or official government time, to support a partisan political effort. Or which made it illegal to in any way suggest or imply that the government, or they in their official capacity, was endorsing any particular candidate. But unfortunately that's not what the Hatch Act does. The Hatch Act prohibits government employees from spending their own time, their own resources, and their private influence, on behalf of their chosen candidates for public office. The Hatch Act prohibits me from suggesting silly campaigns ideas to an old friend in Philadelphia. The Hatch Act forbids me to spend my Saturdays stuffing envelopes on behalf of Harold Stassen's latest presidential campaign. Or from making a fool of myself before the local Chamber of Commerce. No other group of citizens must endure such restrictions on their constitutional rights. No other Americans can be prevented from supporting the candidates of their choice and from speaking up and saying so. Imagine if we tried to impose such limits on political expression based on race, or gender. How is it then that we can blithely impose them based on occupation? Believe it or not, my modest political activities are not now, nor have they ever been, a threat to the stability of the Republic. The Hatch Act is, however, an ever-present danger to me, to my livelihood, and perhaps even my freedom. Indeed, if some politician were to come along who had the courage to advocate abolition of the Hatch Act, I just might find the courage to go down to their campaign headquarters and stuff a few envelopes.
This essay appeared in a slightly different form as an Op Ed piece in the Washington Post in August 1987. Five years later Congress repealed the main provisions of the Hatch Act. I like to think there is a connection. |