What is the Hatch Act?
The Hatch Act—a federal law passed in 1939—limits certain political activities of federal employees, as well as some state, District of Columbia, and local government employees who work in connection with federally-funded programs. See 5 U.S.C. §7323.
The law’s purposes are (1) to ensure that federal programs are administered in a nonpartisan fashion, (2) to protect federal employees from political coercion in the workplace, and (3) to ensure that federal employees are advanced based on merit and not based on political affiliation.
Federal Employees Covered
Except for the President and Vice President, all federal civilian executive branch employees are covered by the Hatch Act—including employees of the U.S. Postal Service. Even part-time employees are covered by the Hatch Act, and all employees continue to be covered while on annual leave, sick leave, leave without pay, or furlough.
But employees who work on an occasional or irregular basis—or who are special government employees, as defined in 18 U.S.C. § 202(a)—are subject to the restrictions only when they are engaged in government business. Federal employees fall within two categories under the Hatch Act: Further Restricted and Less Restricted.
Most federal executive branch employees (except those identified as Further Restricted Employees) are considered Less Restricted under the Hatch Act. Less Restricted employees may take an active part in partisan political management or partisan political campaigns.
Less restricted federal employees may not:
• Use their official authority or influence to interfere with or affect the result of an election, by (for example):
o Using their official titles or positions while engaged in political activity
o Inviting subordinate employees to political events or otherwise suggesting to subordinates that they attend political events or undertake any partisan political activity
• Solicit, accept, or receive a donation or contribution for a partisan political party, candidate for partisan political office, or partisan political group by (for example):
o Hosting a political fundraiser
o Collecting contributions or selling tickets to political fundraising functions
• Be candidates for partisan political office
• Knowingly solicit or discourage the participation in any political activity of anyone who has business pending before their employing office
• Engage in political activity—i.e., activity directed at the success or failure of a political party, candidate for partisan political office, or partisan political group—while the employee is on duty, in any federal room or building, while wearing a uniform or official insignia, or using any federally-owned or leased vehicle. For example, while at work employees may not:
o Distribute campaign materials or items
o Display campaign materials or items
o Perform campaign-related chores
o Wear or display partisan political buttons, t-shirts, signs, or other items
o Make political contributions to a partisan political party, candidate for partisan political office, or partisan political group
o Post a comment to a blog or a social media site that advocates for or against a partisan political party, candidate for partisan political office, or partisan political group
o Use any e-mail account or social media to distribute, send, or forward content that advocates for or against a partisan political party, candidate for partisan political office, or partisan political group
Less restricted federal employees may engage in partisan political management and campaigns. Such employees, may (for example):
• Be candidates for public office in nonpartisan elections
• Register and vote as they choose
• Assist in voter registration drives
• Contribute money to political campaigns, political parties, or partisan political groups
• Attend political fundraising functions
• Attend and be active at political rallies and meetings
• Join and be an active member of political clubs or parties
• Hold office in political clubs or parties
• Sign and circulate nominating petitions
• Campaign for or against referendum questions, constitutional amendments, or municipal ordinances
• Campaign for or against candidates in partisan elections
• Make campaign speeches for candidates in partisan elections
• Distribute campaign literature in partisan elections
• Volunteer to work on a partisan political campaign
• Express opinions about candidates and issues. If the expression is political activity, however—i.e., activity directed at the success or failure of a political party, candidate for partisan political office, or partisan political group—then the expression is not permitted while the employee is on duty, in any federal room or building, while wearing a uniform or official insignia, or using any federally-owned or leased vehicle
Further Restricted federal executive branch employees are prohibited from engaging in partisan political management or partisan political campaigns. Generally, Further Restricted employees are those employed in intelligence and enforcement-type agencies (except employees appointed by the President, with the advice and consent of the Senate). More specifically, Further Restricted employees are employed by the following agencies (or components) or in the following positions:
• Federal Election Commission;
• Election Assistance Commission;
• Federal Bureau of Investigation;
• Secret Service;
• Central Intelligence Agency;
• National Security Council;
• National Security Agency;
• Defense Intelligence Agency;
• Merit Systems Protection Board;
• Office of Special Counsel;
• Office of Criminal Investigation of the Internal Revenue Service;
• Office of Investigative Programs of the United States Customs Service;
• Office of Law Enforcement of the Bureau of Alcohol, Tobacco, and Firearms;
• National Geospatial-Intelligence Agency;
• Office of the Director of National Intelligence;
• Criminal Division of the Department of Justice;
• National Security Division of the Department of Justice; and
• Persons employed in positions described under Sections 3132(a)(4), 5372, 5372 (a), or 5372(b) of Title 5, United States Code, including:
o Senior Executive Service (career positions described at 5 U.S.C. § 3132 (a)(4))
o Administrative Law Judges (positions described at 5 U.S.C. § 5372)
o Contract Appeals Board Members (positions described at 5 U.S.C. § 5372 (a))
o Administrative Appeals Judges (positions described at 5 U.S.C. § 5372(b))
Further Restricted federal employees are prohibited from taking an active part in partisan political management or partisan political campaigns. Specifically, these employees may not campaign for or against candidates or otherwise engage in political activity in concert with a political party, a candidate for partisan political office, or a partisan political group. Such employees may not:
• Be a candidate for nomination or election to public office in a partisan election
• Take an active part in partisan political campaigns, by, for example:
o Campaigning for or against a candidate or slate of candidates
o Making campaign speeches or engaging in other campaign activities to elect partisan candidates
o Distributing campaign material in partisan elections
o Circulating nominating petitions
• Take an active part in partisan political management by (for example):
o Holding office in political clubs or parties
o Organizing or manage political rallies or meetings
o Assisting in partisan voter registration drives
• Use their official authority or influence to interfere with or affect the result of an election by (for example):
o Using their official titles or positions while engaged in political activity
o Inviting subordinate employees to political events or otherwise suggesting to subordinates that they attend political events or undertake any partisan political activity
• Solicit, accept, or receive a donation or contribution for a partisan political party, candidate for partisan political office, or partisan political group by (for example):
o Hosting a political fundraiser
o Inviting others to engage in political fundraising.
o Collecting contributions or selling tickets to political fundraising functions
• Engage in political activity—i.e., activity directed at the success or failure of a political party, candidate for partisan political office, or partisan political group—while the employee is on duty, in any federal room or building, while wearing a uniform or official insignia, or using any federally-owned-or-leased vehicle. For example, while at work employees may not:
o Wear or display partisan political buttons, t-shirts, signs, or other items
o Make political contributions to a partisan political party, candidate for partisan political office, or partisan political group
o Post a comment to a blog or a social media site that advocates for or against a partisan political party, candidate for partisan political office, or partisan political group
o Use any e-mail or social media account to distribute, send, or forward content that advocates for or against a partisan political party, candidate for partisan political office, or partisan political group
Further Restricted federal employees are prohibited from taking an active part in partisan political management or partisan political campaigns. Specifically, these employees may not campaign for or against candidates or otherwise engage in political activity in concert with a political party, a candidate for partisan political office, or a partisan political group. But such employees may, for example:
• Register and vote as they choose
• Assist in nonpartisan voter registration drives
• Participate in campaigns where none of the candidates represent a political party
• Contribute money to political campaigns, political parties, or partisan political groups
• Attend political fundraising functions
• Attend political rallies and meetings
• Join political clubs or parties
• Sign nominating petitions
• Campaign for or against referendum questions, constitutional amendments, or municipal ordinances
• Be a candidate for public office in a nonpartisan election
• Express opinions about candidates and issues. But if the expression is political activity—i.e., activity directed at the success or failure of a political party, candidate for partisan political office, or partisan political group—then the expression is not permitted while the employee is on duty, in any federal room or building, while wearing a uniform or official insignia, or using any federally-owned-or-leased vehicle.
Penalties for Violations of the Hatch Act and Related Laws
The penalty structure for violations of the Hatch Act by federal employees includes removal from federal service, reduction in grade, debarment from federal employment for a period not to exceed 5 years, suspension, reprimand, or a civil penalty not to exceed $1,000.
Some of the relevant statutes (laws) include:
• The Hatch Act, 5 U.S.C. § 7321-7326
• Political Participation, 5 U.S.C. §7321
• Definitions, 5 U.S.C. §7322
• Political Activity Authorized; Prohibitions, 5 U.S.C. §7323
• Political Activities on Duty; Prohibition, 5 U.S.C. §7324
• Political Activity Permitted; Employees Residing in Certain Municipalities, 5 U.S.C. §7325
• Penalties, 5 U.S.C. §7326
Employees of States, District of Columbia, and Municipalities
The Hatch Act restricts the political activity of individuals principally employed by state, District of Columbia, or local executive agencies and who work in connection with programs financed in whole or in part by federal loans or grants. Usually, employment with a state, the District of Columbia, or a local agency constitutes the principal employment of the employee in question. But when an employee holds two or more jobs, principal employment is generally deemed to be that job that accounts for the most work time and the most earned income.
The following list offers examples of the types of programs that frequently receive financial assistance from the federal government:
• public health
• public welfare
• housing, urban renewal, and area redevelopment
• employment security
• labor and industry training
• public works
• conservation
• agricultural
• civil defense
• transportation
• anti-poverty
• law enforcement programs.
Hatch Act provisions may also apply to employees of private, nonprofit organizations that receive federal Head Start or Community Service Block Grant funds.
State, District of Columbia, or local employees subject to the Hatch Act continue to be covered while on annual leave, sick leave, leave without pay, administrative leave, or furlough.
Hatch Act provisions do not apply to:
• Individuals who exercise no functions in connection with federally financed activities; or
• Individuals employed by educational or research institutions, establishments, or agencies that are supported in whole or in part by state or political subdivisions thereof, the District of Columbia, or by recognized religious, philanthropic or cultural organizations (e.g., administrators, teachers).
The law also exempts certain specified employees from the prohibition on candidacy for elective office.
These exemptions include:
• The governor or lieutenant governor of a state, or an individual authorized by law to act as governor;
• The mayor of a city;
• An individual holding public elective office. This exemption applies only when the elective office is the position that would otherwise subject the employee to the restriction of the Hatch Act.
• A duly-elected head of an executive department of a state or municipality who is not classified under a state or municipal merit or civil service system.
Covered state, District of Columbia, and local employees may not:
• Be candidates for public office in a partisan election, if their salary is entirely federally funded;
• Use official authority or influence to interfere with or affect the results of an election or nomination; or
• Directly or indirectly coerce, attempt to coerce, command, or advise a state, District of Columbia, or local officer or employee to pay, lend, or contribute anything of value to a party, committee, organization, agency, or person for political purposes.
State, District of Columbia, or local employees subject to the Hatch Act should note that an election is partisan if any candidate is to be nominated or elected as representing a political party—for example, the Democratic or Republican Party.
A note of caution—an employee’s conduct is also subject to the laws of the state and the regulations of the employing agency. Prohibitions of the Hatch Act are not affected by state, District of Columbia, or local laws.
Employees may, for example:
• Register and vote as they choose
• Assist in voter registration drives
• Express opinions about candidates and issues
• Contribute money to political organizations
• Attend political fundraising functions
• Attend and be active at political rallies and meetings
• Join and be active members of a political party or club
• Sign and circulate nominating petitions
• Campaign for or against referendum questions, constitutional amendments and/or municipal ordinances
• Campaign for or against candidates in partisan elections
• Make campaign speeches for candidates in partisan elections
• Distribute campaign literature in partisan elections
• Campaign for and hold office in political clubs or parties
• Volunteer to work on a partisan political campaign
• Participate in any activity not specifically prohibited by law or regulation
While engaging in these activities employees must be acting in their personal capacity and not their official capacity. For example, employees should not identify their official title when engaging in any of these activities.
Request a Hatch Act Advisory Opinion
The U.S. Office of Special Counsel (OSC) is authorized to issue advisory opinions under the Hatch Act. See 5 U.S.C. § 1212(f). OSC issues advisory opinions to persons seeking advice about their political activity under the Hatch Act. Individuals or their legal representatives may request an opinion about their own political activity.
In addition, employers may request an opinion about the political activity of their employees. Such requests may be made by phone, fax, mail or e-mail. But any other person seeking advice about the political activity of another should instead file a complaint online using Form OSC-14. Completed forms can be mailed to:
Hatch Act Unit
U.S. Office of Special Counsel
1730 M Street, N.W., Suite 218
Washington, D.C. 20036-4505
Tel: (800) 85-HATCH or (800) 854-2824 or (202) 804-7002
Fax: (202) 254-3700
E-mail: hatchact@osc.gov
How to File a Hatch Act Complaint
OSC is also authorized to investigate violations of the Hatch Act. 5 U.S.C. § 1216 (a)(1)(2). If OSC charges an employee with a violation of the Hatch Act, those charges are adjudicated before the Merit Systems Protection Board. 5 U.S.C. §§ 1215, 1504-1508, 7321-7326.
Filers alleging a violation of the Hatch Act should use Form 14 (on the Office of Special Counsel website at www.osc.gov) to submit their allegation to OSC. Filers can complete the form online and mail it or fax it (202-254-3700) to OSC. Filers should also include any evidence supporting their allegations—for example, documents, newspaper articles, photographs, etc.
If the form is not filled out completely or the allegations are insufficient, OSC will require the complaint filer to provide additional information before it investigates. Filers should be sure to include all of the following information in the complaint:
• Name and contact information of person who violated the Hatch Act (Subject)
• Agency and position of Subject
• Detailed description of the alleged Hatch Act violation, including names and contact information of potential witnesses and whether, for example, the election at issue is partisan (meaning the candidates are running as political party candidates)
In addition, for allegations involving a state, District of Columbia, or local government employee, include:
• Information about the federal funding the Subject’s employing agency receives
• Description of the duties the Subject performs in connection with federal funds
Complaints should be sent to:
Hatch Act Unit
U.S. Office of Special Counsel
1730 M Street, N.W., Suite 218
Washington, DC 20036-4505
Fax: (202) 254-3700
hatchact@osc.gov
Enforcement
After investigating an alleged Hatch Act violation, OSC may seek disciplinary action against an employee before the Merit Systems Protection Board. When violations are not sufficiently egregious to warrant prosecution, OSC may issue a warning letter to the employee involved.
The Hatch Act is a federal law that restricts the political activities of federal employees to ensure the nonpartisan administration of federal programs, protect employees from political coercion, and maintain merit-based advancement. In Texas, as in all states, federal employees are subject to these rules, which vary depending on whether they are classified as 'Further Restricted' or 'Less Restricted.' Most federal employees are 'Less Restricted' and can engage in a range of political activities, but cannot use their official authority to influence elections, solicit political contributions, be candidates for partisan political office, or engage in political activity while on duty or using federal resources. 'Further Restricted' employees, such as those in intelligence or enforcement agencies, face stricter limitations and cannot take an active part in partisan political management or campaigns. Penalties for violations can include removal, demotion, or fines. State, local, and certain non-profit employees in Texas who work with federal funds are also subject to Hatch Act restrictions, primarily concerning candidacy in partisan elections and the use of official authority to affect elections. The U.S. Office of Special Counsel (OSC) provides advisory opinions on the Hatch Act and investigates violations, with enforcement actions adjudicated by the Merit Systems Protection Board.
