September 17, 2012
By Hans A. von Spakovsky
This February, Kathleen Sebelius told those attending a Human Rights Campaign gala in North Carolina that it was imperative they ensure “in November [Obama] continues to be president for another four years.” Moreover, they needed to “reelect the president and elect a Democratic governor here in North Carolina.” The event was listed as an “official appearance” of the HHS Secretary. Uh oh.
In a report issued August 23, the Office of Special Counsel concluded that Sebelius’s speech was a clear violation of the Hatch Act. The secretary had engaged in prohibited political activity under 5 U.S.C. § 7323(a)(1), and the U.S. Treasury paid for the cost of her political activity in violation of 5 U.S.C. § 7324(b). Sebelius subsequently tried to solve the payment problem by having the Democratic National Committee reimburse HHS for the costs of her trip to North Carolina, and HHS reclassified her appearance as “personal” as opposed to “official.”
Some might agree with Sebelius’s claim that her active campaigning was only a “technical and minor” violation of the Hatch Act. I have also heard it said that the Hatch Act is pointless, that this type of political campaigning by political appointees like Sebelius should not be illegal. I could not disagree more.
Let’s remember why we have the Hatch Act in the first place. It was passed in 1939 amid widespread and well-documented claims that the Roosevelt administration had used one of the New Deal programs — the Works Progress Administration — to influence the 1938 congressional elections. Democratic politicians in states such as Kentucky, Tennessee, and Pennsylvania had used WPA jobs and money to gain votes.
The Hatch Act was bipartisan, remedial legislation intended to prevent that from happening again. No more would government employees be able to use taxpayer funds and federal jobs to influence elections. The sponsor, Carl Hatch, was a Democratic senator who firmly believed that this type of corruption should not be allowed. The Hatch Act was and still is good public policy. It would be fundamentally unfair to allow federal employees like Kathleen Sebelius to use their official positions and taxpayer funds to engage in electioneering in behalf of her party’s candidates.
As outlined in the Federal Prosecution of Election Offenses, a handbook published by the Justice Department for its prosecutors, a “violation of the Hatch Act’s politicking ban is not a federal crime; it is a personnel infraction.” That is why the Office of Special Counsel, instead of prosecuting Sebelius, sent its report to President Obama. It is up to the president to take appropriate action. The White House, however, has already said it will not discipline Sebelius for violating the law while at the very same time claiming that “the administration holds itself to the highest ethical standards.”
That is unfortunate for the interests of honest government. A career civil servant who violates this provision faces penalties ranging from a minimum 30-days suspension to termination from employment.
The DNC’s reimbursement of Treasury is a wholly insufficient remedy for this offense. Political appointees such as Sebelius have a fiduciary duty just as great as that of civil-service employees to conduct their official duties in a fair, impartial, objective, and nonpartisan manner.
Sebelius violated that trust, but apparently will suffer no consequences for doing so. All the more reason for the Hatch Act to remain in place — so that there is at least some statutory curb on wayward administrations inclined to use federal jobs and federal funds to, as Sebelius said in her North Carolina appearance, “reelect the president.”
First appered in National Review's The Corner.
Hans A. von Spakovsky
Manager, Election Law Reform Initiative and Senior Legal Fellow
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