Hatch Act strengthened as White House loophole is closed

The agency responsible for enforcing the Hatch Act is attempting to rein in years of White House violations with new guidance that could make disciplinary action more likely.

On Monday, the Office of Special Counsel announced it would no longer give the president sole discretion on whether to pursue violations, as it has for senior White House officials. Instead, cases will be brought to the Merit Systems Protection Board, a quasi-judicial body that can punish staffers if they are found to have violated the statute.

White House officials have routinely run afoul of the Hatch Act, which prevents federal employees from using their office to engage in political activity. The president and vice president are immune from the law, but other officials are not.

A host of Biden aides, from press secretary Karine Jean-Pierre to chief of staff Ron Klain, have been reprimanded by the OSC. In 2019, the office found that Trump adviser Kellyanne Conway violated the act so many times it recommended she be removed from office.

The OSC has long left it to the president to decide if and how these staffers should be punished, but the relative lack of action prompted the agency to reconsider the “loophole.” Only Senate-confirmed officials are not subject to the review board, it announced in a rule change it says aligns the statute with congressional intent.

Hampton Dellinger, appointed to lead the OSC in March, rolled out two other policy changes. Going forward, officials who leave their position can still be prosecuted for violations that occurred during their tenure at the White House.

The guidance also broadens a ban on political “swag” in the workplace. Employees cannot display items or wear clothing supporting candidates for office.

Previously, employees could do so at certain times of the year, such as immediately after Election Day.

“These enforcement changes should provide clear guidance and bright-line rules to federal workers and the public,” Dellinger said in a Politico op-ed announcing the new guidance.

The crackdown marks a reversal for the OSC, which previously pointed to a 1978 Justice Department opinion to exempt senior staffers from scrutiny by the review board. Discretion was also given to the president because the MSPB lacked a quorum for years and could not issue rulings.

It now has all three members seated.

Michael Chamberlain, director of Protect the Public’s Trust, a watchdog group that reported violations by Jean-Pierre, welcomed the development, predicting the new rules would “make people think twice in situations that may be close calls.”

CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER

“We sincerely hope this new interpretation leads to a more consistent application of the law,” Chamberlain, a former Trump administration official, said.

The White House did not respond to a request for comment.