    [House Hearing, 110 Congress]
    [From the U.S. Government Publishing Office]

      H.R. 4272, AN ACT TO AMEND CHAPTER 15 OF TITLE 5, UNITED STATES CODE

    =======================================================================

                                    HEARING

                                   before the

                       SUBCOMMITTEE ON FEDERAL WORKFORCE,
                        POSTAL SERVICE, AND THE DISTRICT
                                  OF COLUMBIA

                                     of the

                             COMMITTEE ON OVERSIGHT
                             AND GOVERNMENT REFORM

                            HOUSE OF REPRESENTATIVES

                           ONE HUNDRED TENTH CONGRESS

                                 SECOND SESSION

                                       ON

                                   H.R. 4272

     TO AMEND CHAPTER 15 OF TITLE 5, UNITED STATES CODE, TO PROVIDE FOR AN
     ADDITIONAL, LIMITED EXCEPTION TO THE PROVISION PROHIBITING A STATE OR
      LOCAL OFFICER OR EMPLOYEE FROM BEING A CANDIDATE FOR ELECTIVE OFFICE

                                   __________

                               SEPTEMBER 11, 2008

                                   __________

                               Serial No. 110-142

                                   __________

    Printed for the use of the Committee on Oversight and Government Reform

      Available via the World Wide Web: http://www.gpoaccess.gov/congress/
                                   index.html
                         http://www.oversight.house.gov

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    48-496 PDF                  WASHINGTON : 2009
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                  COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

                     HENRY A. WAXMAN, California, Chairman
    EDOLPHUS TOWNS, New York             TOM DAVIS, Virginia
    PAUL E. KANJORSKI, Pennsylvania      DAN BURTON, Indiana
    CAROLYN B. MALONEY, New York         CHRISTOPHER SHAYS, Connecticut
    ELIJAH E. CUMMINGS, Maryland         JOHN M. McHUGH, New York
    DENNIS J. KUCINICH, Ohio             JOHN L. MICA, Florida
    DANNY K. DAVIS, Illinois             MARK E. SOUDER, Indiana
    JOHN F. TIERNEY, Massachusetts       TODD RUSSELL PLATTS, Pennsylvania
    WM. LACY CLAY, Missouri              CHRIS CANNON, Utah
    DIANE E. WATSON, California          JOHN J. DUNCAN, Jr., Tennessee
    STEPHEN F. LYNCH, Massachusetts      MICHAEL R. TURNER, Ohio
    BRIAN HIGGINS, New York              DARRELL E. ISSA, California
    JOHN A. YARMUTH, Kentucky            KENNY MARCHANT, Texas
    BRUCE L. BRALEY, Iowa                LYNN A. WESTMORELAND, Georgia
    ELEANOR HOLMES NORTON, District of   PATRICK T. McHENRY, North Carolina
        Columbia                         VIRGINIA FOXX, North Carolina
    BETTY McCOLLUM, Minnesota            BRIAN P. BILBRAY, California
    JIM COOPER, Tennessee                BILL SALI, Idaho
    CHRIS VAN HOLLEN, Maryland           JIM JORDAN, Ohio
    PAUL W. HODES, New Hampshire
    CHRISTOPHER S. MURPHY, Connecticut
    JOHN P. SARBANES, Maryland
    PETER WELCH, Vermont
    JACKIE SPEIER, California

                          Phil Barnett, Staff Director
                           Earley Green, Chief Clerk
                   Lawrence Halloran, Minority Staff Director

    Subcommittee on Federal Workforce, Postal Service, and the District of
                                    Columbia

                            DANNY K. DAVIS, Illinois
    ELEANOR HOLMES NORTON, District of   KENNY MARCHANT, Texas
        Columbia                         JOHN M. McHUGH, New York
    JOHN P. SARBANES, Maryland           JOHN L. MICA, Florida
    ELIJAH E. CUMMINGS, Maryland         DARRELL E. ISSA, California
    DENNIS J. KUCINICH, Ohio, Chairman   JIM JORDAN, Ohio
    WM. LACY CLAY, Missouri
    STEPHEN F. LYNCH, Massachusetts
                          Tania Shand, Staff Director

                                C O N T E N T S

                                  ----------
                                                                       Page
    Hearing held on September 11, 2008...............................     1
    Text of H.R. 4272................................................     2
    Statement of:
        Maskell, Jack, legislative attorney, American Law Division,
          Congressional Research Service; and Sandra Bell, general
          counsel, Ohio Civil Service Employees Association, AFSCME
          Local 11 AFL-CIO...........................................    34
            Bell, Sandra.............................................    46
            Maskell, Jack............................................    34
        McPhie, Neil A.G., chairman, Merit Systems Protection Board;
          and Anthony Guglielmi, Director of Congressional and Public
          Affairs, U.S. Office of Special Counsel....................    13
            Guglielmi, Anthony.......................................    20
            McPhie, Neil A.G.........................................    13
        Stupak, Hon. Bart, a Representative in Congress from the
          State of Michigan..........................................     5
    Letters, statements, etc., submitted for the record by:
        Bell, Sandra, general counsel, Ohio Civil Service Employees
          Association, AFSCME Local 11 AFL-CIO, prepared statement of    48
        Guglielmi, Anthony, Director of Congressional and Public
          Affairs, U.S. Office of Special Counsel, prepared statement
          of.........................................................    22
        Maskell, Jack, legislative attorney, American Law Division,
          Congressional Research Service, prepared statement of......    37
        McPhie, Neil A.G., chairman, Merit Systems Protection Board,
          prepared statement of......................................    16
        Stupak, Hon. Bart, a Representative in Congress from the
          State of Michigan, prepared statement of...................     8

     H.R. 4272, AN ACT TO AMEND CHAPTER 15 OF TITLE 5, UNITED STATES CODE,
       TO PROVIDE FOR AN ADDITIONAL, LIMITED EXCEPTION TO THE PROVISION
    PROHIBITING A STATE OR LOCAL OFFICER OR EMPLOYEE FROM BEING A CANDIDATE
                              FOR ELECTIVE OFFICE

                                  ----------

                          THURSDAY, SEPTEMBER 11, 2008

                      House of Representatives,
    Subcommittee on Federal Workforce, Postal Service,
                          and the District of Columbia,
                  Committee on Oversight and Government Reform,
                                                        Washington, DC.
        The subcommittee met, pursuant to notice, at 2:03 p.m., in
    room 2154, Rayburn House Office Building, Hon. Danny K. Davis
    (chairman of the subcommittee) presiding.
        Present: Representatives Davis, Norton, Cummings, Kucinich,
    and Marchant.
        Also present: Representative Stupak.
        Staff present: Lori Hayman, counsel; William Miles,
    professional staff member; and Marcus A. Williams, clerk.
        Mr. Davis. The subcommittee will come to order.
        I welcome Ranking Member Marchant, members of the
    subcommittee, hearing witnesses, and all those in attendance to
    the Subcommittee on Federal Workforce, Postal Service, and the
    District of Columbia's legislative hearing on H.R. 4272, an act
    to amend the Hatch Act to provide for an additional, limited
    exception to the provision prohibiting a State or local officer
    or employee from being a candidate for elected office.

        [The text of H.R. 4272 follows:]

        [GRAPHIC] [TIFF OMITTED] 48496.001

        [GRAPHIC] [TIFF OMITTED] 48496.002

        Mr. Davis. The Chair, ranking member and subcommittee
    members will each have 5 minutes to make opening statements.
    And all Members will have 3 days to submit statements for the
    record.
        Hearing no objection, so is the order.
        I will begin. The subcommittee today convenes to discuss
    H.R. 4272, a measure introduced by our colleague,
    Representative Bart Stupak of Michigan, to provide certain
    State and local officers and employees an exemption to the
    Hatch Act provision prohibiting them from being a candidate for
    office in a partisan election.
        While today's hearing is narrowly focused on the Hatch Act
    and its impact on State and local government employees, the
    larger question at hand is, to what extent should citizens be
    restricted from pursuing elected public office for the purpose
    of promoting efficient and effective governance?
        On this, the 7th anniversary of the attacks on 9/11, let us
    remember those that lost their lives, as well as the rights and
    freedoms that we as Americans hold so dear. Like the right to
    vote, the right to be a candidate for an elected office is also
    fundamental to our unique democratic republic. Yet the Hatch
    Act attempts to balance this right with concerns over the
    potentially negative influence of political activity in the
    administration of general government operations or programs.
        Consequently, for decades, most Federal executive branch
    employees have been subjected to a number of restrictions and
    rules that details when, where, how and who can participate in
    political activity or partisan elections. Many of these same
    restrictions apply to certain State and local employees,
    particularly those employees of offices whose principal job
    functions are supported fully or in part by Federal grants or
    loans.
        Although nothing in current statute prohibits State and
    local employees from running for any elected office if he or
    she runs as a nonpartisan candidate, we continue to witness a
    slew of policy challenges, unintended consequences and
    questions resulting from this specific Hatch Act provision.
        This leads us to the subject of today's legislative
    hearing, which is an examination of the impact that the
    prohibition on pursuing elective office has on less densely
    populated areas, the exact issue H.R. 4272 seeks to address. It
    is my hope that today's hearing will allow us the opportunity
    to further explore some of these matters.
        And I would like to thank today's witnesses for joining us
    in this afternoon, and I look forward to their testimony.
        I would like to yield now to the ranking member, Mr.
    Marchant, for any opening comments that he might have.
        Mr. Marchant. Thank you, Mr. Chairman. Thank you for having
    this hearing today.
        The Hatch Act of 1939 is a Federal law whose main provision
    is to prohibit Federal employees there engaging in partisan
    political activity. It applies by extension to certain
    employees of State and local governments whose positions are
    primarily paid for by Federal funds. However, there are many
    individuals, such as hospital employees who deal with Medicare
    and Medicaid, who cannot run for public office because their
    business receives Federal dollars.
        The original intent and purpose of the Hatch Act was to
    keep partisan politics out of government work. But just because
    a person may indirectly receive Federal funds does not mean
    that they have control over those funds or that their
    government work can actually be influenced by partisan
    politics.
        This becomes even more complicated when the case of a town
    or county sheriff is considered. Law enforcement is a major
    recipient of Federal funds, so what does it mean for a deputy
    who wishes to run for sheriff, which is a public position?
        Additionally, many public positions at the local pay level
    either pay very little or nothing at all, certainly not enough
    for a person to quit their day job in order to serve the
    position.
        As a result, the Hatch Act, in its current iteration,
    severely limits which residents can be elected to serve in
    local public office.
        H.R. 4272 applies this legislation to cities with less than
    100,000 residents. I look forward to hearing from the witnesses
    about their thoughts on applying this bill to cities with less
    than 100,000 or perhaps there may be a better way of
    accomplishing the same goal by using a population as a
    deterrent.
        Any possible changes to the Hatch Act should be conducted
    in a very judicious matter and after careful consideration by
    this subcommittee.
        I appreciate the work of Mr. Stupak on this issue. I look
    forward to hearing from him and the witnesses today. Thank you.
        Mr. Davis. Thank you very much, Mr. Marchant.
        And now we will actually move to our first witness, who
    does not need to be sworn in because he is a Member of Congress
    and has been sworn in when he took his oath of office.
        Our witness is the Honorable Bart Stupak, who represents
    Michigan's First Congressional District, which is
    geographically one of the largest districts in the country.
    Congressman Stupak is a member of the House Energy and Commerce
    Committee and serves as chairman of the Oversight and
    Investigations Subcommittee.
        Prior to coming to Congress, Mr. Stupak was a police
    officer for 12 years, which led him to create and chair the
    Congressional Law Enforcement Caucus, a bipartisan organization
    of more than 100 House Members, which provides the Nation's law
    enforcement community with opportunities to participate in the
    legislative process.
        Representative Stupak, we thank you so much for being with
    us, and we are delighted that you have come to share and
    testify on your legislation this afternoon. The floor is yours.

      STATEMENT OF HON. BART STUPAK, A REPRESENTATIVE IN CONGRESS
                       FROM THE STATE OF MICHIGAN

        Mr. Stupak. Thank you, Mr. Chairman, for holding this
    hearing; Mr. Marchant, for being here and conducting this
    hearing.
        I ask that my full statement be made part of the record,
    along with the list of examples I have submitted, attached to
    my testimony, of members of my district, my constituents who
    have been affected adversely by the Hatch Act; and also a
    correspondence from Mr. William D. Schneider, who was also
    affected but he actually wrote a letter that he wished to be a
    part of the congressional record. So, without objection, I
    would ask that be made part of the record.
        You both summarized what we are trying to accomplish here
    with this. My district, as the chairman says, is one of the
    largest districts in the Nation. I have some counties which
    have very large land mass but very few people, like 10,000
    people. The biggest employer in many of my 31 counties that I
    represent is a hospital, the local hospital.
        And if you are an employee of that hospital, the literal
    reading of the Hatch Act--because most of our offices in
    Michigan is partisan, from county commissioners, city
    commissions, drain commissioners. It is always a partisan
    office. Even judges, in some areas, while not technically
    partisan, are nominated by the parties; therefore, they are
    considered partisan. Even though you don't say Democrat or
    Republican behind it, or independent, the party nominates you.
        So what we have found in the last 3 years, if someone
    doesn't think you should be on the county board of
    commissioners, they raise the Hatch Act if you work at the
    hospital, because the hospital receives Federal funding--
    Medicare reimbursements, Medicaid, sometimes direct grants and
    appropriations--and people are disqualified.
        The sheriff--we have had at least three or four sheriff's
    candidates. Maybe the sergeant was going to challenge the
    incumbent sheriff. Right away they used the Hatch Act, because
    they received Federal money for enforcement of the seat belt
    law, enforcement of minor in possession to enforce alcohol laws
    for minors. And these people were considered disqualified
    underneath the Hatch Act.
        We had one city go so far as to say, fine, during this
    election year of 2008, we will not accept any Federal money
    even though the purpose is to crack down on underage drinking,
    speeding, seat belt use; we are just not going to accept it.
    They had $594. I mean, that was the extent of it. It is not,
    like, huge sums of money. But because the person was a
    supervisor who supervised a program, they could not run for
    office.
        It is a constant problem, especially in small, rural areas.
    It is hard to find people to fulfill a position like county
    commissioner or city council because of all the headaches you
    put up with. Everybody in the town knows you, and if something
    goes wrong, your street isn't plowed in the wintertime, your
    phone is ringing constantly. And so it is hard to find good,
    qualified people who are willing to do it. And then when you
    suddenly raise the Hatch Act, that somehow casts negative
    aspersions, like you are violating the Federal law, people have
    resigned, people have not accepted appointments. It has been
    used more as a political weapon as to the true intent and
    spirit of the law.
        So the only suggestion I could come up with was counties
    less than 100,000, that the Hatch Act not apply. I am open to
    any suggestion to try to resolve this.
        I think the literal interpretation of the law has been
    carried to extremes, where people who are an employee of an
    agency that may receive Federal funds, they are disqualified
    from being in a partisan office. And according to our
    constitution in Michigan, just about every office is partisan.
    It really disqualifies a lot of people who have good
    intentions, public service at the heart of what they are trying
    to do. But it is being used as a political weapon by both
    parties, and no one is immune from this one.
        So I am open to suggestions. I wish we could move this
    legislation. We have already had the primary season; it is
    probably too late for this year. But next year, 2009, our city
    elections, which are partisan--and I am going to be facing this
    same issue again next year in 2009.
        So anything we can do to move this process along to, you
    know, protect the intent and spirit of the Hatch Act but not
    disqualify qualified people because their agency may receive
    some Federal money, I am open to suggestions.
        And I would extend my discussion and my testimony here. I
    am happy to answer any questions you may have.

        [The prepared statement of Hon. Bart Stupak follows:]

        [GRAPHIC] [TIFF OMITTED] 48496.003

        [GRAPHIC] [TIFF OMITTED] 48496.004

        [GRAPHIC] [TIFF OMITTED] 48496.005

        [GRAPHIC] [TIFF OMITTED] 48496.006

        Mr. Davis. Thank you very much, Representative Stupak. I
    have only got a couple of questions. And I thank you for your
    testimony and for your leadership.
        I would like to ask if you would like to join the panel
    once we have finished with questioning and participate in the
    hearing.
        Mr. Stupak. I would be happy to.
        Mr. Davis. Then, at that rate, I would like to ask
    unanimous consent that Representative Stupak be allowed to join
    us and participate.
        Mr. Marchant. Yes.
        Mr. Davis. Hearing no objection, we would be delighted to
    have you.
        The other question that I have is your bill creates a
    100,000 population threshold level for exemption from the Hatch
    Act that prohibits State and local employees from running for
    office. Is there a particular reason for the 100,000 threshold?
        Mr. Stupak. I have half the State, geographically. None of
    my counties--I think the biggest county is 70,000. So I could
    take it all into my whole district in consideration. So it
    would be at least resolved throughout my district. That is the
    only reason I put 100,000.
        Like I said, I am open to suggestions, whatever ideas you
    have. I don't want to necessarily put an arbitrary number, and
    if your county goes over so, I mean, you have the same
    problems. But I am open to suggestions. That is how I came up
    with it.
        Mr. Davis. One of the reasons I think I asked the question
    is that there are jurisdictions that, for example, in my State
    where individuals seek to run for the State legislature--people
    can run for the city council, because our city council
    elections are nonpartisan. But if they run for the legislature
    and happen to work for the State or any place where Federal
    funds are being used to fund a part of their salary, then, of
    course, technically they cannot run. And some of those
    districts may have a bit more than 100,000 population, and that
    was my rationale for asking the question.
        Mr. Stupak. I agree. And if there is some way we could
    tighten up this language--before I ran for State office, State
    House of Representatives, our law firm represented the city in
    litigation and also some other matters in which Federal money
    came in. So, to avoid that issue, I resigned from the law firm
    to run for public office. Now, I had the ability to do that.
    Not every candidate has the ability to do that.
        Did I have any control over that Federal money? No. Did I
    direct the Federal money? Did I do anything like this? Was I
    the grant-writer? No. I was a lawyer who represented the city
    in legal matters, and therefore I would have been disqualified
    underneath the Hatch Act to even seek the nomination of my
    party because of this. It would have been used as a political
    tool against me.
        So I am open to any suggestion you have. I don't know if it
    is tightening the language or what.
        But for a person who works at the hospital, because the
    hospital receives Medicare and Medicaid money, to be
    disqualified, as in this person who was appointed by the county
    board of commissioners upon the death of a commissioner in
    Schoolcraft County, which is a county of maybe 30,000, and then
    the opponents had him disqualified and basically publicly smear
    him for violating the law, the trust, because he worked at the
    hospital as a social worker. He had no control of the budget,
    no control of the money. He was paid by Schoolcraft. He had
    nothing to do with Federal money coming in, other than Federal
    money flowed into the program he administered for Medicaid
    people, people on Medicaid.
        That is what I am trying to get at. Any suggestions you
    have, I am open to suggestions.
        Mr. Davis. Thank you very much.
        Mr. Marchant, do you have any questions for Representative
    Stupak?
        Mr. Marchant. No, I don't. I look forward to the panel.
    Thank you.
        Mr. Davis. Then thank you very much. And if you care to
    join us, please do so.
        We will then proceed to our next witness.
        And our next witness is Neil A.G. McPhie, who is chairman
    of the Merit Systems Protection Board, which is an independent
    quasi-judicial agency established to protect Federal merit
    systems against partisan political and other prohibited
    personnel practices and to ensure adequate protection for
    employees against abuses by agency management.
        Prior to serving in this capacity, Chairman McPhie worked
    as the executive director of the Virginia Department of
    Employment Dispute Resolution.
        We also have Mr. Anthony Guglielmi. He is the director of
    congressional and public affairs at the U.S. Office of Special
    Counsel, an independent Federal investigative and prosecutorial
    agency. The OSC protects Federal employees and applicants from
    prohibited personnel practices.
        Before being appointed to this position, Mr. Guglielmi
    served as the deputy director and chief of staff for the Armed
    Forces Foundation and director of communication for the New
    York State Senate and Connecticut Board of Parole.
        If you gentlemen would stand and raise your right hands to
    be sworn in, as it is the policy of this committee to swear in
    all witnesses.
        [Witnesses sworn.]
        Mr. Davis. The record will show that the witnesses answered
    in the affirmative.
        We thank you all very much for coming and for being here.
        And we will begin, Chairman McPhie, with you.

        STATEMENTS OF NEIL A.G. MCPHIE, CHAIRMAN, MERIT SYSTEMS
         PROTECTION BOARD; AND ANTHONY GUGLIELMI, DIRECTOR OF
       CONGRESSIONAL AND PUBLIC AFFAIRS, U.S. OFFICE OF SPECIAL
                                COUNSEL

                        STATEMENT OF NEIL MCPHIE

        Mr. McPhie. Thank you, Chairman Davis and Ranking Member
    Marchant, for the opportunity to come before you and share
    information on the role of the MSPB in enforcing the Hatch Act.
        I have been asked to address three areas: first, the MSPB
    views on the bill itself, H.R. 4272; to the extent of MSPB's
    Hatch Act case law; and the nature of the decisions rendered in
    cases involving State and local defendants.
        Mr. Chairman, because the Board is a quasi-judicial agency
    and we hear these Hatch Act cases, we can take no position on
    the merits of the bill. Our view is whatever you pass, we must
    adjudicate.
        Moreover, H.R. 4272 will have minimal impact on the Board's
    caseload. Hatch Act cases involving State or local government
    employees represent less than 1 percent of MSPB's overall
    caseload.
        My testimony, therefore, will focus more on the MSPB's
    procedures for adjudicating these cases and the extent of a
    Hatch Act caseload with a summary of the outcomes of the cases
    that we have had.
        MSPB adjudicates cases on the act when the special counsel
    files a complaint seeking disciplinary action for an alleged
    violation of the act. That complaint is heard by an
    administrative law judge, whose services are provided to the
    Board under a special interagency agreement with the NLRB.
        Generally, hearings are open to the public, and the
    procedures applicable to MSPB appellate cases also apply to
    Hatch Act cases. The Board does not have authority to consider
    a complaint alleging a violation of the act by an individual
    who is a Presidential appointee with Senate confirmation. The
    Board's decision that a State or local agency employee violated
    the Hatch Act is reviewable by an appropriate U.S. district
    court.
        If the ALJ or the Board, on a petition for review,
    determines that an employee of a State or local agency whose
    principal employment is in connection with an activity financed
    in whole or in part by Federal funds has violated the act, the
    outcome, as mandated by the act, is the penalty of removal or
    the determination that no penalty is warranted. There is no in-
    between ground.
        In an action where the determination of removal is
    warranted, the ALJ or the Board on review will notify the
    employing agency and the employee that the employee must be
    removed and not reappointed within 18 months of the date of the
    decision. If the State or local agency fails to comply with
    such an order or reinstates the employee within 18 months of
    the removal, the ALJ or the Board may order the Federal entity
    providing funding to the agency to withhold funds from the
    agency. The amount to be withheld may be the equivalent of 2
    years of pay for the subject employee.
        Now, in terms of the Hatch Act cases, MSPB receives
    approximately 8,400 appeals each year. Its Hatch Act caseload
    is a small percentage of those appeals. From January 2002 to
    July 31, 2008, the Office of Special Counsel brought 41 Hatch
    Act cases before the Board. Of that total, 23 cases involved
    State or local employees.
        The most frequent types of Hatch Act violations that were
    committed by State or local agency employees included running
    as a candidate in a partisan election and using official
    authority to influence the outcome of such an election. Final
    disposition in these cases include settlement of eight cases, a
    finding that no Hatch Act violation occurred in one case,
    dismissal of two cases, and removal of nine employees. One
    employee retired prior to completion of the case, and two cases
    are currently pending.
        As the data shows, the Hatch Act case is a very small part
    of the Board's caseload. But regardless, the disposition of
    these cases are significant to the Board's statutory mission of
    ensuring a merit-based Federal civil service system. As a
    result, the Board tries to adjudicate these cases promptly and
    efficiently and in a manner that comports with the
    congressional intent underlying the act.
        I remain open to any questions the committee may have.
        [The prepared statement of Mr. McPhie follows:]
        [GRAPHIC] [TIFF OMITTED] 48496.007

        [GRAPHIC] [TIFF OMITTED] 48496.008

        [GRAPHIC] [TIFF OMITTED] 48496.009

        [GRAPHIC] [TIFF OMITTED] 48496.010

        Mr. Davis. Thank you very much, Chairman McPhie.
        And we will proceed now to Mr.--let me make sure that I am
    pronouncing your name correctly.
        Mr. Guglielmi. It is pronounced ``Smith,'' Mr. Chairman.
    [Laughter.]
        No. ``Guglielmi.''
        Mr. Davis. Guglielmi.

                     STATEMENT OF ANTHONY GUGLIELMI

        Mr. Guglielmi. Thank you, sir.
        Chairman Davis, Ranking Member Marchant and members of the
    committee, good afternoon, and thank you for the opportunity to
    provide our perspectives on H.R. 4272.
        At the outset, I would like to request that my written
    statement also be included in the record.
        My name is Anthony Guglielmi. I am the director of
    congressional and public affairs for the U.S. Office of Special
    Counsel, an independent investigative and prosecutorial agency.
        I am accompanied today by Ms. Ana Galindo-Marrone, chief of
    our Hatch Act unit.
        As each of you know, the Hatch Act restricts the political
    activity of certain State and local government employees. Among
    other things, the act prohibits such employees from being
    candidates in partisan elections. H.R. 4272 would create an
    exception to this prohibition by allowing employees to run in
    partisan elections for local office in counties or
    municipalities with populations of less than 100,000.
        The Office of Special Counsel takes no position on H.R.
    4272, but offer a recommendation to address concerns underlying
    this bill.
        First, OSC is concerned that this bill's choice of 100,000
    as the population threshold for its candidacy exception will
    have a broader effect than intended. According to Census Bureau
    estimates, 75 percent of Michigan counties have populations of
    less than 100,000. Further, 99.6 percent of Michigan
    municipalities have populations of less than 100,000, including
    the cities of Dearborn, Canton and Kalamazoo. Thus, the bill
    impact extends beyond rural-area employees.
        There will also be disparate outcomes for employees in
    cities that are close in proximity and size. For example, in
    Michigan, the cities of Dearborn and Livonia are less than 20
    miles apart. Both are just outside the city of Detroit.
    However, in 2002, Livonia had about 2,600 more people than
    Dearborn, pushing it above the 100,000 population cutoff. Thus,
    a Michigan State employee could have run for public office in
    Dearborn but not in Livonia.
        Also, in 2003, Livonia's population dropped below 100,000.
    So an employee would have been able to run for office in 1 year
    but not the next.
        It is also likely that this bill will increase OSC's
    workload. In addition to determining whether a State or local
    employee has the duties in connection with federally funded
    programs, this bill would require us to research the population
    of a locality where the employee wants to run. Because
    populations are ever-changing, our research will have to remain
    current and continuous.
        OSC's greater concern with this bill is the potential
    confusion it could create for Hatch Act-covered employees.
    While such employees would be permitted to run in partisan
    elections, they still would be subject to the act's other two
    prohibitions against coercion and misuse of official authority.
    OSC believes that this may cause confusion, resulting in
    violations of the act. We have seen this occur with the
    candidacy exemption currently in place for individuals holding
    elective office. Many times, elected officials often believe
    they are exempt from all of the provisions of the act, even
    though they remain subject to the other two important
    provisions, thus potentially leading to more egregious Hatch
    Act violations.
        For example, OSC filed a complaint with the Merit Systems
    Protection Board against an elected county official for
    multiple violations of the Hatch Act. The official, during job
    interviews, made it clear that contributions to his political
    party were expected. He also directed a subordinate to solicit
    other employees to attend fundraisers, contribute to his party,
    and volunteer for his re-election campaign.
        This example is an egregious one, but unfortunately it is
    not the only one. OSC has seen an increase of allegations of
    both candidacy and coercion. These cases involve employees in
    positions of authority who are running for office and are
    reported to be using their positions to bolster their campaign
    credentials and/or coerce subordinates to support their
    campaign.
        Partisan candidacy magnifies the risk that these activities
    will intrude in the workplace. These cases are also difficult
    to investigate and prove, because witnesses are reluctant to
    cooperate for fear of reprisal.
        OSC understands and respects Representative Stupak's
    concern for employees in rural areas. However, Congress does
    not need to amend the Hatch Act to address that concern. The
    Hatch Act does not prohibit employees from being candidates in
    nonpartisan elections. Therefore, the Congressman's concerns
    could be resolved at the State and local level.
        State and local governments are in the best position to
    recognize whether a local community lacks eligible candidates.
    If they identify such a problem, they choose to resolve it by
    designating those elections as nonpartisan. In fact, in our
    experience, we have found that many localities have designated
    their elections nonpartisan. Thus, the concerns underlying H.R.
    4272 can be addressed without compromising the integrity and
    neutrality of Federal programs.
        Thank you very much for your attention. I would be happy to
    answer any questions.
        [The prepared statement of Mr. Guglielmi follows:]
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        Mr. Davis. Thank you very much.
        And we will begin the questioning process.
        Let me begin with you, Chairman McPhie. In your testimony,
    you stated that, since January 2002, the Office of Special
    Counsel has brought 41 Hatch Act cases before the MSPB, of
    which 23 involved State or local employees.
        How many of the 23 cases involved State or local employees
    running in partisan elections? And are there any commonalities
    among these cases? For example, are there any recurring
    arguments for why employees continue to run for office despite
    Hatch Act restrictions?
        Mr. McPhie. Mr. Chairman, I could answer that in a context
    of some of the defenses offered by these employees when these
    cases are brought. I asked that same question myself.
        Although a particular defense is going to be necessitated
    by what the circumstances are, to the extent one can
    generalize, these are the kinds of defenses that seem to come
    about: ignorance as to the existence of the Hatch Act;
    ignorance as to the political activities prohibited by the
    Hatch Act--for instance, limitations on the use of government
    e-mail by government employees to send partisan political
    communications, there is uncertainty; lack of understanding as
    to whether an employee's position is covered by the Hatch Act,
    particularly with respect to certain employees of State and
    local agencies who may not realize that their employment
    relates to an activity which is financed in whole or in part by
    loans or grants through this Federal Government.
        Also, another common defense is that the penalty is too
    severe, the penalty proposed by OSC is too severe.
        I think I have answered the question. If I haven't, I----
        Mr. Davis. Well, let me ask you, in your statement, you
    also stated that Hatch Act cases involving State and local
    employees represent less than 1 percent of the MSPB's overall
    caseload. Has this percentage remained consistent since the
    last major reform of the Hatch Act, which was in 1993?
        Mr. McPhie. I cannot answer that with certainty, but I
    believe that is true. I have given you 41 cases over 6 years. I
    am not aware of any spike in these cases, certainly not during
    my tenure on the Board.
        Mr. Davis. Thank you very much.
        Let me ask you, Mr. Guglielmi----
        Mr. Guglielmi. Mr. Chairman, ``Anthony'' is fine.
        Mr. Davis. Andy? All right.
        In testimony that we are going to hear shortly, it has been
    claimed that, in 1974, major changes to the Hatch Act were made
    which eliminated most of the Federal restrictions on off-duty,
    free-time, political activities for State and local
    governments. In 1983 and 1987, surveys were conducted by House
    committees which showed that these changes did not increase the
    incidence of reported violations or abuses.
        Based on this history, why then do you feel that allowing
    State and local employees to run for partisan office would
    cause current employees to ignore and violate the other Hatch
    Act restrictions that would remain in place?
        Mr. Guglielmi. Mr. Chairman, if it pleases the committee, I
    would like to invite Ms. Galindo-Marrone, who is the chief of
    the Hatch Act unit, to answer that question, as she has
    experience as an attorney.
        Mr. Davis. Please, by all means.
        Ms. Galindo-Marrone. Good afternoon, Chairman Davis.
        Although the restrictions of the Hatch Act were certainly
    loosened for State and local employees starting in 1974, three
    key prohibitions remained in place: the candidacy prohibition,
    as well as the coercion and use of official authority
    prohibition.
        And based on our experience, people are at their most
    partisan when they are engaged in candidacy, when they are
    candidates and they are running for office. So that, although
    the restrictions that were loosened in 1974 allowed individuals
    to engage in political activity off-duty, with respect to the
    prohibition on candidacy, it is very difficult for someone to
    remove their partisan hat when they get to the workplace. When
    you are running for office, you are running for office 24/7.
        Mr. Davis. Let me ask you, why would it be that an
    individual would be more enthused about campaigning or running
    if they were running for a partisan office or under a partisan
    banner than they would if they were running under a nonpartisan
    banner?
        Ms. Galindo-Marrone. Certainly. With respect to the Hatch
    Act, the activity that it is intended to capture or interdict
    is partisan activity. So, although I understand your question
    in terms of the enthusiasm that might be shared in both
    instances, the Hatch Act only prohibits partisan activity.
        Mr. Davis. I asked that because, based upon my experiences
    in a town of course that is kind of well-known for its
    politics, our most vociferous elections are actually the local
    city council elections, and they are nonpartisan. I mean,
    people really get into who is going to be their member of the
    city council, more than they do who is going to be their
    Congressman or whatever. I mean, I don't know if that is the
    case in some other places, but certainly in the community where
    I live, I mean, that is pretty much the case.
        Well, let me go to Mr. Marchant and provide him the
    opportunity to ask questions.
        Mr. Marchant. Well, first of all, I have been in Texas
    politics for 28 years, and I don't recall this ever being the
    subject of a challenge for an election. So this a new subject
    for me. I was a council member, a mayor, State legislator, and
    then now in Congress. And I never remember this being a
    substantive issue or the subject of a challenge for a
    candidacy.
        So I guess my question to the panel is, would this affect
    some States much more than it would other States? Would any of
    the States view this to be preemptive or something that we
    would be overriding their State authority?
        And the last question is, is the 100,000 number a number
    that moves things one way or the other? I mean, if it were a
    million or if it were 10,000--is that 100,000 number a
    meaningful number? Or is it--I think Mr. Stupak identified it
    as just kind of a beginning place. So I would ask that question
    of either of the two or of your counsel.
        Mr. Guglielmi. Congressman, I will answer the latter part
    of the question. Definitely, I mean, it doesn't matter the
    number, the impact on the Office of Special Counsel would be
    the same. We would still have to rely on, you know, census
    data, and it would still apply a greater burden, you know, than
    we are currently experiencing.
        Mr. Marchant. OK.
        Mr. Guglielmi. And then as far as the--I mean, I have no
    comment on how the States would perceive the legislation, sir.
        Mr. Marchant. Would one State be affected more than another
    State? Do these cases get tried in every State, or are there
    States that are more active in their pursuit of Hatch cases?
        Ms. Galindo-Marrone. It applies across the board, and we
    receive complaints from all 50 States. But it does seem to also
    be cyclical in nature. And what I mean by that, sometimes it
    may be Michigan, other times it may be Ohio, Pennsylvania.
    Depending on the election season, the Hatch Act sometimes
    reaches greater awareness with the candidates and the citizenry
    than in other times. So it is very active currently in
    Michigan.
        Mr. Marchant. OK. And I have a followup question that----
        Mr. McPhie. In terms of impact, let me put it to you this
    way. The Board isn't planning to ramp up any of its resources
    in anticipation of an increase in Hatch Act cases. I mean, the
    history speaks for itself, so far as we are concerned. Forty-
    one cases over 6 years is, by any stretch of the imagination, a
    very small number. I recall almost--I have been there since
    2003, and I have seen very few of these cases. There is no
    steady diet of these cases at all.
        In terms of impact, 100,000, 200,000, I can't begin to
    answer that question. It is not something that we concern
    ourselves with. We follow whatever the statute says. And if a
    case is brought by special counsel, then it proceeds on the
    merits in that case pursuant to the statute. If the statute
    says 100,000, we take it from there. If it says 200,000, we
    take it from there. It doesn't matter to us.
        Mr. Marchant. As I understand it, Representative Stupak's
    bill addresses basically the disqualification for election. Do
    you have cases where there was no disqualification? Someone
    took office and then someone pursued their removal or their
    prosecution as a result of having violated the Hatch Act, but
    no one brought it up, but they are serving and----
        Ms. Galindo-Marrone. We get a number of cases of what we
    call in the office ``past candidacies,'' where, by the time the
    complaint is filed, the person has already won the office and
    is serving. And in those cases, for the most part, we
    typically--if we find that the person--we still have to
    investigate the case and make a determination. In those cases,
    we typically issue a warning letter. The penalty does not allow
    for a disciplinary action that someone be removed from their
    elective office. So what would still be at issue is their
    employment. And in some instances, the person is no longer
    employed.
        But even then, with past candidacies, our focus is on
    trying to educate and advise the person for the future. We
    recognize how significant the penalty is, in terms of finding a
    Hatch Act violation. So you will find that with a majority of
    the cases, we issue warning letters. And only in those
    instances, I would say 99 percent of the candidacy cases,
    whether Federal or State and local, are those cases where we
    actually warn the person that they were covered by the Hatch
    Act and gave them an opportunity to come into compliance with
    the law. And it is in those cases where we typically then seek
    disciplinary action if the person chose not to come into
    compliance with the law.
        Mr. Marchant. And they could come into compliance either by
    resigning or----
        Ms. Galindo-Marrone. Or withdrawing from the race, correct.
        Mr. Marchant. So it is possible and probable that there are
    many office-holders in office today that there was no complaint
    filed and they are, in fact, in violation of the Hatch Act?
        Ms. Galindo-Marrone. It is probable.
        Mr. Marchant. And would probably receive warning letters if
    a complaint was filed?
        Ms. Galindo-Marrone. Correct.
        Mr. Marchant. Well, thank you very much.
        Mr. Davis. Thank you very much, Mr. Marchant.
        Mr. Stupak.
        Mr. Stupak. Well, thank you, Mr. Chairman. And thank you
    for your courtesy.
        Let me just say that Ms. Marrone and others have--we
    actually did a video conference into my district because we had
    so many of these when Delta County, Schoolcraft County and
    Marquette County had to try to resolve this. And unfortunately,
    the Hatch Act, the way it is written, allows no leeway for
    these folks who are trying to enforce the law.
        For instance, I mentioned Ishpeming, the chief of police
    there, he was given a warning letter that he was in violation
    because they had three highway traffic safety grants, a total
    of $594 for his whole department. He is the chief. He probably
    didn't put in the overtime, never got paid for it. But because
    his department received $594, he is disqualified underneath the
    Hatch Act to run for sheriff.
        Do you have any suggestions how we would do it other than
    the 100,000? Should it be a percentage? If your position is
    funded 50 percent or more by Federal funds or something like
    that?
        I mean, we had the Delta County where the person was an
    employee of public transportation, where every year they
    received Federal money for buses. He was disqualified because
    the public buses were paid for by the Federal Government.
        Do you have any suggestions how we can do it other than the
    100,000? I mean, it sounds like the law doesn't leave you any
    discretion. And these examples I bring out, to most of us it is
    not ignorance of the county board of commissioners when they
    appoint someone or when someone runs for sheriff, because their
    department of 10 people might have received $594 or $59 per
    member of the department, are suddenly disqualified because
    that $59 was Federal money. It doesn't make sense that you
    would apply the Hatch Act like that to people.
        Any suggestions from our witnesses on how else to do it?
        Mr. Guglielmi. Congressman, your concerns are absolutely
    valid. And, I mean, today we have prepared, you know, for this
    legislation. If it pleases the committee, I can confer with the
    special counsel and possibly come up with some technical
    recommendations to your office. You know, give us a chance to
    regroup and take a look at everything and see if we can help
    you out. But at this time, I don't.
        Mr. Stupak. OK.
        Mr. McPhie. Let me make one observation. And it kind of
    makes this statute sort of unique in certain respects.
        In terms of the penalties, the penalties are different for
    a Federal employee who violates the act than for a State
    employee who violates the act. Frankly, I want to know why; I
    don't know why. If a Federal employee violates the act, they
    can be removed or suspended without pay for 30 days. If a State
    employee violates the act, the only penalty by statute is
    removal, not suspension or anything of that type.
        We have found no statement of the congressional intent on
    that difference. But if we have a case that involves a State
    employee and, in the end, by a preponderance of the evidence,
    it is proven that employee violated the statute, then the only
    penalty is removal. There is no discretion.
        Mr. Stupak. If I may, Mr. Chairman, you had indicated the
    enthusiasm of local offices, having half the land size of
    Michigan in my district. As I campaign in this election year, I
    look for the local sheriff race, I look for the local county
    commission race, because the enthusiasm and the voter turnout
    in these counties--and in Michigan, a county commission race is
    partisan, it is by our State constitution. That will increase
    the voter turnout. It is not the President. It is not the U.S.
    Senate. It is not even their most beloved Congressman. It is
    those local sheriff races that generate the enthusiasm at the
    local level, which increases the turnout.
        And to have people disqualified because your department
    received $594 for three programs or averaged $200 per program
    is just insane. We must fix this. And it is not just Michigan;
    it is throughout this great Nation.
        And thank you for your courtesy.
        Mr. Davis. Well, let me come back--and according to Section
    1501, chapter 15 of title 5, State or local officers or
    employees refer to those individuals whose principal employment
    is support in whole or in part by Federal loans or grants.
        Could you explain what is meant by ``in part?'' In other
    words, what percentage of Federal funds does an agency have to
    receive in order for their employees to fall under the Hatch
    Act?
        Ms. Galindo-Marrone. There is no precise percentage. But a
    couple of points, if I may.
        First, just because a State or local agency receives
    Federal grants or loans does not mean that all the employees
    are covered by the Hatch Act. It is only those employees at
    that agency that have duties in connection with the federally
    funded program.
        And in terms, I think part of your question, in whole or in
    part, so you may have a program that receives both State or
    county funds as well as Federal funds. So that would be a
    situation where you have a program that is funded with Federal
    grants in part. But only the individuals that have duties in
    connection with that program would be covered by the act, not
    all the employees in that agency.
        Mr. Davis. Are either of you aware of any instances where
    individuals have actually gone to a circuit court after having
    been charged with violating the Hatch Act and win their case in
    the circuit court that there was no violation?
        Ms. Galindo-Marrone. That I am aware of, in the last 10
    years, I am not aware of any case like that.
        And in terms of jurisdiction, in order to get into a
    Federal court, you first have to go through the Merit Systems
    Protection Board.
        Mr. Davis. And so the Federal court is where they would
    have to--I am trying to recall a case where a person who worked
    for the State of Illinois decided to run for the State
    legislature, was forced to quit her job, actually was
    terminated I guess, or had to withdraw from the ballot, but who
    chose not to withdraw and actually ran. After the election was
    over, she sued, went to court, was restored to her position and
    received her back pay.
        Ms. Galindo-Marrone. Several things. I believe that,
    possibly--but I don't want to misspeak, so it is something
    that, if you wish, we can go back to the office and brief this
    issue--prior to the 1974 amendments, I believe that employees
    could go directly to Federal district court, in terms of Hatch
    Act cases. So that is one point, but I would want to take a
    look at that.
        And it is also possible that the challenge may not have
    been based on the Hatch Act. Or, for example, that the employer
    chose to remove the individual on Hatch Act grounds, and that
    probably the individual would have been able to successfully
    challenge, because it is only OSC that has exclusive authority
    to investigate and bring a disciplinary action complaint. It
    wouldn't be the employer that would be able to remove the
    individual on Hatch Act grounds. So there have been employees
    who have successfully challenged an employer action based on
    those grounds.
        Mr. Davis. I would appreciate it very much if you could
    check into that for us, if you could.
        Ms. Galindo-Marrone. Certainly.
        Mr. Davis. And if you could also provide us with any Hatch
    Act statistics in terms of cases heard and the adjudication of
    those----
        Ms. Galindo-Marrone. OK.
        Mr. Davis [continuing]. I would appreciate it.
        Ms. Galindo-Marrone. And just for point of clarification,
    Merit Systems Protection Board cases, or?
        Mr. Davis. Actually both the Merit System Protection Board
    cases as well as cases that have actually gone to the Federal
    district court.
        Ms. Galindo-Marrone. OK, very good.
        Mr. Davis. Thank you very much.
        Mr. Marchant, do you have any other questions?
        If not, then thank you both. Thank you all.
        We will now proceed to our third panel. And the witnesses
    for that panel: Mr. Jack Maskell, who is a legislative attorney
    with the American Law Division of the Library of Congress's
    Congressional Research Service. Mr. Maskell has been providing
    legal advice, analysis and assistance to Members of Congress,
    congressional committees and staff since 1973 on legislation
    and legislative matters, such as governmental ethics laws,
    conflict-of-interest laws, and the Federal Hatch Act.
        We also have Ms. Sandra Bell, who is the Ohio Civil Service
    Employees Association's general counsel. OCSEA represents
    36,000 State and other public workers and is an affiliate of
    the American Federation of State, County and Municipal
    Employees. Prior to assuming this position, Ms. Bell served in
    various elective positions within the Association, in addition
    to her role as general counsel. Ms. Bell also holds the
    position of director of information technology for OCSEA.
        We want to thank both of you for coming and being with us.
    And if you would stand and raise your right hands to be sworn
    in.
        [Witnesses sworn.]
        Mr. Davis. The record will show that the witnesses answered
    in the affirmative.
        If you would summarize your testimony for us in 5 minutes.
    And about this time of day, we don't worry too much about the
    lights, but the green light just means you have all the time.
    The yellow one indicates that you are down to 1 minute. And we
    generally try to end with the red one.
        So thank you very much.
        And we will begin with you, Mr. Maskell.

    STATEMENTS OF JACK MASKELL, LEGISLATIVE ATTORNEY, AMERICAN LAW
      DIVISION, CONGRESSIONAL RESEARCH SERVICE; AND SANDRA BELL,
      GENERAL COUNSEL, OHIO CIVIL SERVICE EMPLOYEES ASSOCIATION,
                        AFSCME LOCAL 11 AFL-CIO

                       STATEMENT OF JACK MASKELL

        Mr. Maskell. Thank you very much. I would like to thank the
    chairman and the subcommittee for the invitation to testify
    this afternoon.
        I have submitted a more detailed written analysis to the
    subcommittee and will confine my comments here to just a few
    areas of that analysis.
        The main point I would like to make this afternoon is that
    the Hatch Act, that many would agree has done its job in the
    past, is not carved in stone and it is not necessarily
    sacrosanct. It was a legislative response crafted by Congress
    to facts on the ground as they existed in 1939 and 1940; that
    is, specific abuses and allegations of political coercion and
    the doling out of Federal funds in work through the WPA.
        The Hatch Act restrictions on both Federal employees as
    well as on State and local government employees have undergone
    substantial amendments, modifications and revisions over the
    years to accommodate the changing conditions and changing
    realities of Federal and public employment.
        One of the earliest changes, in 1940, was to exempt Federal
    employees in certainly localities in which there live numerous
    Federal workers from the restrictions on running as an
    independent in a partisan election. This was done in the
    interest of allowing a large enough pool of civic-minded
    persons who would be interested in elected public service in
    these communities. This exception exists today for Federal
    employees in more than 70 localities in the Washington, DC,
    area and beyond, including Fairfax County, VA, which now has
    more than a million residents.
        In 1942, Congress again changed the law to enact a specific
    exemption to the Hatch Act for all government employees who
    were employed by a school or research institution. The
    exemption for school teachers and employees in State and local
    governments remains as part of the current law today. It was
    intended to assure that teachers have the right to freely
    discuss and be involved in political subjects and matters so
    that teachers might be examples for youth of participatory
    citizenship.
        In 1974, major changes were made to the Hatch Act as it
    applied to State and local government employees, eliminating
    most of the Federal restrictions on off-duty, free-time
    politics. After these changes were made in the Federal laws, as
    the chairman pointed out earlier, several States then changed
    their positions on political activities of State employees,
    allowing for more voluntary, off-duty activities.
        In 1983 and in 1987, surveys of State enforcement officials
    by committees of the House indicated that such changes in their
    States did not increase incidence of reported violations or
    abuses, but did, in fact, increase the participation in the
    political process and civic affairs by governmental employees.
        In 1993, Hatch Act changes for Federal employees were made
    to reflect the realities and changes in the modern Federal work
    force and freed up most employees to engage in free-time
    political activities.
        Remember, the Hatch Act restrictions as originally enacted
    in 1939 were seen, in many respects, as protections of
    government employees from coercion, from higher-level
    politically appointed supervisors to engage in political
    activities or to make contributions. With the advent of the
    modern, more independent merit-based civil service and the
    adoption of increased statutory and regulatory protections of
    Federal employees against improper coercion and retaliation,
    the need for a broad ban on all voluntary activities in
    politics as a means to protect employees was seen as less
    necessary. The conditions of Federal employment have changed
    dramatically since the first restrictions on political
    activities were passed.
        As one example, the percentage of merit system civil
    service employees grew from 10 percent of the Federal work
    force at the time of the passage of the Pendleton Civil Service
    Act in 1883 to 32 percent of the Federal work force at the time
    of the passage of the Hatch Act in 1939 to the more recent
    figure of more than 80 percent of all Federal workers being
    under merit system. The 1993 Hatch Act amendments addressed
    these new realities.
        With regard to running for office, in the legislation at
    hand it might be argued that in many ways the Hatch Act is more
    restrictive for State and local employees than for Federal
    employees regarding candidacy. Although both sets of employees
    may run in nonpartisan elections where no candidates have a
    major party label, the local community exemption for Federal
    employees allowing them to run as independents and even
    partisan elections in certain communities applies only to
    Federal workers. There is no similar exemption for State and
    local government employees in their local communities.
        Second, Federal employees who work only part time or
    intermittently are covered by the Hatch Act only when on duty
    and therefore can be partisan candidates in a partisan election
    off of duty time. State and local employees, however, have no
    such part-time exemption and are covered as long as their part-
    time government position is their, ``principal employment.'' If
    Congress finds that the pool of eligible civic minded persons
    to run for local office in rural and smaller communities has
    been adversely affected because of the extended reach of Hatch
    Act and the increased pervasiveness of Federal funding of local
    activities, then Congress may certainly address the issue
    legislatively as it has done in the past.
        It should be noted that even if the Federal Hatch Act is
    changed for State and local employees such employees will still
    be subject to State laws, local ordinances, State and local
    personnel regulations and executive orders regarding
    permissible outside political activities and workplace conduct.
        The Supreme Court has found that the Federal Hatch Act does
    not preempt and supersede State and local laws and ordinances
    on State and local employee conduct. The legislation, H.R.
    4272, providing exemption for all employees and communities in
    local governmental units with a population of under 100,000
    would allow them to run for local offices and partisan
    elections.
        If you find that a change in law is called for but fear
    that the legislation might create too broad an exemption, it
    may be narrowed in several ways. I will give you just a few
    suggestions. Some suggestions might include limiting the
    exemption to those employees who do not actually administer,
    disburse or distribute Federal funds. Another would be to
    require an employee to run as an independent as opposed to
    representing a political party in a partisan election similar
    to the exemption for Federal employees in exempted localities.
        Another position may be enacted expressly addressing
    workplace politicking by expressly prohibiting in Federal law
    such conduct while on the job, although I have to tell you most
    States prohibit that already in their State codes.
        And finally, the issue of soliciting political
    contributions may be addressed to allow such employees to
    solicit from the general public so their candidacies might be
    viable but prohibiting noncoercive, knowing solicitation of
    colleagues, which is also prohibited in a lot of State codes as
    well.
        Thank you very much.
        [The prepared statement of Mr. Maskell follows:]
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        Mr. Davis. Thank you very much, and we will proceed to Ms.
    Bell.

                        STATEMENT OF SANDRA BELL

        Ms. Bell. Good afternoon, Chairman Davis, Member Marchant.
    My name is Sandra Bell. I would like to thank you for this
    opportunity to address the subcommittee. A written copy of my
    testimony has been submitted to the committee, and I request
    that it be admitted into the record.
        Speaking on behalf of AFSCME and OCSEA, we submit that the
    Hatch Act is antiquated. We applaud Representative Bart Stupak
    for introducing H.R. 4272. H.R. 4272 will begin to eliminate a
    prohibition that has unfairly denied public employees the
    rights and privileges of full citizenship for 69 years. While
    we fully support the bill, we would like to see its scope
    broadened.
        The proposed population threshold is too low to provide
    relief to the vast majority of State and local government
    employees, including those in my home State of Ohio. Although
    Ohio is governed by its own little Hatch Act, the injustices
    suffered in Ohio are comparable to those across the country.
        The Hatch Act, as interpreted by the individual agencies in
    Ohio, has a chilling effect upon the ability of the ordinary
    citizen to engage in the political process. For example,
    Charlie Bakle, a highway maintenance worker for the Ohio
    Department of Transportation received a 10-day suspension for
    talking politics at work. Debbie King, an enthusiastic worker
    for the Department of Job and Family Services, received a 30-
    day unpaid suspension because she volunteered to gather
    signatures for a candidate on her own time. Had Charlie or
    Debbie been employees in agencies which did not receive $1 of
    Federal funds, they would have been allowed to engage in the
    political process and maintain their job security.
        AFSCME and OCSEA are actively working to repeal Hatch Act
    prohibitions in order to give the Charlies and Debbies of the
    country a chance to fully participate in the democratic process
    regardless of where they work. The prohibition on parties and
    political activity has outlived its usefulness and should be
    repealed in its entirety.
        Unlike in 1939, most States' laws now require disclosure of
    campaign contributions and expenditures. Safeguards are in
    place to protect the public from corruption and will remain in
    place if the prohibitions are lifted. However, if a repeal is
    not achievable currently, incremental reform should be
    considered and we urge be included in H.R. 4272, and we do have
    some suggestions.
        First, we suggest that the Hatch Act could be amended to
    limit the act's scope to those employees with discretionary
    authority over use of Federal funds or associated policymaking.
    The prohibition currently applies, with some narrow exceptions,
    to, and I quote, any individual employed by a State or local
    agency whose principal employment is in connection with an
    activity which is financed in whole or in part by loans or
    grants made by the United States or a Federal agency and who
    exercises some function in connection to that activity. We
    think this definition is too broad and too far reaching.
        Second, a threshold could be set for the amount of Federal
    funding that would trigger the Hatch Act. As it stands, the
    Hatch Act applies to all State or local government employees
    employed by an activity which is financed in whole or in part
    by Federal loans or grants. A reasonable amendment could
    trigger the prohibition only where 25 percent or more of an
    employee agency's budget was composed of Federal funds.
        Third, the Hatch Act currently applies to employees on an
    unpaid leave of absence. In order to run for partisan political
    office, most States or local government employees must resign.
    Forced resignation is harsh and unreasonable. While on unpaid
    leave, an employee would not have access to nor receive Federal
    funds. Little harm seems to exist if such an employee is
    permitted to run for office. For too long State and local
    employees have been treated like second class citizens by
    virtue of Hatch Act prohibitions. Reform is long overdue.
    AFSCME and OCSEA believe that the prohibition against partisan
    candidacy should be repealed in its entirety. We strongly
    support H.R. 4272, but ask that its population threshold be
    increased at a minimum to maximize impact and to provide some
    additional reforms.
        I thank the subcommittee again for the opportunity to
    discuss the Hatch Act and will be happy to answer any
    questions.
        [The prepared statement of Ms. Bell follows:]
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        Mr. Davis. Thank you very much, and I believe your
    testimony triggered my memory, and I believe it was an AFSCME
    union employee that----
        Ms. Bell. I wouldn't doubt that.
        Mr. Davis [continuing]. That brought the suit that I
    recall. But thank you very much for your testimony.
        Mr. Maskell, let me ask you, H.R. 4272 would allow State
    and local employees in communities having a population under
    100,000 to run for local partisan office. What would be the
    effect of allowing State and local employees to run for local
    office in a partisan election today since the original intent
    of the Hatch Act, as I understand it, was to prevent corruption
    in local and State governments on misuse of Federal funds,
    which would be considered pretty much outdated today, I would
    think?
        Mr. Maskell. I agree with the testimony of Ms. Bell and I
    think I suggested somewhat similar language. If they are
    controlling Federal funds and disbursing Federal funds, the
    issue of corruption could arise and partisan political abuses
    could arise. But if they are merely an employee whose
    employment is connected with the federally funded activity,
    there is almost, there is such little chance for corruption
    that may be one way to parse the legislation, absolutely, and
    to allow most State and local employees to be freed up to
    engage in that kind of outside activity outside of the job.
        Mr. Davis. Would it appear or would it be fair to suggest
    that the Hatch Act, as we know it, does in fact prevent
    individuals from exercising part of their constitutional right
    as an American?
        Mr. Maskell. I don't think there is any question that in
    many instances Federal employees or State and local employees
    would want to exercise certain first amendment rights that they
    are not able to now. Now the courts have said that even though
    it does involve first amendment rights for Federal employees
    because of the employer-employee relationship they can restrict
    these first amendment rights more than they can of people in
    the general population. And because of State and local
    governments, because of the spending power of Congress, they
    could put limitations on it, but absolutely there is no
    question that it impacts the first amendment rights of these
    employees who are covered.
        Mr. Davis. Ms. Bell, how do you respond to the testimony
    that allowing these individuals to run for office would create
    a number of problems and difficulty relative to managing
    operations that they may be a part of?
        Ms. Bell. I disagree. Most of the employees represented by
    AFSCME are not in the position of managing or distributing
    Federal funds in their normal day-to-day operations. These are
    the line workers. These are the transportation workers that you
    see on the roads. These are the people that never meet the
    public. These are the ones in the back rooms who are entering
    data, who are clerking. These are the corrections officers who
    are managing the prisons and don't have any contact with the
    general public.
        In 1939, a civil service job might have been the highest
    job available at that time. Training could be implemented in
    order to assure that when you take a civil service job, you are
    made aware of the possible prohibitions of the Hatch Act. You
    don't take a job thinking that one of these days, 10 years from
    now, I want to run for Governor or the State legislature. You
    take that type of job because you are interested in either
    nowadays having a job or being a public servant. So I don't
    think it is going to cause that big of a problem.
        Mr. Davis. Mr. Maskell, you were about to comment.
        Mr. Maskell. I'm not sure what the effect would be. My
    guess is based on other reform and loosening up of the Hatch
    Act that there will not be significant abuses and coercion
    involved. Almost every State has their own standards of
    conduct, conflict of interest, ethics, and kind of Hatch Act
    provisions that strictly regulate what you can do and can't do
    on the job and very much use similar language of the Federal
    Hatch Act for Federal employees, as well are not allowed to use
    their official authority or influence to affect an election.
    Those still all are in effect. So I'm not sure what it would
    be. And that is something that you all have to balance that,
    you know, you would like to free them up and see if you can
    minimize the potential or the risk for that happening.
        Mr. Davis. Thank you both very much.
        Ms. Norton.
        Ms. Norton. Mr. Chairman, I regret that another hearing
    kept me from being here because I think this is a very
    important issue, and I certainly agree that first amendment
    rights are significantly curtailed. Generally one would want to
    inquire constitutionally in return for what? When one weighs
    equities on each side, is the equity toward so-called
    corruption so great as to warrant denial of the right to run
    for public office? I would like to think a lot more about this.
        You know, when it comes to line workers running for things
    like the school board, it's pretty hard to think of why, if
    anything, would want to have to encourage people to do so.
    Where there is a State Hatch Act, where I presume these workers
    would still be covered, one begins to wonder what is the
    particular function of the Federal Hatch Act in those cases.
        Mr. Maskell, perhaps you could tell us, is there some
    redundancy there? If there is a State Hatch act already and if
    these employees would be covered under that State Hatch Act,
    what special or unique function does the Federal Hatch Act play
    such that piling it on top either gets us anything that the
    State Hatch Act won't get us or that otherwise makes us
    understand that it's necessary to have two laws affecting these
    citizens?
        Mr. Maskell. Well, you are absolutely right. There are
    redundancies and a number of the States have somewhat similar
    provisions that the Federal law has. But again there are a lot
    of States that have reformed their so-called little Hatch Acts
    and have freed up their own employees quite a bit, so that
    Michigan, for instance, does not prohibit their State employees
    running for election in a partisan election. So the Hatch Act
    isn't redundant because the Federal law does restrict them if
    their job is in connection with the federally funded activity.
        So in some cases there are redundancies and in other cases
    there aren't. It was passed originally as a protection
    concerning the disbursement and utilization of Federal funds,
    and I think we can all agree it has kind of moved away from
    that. I don't know if it's an unintended consequence, but it
    may be unanticipated, something that was not anticipated, at
    least to the extent it is now. Because of the pervasiveness of
    Federal funding of local activities it has reached a lot of
    activities at the State and local level that it never reached
    and wouldn't reach in 1940.
        Ms. Norton. Would an earmark reach that employee?
        Mr. Maskell. Sure. It could. If it's a State or local
    agency, a governmental agency, sure.
        Ms. Norton. Yes, a State or local agency. Lobbying wouldn't
    be affected by this, would it?
        Mr. Maskell. No. Lobbying isn't involved. This is partisan
    political activity, meaning relating to a political party. Most
    lobbying activities are done in nonpartisan--they are not
    associated with one political party or another or the success
    or failure of a candidate, and therefore they are generally not
    covered under the Hatch Act.
        Ms. Norton. Oh, my goodness, I think that is where you get
    into some difficulties. One party may be very much for raising
    taxes and another party may not be. The Federal Government's
    notion that it's either all or nothing comes because it
    sometimes doesn't put the time into thinking through how to
    grant as much as possible while affording the appropriate
    protections.
        I would be--and this really comes out of a lot of the work
    we do in the Congress and I don't know if it would be
    applicable--I'm always fearful of appearances, because much of
    what we frankly associate with unethical or corrupt activity
    often doesn't have to do with action that someone takes but
    with creating the impression of authority that you really don't
    have. There might be a great temptation to do so if your agency
    is funded. In my judgment, it might take some reworking of the
    regulations. I would err on the side of granting constitutional
    rights always, but I have to--and by the way, I am particularly
    mindful of people who work in communities such as Mr. Stupak's
    legislation pertains to. That is all there is, is government
    employment. It does seem to me that kind of blanket denial, I
    don't know who can run for office? Rich people from out of
    town? I'm not sure. It does seem to me that something has to be
    done. If we were to spread this it would put a real burden on
    the State Hatch Act, but one I'm prepared to believe the States
    are prepared to accept. And to the extent that this is an
    exception, then it does seem to me we would have to spell out
    what it means because of the appearance, for example, that
    someone, I mean the school board. Well, you know, that is a
    common and very ordinary kind of very important activity, but I
    must say, the schools get funds. So you know one begins to
    think like a lawyer and then this stuff gets all messed up
    again. Because surely the school board has something to do with
    that.
        Many jurisdictions now have nonpartisan elections. I'm not
    sure what that means in terms of this legislation or what we're
    after, but they don't run under any particular party. I don't
    know if that has been discussed before I came here. Are those
    people already exempt?
        Mr. Maskell. If they're running in a nonpartisan election
    and no candidate----
        Ms. Norton. You can run for mayor in a nonpartisan
    election.
        Mr. Maskell. Right, then they're allowed to run. But what
    you're saying is absolutely correct because what we're seeing,
    at least in the communities that I know of in Northern
    Virginia, the candidates get endorsed by political parties, the
    political parties send out their literature saying Joe Smith,
    he is the Democratic candidate or he is the Republican
    candidate and all and even though it's, quote, nonpartisan, you
    know who the parties are supporting in any event and so you are
    right, it loses----
        Ms. Norton. What is the point in the nonpartisan elections?
    You are absolutely right. Nobody really runs nonpartisan, so do
    you know what the original reform was designed to do? Because
    if it was to break people away from parties it has been a
    complete failure.
        Ms. Bell. I believe the original intent was to allow
    interested people to run on their own individual platforms, to
    run on the I'm a parent, that I'm a member of this community
    and that I am involved in, especially, like school boards and
    smaller commissions. But as the political machine has grown,
    those type of positions have become training grounds for higher
    positions, and therefore the parties and even the independents
    and the third parties have learned that we have to pay
    attention as they come up through the ranks in order to prepare
    for future Republicans and future Democrats within our entire
    system.
        Ms. Norton. Mr. Maskell, how high up does a nonpartisan
    election in Virginia go?
        Mr. Maskell. Well, the Fairfax County School Board is
    nonpartisan, but the county supervisor, the county office is
    partisan. Arlington has their own parties. They have that
    Arlington Better Government Party. They have nonmajor parties
    that they have labels for their council, so it really depends
    on the jurisdiction and locality. But of course you can run as
    an independent in most of these communities even if it's a
    partisan election if you are a Federal employee, but not if you
    are a State or local government employee. You are not allowed
    to.
        Ms. Bell. And we have some township trustees that are
    nonpartisan.
        Ms. Norton. I think, Mr. Chairman, every so often the Hatch
    Act gets a going over. I think in light of this proposal I
    suggest that the time may be at hand again. I also suggest, Mr.
    Chairman, that if you want to see something really ridiculous
    all District government comes under the Federal Hatch Act.
    Shortly after coming into Congress I got it freed at last,
    except it didn't last into the Senate. And I have to tell you,
    the kind of confusion, I would look to see something that makes
    it easy for the average person to understand. The kind of
    confusion that you have, even when you speak of nonpartisan
    elections, we have ANC commissioners. Actually that is
    something that comes from an election that came from the
    original Home Rule Act. It was the idea of some member who sat,
    who brought in from his own jurisdiction was nonpartisan. Well,
    the office of the counsel, or whatever it's called, has on some
    occasions given the opinion that these people were, that you
    could hold a Federal or local job and run for this nonpartisan
    position. Then on the other hand--and understand, they are
    applying only Federal law because D.C. doesn't have its own
    law. And then on the other hand, others have questioned it. So
    what you have now is probably at least half a dozen members of
    the D.C. City Council who had been ANC commissioners and ran as
    ANC commissioners. I can name one off the top of my head,
    Adrian Fenty, who then ran for the council.
        So the confusion leads people to hold up their hands and
    say, fine, sue me. So, I am asking, Mr. Chairman, I understand
    it may have been noted that D.C. be taken all together out of
    the Federal Hatch Act, at least you have a State Hatch Act in
    the States. Whether or not this dual constriction is necessary
    I think is something that ought to be investigated.
        Mr. Davis. Thank you.
        Mr. Stupak.
        Mr. Stupak. Thank you, Mr. Chairman. One question if I may
    Mr. Maskell. I'm looking at the CRS report, page 5, where they
    talk about provisions of State and local law. So that the
    suggestions that Ms. Bell made, let's say, like limited to
    discretion of Federal money or policy or the 25 percent
    threshold of funds from Federal Government, that won't work
    because the Federal law would still supersede the State law
    because the suggestions that Ms. Bell made would be less
    restrictive than Federal law, right?
        Mr. Maskell. Well, you would change the Federal--I think
    we're talking about changing the Federal laws as it applied to
    State----
        Mr. Stupak. Right, but Ohio could not enact what Ms. Bell
    suggested. They would still be in violation of the Federal
    Hatch Act.
        Mr. Maskell. Exactly.
        Mr. Stupak. Thank you, Mr. Chairman.
        Mr. Davis. Thank you very much, and let me just ask, I'm
    trying to discern the difference between running as a partisan
    and running as a nonpartisan. Have either of you noted any
    discernible differences?
        Ms. Bell. Not in the enthusiasm level.
        Mr. Davis. I think of some school board elections that I
    have, you can't get any more striking than some of those have
    been, and they were all nonpartisan. And I think that it may
    very well be time to rework the Hatch Act in terms of its
    intent. I am finding it difficult to know what it really is
    designed to do.
        Well, let me thank both of you for your testimony and for
    being here with us. I want to thank you, Mr. Stupak, for being
    with us this afternoon. If there are no further questions, then
    this hearing is adjourned.
        [Whereupon, at 3:30 p.m., the committee was adjourned.]