[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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              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
    
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    [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.]

                                 
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