[Senate Hearing 110-275]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-275

                 THE PERILS OF POLITICS IN GOVERNMENT:
                 A REVIEW OF THE SCOPE AND ENFORCEMENT
                            OF THE HATCH ACT

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

                                HEARING

                               before the

                  OVERSIGHT OF GOVERNMENT MANAGEMENT,
                     THE FEDERAL WORKFORCE, AND THE
                   DISTRICT OF COLUMBIA SUBCOMMITTEE

                                 of the

                              COMMITTEE ON
                         HOMELAND SECURITY AND
                          GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE


                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 18, 2007

                               __________

        Available via http://www.access.gpo.gov/congress/senate

       Printed for the use of the Committee on Homeland Security
                        and Governmental Affairs




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        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

               JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan                 SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii              TED STEVENS, Alaska
THOMAS R. CARPER, Delaware           GEORGE V. VOINOVICH, Ohio
MARK L. PRYOR, Arkansas              NORM COLEMAN, Minnesota
MARY L. LANDRIEU, Louisiana          TOM COBURN, Oklahoma
BARACK OBAMA, Illinois               PETE V. DOMENICI, New Mexico
CLAIRE McCASKILL, Missouri           JOHN WARNER, Virginia
JON TESTER, Montana                  JOHN E. SUNUNU, New Hampshire

                  Michael L. Alexander, Staff Director
     Brandon L. Milhorn, Minority Staff Director and Chief Counsel
                  Trina Driessnack Tyrer, Chief Clerk


  OVERSIGHT OF GOVERNMENT MANAGEMENT, THE FEDERAL WORKFORCE, AND THE 
                   DISTRICT OF COLUMBIA SUBCOMMITTEE

                   DANIEL K. AKAKA, Hawaii, Chairman
CARL LEVIN, Michigan                 GEORGE V. VOINOVICH, Ohio
THOMAS R. CARPER, Delaware           TED STEVENS, Alaska
MARK L. PRYOR, Arkansas              TOM COBURN, Oklahoma
MARY L. LANDRIEU, Louisiana          JOHN WARNER, Virginia

                   Richard J. Kessler, Staff Director
             Jennifer A. Hemingway, Minority Staff Director
                    Jessica K. Nagasako, Chief Clerk




























                            C O N T E N T S

                                 ------                                
Opening statements:
                                                                   Page
    Senator Akaka................................................     1

                               WITNESSES
                       Thursday, October 18, 2007

James Byrne, Deputy Special Counsel, U.S. Office of Special 
  Counsel, accompanied by Ana Galindo-Marrone, Chief, Hatch Unit, 
  U.S. Office of Special Counsel.................................     3
B. Chad Bungard, General Counsel, U.S. Merit Systems Protection 
  Board..........................................................     5
Colleen M. Kelley, National President, National Treasury 
  Employees Union................................................    11
John Gage, National President, American Federation of Government 
  Employees......................................................    13
Thomas Devine, Legal Director, Government Accountability Project.    16

                     Alphabetical List of Witnesses

Bungard, B. Chad:
    Testimony....................................................     5
    Prepared statement...........................................    32
Byrne, James:
    Testimony....................................................     3
    Prepared statement...........................................    29
Devine, Thomas:
    Testimony....................................................    16
    Prepared statement...........................................    54
Gage, John:
    Testimony....................................................    13
    Prepared statement with an attachment........................    47
Galindo-Marrone, Ana:
    Testimony....................................................     3
Kelley, Colleen M.:
    Testimony....................................................    11
    Prepared statement...........................................    40

                                APPENDIX

Background.......................................................    63
Questions and Responses for the Record from:
    Mr. Bryne with attachments...................................    72
    Mr. Bungard..................................................   103
Court document Special Counsel v. Robert Wilkinson...............   105


































 
                 THE PERILS OF POLITICS IN GOVERNMENT:
                       A REVIEW OF THE SCOPE AND
                      ENFORCEMENT OF THE HATCH ACT

                              ----------                              


                       THURSDAY, OCTOBER 18, 2007

                                 U.S. Senate,      
              Subcommittee on Oversight of Government      
                     Management, the Federal Workforce,    
                            and the District of Columbia,  
                      of the Committee on Homeland Security
                                        and Governmental Affairs,  
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 10:06 a.m., in 
Room SD-342, Dirksen Senate Office Building, Hon. Daniel K. 
Akaka, Chairman of the Subcommittee, presiding.
    Present: Senator Akaka.

               OPENING STATEMENT OF SENATOR AKAKA

    Senator Akaka. This hearing will come to order.
    I call this hearing of the Subcommittee on Oversight of 
Government Management, the Federal Workforce, and the District 
of Columbia to order. This hearing will examine the Hatch Act, 
how it is being enforced, and whether it needs to be enhanced 
or clarified.
    Government works best if the American people know that 
their government works for them, regardless of the political 
party that is in charge. The Hatch Act is an indispensable tool 
for making sure that it does.
    Equally important is the protection that the Hatch Act 
provides for Federal workers. The Hatch Act is a central part 
of a merit-based civil service system that replaced the 
political spoils system. It restricts Federal employees' 
partisan political action in order to protect them from being 
coerced to participate in political activities.
    That is why the political briefings that the White House 
provided to political appointees throughout the Federal 
Government have increased concern about the Hatch Act. 
According to press reports, the White House provided briefings 
on election results and upcoming elections over several years 
to political appointees across the Federal Government. For 
example, a January 2007 presentation given at the General 
Services Administration included slides analyzing Senate and 
Governors' races that they predict to be competitive in 2008 
elections. The White House briefing seemed designed to solicit 
Federal officials to engage in partisan political activities by 
suggesting that the White House would appreciate their 
assistance in the competitive races highlighted.
    Such a practice has no place in any administration. In 
order for the Hatch Act to fulfill its purpose, we must ensure 
that it covers not only explicit coercion but also more subtle 
encouragement of Federal employees to assist the President's 
political party in elections.
    At the same time, Federal employees remain free to vote as 
they choose, express their opinions on candidates and issues, 
and attend rallies and meetings while off duty. As a result of 
amendments passed in 1993, most Federal employees are free to 
take an active part in election campaigns.
    The Hatch Act has not been looked at in-depth since the 
1993 amendments. As we enter the 2008 election season, it is 
time for Congress to ask whether the statute is doing what it 
is intended to do, whether it is being enforced properly, 
whether the 1993 amendments worked well, and whether the 
statute needs updating.
    Most employees know that they are not allowed to engage in 
political work while on duty, but they may not understand nor 
even know about the other restrictions. For example, Federal 
employees who know that they are permitted to work on a 
campaign while off duty may accidentally violate the Hatch Act 
because they do not understand that they cannot directly 
solicit donations for the campaign.
    In particular, the line between casual workplace 
conversation and political activity that is not permitted on 
duty may be unclear to many employees. Does inviting a few work 
friends to a campaign rally after work violate the Hatch Act? 
Does it matter if an employee asks his friends by e-mailing 
rather than while chatting in a break room? Does it matter if 
the employee invites two friends or 20? How do employees know 
where the line is?
    This uncertainty may discourage employees from engaging in 
conversation and off-duty political action that is allowed 
under the Hatch Act. This chilling effect is particularly 
likely because the Hatch Act states that an employee who 
violates the statute shall be removed from his or her position. 
That penalty can be reduced, and few employees actually lose 
their jobs under the Hatch Act. However, many employees may 
avoid doing anything that approaches the statute's reach for 
fear of putting their jobs on the line. I believe that the 
Hatch Act should be enforced vigorously, but that punishment 
should be more effectively targeted to fit the seriousness of 
the violation at issue.
    Finally, I also am concerned about the difference in 
treatment between civil servants and Presidential appointees 
and White House staff when the Office of Special Counsel (OSC) 
finds a violation. The Merit Systems Protection Board does not 
have jurisdiction over violations by most Senate-confirmed 
political appointees and White House staff. Only the President 
can decide if these officials will be punished for violations. 
Furthermore, there are no requirements on the President to take 
any action on the OSC's findings. As a result, the President 
has little incentive to punish his political appointees and 
staff if they step over the line to help his political party. 
These officials are covered by the Hatch Act, but there is no 
way to enforce the statute if they violate it.
    I have devoted a great deal of energy to protecting Federal 
employees' rights and benefits over the years, and I believe 
that the Hatch Act is an integral part of the merit-based civil 
service system. Any changes to the Hatch Act must be carefully 
weighed as the statute reflects a well-thought-out balance 
between honoring civil servants' rights to political engagement 
and protecting them from political coercion.
    I want to thank our witnesses for being here today to 
discuss these important issues, and I would like at this time 
to welcome to today's Subcommittee hearing the first panel of 
witnesses: James Byrne, Deputy Special Counsel in the U.S. 
Office of Special Counsel, and Chad Bungard, General Counsel, 
the Merit Systems Protection Board. I also welcome Ana Galindo-
Marrone, the Chief of the OSC's Hatch Act Unit. I understand 
that you are here to respond to questions but you will not make 
an opening statement.
    It is the custom of this Subcommittee to swear in all 
witnesses, and I would ask all of you to stand and raise your 
hand. Do you swear that the testimony you are about to give 
this Subcommittee is the truth, the whole truth, and nothing 
but the truth, so help you, God?
    Mr. Byrne. I do.
    Ms. Galindo-Marrone. I do.
    Mr. Bungard. I do.
    Senator Akaka. Thank you very much. Let the record note 
that the witnesses did answer in the affirmative.
    Now I would like to hear from our witnesses. Let me first 
call on Mr. Byrne for his testimony.

   TESTIMONY OF JAMES BYRNE,\1\ DEPUTY SPECIAL COUNSEL, U.S. 
OFFICE OF SPECIAL COUNSEL, ACCOMPANIED BY ANA GALINDO-MARRONE, 
       CHIEF, HATCH UNIT, U.S. OFFICE OF SPECIAL COUNSEL

    Mr. Byrne. Chairman Akaka, I thank you for the opportunity 
to appear before this Subcommittee to discuss the Hatch Act. My 
name is Jim Byrne, and I am the Deputy Special Counsel of the 
U.S. Office of Special Counsel. I am joined today by Ana 
Galindo-Marrone, who has been our Chief of OSC's Hatch Act Unit 
since 2000.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Byrne appears in the Appendix on 
page 29.
---------------------------------------------------------------------------
    The Hatch Act restricts the political activity of employees 
of the Federal Executive Branch, the District of Columbia, and 
State and local employees who work on federally funded 
programs. The Office of Special Counsel appreciates the 
Subcommittee's willingness to hold a hearing on the Hatch Act. 
This hearing brings visibility to the Hatch Act that can 
enhance awareness and understanding and deter violations of the 
law.
    Today, I am pleased to provide our perspectives on the 
scope of the Hatch Act, how it is enforced, and possible 
enhancements. We will testify today from our experience in 
enforcing the Hatch Act from closed cases. And as you know, we 
cannot discuss the details of any ongoing investigations.
    The Hatch Act was enacted in 1939 to address the spoils 
system that had dominated the Federal workplace, under which 
Federal employment and advancement depended upon party service 
and changing administrations rather than performance. Congress 
determined that placing limits on employees' partisan political 
activity was necessary for institutions to function fairly and 
effectively. The Hatch Act is essential to a government that 
operates under a merit-based system and serves all citizens 
regardless of partisan interests.
    The Supreme Court in 1973 recognized that one of the 
primary purposes in enacting the Hatch Act was to ensure: That 
employment and advancement in government service not depend on 
political performance, and at the same time make sure that 
government employees would be free from pressure and from 
express or tacit invitation to vote in a certain way or perform 
political chores in order to curry favor with their superiors 
rather than to act out their own beliefs.
    Unfortunately, from recent headlines and our experience in 
investigations, the reasons for the Hatch Act remain compelling 
today. Commitment by public servants to a neutral, nonpartisan 
Federal workplace is critical to fair governance and the public 
trust. OSC is committed to its statutory mission to enforce the 
Hatch Act, and that commitment is demonstrated in the hard work 
of the career lawyers that work in OSC's Hatch Act Unit, who 
are here in this room today.
    In the last 2 years, the unit has issued over 5,600 
advisory opinions, received approximately 600 complaints, and 
investigated and completed 517 of those complaints. We resolved 
68 of these without litigation, advising employees that they 
were in violation, and securing their willingness to comply. 
Some complaints have involved serious allegations of Federal 
employees using their official authority to interfere with 
elections, including targeting subordinates for political 
contributions. Similarly, in State and local cases we have 
investigated allegations of supervisors, including law 
enforcement officials, using their official authority to coerce 
political contributions from subordinates. We have been 
aggressive in outreach and enforcement to educate employees 
that political activity while on duty or in a Federal building 
is prohibited, regardless of the technology utilized.
    This year, OSC completed a successful run of litigation 
involving the use of e-mail to engage in political activity 
while on duty or in a Federal building. We realize that 
unfortunate wording from a 2002 OSC Hatch Act advisory opinion 
on the use of e-mail had been misinterpreted as a ``water 
cooler'' exception for e-mail activity. As no such exception 
has ever existed under the Hatch Act, we rescinded the opinion 
in March, following several opinions where the MSPB agreed that 
using the e-mail system to engage in political activity while 
on duty or in a Federal building is prohibited by the Hatch 
Act.
    Complaints under the Hatch Act have increased in number in 
recent years. We hope that the visibility of the Hatch Act by 
this hearing and by our own expanded investigations will 
reverse this trend as employees become more aware of their 
responsibilities.
    We look forward to your questions.
    Senator Akaka. Thank you very much. Now we will hear from 
Chad Bungard.

 TESTIMONY OF B. CHAD BUNGARD,\1\ GENERAL COUNSEL, U.S. MERIT 
                    SYSTEMS PROTECTION BOARD

    Mr. Bungard. Thank you, Chairman Akaka, for the opportunity 
to share information regarding the role of the Merit Systems 
Protection Board in enforcing the Hatch Act. I request that my 
written statement be included in the record.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Bungard appears in the Appendix 
on page 32.
---------------------------------------------------------------------------
    MSPB adjudicates cases under the Hatch Act when the Special 
Counsel files a complaint seeking disciplinary action for an 
alleged violation of the Act. The complaint is heard by an 
administrative law judge under the terms of an interagency 
contract with the National Labor Relations Board. Generally, 
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 Hatch Act by an 
individual who is a Presidential appointee with Senate 
confirmation.
    If the ALJ determines that a Federal employee has violated 
the Hatch Act and that removal is warranted, the ALJ issues an 
initial decision ordering removal of the employee, which may be 
appealed to the full Board on petition for review. If on 
petition for review the Board decides that a Federal employee 
has violated the Hatch Act, the penalty must be either removal 
or suspension without pay for not less than 30 days. If the ALJ 
determines that a Federal employee has violated the Hatch Act 
but that the appropriate penalty is less than removal, the ALJ 
issues a recommended decision for consideration by the Board. A 
penalty of less than removal requires, by statute, a unanimous 
vote of the Board. The ALJ may initiate attempts to settle the 
complaint at any time during the proceeding. If a settlement is 
reached, the settlement agreement becomes the final and binding 
resolution of the complaint.
    If the Board decides 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 Hatch Act, the outcome must be the penalty of 
removal or determination that no penalty is warranted. If the 
Board determines that removal is warranted and the State or 
local agency fails to comply with the Board's 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.
    The Board's decision that a Federal employee violated the 
Hatch Act may be appealed to the U.S. Court of Appeals for the 
Federal Circuit. The Board's decision that a State or local 
agency employee violated the Hatch Act can be reviewed by an 
appropriate U.S. district court.
    MSPB receives approximately 8,400 appeals in its 
headquarters, regional, and field offices each year. From 
January 2002 to September 2007, the Office of the Special 
Counsel brought 36 Hatch Act cases before the Board. Of that 
total, 15 cases involved State or local agency employees.
    In 2006, the Board issued a series of decisions involving 
allegations of Hatch Act violations for engaging in political 
activity while on duty in government offices. In three of these 
cases, the Board determined that the employee had engaged in 
political activity that was prohibited by the Hatch Act. In the 
fourth case, the Board reversed and remanded a decision by the 
administrative law judge dismissing the complaint, directing 
the parties to address factors identified in OSC's 2002 
advisory opinion, along with any additional arguments that 
would support their views as to whether a Hatch Act violation 
occurred.
    The Office of the Special Counsel rescinded its 2002 
advisory opinion in March of this year stating that these Board 
decisions provide ``clear guidance'' and intimating that the 
Board held that the right to express opinions on political 
subjects and candidates was limited to off-duty expressions, 
that is, the ``water cooler'' exception is no longer valid. To 
the contrary, the Board has not decided whether an employee's 
on-duty expressions of his or her opinion on political subjects 
and candidates constitute ``political activity,'' as prohibited 
under the Act. In all four of these Board decisions, the issue 
was whether the employees' communications exceeded the mere 
exchange of opinions and urged others to take specific action 
in support of or against specific partisan candidates.
    As the data show, Hatch Act cases are a very small part of 
the Board's overall caseload. However, these cases are very 
significant to the Board's statutory mission of ensuring a 
merit-based Federal civil service system. The Board endeavors 
to adjudicate these cases promptly and efficiently, and in a 
manner that comports with the congressional intent underlying 
the Act.
    I would be happy to answer questions at this time.
    Senator Akaka. Thank you very much. Mr. Byrne, you 
testified that the Special Counsel recently clarified that 
there is no ``water cooler'' exception for engaging in 
political activity via e-mail. Does a more traditional ``water 
cooler'' exception exist if a group of employees casually chat 
in the break room about their views on an upcoming election? 
Does that violate the Hatch Act?
    Mr. Byrne. Mr. Chairman, thank you for that question. The 
opinion that our office put out several years ago had no 
mention to any exception to the Hatch Act. We look at 
situations or examples like you are discussing in the totality 
of the circumstances to determine whether that activity rises 
to the level of a political activity designed to influence an 
election. And so there is no such animal as the ``water 
cooler'' exception. Each case is looked at under that 
microscope.
    Senator Akaka. Thank you. Mr. Bungard, from your experience 
at the Board, do you believe it is sufficiently clear to 
Federal employees where OSC and the MSPB have drawn the line 
between casual conversation and impermissible political action?
    Mr. Bungard. Well, the Board certainly has not addressed 
whether it is permissible for one to express his political 
opinion either through e-mail or otherwise. That issue has not 
been before the Board, and it specifically stated such in two 
cases last year. The cases that were brought before the Board 
last year, all four cases mentioned in the 2007 press release 
by OSC, were communications that expressly advocated the 
election or defeat of a candidate and sent to multiple 
individuals.
    Senator Akaka. Mr. Byrne, does on-duty activity and support 
over a political cause that is not tied to a political party or 
election violate the Hatch Act? In other words, can employees 
put up pro- or anti-war posters in their offices?
    Mr. Byrne. Mr. Chairman, I might ask----
    Senator Akaka. This is in support of a political cause.
    Mr. Byrne. Correct, that may be interpreted as a partisan 
activity, rising to the level of the activity. I am going to 
look over my shoulder at Ms. Galindo-Marrone, if you will 
permit me, to probably address that issue, which I believe they 
have done repeatedly with advisory opinions in other matters, 
if you will allow.
    Senator Akaka. Thank you.
    Ms. Galindo-Marrone. Good morning, Chairman Akaka. And, 
again, I also would like to thank you for giving me an 
opportunity to answer your questions and discuss OSC's 
enforcement of the Hatch Act.
    And turning to your question, if the matter is not tied to 
a political party, partisan organization, or candidate for 
partisan political office, then certainly an employee would be 
allowed to post such an item, whether it is pro-war, anti-war, 
or any other matter that is in the news at the time.
    Senator Akaka. Yes. And this is a fine line. The everyday 
understanding of political activity includes activism on 
issues, even if they are not tied to political parties. Do 
employees understand this distinction?
    Ms. Galindo-Marrone. I cannot answer for all employees, but 
certainly in terms of our outreach efforts and our efforts in 
issuing advisory opinions, when this issue is addressed we make 
it very clear that unless--and going back, again, to the 
definition of ``political activity,'' it needs to be connected, 
tied to a candidate, a political party, or partisan 
organization so that if an individual is just making a 
statement about issues and not tying it to a candidate or a 
party, it would not be prohibited. And, in fact, we have an 
advisory opinion on that very issue up on our website.
    Senator Akaka. Mr. Byrne, many people in government and 
elsewhere use e-mail for both formal and informal 
communications. It is an easy and efficient way to communicate 
with a lot of people. However, unlike face-to-face 
conversations, e-mail recipients cannot judge the writer's body 
language or tone of voice, and misunderstandings about the 
writer's intent may be more likely.
    To either one of you, have you found that these differences 
make it more likely that Federal employees will accidentally 
cross the line into political action when they meant to engage 
in casual banter?
    Mr. Byrne. I would like to address part of that, if I 
might, because that is a very good point about e-mail, somewhat 
a new means of communication for some of us, I suppose, where 
you do not have those expressions and the inflections and the 
tones and the body language.
    But on the other side--and not that I am particularly on 
one side or the other on it--is the danger within e-mail that--
I will not say the equivalent, but the possibility that it will 
be echoed on through forwarding and repeated forwarding and 
repeated forwarding, almost as though someone is making a 
conversation in the Grand Canyon and it is echoing back and 
forth and continuing on indefinitely. So that is an additional 
danger or additional concern that one would add to the e-mail 
phenomena with communications.
    Ms. Galindo-Marrone, do you have anything to add to that?
    Ms. Galindo-Marrone. I guess I would like to add that just 
from our experience since the 2000 election, we continued to 
see a rise in terms of the use of e-mail to engage in political 
activity. And I think earlier you had asked about a bright line 
and the line between casual and impermissible. We take it 
seriously in the Hatch Act Unit when we receive these 
complaints and to look at each case on its own. We have to look 
at all the facts surrounding the communication--the number of 
recipients, the content, when it was sent, who it was sent to, 
etc.
    Senator Akaka. Well, when I hear a number like 5,600, it is 
enormous. And when you say you have to take each one on its 
own----
    Ms. Galindo-Marrone. We are busy.
    Senator Akaka. It is very difficult.
    Mr. Byrne, with the 2008 election season already gearing 
up, what actions is OSC taking to make sure Federal employees 
understand the Hatch Act? I think it was mentioned that 
education is going on, but I would like to know a little more 
detail about how you are making sure that Federal employees 
understand the Hatch Act.
    Mr. Byrne. Thank you, Senator. I was scribbling notes down 
as you were talking, and we continue our outreach program to 
various agencies to make them aware of this. Fortunately, or 
unfortunately, some higher-profile investigations have been 
covered in the media, and we think that raises the profile of 
the Hatch Act. This hearing, which we thank you for, raises the 
awareness of the Hatch Act. And I think part of your question 
was how are we preparing to deal with the potential rise in the 
number of cases. And we have just recently hired two new 
employees to bolster up the Hatch Act Unit: Nicole Eldridge out 
of Rhode Island and Justin Martell here in Northern Virginia.
    I think Ms. Galindo-Marrone would like to add something.
    Ms. Galindo-Marrone. If I may, I would also like to say 
that in gearing up for the 2008 Presidential election, we have 
been more actively posting advisory opinions on our website as 
we see new and unique issues or issues that keep repeating 
themselves. We are being more active in placing advisory 
opinions on our website as well as in this past year we took 
some time--and our Deputy Chief of the Hatch Act Unit did two 
DVDs targeted for both Federal employees and State and local 
employees that are available off our website to assist.
    Senator Akaka. You use the word ``repeating.'' What are the 
most frequent types of Hatch Act complaints the OSC receives?
    Ms. Galindo-Marrone. Candidacy violations, would be the 
majority of the cases that we see.
    Senator Akaka. Also, let me ask whether the types of 
complaints or requests for advisory opinions that you see have 
changed over time.
    Ms. Galindo-Marrone. Could you give me a little bit more 
with respect to that question just to make sure that I answer 
correctly?
    Senator Akaka. Yes, and I am asking for complaints or 
requests for advisory opinions. And since the spoils system in 
1939, many things have changed, of course, but I am just asking 
whether more recently the types of complaints or requests for 
advisory opinions that you see have changed over time.
    Ms. Galindo-Marrone. The majority of the complaints and 
also the requests for advisory opinions continue to be in the 
area of candidacy. A number of employees request advisory 
opinions wanting to know whether they are covered by the Hatch 
Act, in particular State and local employees, and if they are 
covered, can they be candidates in particular elections?
    Senator Akaka. Mr. Byrne, your statement notes that the 
Hatch Act reflects a judgment that placing limits on employees' 
partisan political activity is necessary for the government to 
function fairly and effectively. High-level officials set the 
tone within agencies, and they are the officials most likely to 
be, of course, in the public eye. For those reasons, it is very 
important that they abide by the Hatch Act.
    How has the Special Counsel's office dealt with its 
inability to bring Hatch Act charges to the MSPB against most 
Senate-confirmed Presidential appointees and White House staff?
    Mr. Byrne. Thank you, Senator, for that question, and I 
have a smile on my face when you say that, because obviously 
there is a difference. We follow the law. We are law 
enforcement, and we follow it within the constraints of the 
statutes. And we forward recommendations on presidentially 
appointed, Senate-confirmed individuals to the President and 
leave it to his discretion what to do in the discipline area.
    I do not really have any comment other than I acknowledge 
the fact that there is a difference and appreciate the 
question.
    Senator Akaka. And you are following the law.
    Mr. Byrne. Yes, sir. We are following the law.
    Senator Akaka. Mr. Bungard, Hatch Act cases are a very 
small part of MSPB's caseload. Why do you believe this is the 
case?
    Mr. Bungard. I really do not have an opinion on why OSC 
decides to bring cases before the Board and why they do not. 
But we have only had 36 decisions from 2002 to the present.
    Senator Akaka. Yes. I think you mentioned that there were 
68 cases without litigation, as well. So, are the Hatch Act 
cases still considered a small part of your caseload?
    Mr. Bungard. Very small part. We processed 8,400 appeals 
this year, and we have only had 36 Hatch Act cases since 2002.
    Senator Akaka. Mr. Bungard, are there other Federal 
personal statutes that have a similar default punishment of 
termination? If so, what are those statutes?
    Mr. Bungard. I can certainly look into that and get back to 
you.\1\
---------------------------------------------------------------------------
    \1\ The Court case appears in the Appendix on page 105.
---------------------------------------------------------------------------
    Senator Akaka. Mr. Byrne, State and local employees are 
subject to the Hatch Act only where their principal employment 
is in connection with programs financed by loans or grants made 
by the United States or a Federal agency. To either one of you, 
do you receive complaints about State and local employees who 
do not know they are covered by the Hatch Act until they are 
warned that they might have violated it?
    Mr. Byrne. I am pretty sure the answer is yes, but I would 
actually think Ms. Galindo-Marrone could probably answer that 
better.
    Ms. Galindo-Marrone. Yes, certainly, we receive a number of 
complaints like that.
    Senator Akaka. Mr. Bungard, the determination whether a 
State or local employee is covered by the Hatch Act, is that 
determination often difficult? Do many State and local 
employees contest whether they are subject to the Hatch Act?
    Mr. Bungard. Yes, that does come up. In fact, that came up 
in, I believe, a 2006 decision was Special Counsel v. Phillips. 
Did this individual fall within the Executive Branch? So that 
question does come up, and the Board does contemplate that from 
time to time.
    Senator Akaka. Also, does the Board have jurisdiction over 
State and local employees in other types of personnel actions?
    Mr. Bungard. I do not believe so.
    Senator Akaka. Mr. Byrne or Ms. Galindo-Marrone, in your 
experience, have there been any changes in the seriousness of 
Hatch Act violations that you see?
    Ms. Galindo-Marrone. I am so glad you asked that question 
because I wanted to supplement an earlier answer when you were 
talking about the different types of advisory opinions and the 
complaints, and I focused my response on saying that they 
continue to be candidacy. I could not give you numbers right 
now, but there has been what appears to us in the Hatch Act 
Unit to be an increase in the number of complaints that we are 
seeing involving what we consider serious allegations involving 
the use of official authority to interfere with the results of 
an election, and internally we call these the ``coercion 
cases'' where you have a supervisor or someone in authority 
soliciting or drawing in their subordinates to engage in 
political activity. And so we are starting to see in the last 
couple of years on the Federal, State, and local side more of 
those cases.
    Senator Akaka. Thank you.
    Mr. Byrne, what is OSC's policy of releasing non-final 
Hatch Act investigation reports? To your knowledge, has this 
policy been followed by OSC leadership?
    Mr. Byrne. Thank you, Mr. Chairman. The release of any 
reports is at the complete discretion of the Special Counsel, 
Scott Bloch.
    Senator Akaka. I want to thank you, Mr. Byrne, Ms. Galindo-
Marrone, and Mr. Bungard, again for taking the time to appear 
before the Subcommittee today. This area of the Hatch Act has 
been elusive in some ways, has been misunderstood, and I am 
glad that we are having this hearing. I hope that all Federal 
employees and others who come under the Hatch Act would 
consider trying to learn more about the fine lines, as this is 
where it is very difficult. And I know you continue to be 
certain that the correct advice is given, and I am hoping this 
raises the awareness of the Hatch Act, what its purpose is, and 
how it is used, so that it can be followed as closely as 
possible.
    So I want to at this time thank you for coming today and 
helping us with our work here in the U.S. Senate. Thank you 
very much.
    Mr. Bungard. Thank you.
    Mr. Byrne. Thank you, Mr. Chairman.
    Ms. Galindo-Marrone. Thank you.
    Senator Akaka. Now I would like to welcome our second panel 
to the Subcommittee's hearing: Colleen Kelley, National 
President of the National Treasury Employees Union; John Gage, 
National President of the American Federation of Government 
Employees; and Tom Devine, Legal Director, Government 
Accountability Project.
    As you know, it is the custom of this Subcommittee to swear 
in all witnesses, and I would ask all of you to stand and raise 
your right hand. Do you solemnly swear that the testimony you 
are about to give this Subcommittee is the truth, the whole 
truth, and nothing but the truth, so help you, God?
    Ms. Kelley. I do.
    Mr. Gage. I do.
    Mr. Devine. I do.
    Senator Akaka. Thank you very much. Let it be noted for the 
record that the witnesses answered in the affirmative.
    As with the previous panel, I want the witnesses to know 
that while your oral statements are limited to 5 minutes, your 
entire statements will be included in the record.
    Let me call on Ms. Kelley to please proceed with your 
statement.

TESTIMONY OF COLLEEN M. KELLEY,\1\ NATIONAL PRESIDENT, NATIONAL 
                    TREASURY EMPLOYEES UNION

    Ms. Kelley. Thank you very much, Chairman Akaka, for 
holding this hearing today, and I very much appreciate the 
opportunity to be here to discuss the Hatch Act. Your oversight 
of this important issue ensures that while the administration 
of Federal programs remains free of partisan political 
influence, rank-and-file career Federal employees may continue 
to participate as citizens in our Nation's political life.
---------------------------------------------------------------------------
    \1\ The prepared statement of Ms. Kelley appears in the Appendix on 
page 40.
---------------------------------------------------------------------------
    Before the Hatch Act amendments that were implemented in 
1994, Federal employees could not work on a campaign by 
planning events, coordinating volunteers, or helping in get-
out-the-vote drives. They could not run for office within a 
party structure or attend conventions or rallies or meetings as 
the elected representative of a partisan organization, even on 
their non-work time. You may remember all the terrible things 
that some Members of Congress promised would happen if the 
Hatch Act was amended. After all the speeches and the dire 
predictions, however, the Hatch Act, as amended, has been a 
great success. While the National Treasury Employees Union 
(NTEU) would like to see less restrictions in some of the 
provisions, and we think that the penalties are much too harsh 
for most of the transgressions, by and large, it has allowed 
Federal workers to become more fully involved and to exercise 
their citizenship in a vital way.
    NTEU believes, however, that some problems remain with the 
current Hatch Act. There is so much gray area in the 
regulations that even the Special Counsel's office couches its 
opinions and advisories with vague language. What happens in 
reality is that Federal employees are often so confused about 
what is acceptable and what is not acceptable that they do 
choose not to exercise the rights, as you suggest. We are happy 
to say, however, that to the best of our knowledge, no NTEU 
member has ever been charged with a Hatch Act violation.
    As we have said, the Hatch Act amendments are, for the most 
part, working well. There are some areas, however, that would 
work better if they were clarified and some others if they were 
modified, and we have supplied specific language in our written 
testimony. I would like to speak briefly to five of those.
    First, to codify the ``water cooler'' rule that we heard 
discussed on the first panel. The current Special Counsel 
rescinded an earlier advisory opinion that allowed Federal 
employees to communicate by e-mail about political subjects 
within narrow parameters. If the content of a message expresses 
the sender's personal opinion about a candidate for partisan 
political office and the audience for the message is a small 
group of colleagues with whom the sender might otherwise engage 
in water-cooler talk, an e-mail message should be considered a 
substitute for permissible, face-to-face expression of personal 
opinion, which is not prohibited by the Hatch Act.
    Second, clarify the union's right to conduct nonpartisan 
voter registration drives at Federal worksites. If the voter 
registration drive is non-partisan--that is, that it is open to 
all to register with whatever party, if any--there should be no 
other factors that are relevant. It should be allowed.
    Third, repeat the mandatory removal penalty. The penalty 
needs to fit the crime. Fear of getting fired is an 
unnecessarily harsh penalty that often deters Federal employees 
from exercising the rights that they do possess.
    Fourth, add a provision to Section 1215(b) of Title 5 
requiring the President to report to Congress of any actions 
they take in response to findings by any relevant agency of 
violations of the Hatch Act or prohibited personnel practices 
by Senate-confirmed Presidential appointees. Make that 
reporting a requirement.
    Fifth, at a minimum, allow Federal employees to run as 
independent candidates for local office, regardless of whether 
other candidates are running with the endorsement of partisan 
political groups. And, ideally, allow Federal employees to take 
leave to run for any partisan public office.
    We have had enough time under the amendments to recognize 
that there is no danger to either the civil service or to the 
country at large in a Federal employee running for office as a 
member of a political party.
    On a related topic, the Special Counsel has asked for an 
additional $2.9 million for Hatch Act investigations, noting 
that the office needs what they call to build a capability to 
do extended forensics. The decisions that have been made by the 
current Special Counsel do not lead me to support that request.
    In conclusion, Mr. Chairman, it took almost 20 years of 
hard work by NTEU and other organizations to amend the Hatch 
Act to overcome all of the dire predictions of what would 
happen if we let Federal employees participate in their 
government's political structure. After all the speeches and 
the hand-wringing, however, the Hatch Act amendments of 1994 
have been a great success, and I would be glad to answer any 
questions that you have.
    Senator Akaka. Thank you very much. Mr. Gage, your 
testimony, please?

    TESTIMONY OF JOHN GAGE,\1\ NATIONAL PRESIDENT, AMERICAN 
               FEDERATION OF GOVERNMENT EMPLOYEES

    Mr. Gage. Thank you, Senator, and thanks for calling this 
hearing. My name is John Gage, and I am the National President 
of the American Federation of Government Employees, AFL-CIO, 
which represents over 600,000 Federal Government workers. In 
1993, AFGE was a strong supporter of modifications to the Hatch 
Act that clarified ambiguities in the law, allowed Federal 
workers to become more politically active during off-duty 
hours, and set standards that guarantee a strictly apolitical 
civil service.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Gage with an attachment appears 
in the Appendix on page 47.
---------------------------------------------------------------------------
    AFGE continues to believe that appropriate application of 
the Hatch Act by the Office of Special Counsel helps to 
preserve a politically neutral workplace while balancing the 
First Amendment rights of government workers. At the same time, 
AFGE strongly urges Congress to exert its oversight role during 
the next election cycle to monitor OSC Hatch Act investigations 
against Federal workers for inconsistencies, disproportionate 
penalties for minor infractions, and retaliation against union 
officials.
    The Hatch Act was passed in 1939 with the intention of 
ensuring that the Federal civil service would be politically 
neutral and the spoils system would be eliminated. On its face, 
the Hatch Act and its amendments establish three limitations on 
the political activities of Federal workers:
    Federal and postal employees cannot engage in political 
activity while on duty, in any building where the business of 
the government is being conducted, while wearing a uniform or 
official insignia identifying them as public employees, or 
while using a government vehicle.
    Federal employees are not permitted to run for partisan 
political office at any level.
    And Federal employees are not allowed to solicit, accept, 
or receive political contributions from the general public, a 
superior, or while inside a government building.
    But it is also important to note that the Hatch Act also 
serves to protect civic participation of Federal workers, 
including the right to register and vote for the candidate of 
their choice; to run as candidates for public offices in 
nonpartisan elections; to assist in voter registration drives; 
to contribute money to, and engage in, fundraising for 
political organizations or candidates; to attend political 
fundraising functions; and to express opinions about candidates 
and issues.
    The provisions of the Hatch Act appear to draw fairly 
bright-line distinctions between what activities are and are 
not permissible by Federal employees. Federal workers have a 
right to participate in partisan political activities fully and 
freely, except when that participation impacts the integrity of 
a competitive civil service free from political influences.
    AFGE has serious concerns about inconsistencies in 
interpretation of the Hatch Act. The drafters of the Hatch Act 
and its 1993 amendments never anticipated the extent to which 
technology would change how workers communicate with each 
other. Wide access to e-mail, the pervasiveness of information 
available via the Internet, and instant and text messaging have 
profoundly broadened the ability of one worker to communicate 
with many individuals with a few strokes of the keypad. From 
the ease of sending attachments via e-mail to the almost 
instantaneous posting of videos on YouTube, the scope and 
quantity of information readily available was almost beyond 
comprehension only a few years ago. Simply put, people, 
including Federal employees, have much more ways to talk now 
than they did in 1939 or 1993.
    In light of changes in communications technology, and to 
the public discourse as a whole, AFGE would like to bring to 
the attention of the Subcommittee issues where the application 
of the Hatch Act appears to lag behind the reality of the 
present-day workplace.
    First, AFGE members have faced OSC investigations that were 
extensive, time-consuming, and chilling based on allegations of 
computer commission that were relatively minor e-mail 
situations that ran afoul of the current OSC's broad 
interpretation of the Hatch Act. In these situations, employees 
forwarded e-mails that included satire or jokes about political 
figures, announcements of events, or e-mails that are only 
political in nature upon closer review than the worker's 
initial cursory read. Often these e-mails are not shared with 
the entire workplace, but instead sent to a smaller group with 
whom the employee converses regularly.
    Prior to the advent of computer communications, the 
employee might have shared the information with a small group 
of colleagues around the proverbial ``water cooler'' or during 
coffee breaks. The e-mails are forwarded because the worker 
simply wanted to share a funny joke and did so without much 
thought by a single click of the mouse. The mere act of 
forwarding an e-mail is not adopting the ideology of the e-
mail's originator.
    While AFGE does not condone political activity at the 
Federal workplace in violation of the Hatch Act, we do believe 
that the forwarding of e-mail with political undertones to a 
small group of colleagues is better addressed through the 
agency's computer usage policy than an OSC official 
investigation. For example, the Department of Veterans Affairs' 
Automated Information Systems Security Policy clearly states 
that ``electronic mail users must exercise common sense, 
judgment, and propriety in the use of this Government 
resource.'' The VA system also includes a table of offenses and 
progressive discipline depending on the nature, scope, and 
occurrence of the offense and whether the worker's misbehavior 
affects the mission of the agency that should result in a 
penalty for the misbehavior most appropriate to the situation. 
AFGE believes this is a much more appropriate disciplinary 
process when agency computer policies are violated instead of a 
lengthy OSC investigation.
    During previous administrations, the OSC conceded that 
relatively minor Hatch Act offenses should be considered 
``water cooler speech'' and issued an advisory which has been 
removed from the OSC website by Special Counsel Bloch. We 
believe the advisory offered a process more in line with 
expected workplace discourse. Constant misuse of e-mail after 
progressive discipline might require OSC involvement. 
Currently, the OSC can and does take action on a first event, 
even to a limited distribution. A one-time mistake by an 
employee with little or no impact on the workplace should not 
be punished in the same manner as partisan campaigning at the 
Federal worksite.
    AFGE is also concerned about the harshness of penalties 
against workers for Hatch Act violations. A consideration of 
mitigating factors, the Douglas factors, is necessary to 
determine the degree of penalty most appropriate for Hatch Act 
violations. The presumptive penalty for Hatch Act violations is 
termination, with 30 days suspension as the minimum penalty. 
The Board must agree unanimously to settlements, even if the 
parties are in agreement. Just one dissent from a Board member 
will result in the employee's termination. With the possibility 
of presumed termination hanging over Federal employees who are 
the target of Hatch Act investigations, many Federal employees 
agree to a penalty far more severe than the offense, but one 
where they will not lose their jobs.
    Under previous administrations, the OSC followed a version 
of progressive discipline short of seeking long suspensions or 
outright termination. However, the current OSC policy is that 
the Hatch Act does not provide for a warning to workers or an 
opportunity to cease and desist from a violation before seeking 
the harshest penalties. The resources spent by the OSC in 
pursuing harsh penalties are better applied to far more serious 
cases where there was a clear intent and pattern of abusing the 
worker's Federal employment for partisan political purposes.
    Unlike most Federal workplace laws, the Hatch Act has no 
statute of limitations or even a deadline by which the OSC must 
file charges. In October 2007, AFGE is representing workers--
many of them union officials--in OSC investigations that date 
back to the 2004 election cycle. The lack of a deadline or 
statute of limitations for filing charges provides the 
opportunity for workers to be targeted for retaliation because 
of their political or union affiliation. To prevent this type 
of retaliation, the establishment of a statute of limitations 
of 2 years--which covers an election cycle--is more appropriate 
to address partisan political activities on the job.
    It is normal for workers to discuss the nature and 
circumstances of their employment. When the employer is the 
Federal Government, it is only natural that workplace 
discussions will include some discourse on political efforts to 
close or move facilities or increase or decrease an agency's 
budget because they directly impact the worker's employment. 
Workers will seek information about their bosses--the President 
and Congress--and engage in discussions about working 
conditions with colleagues in the workplace. Congress should 
fully utilize its oversight role to monitor Hatch Act 
prosecutions so that Federal employees can have free discourse 
about their jobs and the political decisions that affect them, 
while deterring those few employees who intentionally seek to 
use their civil service positions for partisan political 
purposes.
    Thank you, Mr. Chairman.
    Senator Akaka. Thank you very much, Mr. Gage. Now we will 
hear from Mr. Devine.

   TESTIMONY OF THOMAS DEVINE,\1\ LEGAL DIRECTOR, GOVERNMENT 
                     ACCOUNTABILITY PROJECT

    Mr. Devine. Mr. Chairman, thank you for inviting the 
testimony of the Government Accountability Project (GAP).
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Devine appears in the Appendix on 
page 54.
---------------------------------------------------------------------------
    Separation of politics and Federal employment is the 
foundation for public service from a professional workforce. 
Unfortunately, the merit system in general, the Hatch Act in 
particular, and the civil service enforcement mechanisms that 
handle these duties, both are facing challenges unprecedented 
since the Watergate patronage scandals sparked passage of the 
Civil Service Reform Act of 1978.
    The current threat of a politicized civil service is a 
reminder of why the Office of Special Counsel was created. 
Watergate revealed a massive Nixon Administration operation to 
replace the non-partisan civil service system with a 
politically loyal workforce dedicated to partisan election 
goals. Every agency had a shadow ``political hiring czar'' 
whose authority trumped the personnel offices' 
responsibilities. The White House Personnel chief prepared the 
``Malek Manual'' as an encyclopedia for how to harass career 
employees out of the government by exploiting loopholes in 
civil service laws. Non-complying Federal employees would be 
replaced by applicants selected through a political rating 
system of 1 to 4, based on factors like partisan affiliation, 
campaign contributions, and future campaign value. The record 
of abuses led to the Civil Service Reform Act of 1978, 
including creation of the Office of Special Counsel to make 
sure this never happened again.
    However, in 4 years there was another severe attack on the 
merit system, ironically, by then-Special Counsel Alex 
Kozinski, who kept a copy of the Malek Manual on his desk and 
used its techniques to purge the professional civil service 
experts from his own agency's staff. He then tutored Federal 
managers on how to circumvent civil service law without getting 
held accountable by the Special Counsel. Eventually, the OSC 
became what one Senate staffer called a ``legalized plumbers 
unit,'' and that sparked passage of the Whistleblower 
Protection Act of 1989.
    Today's political threats to the merit system have been 
less clandestine and more arrogantly brazen. Instead of shadow 
political czars, agency leaders are doing the political arm 
twisting themselves. Instead of harassment encyclopedias on how 
to circumvent merit system rights, safeguards are being openly 
canceled by experiments in running government ``like a 
business'' without the red tape of due process. Twenty years 
later, there is serious evidence that we have a hybrid deja vu 
all over again at the Office of Special Counsel as well.
    This hearing is about policy reforms rather than unraveling 
the allegations about the current Office of Special Counsel 
leadership. But accountability is a policy issue of the highest 
order. Anti-corruption campaigns become magnets for cynicism 
unless the public knows and believes the answer to the 
question: Who is watching the watchdog?
    Particularly significant, the OSC is seeking more money to 
expand its Hatch Act enforcement program, and it is only sound 
business to check the investment's track record. The current 
Office of Special Counsel's record on the Hatch Act has been to 
accomplish less with more. In fiscal year 2006, the agency's 
$15 million budget was over $3 million more than in 2002, the 
last full year before the current leadership. Yet in the 
previous 3 years, the Special Counsel had produced 88 Hatch Act 
corrective actions out of 585 cases. In the next 3 years, with 
more money, they produced 89 corrective actions out of 793 
cases. That office can and must do better.
    A survey of lessons learned for recommendations on how they 
can do better is instructive. One, make sure that the Special 
Counsel allows the targets of its Hatch Act investigations to 
see and respond to the evidence before reports are concluded or 
released to the press. Draft reports should not be leaked to 
the press.
    Two, the Privacy Act rights of targets and witnesses must 
be respected in those reports.
    Three, the Office of Special Counsel should restore 
scrapped staff-developed quality standards in proposed case 
priority systems so we are not vulnerable to the phenomenon of 
scapegoating the small fry for the petty technical offenses 
that have been described this morning.
    Fourth, the OSC Annual Report should resume disclosing the 
number of Hatch Act investigations that are being opened each 
year. If the Office of Special Counsel is to expand its duties 
on the Hatch Act--and they have requested more money--we 
believe that Congress should:
    First, order a GAO investigation to identify wasteful 
spending at the OSC that could be redirected for these valid 
duties.
    Second, initiate a GAO investigation of alleged merit 
system violations at the Office of Special Counsel since the 
2005 cut-off for the current OPM Office of Inspector General 
investigation.
    Third, receive the reports of that investigation and make 
sure that corrective action is properly enforced.
    And, finally, require regular Senate staff briefings from 
OSC on the progress of any of its renewed work. GAP is on call 
for Committee staff to see if we can help break the broken 
record syndrome that again is threatening the merit system.
    Thank you, Mr. Chairman.
    Senator Akaka. Thank you very much, Mr. Devine.
    The default penalty for violating the Hatch Act is 
termination. That punishment is not often imposed, but it 
certainly is intimidating to Federal employees. Ms. Kelley's 
written testimony states that this severe penalty makes many 
employees afraid to exercise their rights. I would like to hear 
more from anyone on the second panel about this issue. Based on 
your discussions with Federal employees, do you know of 
examples of individuals who avoid activities that are allowed 
under the Hatch Act out of fear of risking their jobs?
    Let me start with Ms. Kelley.
    Ms. Kelley. NTEU goes to great lengths to train NTEU 
leaders on the Hatch Act and on what they can and cannot do 
because we want them to maximize the rights that they have and 
to exercise them as every other American citizen does. But 
invariably the discussions lead to gray areas, such as the 
``water cooler'' situation, or the issue of, well, what happens 
if they think I did something wrong, what is the penalty. And 
when the answer is termination, I would advise anyone who I 
represent that they do not want to be set up to be a test case 
before the Office of Special Counsel.
    And so while we give them all the information and what the 
law is and what the history is, in the end if they believe for 
a minute that a manager could zero in on them and make them a 
test case for OSC, they back off and they decide that the 
interest they had in exercising their rights has been squelched 
quite a bit because they do not want to do that. And I 
understand that.
    Like I said, we give them all the support, all the 
information, all the education, but there is a fine line that 
is not well defined in many instances, per my testimony. And I 
cannot guarantee them they will not be facing a proposed 
termination.
    So I think that many who would step forward and exercise 
their rights do not do it because they see decisions coming out 
of the OSC, they see other Federal employees doing things that 
they could innocently find themselves doing with no ill intent, 
and surely with no intent to violate the law, and yet see 
themselves being brought up on those charges.
    Senator Akaka. Mr. Gage.
    Mr. Gage. I think your question is right on point, and I 
would like to quote from an administrative law judge on a case 
that we just got this decision on last month, and he says, 
``One can only hope that the United States Congress will 
revisit its 1993 amendments and make clear exactly what sort of 
conduct it intended to prohibit and what sort of penalties it 
intended to exact. It is hard to believe that it intended to 
exact a penalty of termination or a substantial suspension 
without pay for conduct as trivial as that for which Mr. 
Wilkinson is being punished and for conduct as trivial as that 
for which other Federal and State employees may be punished in 
the future.'' \1\
---------------------------------------------------------------------------
    \1\ The Court document appears in the Appendix on page 105.
---------------------------------------------------------------------------
    And this judge had to uphold the settlement, which was for 
30 days suspension. But even in that, he said, ``This is a 
complaint that should never have been filed and, having been 
filed, should have by a prosecutor with any sense of fair play 
been settled for a warning letter. Departing from its usual 
practice, the Special Counsel initiated this proceeding without 
first warning Mr. Wilkinson that it believed that his conduct 
violated the Hatch Act and without giving him an opportunity to 
cease such conduct.''
    There is another case, too, that we just received, and in 
this one, one of our union leaders had invited a Congressman to 
come to the VA hospital to show him the conditions at that 
hospital. No politics intended. This had been scheduled for 
almost 6 or 7 months ahead of time, but was postponed twice--
once because of the death of Governor Ann Richards down in 
Texas. But our local president, because a Congressman came in 
to look at the VA conditions, received--had to undergo almost a 
year-long investigation. And this is the type of rule that I 
think are hidden because in their dismissal letter, the OSC 
says, ``Typically, visits by candidates so close in time to the 
day of their elections are viewed presumptively as campaign 
events, which are prohibited in Federal room or building.'' 
This visit took place 5 weeks before an election. Now, is 6 
weeks okay? Is 7 weeks okay?
    There are some hidden rules here that I do not know how 
anyone can expect a Federal employee or a union official to be 
able to comply with.
    Now, Congressmen do their jobs through their whole term, 
and we have to petition Congress through their whole term. But 
to say presumptively that any visit by a Congressman--and that 
is not even close to an election--will be viewed as a violation 
of the Hatch Act, there is something amiss here, Senator. This 
OSC has gone overboard in their interpretation of the Hatch 
Act.
    Mr. Devine. Mr. Chairman, I think it is very clear how 
deeply GAP believes in the Hatch Act, but I am equally 
concerned that if OSC enforcement activities are expanded under 
that law, we could have a threat from a whistleblower 
retaliation based on dissent; whistleblower retaliation being 
branded as Hatch Act violations.
    Consider what has happened in the area of national 
security. National security whistleblowers have been almost 
routinely attacked as aiding and abetting the enemy when they 
challenge Executive Branch breakdowns in homeland and national 
security. We are concerned that when whistleblowers challenge 
Executive Branch breakdowns in public service, they could be 
attacked for aiding and abetting the Democrats. I think it is 
very important that if this office's responsibilities and 
resources are expanded, that they be kept on a very tight leash 
to see that we do not abuse any increased powers.
    Senator Akaka. Thank you for that.
    Ms. Kelley, Mr. Gage's testimony suggests that the Douglas 
factors for progressive discipline could be included in the 
Hatch Act. Ms. Kelley, you also testified that the Hatch Act 
punishments should fit the crime. Would you support 
incorporating the Douglas factors into the Hatch Act? Or would 
some other system be preferable?
    Ms. Kelley. Well, the idea that the Douglas factors would 
apply, just as they do to every other charge that an employee 
could find themselves faced with in the Federal sector, makes 
perfect sense. And then the question is the vehicle, whether 
the language needs to be in the Hatch Act or whether it is made 
clear through other means that Douglas factors applied to all 
workplace issues, including the Hatch Act. I mean, how that is 
done is--NTEU is interested in talking with you and working 
with you and with Mr. Gage in how that gets addressed. But the 
bottom line, I think we all agree, is that a single penalty of 
termination for an undefined offense, because there can be such 
a wide range of an inadvertent comment made to an e-mail sent 
to 10 or 20 people to a formal invitation to come and vote, 
with somebody or for somebody--I mean, there is such a wide 
range. So the idea that there is only one penalty just does not 
seem to make sense in any situation, including applying the 
Hatch Act.
    Senator Akaka. Mr. Gage, would you like to comment about 
that?
    Mr. Gage. I think Ms. Kelley said it well.
    Senator Akaka. Thank you.
    Well, Mr. Devine, you suggested that the OSC should develop 
a system to prioritize Hatch Act cases. Could you tell us more 
about how such a system would work?
    Mr. Devine. There is no need to reinvent the wheel on that 
type of project, Mr. Chairman. This was a multi-year project 
under the prior Special Counsel. There was a staff consensus on 
some standards to make sure we are not scapegoating the small 
fry, we are going after truly significant threats to the merit 
system. That should be put back in the active files, dusted 
off, reviewed, and implemented.
    The idea that people should be facing the death penalty for 
relatively technical violations of this law, it cannot 
withstand any scrutiny at all. It is time to restore basic 
principles of attacking the conceptual threats and doing it in 
a professional manner. That just has not been happening.
    Senator Akaka. This question is for all of you, if you 
would care to respond. I would like to hear more about where 
the line between casual conversation and impermissible 
political action has been drawn where e-mail is involved. Ms. 
Kelley.
    Ms. Kelley. I do not think there is a clear line. I think 
that employees think about it the way they do business every 
day. They used to not have e-mail access, and they knew just 
how to talk, and if someone overheard you or thought you were 
saying or implying something, then you could be the subject of 
an allegation. But e-mail is a very different way to 
communicate, and it is just too easy. Very often, when I speak 
with NTEU leaders about other things, not just the Hatch Act, 
we talk about how casual it is and how easy it is to turn 
around, type something, hit send, and never think through the 
ramifications of what could happen when 10 or 20 or 100 people 
read that.
    So I think there has to be consideration given to the 
change in how people communicate, all the questions around 
intent, I mean, the same logical factors have to be applied. 
And there does not seem to be an interest by this Office of 
Special Counsel in doing that. And it is not addressing the 
realities of the workplace today, in my view, and setting a lot 
of employees up for potential problems when they are not 
intentionally doing anything wrong.
    I think intent is one of the things that is being totally 
lost when you think about the method of communication of e-
mail. It is too casual. It is very risky.
    Senator Akaka. Mr. Gage.
    Mr. Gage. Yes, I think that is right. Intent does have a 
place here. And, also, you are not really--how is an employee 
coercing another employee on anything partisan by sending them 
an e-mail? But the past panel was talking about in your 
question to support the war or not, and the interpretation of 
issues, even on budgetary issues that an agency might be 
facing--and we have had people warned on talking about real 
conditions that are facing their agency coming from Congress on 
budget, closings. That is up to the line on the Hatch Act.
    When you have only termination, 30 days suspension, and 
that can drill down to employees' opinions on real things that 
are happening to them, I think it is very clear that this law 
is being used to coerce Federal employees to stifle all 
discussion on the worksite and that there are no clear lines so 
you better keep your mouth shut and not get in trouble. And I 
think that is wrong, and the Special Counsel has gone way too 
far in their interpretations of this.
    Mr. Devine. Mr. Chairman, I think my colleagues are right. 
E-mails are being used for the same type of communications that 
used to be casual conversation. The problem is that we now have 
a permanent record of something that used to have about the 
same legacy as a popped soap bubble. So it means that there is 
a different context for casual communications. It should not be 
chilled, however. To me, the way to draw a line on this is not 
to ignore that something was said, but a much stronger criteria 
whenever an e-mail comes into play for OSC review is what are 
the reactions to follow up or match any of those 
communications.
    This is truly an area, probably more than any other, the 
mention of the permanent record, where talk is very cheap. 
People are almost thinking out loud in e-mail. There really 
shouldn't be investigations or prosecutions pursued just on the 
basis of those types of communications. There has to be some 
corroboration through deeds.
    Senator Akaka. As Mr. Gage testified, it seems natural that 
Federal employees will talk amongst themselves about 
Presidential and congressional elections because these 
elections can greatly affect the conditions of their 
employment. This does not seem terribly problematic, but the 
challenge is how to accommodate this type of conversation while 
protecting workers from coercion.
    Would it be feasible and desirable to amend the Hatch Act 
to make clear that political speech in the Federal workplace is 
permitted as long as it does not involve communications between 
a supervisor and subordinate or between a Federal official and 
a member of the public? Mr. Gage.
    Mr. Gage. I would be very supportive of that. I think that 
the original law was to stop coercion. It was not to stop all 
discussion. With that kind of standard, the Hatch Act would be 
a lot clearer to everyone, and that you would not see these 
type of huge penalties and these secretive and very chilling 
investigations removing all political discourse among employees 
who have no ability to coerce or force a colleague.
    So I would be very much in favor of that, Senator.
    Senator Akaka. Ms. Kelley.
    Ms. Kelley. I think that just the concept of what you are 
allowed to do versus what you are not allowed to do--because 
today most of what is in the Hatch Act is what you cannot do, 
and that would clear up an awful lot of ambiguities for a lot 
of employees and also make it clear that they have their right 
of free speech just as every other American citizen does. So I 
would be very interested in working with you on language like 
that.
    Mr. Devine. Mr. Chairman, I think that GAP's contribution 
to this answer is predictable. This goes to the heart of the 
concern raised earlier about whistleblowing being renamed as 
political campaigning. The law should be very clear that if an 
employee is blowing the whistle, that is, disclosing evidence 
that he or she reasonably believes, information that person 
reasonably believes is evidence of illegality, gross waste, 
gross mismanagement, abuse of authority, or substantial and 
specific danger to public health or safety, that those free 
speech rights are not canceled because a politician is 
identified as participating in an election campaign or because 
it could have an impact on some pending election campaign.
    It is a very sensitive boundary. The Hatch Act should not 
be abused to gag people from blowing the whistle merely because 
there are political consequences.
    Senator Akaka. Thank you. During the first panel, Mr. Byrne 
clarified that on-duty support of a political cause that is not 
tied to a political party or election does not violate the 
Hatch Act. Do you believe that Federal employees understand 
that distinction?
    Ms. Kelley. I do not think that many of them do, Mr. 
Chairman. I think they do not draw the distinction. What they 
see, again, are rules or opinions coming out from this Special 
Counsel saying you cannot do this and you cannot do that. And, 
therefore, they worry how wide of a net that actually throws.
    I think there is a lot of misinformation out there among 
Federal employees, not just front-line employees but even 
managers. We have had situations at NTEU where employees are 
circulating a petition to a Congressman or a Senator asking for 
support of appropriate Federal pay or protection of retirement 
benefits, a Federal employee issue that they have every right 
to communicate with Congress on. And we have had managers tell 
them that it is a Hatch Act violation to ask them to send a 
letter to their Congressman on their lunch hour in a Federal 
building.
    Well, NTEU intervenes and, of course, we straighten out the 
manager and the labor relations manager who gave bad advice, 
but that is just an example. Those kinds of things could put 
such a chill on employees. If they see that management is going 
to say they cannot even write a letter to their Congressman, 
then they surely are not going to be willing to assume that 
they can do these other things.
    And I also would suspect that there have been some cases, 
and I do not have any specifics, but I would be surprised if 
there are not management officials out there saying you cannot 
put up a sign in your office that says you were for or against 
the war because it is political. I think there is an 
overgeneralization all the time. So whether it is statutory 
language or whether it is a Special Counsel putting out the 
kind of information that employees need, something is needed to 
correct that.
    Senator Akaka. Mr. Gage.
    Mr. Gage. Agencies routinely put out very chilling warnings 
on the Hatch Act, and an employee, when he gets these warnings, 
he is clearly going to err on the side of ``I am not going to 
be talking politics, I am not even going to be talking 
legislative issues, I am not going to be talking anything.''
    We have had so many questions come to us where we will have 
a meeting of employees to talk about legislative issues, and 
people are afraid to come to the meeting because they saw a 
very severe Hatch Act warning that is distributed to every 
employee and talked about with such huge penalties for any type 
of misstep.
    So I think there is clearly a problem here with the heavy-
handedness of the penalties and then the gray area of, or not a 
gray area, but how employees see it as a gray area just talking 
about a legislative issue, which they have perfectly every 
right to do, but they are erring on the side of just staying 
away from everything. And I really think that is unfortunate.
    Now, I do not know how you correct that, but I know how you 
encourage it, and that is by sending out these really draconian 
warnings every 6 months or so, and especially during a 
political season.
    Senator Akaka. Mr. Devine.
    Mr. Devine. Mr. Chairman, this is a more conceptual 
response. The last 6 years have been the Dark Ages in the 
Executive Branch for freedom of speech. In my 29 years at GAP, 
the chilling effect is unprecedented for freedom of speech in 
the civil service. Bad sweeps aside, the distinctions of what 
is on the right or the wrong side of legal boundaries, you 
cannot open up your mouth. And it is very important that if the 
good-government agencies are going to step up their enforcement 
for misuse of free speech, they ought to be correspondingly 
stepping up their enforcement for the valid cherished exercises 
of free speech, such as whistleblowing.
    Senator Akaka. Thank you.
    Ms. Kelley, both AFGE and NTEU--this is also for Mr. Gage--
invest in educating your members about the Hatch Act. Are you 
engaging in any additional efforts to ensure that your members 
understand the Hatch Act as the 2008 elections approach?
    Ms. Kelley. Definitely. Each election cycle we gear up the 
training that we have always done over the years and then 
enhance it in an effort to get it to as many employees as 
possible. We start that through our NTEU leadership structure, 
and then our chapters across the country do that. And we do it 
not only to caution them on what the rules are, but because we 
want them to understand and be comfortable so that more and 
more Federal employees exercise the rights they have and that 
they should be exercising to be active in the political 
process. And without that information and education, there are 
too many of them who believe that it is the way it was before 
1993 and that there are still those rules.
    It is not unusual for me to meet with our members who think 
they still cannot do things that they have been able to do for 
the last 12 years. So that is our goal, and we absolutely 
enhance those and ratchet them up with each new election cycle 
because of things we learn, because of problems we hear in the 
workplace, to try to help clarify, and to remove the obstacles 
from employees exercising these rights.
    Senator Akaka. Mr. Gage.
    Mr. Gage. Yes, we have been hit pretty hard in the last two 
election cycles with our activists. Quite a few cases and 
investigations. We are pulling all of our activists into 
Pittsburgh at the end of this month, and a large part of that 
conversation will be on how to handle yourself in the light of 
the Special Counsel and the Hatch Act. And I must say we are 
also taking all our VA activists, about 500 of them, to Hawaii 
in November, and we look forward to that, and we will be 
talking with them there about the Hatch Act.
    But it is a slippery slope because all you can do, even 
when you train people, is say do not do this, do not do that, 
do not even come close to it because you will be prosecuted and 
your job is on the line. So it is really tough training to get 
people to understand what they cannot do, and even hardened 
union activists, to be able to tell them and for them to 
exercise what they should be able to do as citizens.
    So it is a very difficult thing, and I am sure Ms. Kelley--
and I know I do--we put a lot of time, money, and effort into 
trying to not have our people lose their jobs. But when you 
just look at our laundry list in our union of people who have 
been investigated--for nothing, for trivial things--it just 
resonates across our activists and has a chilling effect on 
really seasoned union people who are trained, who are still 
volunteers and do not want to lose their job, let alone on a 
rank-and-file member or employee.
    Senator Akaka. To both of you again, only the President can 
punish certain political appointees and White House staff for 
Hatch Act violations. Does this create an impression with your 
members that the Hatch Act is enforced unfairly? Mr. Gage.
    Mr. Gage. I was down in New Mexico, and Vice President 
Cheney had a political rally at the stadium there. Kirkland Air 
Force Base is one of our unions. E-mails went out from 
management that people would have approved leave and could not 
wear their uniform or any insignia. Free passes were passed out 
by the Public Relations Office of the base. And we complained, 
and that investigation went nowhere. And I really could not 
understand. It just seemed so blatant, all this activity 
occurring on the base, passing out tickets for management as 
well as advertising the issue and encouraging employees to go.
    Now, that seems to be over the line, yet nothing became of 
it.
    Ms. Kelley. Anytime there is a double standard, employees 
notice it, especially when the harsher implementation seems to 
be aimed at the front-line employees rather than those who head 
up the agencies. So surely it is noticed. Because of the 
differences in handling when there are allegations against 
political appointees, and because of all the press coverage, of 
course, that brings it to the attention of the employees.
    But as I said in my testimony, I believe there should be a 
requirement on the part of the White House that when these 
allegations are made, they should be required--he or she should 
be required to submit a report to Congress of the allegations 
made and of the results of the investigation. They should not 
be allowed to be swept under the carpet just because it is a 
political appointee, because we surely do not see that kind of 
a handling when there are allegations against front-line 
employees.
    Senator Akaka. Ms. Kelley, your written testimony contains 
a proposal to require the President to report to Congress on 
his or her actions in response to an OSC finding that a Senate-
confirmed political employee violated the Hatch Act. Can you 
tell me more about that proposal?
    Ms. Kelley. Well, I just do not think it should be allowed 
to be swept under the carpet. There should be accountability 
there. There surely is accountability for every other Federal 
employee in any position across the government. And it should 
not be allowed to be shrouded in secrecy. The assumption will 
always be that they got a free pass because they are a 
political appointee, and whether they did or did not, whatever 
the facts were in the case, that should be at least required to 
be reported back to Congress for Congress to decide whether or 
not the White House acted appropriately. And at this point, 
there is no accountability there at all, and we think that is 
unacceptable.
    Senator Akaka. Mr. Gage and Mr. Devine, do you have any 
comments to make about that?
    Mr. Devine. Yes, Mr. Chairman. This is an inexcusable 
conceptual conflict of interest. It is an Achilles heel for the 
legitimacy of the Hatch Act. If the President has the final 
word on whether his political appointees or her political 
appointees have illegally tried to benefit the President's 
party, what in the world is the public policy justification for 
not subjecting this type of illegality to the normal system of 
legal accountability?
    Senator Akaka. Mr. Gage, do you have any comments?
    Mr. Gage. No, Mr. Chairman.
    Senator Akaka. Mr. Devine, I want to thank you for your 
long service working to protect the whistleblowers--you 
mentioned that several times here--an issue that is very 
important to me. I think you know that I have been pressing 
this and have been trying to get reform enacted.
    I would like to hear a little more about how the Hatch Act 
fits into the system of protecting the merit-based civil 
service system and how it interacts with statutes such as the 
Whistleblower Protection Act. Can you speak to that issue?
    Mr. Devine. I would almost analogize the relationship 
between the Hatch Act and the Whistleblower Protection Act to 
the Privacy Act and the Freedom of Information Act. They are 
two sides of the same coin. Although they are serving what can 
appear to be inconsistent directions of law enforcement, the 
reality is they are both united by a common principle: 
Defending freedom of speech where it furthers public service to 
the taxpayers, and restricting speech which is trying to 
politicize public service to the taxpayers. This is a very 
delicate balance, and it means that the agency responsible to 
set that balance has to have sound legitimacy based on earned 
trust through its competence to enforce the law in both those 
directions; and its objectivity so that politics does not shade 
how it sets those scales.
    Senator Akaka. Thank you for that. Mr. Gage, you mentioned 
cases in which OSC is investigating Hatch Act allegations that 
date back to 2004. When were these investigations started? And 
have you received any explanation for the delay?
    Mr. Gage. No, and neither have the people who are subjected 
to these investigations. That is why, in our testimony, I 
really call for a statute of limitations. This cannot be 
allowed to go on forever that people are just under the cloud 
of an investigation. Along with putting in realistic penalties, 
a statute of limitation I think is just basic due process for 
the people who are facing this type of charge.
    Senator Akaka. Mr. Devine, your testimony is quite critical 
of the current Special Counsel as well as former Special 
Counsel Alex Kozinski. As we look to the future, how can 
Congress work to improve the independence, effectiveness, and 
accountability of the Special Counsel?
    Mr. Devine. I think that your Subcommittee is making a very 
good start in its efforts for the Office of Special Counsel 
reauthorization. That has the potential to really change how 
operations occur on the ground within the Office of Special 
Counsel.
    The second answer to your question, though, Mr. Chairman, 
is--again, not reinventing the wheel at all. The magic word is 
oversight, oversight, oversight. And our organization is glad 
to help to the extent that the Subcommittee wants to expand its 
investigative efforts, by sharing the allegations that we have 
been receiving from whistleblowers within the Office of Special 
Counsel about the breakdown in the merit system internally 
there.
    That to me is probably the most significant weather vane 
for whether that agency is trustworthy to police the rest of 
the merit system. Are they respecting those principles in the 
Special Counsel's own house?
    Senator Akaka. Well, let me ask a final question of Ms. 
Kelley and Mr. Gage. Can each of you tell me about any recent 
problems or any recent concerns that you have had with 
conducting non-partisan voter registration in Federal 
buildings? Ms. Kelley.
    Ms. Kelley. Well, I would describe our problems, they tend 
to be, again, in the area just of ignorance by management 
officials. And so we say we are going to do voter registration, 
and they say, ``We cannot because it is Federal property,'' or 
``We cannot because there is a candidate in that area who is 
running for office who has been endorsed,'' which has and 
should have nothing to do with anything. So then we have to 
educate them. It takes weeks. Sometimes we have to reschedule 
the voter registration drive until they can get their facts 
right and get those above them to tell them that NTEU is right 
and that they are misreading the rules under the Hatch Act.
    So it is a constant problem with misinformation out there 
even in the management ranks who, again, put a very chilling 
effect on NTEU members who want to participate and they are 
grateful for the opportunity to be able to register to vote 
right there at the worksite.
    So I do not have any reports where we have been denied, 
where they have shut us down, because in the end we are able to 
convince them that they are wrong and that they are misreading 
the statute. But it is tedious, it is time-consuming, and it is 
ongoing.
    Senator Akaka. Mr. Gage.
    Mr. Gage. Ms. Kelley may have done a better job than that 
to us, but when the AFL endorsed, and we are a member of the 
AFL, we were blocked from doing any voter registration in the 
agencies that we represent. And that interpretation is 
relatively recent. That does not go back. If an umbrella 
organization endorses that you are estopped from doing non-
partisan voter registration, I just do not understand it. And I 
think that any group or any legitimate group should be able to 
do non-partisan voter registration. Voter registration is not a 
partisan activity. Yet we were blocked in agency after agency 
simply because an umbrella organization endorsed a candidate.
    Ms. Kelley. Mr. Chairman, if I could just clarify, the 
situations I talked about where education is so important 
because the agencies have misinformation. We are in a pre-
endorsement environment. Once NTEU, because of the way the 
rules are interpreted today, we work very hard to make sure 
that we do as many voter registration drives as possible before 
there is an NTEU endorsement of a candidate in a Presidential 
election. But up until that point, we have these ongoing 
problems with misinformation.
    In my testimony, what I suggest is that it should be made 
clear that under the Hatch Act that should not be a 
requirement--it should not matter if an organization has 
endorsed or not. The fact is if it is a voter registration 
drive that is open voter registration, that anyone can register 
for any party if they so choose and everyone is invited and 
accessibility is made, then what difference does it make if 
there has been an endorsement or not? It is a voter 
registration for every American citizen who has the right to 
vote. And that should be something that should be supported by 
not just the Hatch Act but by any legislation that is passed 
for full participation.
    Senator Akaka. Mr. Devine.
    Mr. Devine. Mr. Chairman, I would just like to make a P.S. 
to an earlier comment that I think is in the background to 
today's hearing. You expressed recognition of GAP's work for 
whistleblowers. I think it is important to get in the public 
record appreciation for your leadership on whistleblower 
issues. We gave you a Public Service Award at our GAP's 30th 
anniversary recently, because whistleblowers need 100 of you in 
the Senate. And we are very hopeful that after 8 years of work 
by your staff that in the next few weeks the Whistleblower 
Protection Act will be born again in the Senate and that we 
will finish the job this fall.
    Senator Akaka. Well, thank you very much. I want to thank 
you and all of our witnesses today for the time you spent in 
preparing, presenting, and responding with valuable information 
to this Subcommittee. We appreciate the hard work that all of 
you do to ensure that the Federal Government works for the 
American people regardless of the party in the White House, and 
that Federal employees are free from political coercion in the 
workplace.
    Today's hearing highlights the need to improve the 
education that Federal employees receive on the Hatch Act. We 
need to make sure that all Federal employees receive complete 
and accurate information to understand their obligations under 
the Hatch Act. Additionally, we need to ensure that the rules 
governing Federal employees' conduct are clear and 
understandable. Furthermore, I am troubled that the civil 
servants could lose their jobs for engaging in casual political 
banter at work while White House staff and Senate-confirmed 
political appointees effectively are insulated from punishment 
for Hatch Act violations.
    This Subcommittee will continue its attention to the Hatch 
Act in the future, and, again, I want to thank you for helping 
us do that. The hearing record will be open for one week for 
additional statements or questions other Members may have.
    This hearing is adjourned.
    [Whereupon, at 11:51 a.m., the Subcommittee was adjourned.]



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