    [House Hearing, 112 Congress]
    [From the U.S. Government Publishing Office]

        THE HATCH ACT: THE CHALLENGES OF SEPARATING POLITICS FROM POLICY

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

                                    HEARING

                                   before the

                             COMMITTEE ON OVERSIGHT
                             AND GOVERNMENT REFORM

                            HOUSE OF REPRESENTATIVES

                          ONE HUNDRED TWELFTH CONGRESS

                                 FIRST SESSION

                                   __________

                                 JUNE 21, 2011

                                   __________

                               Serial No. 112-67

                                   __________

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

             Available via the World Wide Web: http://www.fdsys.gov
                          http://www.house.gov/reform

                                    _____

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                  COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

                     DARRELL E. ISSA, California, Chairman
    DAN BURTON, Indiana                  ELIJAH E. CUMMINGS, Maryland,
    JOHN L. MICA, Florida                    Ranking Minority Member
    TODD RUSSELL PLATTS, Pennsylvania    EDOLPHUS TOWNS, New York
    MICHAEL R. TURNER, Ohio              CAROLYN B. MALONEY, New York
    PATRICK T. McHENRY, North Carolina   ELEANOR HOLMES NORTON, District of
    JIM JORDAN, Ohio                         Columbia
    JASON CHAFFETZ, Utah                 DENNIS J. KUCINICH, Ohio
    CONNIE MACK, Florida                 JOHN F. TIERNEY, Massachusetts
    TIM WALBERG, Michigan                WM. LACY CLAY, Missouri
    JAMES LANKFORD, Oklahoma             STEPHEN F. LYNCH, Massachusetts
    JUSTIN AMASH, Michigan               JIM COOPER, Tennessee
    ANN MARIE BUERKLE, New York          GERALD E. CONNOLLY, Virginia
    PAUL A. GOSAR, Arizona               MIKE QUIGLEY, Illinois
    RAUL R. LABRADOR, Idaho              DANNY K. DAVIS, Illinois
    PATRICK MEEHAN, Pennsylvania         BRUCE L. BRALEY, Iowa
    SCOTT DesJARLAIS, Tennessee          PETER WELCH, Vermont
    JOE WALSH, Illinois                  JOHN A. YARMUTH, Kentucky
    TREY GOWDY, South Carolina           CHRISTOPHER S. MURPHY, Connecticut
    DENNIS A. ROSS, Florida              JACKIE SPEIER, California
    FRANK C. GUINTA, New Hampshire
    BLAKE FARENTHOLD, Texas
    MIKE KELLY, Pennsylvania

                       Lawrence J. Brady, Staff Director
                    John D. Cuaderes, Deputy Staff Director
                         Robert Borden, General Counsel
                           Linda A. Good, Chief Clerk
                     David Rapallo, Minority Staff Director

                                C O N T E N T S

                                  ----------
                                                                       Page
    Hearing held on June 21, 2011....................................     1
    Statement of:
        Painter, Richard W., professor of corporate law, University
          of Minnesota Law School, former associate White House
          counsel to President George W. Bush, 2005-2007; Scott A.
          Coffina, partner, Montgomery, McCracken, Walker & Rhoads,
          LLP, former associate White House counsel to President
          George W. Bush, 2007-2009; and Ana Galindo-Marrone, Hatch
          Act Unit Chief, U.S. Office of Special Counsel.............     4
            Coffina, Scott A.........................................    12
            Galindo-Marrone, Ana.....................................    22
            Painter, Richard W.......................................     4
    Letters, statements, etc., submitted for the record by:
        Coffina, Scott A., partner, Montgomery, McCracken, Walker &
          Rhoads, LLP, former associate White House counsel to
          President George W. Bush, 2007-2009, prepared statement of.    15
        Connolly, Hon. Gerald E., a Representative in Congress from
          the State of Virginia, prepared statement of...............    39
        Galindo-Marrone, Ana, Hatch Act Unit Chief, U.S. Office of
          Special Counsel, prepared statement of.....................    24
        Painter, Richard W., professor of corporate law, University
          of Minnesota Law School, former associate White House
          counsel to President George W. Bush, 2005-2007, prepared
          statement of...............................................     6

        THE HATCH ACT: THE CHALLENGES OF SEPARATING POLITICS FROM POLICY

                                  ----------

                             TUESDAY, JUNE 21, 2011

                              House of Representatives,
                  Committee on Oversight and Government Reform,
                                                        Washington, DC.
        The committee met, pursuant to notice, at 3:02 p.m., in
    room 2154, Rayburn House Office Building, Hon. Darrell E. Issa
    (chairman of the committee) presiding.
        Present: Representatives Issa, Walberg, Lankford, Amash,
    Buerkle, Meehan, Gowdy, Cummings, Maloney, Norton, and
    Connolly.
        Staff present: Molly Boyl, parliamentarian; Steve Castor,
    chief counsel, investigations; Kate Dunbar, staff assistant;
    Jessica L. Laux and John A. Zadrozny, counsels; Ashok M. Pinto,
    deputy chief counsel, investigations; Krista Boyd, minority
    counsel; Carla Hultberg, minority chief clerk; William Miles,
    minority professional staff member; Susanne Sachsman Grooms,
    minority chief counsel; and Mark Stephenson, minority senior
    policy advisor/legislative director.
        Chairman Issa. The hearing will come to order.
        The Oversight Committee exists to secure two fundamental
    principles: First, Americans have a right to know the money
    Washington takes from them is well-spent. And, second,
    Americans deserve an efficient, effective government that works
    for them.
        Our duty on the Oversight and Government Reform Committee
    is to protect these rights. Our solemn responsibility is to
    hold government accountable to taxpayers, because taxpayers
    have a right to know what they get from their government. We
    will work tirelessly, in partnership with citizen watchdogs, to
    deliver the facts to the American people and bring genuine
    reform to the Federal bureaucracy.
        I will yield to myself.
        Today's hearing will examine the Hatch Act's enforcement
    difficulties and regulatory cost.
        The Hatch Act is inherently a partisan question, but this
    committee has looked at it under both Republicans and
    Democrats. We have seen, or failed to see, discrepancies in the
    past. Today's hearing is not on a failure by either party
    during their time running the executive branch, but, rather, to
    review the status of and condition of the Hatch Act and to
    determine whether there are meaningful changes that should be
    made to both protect the public and to protect political
    appointees from inadvertently violating the act.
    Inconsistencies within the act and/or loopholes need to be
    reviewed.
        This committee takes seriously the use of political office
    for political purposes. We are not paid to run for re-election
    or to support a President's run for re-election, but, rather,
    if you are taking the Federal payroll, you are expected to do
    the job for which you have been selected or appointed.
        The Oversight Committee is intending to author such
    legislation as may be necessary and will affect the next
    President. Necessarily, we will, in fact, work on a bipartisan
    basis to find any and all changes necessary to take effect upon
    the inauguration of the next President. Although this is 18
    months and it seems like a long time, in political time it is
    very short.
        So this will be the first of as many hearings as are
    necessary to determine those changes, evaluate them, hold
    public comment on those potential changes, and implement those
    changes effective January 2013.
        And, with that, I recognize the ranking member for his
    opening statement.
        Mr. Cummings. Thank you very much, Mr. Chairman, and I want
    to thank you for calling this hearing.
        The Hatch Act was passed to ensure that Federal Government
    employees work on behalf of the American people rather than the
    political party that happens to be in power. The Hatch Act
    prohibits Federal employees from engaging in political activity
    on Federal property and from using their official authority to
    influence elections. The Hatch Act strikes a balance between
    protecting the free-speech rights of hardworking public
    servants and ensuring that government operations are being
    conducted appropriately.
        This committee has conducted significant oversight work on
    the Hatch Act in the past. After determining that the White
    House officials provided political briefings to agency
    political appointees prior to the 2006 midterm elections, the
    committee conducted an investigation into the activities of the
    White House Office of Political Affairs. In 2008, former
    Chairman Henry Waxman issued a staff report of that
    investigation, concluding that the Office of Political Affairs
    enlisted agency heads across government in a coordinated effort
    to elect Republican candidates to Congress. This report
    recommended eliminating the Office of Political Affairs.
        The Office of Special Counsel, an independent agency
    charged with providing guidance and enforcement of the Hatch
    Act, conducted a parallel investigation and issued a report of
    its findings on January 21, 2011. The report concluded that
    numerous White House officials and political appointees in the
    previous administration had violated the Hatch Act.
        On January 20, 2011, it was reported that the President
    would close the Office of Political Affairs. I believe this is
    an improvement that should have been made back in 2008.
        Another significant improvement is the appointment of a new
    special counsel, Carolyn Lerner, who was sworn in just last
    week. The Hatch Act is meaningless without responsible
    enforcement. Unfortunately, the Office of Special Counsel
    experienced significant problems under its previous leader, who
    was sentenced to 1 month in prison for contempt of Congress for
    lying in statements made to this very committee.
        Now is the chance for the Office of Special Counsel to turn
    the page. And I look forward to working with the new special
    counsel on the implementation of the Hatch Act as well as
    efforts to strengthen whistleblower protections for Federal
    workers.
        I also look forward to working with the chairman and the
    new special counsel on bipartisan legislation to update and
    clarify the Hatch Act. The witnesses before us today will
    express concern that a report issued by the Office of Special
    Counsel in January was unfair because it established a new
    interpretation of the Hatch Act that employees were unaware of
    prior to the report. Many other Federal employees feel the same
    way. They find themselves penalized after the fact for actions
    they did not realize were against the rules.
        Increased training is always helpful to help prevent these
    problems, but it also may be helpful to revisit some of these
    issues legislatively. For example, the Hatch Act does not
    provide for a graduated penalty system, and Federal employees
    have been subjected to varying interpretations of the
    appropriate use of email.
        I want to thank all the witnesses for coming here today. I
    look forward to your testimony. I hope that, by working
    together in a bipartisan manner, we will be able to achieve the
    right balance for the American people and for our Federal
    employees.
        And, with that, Mr. Chairman, I yield back.
        Chairman Issa. I thank the Member.
        All Members will have 7 days to submit opening statements
    and additional materials.
        We now recognize our panel of witnesses.
        Professor Richard Painter is a professor of corporate law
    at the University of Minnesota Law School and a former
    associate counsel to President George W. Bush from 2005 to
    2007.
        Mr. Scott Coffina is a partner at the law firm of
    Montgomery & McCracken and a former associate counsel, also, to
    President George W. Bush from 2007 to 2009.
        Ms. Ana Marrone is the chief--is the current chief of the
    U.S. Office of Special Counsel for the Hatch Act.
        Pursuant to the committee rules, I would ask all to rise,
    raise their right hands, and take the oath.
        [Witnesses sworn.]
        Chairman Issa. Let the record indicate that all witnesses
    answered in the affirmative.
        Please be seated.
        I believe all of you have seen this before, but just for
    clarification, your entire written statement will be placed in
    the record. We strongly encourage you to use your 5 minutes for
    things not just in the record, but it is up to you. When the
    light turns yellow, please try to summarize. When it turns red,
    please yield to the next person.
        Professor Painter.
        I am afraid you are going to have to either pull it closer
    or hit the microphone button.

     STATEMENTS OF RICHARD W. PAINTER, PROFESSOR OF CORPORATE LAW,
      UNIVERSITY OF MINNESOTA LAW SCHOOL, FORMER ASSOCIATE WHITE
    HOUSE COUNSEL TO PRESIDENT GEORGE W. BUSH, 2005-2007; SCOTT A.
    COFFINA, PARTNER, MONTGOMERY, MCCRACKEN, WALKER & RHOADS, LLP,
      FORMER ASSOCIATE WHITE HOUSE COUNSEL TO PRESIDENT GEORGE W.
    BUSH, 2007-2009; AND ANA GALINDO-MARRONE, HATCH ACT UNIT CHIEF,
                     U.S. OFFICE OF SPECIAL COUNSEL

                    STATEMENT OF RICHARD W. PAINTER

        Mr. Painter. Mr. Chairman and members of the committee,
    thank you very much for inviting me to testify today.
        For 2\1/2\ years, from 2005 to 2007, I was the chief White
    House ethics lawyer. The White House Counsel's Office had
    another lawyer cover Hatch Act issues, but I was consulted on
    Hatch Act matters, and I included Hatch Act compliance in my
    monthly lectures for incoming White House staff.
        The Office of Political Affairs, I believe, does not belong
    in the White House. And I believe that partisan political
    activity by White House staff and other government employees in
    the executive branch is inconsistent with their official
    duties. There are several problems I see with it.
        First, the legal distinctions are very difficult to make.
    This report from the Office of Special Counsel, I believe,
    makes that abundantly clear. Figuring out which events are
    official events, which events are political events can be
    extraordinarily difficult. Figuring out who pays for what can
    be very difficult. And figuring out how to use email, whether
    an email is an official email or a political email, can be
    difficult. If you make the wrong decision and send an official
    email through a political email system, you risk losing the
    record and violating the Presidential Records Act. There are
    too many legal problems with having executive-branch employees
    and White House staff wearing two hats at the same time--the
    political and the official.
        Second, it is conflict of commitment. One hundred percent
    of U.S. Government employees' time should be devoted to the
    public interest, to the work of the U.S. Government, not to the
    work of a political party. Too much time is spent by some
    executive-branch employees, particularly close to an election,
    on political work that detracts from official duties.
        And, finally, and my most serious concern, is conflict of
    interest. And I discuss this more in my written testimony. When
    you have political events, particularly fundraisers, that
    executive-branch employees and high-ranking White House staff
    and agency employees attend in the evening hours and speak with
    donors about what they want and what they don't want and all of
    that is done in a personal capacity and then those very same
    people go to the office the next morning to make official-
    capacity decisions, sometimes allocating billions of dollars in
    our budget or deciding whether to regulate an industry and how,
    those discussions, had in a so-called personal capacity, can
    have a direct impact on official policy. I believe the conflict
    of interest is insurmountable.
        So, therefore, I am strongly of the view--I know the law is
    not this way--but I am strongly of the view that the law should
    prohibit partisan political activity by executive-branch
    employees other than the President and the Vice President.
        Whatever the law is, it needs to be a lot clearer than it
    is today in this area. There are a number of issues addressed
    in the report by the Office of Special Counsel where I think
    the law has been very unclear. Who, for example, in the White
    House, on the White House staff, is a so-called 24/7 employee
    who can engage in political activity during the day, during the
    workday, in a U.S. Government building?
        The law says that anyone who is paid out of the budget of
    the Executive Office of the President whose duties extend
    beyond normal working hours and away from the office is exempt
    from the Hatch Act restrictions with respect to political
    activity in a U.S. Government building during the workday.
    Well, I have worked in the White House, and I have seen almost
    nobody go home at 5 o'clock. I have seen very few people go
    home at 6 o'clock or 6:30, 7 o'clock--a lot of people there in
    the evening very late, working weekends, working from home on
    official U.S. Government business.
        So it would seem to me--and I know that the White House,
    under several administrations, has operated under the
    assumption that many White House staff members are so-called
    24/7 and therefore qualify for this exemption. I do not agree
    with the exemption; I don't think it ought to be there. But it
    is there, and that is how it has been interpreted under several
    administrations.
        And now the Office of Special Counsel report has taken the
    position, referring to the Leave Act--and I think has made a
    credible argument--but referring to the Leave Act, has said
    that basically commissioned officers in the White House only
    may participate in political activity of this sort.
        So this is a serious concern, that the law is not clear in
    this area. And, therefore, I believe strongly that the law
    needs to be clearer, that the law, in my view, should simply
    prohibit the political activity of this sort, but we need a
    clear message to executive-branch employees as to what they can
    do and what they cannot do.
        I believe my time has now expired.
        [The prepared statement of Mr. Painter follows:]

        Chairman Issa. It is. But, not as a form of a question, but
    if you will clarify for our freshmen what constitutes a
    commissioned officer in the White House, so that the new
    Members understand.
        Mr. Painter. There are 100 commissioned officers, I
    believe, in the White House. And those are assistants to the
    President, of which there are 25; deputy assistants to the
    President, of which there are 25; and special assistants to the
    President--and associate White House counsels, of which there
    are approximately 50.
        Chairman Issa. Thank you. None of whom are uniformed
    commissioned officers is what I was hoping you would clarify.
        Mr. Painter. Oh, yes. That is true, Mr. Chairman. They are
    not uniformed.
        Chairman Issa. Thank you.
        Mr. Coffina.

                     STATEMENT OF SCOTT A. COFFINA

        Mr. Coffina. Chairman Issa, Ranking Member----
        Chairman Issa. You have the same microphone problem, if you
    could, please.
        Mr. Coffina. Chairman Issa, Ranking Member Cummings, and
    members of the committee, my name is Scott Coffina, and I
    appreciate your invitation to sit before you today to discuss
    how effectively the Hatch Act accommodates the intersection of
    politics and policy in the White House.
        I have had the privilege of serving in the White House two
    times, first as a staff assistant in the Office of Political
    Affairs under President Reagan, where I worked under the
    restrictions of the Hatch Act, and then as associate counsel to
    President George W. Bush from 2007 to 2009, where my
    responsibilities included advising the Office of Political
    Affairs and the rest of the White House staff on the Hatch Act.
        While the Hatch Act recognizes the unique Federal
    employment environment of the White House, where the President
    has the dual role as head of state and head of his political
    party, the specific rules of the road for White House employees
    have never been entirely clear. Advising the White House staff
    on the contours of the law, therefore, has been more of an art
    than a science. This committee is doing a service to current
    and future members of the White House staff by considering how
    the parameters of the Hatch Act might be refined and clarified
    to guide their future conduct.
        The White House Office of Political Affairs generally has
    been the organizational hub for the President's political
    advisors. OPA historically has been responsible for
    facilitating the President's communications with supporters,
    national campaign committees, and the campaigns of House and
    Senate candidates, and to plan and coordinate his political
    activities.
        It is important to consider, however, that ``political
    affairs'' does not necessarily mean ``partisan affairs.'' OPA
    also supports the President in a wide range of official
    matters, serving as an important conduit to and from the
    President's supporters on policy issues, personnel decisions,
    and appointments. Sound political advice on how policy
    proposals will be received by the public and their chances for
    success is an important part of Presidential governance.
        Having a defined office within the White House to support
    the President in his political role, as well as in his official
    role, allows for greater discipline and accountability to
    Congress and to OSC in carrying out their respective oversight
    and enforcement responsibilities. Therein lies the concern with
    the White House's decision in January to disband the Office of
    Political Affairs: a lack of transparency into the political
    activities of the White House.
        OPA may have outsourced to the President's re-election
    campaign office in Chicago, but politics in the White House
    does not just go away. This committee has rightfully been
    concerned about how political activities within the White House
    will be coordinated and executed going forward, which is
    becoming increasingly more important as the President's re-
    election campaign heats up.
        Last week, the New York Times reported that President Obama
    hosted a group of Wall Street executives, many of them long-
    time donors, in a meeting in the Blue Room of the White House
    that was organized by the Democratic National Committee. When
    asked about this event last week, the White House Press
    Secretary described it as ``the President meeting with his
    supporters in the business arena to solicit ideas about how to
    improve the economy.'' It is unclear why the Democratic
    National Committee would have been used to organize a meeting
    to solicit advice on the economy. Indeed, this meeting seems to
    walk a fine line between official and political, with all the
    attendant Hatch Act concerns.
        With the Political Affairs Office closed, it is unclear who
    at the White House would be involved in this outreach to key
    supporters of the 2008 campaign and ensuring that they complied
    with the Hatch Act and the Presidential Records Act.
        Turning to the Office of Special Counsel report, the report
    released in January about the 2006 election cycle raises a
    number of important issues concerning the intersection of
    politics and policy. Unfortunately, OSC did not consider these
    issues in a constructive way, employing inappropriate legal
    standards, drawing conclusions based on ambiguous evidence
    about activities for which the statute provides minimal
    guidance, and failing to consider important information that
    would place these activities in a fuller context.
        One important issue raised by the OSC report is determining
    the scope of Hatch Act exemption on its workplace restrictions
    for employees within the White House. The Hatch Act supplies a
    standard: those whose duties continue outside of normal
    business hours and while away from their normal duty post.
    However, OSC applied a separate employment statute governing
    pay levels and leave requirements to determine that less-senior
    members of OPA fell outside of the exemption.
        The job requirements of associate directors should have
    qualified them for the exemption, but OSC applied a standard
    that relies on status, not function. Since the Hatch Act itself
    provides a standard by which to evaluate, it is improper for
    OSC to look to the Leave Act instead. The decision to rely on
    the Leave Act was outcome-determinative. If OSC had fairly
    evaluated the job responsibilities of associate directors under
    the terms of the Hatch Act, OSC could not support its
    conclusion that they violated the statute by engaging in
    political activity while on duty.
        More importantly, if associate directors of political
    affairs cannot participate in political activities while on
    duty, they also cannot support the political activities of the
    President himself. In other words, under OSC's reasoning, the
    President cannot rely upon junior members of his staff for
    logistical support for his own political activities. This begs
    the question about what duties the associate directors have
    performed in the current White House.
        The OSC report also raises one more complex Hatch Act
    issue, that being the classification of certain Presidential or
    Cabinet-level travel as official, political, or mixed, which is
    important to ensure the proper allocation of costs. In its
    report, OSC concludes that certain events were misclassified as
    official trips and should not have been funded at taxpayer
    expense because of evidence that such events were politically
    inspired without evaluating the content of the events
    themselves, which I submit is a far more objective and easier
    standard to employ.
        In----
        Chairman Issa. In conclusion?
        Mr. Coffina. Yes.
        In conclusion--and I have a number of recommendations that
    might clarify the rules of the road. But I think that the OSC
    has provided an impossibly subjective standard in terms of
    trying to evaluate and discern the motivation behind a
    political activity and official event, whereas there are
    objective criteria that we might employ.
        [The prepared statement of Mr. Coffina follows:]

        Chairman Issa. Thank you.
        Ms. Marrone, I think he was talking about you.
        Ms. Galindo-Marrone. He was.
        Chairman Issa. You are recognized to respond in any way you
    want to respond.

                    STATEMENT OF ANA GALINDO-MARRONE

        Ms. Galindo-Marrone. Mr. Chairman Issa, Representative
    Cummings, and members of the committee, I thank you for the
    opportunity to appear before this committee to discuss the
    Hatch Act.
        My name is Ana Galindo-Marrone, and I am a career civil
    servant. I have been the chief of the Hatch Act Unit at OSC
    since 2000. I am pleased to speak about OSC's experience
    enforcing the Hatch Act. The visibility this hearing brings to
    the Hatch Act can enhance awareness and understanding and deter
    violations of the law, which is central to our mission.
        The Hatch Act restricts the political activity of Federal
    executive-branch employees, District of Columbia employees, and
    State and local employees who work on federally funded
    programs.
        The law was enacted in 1939 to address the spoils system
    that dominated the Federal workplace in the 19th and early 20th
    centuries, under which Federal employment and advancement
    depended largely upon political party service and changing
    administrations, rather than meritorious performance. In
    passing the law, Congress determined that placing limits on
    employees' partisan political activity was necessary for public
    institutions to function fairly and effectively.
        The Hatch Act is essential to ensuring that our government
    operates under a merit-based system and serves all citizens
    regardless of partisan interests. Indeed, the Supreme Court
    recognized the purposes enacting the Hatch Act were to ensure:
    the impartial execution of the laws; that the rapidly expanding
    government work force should not be employed to build the
    powerful, invincible, and perhaps corrupt political machine;
    and that employment and advancement in the governmentservice
    not depend on political performance; and, at the same time, to
    make sure that government employees would be free from pressure
    and from expressed 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 on their own beliefs.
        The reasons for the passage of the Hatch Act remain as
    compelling today as they were when it was first enacted.
    Critical to good and fair governance and to maintaining the
    public trust is a commitment by public servants to a neutral,
    nonpartisan Federal workplace. 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.
        Growing public awareness of OSC's enforcement efforts and
    increased media attention contributed to record numbers of
    Hatch Act complaints received and advisory opinions issued in
    fiscal year 2010. During that year, Hatch Act Unit staff, which
    consists of only 15 employees, issued well over 4,000 advisory
    opinions. Also during that time, the unit received 526
    complaints and investigated and resolved 535 cases. Many of
    these cases were resolved informally without litigation by
    advising employees they were in violation of the act and
    securing their willingness to comply with the law.
        A number of the complaints the unit investigated or is
    currently investigating concern allegations of Federal
    employees using their official authority to effect the results
    of elections, including instances where supervisors targeted
    subordinates for political contributions. Similarly, in State
    and local cases, the unit investigated allegations of
    supervisors, including law enforcement officials, using their
    official authority to coerce subordinates into making political
    contributions.
        The unit has been proactive through its advisory and
    outreach efforts in educating employees about the act. In
    particular, the unit is responsible for a nationwide program
    that provides Federal, District of Columbia, and State and
    local employees, as well as the public at large, with legal
    advice.
        The unit is also active in OSC's outreach program. In the
    last fiscal year, the unit conducted approximately 30 outreach
    presentations. Many of these programs involved high-level
    agency officials. Notably, several of these programs were
    conducted as roundtable discussions with political appointees
    in attendance.
        As part of OSC's outreach efforts, Hatch Act publications
    are available upon request on OSC's Web site and distributed
    during outreach programs. Currently, some of our efforts are
    focused on educating Federal employees about the Hatch Act and
    the use of technologies, including email, blogs, social media
    such as Twitter and Facebook.
        OSC also enforces compliance with the Hatch Act by
    investigating complaints and, in some cases, seeking
    disciplinary action. In the last 12 months, OSC has sought
    disciplinary action in several cases involving Federal
    employees who engaged in prohibited political activity,
    including using a government computer to make political
    contributions or emailing invitations to political fundraisers
    while on duty, soliciting political contributions from
    subordinates via email, and hosting political fundraisers. The
    MSPB, the Merit Systems Protection Board, has found that
    engaging in such prohibited activity warrants disciplinary
    action.
        The Hatch Act was last amended in 1993. OSC looks forward
    to working with Congress if it determines that the act should
    be amended again.
        Thank you, and I look forward to taking your questions.
        [The prepared statement of Ms. Galindo-Marrone follows:]

        Chairman Issa. Thank you.
        I will recognize myself for the first round.
        Could you put the slide up?
        I think, Ms. Galindo-Marrone, this is from the Web site of
    the Office of the President. Can you say whether or not the
    announcement made in January that the political office was
    being closed, that it has been closed? Or does this mean that
    it is still open but still in the process of closing?
        Ms. Galindo-Marrone. I am sorry. This announcement
    appears--Chairman, this announcement appears where? I am sorry?
        Chairman Issa. This is on the White House Web site.
        Ms. Galindo-Marrone. Oh, the White House Web site. I am
    sorry.
        Chairman Issa. So, I mean, the question is, if it is still
    on the Web site as of today, 6 months after an announcement of
    its closing, since you work directly on this, is there still an
    office, are there still any personnel? Or is this just an
    oversight, that it still essentially appears to be in place?
        Ms. Galindo-Marrone. I am not aware of the White House's
    Office of Political Affairs----
        Chairman Issa. So this is just legacy, as far as you know?
        We asked somebody from the White House to come, and we got
    a refusal for anyone to come from the White House, so this is
    one of our questions.
        Mr. Coffina, you said you can't actually operate without
    this, without having somebody doing the same job. To your
    knowledge, is there an office there or are other people just
    doing that job?
        Mr. Coffina. Mr. Chairman, I don't know if they have
    officially closed the office. I do suspect from my own
    experience that somebody is advising the President on political
    events, political activities, and also handling some logistics
    for them. But I don't know the structure right now.
        Chairman Issa. Okay, I am going to ask a broad question,
    and I will start off by characterizing it.
        On this side of the dais, we have a much different set of
    rules, and although it attempts to mirror the Hatch Act--it is
    a great question for all of you--well, particularly for our two
    former counsels. One of the things that we have to look at here
    is, anything we ask the administration to do we have to try to
    mirror something similar here on the Hill. If we don't, then it
    would be inappropriate relative to our oversight of their
    branch versus fairness here.
        Is it fair to say that, in the past, people working in the
    White House consistently reached out and asked donors for
    money, during previous administrations and probably still
    today, in their exempt role? I didn't say political activities.
    I said, asked for money, solicited people to give money to the
    campaign to elect or re-elect the--or, re-elect the President.
        Please, Mr. Painter, Professor.
        Mr. Painter. I would very much hope not, because
    solicitation of contributions is prohibited under the Hatch
    Act, both in a personal capacity and in a political capacity.
    They may speak at the fundraiser, but they may not ask for
    money.
        Chairman Issa. But if a Cabinet officer--some are
    prohibited, but some are not--or any number of other people in
    the Office of the President or in the administration, if they
    regularly are noted as the person that is going to speak, talk,
    converse, mingle with people at a fundraiser, are you saying
    that they are simply being used to gain that funding but they
    don't make the ask, even though they are there overtly to thank
    everyone for being there?
        Mr. Painter. Yes, I believe the distinction is artificial.
    It is a distinction made under the law as it now stands. I do
    not think they ought to be there, I do not think they ought to
    be speaking at those fundraising events, for exactly the reason
    you describe.
        Chairman Issa. And I take from Mr. Coffina's statement, a
    line that is hard to discern, which is, it is hard to figure
    out what is a political related to the policy of the President,
    the ongoing legislation, such as the example of meeting with
    people who happen to be donors but also happen to be
    knowledgeable people in the business arena.
        But is it so hard to have a clear cutoff that people who
    are on the Federal payroll for the executive branch may not
    attend fundraisers on behalf of the President's re-election or
    similar activities for the party of the President?
        Mr. Painter. I believe that works. The President and the
    Vice President of the United States may attend, and so may you.
    You are an elected Member of Congress.
        Chairman Issa. Trust me, if I don't come, I am not getting
    re-elected.
        Mr. Painter. Absolutely.
        Chairman Issa. But leaving aside the elected officials,
    would you say that, in changing the Hatch Act, one thing we
    should consider is a bright line that prohibits employees of
    the President effectively from attending fundraisers?
        Mr. Painter. Absolutely, yes. I would agree with that.
        Chairman Issa. How should we define the difference between
    a postal worker who attends who simply happens to work
    indirectly for the executive branch and where the bright line
    should be under the Hatch Act?
        Mr. Painter. That is a more difficult determination, but
    the political appointees often are either--some of them are
    Schedule C. Political appointees are easier to designate than
    the--you can designate the difference between a political
    appointee and a career civil servant. We do that throughout the
    United Sates Government. So that would be part of the drafting
    process for a statute, to designate those Federal employees who
    may not attend political fundraisers. But it essentially would
    be the politicals.
        Chairman Issa. Right.
        My time has expired, but, Ms. Marrone, would you tell me
    how that would be if we made that sort of a change to the Hatch
    Act, a bright line at some level of either level of service or
    a political appointee? Would that make your enforcement clearer
    relative to that political activity most commonly called
    fundraising?
        Ms. Galindo-Marrone. Currently, the rules, the law does
    permit all individuals covered by the Hatch Act to attend
    fundraisers. And, in fact, if the individual does not solicit
    but they are there as a guest speaker in attendance, as long as
    they don't personally solicit for the contributions, it is not
    prohibited.
        In terms of drawing a distinction between the civil service
    and the political appointees, the Hatch Act regulations that
    are written by OPM indicate that political appointees may be
    further restricted.
        Chairman Issa. Thank you.
        Okay. I think I will go to the ranking member, if you don't
    mind.
        The ranking member is recognized for his questions.
        Mr. Cummings. Thank you very much.
        I want to go back to a question that the chairman asked
    about the closure of the political office. My understanding is
    that White House counsel briefed the staff, both Republican and
    Democratic staff, on June the 10th, and this issue was
    specifically addressed. And the White House said that the
    office was closed and that the Web site was a legacy issue that
    needs to be fixed. And they need to do that. I would agree that
    it should not have something on a Web site that is not accurate
    or what have you.
        OSC generally provides guidance on the Hatch Act issues
    through advisory opinions. In 2002, OSC issued an advisory
    opinion that permitted executive-branch employees some limited
    use of emails to engage in partisan political activities when
    it was similar to a social conversation around a watercooler.
        Ms. Marrone--is it ``Marrone?''
        Ms. Galindo-Marrone. ``Marrone.''
        Mr. Cummings. Is that an accurate explanation of the 2002
    guidance?
        Ms. Galindo-Marrone. There was a lot of confusion
    surrounding the 2002 guidance. The 2002 guidance was an attempt
    to address what we saw in the 2000 election going forward,
    where Federal employees began to use their emails, their emails
    at work, to engage in political activity. In an attempt to
    address the issue, we put out this advisory opinion that, in
    explaining that email could not be used to engage in political
    activity, what was not prohibited still were watercooler-type
    conversations.
        But it became known as the watercooler exception, and there
    has never been such an exception. When we look at what is
    prohibited, we look at the definition of political activity,
    and it is activity directed at the success or failure of a
    candidate for partisan office, political party, or partisan
    group.
        So if the conversation, whether it be via email or in
    person, does not fall within that definition, then it is
    permissible. But if it is activity directed at the success or
    failure of a candidate or one of the other groups, then it
    would be prohibited.
        Mr. Cummings. So you are telling us that, in March 2007,
    OSC basically rescinded the 2002 advisory opinion. Is that an
    accurate statement?
        Ms. Galindo-Marrone. We rescinded it because we felt that
    the Federal community found it confusing.
        Mr. Cummings. Uh-huh.
        Now, that is not an insignificant difference, is it? In
    other words, this is saying that something is permissible for 5
    years and then saying that the same actions were no longer
    permissible. Can you explain why OSC's guidance on this issue
    changed? Because I don't see that as being insignificant at
    all.
        Ms. Galindo-Marrone. Sure. The position of the office is
    that the opinion--the guidance has never changed. The way it
    was being interpreted was the issue. Watercooler-type
    conversations have always been permissible, in that if the
    conversation, the communication is not directed at the success
    or failure of a candidate, then it is permissible.
        And that has been the consistent position of the office.
    But some of the readers of the advisory opinion found it
    confusing. That is why we rescinded it, not because we were
    changing our position on the issue.
        Mr. Cummings. Now, do you still get inquiries about that
    issue, this watercooler email issue?
        Ms. Galindo-Marrone. We receive a number of inquiries about
    political activity on duty, including the use of the email
    system.
        Mr. Cummings. Uh-huh. The reason why I ask that is we are
    hearing a lot of workers and employee groups sort of complain
    about the two conflicting opinions and continued confusion over
    what an employee can and cannot say, particularly in a casual
    email.
        Do you think that you have provided the--do you think it
    deserves even more clarification? And do you see a very thin
    line?
        Ms. Galindo-Marrone. We have----
        Mr. Cummings. So this is a case-by-case thing, isn't it?
        Ms. Galindo-Marrone. It is. It is. And the devil is in the
    details. We, as I think I indicated in the opening statement,
    we issued over 4,000 advisory opinions last year. So there is
    certainly a need for us to do outreach and continue to provide
    guidance.
        Sometimes these issues, there are shades of grey. So we
    have to look at the actual activity, the communication, in
    order to be able to assist and guide the employee in trying to
    figure out whether it is prohibited or not.
        Mr. Cummings. Let me ask you this. What are some of the
    challenges that email and social media pose for OSC and the
    agencies in terms of interpreting and enforcing the Hatch Act?
    With technology being what it is today and changing, you have
    one kind of technology this morning, and then it is outdated
    this afternoon.
        Ms. Galindo-Marrone. Certainly. Well, we recently--and I
    have copies with me if anyone is interested--but we recently
    issued a pretty comprehensive advisory on social media, as
    issues started to come up within the last 12 months concerning
    the rapid use of it.
        And some of the issues, for example, include what employees
    can or can't do with respect to posting on their Facebook page
    or in terms of posting tweets, including also issues about
    soliciting on their Facebook page; or what if a friend posts
    something onto their page that is a solicitation, are they
    responsible for removing that post or not?
        In addition, we have received a number of issues in this
    area concerning the profile that many individuals have on their
    Facebook page, and the fields. And employees are confused as to
    whether they can populate the fields with their employment
    position.
        Mr. Cummings. Uh-huh.
        I see my time is up. Thank you.
        Chairman Issa. I thank the gentleman.
        We now recognize the gentleman from South Carolina, in his
    fresh seersucker suit, Mr. Gowdy.
        Mr. Gowdy. It was the only suit that was clean, Mr.
    Chairman. Thank you.
        Professor Painter, I wrote as quickly as I could while you
    were talking, and I ran out toward the end. You said 100
    percent of government employee time should be spent on doing?
        Mr. Painter. The business of the U.S. Government.
        Mr. Gowdy. Does your opinion extend to what is called
    official time?
        Mr. Painter. It extends to official time and to personal
    time. I do not believe that the political appointees in the
    government should be in their personal capacity----
        Mr. Gowdy. When I say official time, I am talking about
    union-related activities on government time.
        Mr. Painter. I have not considered union-related activities
    in my analysis here.
        Mr. Gowdy. Well----
        Mr. Painter. I would have to think about that, because that
    is a serious concern, the union-related political activities.
        Mr. Gowdy. How long do you think it would take you to think
    about it? Because the analysis--I mean, you were pretty clear,
    a hundred percent of the time should be spent doing a hundred
    percent of the people's work.
        Mr. Painter. Yes.
        Mr. Gowdy. Does that include lobbying Congress and union-
    related activities?
        Mr. Painter. On the official clock?
        Mr. Gowdy. Yes.
        Mr. Painter. Oh, during their official time, when they are
    actually supposed to be at work.
        Mr. Gowdy. Well, that is what official time means, is that
    you don't have to do your day job; you can spend all your time
    on union-related activities.
        Mr. Painter. I haven't looked carefully at that area. I
    don't like it. I mean, my initial reaction is, that shouldn't
    be going on.
        Mr. Gowdy. Would you be gracious enough to take a look at
    it and let me know what your perspective is? Because you have
    obviously studied this issue more than I have.
        Mr. Painter. Yes. The union-related work I have not looked
    at in detail, but I am concerned about that.
        Mr. Gowdy. Good.
        Mr. Painter. If, on the official time, there is lobbying
    going on that is focused on the political--I mean, the
    political activity that I am talking about here is campaigns.
    There is a separate set of issues that surrounds lobbying
    Congress and there is a separate set of rules that governs
    lobbying Congress----
        Mr. Gowdy. Right.
        Mr. Painter [continuing]. As opposed to political activity
    geared toward elections. So those are two sets of categories,
    and these unions are doing both.
        Mr. Gowdy. I get that. I get that. If you would just look
    and maybe just, I don't know, write a paper on it or publish an
    article or something that----
        Mr. Painter. Yes.
        Mr. Gowdy. Put it where I can read it, though, so maybe in
    a newspaper, because I may not have access to your trade
    journals or something like that. I would be curious what your
    analysis is.
        Mr. Painter. Thank you.
        Mr. Gowdy. Ms. Marrone, let me ask you a couple questions.
    In South Carolina, sheriffs run in partisan elections. In other
    States, they do not, which creates the anomaly that in South
    Carolina, say, a current U.S. marshal, as I understand it,
    cannot run for sheriff, but in another State they could?
        Ms. Galindo-Marrone. Under the Hatch Act, State and local
    employees that are covered by the Hatch Act--and it is not all
    State and local employees--but assuming they are covered
    because they have duties in connection with federally funded
    programs, there is an exemption for elected officials to run
    for partisan elective office.
        Mr. Gowdy. No, no, no. I mean a current U.S. marshal, a
    current----
        Ms. Galindo-Marrone. So Federal?
        Mr. Gowdy [continuing]. A current DEA agent, a current
    Bureau agent. Can they run for sheriff in South Carolina
    because it is partisan? And do you see any anomaly in the fact
    that they can run in States where it is nonpartisan?
        Ms. Galindo-Marrone. Currently, under the Hatch Act, if the
    election is partisan, they would be prohibited from running in
    such an election.
        Mr. Gowdy. So, in South Carolina, a Federal prosecutor can
    run for State court judgeship because that is nonpartisan. But
    if they want to step across the North Carolina line, they
    cannot run for judgeship in North Carolina because it is
    partisan.
        Ms. Galindo-Marrone. Yes, if they are covered by the Hatch
    Act.
        Mr. Gowdy. What is the explanation for that? Because I am
    struggling with it.
        Ms. Galindo-Marrone. I guess you would--I would say
    Congress, I think, would be in the best position to address
    that----
        Mr. Gowdy. So you would agree that it doesn't make any
    sense.
        Ms. Galindo-Marrone. I don't have an opinion on that.
        Mr. Gowdy. Sure you do. Everybody has an opinion on it.
        Ms. Galindo-Marrone. We are responsible for enforcing the
    law. And, currently, the law does make those distinctions----
        Mr. Gowdy. Can a Federal prosecutor attend a political
    fundraiser?
        Ms. Galindo-Marrone. Yes.
        Mr. Gowdy. Can a Federal prosecutor be on the host
    committee?
        Ms. Galindo-Marrone. No.
        Mr. Gowdy. Can a Federal prosecutor speak at that
    fundraiser?
        Ms. Galindo-Marrone. Are we talking about a U.S. attorney
    or----
        Mr. Gowdy. An assistant U.S. attorney.
        Ms. Galindo-Marrone. An assistant United Sates attorney.
    They would be able to speak at the fundraiser as long as they
    are not soliciting for political contributions.
        Mr. Gowdy. They can contribute.
        Ms. Galindo-Marrone. They can contribute.
        Mr. Gowdy. They can't solicit. Can they ask for help? If
    they are introducing their U.S. Senator, can they say, we would
    like you to help Senator Issa or Senator Cummings?
        Ms. Galindo-Marrone. They could solicit for votes----
        Mr. Gowdy. But not for money.
        Ms. Galindo-Marrone [continuing]. But not for money.
        Mr. Connolly. Run, Darrell, run.
        Mr. Gowdy. Wow. Thank you.
        Chairman Issa. But they can be contributors, so they can be
    on the host list, because they gave a certain amount and they
    are put on that list. Or do they fall prey to someone who
    printed something?
        Ms. Galindo-Marrone. That has happened from time to time,
    that they have made a contribution and they appear on the host
    committee, and now they appear to be soliciting.
        Chairman Issa. Thank you for making the case for
    intervention by Congress.
        The gentlelady from the District of Columbia.
        Ms. Norton. I appreciate this hearing, Mr. Chairman, as we
    approach another election.
        I must say, the line-drawing in the White House I find
    particularly difficult. But there are millions of--what is it,
    almost 3 million--Federal employees who also come under the
    Hatch Act. They are probably more political than most; they are
    highly educated people. And they are very law-abiding people.
        I just hope--you know, when we lawyers get a hold of
    something, we tend to really make it confusing. For example, I
    am a member of the Congressional Black Caucus. It has an event
    every single year. We have had to have two briefings--this is
    our own ethics that the chairman spoke of--we have had to have
    two briefings. And the kind of thing that I think gets people
    stumbled, for example, is we learned that you could go to an
    event if there was finger food and you could sponsor an event
    if there was finger food, but if it was a hotdog, that was a
    meal and you couldn't eat that. Do you see how this
    trivializes--that is what they said with a straight face.
        When I think of with Federal employees who are held to
    Hatch Act standards, I am concerned that the law may make a
    mockery of itself. Because the Hatch Act says that there is
    only one penalty, as I understand it, for violation of the
    Hatch Act for a Federal employee, and that is removal. Pretty
    nuclear. Is that true?
        Ms. Galindo-Marrone. Well, the penalty provision for
    Federal employees is different than it is for State and local
    employees. For State and local employees, the only penalty is
    removal. For Federal employees, the presumptive penalty is
    removal, but if by a unanimous vote of the MeritSystems
    Protection Board there is found to be mitigating factors, then
    the penalty can be something less than removal.
        Ms. Norton. Why was that chosen instead of the kinds of
    penalties we find in American law generally? Why not have
    penalties that put an employee on notice, if you do these kinds
    of things, you will get this kind of thing? The whole point of
    the law is the deterrent effect.
        Does the Merit Systems Protection Board often unanimously
    mitigate the penalty?
        Ms. Galindo-Marrone. I would say, just in my experience
    from the last year, of the cases that I mentioned in my opening
    statement, one was mitigated from removal to 120 days
    suspension, but the other cases were removals.
        Ms. Norton. How many removals?
        Ms. Galindo-Marrone. To give you an accurate answer, I
    would have to get back to you with that.
        Ms. Norton. I would ask that you send that information to
    the chairman and the ranking member and that they share it with
    us.
        What is the argument against a graduated penalty?
        Ms. Galindo-Marrone. OSC, at this time, doesn't have an
    opinion as to whether that would be a good or a bad thing.
        Anecdotally, I can share that, from time to time, agencies
    seem reluctant to refer Hatch Act complaints to our office for
    concern that, if it is a case where the office, after
    investigating, finds that it warrants a prosecution, that they
    might lose a good employee.
        Ms. Norton. So, since the only penalty is removal, far from
    a deterrent effect, the nature of the penalty is such, I take
    it, that is so disproportionate, as it were, to the crime, that
    perhaps many violations do, in fact, not get referred, and
    therefore the violations, perhaps, are encouraged to continue.
        Ms. Galindo-Marrone. Well, certainly, if Congress wants to
    consider making revision, that is something that OSC would be
    willing and eager to assist with.
        Ms. Norton. You know, Mr. Chairman, this is a very old law,
    and I can understand how when there was no experience with it--
    now that we have almost 3 million employees, it does seem to me
    that fair notice is a part of due process. And fair notice
    says, this is how serious we take certain aspects of this
    violation to be. Federal employees--I am not sure about the
    White House--but Federal employees, it seems to me, would be
    very alert to try to abide by the Hatch Act if that was the
    case.
        Chairman Issa. Would the gentlelady yield?
        Ms. Norton. Yes, sir, Mr. Chairman.
        Chairman Issa. I couldn't agree with you more, that--I have
    checked, and none of our staff was working here when this law
    was passed. So, clearly, whoever misinformed us so clearly on
    writing the law is no longer----
        Ms. Norton. It was 1939, Mr. Chairman.
        Chairman Issa. Exactly. Well, I have some old staff on my
    side. But you are absolutely right. That is the reason we are
    holding this hearing, in hopes that we can find this and other
    problems, working with the special counsel, so that, in fact,
    we can draft changes that make sense for the entire Federal
    work force.
        I yield back.
        Ms. Norton. Thank you, Mr. Chairman.
        Chairman Issa. We now recognize the gentleman from
    Michigan, Mr. Walberg, for his line of questioning.
        Mr. Walberg. Thank you, Mr. Chairman.
        And thank you to the panel for being here.
        And I guess, for full disclosure, I take a position right
    now that I am not sure that government is capable of putting
    together a campaign or political activity act that will ever
    work totally. But we have what we have, and we have to deal
    with it.
        So let me--I have some questions, just in general, for the
    whole panel. But, specifically, just to make sure that there is
    understanding on my part--I will ask Ms. Marrone first--what
    are the civil and criminal penalties for violating the Hatch
    Act?
        Ms. Galindo-Marrone. There are no criminal penalties. The
    civil penalties for State and local is removal from employment.
    With respect to Federal employees, it is a range, from a 30-day
    suspension, no less than a 30-day suspension, to removal. But,
    again, the presumptive penalty so the starting point is removal
    for Federal employees.
        Mr. Walberg. No criminal penalties?
        Ms. Galindo-Marrone. No criminal penalties.
        Mr. Walberg. Any good reason why not----
        Ms. Galindo-Marrone. Not that I am----
        Mr. Walberg [continuing]. That you have been able to
    determine?
        Ms. Galindo-Marrone [continuing]. Aware of.
        Mr. Walberg. Okay.
        For the whole panel--and feel free to jump in, as you care
    to answer--but do you have any issues with the fact that
    political activity is not defined under the actual Hatch Act
    statute but is allowed to be defined by regulation?
        Professor Painter.
        Mr. Painter. Well, it has to be defined much more clearly,
    either through statute or through clear regulation.
        To say that anything that might improve the electoral
    chances of the President or the President's political party is
    political activity is excessively broad. The President and his
    administration are going to want to do what they need to do to
    get re-elected and to get Members of their party re-elected. So
    that definition doesn't work.
        And we need a definition that is clear, that focuses on the
    actual campaigns--the activities of political campaigns,
    fundraising and other activities. And, in my view, we ought to
    have a rule that then prohibits the political appointees, not
    the career appointees but the political appointees, from
    engaging in any of that conduct.
        Mr. Walberg. Mr. Coffina.
        Mr. Coffina. I generally agree with Professor Painter on
    that. I think that the definition, as it is written in the
    regs, of political activity would actually serve fairly well if
    it was the definition of partisan political activity.
        But as for political activity generally, because, as
    Professor Painter explained, policy and politics intertwine so
    frequently, I think it is very difficult sometimes to draw the
    line based on that, and you start to get into subjective
    distinctions that do not provide employees with fair notice of
    what the law is.
        Mr. Walberg. Ms. Marrone.
        Ms. Galindo-Marrone. The definition of political activity
    is broad, but it is meant to only address partisan activity.
    But, again, it is through working through the regs and looking
    at other definitions that you arrive at that understanding.
        But, certainly, at a minimum, updating the regs with more
    current examples that really address the reality that we see
    today in the workplace would be very helpful.
        Mr. Walberg. Regarding the executive political activity
    more generally, what is the distinction between political
    activity and partisan activity?
        Ms. Marrone? I will start that direction and come back this
    way.
        Ms. Galindo-Marrone. Sure.
        I would argue that it is the same, because the definition
    of political activity ties through to the success or failure of
    a political party, candidate for partisan political office, or
    partisan political group. So when you parse out all the
    different components, it is always directed at partisan
    activity.
        So, for example, if you had an employee that was engaged in
    activity in the office that was directed at a nonpartisan
    candidate, the Hatch Act would not prohibit that activity, even
    though they are both elections----
        Mr. Walberg. So, in reality, it is all partisan?
        Ms. Galindo-Marrone. It is partisan.
        Mr. Walberg. Mr. Coffina.
        Mr. Coffina. Congressman Walberg, I believe you have
    touched upon, you know, the primary concern that you have with
    the vagueness of the definition.
        And to sort of use an example, you can look at the Blue
    Room meeting that I referred to in my statement that took place
    at the White House, where the President hosted donors. One can
    look at that as political activity if you look at the
    circumstances and note that the Democratic National Committee
    coordinated that event and issued the invitations for it. But,
    at the same time, the description of the event as it occurred,
    it seems to have been on policy matters where the President was
    soliciting advice about the economy.
        Mr. Walberg. But the reality, again, is it is partisan,
    wouldn't you say?
        Mr. Coffina. Well, I think it had partisans in it. I think
    probably the intent of it was partisan. But that is where you
    get into this very fine line that is difficult to draw. It
    looks like the content was official, but, certainly, the
    population of attendees and probably the purpose of it was
    partisan and political.
        Mr. Walberg. Okay.
        Mr. Painter. President Roosevelt or one of his assistants
    in the White House once said, spend and spend and spend and
    elect and elect and elect. I mean, the objective, of course, of
    any administration is to do that which will lead to the
    political success of the President and his political party. I
    just don't see that a definition that focuses on that objective
    is a narrow enough definition of political activity to work.
        When we have almost a trillion dollars of stimulus money
    being spent, of course it is spent with a hope of political
    success. It may not work, but that is a different issue.
        You know, I think we need a much narrower, more specific
    definition of partisan political activity that focuses on the
    activities of the campaign. And that is what the Hatch Act is
    directed at, not at everything else that goes on in government
    that might lead to success.
        Mr. Walberg. Thank you.
        Chairman Issa. I thank the gentleman.
        The gentleman from Virginia, Mr. Connolly.
        Mr. Connolly. Thank you, Mr. Chairman.
        And welcome, to the panel.
        Mr. Coffina, you worked in the Bush White House.
        Mr. Coffina. I did, Congressman.
        Mr. Connolly. And you indicated that you were in agreement
    with Professor Painter about certain aspects of the definition
    of what constitutes a political activity and trying to
    constrain them?
        Mr. Coffina. Yes.
        Mr. Connolly. In the Bush White House, is it not true that
    the Office of the Special Counsel found blatant examples of
    violation of the Hatch Act being conducted by the Office of
    Political Affairs--for example, political briefings to GSA and
    other Federal agencies highlighting vulnerable Members of their
    parties, Members of Congress, at the time, throughout the 2006
    campaign season, in order to basically highlight the
    vulnerability and a strategy to help? Were you aware of that?
        Mr. Coffina. Well, Congressman, I was not in the White
    House during the time of those briefings, so I am a little bit
    hamstrung to comment on how they were executed. Because, to me,
    the important part of those briefings is not simply that they
    took place but how they took place.
        Mr. Connolly. But you are aware of the fact that OSC, in
    fact, did a report on these and cited them as violations of the
    Hatch Act?
        Mr. Coffina. Oh, of course I am aware of that, yes.
        Mr. Connolly. Okay. And, presumably, the action of the
    Obama White House to abolish that office in part grew out of
    the controversy surrounding that activity. Is that not correct?
        Mr. Coffina. Well, I think there have been controversies
    surrounding the Office of Political Affairs and its existence
    going back to when it was formed under President Reagan. So I
    can't speak to why the Obama administration made that decision.
    I know President Obama, when he was candidate Obama, spoke
    about abolishing it right away, and he ultimately made the
    decision 2 years later. But I am not privy to why he made the
    decision or why he did it then.
        Mr. Connolly. Professor Painter, I thought I saw you
    shaking your head.
        Mr. Painter. Well, I think it ought to be abolished. I
    think the President did the right thing, abolishing it. I wish
    he had done that 2 years earlier. I don't think the arrangement
    works, to have an Office of Political Affairs.
        But he needs to not just abolish the Office of Political
    Affairs but shut down partisan political activity in the White
    House, period. It doesn't help just to shut down the office and
    then have people lingering back in the White House who are
    doing the same type of stuff in a different office.
        Mr. Connolly. Okay. Thank you.
        Ms. Galindo-Marrone, one of the strange aspects of--I mean,
    whenever you regulate, you are going to get, sadly, sometimes,
    into the weeds. But one of the weeds involves photographs with
    the President of the United States. And there are actually
    restrictions on which photographs can be used and when. Is that
    correct?
        Ms. Galindo-Marrone. Yes.
        Mr. Connolly. So, for example, if the President is up for
    re-election--although presumably every President in his first
    term is up for re-election, but all right--the year of the re-
    election, and Sally Q just happens to be at the USDA in the
    atrium, and there is the President, and someone takes her
    picture with the President, and proudly she puts it up in her
    cubicle because she is with the President.
        That is actually a violation of the Hatch Act in a re-
    election year?
        Ms. Galindo-Marrone. If the President is already a
    candidate, depending on the picture, it may or may not be a
    violation.
        Mr. Connolly. Depending on the picture?
        Ms. Galindo-Marrone. That is correct. According to the
    regs, Federal employees may not display pictures of candidates
    in their offices or in Federal buildings.
        So a unique situation occurs each time we have a President
    running for re-election because the incumbent still continues
    to be the head of the executive; at the same time, the
    incumbent is now a candidate. So we try to strike a balance by
    saying that official photographs can continue to be displayed,
    but if it is not an official photograph, it should not be
    displayed.
        And even as to official photographs, just to highlight
    sometimes the issues, we have had individuals in the past that
    have painted horns or halos on pictures or placed the pictures
    upside-down in order to demonstrate their support or opposition
    for a candidate. So even as to the official photograph, we
    indicate that they should be displayed in a traditional size
    and manner.
        Mr. Connolly. Do you think most members of the work force
    are aware of that?
        Ms. Galindo-Marrone. I am sorry?
        Mr. Connolly. Is that a regulation or a guidance that----
        Ms. Galindo-Marrone. That is a guidance we----
        Mr. Connolly. No, no. Is it widely known within the Federal
    work force?
        Ms. Galindo-Marrone. Well, I would like to think so. Every
    time I go out and I do outreach for the last 8, 9 years, I have
    been talking about the guidance. It is published on our Web
    site. But it is a big Federal Government work force, and we are
    a small agency.
        Mr. Connolly. Well, Mr. Chairman, my time is up, and I
    thank you. But I have to say, I think we do need a Hatch Act to
    set the rules of engagement, but when you actually prohibit
    somebody from a personal photograph with the President because
    it is a re-election year, to me, that crosses the line.
        Chairman Issa. Would the gentleman yield?
        Mr. Connolly. Yes, absolutely.
        Chairman Issa. You know, I have an old friend down in
    Alabama, and he says, you know, that is as clear as mud. And I
    think the gentleman did a good job of pointing that out.
        Mr. Connolly. Thank you, Mr. Chairman.
        [The prepared statement of Hon. Gerald E. Connolly
    follows:]

        Chairman Issa. The gentlelady from New York, Ms. Buerkle.
        Ms. Buerkle. Thank you, Mr. Chairman. And thank you for
    calling this hearing today on a very important topic.
        I just want to follow up with something my colleague, Mr.
    Connolly, brought up, and that is the OSC findings and the
    report that was done. And I will address this question to Ms.
    Galindo-Marrone.
        In that--and we have heard testimony today that, really, it
    just wasn't the Bush administration; this is a systemic problem
    that we see. But the OSC report only focused on George W.
    Bush's presidency. Can you explain why the scope was so narrow?
        Ms. Galindo-Marrone. We investigated the Bush
    administration, because those were the allegations that we were
    investigating. However, we took note in the report that it
    seems that this is a problem that has occurred in previous
    administrations, so that this was not a unique circumstance to
    the Bush administration, but we were investigating the case we
    had before us.
        Ms. Buerkle. But the concern would be that we singled out
    George Bush's presidency rather than looking at the whole scope
    of where the problems might be.
        Also, that report, the timeframe was 2009-2010. It was
    released in 2011?
        Ms. Galindo-Marrone. It was released in 2011.
        Ms. Buerkle. And so it investigated--it looked back at
    2006. That seems like a long time for that report. It seems
    like it took a long time for that report to get done.
        Why wasn't President Obama--I mean, that was 2 years of his
    presidency. Why wasn't he included in any of that report?
        Ms. Galindo-Marrone. The investigation and the allegations
    arose in 2007. So the majority of the evidence, as we gathered
    the evidence, centered around the 2006 activities. We typically
    do not--that I am aware of, we have never combined. I mean, we
    investigate the case we have before us, and we don't look to
    another administration in terms of first completing the
    investigation that we have before us.
        Ms. Buerkle. I want to move on to my next question, but
    just if you could, do you know who waged or who made the
    allegation and made the complaint?
        Ms. Galindo-Marrone. Well, it arose from a complaint that
    was filed concerning activities at the General Services
    Administration. So we first received a complaint concerning a
    political briefing that occurred at GSA. And then, while we
    were investigating that one case, we learned of additional
    briefings that had occurred throughout 22 Federal agencies, so
    we opened a separate case.
        Ms. Buerkle. Thank you.
        Mr. Coffina, I don't know if you would like to comment on
    that. Quickly, if you could, so I can get to my next question.
        Mr. Coffina. On what, Congresswoman?
        Ms. Buerkle. On the OSC study. It seemed like you wanted to
    say something or had a comment to make.
        Mr. Coffina. Well, you know, I think that they did
    acknowledge, I think, in one sentence that there was some
    historical fact of these events that they called out in their
    report as having occurred in prior administrations. In fact,
    you know, the history of political briefings goes back, I
    believe, as far as President Reagan.
        The Political Affairs Office has had a fair amount of
    continuity, in terms of through both Democratic and Republican
    administrations, in terms of the types of things that they have
    done. And I think that with that type of historical precedent,
    without any enforcement action by the Office of Special
    Counsel, I think it is, you know, especially unfortunate that
    members of the Bush administration, specifically hardworking,
    more junior members of the administration, were sort of labeled
    as law-breakers, when they, I believe, in complete good faith
    that what they were doing was within the law, simply followed
    the practices that their predecessors of both parties have
    done.
        Ms. Buerkle. Thank you.
        My next question is really for all three of you, and I am
    not sure we will get to hear from all three of you, so let's
    start with Professor Painter.
        What are the restrictions on the meetings such as that was
    held at the White House and organized by the DNC?
        Mr. Painter. I do not know all of the facts about that
    meeting, and I am hearing conflicting views as to whether it
    was political or official.
        If it is an official-capacity meeting in which official
    policy is being discussed by White House staff members acting
    in their official capacity, the DNC should not be organizing
    the meeting. The White House should be organizing the meeting.
    If the DNC is setting up the meeting, that is a political
    meeting. In a political meeting, the White House staff who
    participate in that meeting are doing so in a personal capacity
    without use of official title, in a personal capacity, and they
    are talking about political campaigns or whatever they want to
    talk about, other than asking people for money--that is the one
    thing they cannot do, is solicit contributions.
        I would never have agreed to having such a meeting going on
    in the White House itself, in any room of the White House. I
    know there is controversy about that, but I would not want to
    see those meetings, quite frankly, going on on Federal
    property. What the legal restrictions are is somewhat more
    ambiguous.
        Ms. Buerkle. It seems to me, with the DNC sending out the
    invitations and organizing it, it smacks the partisan,
    political, what we are talking about here, that really
    shouldn't be allowed.
        I see I am out of time. I yield back. Thank you, Mr.
    Chairman.
        Chairman Issa. Thank you.
        I apologize that so many Members were unable to get into a
    previous--or into this hearing because it is not yet the voting
    time. But I have been asked, would each of you agree to accept,
    if you will, friendly interrogatories, a series of questions
    that you may answer in a reasonable period of time, so that
    Members who were not here could ask questions after they have
    looked at the record?
        Ms. Galindo-Marrone. Certainly.
        Mr. Coffina. Yes.
        Mr. Painter. Absolutely.
        Chairman Issa. Okay. So our normal policy is to hold the
    record open only for 5 days. In this case, we are going to hold
    this record open for 30 days so they can ask questions, and we
    will extend it even further if you need more time to answer.
        [The information referred to follows:]
        [Note.--The information referred to was not provided to the
    committee.]
        Chairman Issa. Let me just ask one closing question. Do you
    all agree that, whatever we do with the Hatch Act, we must have
    a carveout for the security of Cabinet officers, particularly
    the President and Vice President--in other words, some
    accommodation within the Hatch Act to recognize that the
    locations in which the President may have meetings with
    supporters and the like has to be consistent with some form of
    security for himself and other key members that may in the
    future Hatch Act be allowed to participate?
        That is really--I am hoping it is a softball question, but
    it is one that I am deeply concerned that we not create a
    situation in which we put certain officials in a position
    where, in order to have the kind of meetings they need to, they
    find themselves in facilities inappropriate, recognizing the
    White House is the most appropriate place, usually, for the
    President.
        Mr. Painter, yes, sir?
        Mr. Painter. Yes. I would--my view of that, it ought to be
    only the President and the Vice President who engage in
    partisan political activity. But if other officials are allowed
    to do so, we have to provide security, and who pays for the
    security is not the point.
        Chairman Issa. Okay.
        We have had one other Member arrive for a first round. We
    recognize the gentlelady from New York, Ms. Maloney, for 5
    minutes.
        Mrs. Maloney. Well, I just want to thank you and the
    ranking member for holding this hearing. And I am going to put
    my questions in writing, in the interest of other meetings we
    have to get to. Thank you.
        Chairman Issa. Thank you.
        And since we previously agreed to answer an interrogatory
    style set of questions, I want to thank you once again for your
    patience and your participation.
        And this hearing is adjourned.
        [Whereupon, at 4:15 p.m., the committee was adjourned.]
        [Additional information submitted for the hearing record
    follows:]