[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








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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:]




                                 
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