[Senate Report 111-339]
[From the U.S. Government Publishing Office]
111th Congress Report
2d Session SENATE 111-339
_______________________________________________________________________
Calendar No. 627
DISTRICT OF COLUMBIA HATCH ACT REFORM ACT OF 2010
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
H.R. 1345
TO AMEND TITLE 5, UNITED STATES CODE, TO ELIMINATE THE DISCRIMINATORY
TREATMENT OF THE DISTRICT OF COLUMBIA UNDER THE PROVISIONS OF LAW
COMMONLY REFERRED TO AS THE ``HATCH ACT''
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
September 29, 2010.--Ordered to be printed
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Washington, DC 20402-0001
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware SCOTT P. BROWN, Massachusetts
MARK L. PRYOR, Arkansas JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana GEORGE V. VOINOVICH, Ohio
CLAIRE McCASKILL, Missouri JOHN ENSIGN, Nevada
JON TESTER, Montana LINDSEY GRAHAM, South Carolina
ROLAND W. BURRIS, Illinois
EDWARD E. KAUFMAN, Delaware
Michael L. Alexander, Staff Director
Kevin J. Landy, Chief Counsel
Elyse F. Greenwald, Professional Staff Member
Bryan G. Polisuk, Counsel, Subcommittee on Oversight of Government
Management, the Federal Workforce, and the District of Columbia
Brandon L. Milhorn, Minority Staff Director and Chief Counsel
Amanda Wood, Minority Director for Governmental Affairs
Thomas A. Bishop, Minority Professional Staff Member, Subcommittee on
Oversight of Government Management, the Federal Workforce, and the
District of Columbia
Trina Driessnack Tyrer, Chief Clerk
C O N T E N T S
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Page
I. Purpose and Summary..............................................1
II. Background and Need..............................................1
III. Legislative History..............................................3
IV. Section-by-Section Analysis......................................3
V. Evaluation of Regulatory Impact..................................4
VI. Congressional Budget Office Cost Estimate........................5
VII. Changes in Existing Law Made by the Bill, as Reported............5
Calendar No. 627
111th Congress Report
2d Session SENATE 111-339
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DISTRICT OF COLUMBIA HATCH ACT REFORM ACT
OF 2010
_______
September 29, 2010.--Ordered to be printed
_______
Mr. Lieberman, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany H.R. 1345]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (H.R. 1345) to amend
title 5, United States Code, to eliminate the discriminatory
treatment of the District of Columbia under the provisions of
law commonly referred to as the ``Hatch Act,'' having
considered the same, reports favorably thereon with an
amendment and recommends that the bill do pass.
I. Purpose and Summary
The Hatch Act prohibits certain federal, state and local
government employees, including employees of the government of
the District of Columbia, from engaging in specified political
activity. Since 1940, the Act has subjected D.C. government
employees to the same restrictions as federal employees. H.R.
1345 would, however, amend the Hatch Act to apply to D.C.
government employees the same laws that govern state and local
government employees rather than those governing federal
employees. To ensure that D.C. government employees still face
appropriate restrictions on partisan political activity, H.R.
1345 would not take effect until after D.C. adopts a law
governing such activities.
II. Background and Need for Legislation
Federal employees have faced restrictions on their
political activities since the earliest days of the Republic.
The Jefferson Administration, for example, issued an order
stating that although it is the:
right of any officer (federal employee) to give his
vote at elections as a qualified citizen . . . it is
expected that he will not attempt to influence the
votes of others nor take any part in the business of
electioneering, that being deemed inconsistent with the
spirit of the Constitution.\1\
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\1\A Compilation of the Messages and Papers of the Presidents,
Volume 10, pp. 98-99 (1899).
In 1939, increased concerns about partisan political
activity of certain federal employees led Congress to pass what
has become known as the ``Hatch Act.''\2\ The Hatch Act, as
originally passed, restricts the political activities of
executive branch employees in the federal government. In
passing the Hatch Act, Congress affirmed the view that partisan
activity of government employees must be limited if federal
laws, institutions and programs are to be administered in a
fair and transparent manner.
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\2\P.L. No. 76-252 (1939) (codified at 5 U.S.C. Sec. 7321 et seq.).
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One year later, Congress amended the Hatch Act to add a new
section to restrict certain state and local government
employees--those with jobs connected to activities financed in
whole or in part by loans or grants made by the United States
or a federal agency--from engaging in specified political
activities.\3\ Currently, covered state and local employees
face a slightly narrower set of restrictions than federal
employees. They may not run for office in a partisan election,
use their official authority to influence an election, or
attempt to coerce a state or local employee to make a political
contribution.\4\ Because Congress exercised direct control over
the District of Columbia at the time of the 1940 amendments,
Congress placed D.C. government employees under the provisions
applicable to federal employees instead of categorizing them as
state and local employees.\5\
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\3\P.L. No. 76-753 (1940) (codified at 5 U.S.C. Sec. 1501).
\4\See 5 U.S.C. 1502. For more information on how OSC interprets
these restrictions, please see http://www.osc.gov/haStateLocalfaq.htm.
Federal employees and officials may not engage in the activities
described in the text, but also face a number of other restrictions.
They generally may not solicit or discourage participation in any
political activity of anyone who has business pending before their
agencies. In addition, they may not engage in partisan campaign
activity on federal property, on official duty time, while wearing a
uniform identifying them as a federal official or employee, or in a
government vehicle. (5 U.S.C. Sec. 7323). For more information on
further and less restricted employees, please see http://www.osc.gov/
hatchact.htm.
\5\P.L. No. 76-753 (1940) (codified at 5 U.S.C. Sec. 7322).
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The role of the D.C. government, and therefore its
employees, has evolved significantly since the 1940 Hatch Act
amendments. A series of changes that culminated in the landmark
1973 Home Rule Act, which provided the District the powers of
local self-government,\6\ have made D.C. government employees
more similar to state and local employees rather than to
federal employees.
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\6\P.L. No. 93-198 (1973) (codified at D.C. Code Sec. 1-201.01 et
seq.).
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Congress has previously recognized the need for the Hatch
Act to accommodate the unique nature of the D.C. government and
its employees. In 1940, at the same time that Congress placed
D.C. government employees under Hatch Act coverage, it exempted
``commissioners'' and ``the Recorder of Deeds of the District
of Columbia'' from coverage under the Act.\7\ Moreover, one
year after enacting the D.C. Home Rule law in 1973, Congress
amended the Hatch Act to exempt the newly-created positions of
Mayor of the District of Columbia, the Chairman and Vice
Chairman of the City Council of the District of Columbia, and
members of the City Council.\8\ These exemptions are similar to
those granted to elected state and local officials under the
current Hatch Act.
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\7\P.L. No. 76-753 (1940).
\8\P.L. No. 93-268 (1974) (codified at 5 U.S.C. Sec. 7324).
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The Committee concludes it is now time to more precisely
align the Hatch Act's mandates with the current structure of
the D.C. government. Accordingly, H.R. 1345 would amend the
Hatch Act to place employees of the District of Columbia under
the provisions of the Hatch Act that apply to state and local
government employees. D.C. government employees not covered by
Hatch Act would still face restrictions on political activity,
but the D.C. Council would determine the scope of those
restrictions. To preclude a period of unfettered political
activity in the D.C. government workplace, H.R. 1345 states
that it would not go into effect until the District enacts a
law governing the political activities of employees of the D.C.
government.
In consultation with the Office of Special Counsel (OSC),
the independent federal agency authorized to investigate and
pursue violations of the Hatch Act, the Committee recognized
the need to make several changes to H.R. 1345 to clarify the
District of Columbia's coverage under Hatch Act. Senator Akaka
offered an amendment to that effect which was adopted. The
amendment added ``the District of Columbia, or an agency or
department thereof'' to the definition of ``state or local
agency'' and added the District of Columbia to several other
provisions. These additions were made to further ensure that
D.C. employees would be covered under provisions of the Hatch
Act applicable to other state and local government employees.
III. Legislative History
H.R. 1345 was introduced by D.C. Delegate Eleanor Holmes
Norton on March 5, 2009. The Committee on Oversight and
Government Reform reported the bill to the full House on June
9, 2009, and on September 8, 2009, the House, under a motion to
suspend the rules, agreed to H.R. 1345 by a voice vote.
On September 8, 2009, H.R. 1345 was received in the Senate
and referred to the Committee on Homeland Security and
Governmental Affairs. On May 17, 2010, the Committee considered
H.R. 1345 at a business meeting. Senator Daniel Akaka offered
an amendment that inserted references to the District of
Columbia in several subsections of the Hatch Act. The Committee
adopted the amendment and ordered the bill, as amended,
reported favorably by voice vote. Members present for both
actions were Senators Lieberman, Akaka, Carper, Pryor,
Landrieu, Burris, Collins, Brown, Voinovich and Graham.
IV. Section-by-Section
Section 1. Short title
The short title of the bill is the District of Columbia
Hatch Act Reform Act of 2010.
Section 2. Employees of the District of Columbia to be subject to the
same restrictions on political activity as apply to state and
local employees
Subsection (a) of Section 2 would amend 5 U.S.C.
Sec. Sec. 1501, 1502, and 1506 to subject employees of the
government of the District of Columbia to the same restrictions
on partisan political activity that currently apply to state
and local government employees under the Hatch Act.
First, this subsection would amend 5 U.S.C. Sec. 1501(2) to
add the District of Columbia, or an agency or department of the
District of Columbia, to the definition of a ``state or local
agency.'' 5 U.S.C. Sec. 1501(4) would also be amended to ensure
individuals employed by an educational or research institution,
establishment, agency, or system supported in whole or in part
by the District of Columbia are exempt. This exclusion is
granted to similarly-situated employees of state and local
governments.
This subsection also would amend 5 U.S.C. Sec. 1502(c)(3)
to exclude the duly elected head of the District of Columbia
from prohibitions on seeking elective office that apply to
other state or local government employees.
Subsection 2(a) of the bill would also amend 5 U.S.C.
Sec. 1506(a)(2) to allow the Merit Systems Protection Board to
issue an order to withhold federal funds if the Board finds
that an employee ordered removed for violating the Hatch Act
has been reappointed in the District of Columbia within 18
months.
Subsection (b) of Section 2 would amend 5 U.S.C.
Sec. 7322(1) to remove individuals employed or holding office
in the government of the District of Columbia from provisions
of the Hatch Act applicable to federal employees.
Section 3. Effective date
Section 3 states that the Act will take effect on the
effective date of a law enacted by the District of Columbia
government which places restrictions on political activities of
employees of the government of the District of Columbia and
will apply to actions taking place on or after that date.
V. Evaluation of Regulatory Impact
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill. The
Congressional Budget Office (CBO) states that there are no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act and no costs on State, local, or
tribal governments. The legislation contains no other
regulatory impact.
VI. Congressional Budget Office Cost Estimate
May 27, 2010.
Hon. Joseph I. Lieberman,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1345, the District
of Columbia Hatch Act Reform Act of 2010.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
H.R. 1345--District of Columbia Hatch Act Reform Act of 2010
H.R. 1345 would amend the Hatch Act to remove some
restrictions on the political activities of District of
Columbia government employees. Under current law, such
employees are subject to the same restrictions as federal
employees under the Hatch Act. The bill would amend federal law
to subject District of Columbia government employees to the
same Hatch Act restrictions imposed on other employees of state
and local governments whose principal employment is connected
to an activity financed by funds from the federal government.
CBO estimates that implementing the legislation would have no
significant impact on the federal budget. Enacting the bill
would not affect direct spending or revenues; therefore, pay-
as-you-go procedures would not apply.
H.R. 1345 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
On June 9, 2009, CBO transmitted a cost estimate for H.R.
1345, the District of Columbia Hatch Act Reform Act of 2009, as
ordered reported by the House Committee on Oversight and
Government Reform. The two versions of the legislation are
similar, and CBO's estimate of their costs is the same.
The CBO staff contact for this estimate is Matthew
Pickford. The estimate was approved by Theresa Gullo, Deputy
Assistant Director for Budget Analysis.
VII. Changes in Existing Law Made by the Bill, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic and existing law, in which no
change is proposed, is shown in roman):
TITLE 5, UNITED STATES CODE: GOVERNMENT ORGANIZATION AND EMPLOYEES
PART II--CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES
CHAPTER 15--POLITICAL ACTIVITY OF CERTAIN STATE AND LOCAL EMPLOYEES
SEC. 1501. DEFINITIONS.
For the purpose of this chapter--
(1) ``State'' means a State or territory or
possession of the United States;
(2) ``State or local agency'' means the executive
branch of a State, municipality, or other political
subdivision of a State, or an agency or department
thereof, or the District of Columbia, or an agency or
department thereof;
(3) * * *
(4) ``State or local officer or employee'' means an
individual employed by a State or local agency whose
principal employment is in connection with an activity
which is financed in whole or in part by loans or
grants made by the United States or a Federal agency,
but does not include--
(A) an individual who exercises no functions
in connection with that activity; or
[(B) an individual employed by an educational
or research institution, establishment, agency,
or system which is supported in whole or in
part by a State or political subdivision
thereof, or by a recognized religious,
philanthropic, or cultural organization]
(B) an individual employed by an educational
or research institution, establishment, agency,
or system which is supported in whole or in
part by--
(i) a State or political subdivision
thereof;
(ii) the District of Columbia; or
(iii) a recognized religious,
philanthropic, or cultural
organization.
SEC. 1502. INFLUENCING ELECTIONS; TAKING PART IN POLITICAL CAMPAIGNS;
PROHIBITIONS; EXCEPTIONS.
(a) * * *
* * * * * * *
(c) Subsection (a)(3) of this section does not apply to--
(1) the Governor or Lieutenant Governor of a State or
an individual authorized by law to act as Governor;
(2) the mayor of a city;
(3) a duly elected head of an executive department of
a State [or municipality], municipality, or the
District of Columbia who is not classified under a
State[ or municipal], municipal or the District of
Columbia merit or civil-service system; or
(4) an individual holding elective office.
* * * * * * *
SEC. 1506. ORDERS; WITHHOLDING LOANS OR GRANTS; LIMITATIONS.
(a) When the Merit Systems Protection Board finds--
(1) that a State or local officer or employee has not
been removed from his office or employment within 30
days after notice of a determination by the Board that
he has violated section 1502 of this title and that the
violation warrants removal; or
(2) that the State or local officer or employee has
been removed and has been appointed within 18 months
after his removal to an office or employment in the
same State (or in the case of the District of Columbia,
in the District of Columbia) in a State or local agency
which does not receive loans or grants from a Federal
agency;
the Board shall make and certify to the appropriate Federal
agency an order requiring that agency to withhold from its
loans or grants to the State or local agency to which notice
was given an amount equal to 2 years' pay at the rate the
officer or employee was receiving at the time of the violation.
When the State or local agency to which appointment within 18
months after removal has been made is one that receives loans
or grants from a Federal agency, the Board order shall direct
that the withholding be made from that State or local agency.
* * * * * * *
PART III_EMPLOYEES
CHAPTER 73--SUITABILITY, SECURITY, AND CONDUCT
SUBCHAPTER II--POLITICAL ACTIVITIES
SEC. 7322. DEFINITIONS.
For the purpose of this subchapter--
(1) ``employee'' means any individual, other than the
President and the Vice President, employed or holding
office in--
(A) an Executive agency other than the
Government Accountability Office; or
(B) a position within the competitive service
which is not in an Executive agency; [or]
[(C) the government of the District of
Columbia, other than the Mayor or a member of
the City Council or the Recorder of Deeds;]
but does not include a member of the uniformed [services;]
services or an individual employed or holding office in the
government of the District of Columbia;
* * * * * * *