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1976/04/12 HR8617 Federal Employees Political Activities Act of 1976 (vetoed) (2)
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1976/04/12 HR8617 Federal Employees Political Activities Act of 1976 (vetoed) (2)
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White House Records Office: Legislation Case Files
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The original documents are located in Box 42, folder "1976/04/12 HR8617 Federal
Employees Political Activities Act of 1976 (vetoed) (2)" of the White House Records Office:
Legislation Case Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Exact duplicates within this folder were not digitized.
Digitized from Box 42 of the White House Records Office Legislation Case Files at the Gerald R. Ford Presidential Library
DRAFT
DHL - 4/9/76
To the House of Representatives:
I am today returning, without my approval, H.R. 8617, a
bill that would essentially repeal the Federal law commonly
known as the Hatch Act, which prohibits Federal employees
from taking an active part in partisan politics.
The public expects that government service will be provided
in a neutral, nonpartisan fashion. This bill would produce
an opposite result.
Thomas Jefferson, foresaw the dangers of Federal employees
electioneering, and many of the explicit Hatch Act rules were
first applied in 1907 by President Theodore Roosevelt. In
1939, as an outgrowth of concern over political coercion of
Federal employees, the Hatch Act itself was enacted.
The amendments which this bill make to the Hatch Act would
deny the lessons of history.
If, as contemplated by H.R. 8617, the prohibitions against
political campaining were removed, we would be endangering the
entire concept of employee independence and freedom from coercion
which has been largely successful in preventing undue political
influence in Government programs or personnel personal management. If this
bill were to become law, I believe pressures could be brought
FORD LIBRARY
Page 2
DRAFT 4/9
to bear on Federal employees in extremely subtle ways beyond
the reach of any anti-coercion regulation SO that they would
inevitably feel compelled to engage in partisan political
activity. This would be bad for the employee, bad for the
government, and bad for the public.
Proponents of this bill argue that the Hatch Act limits the
rights of Federal employees. The Hatch Act does in fact
restrict the right of employees to fully engage in partisan
politics. It was intended, for good reason, to do precisely
that. Most people, including most Federal employees, not only
understand the reasons for these restrictions, but support
them.
However, present law does not bar all political activity
on the part of Federal employees. They may register and vote
in any election, express opinions on political issues or
candidates, be members of and make contributions to political
parties, and attend political rallies and conventions, and
engage in a variety of other political activities. What they
may not -- and, in my view, should not -- do is attempt to be
partisan political activists and impartial Government employees
at the same time.
The U.S. Supreme Court in 1973 in affirming the validity of the
Hatch Act, noted that it represented
"a judgment made by this country over the last
century that it is in the best interest of the
country, indeed essential, that federal service
should depend upon meritorious performance rather
than political service, and that the political
influence of federal employees on others and on
the electoral process should be limited."
DRAFT
DHL 4/9
Page 3
The Hatch Act is intended to strike a delicate balance
between fair and effective government and the First Amendment
rights of individual employees. It has been successful, in
my opinion, in striking that balance.
H.R. 8617 is bad law in other respects. The bill's provisions
for the exercise of a Congressional right of disapproval of
executive agency regulations are Constitutionally objectionable.
In addition, it would shift the responsibility for adjudicating
Hatch Act violations from the Civil Service Commission to a
new Board composed of Federal employees. No convincing
evidence exists to justify this shift. However, the fundamental
objection to this bill is that politicizing the Civil
Service is intolerable.
I, therefore, must veto the measure.
DRAFT
DHL - 4/9/76
To the House of Representatives:
I am today returning, without my approval, H.R. 8617, a
bill that would essentially repeal the Federal law commonly
known as the Hatch Act, which prohibits Federal employees
from taking an active part in partisan politics.
The public expects that government service will be provided
in a neutral, nonpartisan fashion. This bill would produce
an opposite result.
Thomas Jefferson E foresaw the dangers of Federal employees
some
electioneering, and many of the explicit Hatch Act rules were
first applied in 1907 by President Theodore Roosevelt. In
1939, as an outgrowth of concern over political coercion of
Federal employees, the Hatch Act itself was enacted.
The amendments which this bill make to the Hatch Act would
deny the lessons of history.
If, as contemplated by H.R. 8617, the prohibitions against
political campaining were removed, we would be endangering the
entire concept of employee independence and freedom from coercion
which has been largely successful in preventing undue political
influence in Government programs or personnel personal management. If this
bill were to become law, I believe pressures could be brought
FOND
Page 2
DRAFT 4/9
to bear on Federal employees in extremely subtle ways beyond
the reach of any anti-coercion regulation so that they would
inevitably feel compelled to engage in partisan political
activity. This would be bad for the employee, bad for the
government, and bad for the public.
Proponents of this bill argue that the Hatch Act limits the
rights of Federal employees. The Hatch Act does in fact
restrict the right of employees to fully engage in partisan
politics. It was intended, for good reason, to do precisely
that. Most people, including most Federal employees, not only
understand the reasons for these restrictions, but support
them.
However, present law does not bar all political activity
on the part of Federal employees. They may register and vote
in any election, express opinions on political issues or
candidates, be members of and make contributions to political
parties, and attend political rallies and conventions, and
engage in a variety of other political activities. What they
may not -- and, in my view, should not -- do is attempt to be
partisan political activists and impartial Government employees
at the same time.
The U.S. Supreme Court in 1973 in affirming the validity of the
Hatch Act, noted that it represented
"a judgment made by this country over the last
century that it is in the best interest of the
country, indeed essential, that federal service
should depend upon meritorious performance rather
than political service, and that the political
influence of federal employees on others and on
the electoral process should be limited."
DRAFT
DHL 4/9
Page 3
The Hatch Act is intended to strike a delicate balance
between fair and effective government and the First Amendment
rights of individual employees. It has been successful, in
my opinion, in striking that balance.
H.R. 8617 is bad law in other respects. The bill's provisions
for the exercise of a Congressional right of disapproval of
executive agency regulations are Constitutionally objectionable.
In addition, it would shift the responsibility for adjudicating
Hatch Act violations from the Civil Service Commission to a
new Board composed of Federal employees. No convincing
evidence exists to justify this shift. However, the fundamental
objection to this bill is that politicizing the Civil
Service is intolerable.
I, therefore, must veto the measure.
TO THE HOUSE OF REPRESENTATIVES:
I am today returning, without my approval, H.R. 8617,
a bill that would essentially repeal the Federal law
commonly known 'as the Hatch Act, which prohibits Federal
employees from taking an active part in partisan politics.
The public expects that government service will be
provided in a neutral, nonpartisan fashion. This bill
would produce an opposite result.
Thomas Jefferson foresaw the dangers of Federal
some
employees electioneering, and many of the explicit Hatch
Act rules were first applied in 1907 by President Theodore
Roosevelt. In 1939, as an outgrowth of concern over politi-
cal coercion of Federal employees, the Hatch Act itself was
enacted.
The amendments which this bill make to the Hatch Act
would deny the lessons of history.
If, as contemplated by H.R. 8617, the prohibitions
against political campaigning were removed, we would be
endangering the entire concept of employee independence
and freedom from coercion which has been largely success-
ful in preventing undue political influence in Government
programs or personnel management. If this bill were to
become law, I believe pressures could be brought to bear
on Federal employees in extremely subtle ways beyond the
reach of any anti-coercion regulation so that they would
inevitably feel compelled to engage in partisan political
activity. This would be bad for the employee, bad for the
government, and bad for the public.
Proponents of this bill argue that the Hatch Act limits
the rights of Federal employees. The Hatch Act does in fact
restrict the right of employees to fully engage in partisan
2
politics. It was intended, for good reason, to do precisely
that. Most people, including most Federal employees, not
only understand the reasons for these restrictions, but
support them.
However, present law does not bar all political activity
on the part of Federal employees. They may register and vote
in any election, express opinions on political issues or
candidates, be members of and make contributions to political
parties, and attend political rallies and conventions, and
engage in a variety of other political activities. What
they may not -- and, in my view, should not -- do is attempt
to be partisan political activists and impartial Government
employees at the same time.
The U.S. Supreme Court in 1973 in affirming the validity
of the Hatch Act, noted that it represented
"a judgment made by this country over the last
century that it is in the best interest of the
country, indeed essential, that federal service
should depend upon meritorious performance rather
than political service, and that the political
influence of federal employees on others and on
the electoral process should be limited."
The Hatch Act is intended to strike a delicate balance
between fair and effective government and the First Amendment
rights of individual employees. It has been successful, in
my opinion, in striking that balance.
H.R. 8617 is bad law in other respects. The bill's
provisions for the exercise of a Congressional right of
disapproval of executive agency regulations are Constitu-
tionally objectionable. In addition, it would shift the
responsibility for adjudicating Hatch Act violations from
FCRD & LIBRARY GERALD
3
the Civil Service Commission to a new Board composed of
Federal employees. No convincing evidence exists to
justify this shift. However, the fundamental objection
to this bill is that politicizing the Civil Service is
intolerable.
I, therefore, must veto the measure.
THE WHITE HOUSE,
FORD : LIBRARY 076839
TO THE HOUSE OF REPRESENTATIVES:
I am today returning, without my approval, H.R. 8617,
a bill that would essentially repeal the Federal law
commonly known as the Hatch Act, which prohibits Federal
employees from taking an active part in partisan politics.
The public expects that government service will be
provided in a neutral, nonpartisan fashion. This bill
would produce an opposite result.
Thomas Jefferson foresaw the dangers of Federal
employees electioneering, and many Some of the explicit Hatch
Act rules were first applied in 1907 by President Theodore
Roosevelt. In 1939, as an outgrowth of concern over politi-
cal coercion of Federal employees, the Hatch Act itself was
enacted.
The amendments which this bill make to the Hatch Act
would deny the lessons of history.
If, as contemplated by H.R. 8617, the prohibitions
against political campaigning were removed, we would be
endangering the entire concept of employee independence
and freedom from coercion which has been largely success-
ful in preventing undue political influence in Government
programs or personnel management. If this bill were to
become law, I believe pressures could be brought to bear
FORD
on Federal employees in extremely subtle ways beyond the
reach of any anti-coercion regulation so that they would
inevitably feel compelled to engage in partisan political
activity. This would be bad for the employee, bad for the
government, and bad for the public.
Proponents of this bill argue that the Hatch Act limits
the rights of Federal employees. The Hatch Act does in fact
restrict the right of employees to fully engage in partisan
2
politics. It was intended, for good reason, to do precisely
that. Most people, including most Federal employees, not
only understand the reasons for these restrictions, but
support them.
However, present law does not bar all political activity
on the part of Federal employees. They may register and vote
in any election, express opinions on political issues or
candidates, be members of and make contributions to political
parties, and attend political rallies and conventions, and
engage in a variety of other political activities. What
they may not -- and, in my view, should not -- do is attempt
to be partisan political activists and impartial Government
employees at the same time.
The U.S. Supreme Court in 1973 in affirming the validity
of the Hatch Act, noted that it represented
"a judgment made by this country over the last
century that it is in the best interest of the
country, indeed essential, that federal service
should depend upon meritorious performance rather
than political service, and that the political
influence of federal employees on others and on
the electoral process should be limited."
The Hatch Act is intended to strike a delicate balance
between fair and effective government and the First Amendment
rights of individual employees. It has been successful, in
my opinion, in striking that balance.
H.R. 8617 is bad law in other respects. The bill's
SERVICE VCRD
provisions for the exercise of a Congressional right of
disapproval of executive agency regulations are Constitu-
tionally objectionable. In addition, it would shift the
responsibility for adjudicating Hatch Act violations from
3
the Civil Service Commission to a new Board composed of
Federal employees. No convincing evidence exists to
justify this shift. However, the fundamental objection
to this bill is that politicizing the Civil Service is
intolerable.
I, therefore, must veto the measure.
FORD LIBRARY
THE WHITE HOUSE,
TO THE HOUSE OF REPRESENTATIVES:
I am today returning, without my approval, H.R. 8617,
a bill that would essentially repeal the Federal law
commonly known as the Hatch Act, which prohibits Federal
employees from taking an active part in partisan politics.
The public expects that government service will be
provided in a neutral, nonpartisan fashion. This bill
would produce an opposite result.
Thomas Jefferson foresaw the dangers of Federal
employees electioneering, and some of the explicit Hatch
Act rules were first applied in 1907 by President Theodore
Roosevelt. In 1939, as an outgrowth of concern over politi-
cal coercion of Federal employees, the Hatch Act itself was
enacted.
The amendments which this bill make to the Hatch Act
would deny the lessons of history.
If, as contemplated by H.R. 8617, the prohibitions
against political campaigning were removed, we would be
endangering the entire concept of employee independence
and freedom from coercion which has been largely success-
ful in preventing undue political influence in Government
programs or personnel management. If this bill were to
become law, I believe pressures could be brought to bear
FORD ARARY
on Federal employees in extremely subtle ways beyond the
reach of any anti-coercion statute so that they would
inevitably feel compelled to engage in partisan political
activity. This would be bad for the employee, bad for the
government, and bad for the public.
Proponents of this bill argue that the Hatch Act limits
the rights of Federal employees. The Hatch Act does in fact
restrict the right of employees to fully engage in partisan
2
politics. It was intended, for good reason, to do precisely
that. Most people, including most Federal employees, not
only understand the reasons for these restrictions, but
support them.
However, present law does not bar all political activity
on the part of Federal employees. They may register and vote
in any election, express opinions on political issues or
candidates, be members of and make contributions to political
parties, and attend political rallies and conventions, and
engage in a variety of other political activities. What
they may not -- and, in my view, should not -- do is attempt
to be partisan political activists and impartial Government
employees at the same time.
The U.S. Supreme Court in 1973 in affirming the validity
of the Hatch Act, noted that it represented
"a judgment made by this country over the last
century that it is in the best interest of the
country, indeed essential, that federal service
should depend upon meritorious performance rather
than political service, and that the political
influence of federal employees on others and on
the electoral process should be limited."
The Hatch Act is intended to strike a delicate balance
between fair and effective government and the First Amendment
rights of individual employees. It has been successful, in
my opinion, in striking that balance.
H.R. 8617 is bad law in other respects. The bill's
provisions for the exercise of a Congressional right of
disapproval of executive agency regulations are Constitu-
tionally objectionable. In addition, it would shift the
responsibility for adjudicating Hatch Act violations from
3
the Civil Service Commission to a new Board composed of
Federal employees. No convincing evidence exists to
justify this shift. However, the fundamental objection
to this bill is that politicizing the Civil Service is
intolerable.
I, therefore, must veto the measure.
Geould R. Ford
THE WHITE HOUSE,
GREAT R.SURD LIBRARY
April 12, 1976.
TO THE HOUSE OF REPRESENTATIVES:
I am today returning, without my approval, H.R.
8617, a bill that would essentially repeal the Federal
law, commonly known as the Hatch Act, which prohibits
Federal employees from taking an active part in partisan
politics.
This bill runs directly counter to the concept
of a neutral nonpartisan Government service. It would
undermine the merit system which has been carefully
nurtured since enactment of the Civil Service Act in
1883 by opening the door to a return to the spoils
system of the 19th century.
The Hatch Act is designed to assure a fair and
impartial civil service. By precluding active partisan
politics by Federal employees, the Act prevents any
political party or other political power from turning
the Federal workforce into an organized instrument
for affecting the outcome of elections.
The Hatch Act fosters impartial performance by
GREATE FORD LIBRARY
Government employees in administering the laws of the
land regardless of personal political philosophies
and beliefs. This is essential for public confidence
in the Government's business. When the public sees
a Federal employee who is prominently identified with
partisan politics, it will inevitably have doubts about
that employee's impartiality in executing his or her
public duties.
And, further, the Act protects the Federal employee
from coercion for political ends. By limiting the
employee's involvement in partisan political activities,
it serves to assure that employees will not be compelled,
2
or feel themselves compelled, to engage in partisan
political activities in order to curry favor with their
superiors and thereby enhance their prospects for continued
employment and advancement.
The enactment of the Hatch Act in 1939 was a major
milestone in the extended effort, earlier reflected
in the long struggle leading to the Civil Service Act
of 1883, to establish and maintain the principle of
a neutral Federal workforce hired and advanced on the
basis of merit rather than political affiliation or
activity. The 1883 Act was designed to end the spoils
system of the 1820's to the 1880's, when Federal jobs
were used as rewards for political service. The Hatch
Act, in turn, was a direct reaction to widespread abuses
in the 1936 and 1938 elections, when employees were
coerced into making political contributions to get
or keep Federal jobs.
If, as contemplated by H.R. 8617, the prohibitions
against political activism and campaigning were removed,
we would be destroying this entire fabric of employee
impartiality and freedom from coercion, which has been
largely successful in keeping undue political influence
from affecting Government progams or personnel management.
Pressures can be brought to bear on Federal employees
in extremely subtle ways beyond the reach of any anti-
coercion regulation, no matter how tightly drawn it
may be. The employees would find that whatever political
activity is permitted to them may well become that
which is required of them.
It is significant that H.R. 8617 would retain
present Hatch Act provisions for certain employees
of the Department of Justice, the Internal Revenue
3
Service, and the Central Intelligency Agency. The
Congress itself apparently has doubts about the wisdom
of tarnishing the political impartiality of these employees
in carrying out their responsibilities. But what of
the employee responsible for approving or rejecting
a loan or a grant? Or a contracting officer? Or employees
in other law enforcement activities? Or employees
determining benefit rights?
Proponents of this legislation state that the
Hatch Act makes Federal employees "second class" citizens
unable to exercise their full rights under the First
Amendment to participate in the political process.
There is no doubt that the Hatch Act restricts the
rights of employees to engage actively in partisan
politics. It was intended to do precisely that. It
also assures, however, that their careers will be based
on performance and not on political allegiance.
The U.S. Supreme Court has twice ruled that the
Hatch Act is constitutional, most recently in 1973.
At that time, the Court noted that its decision confirms
"a judgment made by this country over the last
century that it is in the best interest of the
country, indeed essential, that federal service
should depend upon meritorious performance rather
than political service, and that the political
influence of federal employees on others and on
the electoral process should be limited."
The Court further stated that Federal employees
"are expected to enforce the law and execute the
programs of the Government without bias or favoritism
for or against any political party or group or
the members thereof. A major thesis of the Hatch
Act is that to serve this great end of Govern-
ment--the impartial execution of the laws--it
is essential that federal employees not, for example,
take formal positions in political parties, not
undertake to play substantial roles in partisan
political tickets. Forbidding activities like
these will reduce the hazards to fair and effective
government."
4
The Hatch Act is intended to strike a delicate
balance between "fair and effective government" and
the First Amendment rights of individual employees.
It has been successful, in my judgment, in striking
that balance.
Under its provisions, employees may register and
vote in any election, express opinions on political
issues or candidates, be members of and make contribu-
tions to political parties, attend political rallies
and conventions, and engage in a variety of other political
activities. What they may not--and, in my view, should
not--do is attempt to be partisan political activists
and impartial Government employees at the same time.
H.R. 8617 is bad law in many other respects.
For example, it contains provisions which represent
an unconstitutional exercise of Congressional power
in disapproving proposed regulations of an Executive
agency. Its main effect, however--politicization of
the civil service--is unacceptable, and I am therefore
vetoing it.
1080
The WHITE HOUSE
April , 1976
TO THE HOUSE OF REPRESENTATIVES:
I am returning herewith, without my approval, H.R. 8617, "To restore
to Federal civilian and Postal Service employees their rights to participate
voluntarily, as private citizens, in the political processes of the Nation,
to protect such employees from improper political solicitations, and for
other purposes."
This legislation would essentially repeal the present provisions of
Federal law, commonly referred to as the Hatch Act, which prohibit Federal
employees from taking an active part in partisan political management or in
partisan political campaigns. This legislation would retain, however, certain
limited restrictions against solicitation of political contributions by a
superior or solicitation in a Government building, and prohibit political
activity while on duty or while in a Government building. Further, it
provides for a Board on Political Activity, and sets forth a requirement
that any regulations promulgated by the Civil Service Commission hereunder
must first be approved by the Congress.
Such a major change in the law would ill-serve the compelling interest
of the Government, and of the public whom it serves, in an impartial and
efficient Government service; it would destroy the basic fabric of a merit
system which has been laboriously built up since 1883; it would heighten
public cynicism toward the manner in which its Government operates; and it
would be a giant step backward toward the Spoils System of the 19th century.
The historical lesson of the Spoils System tells us that intrusion of
partisan considerations into the career civil service, such as that which
occurred from the 1820's to the 1880's, is a detriment not only to civil
ENRO
2
servants but, most importantly, to the public they serve. I see nothing
to be gained by risking a return to such a system.
The Hatch Act is principally designed to serve the objective of an
impartial and efficient civil service. By precluding active partisan
activity, such as in party management or political campaigns, the Act makes
it impossible for the party in power, or any other political power, to turn
the Federal work force into an organized instrument for affecting the outcome
of elections. This concern figured prominently in the enactment of the Hatch
Act in 1939 because such abuses had in fact been widespread in the 1936 and
1938 elections.
Equally important with the concern that partisan political activity may
detract from the impartiality of the performance of Government employees is
the concern that such activities, being observed by the public, will erode
public confidence in the impartial administration of the Federal Government.
When the public sees a Federal employee who is prominently identified with
partisan politics, and at the same time is charged with responsibility for
the impartial, nonpartisan execution of public duties, it will inevitably
have doubts about that employee's impartiality.
Anything which undermines the public's confidence in the impartiality
and efficiency of the Federal civil service is of paramount concern to
this Administration.
The Hatch Act has been very successful, in my judgment, in balancing
the First Amendment rights of individual employees, on the one hand, with
the public's right to an efficiently operating Government, on the other hand.
By limiting the Government employee's involvement in partisan political
activities, the Hatch Act further serves to assure that employees will not
be compelled, or feel themselves compelled, to engage in unwanted partisan
political activities in order to curry political favor with their superiors
3
and thereby enhance their prospects for continued employment and advancement.
Pressures of this sort can be brought to bear on employees in extremely subtle
ways beyond the reach of any anti-coercion regulation, no matter how tightly
drawn it may be.
This entire fabric of employee impartiality and freedom from coercion,
which has been largely successful in keeping undue political influence from
affecting Government programs or Government personnel management, would be
destroyed if, as contemplated by this legislation, the prohibitions against
political management and campaigning were removed. For whatever political
activity is permitted to Federal employees may well become that which is
required of them.
The U.S. Supreme Court has twice ruled on the constitutionality of the
Hatch Act. The wisdom of the Supreme Court, in its most recent determination
that the Hatch Act is constitutional (U.S. Civil Service Commission V.
National Association of Letter Carriers, AFL-CIO, 1973), is worthy of
additional consideration here:
"Such decision on our part (i.e., affirming the
constitutionality of the Hatch Act) would no more than
confirm the judgment of history, a judgment made by
this country over the last century that it is in the
best interest of the country, indeed essential, that
federal service should depend upon meritorious per-
formance rather than political service, and that the
political influence of federal employees on others
and on the electoral process should be limited."
"It seems fundamental in the first place that
employees in the Executive Branch of the Government,
or those working for any of its agencies should
administer the law in accordance with the will of
Congress, rather than in accordance with their own
or the will of a political party. They are expected
to enforce the law and execute the programs of the
Government without bias or favoritism for or against
any political party or group or the members thereof.
A major thesis of the Hatch Act is that to serve this
great end of Government--the impartial execution of the
laws--it is essential that federal employees not, for
example, take formal positions in political parties,
4
not undertake to play substantial roles in partisan
political tickets. Forbidding activities like these
will reduce the hazards to fair and effective government."
Further, I continue to have serious doubt as to the constitutionality
of any provision, such as those at sections 7324(b) (3) and 7331 of this bill,
which would allow Congress to disapprove proposed regulations of an Executive
agency. Such a blurring of the constitutionally authorized functions of
the Executive and Legislative Branches cannot be countenanced.
For these reasons I am unable to approve H.R. 8617.
The White House
April, 1976
To be substituted
TO THE HOUSE OF REPRESENTATIVES:
I am today returning, without my approval, H.R. 8617,
a bill that would essentially repeal the Federal law
commonly known as the Hatch Act, which prohibits Federal
employees from taking an active part in partisan politics.
The public expects that government service will be
provided in a neutral, nonpartisan fashion. This bill
would produce an opposite result.
Thomas Jefferson foresaw the dangers of Federal
employees electioneering, and some of the explicit Hatch
Act rules were first applied in 1907 by President Theodore
Roosevelt. In 1939, as an outgrowth of concern over politi-
cal coercion of Federal employees, the Hatch Act itself was
enacted.
The amendments which this bill make to the Hatch Act
would deny the lessons of history.
If, as contemplated by H.R. 8617, the prohibitions
against political campaigning were removed, we would be
endangering the entire concept of employee independence
and freedom from coercion which has been largely success-
ful in preventing undue political influence in Government
programs or personnel management. If this bill were to
become law, I believe pressures could be brought to bear
GERALD FORD
on Federal employees in extremely subtle ways beyond the
reach of any anti-coercion statute so that they would
inevitably feel compelled to engage in partisan political
activity. This would be bad for the employee, bad for the
government, and bad for the public.
Proponents of this bill argue that the Hatch Act limits
the rights of Federal employees. The Hatch Act does in fact
restrict the right of employees to fully engage in partisan
TO THE HOUSE OF REPRESENTATIVES:
I am today returning, without my approval, H.R. 8617,
a bill that would essentially repeal the Federal law
commonly known as the Hatch Act, which prohibits Federal
employees from taking an active part in partisan politics.
The public expects that government service will be
provided in a neutral, nonpartisan fashion. This bill
would produce an opposite result.
Thomas Jefferson foresaw the dangers of Federal
employees electioneering, and some of the explicit Hatch
Act rules were first applied in 1907 by President Theodore
Roosevelt. In 1939, as an outgrowth of concern over politi-
cal coercion of Federal employees, the Hatch Act itself was
enacted.
The amendments which this bill make to the Hatch Act
would deny the lessons of history.
If, as contemplated by H.R. 8617, the prohibitions
against political campaigning were removed, we would be
endangering the entire concept of employee independence
and freedom from coercion which has been largely success-
ful in preventing undue political influence in Government
programs or personnel management. If this bill were to
become law, I believe pressures could be brought to bear
on Federal employees in extremely subtle ways beyond the
statute
reach of any anti-coercion regulation so that they would
inevitably feel compelled to engage in partisan political
activity. This would be bad for the employee, bad for the
government, and bad for the public.
Proponents of this bill argue that the Hatch Act limits
the rights of Federal employees. The Hatch Act does in fact
restrict the right of employees to fully engage in partisan
94TH CONGRESS
HOUSE OF REPRESENTATIVES
REPORT
1st Session
No. 94-444
FEDERAL EMPLOYEES' POLITICAL ACTIVITIES ACT OF
1975
AUGUST 1, 1975.-Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
Mr. CLAY, from the Committee on Post Office and Civil Service,
submitted the following
REPORT
together with
MINORITY, ADDITIONAL, AND SEPARATE VIEWS
[To accompany H.R. 8617]
The Committee on Post Office and Civil Service, to whom was
referred the bill (H.R. 8617) to restore to Federal civilian and Postal
Service employees their rights to participate voluntarily, as private
citizens, in the political processes of the Nation, to protect such ern-
ployees from improper political solicitations, and for other purposes,
having considered the same, report favorably thereon with amend-
ments and recommend that the bill as amended do pass.
AMENDMENTS
The amendments are as follows:
Page 4, line 22, after "measure" insert "in any election".
Page 5, line 4, strike out "purposes" and insert "the purpose".
Page 6, line 14, insert "(a)" before "An".
Page 6, immediately after line 22, insert the following:
'(b) The provisions of subsection (a) of this section shall not
apply to—
"(1) the President and the Vice President; or
" (2) an individual-
"(A) paid from the appropriation for the White House
Office,
(B) paid from funds to enable the Vice President to pro-
vide assistance to the President, or
"(C) on special assignment to the White House Office,
unless such individual holds a career or career-conditional ap-
pointment in the competitive service.
57-006
RALE RALD FORD LIBRARY
2
3
Page 7, line 6, before the period insert "for the purpose of allowing
PURPOSE
such employee to engage in activities relating to such candidacy".
Page 7, line 13, strike out "section" and insert "sections".
The primary purposes of H.R. 8617 are:
Page 7, line 13, strike out "8324" and insert "7324";
(1) to modify the "Hatch Act" by permitting Federal civilian
Page 7, line 25, strike out "House" and insert "Houses".
and postal employees to-participate voluntarily and as private
Page 11, line 13, strike out "affording" and insert "specifying".
citizens in the political life of the Nation;
Page 17, line 20, strike out "Education" and insert "Educational".
(2) to prohibit the misuse of authority, coercion and certain
Page 17, line 24, immediately after the period, insert the following
activities involving political contributions by Federal civilian and
"The Commission shall inform each employee individually in writing,
postal employees;
at least once each calendar year, of such employee's political rights
(3) to establish an independent Board on Political Activities
and of the restrictions under this subchapter. The Commission may
of Federal Employees to adjudicate alleged violations of the law;
determine, for each State, the most appropriate date for providing
and
information required by this subsection. Such information, however,
(4) to establish a strong mechanism through which the law may
shall be provided to employees employed or holding office in any State
be administered.
not later than 60 days before the earliest primary or general election
COMMITTEE ACTION
for State or Federal elective office held in such State."
Page 19, in the item relating to section 7330 in the analysis, strike
H.R. 3000, the Federal Employees' Political Activities Act of 1975,
out "Education" and insert "Educational".
was introduced by Mr. Clay on February 6, 1975. Subsequently, 10
Page 20, line 5, after "employee" insert a comma.
identical bills were introduced with the cosponsorship of 64 Members
Page 20, line 6, after "title 5" insert a comma.
of the House. The bill was referred to the Subcommittee on Employee
Political Rights and Intergovernmental Programs which conducted
EXPLANATION OF AMENDMENTS
public hearings in Washington, D.C., on March 25, and April 8, 9, and
10, 1975. In addition, field hearings were conducted in Annandale, Va.,
The amendment to page 4, line 22, is a technical amendment to
on April 14; Riverdale, Md., on April 15; St. Louis, Mo., on April 19;
conform the language of section 7323 (a) (2) (A) to that in section
Cleveland, Ohio, on April 21; New York, N.Y., on May 2 and 3; and
7324(2).
Los Angeles, Calif., on June 13, 1975 (hearing Nos. 94-17 and 94-18).
The amendment to page 5, line 4, is a technical amendment which
Testimony was received from the Civil Service Commission, Mem-
corrects a typographical error in section 7323 (b).
bers of Congress, public employee organizations, the National Associa-
The amendment to page 6, line 14, is a technical amendment made
tion for the Advancement of Colored People, public interest groups,
necessary by the committee amendment to section 7325 which added
partisan and nonpartisan civic organizations, and active and former
a new subsection (b).
Federal employees.
The amendment to page 6, immediately after line 22, inserts a new
On July 10, 1975, the Subcommittee on Employee Political Rights
section 7325 (b). The new subsection (b) excludes individuals occupy-
and Intergovernmental Programs approved, by unaminous voice vote,
ing those positions stated in the amendment, from the prohibitions
a clean bill in lieu of H.R. 3000, which was subsequently introduced as
contained in section 7325 pertaining to engaging in political activity
H.R. 8617. On July 24, 1975, the Committee on Post Office and Civil
while on duty, in a Government room or building, or while wearing
Service, by unanimous voice vote, ordered H.R. 8617, with amendments,
a uniform or official insignia.
reported to the House.
The amendment to page 7, line 6, is a technical amendment which
conforms the language of section 7326 (b) to that in section 7326 (a).
SUMMARY OF PROVISIONS
The amendments to page 7, lines 13 and 25, are technical amend-
ments which correct typographical errors in the introduced bill.
H.R. 8617, as reported by the full committee, includes the following
The amendment to page 11, line 13, and page 17, line 20, are tech-
provisions:
nical amendments which correct the wording of section 7328 (2) (C)
States that Federal employees are encouraged to exercise their
and the section heading for section 7330.
right of voluntary political participation.
The amendment to page 17, line 24, adds three new sentences at the
Prohibits the use of official authority, influence, or coercion with
end of section 7330 (a) to require the Civil Service Commission to an-
respect to the right to vote, not to vote, or to otherwise engage in
nually inform each employee, individually in writing, of each em-
political activity.
ployee's political rights and the restrictions under subchapter III of
Prohibits use of funds to influence votes; solicitation of political
chapter 73 of title 5, as amended by the bill.
contributions by superior officials; and making political contribu-
The amendment to page 19, in the item relating to section 7330 in the
tions in Government rooms or buildings.
analysis, is a technical amendment to conform the analysis to the head-
Prohibits political activity while on duty, in Federal buildings,
ing of section 7330, as amended.
or in uniform.
The amendments to page 20, lines 5 and 6, are technical amendments
Authorizes leave for candidates for elective office.
which add two commas to section 2(c) of the bill.
4
5
Establishes an independent Board on Political Activities of
ments. If and when the District of Columbia enacts such legislation,
Government Personnel whose function is to hear and adjudicate
the committee will consider excluding District of Columbia employees
alleged violations of law.
from this legislation.
Authorizes the Civil Service Commission to investigate)alleged
Indirect coercion
violations of law and provides for subpena authority, duelprocess,
and judicial review of adverse decisions.
The Civil Service Commission is concerned that it will encounter
Subjects violators of law to removal, suspension or lesser penal-
difficulty in enforcing the bill's prohibition against indirect coercion
ties at the discretion of the Board.
and misuse of authority. Notwithstanding this reservation, the com-
Requires that the Civil Service Commission conduct a program
mittee is confident that the Commission will successfully implement
for informing Federal employees of their rights of political
this provision with the same vigor with which it has reportedly dealt
participation and report annually to the Congress on its
with the equally subtle acts of racial, religious, and sexual discrimina-
implementation.
tion in the Federal merit system.
Political activity on duty
STATEMENT
The committee is sensitive to the abuses of the merit system which
The Hatch Act was enacted in an effort to protect Federal employees
occurred during recent administrations. It adopted an amendment ex-
from improper involvement in partisan political activities. Previous
cluding the President, the Vice President and noncompetitive em-
studies, public hearings, and staff surveys reveal no evidence that
ployees in the White House from the prohibition against political
voluntary political activity in any way erodes the integrity of the merit
activity while on duty or in Government rooms or buildings. The com-
system nor operates against the public interest.
mittee is mindful that this prohibition might be impractical and diffi-
Existing law which actually incorporates over 3,000 administrative
cult to enforce. The committee does, however, believe that the partisan
determinations, is vague, overly broad, and infringes upon the right
political activities of the President and Vice President should be the
of every American to participate fully and completely in the political
responsibility of the appropriate political organizations. It is impera-
life of this Nation. Some quarters suggest that since Federal employees
tive that such activities be kept as far removed from the official duties
retain the right to vote, they enjoy adequate participation in the
of the President and the Vice President as the public interest will
political process. This conclusion could not be endorsed by the
permit.
committee.
Leave of absence to seek elective office
H.R. 8617 takes these facts into consideration. It prohibits those
The bill requires that Federal employees, upon request, must be
involuntary political activities which tend to erode public confidence
granted accrued annual leave and leave without pay in order to seek
in the integrity of the merit system. It establishes an independent
party or public elective office. Such leave, if requested, must be granted,
Board to adjudicate alleged violations, freeing the Commission to
thereby precluding the hindering of such candidacy by superior offi-
focus its efforts upon its investigatory and educational responsibilities.
cials. To require that Federal employees seeking elective office must
It provides due process and judicial review for Federal employees.
take leave without pay would give an advantage to those individuals
The bill does not effect existing law relating to the political activ-
who are fortunate enough to have adequate resources to meet their per-
ities of State and local government employees. Section 401 of the
sonal and familial responsibilities during a campaign.
Campaign Reform Act of 1974 addressed that issue. (See 5 U.S.C.
The committee considered and rejected an amendment to require
Ch. 15).
that employees who seek Federal or Statewide elective public office
Excepted employees
take leave without pay. Such a requirement is inconsistent with the
Presently, the disciplining of employees in the excepted service,
purpose of this legislation-to stimulate broad participation in the
other than Presidential appointees, is the responsibility of the agency
Nation's political process by Federal civilian and postal employees.
head, not the Commission. The legislation corrects this inconsistency
Further, candidacy for such offices would necessarily require a full-
by making the Commission responsible for the investigation of all
time effort. Under these circumstances any Federal employee would
alleged violations of the law by employees as defined in the bill. The
most likely elect to take leave.
Board is responsible for the adjudication of alleged violations and the
Board on political activities
imposition of penalties upon employees.
The bill establishes a Board on Political Activities of Federal Em-
District of Columbia
ployees whose function is to hear and to adjudicate alleged violations
The committee recognizes the imperative of self-government for the
of the law. In creating this independent three member Board, com-
District of Columbia. It considered excluding employees of the Dis-
posed of Government employees the committee has attempted to de-
trict of Columbia from this legislation at such time as that Government
lineate a clearer line of responsibility between the educational and
enacts legislation governing the political activity of its employees.
investigatory functions of the Commission, on the one hand, and the
This possibility was rejected by the committee because of legal impedi-
adjudicative functions of the Board on the other hand.
6
7
Investigatory procedures
available to State and local employees under section 1508 of title 5,
The 1967 Commission on Political Activity of Government Person-
United States Code. The bill corrects this inequity and affords this
nel found a significant time lapse between the filing of complaints and
right to Federal employees. In addition, a stay of the application of a
their disposition. Administrative delays in the processing of com-
penalty, preserving the status quo, is available. Thus, the bill guards
plaints are intolerable.
against irreparable injury to the employee pending review. The bill
This legislation ensures employees the right to timely adjudication
further permits the award of attorney fees, should the court find that
of complaints while adequately protecting and safeguarding the inter-
an employee has been wrongfully penalized.
ests of the employees, agencies, and the public.
It establishes specific time frames within which complaints must be
Educational programs
processed. Simple equity and justice dictate these improvements in the
As matters now stand, employees are generally confused as to where
administration of the law.
and how to report alleged violations of the law regulating the political
It is expected that any employee who is the subject of Commission
activity. The committee believes that the Commission can and should
or Board action in the investigation or adjudication of a complaint
be more aggressive in conducting an educational program for educat-
will be permitted representation by an individual or organization of
ing Federal employees about their political rights. The Commission on
his own choosing, if he SO desires.
Political Activity of Government Personnel recommended that such a
role could be fulfilled by an Office of Employees' Counsel and recom-
Penalties
mended that the Commission undertake a feasibility study on the
Under existing law, penalties for violations of the law are overly
establishment of such an office. No action was taken on this recommen-
severe. Removal from office is required for any violation, unless the
dation by the Commission.
Commission unanimously votes against removal. In such an event,
The committee wishes to note its concern that the Commission has
a minimum penalty of 30 days' suspension without pay must be im-
been of limited effectiveness in conducting a program for educating
posed. There is no opportunity for the Commission to temper the
each Federal employee as to what does and does not constitute permis-
penalty in accordance with any unique conditions concerning violation.
sible political activity.
To maintain a deterrent effect, while providing discretion to the
The committee expects that the Commission will undertake its educa-
Board in imposing penalties, the bill permits the Board by a simple
tional program and evaluation in active and meaningful consultation
majority vote, to impose any penalty ranging from a warning to re-
with appropriate employee organizations. Such consultations can and
moval from office.
should be initiated immediately upon enactment of this legislation.
The bill further removes the present permanent bar upon reemploy-
The committee further believes that it is imperative that the Com-
ment in the same agency for violators of the act. In many cases this
mission, in investigating complaints of alleged violations of law, not
is a harsh penalty for the agency as well as the individaul and is
simply react to such allegations but aggressively seek and initiate ap-
counterproductive to the public interest.
propriate investigations. For any number of reasons, employees may
Subpena authority
not file formal complaints.
The bill requires that the Commission notify each employee of per-
Under existing law, the Commission has no authority to require,
missible and prohibited political activities. It is the intent of the com-
by subpena, testimony from potential witnesses. Without this author-
mittee that this information be provided in as economic a manner as
ity, it is sometimes difficult for the Commission to secure the necessary
circumstances permit. If, for example, the Commission should deem
evidence in proceedings where employees are reluctant to testify
it appropriate to distribute this information via employees' pay checks,
against a superior, coworker, friend, or neighbor.
the committee is hopeful that it would secure the active cooperation
Subpenas and orders for taking depositions can only be issued by
and support of appropriate Federal agencies.
a member of the Board. The committee intends, however, that to assist
the Commission in its investigatory activities and to assist employees
Administrative support for the Board
in their defense to charges, the Commission and employees will seek
The bill requires that suppport for the Board be provided by the
such subpenas and orders from the Board when circumstances dictate.
Commission and the General Services Administration. Two factors
The bill further provides for the granting of immunity from prose-
influenced the committee's decision in this area. Indications are that,
cution to employees whose testimony is compelled under subpena.
in all likelihood, there will be few cases requiring Board action. This
The Commission or the Board may, in its discretion, proceed with
judgment is based upon an analysis of the nature and number of
any investigation or adjudication, notwithstanding the fact that crimi-
previous complaints of alleged violations of the Hatch Act. The com-
nal prosecution may be pending or contemplated.
mittee will observe developments in this area, and, should circum-
stances dictate, will consider appropriate legislation to deal with this
Judicial review
issue.
Existing law makes no provision for judicial review of the Commis-
sion's decisions regarding Federal employees. That right is expressly
9
8
the coercion of public employees to engage in political activity. Presi-
BACKGROUND
dent Hayes was subsequently severely criticized by President James
A. Garfield for "trying to effect a reform without legislative aid."
Historical background of the regulation of political activity of Gov-
(Letter of James A. Garfield to Burke A. Hindsdale, July 25, 1880,
ernment employees
Garfield Letter Book, James A. Garfield Papers (Manuscript Divi-
A review of congressional and executive proposals for the regulation
sion, Library of Congress).)
of political activity by Federal civilian employees reveals that until
Protection for Federal officers from removal from office for political
1939, the legislative branch never determined that a blanket prohibi-
reasons was accomplished under President Garfield's successor, Presi-
tion on voluntary political activity by Federal employees was neces-
dent Chester Arthur, with the passage of the Pendleton Civil Service
sary to protect either the integrity of the Federal merit system or the
Act of 1883. That Act established the Civil Service Commission and
political process. From the first Congress in 1791 through 1939, the
protected Federal employees from politically motivated removal from
Congress refused to imposed such restraints on the grounds that they
office. It did not prohibit voluntary political activity. The classified
were unconstitutional.
service, over which the Civil Service Commission had authority, con-
Prior to 1939, all regulation of the political activity of Federal civil
stituted only about 10.5 percent of the total executive civil service work
service employees was imposed by the executive branch. With the
force of 131,208 positions. (Civil Service Commission, the Classified
enactment of the Hatch Act in 1939, over 3,000 prior administrative
Executive Service of the United States Government 4 (1932).)
determinations of the Civil Service Commission were incorporated
President Grover Cleveland refined the force of the Commission's
into law.
rules governing the political activities of Federal employees in 1886,
Earlier, legislative attempts to limit the extent to which Federal
when he issued a circular permitting Federal employees substantially
employees could participate in voluntary political activities were suc-
greater political participation. He made it clear that he was not con-
cessfully opposed in the Congress on the grounds that such restric-
demning political activity in a blanket fashion. He expressed his con-
tions unduly infringed upon the constitutional rights of free speech
cern about the use of official positions in attempts to control political
and free association. Employees were forbidden to use their authority
movements in the following paragraph:
or influence for the purpose of interfering with or coercing other em-
ployees or program beneficiaries.
Individual interest and activity in political affairs are by
no means condemned. Officeholders are neither disfranchised
In 1791, a proposed amendment to limit the political activities of
inspectors of distilled spirits was defeated in the House by vote of
nor forbidden the exercise of political privileges, but their
37 to 21 on the grounds that, "this clause will muzzle the mouths of
privileges are not enlarged nor is their duty to party in-
freemen, and take away their use of their reason." (Annals of Cong.
creased to pernicious activity by officeholding. [Emphasis
1877 (1791).) In 1801, during Jefferson's administration, restrictions
added.] (8 Richardson, Messages and Papers of the Presi-
were proposed by the administration but were not implemented. Later,
dents 494-95 (1898).)
in 1838, a bill to prevent interference by Government officers with elec-
This circular governed the political activities of Government em-
tions was introduced in the Senate by Senator Crittendon of Ken-
ployees until President Theodore Roosevelt issued Civil Service Rule I
tucky. The Senate Committee on the Judiciary made an unfavorable
in 1907.
report on the Crittendon bill, calling it, "unjust, unequal, impractical,
Civil Service Rule I, drawn from President Roosevelt's Executive
impolitic, tyrannical and unconstitutional." (Cong. Globe, 25th Cong.,
Order No. 642, prohibited all persons in the classified service from
2d Sess. Appendix, at 160 (1839).) The bill was defeated by vote of
taking an "active part in political management or political cam-
28 to 5.
paigns." (Twenty-fourth Ann. Rep. of the United States Civil Service
Action to limit the political activities of Government employees was
Commission 104 (1907).)
taken by Secretary of State Daniel Webster in 1841. He proscribed,
Theodore Roosevelt had served as a Civil Service Commissioner
under penalty of removal, "partisan interference in popular elections"
from 1889 to 1895. He was frustrated by the Commission's lack of
in order that elections "shall be free from undue influence of official
enforcement authority over a system in which only 25 percent of the
station and authority," and "opinion shall also be free among the of-
employees were classified. The "spoils" system controlled appoint-
ficers and agents of the Government." (Fowler. "Precursors of the
ments to 75 percent of all Federal offices. In 1894, while admitting
Hatch Act," 47 Miss. Valley Hist. Review 253 (1960).) Webster's ac-
that no rule governing partisanship in the classified service had been
tion did not proscribe voluntary partisan political activity. There were
authoritatively construed and that the Commission did not have
few other attempts to control the political activities of Federal em-
proper authority to issue such a rule, Roosevelt stated his idea of
ployees during this period.
what such a rule should be.
President Rutherford B. Hayes, in 1877. issued an Executive order
A man in the classified service has an entire right to vote
providing that "no officer should be required or permitted to take
as he pleases, and to express privately his opinions on all
part in the management of political organizations, caucuses. conven-
political subjects; but he should not take any active part in
tions, or election campaigns. (7 Richardson, Messages and Papers of
political management or political campaigns. (Eleventh Ann.
the Presidents, 450-451, (1898).) The order was aimed at preventing
Rep. of the Civil Service Commission 20-21 (1894).)
H. Rept. 94-444-2
10
11
This language is, of course, almost identical to that of the 1907 Rule
On March 30, 1939, the Senate Committee on the Judiciary reported
and the 1939 statute.
S. 1871. No public hearings were conducted on the bill nor was there
On May 27, 1938, a special Senate committee was appointed to
much comment on the bill when it reached the Senate floor.
investigate charges that Federal public assistance monies were being
A motion by Senator Guffey to reconsider was withdrawn when
utilized to influence Federal and local elections. Chaired by Senator
Senator Hatch explained that section 9 of the bill did not apply to
Morris Sheppard of Texas, the committee found that the common
policymaking officials in the executive branch. Actually, there was no
feature of abuses was coercion or intimidation of Government em-
such express exemption in the bill. Express exempting language was,
ployees or relief recipients to change party affiliation or to support
however, subsequently added by the House. The bill passed the Senate
party interests. The committee found that Federal public assistance
by unanimous consent.
funds were often diverted for political purposes. It recommended that
In the House, S. 1871 was referred to the Committee on the Judiciary.
such practicés be made subject to criminal penalties.
The measure was reported, without public hearings, on July 5, 1939,
The Sheppard committee considered instances of voluntary political
with an amendment deleting the prohibition against taking an active
activity by Federal employees. In each case it found that such activity
part in political campaigns and the langauge dealing with the right of
did not constitute grounds for criticism. Its report contained no find-
employees to vote and express political opinions.
ing that the effectiveness of the Federal work force was compromised
On the House floor, S. 1871 was the subject of lengthy debate. Much
by voluntary political activity.
of the discussion centered around section 9, which prohibited the mis-
At the time, "New Deal" relief programs had expanded the Federal
use of official authority or active political management. Representa-
work force considerably. Many needy persons placed on the Federal
tives Celler and Hobbs objected to the bill because it was overly broad.
payrolls were not in classified positions and therefore were not subject
Mr. Celler contended that the measure should concern itself solely with
to the regulations governing partisan political activities administered
the political activities of those in relief agencies, while Mr. Hobbs cau-
by the Civil Service Commission. It has been estimated that of the
tioned against prohibiting all political activities by Government em-
total Federal work force of 953,891, only about 305,245, or about 32
ployees, rather than just prohibiting pernicious political activities.
percent, were in the competitive civil service.
On the other hand, Representative Dirksen warned that, without
A directive from the WPA program director that candidates or
the prohibitions of section 9, the Federal service might become a politi-
holders of elective office were prohibited from holding administrative
cal machine. Several House Members voiced fears that the measure
capacities in WPA was eventually incorporated in WPA appropria-
might place overly stringent controls on the political activities of Cabi-
tion bills, beginning in 1936. Shortly thereafter, Senator Carl Hatch
net officers and other policymaking employees.
of New Mexico failed in his effort to add an amendment to the WPA
When a vote was finally taken on the committee amendment, the pro-
1938 appropriation bill making administrative employees of the WPA
hibition against taking an active part in political management was de-
subject to the same restrictions imposed upon civil service workers by
feated. Mr. Hobbs then proposed to amend section 9 to provide that all
Rule I of the Civil Service Commission. The amendment was defeated
persons shall retain the right to vote as they please and to express their
in the Senate.
opinions on all political subjects. This amendment, which was adopted
The Sheppard Committee reported to the Congress on January 3,
by the House, setill omitted the language prohibiting Federal employ-
1939. Two months later, during the first session of the 76th Congress,
ees from taking an active part in political campaigns.
Senator Hatch introduced legislation incorporating the Committee's
Following adoption of the Hobbs amendment, the House considered
recommendations into a single measure (S. 1871) forbidding any in-
an amendment to section 9, offered by Representative Dempsey, which
volvement in the affairs of a political organization by Federal em-
(1) Specified that only executive branch employees would be
ployees working in nonpolicy making positions.
be covered by section 9, whereas, under the original language, the
Summary of the legislative history of the Hatch Act
section would have applied to all Federal agency employees;
As introduced by Senator Hatch on March 20, 1939, S. 1871 con-
(2) Added to the prohibition against taking an active part in
tained various criminal provisions which were finally enacted and
political management by barring nonexempt executive branch em-
codified in title 18, United States Code. In addition, S. 1871 prohibited
ployees from taking an active part in political campaigns; and
Federal administrative or supervisory employees from using their
(3) Specified that senior policymaking officials in the executive
official authority to influence an election or from taking an active part
branch would be exempt from the prohibition against political
in political campaigns. The penalty for violation of the law would be
campaigning.
removal from Government service. The bill also provided that an
The Dempsey amendment was approved and became part of the final
employee retained the right to vote as he chose and to privately express
measure adopted by Congress and signed into law by the President on
his opinion on political subjects. This language was the forerunner of
August 2, 1939 (53 Stat. 1147). The language of section 9 has remained
the Hatch Act prohibition which is now codified as section 7324 of
basically unchanged.
title 5, United States Code.
The enactment of the Hatch Act thus extended the proscriptions
of Civil Service Rule I from 68 percent to almost all of the 953,891
Federal employees.
12
13
Since its adoption in 1939, the most significant amendment to the
Hatch Act occurred in 1940, with the enactment of Public Law 76-753.
In Great Britain, employees are divided into three categories-in-
In summary that law provided the following: (1) extended the po-
dustrial and nonindustrial workers (composed of service, maintenance
litical activity prohibitions to District of Columbia employees and to
and manipulative employees) ; an intermediate group (technical and
clerical services and lower professional and administrative cate-
State and local government employees whose principle employment
is in connection with a federally funded activity; (2) permitted Fed-
gories) ; and, senior civil servants (executive classes; those in execu-
tive, professional, scientific, technical, and administrative classifica-
eral employees, residing in certain areas where a majority of the voters
tions).
are Federal employees, to take part in local political matters; (3)
amended Federal campaign laws by placing a limitation on certain
Industrial and nonindustrial workers are free to engage in political
contributions and expenditures; and (4) redefined the prohibitions
activity, they can run for elective office but must resign if they run for
Parliament, although they retain full reinstatement rights to return
against taking an active part in political campaigns by incorporating
to active service. The intermediate group is free to take part in all
in the statute over 3,000 prior administrative determinations of the
political activities, with the permission of their department head, ex-
Civil Service Commission.
cept Parliamentary candidature (they may run for local office without
Regulation of political activities of Government employees in other
departmental permission). Senior civil servants are barred from tak-
nations
ing part in national political activities. With permission, they may
The subcommittee conducted a study of the prevailing practices in
participate in political activities on the local level.
several other democratic nations with respect to the regulation of vol-
In West Germany, civil servants have the right of expression-with
untary political activities by public employees. The countries sur-
moderation and restraint. They must not divulge information obtained
veyed were Sweden, France, Australia, Great Britain, West Germany,
through government employment. Public officers have, through profes-
Canada, and Japan.
sional associations acting as pressure groups, become party activists
In Sweden, civil servants enjoy the same political rights as other
and legislators. Government employees, on duty or acting in any
citizens. They may join a political party, work actively in its behalf
official capacity, must refrain from any political activity. Anyone who
and become a candidate for Parliament. The Swedish Parliament
wishes to run for Parliament must be given a leave of absence. If
contains a number of public employees who continue to receive a part
successful, the employee must resign from the civil service. After
of their pay as public workers as well as the normal compensation
that the general civil service requirements are met.
completing a term of office a civil servant may be reinstated provided
attached to the legislative office they hold. The only restrictions
placed on public employees are that they must be objective in ful-
In Canada, deputy heads and employees are not permitted to par-
filling their official duties; they are not permitted to participate in
ticipate actively in any election for membership in the House of Com-
activities of political parties in their official capacity; and they must
mons, the provincial legislatures and the Councils for the territories.
carry out the orders of their superiors even though complying with
such orders is contrary to their own political views.
They may attend, however, political meetings and make contributions
They may not work for, on behalf of, or against any political party.
In France, civil servants are divided into two groups. The great ma-
to political funds. Employees may request a leave of absence without
jority of them have complete freedom to become members of political
pay in order to become a candidate for national or local office. They
parties and to participate in their activities. Those who hold positions
if unsuccessful.
must resign if successful. They may return to their former positions
of responsibility (prefects-direct agents of the government) must show
greater reserve-that is, they must not disclose the fact that they are
In Japan, prior to 1947, classified government employees were
civil servants when engaged in political activities, nor use informa-
permitted unlimited voluntary political participation. As a result, one
tion which they have acquired by virtue of their office, nor stand for
political party was established within the government which fre-
election within the area of their prefecture (nor may they stand there
quently obstructed national policy. At the conclusion of World War II
until after they have left the area for 6 months). All other civil serv-
hostilities, the Commander of the Army of Occupation decreed that
ants can run for election to Parliament (leave with pay status) while
adequate safeguards should be established to protect the public
in active service. If elected they are placed in detached service but are
against interruption of services by public employees. Shortly there-
taken back in, if they desire, when they relinquish their seat in Parlia-
employees. after, the Japanese government outlawed all political activities by its
ment. While serving in Parliament, they retain all pension and promo-
tion rights as if they had never left active service.
Hearings
In Australia, public servants may express opinions freely at all
levels. The only prohibition on political expression is that they may
Political Rights and Intergovernmental Programs on H.R. 3000
The public hearings conducted by the Subcommittee on Employee
not divulge departmental information. They can run for Parliament
constituted the first extensive congressional hearings held on the
but must resign from the civil service before or upon nomination for
regulation of political activity of Government employees. There: was
election. (Public servants may contest state elections without resign-
widespread agreement among nonadministration witnesses that the
ing if the applicable laws of an individual state permits). They have
full reappointment rights if they fail to be elected or desire to return
Hatch Act was antiquated, repressive, overly broad and vague,, and
after completing their term in office.
ings-4 in Washington and 7 in various cities around the country.
in need of revision. The subcommittee held 11 days of public hear-
14
15
Two evening sessions were conducted in Annandale, Va., and River-
Still another employee who attempted to become involved in com-
dale, Md., in order to receive testimony from active and retired Federal
munity service came up against big business interests which aimed to
employees and others who were deeply interested in the bill. The public
destroy a local park in favor of an industrial site. Local citizens asked
participation in these hearings was impressive.
him to take up the banner of saving the environment. The employee
In all, the subcommittee received testimony from 107 witnesses-
discontinued his activities when he was told by his employing agency
individuals, employee organizations, civil rights groups, and local and
that if he continued he would be found in violation of the Hatch Act.
national elected officials. Of the 107, 86 expressed support for amend-
As he stated to the subcommittee:
ing the Hatch Act while only 21 wanted to retain the present Act.
Because I was a federal employee
my effectiveness as
The overwhelming sentiment which surfaced during these hearings
a spokesman for the citizens in the [Park] matter were cur-
was that the Hatch Act was overly broad, vague, and repressive in
tailed, the city administration used it as a club, and the cor-
nature, and that it infringed upon the constitutionally guaranteed
poration had its way. We lost the part, and just as I had pre-
rights of free speech and free association.
dicted, my neighborhood is deteriorating, blight has set in,
Thomas Matthews, an attorney and consultant to the bipartisan
and many of our influential neighbors have moved. Our home
independent Commission on Political Activities of Government
values have gone down and pollution is destroying us.
Personnel stated:
No conclusive evidence was presented during the hearings that vol-
The vagueness and confusion of the present statute makes
untary political activity by Federal employees endangered the in-
it a sword of Damocles constantly hanging, uncertainly, over
tegrity of the merit system. All witnesses agreed that coercive or in-
the heads of millions of federal employees. That uncertainty
voluntary political activity was an area which must be controlled in
inhibits them in the exercise of rights protected by the First
order to safeguard Federal employees against possible abuses of offi-
Amendment and encourages them to exercise self-censorship
cial authority.
beyond the actual prohibitions of the statute because it is diffi-
The committee differentiates between voluntary and involuntary
cult, if not impossible, to determine the reach of the law with
political activity and aims to prevent the latter which does erode the
confidence.
integrity of the merit system. Witnesses suggested the best way to ac-
Numerous active and retired Federal civilian employees who came
complish this was through a listing of those activities which clearly
before the subcommittee attested to the fact that they were hesitant to
operated against the public interest and which should therefore be
participate voluntarily in the political life of this Nation because they
prohibited.
were uncertain as to exactly what they could or could not do.
Criticism was also leveled against the Commission's lack of active
Many witnesses were unfamiliar with existing regulations govern-
enforcement of the Hatch Act. Witnesses suggested that adjudications
ing political activities of Federal employees. This comes as no sur-
of alleged violations of law should rest with an independent tribunal
prise when one reviews the regulations issued by the Civil Service Com-
leaving the Commission to conduct investigations of complaints and to
mission-they are contradictory, ambiguous and confusing. These reg-
undertake a educational program to inform Federal employees as to
ulations, along with the over 3,000 administrative determinations made
their political rights.
by the Commission which constitute the Hatch Act, would make any
Witnesses also complained that the current penalties under the
Federal employee fearful of becoming politically involved. Instead,
Hatch Act were too severe. Existing law requires that any infraction
employees tend to sit back and "play it safe." Incongruously, at a time
be punished by removal from office, unless, by unanimous vote, the
when this country should be encouraging active participation by its
Commission decides otherwise.
citizens, almost 3 million Federal employees have been politically
The consensus was that penalties should be of a civil nature and
should be applied according to the circumstances involved. Clarence
sterilized.
Case after case presented before the subcommittee conclusively dem-
Mitchell of the NAACP addressed himself to ths issue:
onstrated the undue hardship imposed by the Hatch Act upon Federal
It must be remembered that the Hatch Act was passed at a
employees. Several reported incidents involved Federal employees who
time when fines and jail sentences were almost routinely
could not take an active role in the campaign of their spouse for
added to new laws. There is little to show that such penalties
elective office. According to a witness from New York:
have improved the quality of society nor have they kept
I must be left SO to speak in the "dog house" stuck with
wrongdoers from carrying out schemes against the public
interest.
babysitting at home while my wife as a county committee-
SECTION ANALYSIS
woman is allowed full freedom. It is indeed very frustrating
for me not to enjoy this political freedom especially since it
The first section provides that this Act may be cited as the "Federal
would take place when I'm off duty from my job and there-
Employees' Political Activities Act of 1975".
fore would not present a conflict of interest in performing my
Subsection (a) of section 2 of the bill amends subchapter III of
duties on the job.
chapter 73 of title 5, United States Code, by rewriting seven existing
Another employee ran for public office to seek improvement of the
sections (5 U.S.C. 7321-7327) and adding four new sections (5 U.S.C.
conditions in state mental hospitals-he was found in violation of the
7328-7331). The revised and expanded provisions of subchapter III
Hatch Act and removed from his position.
are explained below by code section references.
17
16
given consent for any other person to receive political contributions
Political participation
or make expenditures, with a view to bringing about that individual's
Section 7321 sets forth the policy of the Congress that employees
nomination for election, or election.
should be encouraged to fully exercise, to the extent not expressly pro-
Paragraph (3) defines "political contribution." The committee in-
hibited by law, their rights of voluntary political participation in the
tends that this definition be given a broad interpretation.
political processes of the Nation. The phrase "should be encouraged to
Subparagraph (A) of paragraph (3) provides that "political contri-
the committee's belief that any legislation restricting political
fully exercise, to the extent not expressly prohibited by law", reflects activi-
bution" means a gift, subscription, loan, advance, or deposit of money
or anything of value, made for the purpose of influencing the nomina-
ties by employees should do SO expressly, and that in the absence of an in
tion for election, or election, of any individual to elective office or for
express prohibition, an employee may, of his own volition, engage
the purpose of otherwise influencing the results of any election. The
any political activity.
phrase "anything of value" is intended to include the use of real or
In this regard, the bill includes, in most instances in revised langu-
personal property and the rendering of any personal service. The
those prohibitions in the Criminal Code which pertain to political
phrase "for the purpose of otherwise influencing the results of any
age, activities of Federal employees (see, 18 U.S.C. 594, 597, 599, 600, 601,
election" reflects the committee's intent that contributions made to
602, 603, 606, 607). In other instances the bill includes, with minor
influence the results of elections relating to matters other than political
revisions, definitions in the Criminal Code (see, 18 U.S.C. 591 (b)
office, for example, bond issues or local referenda, are included within
and (e)).
the term "political contribution".
With the inclusion of these provisions the committee intends this bill of
Subparagraph (B) provides that the term "political contribution"
to serve as a codification of the restrictions on political activities
includes a contract, promise, or agreement, express or implied, whether
the bill amends to permit certain previously prohibited activities by
employees. With the exception of sections 602 and 607 of title 18, which
or not legally enforceable, to make a political contribution.
Subparagraph (C) provides that the term "political contribution"
employees, the criminal provisions remain unchanged. Accordingly. criminal
also includes the payment by any person, other than a candidate or a
activity by an employee which violates one or more of the by
political organization, of compensation for the personal services of an-
provisions any cited above (including sections 602 and 607, as amended 7325
other person which are rendered to a candidate or political organiza-
the bill), would also constitute a violation of section 7323, 7324, or
tion without charge.
of title 5, as amended by the bill.
Paragraph (4) defines "superior" to mean an employee, other than
the President or the Vice President, who exercises supervision of, or
Definitions Section 7322, consisting of 6 numbered paragraphs, defines various
control or administrative direction over, another employee. The defi-
nition is intended to include those employees who, through the exer-
terms for purposes. of subchapter III.
Paragraph (1) defines "employee" to mean any individual, includ- office
cise of the authority of their position, may influence or affect the career
ing the President and the Vice President, employed or holding of
advancement or working conditions of other employees. Thus an em-
in: (A) an Executive agency; (B) the government of the District States
ployee who has the authority to promote (or recommend or approve
Columbia; (C) the competitive service; or (D) the United and
the promotion of) another employee, or to assign work to, or to evalu-
Postal Service or the Postal Rate Commission. Thus, all officers
ate the performance of, another employee would be deemed a
employees of Executive agencies and the District of Columbia,
"superior".
whether they are in the competitive service (see, 5 U.S.C. 2102) or
Paragraph (5) defines "elective office" to mean any elective public
the excepted service (see, 5 U.S.C. 2103) are included in the definition.
office and any elective office of any political party or affiliated organi-
branches who hold positions in the competitive service. Members of
Also included are those employees in the legislative and judicial the
zation. The phrase "elective public office" is intended to include any
Federal, State, or local office which is filled by the election of an in-
uniformed services are specifically excluded from the definition.
dividual. The phrase "elective office of any political party or affiliated
presently found in the Criminal Code (see, 18 U.S.C. 591(b), individ- as
Paragraph (2) defines "candidate." The definition is similar to that
organization" is intended to include offices of a political party or
organization such as committeeperson, convention delegate, president,
or chairperson which are filled by the election of an individual.
ual who seeks nomination for election, or election, to an elective office, is
amended) and provides that the term "candidate" means any
Paragraph (6) defines "Board" to mean the Board on Political At-
whether or not the individual is elected. Thus an individual who
tivities established under section 7327 of title 5, as amended by the bill.
seeking to win a party's nomination in a primary election or in a con- and
Use of official authority or influence; prohibition
vention as well as an individual who has already been nominated defini-
Section 7323 sets forth prohibitions on the use of official authority or
tion. Subparagraphs (A) and (B) of paragraph (2) establish for
is seeking election to a particular office is included within the the
influence for political purposes and defines "use of official authority or
influence".
in time at which an individual is deemed to seek nomination taken
Subsection (b) of section 7323 defines "use of official authority or
point election, or election, as that time when an individual has: (A)
influence for purposes of subsection (a) as including, but not limited to,
the action required to qualify for nomination for election, or election; has
promising to confer or conferring any benefit (such as appointment,
or (B) received political contributions or made expenditures, or
H. Rept. 94-441-3
18
19
promotion, compensation, grant, contract, license, or ruling), or of effect-
pointment, promotion, compensation, grant, contract, license, or
ing or threatening to effect any reprisal (such as deprivation rul- ap-
of votes (see, 18 U.S.C. 597), and it is the intention of the committee
that any act prohibited by the criminal provision also be prohibited by
ing). The parenthetical matters are examples only, and the committee official
these paragraphs.
intends, for purposes of subsection (a) of section 7323, "use of
Paragraph (3) of section 7324 prohibits an employee from know-
authority or influence" to include the conferring, denying or affecting the
ingly giving or handing over a political contribution to a superior of
of any benefit emolument, or other thing which may be within au-
that employee. The phrase "superior of that employee" is intended to
thority of an individual as a government employee to confer, deny, or
limit the prohibition to instances where an employee makes a political
contribution to a superior who has the authority to affect that par-
affect. Subsection. (a) of section 7323 prohibits an employee from using or
ticular employee's employment. Thus, while an employee may not give
attempting to use that employee's official authority or influence, either
a political contribution to another employee who is his superior, an
directly or indirectly, for political purposes. The phrase "directly or
employee is not prohibited from giving a political contribution to an-
indirectly" recognizes that the use of official authority or influence may
other employee solely because the other employee is a superior as de-
often not be manifested in an overt act but instead may be exercised in
fined in paragraph (4) of section 7322. For example, an employee of
a subtle fashion. The committee intends that such subtle use or at-
one agency is not prohibited from giving a political contribution to a.
tempted use of official authority or influence for political purposes be
supervisory employee of another agency.
Paragraph (4) of section 7324 sets forth two prohibitions against the
included in the prohibition of subsection (a).
Paragraphs (1) and (2) of subsection (a) set forth the political pur-
solicitation or receipt of political contributions by employees.
poses for which it is improper for an employee to use or attempt to use
Subparagraph (A) of paragraph (4) prohibits an employee from
knowingly soliciting, accepting, or receiving, or being in any manner
official authority or influence.
Paragraph (1) prohibits the use or attempted use of official author-
concerned with soliciting, accepting, or receiving, a political contribu-
ity or influence for the purpose of interfering with or affecting the re-
tion from another employee (or a member of another employee's im-
sult of any election. This provision is identical to one of the primary
mediate family) with respect to whom the employee is a superior. As
prohibitions of the present Hatch Act (5 U.S.C. 7324( (1)).
with the prohibitions in paragraph (3) discussed above, the phrase
Paragraph (2) of subsection (a) prohibits the use or attempted use
"with respect to whom such employee is a superior" is intended to
of official authority or influence for the purpose of intimidating, threat-
limit the prohibition to instances where a superior has the authority to
ening, coercing, commanding, or influencing, or attempting to intimi-
affect an employee's employment. In most instances where an em-
date, threaten, coerce, command, or influence: (A) any individual with
ployee is a superior with respect to another employee, both employees
regard to the right of that individual to vote, or not to vote, as that in-
would be in the same agency. The inclusion of the phrase "member of
dividual may choose, or to cause an individual to vote for or against
an employee's immediate family" is intended to prohibit possible cir-
any candidate or measure; (B) any person to give or withhold any
cumvention of the literal prohibition against a superior soliciting
political contribution; or (C) any person to engage, or not to engage, in
political contributions from an employee such as where a superior
solicits a contribution from the employee's wife. A member of an
any form of political activity whether or not the activity is prohibited
employee's immediate family would generally include those blood rela-
by law. It should be noted that although the committee intends that it
be the policy of the Congress, as set forth in section 7321 discussed
tions who reside in the employee's household, although in certain in-
above, to encourage employees to fully exercise their rights of political
stances it could include other relations such as parents, children,
brothers, or sisters, who reside in the nearby vicinity, and whose deci-
participation, the committee also intends that the prohibitions in sub-
section (a) of section 7323 provide protection against the use of official
sion to give or not to give a political contribution to a superior of an
authority or influence for those employees who choose not to engage in
employee could be affected by the superior-employee relationship.
Subparagraph (B) of paragraph (4) prohibits an employee from
political activity.
knowingly soliciting, accepting, or receiving, or being an any manner
Solicitation; prohibition
concerned with soliciting, accepting, or receiving, a political contribu-
Section 7324 sets forth prohibitions applicable to employees with
tion in any room or building occupied in the discharge of official duties
regard to soliciting, accepting, receiving, or giving political contri-
by: (i) an individual employed or holding office in the Government
butions.
of the United States, in the government of the District of Columbia, or
Paragraph (1) of section 7324 prohibits an employee from giving or
in any agency or instrumentality of the foregoing; or (ii) an indi-
offering to give a political contribution in return for any individual's
vidual receiving any salary or compensation for services from money
vote, or abstention from voting, in any election.
derived from the Treasury of the United States. Thus, an employee
Paragraph (2) of section 7324 prohibits an employee from solicit-
is prohibited from soliciting political contributions in any room or
ing, accepting, or receiving a political contribution in return for his
building where Federal Government business is being conducted. In
vote or abstention from voting.
addition, an employee is prohibited from soliciting political contribu-
Paragraphs (1) and (2) parallel, with minor rewording, existing
tions in any room or building where an individual being paid from
prohibitions in the Criminal Code pertaining to the buying or selling
money derived from the Federal Treasury is working, for example,
where an individual whose salary is paid through a Federal grant
21
20
nates such as the date on which or employee withdraws from candi-
or where an employee of a Federal contractor whose salary derives
dacy. The phrase "to engage in activities related to such candidacy"
from Federal funds is working.
reflects the committee's intent that leave under this section is to be
Subparagraph (B) parallels, with minor rewording, existing pro-
used primarily for such activities. Thus, an agency may deny a re-
visions in the Criminal Code (see, 18 U.S.C. 603), and it is the inten-
quest for leave under this section if it is apparent that the leave is re-
tion of the committee that any act prohibited by the criminal provision
quested for other activities, unrelated to the employee's candidacy.
also be prohibited by subparagraph (B).
Subject to the foregoing qualifications, the decision as to whether to
Political activities on duty, et cetera; prohibition
take leave without pay, accrued annual leave, or a combination of both,
Subsection (a) of section 7325 prohibits an employee from engaging
rests with the employee who is a candidate. If an employee who is a
in political activity: (1) while on duty; (2) in any room or building
candidate does not take leave and engages in activities relating to that
in which an individual employed by the Government of the United
candidacy or other political activity while on duty, such activities
States, or the government of the District of Columbia is engaged in
would violate section 7325 discussed above.
official duties; or (3) while wearing a uniform or official insignia
Board on Political Activities of Federal Employees
identifying the office or position of the employee. Subsection (a) re-
Section 7327 establishes the Board on Political Activities of Fed-
flects the belief of the committee that political activity of employees
eral Employees.
should not be allowed to interfere with the effective conduct of the
Subsection (a) establishes the Board and provides that its function
Government's business.
shall be to hear and decide cases regarding violations of sections 7323,
Subsection (b) of section 7325, with the committee amendment, ex-
7324, and 7325 of title 5. Thus, the Board's authority is adjudicatory
cludes from the prohibitions of subsection (a), the President, the Vice
only, with actual investigatory, prosecutorial, and enforcement au-
President, and an individual: (A) paid from the appropriation for
thority being given to the Civil Service Commission under section
the White House Office; (B) paid from funds to enable the Vice
7328. discussed below.
President to provide assistance to the President; or (C) on special
Under subsection (b), the Board is composed of three members. One
assignment to the White House Office, unless such individual, described
member, who shall serve as Chairman, is appointed by the President.
under (A), (B), or (C), holds a career or career-conditional appoint-
One each of the other two members is appointed by the Speaker of the
ment in the competitive service.
House and the President pro tempore of the Senate, respectively. All
Leave for candidates for elective office
three members are subject to confirmation by both Houses of the
Section 7326 authorizes leave without pay and accrued annual leave
Congress.
to be granted to employees who are candidates for elective office.
Subsection (c) provides that the members shall be chosen on the
Subsection (a) of section 7326 provides that an employee who with- is
basis of their professional qualifications from among individuals who,
candidate shall, upon that employee's request, be granted leave
at the time of their appointment to the Board, are employees as defined
a out for the purpose of engaging in activities relating to that em-
under section 7322 (1) of title 5, as amended by the bill.
ployee's that an employee who is a candidate take leave without pay, but if must
pay candidacy. It should be noted that there is no requirement the
Under paragraph (1) of subsection (d), the members are appointed
for a term of three years, and the terms are staggered so that one mem-
employee requests such leave without pay, the employing agency
ber's term expires each year. An individual appointed to fill a vacancy
may be appointed only for the unexpired term of the member he suc-
grant the request.
Subsection (b) of section provides that an employee accrued who is an- a
ceeds. Vacancies sha'l be filled in the same manner in which the origi-
candidate shall, upon that employee's request, be granted that
nal position was filled.
nual leave for the purpose of engaging in activities relating to em-
Paragraph (2) of subsection (d) provides that if a member of the
employee's candidacy. As is the case with leave without the pay, employee an
Board ceases to be an employee due to separation from the service,
ployee such leave, the employing agency must grant the request, which
is not required to take accrued annual leave, but if not-
he may not continue as a member of the Board for longer than 60 days
after he becomes separated. The committee intends that a member
requests the provision in section 6032 (d) of title 5 discretion. pro-
who ceases to be an employee as defined under section 7322 (1) but who
withstanding that the granting of annual leave is within agency entitled
otherwise remains an employee of the Federal Government, e.g. a non-
vides "accrued annual leave" means that an employee earned. is An
competitive employee of the Legislative branch, shall be deemed to
The only term to that amount of annual leave which he has actually
have separated from service for purposes of this subsection.
agency is not required to advance annual leave.
Subsection (e) provides that the Board shall meet at the call of the
section 7326, an agency is only required to grant leave and to to an
Chairman.
Under who is a candidate, as defined in section 7322 (2), that pre- an
Subsection (f) provides that all decisions of the Board with respect
employee abuses of leave requests, an agency should verify An
to the exercise of its duties and powers must be made by a majority
vent possible is actually a candidate before granting accrued a request. annual leave em-
vote of the Board.
employee right to be granted leave without pay or whether or not the
Subsection (g) prohibits a member of the Board from delegating,
ployee's immediately following election day termi-
except as otherwise expressly provided, his vote or any decision mak-
is employee extinguished is elected or at such other time when the candidacy
ing authority vested in the Board.
22
23
Subsection (h) requires the Board to prepare and publish in the Fed-
eral Register, written rules for the conduct of its activities. Subsection
employees lawfully assigned to investigate violations of subchapter
(h) further provides that the Board's official seal shall be judicially
III to administer oaths in the course of an investigation.
recognized and requires the Board to have its office in or near the Dis-
Paragraph (1) of section 7328 (c) requires the Commission, if it ap-
trict of Columbia. The Board, however, may meet and exercise its
pears after investigation that a violation has not occurred, to SO notify
powers anywhere in the United States, and it is intended that adjudica-
the employee and the employing agency.
tory hearings will be held by the Board at locations which take into
If it appears to the Commission after investigation that a violation
consideration the convenience of the parties concerned.
has occurred, the Commission is required under paragraph (2) of
Subsection (i) requires the Civil Service Commission to provide
section 7328 (c) to submit to the Board and serve upon the employee
clerical and professional personnel and administrative support. It is
a notice by certified mail, return receipt requested, if possible. The
intended that personnel such as secretaries and attorneys will be fur-
notice must: (A) set forth specifically and in detail the charges of
nished to the Board from the Commission and that administrative ex-
alleged prohibited activity; (B) advise the employee of the penalties
penses such as travel expenses for Board members will be the responsi-
which may be imposed for violations; (C) specify a period of not
bility of the Commission. The Chairman of the Board is required to
less than 30 days within which the employee may file with the Board
determine what clerical and professional personnel and administrative
a written answer to the charges; and (D) advise the employee that
support are appropriate and necessary, and personnel furnished to the
unless a written answer is filed within the prescribed time, the Board
Board are responsible to the Chairman of the Board.
is authorized to treat the failure to answer as an admission of the
Past experience indicates that the nature and number of cases in-
charges set forth in the notice and as a waiver by the employee of the
volving violations of the restrictions on political activity are such
right to a hearing on the charges.
that a full-time adjudicatory body is not necessary. In making deter-
Paragraph (3) of section 7328(c) establishes a separate procedure
minations with regard to necessary and appropriate personnel, the
for cases concerning elected officials or employees appointed by the
committee intends that the Chairman of the Board carefully consider
President against whom the Board has no authority to direct dis-
the nature and volume of the work to be performed by the personnel.
ciplinary action. The committee does not intend for the Board to
Subsection (j) requires the Administrator of the General Services
adjudicate cases concerning elected Federal officials. The only indi-
Administration to furnish suitable office space, appropriately fur-
viduals to whom the procedure under paragraph (3) applies are:
nished and equipped. The equipment contemplated by this subsection
(A) the Vice President; (B) an employee appointed by the President
would include such items as typewriters and stationery supplies neces-
by and with the advice and consent of the Senate; (C) an employee
sary for the Board to carry out its functions. The responsibility for de-
whose appointment is expressly required by statute to be made by the
termining what may appropriately be provided to the Board under this
President; (D) the Mayor of the District of Columbia; or (E) the
subsection rests with the Administrator.
Chairman or a member of the Council of the District of Columbia.
Subsection (k) relates to pay and leave for members of the Board.
If it appears to the Commission that a violation of section 7323, 7324,
Paragraph (1) of subsection (k) provides that members shall receive
or 7325 has been committed by one of these individuals, it is required
no additional pay on account of their service on the Board. Paragraph
to refer the case to the Attorney General and to report the nature and
(2) of subsection (k) provides that members are entitled to leave
details of the violation to the President and to the Congress.
without loss of or reduction in pay, leave, or performance or efficiency
Subsection (d) of section 7328 prescribes the procedures for hear-
rating during a period of absence while in the actual performance of
ings concerning violations of sections 7323, 7324, and 7325.
duties vested in the Board.
Paragraph (1) of section 7328 (d) provides that if a written answer
is not duly filed within the time allowed therefor, the Board
Investigations; procedures; hearings
is authorized to issue its final decision and order without further
Section 7328 provides for enforcement of the prohibitions on po-
proceedings.
litical activity and establishes procedures for the investigation and ad-
If an answer is duly filed, paragraph (2) requires a hearing on the
judication of violations of such prohibitions.
record conducted by a hearing examiner appointed under section 3105
Subsection (a) of section 7328 requires the Civil Service Commis-
of title 5. Except as otherwise expressly provided under subchapter
sion to investigate reports and allegations of any activity prohibited
III, the hearing shall be conducted in accordance with the require-
by section 7323, 7324, or 7325 of title 5, as amended by the bill. It is
ments of subchapter II of chapter 5 of title 5 (formerly the Admin-
the committee's intent that enforcement efforts by the Commission
istrative Procedure Act). Paragraph (2) further requires that the
under this subsection not be limited to responding to formal reports
hearing be commenced within 30 days after the answer is filed, and
or allegations, but additionally, that such efforts include all steps nec-
that it be conducted without unreasonable delay. As soon as possible
essary to insure that the prohibitions are observed by employees.
after the conclusion of the hearing, the hearing examiner is required
Subsection (b) of section 7328 requires that the Commission pro-
to serve his recommended decision upon the Board, the Commission,
vide an employee who is under investigation with the opportunity to
and the employee, with notice that exceptions to such decision may be
make a statement and submit documentary evidence concerning mat-
filed within 30 days. The Board is required to issue its final decision
ters under investigation. This subsection also authorizes Commission
within 60 days after the recommended decision is served.
24
25
The last sentence in paragraph (2) provides that an employee shall
standing the fact that a concurrent criminal investigation is in prog-
not be removed from active duty by reason of the alleged violation of
ress. The committee recognizes that many violations of this subchapter
subchapter III before the effective date of the Board's final order.
may also constitute violations of various criminal provisions. While
Subsection (e) of section 7328 authorizes the Board to issue sub-
it has generally been the practice in the past to hold a civil investiga-
penas, order depositions, and compel testimony of an employee.
tion in abeyance pending the results of a criminal investigation into
Paragraph (1) of section 7328 (e) authorizes any member of the
the same or related matters, the usual result in cases involving alleged
Board, upon written request of the Commission or an employee who
illegal political activities has been a decision not to proceed with a
is charged, to require by subpena the attendance and testimony of
criminal prosecution and a concomitant delay of 12 to 18 months in the
witnesses and the production of documentary or other evidence, which
civil investigation. In view of this experience, it is the committee's
is relevant to the proceeding or investigation. Paragraph (1) further
belief that in most instances prompt resolution of proceedings under
authorizes any member of the Board and any hearing examiner
subchapter III is of primary importance, and such proceedings gen-
authorized by the Board to administer oaths, examine witnesses, and
erally should not be interrupted or delayed.
receive evidence. In the case of a refusal to obey a subpena, the Board
Penalties
is authorized to seek judicial enforcement in the United States district
court for the judicial district where the subpena is served or where the
Section 7329 sets forth the penalties which the Board may order in
person subject to the subpena resides. Failure to obey a court order
the case of an employee who is found to have violated any provision
enforcing the subpena may be punished as a contempt of court.
restricting activities of employees under sections 7323, 7324, and 7325,
Paragraph (2) of section 7328 (e) authorizes the Board (or a mem-
and specifies the manner in which the penalty shall be imposed.
ber designated by the Board) to order the taking of written deposi-
Subsection (a) provides that, subject to and in accordance with the
tions which shall be subscribed by the deponent.
procedures for investigation and hearing under section 7328, the
Paragraph (3) of section 7328(e) authorizes the Board to compel
Board shall, upon finding that an employee has violated any provi-
the testimony or production of evidence by an employee notwithstand-
sion of section 7323, 7324, or 7325 of title 5, enter a final order direct-
ing any claim of the privilege against self-incrimination. Paragraph
ing disciplinary action against the employee. It should be noted that
(3) further provides that no employee, having claimed the privilege
any order of the Board directing such action must, in accordance with
against self-incrimination, shall be prosecuted or subjected to any
section 7327 (f), be made by a majority vote of the Board.
penalty or forfeiture for or on account of the matter about which the
The three paragraphs of subsection (a) set forth the range of disci-
employee has testified or produced evidence and, in addition, that no
plinary action which the Board may order. Under paragraph (1) the
compelled testimony or evidence shall be used as evidence in any
Board may order the removal of an employee and, in addition if re-
criminal proceeding (other than a proceeding for perjury) against
moval is ordered, the Board shall prescribe a period of time during
the employee in any court.
which the employee may not be reemployed in any position (other than
Section 7328 (f) provides for judicial review of an order of the
an elected position) in which the employee would be subject to the pro-
Board. An employee upon whom a penalty is imposed is permitted
visions of subchapter III.
30 days from the issuance of the Board's order to institute an action
Under paragraph (2) of subsection (a) the Board may order the
for review in the United States District Court for the District of
suspension without pay of an employee for such period as the Board
Columbia or in the district court for the judicial district in which the
may prescribe. Under paragraph (3) of subsection (a) the Board may,
employee resides or is employed. An order of the Board may be stayed
in its discretion order lesser forms of penalties as it deems appropriate.
only upon an order of the court.
The committee recognizes that certain violations are necessarily more
Upon receiving the required copy of the summons and complaint,
serious than others and intends that the penalty provisions of subsec-
the Board is required to certify and file with the court the record of
tion (a) give complete discretion to the Board with regard to the sever-
the proceeding. If, upon application, the court determines to its sat-
ity of the penalty to be imposed SO that whatever penalty is ordered
isfaction that (1) additional evidence may materially effect the result
may be tailored to the nature of the actual violation.
of the proceeding, and (2) there were reasonable grounds for failure
Subsection (b) requires the Board to notify the Commission, the em-
to adduce the evidence at the administrative hearing, it may order
ployee, and the employing agency of any penalty it has imposed. It is
further proceedings before the Board, and if further proceedings are
then the responsibility of the employing agency to effect the discipli-
ordered, the Board may modify its original findings of fact or its
nary action, and that agency is required to certify to the Board the
order and shall file with the court such modified findings or order The
measures it has undertaken to implement the penalty ordered by the
Board's findings of fact are conclusive if supported by substantial evi-
Board.
dence. If the court determines that the order is not in accordance with
Educational program; reports
law it shall remand the proceeding to the Board with appropriate in-
Subsection (a) of section 7330 requires the Commission to establish
structions and may assess against the United States reasonable attor-
and conduct a continuing program to inform all employees of their
ney fees and other litigation costs reasonably incurred by the employee.
rights of political participation and to educate employees with respect
Section 7328 (g) provides that the Commission or the Board, in its
to those political activities which are prohibited. It is the committee's
discretion, may proceed with an investigation or proceeding notwith-
FORD
H. Rept. 94-441-4
LIBRARY
26
27
intent that the Commission take all necessary steps to insure that em-
Paragraph (1) of subsection (b) amends section 8332 (k) (1), relat-
ployees understand the law with regard to political activities, particu-
ing to civil service retirement coverage, section 8706(e), relating to
larly with regard to which activities are permitted and which extent are
civil service life insurance coverage, and section 8906 (e) (2), relating
prohibited, in order that employees may, to the maximum
to civil service health insurance coverage, by inserting a reference to
permissible, engage in political activities they SO choose.
leave without pay granted under section 7326 (a) of title 5, as amended
The last three sentences of subsection (a) as added by the committee
by this bill, in each of those sections. The effect of these amendments is
amendment, further require the Commission to annually inform each
to permit an employee who is a candidate and who is granted leave
employee, individually in writing, of each employee's political rights
without pay under section 7326 of title 5, as amended by the bill, to
and the restrictions under subchapter III.
elect, within 60 days after entering on leave without pay, to continue
The Commission may determine the appropriate date for providing that
under the civil service retirement, life insurance, or health insurance
the required information to each employee, but in order to insure the
programs.
the information is provided at a useful time, the date chosen by
An employee who elects to continue in one or more of those pro-
Commission may not be less than 60 days prior to the earliest primary
grams is required to arrange through his employing agency to pay
election for State or Federal elective office in the State where an em-
currently into the appropriate fund an amount equal to the employee
ployee is employed. If a State has no primary election, the date of the
and the agency contributions. An employee who SO elects may continue
earliest general election is determinative. For purposes of this section,
in a program for as long as that employee remains in a leave without
the term "State" includes the District of Columbia, and the Common-
pay status. With regard to retirement benefits, failure of an employee
wealths, territories, and possessions of the United States. The manner left
to make the required election precludes the period spent on leave with-
in which the required information is provided to each employee is
out pay from being included as creditable service for retirement pur-
to the administrative discretion of the Commission, SO long as appro-
poses. With regard to health and life insurance benefits, the failure of
priate written information is provided to every employee personally.
an employee to make an election will result in termination of coverage
Subsection (b) of section 7330 requires the Commission to submit,
under those respective programs only if the employee continues on
or before March 30 of each calendar year, a report regarding the
leave without pay for longer than 12 months. The provisions of subsec-
discharge on of its responsibilities under subchapter III during the pro-
tion (b) of section 2 relating to retirement, health insurance, and re-
ceeding calendar year. The report is to be submitted to the Speaker the of
tirement coverage, accord identical treatment to employees who enter
the House of Representatives and the President pro tempore of
on leave without pay for purposes of engaging in candidacy for elec-
Senate for referral to the appropriate committees of the Congress.
tive office as is presently accorded to employees who enter on leave
number of investigations conducted under section 7328 and the results
Each report is required to include information concerning; (1) the
without pay to serve as officers of employee organizations.
Section 2(b) (2) amends section 3302 of title 5, relating to the Pres-
of those investigations; (2) the name and position or title of each
ident's authority to prescribe rules for necessary exceptions from cer-
individual involved, and the funds expended by the Commission, in
tain provisions of title 5, by striking out the references to sections
carrying out the educational program required under subsection (a)
7321 and 7322 in existing subchapter III of chapter 73 of title 5. Under
and (3) an evaluation of the educational program which describes the
the new subchapter III, as revised by the bill, all exceptions from the
manner in which the Commission has carried out the program and the
provisions of that subchapter are expressly set forth in the subchapter
effectiveness of the program with regard to insuring that employees
itself. Accordingly, no authority for additional exceptions is deemed
understand their political rights and the restrictions under subchapter
necessary.
III.
Section 2(b) (3) amends section 1308 of title 5, relating to annual
reports of the Civil Service Commission, by striking out paragraph
Regulations Section 7331 requires the Civil Service Commission to prescribe such
(3) relating to reports of the Commission concerning its actions under
existing section 7325 of title 5. The reporting requirements of section
rules and regulations as may be necessary to carry out its responsibili-
7330 of title 5, as provided by the bill, supersede the existing reporting
ties under this subchapter. It should be noted that under section
requirements. The remaining paragraph of section 1308 (a) is appro-
7327 (h) the Board on Political Activities of Federal Employees is
priately redesignated.
required to prepare and publish rules for the conduct of its activities.
Section 2(b) (4) corrects an existing technical error in the second
Rules and regulations promulgated by the Commission under this
sentence of section 8332 (k) (1) by striking out "second" and inserting
section may pertain only to matters within the responsibility and au-
in lieu thereof "last".
thority of the Commission, as provided by this subchapter, such as in-
Section (b) (5) of the bill amends the section analysis for sub-
vestigatory procedures to be followed by the Commission and Com-
chapter III of chapter 73 of title 5 to reflect the changes made by sec-
mission interpretations of the statutory restrictions on political
tion 2(a) of the bill.
activities.
Amendments to the Criminal Code
Technical and conforming amendments
Section 2(c) of the bill amends sections 602 and 607 of title 18,
Subsection (b) of section 2 of the bill contains several technical and
United States Code, relating to solicitations and making of political
conforming amendments to title 5, United States Code.
28
29
"contributions, by adding a new sentence at the end of each section to
legislative and oversight jurisdiction and responsibility over the
provide that those sections do not apply to any activity of an em-
subject matter and conducted extensive hearings on the matter.
ployee, as defined in section 7322(1) of title 5, unless such activity is
The subcommittee findings and recommendations in connection
prohibited by section 7324 of that title. Since section 7324 of the bill,
with its oversight responsibilities are embodied in the bill as
relating to solicitations and making of political contributions, permits
reported;
<employees to engage in certain activities which are presently prohib-
ited under sections 602 and 607, this amendment is necessary to insure
(B) The bill does not provide new budget authority or new or
increased tax expenditures and thus a statement required by sec-
that an employee is not criminally liable for an activity that, although
tion 308 (a) of the Congressional Budget Act of 1974 is not
permissible under the bill, would, except for this amendment, be pro-
necessary;
hibited under section 602 or 607. It should be noted that the amend-
ments to the criminal provisions pertain only to activities by "employ-
(C) No estimate and comparison of costs has been received by
ees" as defined under section 7322(1) of title 5. Accordingly, the crimi-
the committee from the Director of the Congressional Budget
nal prohibitions applicable to other individuals who are covered by
Office, pursuant to section 403 of the Congressional Budget Act
of 1974; and
the prohibitions in sections 602 and 607 of title 18, remain unchanged.
(D) The committee has received no report from the Committee
Amendments to other laws
on Government Operations of oversight findings and recommen-
Section 2(d) of the bill is a conforming amendment which amends
dations arrived at pursuant to clause 2 (b) (2) of Rule X.
section 6 of the Voting Rights Act of 1965 (42 U.S.C. 1973d), relating
to the appointment of Federal voting examiners, by striking out "the
INFLATIONARY IMPACT STATEMENT
provisions of section 9 of the Act of August 2, 1939, as amended (5
U.S.C. 118i), prohibiting partisan political activity", and inserting in
Pursuant to clause 2(1) (4) of Rule XI of the Rules of the House of
lieu thereof "the provisions of subchapter III of chapter 73 of title 5,
Representatives, the committee has concluded that the amendments
United States Code, relating to political activities".
made by H.R. 8617 will not result in any significant cost or inflationary
Section 2(e) is a conforming amendment which amends sections
impact on prices and costs in the operation of the national economy.
103 (a) (4) (D) and 203 (a) (4) (D) of the District of Columbia Public
Education Act, relating to the employment of officers and educational
ADMINISTRATIVE VIEWS
employees of Federal City College and the Washington Technical In-
stitute, by striking out "sections 7324 through 7327 of title 5" and in-
Set forth below are the reports on this legislation from the Office
serting in lieu thereof "section 7325 of title 5".
of Management and Budget, the U.S. Civil Service Commission, the
U.S. Postal Service, the Comptroller General of the United States, the
Effective date
Internal Revenue Service, the Department of the Treasury, and the
Section 2(f) provides that the amendments made by section 2 of the
Department of Justice.
bill shall take effect on the ninetieth day after the date of enactment of
the act.
EXECUTIVE OFFICE OF THE PRESIDENT,
COSTS
OFFICE OF MANAGEMENT AND BUDGET,
Washington, D.C., April 2, 1975.
Past experience indicates that the nature and number of the cases
Hon. DAVID N. HENDERSON,
requiring adjudication by the Board will be few. Accordingly, the bill
Chairman, Committee on Post Office and Civil Service, House of Rep-
provides for personnel and administrative support to be furnished by
resentatives, Washington, D.C.
the Civil Service Commission and the General Services Administra-
DEAR MR. CHAIRMAN: This is in reply to the Committee's request
tion. The committee anticipates, therefor, that the provisions relating
for the views of this Office on H.R. 719, H.R. 1306, H.R. 1326, H.R.
to the Board will not result in any significant cost to the Federal
1675, and H.R. 3000, all bills primarily concerned with political ac-
Government.
tivity of Federal employees.
The investigation of allegations of violations will be conducted by
The principal purpose of these bills is to repeal the restrictions in
the Civil Service Commission the same as under the existing law. The
existing law on active participation by Federal employees in partisan
committee has no information on which to base an estimate of the cost
political activities. In its report, the Civil Service Commission states
of administering this legislation.
restrictions. a number of reasons for strongly opposing elimination of such
COMPLIANCE WITH CLAUSE 2(1) (3) OF RULE XI
We concur in the views expressed by the Civil Service Commission
With respect to the requirements of clause 2(1) (3) of Rule XI of
and, accordingly, strongly recommend against enactment of any of
these bills.
the House of Representatives—
Sincerely,
(A) The Subcommittee on Employee Political Rights and In-
tergovernmental Programs is vested under Committee Rules with
JAMES F. C. HYDE, Jr.,
Acting Assistant Director for Legislative Reference.
30
31
U.S. CIVIL SERVICE COMMISSION,
Washington, D.C., March 24. 1975.
We are convinced that some restriction on the ability of public em-
Hon. DAVID N. HENDERSON,
ployees to identify themselves prominently with partisan political
Chairman, Committee on Post Office and Civil Service, House of Rep-
party success is essential to an effective merit system. While the politi-
resentatives, Washington, D.C.
cal activity of specific employees may appear to be innocuous in itself,
the effect of such activity generally is that public employees become
DEAR MR. CHAIRMAN This is in reply to your letter requesting the
identified with the aspirations of political parties and candidates, and
Commission's views on H.R. 3000, H.R. 1306, and H.R. 1675, bills "To
partisan considerations are injected into the career service. The identi-
restore to Federal civilian employees their rights to participate, as pri-
fication of a civil servant with a political party through active partici-
vate citizens, in the political life of the Nation, to protect Federal
pation in party affairs compromises that employee in the eyes of the
civilian employees from improper political solicitations, and for other
public, and most certainly in the eyes of an opposing party during a
purposes"; on H.R. 1326, a bill "To amend title 5, United States Code,
change in administrations. Competition among employees for advance-
to permit Federal officers and employees to take an active part in po-
ment and favor based on their contribution of money or services to
litical management and in political campaigns;" and on H.R. 719, a
political parties would also detract from the efficient administration of
bill "To amend, title 5, United States Code, to permit Federal, State
public business. Our conclusion is that the intrusion of partisan con-
and local officers and employees to take an active part in political man-
siderations into the career Federal service, even in appearance, would
agement and in political campaigns."
constitute a devastating blow to merit concepts, and to employee
The Commission opposes enactment of these bills for several reasons.
morale as well.
In our opinion, the primary thrust of these bills is to repeal the
We, of course, favor the retention of the prohibition on the misuse
existing restrictions on political activities as set forth at 5 U.S.C.
of official authority to influence elections, as well as the restrictions on
7324 (a) (2). This provision prohibits Federal employees and em-
the solicitation and exchange of political contributions among Federal
ployees of the District of Columbia from participation in partisan
officers and employees. However, in our view, those limitations alone,
political management and partisan political campaigns.
even as revised and expanded by H.R. 3000, H.R. 1306 and H.R. 1675,
A secondary thrust of these bills, with the exception of H.R. 1326
are wholly inadequate to protect employees from the subtle pressures
and H.R. 719, is to revise and expand 5 U.S.C. 7323 SO as to clarify
that would impel them to engage in other forms of political activity in
responsibilities and procedures under this section. The Commission
order to protect or enhance their employment situation. Without the
does not disagree with the basic intent of the proposed revision. How-
protection of a public policy that limits the political activities of pub-
ever, we do note that there is no indication in subsection (c) of sec-
lic employees, an employee would be vulnerable to indirect influence to
tion 7323 as to action to be taken, if any, concerning those employees
support the political party or candidates favored by those in a position
in the excepted service who are not Presidential appointees. Further
to affect the employee's government career. Under current restrictions
the provision that an employee may "make a contribution to any can-
everyone knows that a covered employee cannot serve political pur-
didate" may conflict with 18 U.S.C. 607, administered by the Depart-
poses, except at the risk of loss of employment. This protection of the
ment of Justice, which prohibits an employee from giving to a Senator
Federal employee would be discarded by the proposed legislation.
or Member of or Delegate to Congress "money or other valuable thing
Similar restrictions, which previously applied to State and local
on account of or to be applied to the promotion of any political object.'
employees in Federally financed programs, were repealed by section
Additionally, a secondary thrust of H.R. 719 is to repeal the restriction
401 of the Federal Election Campaign Act Amendments of 1974 (P.L.
on candidacy for elective office as set forth at 5 U.S.C. 1502 (a) (3). This
93-443). The restriction against political management and political
prohibition applies to State or local officers or employees whose prin-
campaigning was replaced by a prohibition against being a candidate
cipal employment is in connection with an activity which is financed
for elective office. It was our view at the time that amendment was
in whole or in part by loans or grants made by the United States or a
passed (without public hearings of any kind), and it continues to be
Federal agency.
our view, that such a drastic change in the law would be seriously
The Commission's major area of concern, however, is with the pri-
detrimental to the maintenance and operation of effective merit sys-
mary thrust of these bills which would allow employees virtually un-
tems on the Statae and local levels, and would be contrary to the pur-
limited political activity, both partisan and nonpartisan, even at the
pose and spirit of the original political activity legislation.
national level. This goes far beyond the proposals to liberalize the po-
We believe that to go further, as would H.R. 719, and repeal the
litical activity restrictions as recommended by the Commission on Po-
remaining prohibition against candidacy for elective office, would be
litical Activity of Government Personnel.
an error of major proportions and would result in further impairment
Where advancement in the public service is predicated exclusively
of effective merit systems at the State and local levels.
upon merit, the entire society benefits from a more efficient and honest
We think it significant that after nearly a year of study of the Hatch
public service. Since 1883, this Commission, acting at the direction of
Act, the Commission on Political Activity of Government Personnel
the President and under Congressional enactments, has endeavored
"requires strong sanctions against coercion
concluded that protection of a career system based on merit not only
to insure that Federal employment and Federal personnel manage-
[but] also requires
ment are anchored on the principle of merit, free from the influence
some limits on the role of the government employee in politics.' Vol-
of political partnership.
ume I, Report of the Commission on Political Activity of Government
Personnel-Recommendations, page 3.
33
32
The proposed section would extend to Presidential appointees (in-
Apparently employees, too, feel some apprehension regarding the
cluding those requiring the advice and consent of the Senate), Mem-
effect of amendments that would permit more political activity on
bers of Congress, and officers of the uniformed services, the same re-
their part. A survey of Federal employees, conducted by the same
strictions on requesting, receiving, and giving political contributions
Commission in 1967, disclosed that more than half (52%) of those
as are currently applicable to employees in Executive agencies. The
contacted believe that such changes would effect promotions, decisions,
proposed section would also give to the Commission the responsibility
job assignments, and similar actions. Of the State employees surveyed,
for processing complaints arising under the section, conducting ap-
a fairly high percentage (42.3%) felt that the merit system would be
propriate investigations, and determining whether a violation has in
hindered if all restrictions on political activity were removed. Volume
fact occurred.
II, Report of the Commission on Political Activity of Government
The Commission is in agreement with the basic intent of this section.
Personnel-Research, pages 21 and 78 (1968). We believe the employees'
However, we note that while the action to be taken by the Commission
fears stem from a realistic view of politics in relation to the public
in cases involving violations on the part of competitive service employ-
service.
ees and Presidential appointees is made clear in subsections (c) (1)
The foregoing should in no way, of course, be construed as a total
and (c) (2), there is no indication as to what action is to be taken in
indictment against political activity of Federal employees. We would
cases involving employees in the excepted service who are not Presi-
note, for example, that under existing law Federal employees are free
dential appointees. Such employees are subject to the section by virtue
to engage in a wide variety of activities. The Hatch Act does not cir-
of being employees "in an Executive agency," but the proposed bill
cumscribe the entire field of political activity, but, rather, carefully
does not set forth the action to be taken by the Commission when it
directs its prohibitions to what Congress regarded as particular
finds a violation on the part of such an employee. We would recom-
sources of danger to the public service, namely, direct participation
mend, therefore, that the proposed section be amended SO that the
by employees in the management and campaigns of major political
Commission can impose. a penalty, such as for competitive service em-
parties. A wide range of freedom to participate in the political proc-
ployees, or notify the head of the employing agency of the Commis-
esses of the Nation, State, and the local community is permitted under
sion's determination of a violation and the penalty deemed to be
the existing law.
appropriate.
Accordingly, the Commission opposes enactment of these bills.
We would also point out that section 607 of title 18, United States
The Office of Management and Budget advises that from the stand-
Code, which is within the jurisdiction of the Department of Justice,
point of the Administration's program, there is no objection to the
prohibits an employee from "directly or indirectly giv[ing]
to any
submission of this report.
Senator or Member of or Delegate to Congress
any
money
or
other
By direction of the Commission
valuable thing on account of or to be applied to the promotion of any
Sincerely yours,
political
object
" We have consistently advised employees that they
ROBERT HAMPTON,
may make voluntary contributions to the duly constituted campaign
Chairman.
committees of any candidate, including the campaign committees of
incumbent Senators and Members of Congress. Therefore, in order to
avoid any uncertainty, we would recommend that the provision of
U.S. CIVIL SERVICE Commission,
proposed section 2 which states that
"
an employee may freely and
Washington, D.C., June 24, 1975.
voluntarily make a contribution to any candidate for public office on
Hon. DAVID N. HENDERSON,
his own volition
be amended to read
any employee may make
Chairman, Committee on Post Office and Civil Service, House of
a voluntary contribution to a political party or organization, includ-
Representatives, Washington, D.C.
ing the duly constituted campaign committee of any candidate."
DEAR MR. CHAIRMAN On March 25, 1975, when I testified before the
Section 3 of the proposed bill amends 5 U.S.C. 7234, which pres-
Subcommittee on Employee Political Rights and Intergovernmental
ently prohibits the misuse of an employee's official authority or intlu-
Programs on H.R. 3000, "Federal Employees' Political Activities Act
ence to interfere with or affect the result of an election, and also pro-
of 1975," it was suggested by Mr. Wilson that it would be helpful if we
hibits employees from taking an active part in political management
could provide a section-by-section analysis of the proposed bill. We
and political campaigns. The proposed bill would continue the present
previously submitted a bill report expressing our disagreement with
prohibition on misuse of official authority and influence. In our view,
the bill generally. We are herewith providing a section-by-section
and based on our enforcement experience, this provision is not ade-
analysis as requested by Mr. Wilson.
quate as an "anti-coercion" provision, yet it is the only "anti-coercion"
Section 2 of the proposed bill, which would amend 5 U.S.C. 7323,
provision contained in the proposed bill. We feel that it is too vague
provides that employees in an Executive agency, Presidential ap-
in its meaning and there is no reasonable guidance in the present law
pointees, Members of Congress, and officers of the uniformed services
or the proposed bill as to what is required to affect or interfere with
"may not request or receive from, or give to" any other such employee,
the result of an election. It should be noted that the political activity
appointee, Member, or officer "a thing of value for political purposes,"
provisions applicable to State and local employees working in Fed-
except that "an employee may freely and voluntarily make a contri-
bution to any candidate for public office of his own volition."
H. Rept. 94-444-5
34
erally funded programs contain, in addition to a prohibition on misuse
35
of official authority or influence [5 U.S.C. 1502 (1)] a separate
prohibition which states that a covered employee may not "directly
of excepted localities impacted with Federal employees, to permit em-
or indirectly coerce, attempt to coerce, command, or advise a State or
ployee-residents to take an active part in partisan campaigns and elec-
local officer or employee to pay, lend, or contribute anything of value
tions at the local level, to the extent the Commission determines to be
to a party, committee, organization, agency, or person for political
in the domestic interest. Both of the above referenced sections would be
purposes." We would strongly recommend that a similar provision be
unnecessary under the proposed bill, since there would no longer be a
included in any future legislation relative to the political activity of
prohibition on partisan political management and campaigning. As
Federal employees. We would also recommend the inclusion of a pro-
noted above we are in disagreement with the repeal of the management
vision which would establish a presumption of coercion whenever a
and campaigning provision.
superior solicits a subordinate employee to make a political contribu-
Section 6 of the proposed bill would amend section 602 of title 18,
tion or to engage in any form of political activity.
United States Code, to require the Attorney General to prosecute viola-
Section 3 would also have the effect of repealing the current pro-
tions of 5 U.S.C. 7323 referred by the Commission, or to report to the
hibition on employees taking an active part in political management
Congress, in writing, the reasons such prosecution was declined. We
and political campaigns. It would set forth some nine specifically
have no objection to such an amendment. However, jurisdiction of title
permitted activities, including "candidacy for nomination or election
18 is solely within the Department of Justice.
to any National, State, county, or municipal office." We have previ-
In conclusion, while we have no objections to certain sections of the
ously presented our views with respect to a total relaxation of the
proposed bill, we do object strongly to that provision which would
management and campaigning restrictions, that being the major
eliminate the existing prohibition on partisan management and cam-
thrust of my March 25 testimony before the Subcommittee on this bill.
paigning.
Suffice it to say here that we view the particular section of the bill, if
By direction of the Commission
enacted, as a very real and serious threat to the maintenance of an
Sincerely yours,
ROBERT E. HAMPTON,
impartial and effective career service.
Section 4 of the bill retains the current minimum penalty of thirty
Chairman.
days' suspension without pay for violation of section 7324. The same
penalty provisions would apply to violations of proposed section 7323.
U.S. CIVIL SERVICE COMMISSION,
Currently, 5 U.S.C. 7323 specifies that an employee who violates that
Washington, D.C., July 17, 1975.
section will be removed from the service. Proposed section 4 would
Hon. DAVID N. HENDERSON,
require that an employee would be subject to removal for violation of
Chairman, Committee on Post Office and Civil Service,
sections 7323 and 7324 only upon unanimous vote of the Commission
House of Representatives, Washington, D.C.
that removal is warranted. This is a departure from the current law
DEAR MR. CHAIRMAN The Civil Service Commission desires to sub-
which makes removal mandatory unless the Commissioner unanimously
mit for consideration by the Committee our comments with respect to
determines that a lesser penalty is warranted. Since the only cases
the Committee Print of July 7, 1975, cited as the "Federal Employees'
which arise under the proposed bill would be cases involving misuse of
Political Activities Act of 1975," which was ordered reported in the
official authority in violation of proposed section 7324, or the soliciting,
form of a clean bill by the Subcommittee on Employee Political Rights
giving, or receiving of contributions in violation of proposed section
and Intergovernmental Programs.
7323, it is our view-that removal should be the mandatory penalty un-
This Commission has, over the years, consistently been opposed to
less the Commission determines by unanimous vote that a lesser penalty
any legislation which would remove or substantially relax the politi-
would be appropriate. In this regard, it is our view that the Commis-
cal activity restrictions which current Federal law places on Federal
sion should be given the discretion to assess a penalty of less than 30
employees in the Executive branch. This opposition is based, not on
days, e.g., 5 days without pay, if in their judgment such lesser penalty
any misguided interest in retaining a programatic responsibility, but,
would be more equitable under the circumstances of the case. This
rather, on a sincere and historically founded belief that a relaxation
would be particularly important if the proposed bill were to be
of the political activity restrictions would pose a very real and serious
amended SO that some management and campaign activities would still
threat to the maintenance of a career merit system. The enactment of
be prohibited.
such legislation would deprive employees of the protections which they
Section 5 would repeal current sections 7326 and 7327 of title 5,
now enjoy from the subtle, sometimes even unintended, pressures which
United States Code. 5 U.S.C. 7326 currently provides that the prohibi-
can be and would be brought to bear.
tion on taking an active part in political management and political
As I testified before the Subcommittee on March 25, 1975, it is an
campaigns does not preclude activity in connection with nonpartisan
empty hope that provisions against coercion, no matter how tightly
campaigns and elections, i.e., campaigns and elections in which none
drawn they might be, can alone protect the merit system against the
of the candidates is to be nominated or elected as representing a politi-
encroachment of partisan political influences. It is the prohibition
cal party any of whose candidates for presidential elector received votes
against active participation in partisan political management and
in the last preceding election at which presidential electors were se-
partisan political campaigns which constitutes the most significant
lected. 5 U.S.C. 7327 provides for the designation, by the Commission,
36
37
safeguard against coercion-whether from superiors in the Federal
We are also troubled by the relaxation on the exchange of contri-
service, or from outsiders. Employees realize that partisan political
butions among employees which results from section 7324. The Con-
activity can subject them to removal, and know that those persons who
gress has previously recognized the need to restrict any solicitation or
could request them to be politically active have no greater threat than
receipt of political contributions among employees, regardless of
that. Because of the management and campaigning provisions of the
whether there exists a superior-subordinate relationship. The serious-
Hatch Act, most employees know that they need not respond to politi-
ness with which Congress has viewed this matter is evidenced by the
cal requests or suggestions. This entire protective fabric would be de-
existence of prohibitory provisions in the criminal code. Now it is being
stroyed if the prohibitions against political management and cam-
proposed that even those criminal provisions be amended, and that
paigning are removed, as is being proposed in the bill to be considered
employees, with the exception of those in a superior-subordinate rela-
by the Committee. We believe that whatever political activity is per-
tionship, be permitted to freely solicit and receive contributions from
mitted to employees will eventually become that which is required of
one another. The possibilities for abuse are obvious. We would point
them. We do not believe, as has been stated by the public employee
out that the current restrictions do not preclude or inhibit an employee
organizations, that Federal employees overwhelmingly, or that even
from making a voluntary contribution to the duly constituted cam-
a majority of them, are in favor of repealing the management and
paign organization of any candidate, including that of an incumbent
campaigning prohibition. We believe the opposite to be true.
Member of Congress.
Moreover, by limiting the Government employee's involvement in
We seriously question the effectiveness of enforcement of the pro-
partisan politics, the Hatch Act reduces the likelihood that an
hibition on an employee engaging in campaign or management activi-
employee will allow partisan political views to interfere with the
ties while on duty, if the employee is not required to take a leave of
impartial execution of the Government's business. The current Hatch
absence from his or her job to become a candidate. Proposed
Act makes it impossible for the party in power to turn the Federal
7326 would require agencies to grant a leave of absence to an employee-
work force into an organized instrument for affecting the outcome of
candidate upon request, but does not require the employee to take
elections. Equally important, in our view, is the concern that involve-
a leave of absence.
ment in partisan political activities on the part of Federal employees,
In our view, the requirement that the employees appointed to be
being observed by the public, will erode public confidence in the
Members of the Board on Political Activities of Federal Employees
impartial administration of Federal laws and programs. When the
under proposed section 7327 receive the confirmation of a majority
public sees at work a Federal employee who is prominently identified
of both Houses of Congress, serves no useful purpose and unneces-
with partisan politics, and at the same time is charged with respon-
sarily burdens the appointment process. We also have some reserva-
sibility for the impartial, nonpartisan execution of public duties, it
tions about the constitutional status of the Board, but would defer to
will inevitably have doubts about that employee's impartiality. One
the Department of Justice on that issue. We would also point out that
of the frequently made observations concerning the recent "Water-
there was no credible evidence introduced during the hearings before
gate" revelations, was the manner in which the daily operation of the
Government continued uninterrupted, due in large measure to the
the Subcommittee that the Commission's performance of the responsi-
bilities which would now be assumed by the Board has ever been in-
dedication and efforts of impartial civil servants in the career service.
It seems incongruous for the Congress to now seriously entertain a
adequate or subject to serious criticism. We accordingly see no need
for a new Board.
proposal to deprive the Federal service of that shield of impartiality.
We note that no course of action is specified under section 7328
It seems to us that anything which has the clear potential for under-
(c) (3) should it appear that the President has committed a violation.
mining the public's confidence in the impartiality and efficiency of the
civil service should be rejected.
We also note that subpenas and orders for taking depositions can only
In addition to these concerns with the proposed bill in general, we
be issued by Members of the Board [§ 7328 (e) (1) and (2)].
would like to direct the Committee's attention to several other of the
Because we feel strongly that enactment of any legislation of the
type embodied in the subject Committee Print would have serious
provisions which we feel are particularly troublesome.
Since, for the purposes of the proposed bill [§ 7322 (1) the Presi-
deleterious effects on the impartial administration of and public con-
dent and Vice President are deemed to be employees, they are, unless
fidence in the Federal civil service, we strongly urge that the Com-
otherwise specifically excepted, covered by the political activity
mittee not report the proposed legislation favorably to the House. We
restrictions applicable to other employees. Thus, under proposed
should not turn our backs on a 50 year period of American history.
section 7325, they would be prohibited from engaging in any political
The Office of Management and Budget advises that there is no ob-
activity" while on duty, or in any room or building occupied in the
jection to the submission of this report and that enactment of this bill
discharge of official duties.
" An incumbent President would not
would not be in accord with the program of the President.
By direction of the Commission:
be permitted, under this provision, to engage in any campaign activi-
Sincerely yours,
ties, including campaign planning meetings or making campaign
speeches, within his offices at the White House. A question which
ROBERT E. HAMPTON,
immediately presents itself, of course, is, when is a President, or a
Chairman.
Vice President, not on duty?
39
38
stamps, or having their secretaries type and duplicate campaign
U.S. POSTAL SERVICE,
speeches as well as official reports. Moreover, allowing employee
Washington, D.C., May 22, 1975.
political activity during working hours will facilitate improper
Hon. DAVID N. HENDERSON,
coercion and "arm twisting" of employees who do not share the politi-
Chairman, Committee on Post Office and Civil Service, House of
cal persuasions of their supervisors or fellow employees.
Representatives, Washington, D.C.
For the reason stated, the Postal Service opposes the enactment of
DEAR MR. CHAIRMAN: This is in response to your request for the
H.R. 3000.
views of the Postal Service on H.R. 3000, the proposed "Federal
Sincerely,
W. ALLEN SANDERS,
Employees' Political Activities Act of 1975.'
The management of the Postal Service is dedicated to the concept,
Assistant General Counsel, Legislative Division,
implemented by the Postal Reorganization Act, that partisan politics
should not be allowed to interfere with the operation of the nation's
postal system. We think it would be a mistake for Congress to take
COMPTROLLER GENERAL OF THE UNITED STATES,
any action which could be interpreted or understood as a signal to
Washington, D.O., June 10, 1975.
reinstate the highly political atmosphere in which the old Post Office
Hon. DAVID N. HENDERSON,
Department was operated. Accordingly, we recommend against the
Chairman, Committee on Post Office and Civil Service,
application to the Postal Service of any legislation such as H.R. 3000
House of Representatives, Washington, D.C.
which, we believe, would permit the injection of partisan political
DEAR MR. CHAIRMAN: By letter of May 5, 1975, you requested our
considerations into every level of postal operations from the mailroom
report on H.R. 3000, 94th Congress, 1st Session, a bill "To restore to
floor to executive decision-making. As a practical matter it is our
Federal civilian employees their rights to participate, as private citi-
judgment that postal employees cannot be permitted to actively and
zens, in the political life of the Nation, to protect Federal civilian em-
openly participate in partisan politics as anticipated by H.R. 3000
ployees from improper political solicitations, and for other purposes."
without such activity inevitably becoming an influence in the opera-
The bill would amend sections 7323, 7324, and 7325 of title 5, United
tion of the Postal Service.
States Code, commonly known as the Hatch Act. Sections 7326 and
The most serious objection to H.R. 3000, from a postal standpoint,
7327 of title 5, United States Code, would be repealed.
is that it would permit the erosion of the generally accepted idea or
The proposed amendment of sections 7323 and 7325 would shift
understanding that postal officers and employees, as such, are expected
emphasis from removal of Federal employees for violations of the
to be non-partisan. However, an examination of H.R. 3000 also reveals
Hatch Act to lesser penalties, and correspondingly reduce the protec-
a number of specific ways in which the bill would permit partisan
tion of Federal civilian employees from improper political solicitations.
political activity to impinge upon everyday Federal and postal
The proposed amendment to section 7324 would permit a Federal
operations. For example, as amended by the bill, 5 U.S.C. § 7324 (5) and (8)
employee to take an active part in political management or in political
campaigns as a private citizen, including candidacy for nomination or
would allow Federal and postal employees to distribute campaign
election to any National, State, County, or municipal office, without
literature, distribute and wear campaign badges and buttons, initiate
involving his official authority or influence. We question whether this is
and sign nominating petitions, and canvass for the signatures of others.
possible. We believe any active participation by a Federal employee
In their present form, clauses (5) and (8) would not prohibit cam-
paigning and canvassing in a Federally owned or operated facility;
in political activities could involve or give the appearance of a conflict-
of-interest situation. Without guidelines of maximum specificity of
nor would they forbid campaigning and canvassing by employees
what constitutes official authority or influence, it would be virtually
during working hours, or while in uniform, or while otherwise per-
impossible to monitor or control the political involvement of a Federal
forming official duties. Similarly, proposed § 7324(c) (9) contains no
employee.
requirement that an employee who is a candidate for national, state,
Some modifications of the provisions of the Hatch Act, particularly
county or municipal office, or an employee who is elected or appointed
to such an office, take an unpaid leave of absence when his candidacy
as they relate to political activity in local communities, appear desir-
or his official duties unduly infringe upon his Federal job perform-
able. Changes of the scope proposed by the bill, however, would place
an unmanageable administrative burden on the merit system and
ance. Indeed, proposed § 7324 contains no explicit prohibition against
the use of Federal facilities, materials, personnel, or working hours
would dilute the protections afforded Federal employees by the Hatch
Act.
by employees who are taking an active part in political management
Accordingly, it is recommended that the legislation not be enacted.
or in political campaigns.
Obviously, the absence of safeguards in proposed new § 7324 pre-
Sincerely yours,
ELMER B. STAATS.
sents significant opportunities for the abuse of Federal and postal
resources and employment by employees engaged in political activity.
Comptroller General of the United States.
The Government's work will not be done efficiently or economically
by employees who are dispensing political literature along with
40
41
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
THE GENERAL COUNSEL OF THE TREASURY,
Washington, D.C., May 13, 1975.
Washington, D.C., June 16, 1975.
Hon. DAVID N. HENDERSON,
Hon. DAVID N. HENDERSON,
Chairman, House Post Office and Civil Service Committee, House of
Chairman, Committee on Post Office and Civil Service, House of Rep-
Representatives, Washington, D.C.
resentatives, Washington, D.C.
DEAR CHAIRMAN HENDERSON I understand that Congressman Clay
DEAR MR. CHAIRMAN: The Department would like to take this op-
is now conducting a series of hearings by his subcommittee on H.R.
portunity to comment on H.R. 3000, a bill, "To restore to Federal
3000, a bill to revise the present Hatch Act, which restricts political
civilian employees their rights to participate, as private citizens, in the
activity of government employees. While I was not invited to testify
political life of the Nation, to protect Federal civilian employees from
on this legislation, I have read the bill, and testimony about it, includ-
improper political solicitations, and for other purposes."
ing a strong statement in opposition by Chairman Hampton of the
The primary thrust of the bill is to repeal the existing restrictions
Civil Service Commission. It seems to me that if H.R. 3000 passes in
on political activities as set forth at 5 U.S.C. 7324 (a) (2). This provi-
its present form, it would damage the appearance of non-partisan ob-
sion prohibits Federal employees and employees of the District of Co-
jectivity in the conduct of Federal tax administration, which I believe
lumbia from participation in partisan political campaigns.
is essential to maintaining public confidence in the Internal Revenue
While the Department appreciates and lauds the efforts of Congress
Service.
to increase the political rights of Federal employees, it is particularly
The Service's top manager in the North-Atlantic Region, Regional
concerned with the potential abuses and negative impact that such
Commissioner Elliott Gray, recently testified on the bill before Con-
legislation could have upon the Government's merit system principles
gressman Clay in New York City. Mr. Gray was appearing in his
and practices. Without the protection of a public policy that limits the
private capacity as a concerned citizen and life-time civil servant,
political activities of public employees, an employee would be vulner-
rather than as a representative of the Administration. I am attaching
able to indirect influence to support the political party or candidates
a copy of his statement, which I believe is an excellent expression of
favored by those in a position to affect the employee's government
the problems we in Internal Revenue see in H.R. 3000.
career.
The Civil Service Commission has a fine booklet, on the "Do's" and
Under current restrictions a covered employee cannot serve politi-
"Don't's" for employee political activity, under the present Hatch
cal purposes, except at the risk of loss of employment. By limiting the
Act. The trouble is that too many Federal employees are not familiar
Government employee's involvement in partisan political activities,
with these rules, and they lean over backward and avoid even permis-
the Hatch Act serves to assure that employees will not be compelled, or
sible political activities. It would be helpful if the present specific
feel themselves compelled, to engage in unwanted partisan political
restrictions, the "Do's" and "Don't's", were spelled out clearly in the
activities in order to curry political favor with their superiors and
law itself, rather than being inferred from a body of Civil Service
thereby enhance their prospects for continued employment or for ad-
Commission and court decisions on a vaguely-worded statute.
vancement. The thin line between voluntary and involuntary contribu-
I also would like to see provision for a positive education program
tions and participation would become even more nebulous and un-
for government employees, on what they can and can't do in political
provable, and the pressures and subtle coercion to which the employee
matters. Perhaps this could be jointly undertaken by the Civil Serv-
could be subjected greatly increased. This protection of the Federal
ice Commission, agency training officials, and the unions, with mate-
employee would be taken away by the proposed legislation.
rials and training aids provided by government funds. I would also
In addition, there are many agencies, including the Department of
like to see authorization for a flexible range of penalties and correc-
the Treasury, which have the power under law to acquire information
tive actions, administered in accordance with the circumstances of
about individuals which can be highly valuable in advancing or de-
particular cases of infringement on the rules.
feating the interests of partisan political candidates. To place em-
What I definitely would not like to see, however, and certainly not
ployees of such agencies in a public, partisan political arena could sub-
in the Internal Revenue Service, is a return to the bad old days when
ject them to improper pressures to divulge or misuse such information
officials and employees whose actions and decisions affect individual
and, therefore, tend to compromise them and their agencies. The De-
members of the public, are themselves candidates for political office
partment's Internal Revenue Service is one such office wherein the re-
while serving in government jobs, or actively campaign for partisan
strictions of the Hatch Act help to build and support the public con-
candidates, under party sponsorship. It strikes me as improper for a
fidence that is so essential to a voluntary compliance tax system
revenue agent or revenue officer to go out soliciting the public for votes
founded on the belief that everybody will pay his or her just share,
either for himself, as a party candidate, or for a political nominee of
free of political or other improper consideration or favoritism. To re-
a party. That is what H.R. 3000 would allow, and I hope such provi-
move those restrictions, as the proposed amendments would, could re-
sions are deleted before the bill moves further towards enactment.
sult in an erosion of public confidence in the impartial administration,
With kind regards,
not only of the tax system, but also of all government.
Sincerely,
When the public sees a Federal employee who is prominently identi-
DONALD C. ALEXANDER.
fied with partisan politics, and at the same time charged with respon-
H. Rept. 94-414-6
42
43
for the impartial, nonpartisan execution of public duties, lim- it
sibility will inevitably have doubts about that employee's impartiality. By the
For the purpose of this section, the Hatch Act amendment would
the Government employee's involvement in partisan allow politics, parti-
also apply to employees of the United States Postal Service. Proposed
iting Hatch Act reduces the likelihood that the employee will of the
sec. 7324(d). There is no exemption for components of agencies, such
san Government's business. To amend the Act, as proposed by 3000,
political views to interfere with the impartial execution H.R.
as the Federal Bureau of Investigation of the Department of Justice.
In U.S. Civil Service Commission V. National Association of Letter
Carriers, 413 U.S. 548 (1973), the Supreme Court recently sustained
removes these safeguards.
Any benefits to Federal employees in increased political rights re-
the constitutionality of 5 U.S.C. 7324 (a) (2), which prohibits federal
from the liberalization of the Hatch Act by the proposed
employees from taking an active part in political management or in
amendments sulting of H.R. 3000 would be outweighed and overshadowed by
political campaigns. The Court held that Congress had the power to
the accompanying negative impact on the Government's merit system Gov-
prevent federal employees from holding a party office; working at the
ernment operations. The Department of the Treasury, accordingly,
and on public confidence in the nonpartisan administration of
polls; organizing a political party or club; actively participating in
fund-raising for a partisan candidate or political party; initiating a
partisan nominating petition, soliciting votes for a partisan candidate
strongly opposes enactment of H.R. 3000.
The Department has been advised by the Office of Management and
for public office; or serving as a delegate to a political party conven-
Budget that there is no objection from the standpoint of the Adminis-
tion-in sum, that Congress had authority to regulate various activi-
tration's program to the submission of this report to your Committee.
ties (such as H.R. 3000 would expressly permit), and that such
regulation is not barred either by the First Amendment or any other
Sincerely yours,
RICHARD R. ALBRECHT,
provision of the Constitution. 413 U.S. at 556. In overruling these
General Counsel.
constitutional objections, the Court said (413 U.S. at 564-565)
"It seems fundamental in the first place that employees in the Exeu-
tive Branch of the Government, or those working for any of its agen-
DEPARTMENT OF JUSTICE,
cies, should administer the law in accordance with the will of Congress.
Washington, D.C., June 26, 1975.
rather than in accordance with their own or the will of a political
Hon. DAVID N. HENDERSON,
party. They are expected to enforce the law and execute the programs
Chairman, Committee on Post Office and Civil Service, House of Rep-
of the Government without bias or favoritism for or against any
resentatives, Washington, D.C.
political party or group or the members thereof. A major thesis of the
DEAR MR. CHAIRMAN: This is in response to your request for the
Hatch Act is that to serve this great end of Government-the impar-
views of the Department of Justice on H.R. 3000, a bill "To restore
tial execution of the laws-it is essential that federal employees not,
to Federal civilian employees their rights to participate, as private
for example, take formal positions in political parties, not undertake
citizens, in the political life of the Nation, to protect Federal civilian
to play substantial roles in partisan political campaigns and not run
employees from improper political solicitations, and for other pur-
for office on partisan political tickets. Forbidding activities like these
will reduce the hazards to fair and effective government.
poses." The chief purpose of H.R. 3000 is to amend the Hatch Act, particu-
"There is another consideration in this judgment it is not only im-
larly 5 U.S.C. 7324 (a), so as to permit Federal civilian and Postal
portant that the Government and its employees in fact avoid practic-
Service employees to take an active part in political management or
ing political justice, but it is also critical that they appear to the public
in political campaigns in their roles as private citizens and without
to be avoiding it, if confidence in the system of representative Govern-
involving their official authority or influence. Sec. 3 (a). Since this
ment is not to be eroded to a disastrous extent."
provision goes to the heart of the bill, we confine our comments to it.
As the Court also pointed out, "Until now, the judgment of Con-
The phrase "active part in political management or in political cam-
gress, the Executive and the country appears to have been that partisan
paigns" would be broadly defined (see proposed section 7324 SO
political activities by federal employees must be limited if the Gov-
as to permit participation by Federal employees in political activities
ernment is to operate effectively
and employees themselves are to
such as the following: "Candidacy for service as a delegate in politi-
be sufficiently free from improper influences." Id. at 564. We are not
cal convention; participation in the deliberations of any primary
aware of any substantial evidence within our recent experience which
meeting, mass convention or caucus, addressing the meeting or other-
requires this judgment to be altered.
wise taking a prominent part; preparing for, organizing or conduct-
Apart from its consequences on federal employees in general, H.R.
ing a political meeting or rally on any partisan political matter; mem-
3000 would be particularly objectionable SO far as the Department of
bership in political clubs and organizing of such a club; distributing
Justice is concerned. Under it, personnel of the Federal Bureau of In-
campaign literature, badges and buttons; publishing or having edi-
vestigation would no longer have to abstain from taking an "active
torial or managerial connection with partisan political publications;
part in political management or political campaigns," as that term is
organizing a political parade; initiating and circulating nominating
defined in the bill. The Department of Justice feels it to be essential to
petitions for a partisan candidate, including canvassing for signa-
the future success of the FBI that it continue to maintain the public
tures; candidacy for any public office-national, state or at any other
image of complete detachment from political affairs.
local level."
44
45
For the foregoing reasons, the Department of Justice strongly op-
(B) a summary of information received by the Com-
poses enactment of H.R. 3000.
mission from the agencies under section 4113(b) of this
The Office of Management and Budget has advised that there is no
title; and
objection to the submission of this report from the standpoint of the
(C) the recommendations and other matters considered
Administration's program.
appropriate by the President or the Commission or required
Sincerely,
by Congress.
A MITCHELL McConnell, JR.,
Acting Assistant Attorney General.
Part III-Employees
CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
Subpart B-Employment and Retention
In compliance with clause 3 of rule XIII of the Rules of the House
of Representatives, changes in existing law made by the bill, as re-
ported, are shown as follows (existing law proposed to be omitted is
enclosed in black brackets, new matter is printed in italic, existing law
Chapter 33-Examination, Selection, and Placement
in which no change is proposed is shown in roman) :
TITLE 5, UNITED STATES CODE
Subchapter I-Examination, Certification, and Appointment
*
a
PART II-THE UNITED STATES CIVIL SERVICE
§ 3302. Competitive service; rules
COMMISSION
The President may prescribe rules governing the competitive service.
The rules shall provide, as nearly as conditions of good administration
warrant, for-
Chapter 13-Special Authority
(1) necessary exceptions of positions from the competitive
service; and
*
*
*
*
(2) necessary exceptions from the provisions of sections 2951,
3304 (a), 3306 (a) (1), 3321, 7152, [7153, 7321, and 7322] and 7153
§ 1308. Annual reports
of this title.
(a) The Civil Service Commission shall make an annual report to
Each officer and individual employed in an agency to which the rules
the President for transmittal to Congress. The report shall include-
apply shall aid in carrying out the rules.
(1) a statement of the Commission's actions in the administra-
*
tion of the competitive service, the rules and regulations and
exceptions thereto in force, the reasons for exceptions to the rules,
Subpart F-Employee Relations
the practical effects of the rules and regulations, and any recom-
mendations for the more effectual accomplishment of the purposes
of the provisions of this title that relate to the administration
of the competitive service;
Chapter 73-Suitability, Security, and Conduct
(2) the results of the incentive awards program authorized
by chapter 45 of this title with related recommendations; and
(3) at the end of each fiscal year, the names, addresses, and
Subchapter III-Political Activities
nature of employment of the individuals on whom the Commis-
Sec.
sion has imposed a penalty for prohibited political activity under
7321. Political contributions and services.
section 7325 of this title with a statement of the facts on which
7322. Political use of authority or influence; prohibition.
action was taken, and the penalty imposed; and
7323. Political contributions; prohibition.
[(4)] (3) a statement, in the form determined by the Commis-
sion with the approval of the President, on the training of em-
7324. Influencing elections; taking part in political campaigns;
ployees under chapter 41 of this title, including-
prohibitions; exceptions.
7325. Penalties.
(A) a summary of information concerning the operation
7326. Nonpartisan political activity permitted.
and results of the training programs and plans of the
7327. Political activity permitted ; employees residing in certain
agencies;
municipalities.
46
47
Sec.
7321. Political participation.
(c) Subsection (a) of this section does not apply to an individual
7322. Definitions.
employed by an educational or research institution, establishment,
7323. Use of official authority or influence; prohibition.
agency, or system which is supported in whole or in part by the District
7324. Solicitation; prohibition.
of Columbia or by a recognized religious, philanthropic, or cultural
7325. Political activities on duty, etc.; prohibition.
organization.
7326. Leave for candidates for elective office.
[(d) Subsection (a) (2) of this section does not apply to-
7327. Board on Political Activities of Federal Employees.
[(1) an employee paid from the appropriation for the office of
7328. Investigation; procedures; hearing.
the President;
7329. Penalties.
[(2) the head or the assistant head of an Executive department
7330. Educational program; reports.
or military department;
7331. Regulations.
[(3) an employee appointed by the President, by and with the
*
advice and consent of the Senate, who determines policies to be
pursued by the United States in its relations with foreign powers
[Subchapter III-Political Activities
or in the nationwide administration of Federal laws;
(4) the Mayor of the District of Columbia, the members of
[§ 7321. Political contributions and services
the Council of the District of Columbia, or the Chairman of the
[The President may prescribe rules which shall provide, as nearly
Council of the District of Columbia, as established by the District
as conditions of good administration warrant, that an employee in an
of Columbia Self-Government and Governmental Reorganization
Executive agency or in the competitive service is not obliged, by reason
Act; or
of that employment, to contribute to a political fund or to render
(5) the Recorder of Deeds of the District of Columbia.
political service, and that he may not be removed or otherwise preju-
[§ 7325. Penalties
diced for refusal to do SO.
[An employee or individual who violates section 7324 of this title
[§ 7322. Political use of authority or influence; prohibition
shall be removed from his position, and funds appropriated for the
[The President may prescribe rules which shall provide, as nearly as
position from which removed thereafter may not be used to pay the
employee or individual. However, if the Civil Service Commission
conditions of good administration warrant, that an employee in an
finds by unanimous vote that the violation does not warrant removal,
Executive agency or in the competitive service may not use his official
a penalty of not less than 30 days' suspension without pay shall be
authority or influence to coerce the political action of a person or body.
imposed by direction of the Commission.
ES 7323. Political contributions; prohibition
[§ 7326. Nonpartisan political activity permitted
[An employee in an Executive agency (except one appointed by the
[Section 7324 (a) (2) of this title does not prohibit political activity
President, by and with the advice and consent of the Senate) may not
in connection with-
request or receive from, or give to, an employee, a Member of Congress,
[(1) an election and the preceding campaign if none of the
or an officer of a uniformed service a thing of value for political pur-
candidates is to be nominated or elected at that election as repre-
poses. An employee who violates this section shall be removed from
senting a party any of whose candidates for presidential elector
the service.
received votes in the last preceding election at which presidential
[§ 7324. Influencing elections; taking part in political campaigns;
electors were selected; or
prohibitions; exceptions
(2) a question which is not specifically identified with a
[(a) An employee in an Executive agency or an individual em-
National or State political party or political party of a territory
ployed by the government of the District of Columbia may not-
or possession of the United States.
[(1) use his official authority or influence for the purpose of
For the purpose of this section, questions relating to constitutional
interferring with or affecting the result of an election; or
amendments, referendums, approval of municipal ordinances, and
[(2) take an active part in political management or in politi-
others of a similar character, are deemed not specifically identified
cal campaigns.
with a National or State political party or political party of a terri-
For the purpose of this subsection, the phrase "an active part in polit-
tory or possession of the United States.
ical management or in political campaigns" means those acts of polit-
[§ 7327. Political activity permitted; employees residing in cer-
ical management or political campaigning which were prohibited on
tain municipalities
the part of employees in the competitive service before July 19, 1940,
[(a) Section 7324 (a) (2) of this title does not apply to an employee
by determinations of the Civil Service Commission under the rules
of The Alaska Railroad who resides in a municipality on the line of
prescribed by the President.
[(b) An employee or individual to whom subsection (a) of this sec-
the municipality. railroad in respect to political activities involving that
tion applies retains the right to vote as he chooses and to express his
[(b) The Civil Service Commission may prescribe regulations per-
opinion on political subjects and candidates.
mitting employees and individuals to whom section 7324 of this title
48
49
applies to take an active part in political management and political
(C) includes the payment by any person, other than a
campaigns involving the municipality or other political subdivision in
candidate or a political organization, of compensation for the
which they reside, to the extent the Commission considers it to be in
personal services of another person which are rendered to
their domestic interest, when-
such candidate or political organization without charge for
[(1) the municipality or political subdivision is in Maryland
any such purpose;
or Virginia and in the immediate vicinity of the District of Co-
(4) "superior" means an employee (other than the President
lumbia, or is a municipality in which the majority of voters are
or the Vice President) who exercises supervision of, or control or
employed by the Government of the United States; and
administrative direction over, another employee;
((2) the Commission determines that because of special or
unusual. circumstances which exist in the municipality or politi-
(5) "elective office" means any elective public office and any
cal subdivision it is in the domestic interest of the employees and
elective office of any poltical party or affiliated organization;
and
individuals to permit that political participation.]
(6) "Board" means the Board on Political Activities of Fed-
Subchapter III-Political Activities
eral Employees established under section 7327 of this title.
§ 7321. Political participation
§ 7323. Use of official authority or influence; prohibition
It is the policy of the Congress that employees should be encouraged
to fully exercise, to the extent not expressly prohibited by law, their
(a) An employee may not directly or indirectly use or attempt to
rights of voluntary participation in the political processes of our
use the official authority or influence of such employee for the purpose
of-
Nation.
(1) interfering with or affecting the result of any election; or
$ 7322. Definitions
(2) intimidating, threatening, coercing, commanding, influ-
For. the purpose of this subchapter-
encing, or attempting to intimidate, threaten, coerce, command,
(1) "employee" means any individual, including the President
or influence-
and the Vice President, employed or holding office in-
(A) any individual for the purpose of interferring with
(A) an Executive agency,
the right of any individual to vote as such individual may
(B) the government of the District of Columbia,
choose, or of causing any individual to vote, or not to vote,
(C) the competitive service, or
for any candidate or measure in any election;
(D) the United States Postal Service or the Postal Rate
(B) any person to give or withhold any poltical contribu-
Commission;
tion; or
but does not include a member of the uniformed services;
(0) any person to engage, or not to engage, in any form
(2) "candidate" means any individual who seeks nomination
of political activity whether or not such activity is prohibited
for election, or election, to any elective office, whether or not such
by law.
individual is elected, and, for the purpose of this paragraph, an
(b) For the purpose of subsection (a) of this section, "use of official
individual shall be deemed to seek nomination for election, or
authority or influence" includes, but is not limited to, promising to
election, to an elective office, if such individual has-
confer or conferring any benefit (such as appointment, promotion,
(A) taken the action required to qualify for nomination
compensation, grant, contract, license, or ruling), or effecting or threat-
for election, or election, or
ening to effect any reprisal (such as deprivation of appointment,
(B) received political contributions or made expenditures,
promotion, compensation, grant, contract, license, or ruling).
or has given consent for any other person to receive political
contributions or make expenditures, with a view to bringing
§ 7324. Solicitation; prohibition
about such individual's nomination for election, or election,
to such office;
An employee may not-
(3) "political contribution"-
(1) give or offer to give a political contribution to any indi-
(4) means a gift, subscription, loan, advance, or deposit of
vidual either to vote or refrain from voting, or to vote for or
money or anything of value, made for the purpose of influenc-
against any candidate or measure, in any election;
ing the nomination for election, or election, of any individual
(2) solicit, accept, or receive a political contribution to vote
to elective office or for the purpose of otherwise influencing
or refrain from voting, or to vote for or against any candidate
the results of any election;
or measure, in any election;
(B) includes a contract, promise, or agreement, express or
(3) knowingly give or hand over a political contribution to a
implied, whether or not legally enforceable, to make a politi-
superior of such employee; or
cal contribution for any such purpose; and
50
51
(4) knowingly solicit, accept, or receive, or be in any manner
concerned with soliciting, accepting, or receiving, a political
(b) The Board shall be composed of 3 members-
(1) one member of which shall be appointed, with the confirma-
contribution-
tion of a majority of both Houses of the Congress, by the Presi-
(4) from another employee (or a member of another em-
dent and who shall serve as Chairman of the Board;
ployee's immediate family) with respect to whom such em-
(2) one member of which shall be appointed, with the confirma-
ployee is a superior; or
(B) in any room or building occupied in the discharge of
tion of a majority of both Houses of the Congress, by the Speaker
of the House of Representatives, after consultation with the ma-
official duties by-
jority leader of the House and the minority leader of the House;
(i) an individual employed or holding office in the
and
Government of the United States, in the government of
(3) one member of which shall be appointed, with the confirma-
the District of Columbia, or in any agency or instrumen-
tion of a majority of both Houses of the Congress, by the Presi-
tality of the foregoing; or
dent pro tempore of the Senate, after consultation with the ma-
(ii) an individual receiving any salary or compensa-
jority leader of the Senate and the minority leader of the Senate.
tion for services from money derived from the Treasury
(c) Members of the Board shall be chosen on the basis of their pro-
of the United States.
fessional qualifications from among individuals who, at the time of
§ 7325. Political activities on duty, etc.; prohibition
their appointment, are employees (as defined under section 7322 (1)
(a) An employee may not engage in political activity-
of this title).
(1) while such employee is on duty,
(d) (1) Members of the Board shall serve a term of 3 years, except
(2) in any room or building occupied in the discharge of official
that of the members first appointed-
duties by an individual employed or holding office in the Govern-
(A) the Chairman shall be appointed for a term of 3 years,
ment of the United States, in the government of the District of
(B) the member appointed under subsection (b) (2) of this sec-
Columbia, or in any agency or instrumentality of the foregoing, or
tion shall be appointed for a term of 2 years, and
(3) while wearing a uniform or official insignia identifying the
(C) the member appointed under subsection (b) (3) of this sec-
office or position of such employee.
tion shall be appointed for a term of 1 year.
(b) The provisions of subsection (a) of this section shall not apply
An individual appointed to fill a vacancy occurring other than by the
to-
expiration of a term of office shall be appointed only for the unexpired
(1) the President and the Vice President; or
term of the member such individual will succeed. Any vacancy occur-
(2) an individual-
ring in the membership of the Board shall be filled in the same manner
(A) paid from the appropriation for the White House
as in the case of the original appointment.
Office,
(2) If an employee who was appointed as a member of the Board is
(B) paid from funds to enable the Vice President to pro-
separated from service as an employee he may not continue as a mem-
vide assistance to the President, or
ber of the Board after the 60-day period beginning on the date so
(C) on special assignment to the White House Office,
separated.
unless such individual holds a career or career-conditional ap-
(e) The Board shall meet at the call of the Chairman.
pointment in the competitive service.
(f) All decisions of the Board with respect to the exercise of its
duties and powers under the provisions of this subchapter shall be
§ 7326. Leave for candidates for elective office
made by a majority vote of the Board.
(a) An employee who is a candidate for elective office shall, upon the
(g) A member of the Board may not delegate to any person his vote
request of such employee, be granted leave without pay for the purpose
nor, except as expressly provided by this subchapter, may any decision-
of allowing such employee to engage in activities relating to such
making authority vested in the Board by the provisions of this sub-
candidacy.
chapter be delegated to any member or person.
(b) Notwithstanding section of this title, an employee who
(h) The Board shall prepare and publish in the Federal Register
is a candidate for elective office shall, upon the request of such em-
written rules for the conduct of its activities, shall have an official seal
ployee, be granted accrued annual leave for the purpose of allowing
which shall be judicially noticed, and shall have its office in or near
such employee to engage in avtivities relating to such candidacy. Such
the District of Columbia (but it may meet or exercise any of its pow-
leave shall be in addition to leave without pay to which such employee
ers anywhere in the United States).
may be entitled under subsection (a) of this section.
(i) The Civil Service Commission shall provide such clerical and
§ 7327. Board on Political Activities of Federal Employees
professional personnel, and administrative support, as the Chairman
(a) There is established a board to be known as the Board on Politi-
of the Board considers appropriate and necessary to carry out the
cal Activities of Federal Employees. It shall be the function of the
Board's functions under this subchapter. Such personnel shall be re-
Board to hear and decide cases regarding violations of sections 7323,
sponsible to the Chairman of the Board.
7324, and 7325 of this title.
52
53
(j) The Administrator of the General Services Administration shall
(E) the Chairman or a member of the Council of the District
furnish the Board suitable office space appropriately furnished and
of Columbia, as established by the District of Columbia Self-
equipped, as determined by the Administrator.
Government and Governmental Reorganization Act;
(k) (1) Members of the Board shall receive no additional pay on
the Commission shall refer the case to the Attorney General for
account of their service on the Board.
prosecution under title 18, and shall report the nature and details of
(2) Members shall be entitled to leave without loss of or reduction
the violation to the President and to the Congress.
in pay, leave, or performance or efficiency rating during a period of
(d) (1) If a written answer is not duly filed within the time allowed
absence while in the actual performance of duties vested in the Board.
therefor, the Board may, without further proceedings, issue its final
decision and order.
§ 7328. Investigation; procedures; hearing
(2) If an answer is duly filed, the charges shall be determined by
(a) The Civil Service Commission shall investigate reports and alle-
the Board on the record after a hearing conducted by a hearing ex-
gations of any activity prohibited by section 7323, 7324, or 7325 of this
aminer appointed under section 3105 of this title, and, except as other-
title.
wise expressly provided under this subchapter, in accordance with the
(b) A8 a part of the investigation of the activities of an employee,
requirements of subchapter II of chapter 5 of this title, notwithstand-
the Commission shall provide such employee an opportunity to make
ing any exception therein for matters involving the tenure of an em-
a statement concerning the matters under investigation and to support
ployee. The hearing shall be commenced within 30 days after the
such statement with any documents the employee wishes to submit. An
answer is filed with the Board and shall be conducted without un-
employee of the Commission lawfully assigned to investigate a viola-
reasonable delay. As soon as practicable after the conclusion of the
tion of this subchapter may administer an oath to a witness attending
hearing, the examiner shall serve upon the Board, the Commission,
to testify or depose in the course of the investigation.
and the employee such examiner's recommended decision with notice
(c) (1) If it appears to the Commission after investigation that a
to the Commission and the employee of opportunity to file with the
violation of section 7323, 7324, or 7325 of this title has not occurred, it
Board, within 30 days after the date of such notice, exceptions to the
shall 80 notify the employee and the agency in which the employee is
recommended decision. The Board shall issue its final decision and
employed.
order in the proceeding no later than 60 days after the date the recom-
(2) Except as provided in paragraph (3) of this subsection, if it
mended decision is served. The employee shall not be removed from
appears to the Commission after investigation that a violation of
active duty status by reason of the alleged violation of this subchapter
section 7323, 7324, or 7325 of this title has occurred, the Commission
at any time before the effective date specified by the Board in its final
shall submit to the Board and serve upon the employee a notice by
order.
certified mail, return receipt requested (or if notice cannot be served
(e) (1) At any stage of a proceeding or investigation under this
in such manner, then by any method calculated to reasonably apprise
subchapter, the Board may, at the written request of the Commission
the employee)-
or the employee, require by subpena the attendance and testimony of
(A) setting forth specifically and in detail the charges of
witnesses and the production of documentary or other evidence relat-
alleged prohibited activity;
ing to the proceeding or investigation at any designated place, from
(B) advising the employee of the penalties provided under
any place in the United States or any territory or possession thereof,
section 7329 of this title;
the Commonwealth of Puerto Rico, or the District of Columbia. Any
(C) specifying a period of not less than 30 days within which
member of the Board may issue subpenas and members of the Board
the employee may file with the Board a written answer to the
and any hearing examiner authorized by the Board may administer
charges in the manner prescribed by rules issued by the Board;
oaths, examine witnesses, and receive evidence. In the case of contu-
and
macy or failure to obey a subpena, the United States district court for
(D) advising the employee that unless the employee answers
the judicial district in which the person to whom the subpena is ad-
the charges, in writing, within the time allowed therefor, the
dressed resides or is served may, upon application by the Board,
Board is authorized to treat such failure as an admission by the
issue an order requiring such person to appear at any designated place
employee of the charges set forth in the notice and a waiver by
to testify or to produce documentary or other evidence. Any failure to
the employee of the right to a hearing on the charges.
obey the order of the court may be punished by the court as a contempt
(3) If it appears to the Commission after investigation that a
thereof.
violation of section 7323, 7324, or 7325 of this title has been committed
(2) The Board (or a member designated by the Board) may order
by-
the taking of depositions at any stage of a proceeding or investigation
(A) the Vice President;
under this subchapter. Depositions shall be taken before an individ-
(B) an employee appointed by the President by and with the
ual designated by the Board and having the power to administer oaths.
advice and consent of the Senate;
Testimony shall be reduced to writing by or under the direction of the
(0) an employee whose appointment is expressly required by
individual taking the deposition and shall be subscribed by the
statute to be made by the President;
deponent.
(D) the Mayor of the District of Columbia; or
54
55
(3) An employee may not be excused from attending and testifying
§ 7329. Penalties
or from producing documentary or other evidence in obedience to a
(a) Subject to and in accordance with section 7328 of this title, an
subpena of the Board on the ground that the testimony or evidence
required of the employee may tend to incriminate the employee or sub-
employee who is found to have violated any provision of section 7323,
ject the employee to a penalty or forfeiture for or on account of any
7324, or 7325 of this title shall, upon a final order of the Board, be-
transaction, matter, or thing concerning which the employee is com-
(1) removed from such employee's position, in which event
pelled to testify or produce evidence. No employee shall be prosecuted
that employee may not thereafter hold any position (other than
an elected position) as an employee (as defined in section 7322 (1)
or subjected to any penalty or forfeiture for or on account of any trans-
action, matter, or thing concerning which the employee is compelled,
of this title) for such period as the Board may prescribe;
after having. claimed the privilege against self-incrimination, to testify
(2) suspended without pay from such employee's position for
or produce evidence, nor shall testimony or evidence so compelled be
such period as the Board may prescribe; or
used as evidence in any criminal proceeding against the employee in
(3) disciplined in such other manner as the Board shall deem
any court, except that no employee shall be exempt from prosecution
appropriate.
and punishment for perjury committed in 80 testifying.
(b) The Board shall notify the Commission, the employee, and the
(f) An employee upon whom a penalty is imposed by an order of
employing agency of any penalty it has imposed under this section.
the Board under subsection (d) of this section may, within 30 days
The employing agency shall certify to the Board the measures under-
after the date on which the order was issued, institute an action for
taken to implement the penalty.
judicial review of the Board's order in the United States District
§ 7330. Educational program; reports
Court for the District of Columbia or in the United States district
(a) The Commission shall establish and conduct a continuing pro-
court for the judicial district in which the employee resides or is em-
gram to inform all employees of their rights of political participation
ployed. The institution of an action for judicial review shall not
and to educate employees with respect to those political activities
operate as a stay of the Board's order, unless the court specifically
which are prohibited. The Commission shall inform each employee
orders such stay. A copy of the summons and complaint shall be served
individually in writing, at least once each calendar year, of such em-
as otherwise prescribed by law and, in addition, upon the Board.
ployee's political rights and of the restrictions under this subchapter.
Thereupon the Board shall certify and file with the court the record
The Commission may determine, for each State, the most appropriate
upon which the Board's order was based. If application is made to
date for providing information required by this subsection. Such in-
the court for leave to adduce additional evidence, and it is shown to
formation, however, shall be provided to employees employed or hold-
the satisfaction of the court that the additional evidence may mate-
ing office in any State not later than 60 days before the earliest pri-
rially affect the result of the proceeding and that there were reasonable
mary or general election for State or Federal elective office held in
grounds for failure to adduce the evidence at the hearing conducted
such State.
under subsection (d) (2) of this section, the court may direct that the
(b) On or before March 30 of each calendar year, the Commission
additional evidence be taken before the Board in the manner and on
shall submit a report covering the preceding calendar year to the
the terms and conditions fixed by the court. The Board may modify its
Speaker of the House of Representatives and the President pro tem-
findings of fact or order, in the light of the additional evidence, and
pore of the Senate for referral to the appropriate committees of the
shall file with the court such modified findings or order. The Board's
Congress. The report shall include-
findings of fact, if supported by substantial evidence, shall be con-
(1) the number of investigations conducted under section 7328
clusive. The court shall affirm the Board's order if it determines that it
of this title and the results of such investigations;
is in accordance with law. If the court determines that the order is
(2) the name and position or title of each individual involved,
not in accordance with law-
and the funds expended by the Commission, in carrying out the
(1) it shall remand the proceeding to the Board with direc-
program required under subsection (a) of this section; and
tions either to enter an order determined by the court to be lawful
(3) an evaluation which describes-
or to take such further proceedings as, in the opinion of the court,
(4) the manner in which such program is being carried
are required; and
out; and
(2) it may assess against the United States reasonable attor-
(B) the effectiveness of such program in carrying out the
ney fees and other litigation costs reasonably incurred by the
purposes set forth in subsection (a) of this section.
employee.
(g) The Commission or the Board, in its discretion, may proceed
§ 7331. Regulations
with any investigation or proceeding instituted under this subchapter
The Civil Service Commission shall prescribe such rules and regu-
nothwithstanding that the Commission or the head of an employing
lations as may be necessary to carry out its responsibilities under this
agency or department has reported the alleged violation to the At-
subchapter.
torney General as required by section 535 of title 28.
56
57
Chapter 83-Retirement
Chapter 89-Health Insurance
Subchapter III-Civil Service Retirement
§ 8906. Contributions
(a)
§ 8332. Creditable service
(e) (1) An employee enrolled in a health benefits plan under this
(a)
*
*
*
chapter who is placed in a leave without pay status may have his cov-
erage and the coverage of members of his family continued under the
*
plan for not to exceed 1 year under regulations prescribed by the
(k) (1) An employee who enters on leave without pay granted under
Commission. The regulations may provide for the waiving of contri-
section 7326 (a) of this title, or who enters on approved leave without
butions by the employee and the Government.
pay to serve as a full-time officer or employee of an organization com-
(2) An employee who enters on leave without pay granted under
posed primarily of employees as defined by section 8331 (1) of this
section 7326 (a) of this title, or who enters on approved leave without
title, which 60 days after entering on that leave without pay, may file
pay to serve as a full-time officer or employee of an organization com-
with his employing agency an election to receive full retirement credit
posed primarily of employees as defined by section 8901 of this title,
for his periods of that leave without pay and arrange to pay currently
within 60 days after entering on that leave without pay, may file with
into the Fund, through his employing agency, amounts equal to the
his employing agency an election to continue his health benefits enroll-
retirement deductions and agency contributions that would be appli-
ment and arrange to pay currently into the Employees Health Benefits
cable if he were in pay status. If the election and all payments pro-
Fund, through his employing agency, both employee and agency con-
vided by this paragraph are not made, the employee may not receive
tributions from the beginning of leave without pay. The employing
credit for the periods of leave without pay occurring after July 17,
agency shall forward the enrollment charges so paid to the Fund. If
1966, notwithstanding the [second] last sentence of subsection (f) of
the employee does not SO elect, his enrollment will continue during
this section. For the purpose of the preceding sentence, "employee"
nonpay status and end as provided by paragraph (1) of this subsection
includes an employee who was on approved leave without pay and
and implementing regulations.
serving as a full-time officer or employee of such an organization on
*
July 18, 1966, and who filed a similar election before September 17,
1966.
TITLE 18, UNITED STATES CODE
Chapter 87-Life Insurance
*
§ 8706. Termination of insurance
Chapter 29.-Elections and Political Activities
(a)
*
*
*
*
(e) Notwithstanding subsections (a)-(c) of this section, an em-
§ 602. Solicitation of political contributions
ployee who enters on leave without pay granted under section 7326 (a)
Whoever, being a Senator or Representative in, or Delegate or
of this title, or who enters on approved leave without pay to serve as a
Resident Commissioner to, or a candidate for Congress, or indi-
full-time officer or employee of an organization composed primarily of
vidual elected as, Senator, Representative, Delegate, or Resident
employees as defined by section 8701 (a) of this title, within 60 days
Commissioner, or an officer or employee of the United States or
after entering on- that leave without pay, may elect to continue his
any department or agency thereof, or a person receiving any salary
insurance and arrange to pay currently into the Employees' Life In-
or compensation for services from money derived from the Treasury
surance Fund, through his employing agency, both employee and
of the United States, directly or indirectly solicits, receives, or is in
agency contributions from the beginning of leave without pay. The
any manner concerned in soliciting or receiving, any assessment, sub-
employing agency shall forward the premium payments to the Fund.
scription, or contribution for any political purpose whatever, from any
If the employee does not SO elect, his insurance will continue during
other such officer, employee, or person, shall be fined not more than
nonpay status and stop as provided by subsection (a) of this section.
$5,000 or imprisoned not more than three years or both. This section
does not apply to any activity of an employee. as defined in section
7322 (1) of title 5, unless such activity is prohibited by section 7324 of
that title.
58
59
§ 607. Making political contributions
TITLE I-FEDERAL CITY COLLEGE
Whoever, being an officer, clerk, or other person in the service of the
United States or any department or agency thereof, directly or in-
directly gives or hands over to any other officer, clerk, or person in
the service of the United States, or to any Senator or Member of or
SEC. 103. (a) The Board is vested with the following powers and
Delegate to Congress, or Resident Commissioner, any money or other
duties:
valuable thing on account of or to be applied to the promotion of any
(1) To develop detailed plans for and to establish, organize,
political object, shall be fined not more than $5,000 or imprisoned not
and operate in the District of Columbia the Federal City College.
more than three years, or both. This section does not apply to any
(2) To establish policies, standards, and requirements govern-
activity of an employee, as defined in section 7322 (1) of title 5, unless
ing admission, programs, graduation (including the award of
such activity is prohibited by section 7324 of that title.
degrees) and general administration of the Federal City College.
(3) To appoint and compensate, without regard to the civil
service laws or chapter 51 and subchapter III of chapter 53 of
title 5, United States Code, a president for the Federal City
College.
SECTION 6 OF THE VOTING RIGHTS ACT OF 1965
(4) To employ and compensate such officers as it determines
SEC. 6. Whenever (a) a court has authorized the appointment of
necessary for the Federal City College, and such educational em-
examiners pursuant to the provisions of section 3(a), or (b) unless
ployees for the Federal City College as the president thereof
a declaratory judgment has been rendered under section 4(a), the
may recommend in writing. Such officers and educational em-
Attorney General certifies with respect to any political subdivision
ployees may be employed and compensated without regard to—
named in, or included within the scope of, determinations made
(A) the civil service laws,
under section 4(b) that (1) he has received complaints in writing
(B) chapter 51 and subchapter III of chapter 53 of title
from twenty or more residents of such political subdivision alleging
5, United States Code (relating to classification of positions
that they have been denied the right to vote under color of law on
in Government service),
account of race or color, and that he believes such complaints to be
(C) sections 6301 through 6305 and 6307 through 6311 of
meritorious, or (2) that in his judgment (considering, among other
title 5, United States Code (relating to annual and sick leave
factors, whether the ratio of nonwhite persons to white persons
for Federal employees),
registered to vote within such subdivision appears to him to be reason-
(D) chapter 15 and [sections 7324 through 7327] section
ably attributable to violations of the fifteenth amendment or whether
7325 of title 5, United States Code (relating to political ac-
subtantial evidence exists that bona fide efforts are being made within
tivities of Government employees),
such subdivision to comply with the fifteenth amendment), the
(E) section 3323 and subchapter III of chapter 81 of title
appointment of examiners is otherwise necessary to enforce the
5, United States Code (relating to civil service retirement),
guarantees of the fifteenth amendment, the Civil Service Commission
and
shall appoint as many examiners for such subdivision as it may deem
(F) sections 3326, 3501, 3502, 5531 through 5533, and 6303
appropriate to prepare and maintain lists of persons eligible to vote
of title 5, United States Code (relating to dual pay and dual
in Federal, State, and local elections. Such examiners, hearing officers
employment),
provided for in section 9(a), and other persons deemed necessary
but the employment and compensation of such officers and educa-
by the Commission to carry out the provisions and purposes of this
tional employees shall be subject to-
Act shall be appointed, compensated, and separated without regard to
(i) sections 7902, 8101 through 8138, and 8145 through
the provisions of any statute administered by the Civil Service Com-
8150 of title 5, United States Code, and sections 292 and 1920
mission, and service under this Act shall not be considered employ-
through 1922 of title 18, United States Code (relating to
ment for the purposes of any statute administered by the Civil Service
compensation for work injuries),
Commission, except the provisions of [section 9 of the Act of August 2,
(ii) chapter 87 of title 5, United States Code (relating to
1939, subchapter III of chapter 73 of title 5, United States Code,
Government employees group life insurance),
relating to political activities, as amended (5 U.S.C. 118i), prohibiting
(iii) chapter 89 of title 5, United States Code (relating to
partisan political activity: Provided, That the Commission is author-
health insurance for Government employees), and
ized, after consulting the head of the appropriate department or
(iv) sections 1302, 2108, 3305, 3306, 3308 through 3320,
agency, to designate suitable persons in the official service of the
3351, 3363, 3364, 3501 through 3504, 7511, 7512, and 7701 of
United States, with their consent, to serve in these positions. Exam-
title 5, United States Code (relating to veteran's preference).
iners and hearing officers shall have the power to administer oath.
DISTRICT OF COLUMBIA PUBLIC EDUCATION ACT
60
TITLE II-WASHINGTON TECHNICAL INSTITUTE
SEC. 203. (a) The Board is hereby vested with the following powers
and duties:
(1) To develop detailed plans for and to establish, organize,
ADDITIONAL VIEWS OF CONGRESSMAN HERBERT E.
and operate in the District of Columbia the Washington Tech-
HARRIS II
nical Institute.
(2) To establish policies, standards, and requirements govern-
As a cosponsor of H.R. 8617, and as a member of the Subcommittee
ing admission, programs, graduation (including the award of
on Political Rights and Intergovernmental Programs which has
degrees) and general administration of the Washington Tech-
worked for 7 months to produce a fair and comprehensive bill, I am in
nical Institute.
full support of this legislation. The bill has two significant thrusts: it
(3) To appoint and compensate, without regard to the civil
contains important new protections for Federal and postal employees
service laws or chapter 51 and subchapter III of chapter 53 of
and it provides them clearly defined rights they do not currently enjoy.
title 5, United States Code, a president for the Washington Tech-
H.R. 8617 is, in essence a "bill of political rights" for our 2.8 million
nical Institute.
Federal and postal employees. I voted to report the bill out of sub-
(4) To employ and compensate such officers as it determines
committee and full committee.
necessary for the Washington Technical Institute, and such edu-
There is one provision in the bill, however, of concern to me. Section
cational employees for the Washington Technical Institute as the
7325 prohibits political activities while on duty, in any room or build-
president thereof may recommend in writing. Such officers and
ing occupied in the discharge of official duties by an employee, or while
educational employees may be employed and compensated with-
wearing a uniform identifying the individual as a Federal or postal
out regard to-
employee. As amended by the full committee, exempt from this provi-
(A) the civil service laws,
sion are the President, the Vice President and their staffs.
(B) chapter 51 and subchapter III of chapter 53 of title 5,
I can understand the argument that it is unrealistic and impractical
United States Code (relating to classification of positions in
to expect the President and Vice President to avoid political activity
Government service),
while on the job. They, it can be argued, are on the job around the
(C) sections 6301 through 6305 and 6307 through 6311 of
clock, and they are the only elected officials of the executive branch.
title 5, United States Code (relating to annual and sick
However, I consider it highly inappropriate for the White House staff
leave for Federal employees),
to engage in political activity while on duty in their capacity as em-
(D) chapter 15 and [sections 7324 through 7327] section
ployees of the Chief Executive. I am concerned that not exempting
7325 of title 5, United States Code (relating to political ac-
them from this provision would in effect be a congressional "go-ahead"
tivities of Government.employes).
to the White House staff to engage in political activities on the job. It
(E) section 3323 and subchapter III of chapter 81 of title
unfortunately puts the Congress in the position of condoning political
5, United States Code (relating to civil service retirement),
activity in the White House by White House staffers.
and
I am concerned that this provision might allow a repeat of the agon-
(F) sections 3326, 3501, 3502; 5531 through 5533, and 6303
izing experience we have come to call "Watergate." Presidential cam-
of title 5, United States Code (relating to dual pay and dual
paigns should be run by campaign committees, and I'm sure the in-
but the employment), employment and compensation of such officers and educa-
cumbent President will not make the mistakes of his predecessor. But
I feel compelled to make it clear that this Member of Congress does not
tional employees shall be subject to-
condone campaigns run from behind the White House walls or from
(i) sections 7902, 8101 through 8138, and 8145 through
the Attorney General's office. I am concerned that the fact that this bill
8150 of title 5, United States Code, and sections 292 and 1920
does not expressly prohibit White House staffers from "politicking" on
through 1922 of title 18, United States Code (relating to
the job might be interpreted as approval of the practice.
compensation for work injuries),
Just as Federal and postal employees should be ever-mindful of
(ii) chapter 87 of title 5, United States Code (relating to
separating their work from their politics when carrying on "the peo-
Government employees group life insurance),
ple's business," SO should the employees of the White House.
(iii) chapter 89 of title 5, United States Code (relating to
health insurance for Government employees), and
HERBERT E. HARRIS II.
(61)
(iv) sections 1302, 2108, 3305, 3306, 3308 through 3320,
3351, 3363, 3364, 3501 through 3504, 7511, 7512, and 7701 of
title 5, United States Code (relating to veteran's preference).
MINORITY VIEWS TO H.R. 8617
This legislation, referred to as the "Federal Employees' Political
Activities Act of 1975," is, in effect, a repeal of the "Hatch Act."
It constitutes a power grab by Federal union leaders to place con-
scientious Federal employees at the mercy and calling of politicians at
every level of political activity.
"HATCH ACT"-1939
The "Hatch Act" of 1939 resulted from the systematic manipulation
of the Federal public service under the political aegis of the Demo-
cratic National Committee.
In 1939, the creation of the New Deal agencies had left nearly 40
percent of the Federal public service of some 850,000 employees open
to political manipulation. The situation existed at the State level where
thousands of State employees of emergency relief agencies were paid
in full or part by Federal funds.
Spectacular evidence of patronage politics involving these offices
during the 1936 and 1938 Congressional campaigns brought forth a
cry of indignation from the public, and the Congress responded in
passing legislation to provide for an impartial and efficient civil serv-
ice-free from partisan political activity. This Act placed upon all
employees the same restrictions which a series of other Presidents had
formerly placed on competitive service employees alone.
PRACTICAL EFFECTS OF THE "HATCH ACT"
For 36 years, the "Hatch Act" has served the Federal Government
and the public well. It is not a perfect document. It may need some
amendments, but it has helped to protect employees by insulating them
from pressures that might otherwise force them to engage in political
activities not of their own choosing.
By banning certain partisan political activity, such as fund raising,
political campaigning, and soliciting votes, the "Hatch Act" has suc-
cessfully shielded the Federal employees against coercion from their
supervisors.
Therefore, Federal employees, except for top appointed officials of
the Federal Government, do not owe their appointments to any politi-
cal party, and do not need to curry the favor of any political party to
receive a promotion, assignment, or any other consideration in the
Government.
Inherent in the "Hatch Act" is the belief that Federal employees
cannot serve both an impartial civil service and a partisan political
party or partisan activist group. The goals of both interests are
incompatible.
(63)
64
65
SUPPORT FOR REPEAL OF THE "HATCH ACT"
that such activities, being observed by the public, will erode public
Support for this legislation has come from some leaders of Federal
confidence in the impartial administration of the Federal Govern-
employee unions affiliated with the AFL-CIO. It has not come from
ment. The problem, of course, is that when the public sees a Federal
the rank and file Civil Service employees. Federal employee union
employee who is prominently identified with partisan politics, and
bosses are determined that their members become more involved in
at the same time charged with responsibility for the impartial, non-
political activity, a move which would substantially increase the
partisan execution of public duties, it will inevitably have doubts
influence of Federal and postal union top bosses over the Congress.
about that employee's impartiality. It seems clear to me that anything
They, in turn, would then be able to shower their considerable favors
which undermines the public's confidence in the impartiality and
upon the political party and office holders who respond to their every
efficiency of the civil service should be of paramount concern to the
legislative request, no matter the principle or cost.
Congress."
This new found manpower resource would enable Federal employee
Illustrations of the potential problems which could be encountered
union officers to brazenly ignore the Campaign Reform Act, which
are as follows:
limits campaign expenditures.
1. Mr. Elliott Gray, Regional Commissioner of the Internal Reve-
Dr. Nathan Wolkomir, greatly respected President of the National
nue Service, testified that "agencies such as IRS and a few others
Federation of Federal Employees, which opposes this legislation,
have the power under the law to acquire information about individuals
charged that organized labor's interest in the bill "is nothing more
which can be highly valuable in advancing or defeating the interests
than the old AFL-CIO pitch for muscle and power. It's a move for
of partisan political candidates." He continued,
"contact by such
money and more organizing influence." We agree.
IRS employees with the public for political purposes, for themselves
As late as 1967, the National Federation of Federal Employees sent
as candidates or for candidates they are supporting, should be equally
out a questionnaire to its members on the issue of changes of the
forbidden. It would produce the same appearance of conflict of inter-
"Hatch Act." The results based on 30,000 returns, showed that 89
est or potential abuse of position which now applies to forbidden sell-
percent of the total expressed strong support for continuing the Act
ing, soliciting, or canvassing activities on behalf of a private agency,
"as is." Only 1 percent of the total suggested that the Act be repealed.
firm or business. I think the American people would lose confidence in
It would be a grave mistake to believe that Federal employees are
the integrity of an Internal Revenue System which permitted its em-
behind the move to repeal the "Hatch Act," because the record just
ployees to be avid political partisans one day and expected them to be
does not show that.
perceived the next as wholly non-partisan by both political friends
Hearings. produced no evidence that any but a small minority of
and foes."
Federal employees at any level of Government favor the repeal or
2. A census employee runs for political office in a geographical area
emasculation of protections they enjoy under the "Hatch Act". This
for which he has responsibility. How does the legislation prevent
obviously shows that these employees are displaying better judgment
the employee from using the knowledge he has acquired during his
than their so-called leaders, and we in the Congress should be listening
tenure? Where does the employee stop and the politician begin? How
to the employees rather than self-annointed bosses.
do you continue to convince the public that their responses to census
If this bill were to pass. the Federal Government's merit system
questionnaires are held in the strictest confidence when the enumerator
would be the casualty to Federal employee labor grab for increased
or another census employer is actively involved in partisan political
political muscle and power.
activity contrary to the views of the respondent?
3. An FBI agent is assigned to investigate alleged illegal activities
SAFEGUARDS WEAK
in a campaign in which he was actively involved. Must he remove him-
self from the case? If so, can the Government afford the expense and
The bill purports to provide for certain prohibitions against
high level of unproductivity as a result of thousands of Federal em-
improper political activity, and for penalties to those who violate the
ployees removing themselves from sensitive positions because of po-
law, but no penalty could relieve the pressure felt by ambitious
tential conflicts of interest? It is unlikely that an FBI agent who is
employees to serve the political favorities of their supervisors in order
the chief fund raiser for a partisan political party would continue to
to advance their own careers. Chairman Robert Hampton of the Civil
be viewed by the public as an impartial, objective enforcer of our
Service Commission testified that "the only real deterrent against
criminal code.
coercion is the removal of temptation through restrictions on political
4. A non-partisan city manager, who also happens to control the
activities." There are few eases of coercion brought before the Com-
purse strings for Fedesal grant funds, is urged to support a candidate
mission because it is too difficult to prove such a charge.
for office. If he selects the wrong candidate, his city will suffer. He can-
Chairman Hampton further stated: "equally important with the
not afford to guess wrong. The real loser in this situation and similar
concern that partisan political activity may detract from the impar-
ones is the public.
tiality of the performance of Government employees is the concern
66
67
EMPLOYEE POLITICAL RIGHTS SHOULD BE MAINTAINED
PUBLIC CONFIDENCE CRISIS
The proponents of this bill would have us believe that Federal em-
There presently exists a crisis of public confidence in our govern-
ployees are "second-class citizens" because of the "Hatch Act." As a
ment officials. This legislation if enacted would undermine and destroy
matter of fact, those who support this bill are determined to conscript
the people's confidence in their system of government by returning
Federal employees into political machines against their independent
Federal employment to the Jacksonian spoils system. It would cause
will.
Americans to question and examine any activity of the Federal Gov-
Under the present law, Federal employees are, however, prohibited
ernment for political motivations. The government must have the vol-
from engaging in the partisan political crafts of fund raising, working
untary cooperation from its citizens in order to function on a day-to-
on behalf of a candidate or political party, and running for elective
day basis.
office, except in certain localities in the country. These restrictions are
This point was made abundantly clear by a former regional director
necessary, to not only protect the employee and the public, but to help
of the IRS when he suggested that this bill would mean the end of a
to eliminate the emergence of boss politics in the Federal workforce.
voluntary system for the collection of taxes because every audit would
The fact of the matter is Federal employees may exercise the same
be regarded as being politically instigated. Furthermore, it would se-
political rights exercised by more than a majority of the citizens in our
verely hamper the investigative capability of all Federal law enforce-
country. For example, they may register and vote, make voluntary
ment agencies which have been dependent to some extent on the volun-
contributions to a political party, express private political opinions,
tary cooperation of individuals in obtaining information regarding
attend as a spectator primary meetings, political meetings, political
criminal activities.
conventions, wear political badges and buttons, place political stickers
Every reliable barometer of public opinion in the past several years
on the bumpers of their automobiles, sign a nominating petition, and
has conclusively shown that elected public officials are held in the
individually, or collectively, petition Congress or any Member thereof,
lowest possible esteem by the public. The public is equally concerned
or furnish information to Members of Congress and Congressional
about the growing militancy of public unionism which has increased
Committees.
its membership by 151 percent from 1951 to 1972, payrolls by 596
POLITICAL MACHINES
percent, and strikes by public employees by 1000 percent. In this
The "freedom" guaranteed by this bill is the freedom to build parti-
political climate, it is incredible that we in the Congress are being
san political machines within the Executive Branch, machines whose
asked to approve what could become a new spoils system.
purpose will be to publicly cripple the Executive Branch on any con-
SUPREME COURT VIEW-LIMITED POLITICAL ACTIVITY
troversial issue and thus eclipse the equality and separation of powers.
Imagine Federal employees openly campaigning against Presiden-
As recent as 1973, the U.S. Supreme Court, in its decision on the
tial policies, anticipated vetoes or budget cuts. This bill is a political
constitutionality of the Hatch Act stated, "Our judgment is that
coup for union leaders and can only result in crippling the Executive
neither the first amendment nor any other provision of the Constitu-
Branch.
tion invalidates a law
barring political conduct by federal em-
The very integrity of the Executive Branch requires that its career
ployees." And repeal of the Act would run contrary to the judgment
employees not divide along the lines of legislative debate.
of history
that it is in the best interest of the country, indeed
essential, that federal service should depend upon meritorious per-
RETURN OF POLITICS IN THE POSTAL SERVICE
formance rather than political service, and that the political influence
of federal employees on others and on the electoral process should be
The Postal Reorganization Act of 1970 removed politics from the
limited." And it has been, the opinion continues, "the judgment of
Postal Service. It eliminated the appointment of postmasters by the
Congress, the Executive and the country-that partisan political
political party in control of the White House, and in its stead made
activities by federal employees must be limited if the Government is
all appointments on the basis of merit.
to operate effectively and fairly."
This decision was applauded by the Congress, and the postal unions
which for too long were subjected to this political football game every
A NECESSARY LOOK ABROAD
four years.
We are all aware of the political history of the Post Office Depart-
Perhaps one should take a brief glimpse at the effects of union con-
ment. It is not an enviable past. No matter how any Member feels
trol on foreign nations. Italy, Great Britain and Argentina have al-
about the wisdom of passing the Postal Reorganization Act, we think
lowed the unions to effectively destroy the economies of each of their
it is generally agreed that the Congress was right to remove political
respective countries. Great Britain has literally been brought to its
influence from the Postal Service. To reintroduce politics into the
knees in current labor negotiations with employees in the nationalized
Postal Service would be a giant step backwards.
coal industry. Prime Minister Wilson has stated that the country will
68
be bankrupt if union demands are not tempered. It should be remem-
bered that these employees are public employees. The members should
have some recollection of the crippling Italian postal strike which re-
sulted in the destruction of tons of mail. A recent Art Buchwald col-
umn suggested that the Italian Government should provide "dial-a-
strike" service to its citizens. Citizens could call a number which would
SEPARATE VIEWS
inform them of the strikes that would be effecting them that day. The
The "Hatch Act" needs to be amended to make it more effective in
Argentinian Government is currently in a power vacuum because of
union pressures demanding the resignation of governmental cabinet
protecting Federal employees from those who would coerce them into
officials which were acceded to rather than risk another revolution. The
forced participation in partisan political favoritism in the delegation
United States has been spared this union abuse of power by not allow-
of their duties. The American people have a right to demand that their
ing Federal employee unions to blackmail the Government into
Government be fair and impartial in the conduct of its business. We
are also interested in making certain that every Federal Employee will
submission.
reasonably be able to participate in political activity providing that
LEGISLATION ILL-TIMED, ILL-CONCEIVED
participation does not infringe on the rights of other employees and
This legislation is ill-timed, ill-conceived, and is bad for the employ-
does not conflict with his public responsibilities.
ees, the merit system as we know it to be, and the general public. It
We believe that the following sections of this legislation are sound
must be summarily rejected unless we are willing to forfeit an inde-
and should be adopted:
pendent, impartial civil service for the imposition of politics at every
1. The right to participate voluntarily in the political activities
level of activity in the Federal Government.
which are not expressly prohibited by law. However, we would hasten
EDWARD J. DERWINSKI
to add that in order to be truly voluntary a Federal employee must be
protected from coercion from individuals outside the Federal service
with the same perseverance that Federal employees are protected from
those within Government.
2. The items below have been strictly prohibited only as to the con-
duct of Federal employees: 1) Use of official authority to influence an-
other employee's vote; 2) coercion of a fellow employee to engage in
political activity; 3) use of funds to influence Federal employees' vote;
4) contributions to supervisors or in Government buildings; and 5)
political activity while on duty in Government buildings, or in uni-
form. We believe that these restrictions will effectively protect em-
ployes from the coercion of other Federal employees but only if they
are aggressively enforced. We would also suggest that sections 7323
and 7324 be made applicable to all individuals who would attempt to
influence or solicit Federal employees.
3. An independent board is established with the functions of ad-
judicating and imposing penalties for violations of the law including
removal, suspension, or lesser penalties at the discretion of the Board.
Witnesses at hearings requested that a broader range of alternatives
should be included in the legislation in order that the punishment
should fit the crime. Formerly, the employee was either dismissed or
given thirty days suspension.
4. This legislation would provide employees with the right of judi-
cial review of adverse decisions which are nonexistent under the
"Hatch Act."
5. We believe that an aggressive educational program is essential to
insure that all Federal employees will be informed in clear and ex-
plicit language of their rights and responsibilities under the Act. One
of the major problems discovered in hearings was the lack of knowl-
edge and misinformation as to what the Hatch Act prohibited or per-
mitted. Over three thousand administrative rulings of the Civil Service
Commission have confused the issue and in effect "chilled" the per-
(69)
70
missible forms of political expression under the Act. This amendment
mandates that every Federal employee receive a letter each year at
least 30 days prior to every Federal election.
The following provisions should be deleted or amended:
1. Section 7326 would allow a candidate for elective office to remain
on the Federal payroll while campaigning. Under the wording, he
must request that he be placed on a leave without pay basis. The wit-
nesses before the subcommittee were almost unanmious in their sup-
port for mandatory leave without pay at a date certain before the
election. We would suggest at least 30 but not more than 90 days prior
to the election.
2. Section 7328 does not provide any time limitation on the CSC for
the investigation of reports and allegations of prohibited activities. We
would suggest that the CSC be given 60 days to investigate alleged
violations or that they provide the Board with a written report con-
taining specific reasons for the extension of time. Recent testimony has
indicated that there are only 187 investigators for the CSC throughout
the country and that these people are severely overworked with the over
16,000 complaints which are filed with the Commission each year. It
should be clearly mandated that the CSC hire additional investigators
to handle the increased workload and guarantee a prompt determina-
tion of the case. Justice delayed is justice denied.
An additional problem in this section is the sweeping grants of im-
munity from criminal prosecution in any court which are granted to
those who would testify even at the defendant's request. Potentially,
conspirators could testify at each others request in hearings and defeat
more serious criminal prosecutions which are concurrently being con-
ducted by the Justice Department. We would suggest that the Attorney
General be consulted before any grant of immunity is given.
The bill, as passed out of the Committee, is an unfair burden on a
career civil servant. It would mean that a conscientious Federal em-
ployee could be pressed into political action for survival. Let's maintain
the goals of civil service and defeat this political bill.
JOHN H. ROUSSELOT.
JAMES M. COLLINS.
TRENT LOTT.
GENE TAYLOR.
BENJAMIN A. GILMAN.
ROBIN L. BEARD.
Calendar No. 496
94TH CONGRESS
}
SENATE
in
REPORT
1st Session
No. 94-512
FEDERAL EMPLOYEES' POLITICAL ACTIVITIES ACT
OF 1975
DECEMBER 5 (legislative day, DECEMBER 2), 1975.-Ordered to be printed
Mr. McGEE, from the Committee on Post Office and Civil Service,
submitted the following
REPORT
together with
MINORITY VIEWS
[To accompany H.R. 8617]
The Committee on Post Office and Civil Service, to which was
referred the bill (H.R. 8617) to restore to Federal civilian and Postal
Service employees their rights to participate voluntarily, as private
citizens, in the political processes of the Nation, to protect such em-
ployees from improper political solicitations, and for other purposes
having considered the same, reports favorably thereon with amend-
ments and recommends that the bill (as amended) do pass.
AMENDMENTS
The amendments are as follows:
Page 6, line 9, strike out", etc.".
Page 8, beginning on line 2, strike out the period and all that fol-
lows before the period on line 4, and insert in lieu thereof the
following:
" unless the employee is otherwise on leave".
Page 8, line 18, strike out "foregoing".
Page 9, line 20, strike out the quotation marks.
Page 14, line 5, strike out "duly".
Page 14, line 8, strike out "duly filed" and insert in lieu thereof
"filed within the time allowed".
Page 17, line 23, strike out "Board. Thereupon the Board shall
certify" and insert in lieu thereof "Board which shall then certify
57-010
GERALD FORD LIBRARY
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Page 22, between lines 13 and 14, in the item relating to section 7325,
President Chester A. Arthur issued the first civil service rules to
strike out etc.".
implement the 1883 act, and while those rules did prohibit interfer-
Page 12, lines 20 and 21, strike out "a notice by certified mail, return
ence with any election, they did not specifically state to what extent
receipt requested" and insert in lieu thereof "a written notice by certi-
Federal employees were permitted to voluntarily participate in elec-
toral politics. President Theodore Roosevelt's Executive Order 642 of
fied mail".
Page 4, between lines 24 and 25, insert the following new subsection
June 3, 1907, amended Civil Service Rule 1 to prohibit all political
activity by employees in the competitive service which was related to
'(b) Nothing in this section authorizes the use by any em-
ployee of any information coming to him in the course of his
active participation in campaigns or as a candidate, whether or not
employment or official duties for any purpose where otherwise
the activity was voluntary.
By 1907, then, two distinct but interrelated concerns were apparent,
prohibited by law.".
and still are. They are (1) the protection of civil service employees
Page 4, line 25, strike out "(b)" and insert in lieu thereof "(c)".
from coercion for involuntary contributions of money or services for
political ends, and (2) the prohibition of partisan political activity,
EXPLANATION OF AMENDMENTS
whether or not voluntary, related to political campaigning and candi-
dacy. Present law does permit limited political activity by employees
The amendments on pages 6, 8, 9, 14, 17, and 22 are technical amend-
in certain local jurisdictions with high populations of Government
ments intended to simplify the language of the bill or correct typo-
employees.
graphical errors.
The New Deal era gave rise to new concern because of the large num-
The amendment on page 12 eliminates the statutory requirement
ber of persons employed in public works jobs funded by the Federal
for requesting a return receipt on a certified notice of an alleged
Government and allegations that there was widespread financial solic-
violation of the Act, leaving it up to the Civil Service Commission
itation by local political party officials of workers as a condition of
to determine the requirements on such notices, which might include
employment, primarily in the Works Project Administration. Those
restricted delivery as well as return receipt.
workers, not being in the competitive service, were not covered by the
The amendment on page 4 inserts a new subsection in section 7323
proscriptions of Civil Service Rule 1. An investigation by a Senate
to state that nothing therein authorizes the use by any employee of
special committee ensued in 1938 and resulted in a report (S. Report 1,
information available to him by virtue of his employment for any
76th Congress, 1st Session) recommending legislation to prohibit the
purpose where otherwise prohibited by law.
political coercion of all Federal employees, whether or not in the classi-
fied civil service. The report contained no finding that the effectiveness
PURPOSE
of the Government was impaired by employees' voluntary political
The primary purposes of H.R. 8617 are two; one being to amend
activity.
subchapter III of chapter 73, title 5, United States Code, SO as to
The so-called Hatch Act, prohibiting Federal employees from tak-
permit Federal civilian and postal employees to take part as they
ing an active part in political activities, the forerunner of today's law
voluntarily choose to in their capacity as private citizens in the Ameri-
as codified in section 7324 of title 5, United States Code, was enacted
can political process at all levels of government, and the second being
in 1939. No public hearings were conducted on the measure in either
House or Senate.
to prohibit the abuse of authority, the coercion of employees into non-
voluntary political activity of any kind, and certain activities involv-
The most significant amendments to the Hatch Act followed in 1940.
Those amendments included provisions applying the restrictions to
ing political contributions by employees.
H.R. 8617 also establishes an independent Board on Political Ac-
State and local governmental employees employed in activities funded
tivities of Federal Employees to adjudicate promptly alleged viola-
by the Federal Government and incorporating more than 3,000 prior
administrative determinations of the Civil Service Commission into
tions of the law and sets forth provisions for the administration and
the law on restricted activity. The restrictions on State and local em-
oversight of the law.
ployees were largely repealed by the Federal Campaign Practices Act
BACKGROUND
of 1974 (Public Law 93-443).
Prior to 1939, regulation of political activity by Federal civil serv-
ice employees was the result of executive branch action, Congress
STATEMENT
having refrained from imposing statutory restrictions beginning with
the Second Session of the First Congress in 1791, when an amend-
At the time it was enacted, the Hatch Act constituted a response to
ment to bar political activity by collectors of an excise tax on distilled
an acknowledged problem. But circumstances have. changed. The
spirits was defeated in the House. The Civil Service Act of 1883, which
strength and influence of the Civil Service Commission, coupled with
established the concept of an institutionalized civil service system for
the need for skilled personnel to fill increasingly complex Govern-
Federal employees, did proscribe and provide penalties for certain
ment jobs, have increased to the extent that the patronage system does
activities related to the coercion of contributions or services of civil
not flourish as it once did. On June 30, 1974, Federal civilian employ-
servants for political purposes or the conduct of political solicitations
ment totaled 2,893,119, including 1,302,631 with competitive career
appointments. 346,112 with career conditional appointments, 906,310
in government rooms or buildings.
1
5
with excepted permanent appointments and 338,066 with temporary
political views and actions, as well as against coercion by those who
and indefinite appointments.
endeavor to enlist their involuntary support for political purposes.
There have been relatively recent concerns stemming from the reve-
H.R. 8617 has been drawn to achieve a proper balance. It prohibits
lation of special referral units operating within government agencies
those political activities which tend to erode public confidence in the
in violation of the merit system, though studies have not demonstrated
integrity of the civil service and Government itself. It prohibits po-
that voluntary political activity, freely entered into in off duty hours,
litical activity on duty, in Government buildings, or in uniform. It
arises when authority is abused and coercion exercised. The bill H.R.
takes anything away from the integrity of public service. The problem
bars solicitation of employees or members of their families by those
with supervisory authority over them. It establishes an independent
8617 provides stronger employee protection against coercion than that
Board to adjudicate alleged violations, thus freeing the Civil Service
which is provided by existing law.
Commission to concentrate on its functions of educating employees on
Existing law, in the Committee's opinion, does not strike an ade-
their rights and prohibitions and on the investigation of alleged viola-
quate balance between the two compelling needs, which are preserva-
tions. And it provides for the disciplining of employees in the expected
tion of basic rights of citizenship for 2.8 million Americans and the
service in the same manner as applies to those in the competitive serv-
requirement of an impartial civil service insulated from pernicious
ice, instead of making that a responsibility of the agency head as at
partisanship. The Commission on Political Activity of Government Personnel, in
present.
With these protections, including a new criminal provision pro-
its 1968 report observed:
viding penalties for anyone who would extort any contribution from
Since 1939, when the Hatch Act was enacted, the American
a government employee for political purposes, Federal employees
political system has changed dramatically. The growth of
would be free to participate in the political processes of their com-
Federal responsibilities, the parallel growth of technology in
munities, their States and their Nation as they choose. For those who
Government, and the need for skilled personnel are eroding
would seek full-time elective office, however, leave, including leave
away traditional patronage schemes. Not only has the Ameri-
without pay, would be mandatory.
can political system changed, but the growth of the merit
principle and impartial administration of Government pro-
COMMITTEE ACTION
grams have been integral elements in this transformation.
Under the Hatch Act, the Civil Service Commission has
S. 372, to restore to Federal civilian employees their rights to par-
worked to maintain high standards and integrity in public
ticipate as private citizens in the political life of the nation, was
service consistent with the need for voluntary and desirable
introduced by Senator McGee with the cosponsorship of Senator
political activity by Government employees. By and large,
Burdick on January 23, 1975. The committee had, during the second
the public employee wants and needs the protection from
session of the 92d Congress, conducted hearings on legislation of simi-
coercive activity which the Hatch Act affords. But the line
lar purpose, delaying action then because of pending litigation center-
between permissible and forbidden political conduct has been
ing on the constitutionality of the Hatch Act and because the Civil
Service Commission had assured the Committee that it was at work
a shifting one. It could not remain fixed as political methods
were altered and the Government developed in size and in the
on a set of provisions to clarify the Act and permit Federal employees
nature of its activities. Moreover, there are ever-increasing
a greater degree of political freedom.
difficulties confronting public employees in ascertaining what
The Supreme Court, on June 25, 1973, in the case of the United
States Civil Service Commission VS. National Association of Letter
the statutory restrictions mean under the Hatch Act, and in
knowing what interpretation has been given to the act by
Carriers, reversed a lower court's decision to uphold the constitution-
the Civil Service Commission in rulings which often are not
ality of the Hatch Act. However, the recommendations of the Civil
Service Commission never were forthcoming.
published or readily available in usable form."
H.R. 8617 was approved by the House of Representatives as a clean
As did that Commission, the Committee on Post Office and Civil
bill in lieu of H.R. 3000, a companion to S. 372. Hearings were held
Service encountered conflict between the two goals of the broadest
on H.R. 8617 and S. 372 on November 5 and 6, 1975. The Committee
possible participation in our political processes and the maintenance
voted 7-2 on November 19, 1975, to report the bill, as amended, after
of a fair and impartial civil service. But it does not see the con-
approving the amendments incorporated in the reported bill by a voice
tinuance of a merit system in public employment as being depend-
vote. Six additional amendments proposed by Senator Fong were
ent upon maintenance of the severe restrictions on employees' first
defeated, each by a 6-2 vote, as follows: For the amendments-Sena-
amendment rights that now exist. The committee agrees that em-
tors Fong and Bellmon. Opposed to the amendments-Senators
ployees who freely and voluntarily engage in political activities which
McGee, Randolph, Burdick, Moss, Leahy, and Stevens.
would be permissible under H.R. 8617 as reported need protection
The vote by which H.R. 8617 was ordered reported was: Yeas—
against penalty from those in authority who might disagree with their
Senators McGee. Randolph, Burdick. Moss, Hollings, Leahy, and
Stevens. Nays-Senators Fong and Bellmon.
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7
SECTIONAL ANALYSIS
inition is intended to include those employees who, through the exer-
cise of the authority of their position, may influence or affect the
Section 1 of the bill as reported provides that this Act may be cited
career advancement or working conditions of other employees. Thus
as the "Federal Employees' Political Activities Act of 1975."
an employee who has the authority to promote (or recommend or
Subsection (a) of section 2 of the bill amends subchapter III of
approve the promotion of) another employee, or to assign work to,
chapter 73 of title 5, United States Code, by rewriting seven existing
or to evaluate the performance of, another employee would be deemed
sections (5 U.S.C. 7321-7327) and adding four new sections (5 U.S.C.
a "superior".
7328-7331). as follows:
Paragraph (5) defines "elective officer" to mean any elective public
Section 7321 provides that it is the policy of Congress to encourage
office and any elective office of any political party or affiliated organi-
employees to fully exercise their rights of voluntary political par-
zation. The phrase "elective public office" is intended to include any
ticipation to the extent not expressly prohibited by law.
Federal, State, or local office which is filled by the election of an
Section 7322 defines terms used in the Act.
individual. The phrase "elective office of any political party or affili-
Paragraph (1) defines "employee" to mean any individual, including
ated organization" is intended to include offices of a political party
the President and the Vice President, employed or holding office in
or organization which are filled by the election of an individual.
(A) an Executive agency; (B) the government of the District of
Paragraph (6) defines "Board" to mean the Board on Political Ac-
Columbia; (C) the competitive service; or (D) the United States
tivities established under section 7327 of title 5, as amended by the
Postal Service or the Postal Rate Commission.
bill.
Paragraph (2) defines the term "candidate" as any individual who
Section 7323 forbids direct or indirect use or attempt to use official
seeks nomination for election, or election, to an elective office, whether
authority to interfere with or affect an election or to intimidate,
or not the individual is elected. An individual who is seeking to win a
threaten, coerce, command, or influence any individual to vote or not
party's nomination in a primary election or in a convention, as well
vote as he may choose; any person to give or withhold a political
as an individual who has already been nominated, is included within
contribution, or any person to engage or not to engage in any form of
the definition. Subparagraphs (A) and (B) of paragraph (2) estab-
political activity.
lish the time at which an individual is deemed to seek nomination for
Subsection (b) states that nothing in this section authorizes the
election, or election, as that time when an individual has: (A) taken
use by any employee of any information coming to him in the course
the action required to qualify for nomination for election, or election;
of his employment or official duties for any purpose where otherwise
or (B) received political contributions or made expenditures, or has
prohibited by law.
given consent for any other person to receive political contributions
Subsection (c) defines "use of official authority or influence" as in-
or make expenditures, with a view to bringing about that individual's
cluding, but not limited to, promises of benefit or threats of reprisal.
nomination for election, or election.
Section 7324 sets forth the prohibitions applicable to employees
Paragraph (3) defines "political contribution." The committee in-
with regard to the soliciting, accepting, giving, or receiving of po-
tends that this definition be given a broad interpretation.
litical contributions.
Subparagraph (A) of paragraph (3) provides that "political con-
Paragraph (1) prohibits an employee from giving or offering to
tribution" means a gift, subscription, loan, advance, or deposit of
give a political contribution in return for any individual's vote, or
money or anything of value, made for the purpose of influencing the
abstention from voting, in any election.
nomination for election, or election, of any individual to elective
Paragraph (2) prohibits an employee from soliciting, accepting, or
office or for the purpose of otherwise influencing the results of any
receiving a political contribution in return for his vote or abstention
election. The phrase "for the purpose of otherwise influencing the
from voting.
results of any election" reflects the intent that contributions made to
Paragraph (3) prohibits an employee from knowingly giving or
influence the results of elections relating to matters other than
handing over a political contribution to a superior of that employee.
political office, such as, bond issues or local referenda, are included
The committee's intention is that the bar to handing over a contribu-
within the term "political contribution".
Subparagraph (B) provides that the term "political contribution"
tion to a superior should mean that an employee may not give a con-
tribution to an individual with authority to affect his employment but
includes a contract, promise, or agreement, express or implied, whether
does not mean that an employee may not make a contribution to an-
or not legally enforceable, to make a political contribution.
Subparagraph (C) provides that the term "political contribution"
other employee who may, for instance, possess a supervisory position
in another agency.
also includes the payment by any person, other than a candidate or a
Paragraph (4) sets forth two prohibitions against the solicitation
political organization, or compensation for the personal services of
or receipt of political contributions by employees.
another person which are rendered to a candidate or political or-
Subparagraph (A) prohibits an employee from knowingly solicit-
ganization without charge.
ing, accepting, or receiving, or being in any manner concerned with so-
Paragraph (4) definies "superior" to mean an employee, other than
liciting, accepting, or receiving, a political contribution from another
the President or the Vice President, who exercises supervision of, or
control or administrative direction over, another employee. The def-
employee (or a member of another employee's immediate family) with
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9
respect to whom the employee is a superior. The inclusion of the
phrase "member of an employee's immediate family" is intended to
Section 7327 establishes the Board on Political Activities of Federal
prohibit possible circumvention of the prohibition against a superior
Employees.
soliciting political contributions from an employee.
Subsection (a) establishes the Board and provides that its func-
Subparagraph (B) prohibits an employee from knowingly solicit-
tion shall be to hear and decide cases regarding violations of sections
ing, accepting, or receiving, or being in any manner concerned with
7323, 7324, and 7325 of title 5. Thus, the Board's authority is ad-
soliciting, accepting, or receiving, a political contribution in any room
judicatory only, with actual investigatory, prosecutorial, and enforce-
or building occupied in the discharge of official duties by: (i) an
ment authority being given to the Civil Service Commission under
section 7328.
individual employed or holding office in the Government of the United
States, in the government of the District of Columbia, or in any
Subsection (b) provides that the Board be composed of three mem-
agency or instrumentality of the foregoing; or (ii) an individual
bers appointed by the President by and with the advice and consent
of the Senate.
receiving any salary or compensation for services from money derived
from the Treasury of the United States.
Subsection (c) provides that the members shall be chosen on the
Section 7325 bars employees from engaging in political activity
basis of their professional qualifications from among individuals who,
while on duty, in government offices or buildings, or while wearing a
at the time of their appointment to the Board, are employees as de-
uniform or official insignia.
fined under section 7322 (1) of title 5, as amended by the bill.
Subsection (b) provides that these prohibitions do not apply to The
Paragraph (1) of subsection (d) provides that the members are
President, Vice President, or persons employed or assigned to them
appointed for a term of 3 years, and the terms are staggered SO that
unless they hold career or career-conditional appointments, nor to
one member's term expires each year. An individual appointed to fill
the Mayor of the District of Columbia, or to the Chairman or Mem-
a vacancy may be appointed only for the unexpired term of the
bers of the Council of the District of Columbia.
member he succeeds.
Section 7326 provides, in subsection (a) that any employee who is
Paragraph (2) of subsection (d) provides that if a member of the
a candidate for elective office, shall upon request, be granted leave
Board ceases to be an employee due to separation from the service, he
without pay for the purpose of engaging in activities relating to such
may not continue as a member of the Board for longer than 60 days
candidacy. It further requires that an employee who is a candidate for
after he becomes separated.
full-time elective office shall be placed on leave without pay either on
Subsection (e) provides that the Board shall meet at the call of
the 90th day before any election, primary or general, in which he is a
the Chairman.
candidate or the day following the day on which he becomes a candi-
Subsection (f) provides that all decisions of the Board with respect
date, whichever is later. Such leave without pay status shall terminate
to the exercise of its duties and powers must be made by a majority
on the day following the election or the day following the date on
vote of the Board.
which the employee no longer is a candidate unless he is otherwise on
Subsection (g) prohibits a member of the Board from delegating,
leave. Subsection (b) provides that, notwithstanding 5 U.S.C.
except as otherwise expressly provided, his vote or any decision making
6302 (d), an employee who is a candidate for elective office, whether
authority vested in the Board.
full-time or part-time, shall upon request, be granted accrued annual
Subsection (h) requires the Board to prepare and publish in the
leave for the purposes of such candidacy. Subsection (c) requires
Federal Register written rules for the conduct of its activities. Sub-
prompt notification by an employee to his agency upon becoming a
section (h) further provides that the Board's official seal shall be
candidate and upon termination of such candidacy. Subsection (d)
judicially recognized and requires the Board to have its office in or
provides that the provisions of this section do not apply to an individ-
near the District of Columbia. The Board, however, may meet and
ual who is an employee by reason of holding an elective office.
exercise its powers anywhere in the United States, and it is intended
The committee intends that employees who become candidates for
that adjudicatory hearings will be held by the Board at locations
elective office be permitted to use their accrued annual leave for that
which take into consideration the convenience of the parties.
purpose, or to go on leave without pay for that purpose, with the
Subsection (i) requires the Civil Service Commission to provide
added provision that an employee contesting for full-time elective
clerical and professional personnel and administrative support. It is
office must be in leave without pay status upon qualifying as a candi-
intended that personnel such as secretaries and attorneys will be fur-
date or 90 days prior to an election in which he is a candidate, which-
nished to the Board from the Commission and that administrative ex-
ever is later. The right to use accrued annual leave for purposes related
penses such as travel expenses for Board members will be the responsi-
to an employee's candidacy is granted notwithstanding the usual right
bility of the Commission. The Chairman of the Board is required to
of an agency to grant leave requests, but does not require the agency
determine what clerical and professional personnel and administrative
to advance annual leave which has not been earned.
support are appropriate and necessary, and personnel furnished to the
The committee intends that the right to leave, either accrued annual
Board are responsible to the Chairman of the Board.
leave or leave without pay, shall pertain only to bona fide candidates
Subsection (j) requires the Administrator, General Services Admin-
in order to permit activities related to candidacy. Thus, an agency
istration, to furnish suitable office space, appropriately furnished and
would not be required to grant leave for purposes unrelated to an
equipped.
employee's candidacy.
Paragraph (1) of subsection (k) provides that members shall re-
ceive no additional pay on account of their service on the Board. Par-
S. Rept. 512-75-2
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11
agraph (2) of subsection (k) provides that members are entitled to
If an answer is filed, paragraph (2) requires a hearing on the rec-
leave without loss of or reduction in pay, leave, or performance or
ord conducted by a hearing examiner. Except as otherwise expressly
efficiency rating during a period of absence while in the actual per-
provided under subchapter III, the hearing shall be conducted in ac-
formance of the Board's business.
cordance with the requirements of subchapter II of chapter 5 of title
Section 7328 provides for enforcement of the prohibitions on politi-
5. Paragraph (2) requires that the hearing be commenced within 30
cal activity and establishes procedures for the investigation and ad-
days after the answer is filed, and that it be conducted without un-
judication of violations of such prohibitions.
reasonable delay. As soon as possible after the conclusion of the hear-
Subsection (a) requires the Civil Service Commission to investigate
ing, the hearing examiner is required to serve his recommended de-
reports and allegations of any activity prohibited by section 7323,
cision upon the Board, the Commission, and the employee, with notice
7324, or 7325 of title 5, as amended by the bill. It is not the committee's
that exceptions to such decision may be filed within 30 days. The Board
intent that enforcement efforts by the Commission be limited to re-
is required to issue its final decision within 60 days after the recom-
sponding to formal reports or allegations, but that efforts include steps
mended decision is served.
necessary to insure that the prohibitions are observed by employees.
The last sentence in paragraph (2) provides that an employee shall
Susbection (b) requires the Commission to provide an employee
not be removed from active duty by reason of the alleged violation of
under investigation with the opportunity to make a statement and sub-
subchapter III before the effective date of the Board's final order.
mit documentary evidence concerning matters under investigation.
Subsection (e) authorizes the Board to issue subpenas, order depo-
This subsection also authorizes Commission employees lawfully as-
sitions, and compel testimony of an employee.
signed to investigate violations of subchapter III to administer oaths
Paragraph (1) of section 7328(e) authorizes any member of the
in the course of an investigation.
Board, upon written request of the Commission or an employee who
Paragraph (1) of section 7328 requires the Commission, if it
is charged, to require by subpena the attendance and testimony of wit-
appears after investigation that a violation has not occurred, to SO
nesses and the production of documentary or other evidence, which is
notify the employee and the employing agency.
relevant to the proceeding or investigation. Paragraph (1) further
If it appears to the Commission after investigation that a violation
authorizes any member of the Board and any hearing examiner au-
has occurred, the Commission is required under paragraph (2) of sec-
thorized by the Board to administer oaths, examine witnesses, and
tion 7328(c) to submit to the Board and serve upon the employee a
receive evidence. In the case of a refusal to obey a subpena, the Board
notice which must: (A) set forth specifically and in detail the charges;
is authorized to seek judicial enforcement in the United States district
(B) advise the employee of the penalties which may be imposed; (C)
court for the judicial district where the subpena is served or where the
specify a period of not less than 30 days within which the employee
person subject to the subpena resides. Failure to obey a court order
may file with the Board a written answer to the charges; and (D)
enforcing the subpena may be punished as a contempt of court.
advise the employee that unless a written answer is filed within the
Paragraph (2) of section 7328 (e) authorizes the Board (or a mem-
prescribed time, the Board is authorized to treat the failure to answer
ber designated by the Board) to order the taking of written deposi-
as an admission of the charges set forth in the notice and as a waiver
tions which shall be subscribed by the deponent.
by the employee of the right to a hearing on the charges.
Paragraph (3) of section 7328(e) authorizes the Board to compel
Paragraph (3) of section 7328(c) establishes a separate procedure
the testimony or production of evidence by an employee notwithstand-
for cases concerning elected officials or employees appointed by the
ing any claim of the privilege against self-incrimination. Paragraph
President against whom the Board has no authority to direct disciplin-
(3) further provides that no employee, having claimed the privilege
ary action. The only individuals to whom the procedure under para-
against self-incrimination, shall be prosecuted or subjected to any pen-
graph (3) applies are: (A) the Vice President; (B) an employee
alty or forfeiture for or on account of the matter about which the
appointed by the President by and with the advice and consent of the
employee has testified or produced evidence and, in addition, that no
Senate; (C) an employee whose appointment is expressly required by
compelled testimony or evidence shall be used as evidence in any
statute to be made by the President; (D) the Mayor of the District
criminal proceeding (other than a proceeding for perjury) against
of Columbia; or (E) the Chairman or a member of the Council of the
the employee in any court.
District of Columbia. If it appears to the Commission that a viola-
Subsectioin (f) provides for judicial review of an order of the
tion of section 7323, 7324. or 7325 has been committed by one of these
Board. An employee upon whom a penalty is imposed is permitted 30
individuals, it is required to refer the case to the Attorney General
days from the issuance of the Board's order to institute an action for
and to report the nature and details of the violation to the President
review in the United States District Court for the District of Colum-
and to the Congress.
bia or in the district court for the judicial district in which the em-
Subsection (d) prescribes the procedures for hearings concerning
ployee resides or is employed. An order of the Board may be stayed
violations of section 7323, 7324. and 7325.
only upon an order of the court.
Paragraph (1) of section 7328 (d) provides that if a written answer
Upon receiving the required copy of the summons and complaint,
is not filed within the time allowed, the Board is authorized to issue
the Board is required to certify and file with the court the record of
its final decision and order without further proceedings.
the proceeding. If, upon application, the court determines to its sat-
ERALO FORD LIERA,
12
13
isfaction that (1) additional evidence may materially effect the result
rights of political participation and to educate employees with respect
of the proceeding, and (2) there were reasonable grounds for failure
to those political activities which are prohibited. Subsection (a) re-
to adduce the evidence at the administrative hearing, it may order
quires the Commission to annually inform each employee, individually
further proceedings before the Board, and if further proceedings are
in writing, of his political rights and the restrictions not be less than
ordered, the Board may modify its original findings of fact or its order
60 days prior to the earliest primary election for State or Federal
and shall file with the court such modified findings or order. The
elective office in the State where an employee is employed. If a State
Board's findings of fact are conclusive if supported by substantial
has no primary election, the date of the earliest general election ap-
evidence. If the court determines that the order is not in accordance
plies. For purposes of this section, the term "State" includes the Dis-
with law it shall remand the proceeding to the Board with appropri-
trict of Columbia, and the Commonwealths, territories, and posses-
ate instructions and may assess against the United States reasonable
sions of the United States. The manner in which the required informa-
attorney fees and other litigation costs reasonably incurred by the
Commission. tion is provided to each employee is left to the discretion of the
employee.
Subsection (g) provides that the Commission or the Board, in its
Subsection (b) requires the Commission to submit, on or before
discretion, may proceed with an investigation or proceeding notwith-
March 30 of each calendar year, a report regarding the aischarge
standing the fact that a concurrent criminal investigation is in prog-
of its responsibilities under subchapter III during the preceding
ress. While it has generally been the practice in the past to hold a civil
calendar year to the Speaker of the House of Representatives and
investigation in abeyance pending the results of a criminal investiga-
the President pro tempore of the Senate for referral to the appropriate
tion into the same or related matters, the result often has been a
committees of the Congress. The report is required to include informa-
delay of 12 to 18 months in the civil investigation. In view of this
tion concerning; (1) the number of investigations conducted under
experience, it is the Committee's belief that in most instances prompt
section 7328 and the results of those investigations; (2) the name
resolution of proceedings under subchapter III is of primary
and position or title of each individual involved, and the funds
importance.
expended by the Commission, in carrying out the educational program
Section 7329 sets forth the penalties which the Board may order
required under subsection (a) and (3) an evaluation of the educa-
in the case of an employee who is found to have violated sections 7323,
tional program which describes the manner in which the Commission
7324, and 7325, and specifies the manner in which the penalty shall
has carried out the program and the effectiveness of the program
be imposed.
with regard to insuring that employees understand their political
Subsection (a) provides that, subject to and in accordance with
rights and the restrictions under subchapter III.
the procedures for investigation and hearing under section 7328, the
Section 7331 requires the Civil Service Commission to prescribe
Board shall, upon finding that an employee has violated any provi-
sion of section 7323, 7324, or 7325 of title 5, enter a final order direct-
sibilities under this subchapter.
such rules and regulations as may be necessary to carry out its cspon-
ing disciplinary action against the employee. In accordance with sec-
Subsection (b) of section 2 of the bill contains several technical and
tion 7327 (f), a majority vote of the Board is required.
conforming amendments to title 5, United States Code.
The three paragraphs of subsection (a) set forth the range of dis-
Paragraph (1) amends section 8332(k (1), relating to civil service
ciplinary action which the Board may order. Under paragraph (1)
retirement coverage, section 8706(e), relating to civil service life
the Board may order the removal of an employee and, in addition if
insurance coverage, and section 8906(e) (2), relating to civil service
removal is ordered, the Board shall prescribe a period of time during
health insurance coverage, by inserting a reference to leave without
which the employee may not be reemployed in any position (other than
pay granted under section 7326(a) of title 5, as amended by this bill,
an elected position) in which the employee would be subject to the
in each of those sections. The effect of these amendments is to permit
provisions of subchapter III.
an employee who is a candidate and who is granted leave without
Under paragraph (2) of subsection (a) the Board may order the
pay under section 7326 (a) of title 5, as amended by the bill, to elect,
suspension without pay of an employee for such period as the Board
within 60 days after entering on leave without pay, to continue under
may prescribe. Under paragraph (3) of subsection (a) the Board
the civil service retirement, life insurance, or health insurance pro-
may, in its discretion order lesser forms of penalties as it deems
grams by arranging through his employing agency to pay currently
appropriate.
into the appropriate fund an amount equal to the employee and the
Subsection (b) requires the Board to notify the Commission, the
agency contributions. The provisions of subsection (b) of section 2
employee, and the employing agency of any penalty it has imposed. It
relating to retirement, health insurance, and retirement coverage,
is then the responsibility of the employing agency to effect the disci-
accord the same treatment to employees who enter on leave without
plinary action, and that agency is required to certify to the Board the
pay for purposes of engaging in candidacy for elective office as is
measures it has undertaken to implement the penalty ordered by the
presently accorded to employees who enter on leave without pay to
Board.
serve as officers of employee organizations.
Subsection (a) of section 7330 requires the Commission to establish
Paragraph (2) amends section 3302 of title 5, relating to the Presi-
and conduct a continuing program to inform all. employees of their
dent's authority to prescribe rules for necessary exceptions from
15
14
Section 2(g) requires the Civil Service Commission to, no later
certain provisions of title 5, by striking out the references to sections
than 60 days after enactment, prepare and transmit to the Congress a
7321 and 7322 in existing subchapter III of chapter 73 of title 5.
report containing standards and criteria by which determinations will
Under the new subchapter III, as revised by the bill, all exceptions
be made as to which elective offices will be considered part-time elective
from the provisions of that subchapter are expressly set forth in the
offices for the purposes of administering the mandatory leave without
subchapter itself.
pay provisions of section 7326 (a) (2).
Paragraph (3) amends section 1308 (a) of title 5, relating to annual
reports of the Civil Service Commission, by striking out paragraph (3)
COST
relating to reports of the Commission concerning its actions under
existing section 7325 of title 5. The reporting requirements of section
Under the provisions of H.R. 8617, the investigation of alleged
7330 of title 5, as provided by the bill, supersede the existing reporting
violations will be conducted by the Civil Service Commission, as they
requirements. The remaining paragraph of section 1308 (a) is appro-
now are. Adjudication of cases arising under the act will move to
priately redesignated.
the new Board established for that purpose, which will receive per-
Paragraph (4) corrects an existing technical error in the second
sonnel and administrative support from the Civil Service Commis-
sentence of section 8332 (k) (1) by striking out "second" and inserting
sion and the General Services Administration. Based on past experi-
in lieu thereof "last".
ence, the committee does not contemplate a great number of cases aris-
Paragraph (5) amends the section analysis for subchapter III of
ing that would require adjudication, however. In fiscal year 1974,
chapter 73 of title 5 to reflect the changes made by section (a) of the
for example, the Commission, under its present procedures, processed
bill.
37 complaints, closing 17 cases without investigation and 14 subsequent
Section 2(c) of the bill amends sections 602 and 607 of title 18,
to investigation. Four suspensions and two removals were effected as
United States Code, relating to solicitations and making of political
the result of formal charges. Consequently, the committee does not
contributions, by adding a new sentence at the end of each section to
anticipate any significant cost to the Federal Government arising out
provide that those sections do not apply to any activity of an employee,
of this legislation. Additional costs will be incurred as the result of
as defined in section 7322 (1) of title 5, unless such activity is prohibited
the educational endeavor required of the Commission, but the com-
by section 7324 of that title. Since section 7324 of the bill, relating to
mittee has no information on which to base an estimate.
solicitations and making of political contributions, permits employees
It is the committee's hope that such standards and criteria will not
to engage in certain activities which are presently prohibited under
be SO narrowly drawn as to exclude great numbers of elective offices.
sections 602 and 607, this amendment is necessary to insure that an
employee is not criminally liable for an activity that is permissible
AGENCY VIEWS
under the bill. The amendments to the criminal provisions pertain only
to activities by "employees" as defined under section 7322 (1) of title 5.
U.S. CIVIL SERVICE COMMISSION,
Paragraph (2) of subsection (c) adds a new section to chapter 29
Washington, D.C., November 4, 1975.
of title 18, making it a crime punishable by imprisonment for not less
Hon. GALE McGEE,
than two nor more than three years or a fine of not more than $5,000 or
Chairman, Committee on Post Office and Civil Service,
more for anyone to, by the commission of or threat of physical violence
U.S. Senate, Washington, D.C.
to, or economic sanction against, any person, obtain or endeavor to
DEAR MR. CHAIRMAN: This is in reply to your letter requesting the
obtain any contribution for an officer or employee of the United States
Commission's views on S. 372, a bill "To restore to Federal civilian
or a person receiving salary or compensation from money derived from
employees their rights to participate, as private citizens, in the politi-
cal life of the Nation, and for other purposes." This letter also reflects
the Treasury of the United States.
Section 2(d) amends section 6 of the Voting Rights Act of 1965
the Commission's views on H.R. 8617, a related bill now pending before
(42 U.S.C. 1973d), relating to the appointment of Federal voting
your committee.
examiners, by striking out "the provisions of section 9 of the Act of
The Commission opposes enactment of these bills for several reasons.
August 2, 1939, as amended (5 U.S.C. 118i), prohibiting partisan
In our opinion, the primary thrust of S. 372 and H.R. 8617 is to
political activity", and inserting "the provisions of subchapter III of
repeal the existing restrictions on political activities as set forth at
chapter 73 of title 5, United States Code, relating to political
5 U.S.C. 7324(a) (2). This provision prohibits Federal employees and
employees of the District of Columbia from participation in partisan
activities". Section 2(e) amends sections (a) (4) (D) and (a) (4) (D) of
political management and partisan political campaigns.
the District of Columbia Public Education Act, relating to the employ-
A secondary thrust of S. 372 is to revise and expand 5 U.S.C. 7323 SO
ment of officers and educational employees of Federal City College and
as to clarify responsibilities and procedures under this section. The
the Washington Technical Institute, by striking out "sections 7324
Commission does not disagree with the basic intent of the latter pro-
through 7327 of title 5" and inserting "section 7325 of title 5".
vision. We do note in passing that this section of the bill appears to
Section 2(f) provides that the amendments made by section 2 of the
give the Commission jurisdiction to proceed in regard to Members of
bill shall take effect on the ninetieth day after the date of enactment of
Congress, employees of Congress, and officers of the uniformed services
the act, except for the provisions of section 7326 (a) (2), as amended,
(page 4, lines 14, 15). Inasmuch as such jurisdiction would be rather
unusual we are uncertain if this was the actual intent of the bill.
which shall take effect 120 days after enactment.
16
17
The Commission's major area of concern, however, is with the pri-
mary thrust of S. 372 and H.R. 8617 which would allow to employees
virtually unlimited political activity, both partisan and nonpartisan,
even at the national level. This goes far beyond the proposals to liberal-
effect of amendments that would permit more political activity on
Apparently employees, too, feel some apprehension regarding the
ize the political activity restrictions as recommended by the Commis-
their part. A survey of Federal employees, conducted by the same Com-
sion on Political Activity of Government Personnel.
mission in 1967, disclosed that more than half (52%) of those con-
Where advancement in the public service is predicated exclusively
upon merit, the entire society benefits from a more efficient and honest
job assignments, and similar actions. Volume II, Report of the Com-
tacted believed that such changes would affect promotions, decisions,
public service. Since 1883, this Commission, acting at the direction of
mission on Political Activity of Government Personnel-Research,
the President and under Congressional enactments, has endeavored
pages 21 and 78 (1968). We believe the employees' fears stem from a
to insure that Federal employment and Federal personnel manage-
realistic view of politics in relation to the public service.
ment are anchored on the principle of merit, free from the influence of
The foregoing should in no way, of course, be construed as a total
political partisanship.
indictment against political activity of Federal employees. We would
We are convinced that some restriction on the ability of public em-
note, for example, that under existing law Federal employees are free
ployees to identify themselves prominently with partisan political
to engage in a wide variety of activities. The Hatch Act does not cir-
party success is essential to an effective merit system. While the politi-
cal activity of specific employees may appear to be innocuous in itself,
directs its prohibitions to what Congress regarded as particular
cumscribe the entire field of political activity, but, rather, carefully
the effect of such activity generally is that public employees become
sources of danger to the public service, namely, direct participation by
identified with the aspirations of political parties and candidates, and
employees in the management and campaigns of major political par-
partisan considerations are injected into the career service. The identi-
ties. A wide range of freedom to participate in the political processes
fication of a civil servant with a political party through active partici-
of the Nation, State, and the local community is permitted under the
existing law.
pation in party affairs compromises that employee in the eye of the
public, and most certainly in the eyes of an opposing party during a
bills. Accordingly, the Commission strongly opposes enactment of these
change in administrations. Competition among employees for advance-
ment and favor based on their contributions of money or services to
The Office of Management and Budget advises that enactment of
political parties would also detract from the efficient administration of
President. S. 372 or H.R. 8617 would not be in accord with the program of the
public business. Our conclusion is that the intrusion of partisan con-
By direction of the Commission:
siderations into the career Federal service, even in appearance, would
Sincerely yours,
constitute a devastating blow to merit concepts, and to employee morale
as well.
ROBERT HAMPTON, Chairman.
We, of course, favor the retention of the prohibition on the misuse
of official authority to influence elections, as well as the restrictions on
the solicitation and exchange of political contributions among Federal
EXECUTIVE OFFICE OF THE PRESIDENT,
officers and employees. However, in our view, those limitations alone,
OFFICE OF MANAGEMENT AND BUDGET,
even as revised and expanded by S. 372, and to a lesser extent by H.R.
Hon. GALE W. McGEE,
Washington, D.C., November 25, 1975.
8617, are wholly inadequate to protect employees from the subtle pres-
sures that would impel them to engage in other forms of political
Chairman, Committee on Post Office and Civil Service, U.S. Senate,
activity in order to protect or enhance their employment situation.
Washington, D.C.
Without the protection of a public policy that limits the political ac-
tivities of public employees, an employee would be vulnerable to in-
with the Hatch Act.
for the views of this Office on S. 372 and H.R. 8617, both bills concerned
DEAR MR. CHAIRMAN: This is in reply to the Committee's requests
direct influences to support the political party or candidates favored
by those in a position to affect the employee's government career.
Under current restrictions everyone knows that a covered employee
The principal purpose of these bills is to repeal the restrictions in
cannot serve political purposes, except at the risk of loss of employ-
political campaigning and managing.
existing law on active participation by Federal employees in partisan
ment. This protection of the Federal employee would be discarded by
the proposed legislation.
We are opposed to the elimination of such restrictions. As noted in
We think it significant that after nearly a year of study of the
the report and testimony of the Civil Service Commission, the effect
Hatch Act, the Commission on Political Activity of Government Per-
such repeal would be to allow Federal employees virtually unlimited on
sonnel concluded that protection of a career system based on merit
partisan political activity. We believe the identification of Federal
not only "requires strong sanctions against coercion
[but]
also
requires some limits on the role of the Government employee in poli-
affairs would inevitably introduce partisan considerations into the
employees with political parties through their active role in party
tics." Volume I Report of the Commission on Political Activity of Gov-
administration of Federal programs. This would seriously undermine
ernment Personnel-Recommendations page 3.
public confidence in the integrity of Government operations and would
adversely affect employees morale and efficiency as well.
Moreover, we note that H.R. 8617 would require the Civil Service
S. Rept. 512-75-3
18
19
Commission to submit proposed implementing regulations to Congress,
CHANGES IN EXISTING LAW
subject to disapproval by either House within 30 days. This provision
violates the doctrine of separation of powers and represents an uncon-
In compliance with subsection 4 of rule XXIX of the Standing
stitutional exercise of Congressional power.
Rules of the Senate, changes in existing law made by the bill as
Accordingly, for the reasons stated above, we strongly recommend
reported are shown as follows (existing law in which no change is
against enactment of S. 372 or H.R. 8617. Enactment of these bills
proposed is shown in roman; existing law proposed to be omitted is
would not be in accord with the program of the President.
enclosed in black brackets; new matter is shown in italic) :
Sincerely,
JAMES M. FREY,
TITLE 5, UNITED STATES CODE
Assistant Director for Legislative Reference.
PART II-THE UNITED STATES CIVIL SERVICE
COMPTROLLER GENERAL OF THE UNITED STATES,
COMMISSION
Washington, D.C., November 13, 1975.
*
B-138229
Hon. GALE W. McGEE,
Chapter 13-Special Authority
Chairman, Committee on Post Office and Civil Service,
*
U.S. Senate
DEAR MR. CHAIRMAN: By letter of October 31, 1975, you requested
§ 1308. Annual reports
our views and comments on H.R. 8617, 94th Cong., 1st Sess., an Act
(a) The Civil Service Commission shall make an annual report to
"[t]o restore to Federal civilian and Postal Service employees their
the President for transmittal to Congress. The report shall include-
rights to participate voluntarily, as private citizens, in the political
(1) a statement of the Commission's actions in the administra-
processes of the Nation, to protect such employees from improper
tion of the competitive service, the rules and regulations and
political solicitations, and for other purposes.
exceptions thereto in force, the reasons for exceptions to the rules
The legislation would amend subchapter III-Political Activities-
the practical effects of the rules and regulations, and any recom-
of chapter 73 of title 5, United States Code. On June 10, 1975, we
mendations for the more effectual accomplishment of the purposes
reported to the House Committee on Post Office and Civil Service on
of the provisions of this title that relate to the administration
H.R. 3000, 94th Cong., 1st Sess. Subsequently, H.R. 8617 was intro-
of the competitive service;
duced as a clean bill in lieu of H.R. 3000 as approved by the unanimous
(2) the results of the incentive awards program authorized
voice vote of the Subcommittee on Employee Political Rights and
by chapter 45 of this title with related recommendations; and
Intergovernmental Programs.
[(3) at the end of each fiscal year, the names, addresses, and
We noted in our report on H.R. 3000 that its enactment would shift
nature of employment of the individuals on whom the Commis-
emphasis from removal of Federal employees for violations of the
sion has imposed a penalty for prohibited political activity under
"Hatch Act" to lesser penalties, and correspondingly reduce the
section 7325 of this title with a statement of the facts on which
protection of Federal civilian employees from improper political
action was taken, and the penalty imposed; and
[(4)](3) a statement, in the form determined by the Commis-
solicitations. Additionally, we stated our concern incident to increasing political
sion with the approval of the President, on the training of em-
activity on the part of Federal employees, including candidacy for
ployees under chapter 41 of this title, including-
nomination or election to public office, without involving their official
(A) a summary of information concerning the operation
authority or influence. H.R. 8617 represents a substantial effort to
and results of the training programs and plans of the
establish a system that would bring about increased voluntary political
agencies;
participation by Federal employees without involving their official
(B) a summary of information received by the Commis-
authority or influence. On balance, however, we believe, as perviously
sion from the agencies under section 4113 (b) of this title;
stated, that active partipation by a Federal employee in political activi-
and
ties could involve or give the appearance of a conflict-of-interest situa-
(C) the recommendations and other matters considered
tion. Accordingly, it is recommended that the legislation not be enacted.
appropriate by the President or the Commission or required
by Congress.
Sincerely yours,
ROBERT F. KELLER,
Deputy Comptroller General of the United States.
Part II-Employees
21
20
Subpart B-Employment and Retention
7328. Investigation; procedures; hearing.
7329. Penalties.
7330. Educational program; reports.
7331. Regulations.
Chapter 33-Examination, Selection, and Placement
*
[Subchapter III-Political Activities
Subchapter I-Examination, Certification, and Appointment
[§ 7321. Political contributions and services
*
[The President may prescribe rules which shall provide, as nearly
§ 3302. Competitive service; rules
as conditions of good administration warrant, that an employee in an
The President may prescribe rules governing the competitive service.
Executive agency or in the competitive service is not obliged, by reason
The rules shall provide, as nearly as conditions of good administration
of that employment, to contribute to a political fund or to render
political service, and that he may not be removed or otherwise preju-
warant, for-
(1) necessary exceptions of positions from the competitive
diced for refusal to do SO.
service; and
[§ 7322. Political use of authority or influence; prohibition
(2) necessary exceptions from the provisions of sections 2951,
[The President may prescribe rules which shall provide, as nearly
3304 (a), 3306 (a) (1), 3321, 7152, [7153, 7321, and 7322 and 7153
as conditions of good administration warrant, that an employee in an
of this title.
Executive agency or in the competitive service may not use his official
Each officer and individual employed in an agency to which the rules
authority or influence to coerce the political action of a person or body.
apply shall aid in carrying out the rules.
[§ 7323. Political contributions; prohibition
*
*
[An employee in an Executive agency (except one appointed by the
Subpart F-Employee Relations
President, by and with the advice and consent of the Senate) may not
request or receive from, or give to, an employee, a Member of Congress,
*
or an officer of a uniformed service a thing of value for political pur-
poses. An employee who violates this section shall be removed from
Chapter 73-Suitability, Security, and Conduct
the service.
*
*
*
[§ 7324. Influencing elections; taking part in political campaigns;
Subchapter III-Political Activities
prohibitions; exceptions
[(a) An employee in an Executive agency or an individual em-
Sec.
ployed by the government of the District of Columbia may not-
[(1) use his official authority or influence for the purpose of
7321. Political contributions and services.
interferring with or affecting the result of an election; or
7322. Political use of authority or influence; prohibition.
[(2) take an active part in political management or in politi-
7323. Political contributions; prohibition.
cal campaigns.
7324. Influencing elections; taking part in political campaigns;
For the purpose of this subsection, the phrase "an active part in polit-
prohibitions; exceptions.
ical management or in political campaigns" means those acts of polit-
7325. Penalties.
ical management or political campaigning which were prohibited on
7326. Nonpartisan political activity permitted.
the part of employees in the competitive service before July 19, 1940,
7327. Political activity permitted; employees residing in certain
by determinations of the Civil Service Commission under the rules
municipalities.
prescribed by the President.
[(b) An employee or individual to whom subsection (a) of this sec-
Sec.
tion applies retains the right to vote as he chooses and to express his
7321. Political participation.
opinion on political subjects and candidates.
7322. Definitions.
[(c) Subsection (a) of this section does not apply to an individual
7323. Use of Official authority or influence; prohibition.
employed by an educational or research institution, establishment,
7324. Solicitation; prohibition.
agency, or system which is supported in whole or in part by the District
7325. Political activities on duty; prohibition.
of Columbia or by a recognized religious, philanthropic, or cultural
7326. Leave for candidates for elective office.
organization.
7327. Board on Political Activities of Federal Employees.
[(d) Subsection (a) (2) of this section does not apply to-
[(1) an employee paid from the appropriation for the office of
the President;
22
23
[(2) the head or the assistant head of an Executive department
[(2) the Commission determines that because of special or
or military department;
unusual circumstances which exist in the municipality or politi-
[(3) an employee appointed by the President, by and with the
advice and consent of the Senate, who determines policies to be
cal subdivision it is in the domestic interest of the employees and
pursued by the United States in its relations with foreign powers
individuals to permit that political participation.]
or in the nationwide administration of Federal laws;
Subchapter III-Political Activities
[(4) the Mayor of the District of Columbia, the members of
the Council of the District of Columbia, or the Chairman of the
§ 7321. Political participation
Council of the District of Columbia, as established by the District
It is the policy of the Congress that employees should be encouraged
of Columbia Self-Government and Governmental Reorganization
to fully exercise, to the extent not expressly prohibited by law, their
Act; or
rights of voluntary participation in the political processes of our
((5) the Recorder of Deeds of the District of Columbia.
Nation.
[§ 7325. Penalties
§ 7322. Definitions
[An employee or individual who violates section 7324 of this title
For the purpose of this subchapter
shall be removed from his position, and funds appropriated for the
(1) "employee" means any individual, including the President
position from which removed thereafter may not be used to pay the
and the Vice President, employed or holding office in-
employee or individual. However, if the Civil Service Commission
(A) an Executive agency,
finds by unanimous vote that the violation does not warrant removal,
(B) the government of the District of Columbia,
a penalty of not less than 30 days' suspension without pay shall be im-
(C) the competitive service, or
posed by direction of the Commission.
(D) the United States Postal Service or the Postal Rate
[§ 7326. Nonpartisan political activity permitted
Commission;
but does not include a member of the uniformed services;
[Section 7324 (2) of this title does not prohibit political activity
(2) "candidate" means any individual who seeks nomination
in connection with-
for election, or election, to any elective office, whether or not such
[(1) an election and the preceding campaign if none of the
individual is elected, and, for the purpose of this paragraph, an
candidates is to be nominated or elected at that election as repre-
individual shall be deemed to seek nomination for election, or
senting. a party any of whose candidates for presidential elector
election, to an elective office, if such individual has-
received votes in the last preceding election at which presidential
(4) taken the action required to qualify for nomination
electors were selected; or
for election, or election, or
E(2) a question which is not specifically identified with a
(B) received political contributions or made expenditures,
National or State political party or political party of a territory
or has given consent for any other person to receive political
or possession of the United States.
contributions or make expenditures, with a view to bringing
For the purpose of this section, questions relating to constitutional
about such individual's nomination for election, or election,
amendments, referendums, approval of municipal ordinances, and
to such office;
others of a similar character, are deemed not specifically identified
(3) "political contribution"-
with a National or State political party or political party of a terri-
(4) means a gift, subscription, loan, advance, or deposit of
tory or possession of the United States.
money or anything of value, made for the purpose of influenc-
[§ 7327. Political activity permitted; employees residing in cer-
ing the nomination for election, or election, of any individual
tain municipalities
to elective office or for the purpose of otherwise influencing
[(a) Section 7324 (a) (2) of this title does not apply to an employee
the results of any election;
of The Alaska Railroad who resides in a municipality on the line of
(B) includes a contract, promise, or agreement, express or
the railroad in respect to political activities involving that
implied, whether or not legally enforceable, to make a politi-
municipality.
cal contribution for any such purpose; and
[(b) The Civil Service Commission may prescribe regulations per-
(σ) includes the payment by any person, other than a
mitting employees and individuals to whom section 7324 of this title
candidate or a political organization, of compensation for the
personal services of another person which are rendered to
applies to take an active part in political management and political
campaigns involving the municipality or other political subdivision in
such candidate or political organization without charge for
which they reside, to the extent the Commission considers it to be in
any such purpose;
their domestic interest, when-
(4) "superior" means an employee (other than the President
or the Vice President) who exercises supervision of, or control or
[(1) the municipality or political subdivision is in Maryland
administrative direction over, another employee;
or Virginia and in the immediate vicinity of the Distret of Co-
(5) "elective office" means any elective public office and any
lumbia, or is a municipality in which the majority of voters are
employed by the Government of the United States; and
and elective office of any political party or affiliated organization;
24
25
(6) "Board" means the Board on Political Activities of Fed-
7325. Political activities on duty; prohibition
eral Employees established under section 7327 of this title.
(a) An employee may not engage in political activity-
§ 7323. Use of official authority or influence; prohibition
(1) while such employee is on duty,
(a) An employee may not directly or indirectly use or attempt to
(2) in any room or building occupied in the discharge of official
use the official authority or influence of such employee for the purpose
duties by an individual employed or holding office in the Govern-
of-
ment of the United States, in the government of the District of
(1) interfering with or affecting the result of any election; or
Columbia, or in any agency or instrumentality of the foregoing, or
(2) intimidating, threatening, coercing, commanding, influ-
(3) while wearing a uniform or official insignia identifying the
encing, or attempting to intimidate, threaten, coerce, command,
office or position of such employee.
or influence-
(b) The provisions of subsection (a) of this section shall not apply
(A) any individual for the purpose of interferring with
to-
the right of any individual to vote as such individual may
(1) the President and the Vice President;
choose, or of causing any individual to vote, or not to vote,
(2) an individual-
for any candidate or measure in any election;
(A) paid from the appropriation for the White House
(B) any person to give or withhold any political contribu-
Office,
tion; or
(B) paid from funds to enable the Vice President to pro-
(C) any person to engage, or not to engage, in any form
vide assistance to the President, or
of political activity whether or not such activity is prohibited
(C) on special assignment to the White House Office,
by law.
unless such individual holds a career or career-conditional ap-
(b) Nothing in this section authorizes the use by any employee of
pointment in the competitive service.
any information coming to him in the course of his employment or
(3) the Mayor of the District of Columbia, the Chairman
official duties for any purpose where otherwise prohibited by law.
or a member of the Council of the District of Columbia, as
(c) For the purpose of subsection (a) of this section, use of official
established by the District of Columbia Self-Government
authority or influence includes, but is not limited to, promising to con-
and Governmental Reorganization Act.
fer or conferring any benefit (such as appointment, promotion, com-
pensation, grant, contract, license, or ruling), or effecting or threat-
§ 7326. Leave for candidates for elective office
ening to effect any reprisal (such as deprivation of appointment,
(a) (1) An employee who is a candidate for elective office shall,
promotion, compensation, grant, contract, license, or ruling).
upon the request of such employee, be granted leave without pay for
the purpose of allowing such employee to engage in activities relating
§ 7324. Solicitation; prohibition
to such candidacy.
An employee may not-
(2) Any employee who is a candidate for elective office shall be
(1) give or offer to give a political contribution to any indi-
placed on leave without pay effective beginning on whichever of the
vidual either to vote or refrain from voting, or to vote for or
following dates is the later:
against any candidate or measure, in any election;
(A) the 90th day before any election (including a primary election,
(2) solicit, accept, or receive a political contribution to vote
other than a primary election in which such employee is not a candi-
or refrain from voting, or to vote for or against any candidate
date) for that elective office, or
or measure, in any election;
(B) the day following the date on which the employee became a
(3) knowingly give or hand over a political contribution to a
candidate for elective office.
superior of such employee; or
Such leave shall terminate on the day following the election or the day
(4) knowingly solicit, accept, or receive, or be in any manner
following the date on which the employee is no longer a candidate for
concerned with soliciting, accepting, or receiving, a political
elective office, whichever first occurs, unless the employee is otherwise
contribution-
on leave. The Civil Service Commissioin shall, upon application, ex-
(A) from another employee (or a member of another em-
empt from the application of this paragraph any employee who is a
ployee's immediate family) with respect to whom such em-
candidate for any part-time elective office.
ployee is a superior; or
(b) Nothwithstanding section 6302(d) of this title, an employee
(B) in any room or building occupied in the discharge of
who is a candidate for elective office shall, upon the request of such
official duties by-
employee, be granted accrued annual leave for the purpose of allow-
(i) an individual employed or holding office in the Gov-
ing such employee to engage in activities relating to such candidacy.
ernment of the United States, in the government of the
Such leave shall be in addition to leave without pay of such employee
District of Columbia, or in any agency or instrumentality
under subsection (a) of this section.
of the foregoing; or
(c) An employee shall promptly notify the agency in which he is
(ii) an individual receiving any salary or compensa-
employed upon becoming a candidate for elective office and upon the
tion for services from money derived from the Treasury
termination of such candidacy.
of the United States.
S. Rept. 512-75-4
26
27
(d) The provisions of this section shall not apply in the case of an
(j) The Administrator of the General Services Administration shall
individual who is an employee by reason of holding an elective public
furnish the Board suitable office space appropriately furnished and
office.
equipped, as determined by the Administrator.
§ 7327. Board on Political Activities of Federal Employees
(k) (1) Members of the Board shall receive no additional pay on
(a) There is established a board to be known as the Board on Politi-
account of their service on the Board.
cal Activities of Federal Employees. It shall be the function of the
(2) Members shall be entitled to leave without loss of or reduction
Board to hear and decide cases regarding violations of sections 7323,
in pay, leave, or performance or efficiency rating during a period of
7324, and 7325 of this title.
absence while in the actual performance of duties vested in the Board.
(b) The Board shall be composed of 3 members, appointed by the
§ 7328. Investigation; procedures; hearing
President, by and with the advice and consent of the Senate. One
(a) The Civil Service Commission shall investigate reports and alle-
member shall be designated by the President as Chairman of the
gations of any activity prohibited by section 7323, 7324, or 7325 of this
Board.
title. Any such investigation shall terminate not later than 90 days
(c) Members of the Board shall be chosen on the basis of their pro-
after the date of its commencement, except that such 90-day limitation
fessional qualifications from among individuals who, at the time of
may be extended upon the written approval of the Board for the period
their appointment, are employees (as defined under section 7322 (1)
specified in such approval. If the Commission does not make the notifi-
of this title), except that not more than 2 individuals of the same politi-
cation required under subsection (c) of this section before the close of
cal party may be appointed as members. Employees of the Civil Serv-
the period for investigation, subsections (c) (2) and (3) and (d) of
ice Commission shall be ineligible to be appointed to or to hold office
this section, and section 7329 of this title, shall not apply thereafter to
as members of the Board.
the employee involved with respect to the activities under
(d) (1) Members of the Board shall serve a term of 3 years, except
investigation.
that of the members first appointed-
(b) As a part of the investigation of the activities of an employee,
(A) the Chairman shall be appointed for a term of 3 years,
the Commission shall provide such employee an opportunity to make
(B) one member, designated by the President, shall be ap-
a statement concerning the matters under investigation and to support
pointed for a term of 2 years, and
such statement with any documents the employee wishes to submit. An
(C) one member, designated by the President, shall be ap-
employee of the Commission lawfully assigned to investigate a viola-
pointed for a term of 1 year.
tion of this subchapter may administer an oath to a witness attending
An individual appointed to fill a vacancy occurring other than by the
to testify or depose in the course of the investigation.
expiration of a term of office shall be appointed only for the unexpired
(c) (1) If it appears to the Commission after investigation that a
term of the member such individual will succeed. Any vacancy occur-
violation of section 7323, 7324, or 7325 of this title has not occurred, it
ring in the membership of the Board shall be filled in the same manner
shall 80 notify the employee and the agency in which the employee is
as in the case of the original appointment.
(2) If an employee who was appointed as a member of the Board is
employed.
(2) Except as provided in paragraph (3) of this subsection, if it
separated from service as an employee he may not continue as a mem-
ber of the Board after the 60-day period beginning on the date 80
appears to the Commission after investigation that a violation of sec-
tion 7323, 7324, or 7325 of this title has occurred, the Commission shall
separated.
(e) The Board shall meet at the call of the Chairman.
submit to the Board and serve upon the employee a written notice
(f) All decisions of the Board with respect to the exercise of its
by certified mail (or if notice cannot be served in such manner, then
duties and powers under the provisions of this subchapter shall be
by any method calculated to reasonably apprise the employee)-
made by a majority vote of the Board.
(A) setting forth specifically and in detail the charges of
(g) A member of the Board may not delegate to any person his vote
alleged prohibited activity;
nor, except as expressly provided by this subchapter, may any decision-
(B) advising the employee of the penalties provided under
making authority vested in the Board by the provisions of this sub-
section 7329 of this title;
chapter be delegated to any member or person.
(C) specifying a period of not less than 30 days within which
(h) The Board shall prepare and publish in the Federal Register
the employee may file with the Board a written answer to the
written rules for the conduct of its activities, shall have an official seal
charges in the manner prescribed by rules issued by the Board;
which shall be judicially noticed, and shall have its office in or near
and
the District of Columbia (but it may meet or exercise any of its pow-
(D) advising the employee that unless the employee answers
crs anywhere in the United States).
the charges, in writing, within the time allowed therefor, the
(i) The Civil Service Commission shall provide such clerical and
Board is authorized to treat such failure as an admission by the
professional personnel, and administrative support, as the Chairman
employee of the charges set forth in the notice and a waiver by
of the Board considers appropriate and necessary to carry out the
the employee of the right to a hearing on the charges.
Board's functions under this subchapter. Such personnel shall be re-
sponsible to the Chairman of the Board.
28
29
(3) If it appears to the Commission after investigation that a
obey the order of the court may be punished by the court as a contempt
violation of section 7323, 7324, or 7325 of this title has been committed
by-
thereof. (2) The Board (or a member designated by the Board) may order
(A) the Vice President;
the taking of depositions at any stage of a proceeding or investigation
(B) an employee appointed by the President by and with the
under this subohapter. Depositions shall be taken before an individ-
advice and consent of the Senate;
ual designated by the Board and having the power to administer oaths.
(σ) an employee whose appointment is expressly required by
Testimony shall be reduced to writing by or under the direction of the
statute to be made by the President;
individual taking the deposition and shall be subscribed by the
(D) the Mayor of the District of Columbia; or
deponent.
(E) the Chairman or a member of the Council of the District
(3) (4) After requesting in writing and obtaining the approval of
of Columbia, as established by the District of Columbia Self-
the Attorney General, the Board may determine that an employee's
Government and Governmental Reorganization Act:
attendance and testimony are necessary to the carrying out of the
the Commission shall refer the case to the Attorney General for
Board's functions under this subchapter. For purposes of the preced-
prosecution under title 18, and shall report the nature and details of
ing sentence, if the Atttorney General does not notify the Board in
the violation to the President and to the Congress.
writing within 30 days after the date on which a request for such ap-
(d) (1) If a written answer is not filed within the time allowed
proval is made that the Board does not have his approval, then such
therefor, the Board may, without further proceedings, issue its final
approval is deemed to have been given. Such 30-day period shall be
decision and order.
extended an additional 10 days of the attorney General submits in
(2) If an answer is filed within the time allowed, the charges shall
writing to the Board the reason for such extension.
be determined by the Board on the record after a hearing conducted by
(B) If the Board makes a determination under subparagraph (4)
a hearing examiner appointed under section 3105 of this title, and, ex-
with respect to any employee, such employee may not be excused from
cept as otherwise expressly provided under this subchapter, in accord-
attending and testifying or from producing documentary or other
ance with the requirements of subchapter II of chapter 5 of this title,
evidence in obedience to a subpena of the Board on the ground that
notwithstanding any exception therein for matters involving the ten-
the testimony or evidence required of the emplyoee may tend to in-
ure of any employee. The hearing shall be commenced within 30 days
criminate the employee or subject the employee to a penalty or for
after the answer is filed with the Board and shall be conducted without
feiture for or on account of any transaction, matter, or thing concern-
unreasonable delay. As soon as practicable after the conclusion of the
ing which the employee is compelled to testify or produce evidence.
hearing, the examiner shall serve upon the Board, the Commission,
No employee shall be prosecuted or subjected to any penalty or for-
and the employee such examiner's recommended decision with notice
feiture for or on account of any transaction, matter, or thing concern-
to the Commission and the employee of opportunity to file with the
ing which the employee is compelled under this paragraph, after hav-
Board, within 30 days after the date of such notice, exceptions to the
ing claimed the privilege against self-inorimination, to testify or pro-
recommended decision. The Board shall issue its final decision and
duce evidence, nor shall testimony or evidence so compelled be used
order in the proceeding no later than 60 days after the date the recom-
as evidence in any criminal proceeding against the employee in any
mended decision is served. The employee shall not be removed from
court, except that no employee shall be exempt from prosecution and
active duty status by reason of the alleged violation of this subchapter
punishment for perjury committed in so testifying.
at any time bef the effective date specified by the Board.
(f) An employee upon whom a penalty is imposed by an order of
(e) (1) At any stage of a proceeding or investigation under this
the Board under subsection (d) of this section may, within 30 days
subchapter, the Board may, at the written request of the Commission
after the date on which the order was issued, institute an action for
or the employee, require by subpena the attendance and testimony of
judicial review of the Board's order in the United States District
witnesses and the production of documentary or other evidence relat-
Court for the District of Columbia or in the United States district
ing to the proceeding or investigation at any designated place, from
court for the judicial district in which the employee resides or is em-
any place in the United States or any territory or possession thereof,
ployed. The institution of an action for judicial review shall not
the Commonwealth of Puerto Rico, or the District of Columbia. Any
operate as a stay of the Board's order, unless the court specifically
member of the Board may issue subpenas and members of the Board
orders such stay. A copy of the summons and complaint shall be served
and any hearing examiner authorized by the Board may administer
as otherwise prescribed by law and, in addition, upon the Board
oaths, examine witnesses, and receive evidence. In the case of contu-
which shall then certify and file with the court the record upon
macy or failure to obey a subpena, the United States district court for
which the Board's order was based. If application is made to the
the judicial district in which the person to whom the subpena is ad-
court for leave to adduce additional evidence, and it is shown to
dressed resides or is served may, upon application by the Board,
the satisfaction of the court that the additional evidence may mate-
issue an order requiring such person to appear at any designated place
rially affect the result of the proceeding and that there were reasonable
to testify or to produce documentary or other evidence. Any failure to
grounds for failure to adduce the evidence at the hearing conducted
under subsection (d) (2) of this section, the court may direct that the
additional evidence be taken before the Board in the manner and on
30
31
the terms and conditions fixed by the court. The Board may modify its
pore of the Senate for referral to the appropriate committees of the
findings of fact 09" order, in the light of the additional evidence, and
Congress. The report shall include-
shall file with the court such modified findings or order. The Board's
(1) the number of investigations conducted under section 7328
findings of fact, if supported by substantial evidence, shall be con-
of this title and the results of such investigations;
clusive. The court shall affirm the Board's order if it determines that it
(2) the name and position or title of each individual involved,
is in accordance with law. If the court determines that the order is
and the funds expended by the Commission, in carrying out the
not in accordance with law-
program required under subsection (a) of this section; and
(1) it shall remand the proceeding to the Board with direc-
(3) an evaluation which describes
tions either to enter an order determined by the court to be lawful
(A) the manner in which such program is being carried
or to take such further proceedings as, in the opinion of the court,
out; and
are required; and
(B) the effectiveness of such program in carrying out the
(2) it may assess against the United States reasonable attor-
purposes set forth in subsection (a) of this section.
ney fees and other litigation costs reasonably incurred by the
§ 7331. Regulations
employee.
The Civil Service Commission shall prescribe such rules and regu-
(g) The Commission or the Board, in its discretion, may proceed
lations as may be necessary to carry out its responsibilities under this
with any investigation or proceeding instituted under this subchapter
subchapter. However, no regulation or rule of the Commission or any
notwithstanding that the Commission or the head of an employing
amendment thereto shall take effect unless—
agency or department has reported the alleged violation to the At-
(1) the Commission transmits such rule, regulation, or amend-
torney General as required by section 535 of title 28.
ments to the Congress; and
§ 7329. Penalties
(2) neither House of Congress has disapproved such rule, regu-
(a) Subject to and in accordance with section 7328 of this title, an
lation, or amendment within 30 legislative days from the date of
employee who is found to have violated any provision of section 7323,
transmittal to the Congress.
7324, or 7325 of this title shall, upon a final order of the Board, be-
(1) removed from such employee's pension, in which event
that employee may not thereafter hold any position (other than
Chapter 83-Retirement
an elected position) as an employee (as defined in section 7322 (1)
of this title) for such period as the Board may prescribe;
(2) suspended without pay from such employee's position for
Subchapter III-Civil Service Retirement
such period as the Board may prescribe; or
(3) disciplined in such other manner as the Board shall deem
appropriate.
§ 8332. Creditable service
(b) The Board shall notify the Commission, the employee, and the
(a)
*
*
employing agency of any penalty it has imposed under this section.
The employing agency shall certify to the Board the measures under-
taken to implement the penalty.
(k) (1) An employee who enters on leave without pay granted under
section 7326(a) of this title, or who enters on approved leave without
§ 7330. Educational program; reports
pay to serve as a full-time officer or employee of an organization com-
(a) The Commission shall establish and conduct a continuing pro-
posed primarily of employees as defined by section 8331 (1) of this
gram to inform all employees of their rights of political participation
title, which 60 days after entering on that leave without pay, may file
and to educate employees with respect to those political activities
with his employing agency an election to receive full retirement credit
which are prohibited. The Commission shall inform each employee
for his periods of that leave without pay and arange to pay currently
individually in writing, at least once each calendar year, of such em-
into the Fund, through his employing agency, amounts equal to the
ployee's political rights and of the restrictions under this subchapter.
retirement deductions and agency contributions that would be appli-
The Commission may determine, for each State, the most appropriate
cable if he were in pay status. If the election and all payments pro-
date for providing information required by this subsection. Such in-
vided by this paragraph are not made, the employee may not receive
formation, however, shall be provided to employees employed or hold-
credit for the periods of leave without pay occurring after July 17,
ing office in any State not later than 60 days before the earliest pri-
1966, not withstanding the [second] last sentence of subsection (f) of
mary or general election for State or Federal elective office held in
this section. For the purpose of the preceding sentence, "employee"
such State.
includes an employee who was on approved leave without pay and
(3) On or before March 30 of each calendar year, the Commission
serving as a full-time officer or employee of such an organization on
shall submit a report covering the preceding calendar year to the
July 18, 1966, and who filed a similar election before September 17,
Speaker of the House of Representatives and the President pro tem-
1966.
32
33
Chapter 87-Life Insurance
Chapter 29.-Elections and Political Activities
§ 8706. Termination of insurance
"614 Extortion of political. contributions from Federal personnel.".
(a)
§ 602. Solicitation of political contributions
(e) Notwithstanding subsections (a)-(c) of this section, an em-
Whoever, being a Senator or Representative in, or Delegate or
ployee who enters on leave without pay granted under section 7326 (a)
Resident Commissioner to, or a candidate for Congress, or indi-
of this title; or who enters on approved leave without pay to serve as a
vidual elected as, Senator, Representative, Delegate, or Resident
full-time officer or employee of an organization composed primarily of
Commissioner, or an officer or employee of the United States or any
employees as defined by section 8701 (a) of this title, within 60 days
department or agency thereof, or a person receiving any salary or
after entering on that leave without pay, may elect to continue his
compensation for services from money derived from the Treasury of
insurance and arrange to pay currently into the Employees' Life In-
the United States, directly or indirectly solicits, receives, or is in any
surance Fund, through his employing agency, both employee and
manner concerned in soliciting or receiving, any assessment, subscrip-
agency contributions from the beginning of leave without pay. The
tion, or contribution for any political purpose whatever, from any
employing agency shall forward the premium payments to the Fund.
other such officer, employee, or person, shall be fined not more than
If the employee does not so elect, his insurance will continue during
$5,000 or imprisoned not more than three years or both. This section
nonpay status and stop as provided by subsection (a) of this section.
does not apply to any activity of an employee, as defined in section
7322 (1) of title 5, unless such activity is prohibited by section 7324 of
that title.
Chapter 89-Health Insurance
§ 607. Making political contributions
§ 8906. Contributions
Whoever, being an officer, clerk, or other person in the service of the
(a)
United States or any department or agency thereof, directly or in-
directly gives or hands over to any other officer, clerk, or person in
the service of the United States, or to any Senator or Member of or
(e) (1) An employee enrolled in a health benefits plan under this
Delegate to Congress, or Resident Commissioner, any money or other
chapter who is placed in a leave without pay status may have his cov-
valuable thing on account of or to be applied to the promotion of any
erage and the coverage of members of his family continued under the
plan for not to exceed 1 year under regulations prescribed by the Com-
political object, shall be fined not more than $5,000 or imprisoned not
more than three years, or both. This section does not apply to any
mission. The regulations may provide for the waiving of contribu-
activity of an employee, as defined in section 7322 (1) of title 5, unless
tions by the employee and the Government.
such activity is prohibited by section 7324 of that title.
(2) An employee who enters on leave without pay granted under
section 7326 (a) of this title, or who enters on approved leave without
pay to serve as a full-time officer or employee of an organization com-
"§ 614. Extortion of political contributions from Federal
posed primarily of employees as defined by section 8901 of this title,
personnel
within 60 days after entering on that leave without pay, may file with
hoever, by the commission of or threat of physical violence to,
his employing agency an election to continue his health benefits enroll-
or economic sanction against, any person, obtains, or endeavors to
ment and arrange to pay currently into the Employees Health Benefits
obtain, from an officer or employee of the United States or of any
Fund, through his employing agency, both employee and agency con-
department or agency thereof, or from a person receiving any salary
tributions from the beginning of leave without pay. The employing
or compensation for services from money derived from the Treasury
agency shall forward the enrollment charges SO paid to the Fund. If
of the United States, any contribution for the promotion of a political
the employee does not SO elect, his enrollment will continue during
object, shall be imprisoned not less than two nor more than three
nonpay status and end as provided by paragraph (1) of this subsection
years, or fined not more than $5,000, or both.
and implementing regulations.
*
SECTION 6 OF THE VOTING RIGHTS ACT OF 1965
SEc. 6. Whenever (a) a court has authorized the appointment of
TITLE 18, UNITED STATES CODE
examiners pursuant to the provisions of section 3 (a), or (b) unless
a declaratory judgment has been rendered under section 4(a), the
Attorney General certifies with respect to any political subdivision
34
35
named in, or included within the scope of, determinations made
may recommend in writing. Such officers and educational em-
under section 4(b) that (1) he has received complaints in writing
ployees may be employed and compensated without regard to-
from twenty or more residents of such political subdivision alleging
(A) the civil service laws,
that they have been denied the right to vote under color of law on
(B) chapter 51 and subchapter III of chapter 53 of title
account of race or color, and that he believes such complaints to be
5, United States Code (relating to classification of positions
meritorious, or (2) that in his judgment (considering, among other
in Government service),
factors, whether the ratio of nonwhite persons to white persons
(C) section 6301 through 6305 and 6307 through 6311 of
registered to vote within such subdivision appears to him to be reason-
title 5, United States Code (relating to annual and sick leave
ably attributable to violations of the fifteenth amendment or whether
for Federal employees),
substantial evidence exists that bona fide efforts are being made within
(D) chapter 15 and [sections 7324 through 7327] section
such subdivision to comply with the fifteenth amendment), the
7325 of title 5, United States Code (relating to political ac-
appointment of examiners is otherwise necessary to enforce the
tivities of Government employees),
guarantees of the fifteenth amendment, the Civil Service Commission
(E) section 3323 and subchapter III of chapter 81 of title
shall appoint as many examiners for such subdivisions as it may deem
5, United States Code (relating to civil service retirement),
appropriate to prepare and maintain lists of persons eligible to vote
and
in Federal, State, and local elections. Such examiners, hearing officers
(F) sections 3326, 3501, 3502, 5531 through 5533, and 6303
provided for in section 9(a), and other persons deemed necessary
of title 5, United States Code (relating to dual pay and dual
by the Commission to carry out the provisions and purposes of this
employment),
Act shall be appointed, compensated, and separated without regard to
but the employment and compensation of such officers and educa-
the provisions of any statute administered by the Civil Service Com-
tional employees shall be subject to-
mission, and service under this Act shall not be considered employ-
(i) sections 7902, 8101 through 8138, and 8145 through
ment for the purposes of any statute administered by the Civil Service
8150 of title 5, United States Code, and sections 292 and 1920
Commission, except [the provisions of section 9 of the Act of August 2,
through 1922 of title 18, United States Code (relating to
1939, as amended (5 U.S.C. 188i), prohibiting partisan political ac-
compensation for work injuries),
tivity] the provisions of subchapter III of chapter 73 of title 5,
(ii) chapter 87 of title 5, United States Code (relating to
United States Code, relating to political activities: Provided, That
Government employees group life insurance),
the Commission is authorized, after consulting the head of the appro-
(iii) chapter 89 of title 5, United States Code (relating to
priate department or agency, to designate suitable persons in the
health insurance for Government employees), and
official service of the United States, with their consent, to serve in
(iv) section 1302, 2108, 3305, 3306, 3308 through 3320,
these positions. Examiners and hearing officers shall have the power
3351, 3363, 3364, 3501 through 3504, 7511, 7512, and 7701 of
to administer oath.
title 5, United States Code (relating to veteran's preference).
DISTRICT OF COLUMBIA PUBLIC EDUCATION ACT
TITLE I-WASHINGTON TECHNICAL INSTITUTE
*
*
*
TITLE I-FEDERAL CITY COLLEGE
SEC. 203. (a) The Board is hereby vested with the following powers
*
*
and duties:
SEC. 103. (a) The Board is vested with the following powers and
(1) To develop detailed plans for and to establish, organize,
duties:
and operate in the District of Columbia the Washington Tech-
(1) To develop detailed plans for and to establish, organize,
nical Institute.
and operate in the District of Columbia the Federal City College.
(2) To establish policies, standards, and requirements govern-
(2) To establish policies, standards, and requirements govern-
ing admission, programs, graduation (including the award of
ing admission, programs, graduation (including the award of
degrees) and general administration of the Washington Tech-
degrees) and general administration of the Federal City College.
nical Institute.
(3) To appoint and compensate, without regard to the civil
(3) To appoint and compensate, without regard to the civil
service laws or chapter 51 and subchapter III of chapter 53 of
service laws or chapter 51 and subchapter III of chapter 53 of
title 5, United States Code, a president for the Federal City
title 5, United States Code, a president for the Washington Tech-
College.
nical Institute.
(4) To employ and compensate such officers as it determines
(4) To employ and compensate such officers as it determines
necessary for the Federal City College, and such educational em-
necessary for the Washington Technical Institute, and such edu-
ployees for the Federal City College as the president thereof
cational employees for the Washington Technical Institute as the
36
president thereof may recommend in writing. Such officers and
educational employees may be employed and compensated with-
out regard to-
(A) the civil service laws,
(B) chapter 51 and subchapter III of chapter 53 of title 5,
MINORITY VIEWS ON H.R. 8617
United States Code (relating to classification of positions in
Government service),
The legislation is labeled by its proponents as a measure to "re-
(C) sections 6301 through 6305 and 6307 through 6311 of
store" the "rights" of Federal civilian and Postal Service employees
title 5, United States Code (relating to annual and sick
to participate in this nation's "political processes."
leave for Federal employees),
What it would in fact do, however, is to open up the entire Federal
(D) chapter 15 and [sections 7324 through 7327] section
government to partisan politics by Federal employees and concentrate
7325 of title 5, United States Code (relating to political ac-
excessive political power in the hands of their leaders. It would cripple
tivities of Government employees),
and emasculate the Hatch Act-the cornerstone of the merit system-
(E) section 3323 and subchapter III of chapter 81 of title
which has served this nation SO well in banning partisan politics from
5, United States Code (relating to civil service retirement),
the merit system and in shielding Civil Service workers from the pres-
and
sures and threats of politicians.
(F) sections 3326, 3501, 3502, 5531 through 5533, and 6303
H.R. 8617 is a giant step backward. If enacted, it will have a most
of title 5, United States Code, relating to dual pay and dual
corrosive and erosive effect for it will inevitably lead to political
employment),
favoritism. Our present merit system will then return to the spoils
but the employment and the compensation of such officers and edu-
system of the pre-Hatch Act period.
cational employees shall be subject to-
At a time when the American people already hold their govern-
(i) sections 7902, 8101 through 8138, and 8145 through
ment in such low esteem, any action by the Congress which would fur-
8150 of title 5, United States Code, and sections 292 and 1920
ther lower the people's confidence in that government would be a grave
through 1922 of title 18, United States Code (relating to
disservice to the nation. We must strive to preserve the nonpartisan
compensation for work injuries),
integrity and impartiality of the public service and its employees.
(ii) chapter 87 of title 5, United States Code (relating to
H.R. 8617 would do just the opposite and should be defeated.
Government employees group life insurance),
(iii) chapter 89 of title 5, United States Code (relating to
WHY THE HATCH AcT Was ENACTED
health insurance for Government employees), and
(iv) sections 1302, 2108, 3305, 3306, 3308 through 3320,
The Hatch Act was enacted into law in 1939 amidst a climate of
3351, 3363, 3364, 3501 through 3504, 7511, 7512, and 7701 of
political corruption in the Federal workforce. Under the New Deal,
title 5, United States Code (relating to veteran's preference).
the Works Progress Administration (WPA) funded wholly or par-
*
*
tially over 3 million public works jobs in areas of high unemployment.
Public indignation grew over reports of widespread financial solicita-
tion by Democratic Party officials from WPA workers as a condition
of continued WPA employment, salary advancement, and favorable
job assignment.
As a result of these allegations of political corruption, the Senate
created a special investigating committee headed by Senator Morris
Sheppard of Texas. The Sheppard Committee's report of January 3,
1939, contained numerous documented cases of political coercion that
occurred in 10 states. Committee investigators obtained affidavits from
WPA workers which showed extensive solicitation of financial con-
tributions from WPA workers by WPA supervisors closely associated
with local political organizations which, in turn, were affiliated with
the National Democratic Party.
Continued employment on WPA projects, as well as promotions
and favorable work assignments, were often contingent upon direct
financial contributions to local party organizations or the purchase of
tickets to various fund-raising functions.
In Kentucky, for example, the committee found that $70,000 had
been raised for the Governor's campaign from State employees whose
(37)
38,
39
salaries had been partly or wholly derived from funds paid by the
The question is, has human behavior changed to the extent that
U.S. Treasury, and that $24,000 had been raised for a Senator's cam-
employees are no longer vulnerable to coercion-subtle or otherwise-
paign from WPA employees and from other State employees re-
from ambitious partisan political employees who hold important posi-
ceiving Federal money.
tions in government? We do not think SO. In fact, the Hatch Act is
The committee found particular abuses by administrative personnel
more necessary today than when it was first enacted into law.
in the WPA in Kentucky; specifically, they had made a systematic
canvass of certified WPA workers, that workers had been hired and
LEGISLATION WILL NoT STOP COERCION
fired on the basis of political affiliation, and that WPA workers had
been solicited for political contributions.
If Federal employees have become more sophisticated since the
Based on these findings, the Sheppard Committee recommended
1930's, they have also become more cynical. In 1967, a full 25 percent
that Congress pass legislation to prohibit the political coercion of all
flatly told the Survey Research Center of the University of Michi-
Federal employees. The spectacular evidence of patronage politics
gan-an impartial, widely respected professional organization-that
prompted Congress to respond quickly and the Hatch Act was en-
they would not report the illegal activities of coworkers or supervisors.
acted in the same year.
In an increasingly sophisticated and cynical post-Watergate at-
mosphere, it becomes more and more unlikely that such subtle political
HATCH ACT ASSURES IMPARTIAL GOVERNMENTAL
activities as indirect coercion of employees will be reported.
Though a few union leaders boasted in House subcommittee hear-
The law was designed to protect Federal employees from being
ings this year that their organizations could combat coercion in the
coerced to participate in partisan political activity such as fund rais-
public sector as successfully as it has been done in the private sector,
ing, campaigning, and soliciting votes. Further, the statute made it
subtle coercion is extremely difficult to prove. It is unlikely that even
illegal to use "official authority or influence to coerce the political ac-
the most strenuous of union efforts would curb indirect coercion-the
tion" of Federal employees. Federal employees were insulated from
subtle pressure that any Federal employee would inevitably feel were
becoming pawns of any political party, thus insuring that the laws of
his supervisor a politician. Furthermore, unions would not be able
the land would be administered impartially by employees who owed
to assist the hundreds of thousands of Federal employees who are not
their appointments and tenure in the Federal Government only to the
union members. Thus, Federal employees, stripped of their protec-
merit system and not to any partisan political party.
tion, will be "sitting ducks."
This was the purpose and intent of the law. It has served both em-
ployees and the public well.
RANK AND FILE OPPOSE CHANGE
HATCH ACT Is MORE NEEDED TODAY
The impetus for this bill does not come from Federal employees
themselves, who will lose most by the passage of this bill.
Now, 36 years later, proponents of H.R. 8617 seek to remove these
Given a choice between the Hatch Act and H.R. 8617, employees
time-tested protections of Federal employees. We in the Congress
would prefer the Hatch Act. Congressmen representing the nation's
are being asked to ignore the sordid political past which prompted
second and third largest civil servant constituencies report that their
the enactment of the original law.
own surveys and mail show an overwhelming proportion of the rank
This is a mistake. The proponents of this wholesale change in the
and file Civil Service employees do not want the bill. Of 20,000 indi-
law argue that times have changed since 1939, that employees are
viduals who responded to a questionnaire which Representative Jo-
more sophisticated, and, therefore, repeal of the important Hatch Act
seph L. Fisher (D.-Va.) mailed to his Northern Virginia constituents
provisions is necessary.
(including one-third to 40 percent who were civil servants), 59 per-
Times have changed-but let us examine to what extent they have
cent expressed opposition to any change in the Hatch Act. His mail
changed.
indicated that Civil Service employees who wanted the status quo
For example, it is estimated that in 1939, there were 920,000 Fed-
outnumbered others eight or ten to one.
eral employees as opposed to 2.8 million today; the total budget in
Representative Gilbert Gude (R.-Md.) told the Senate Post Office
1940 was $9.5 billion as opposed to $324 billion in 1975; public assist-
and Civil Service Committee: "I think his (Congressman Fisher's)
ance-welfare and government payment to individuals-totaled $1.5
poll clearly shows what I felt was the case in my district and what I
billion in 1940 while the estimate in 1975 is close to $147 billion; and
think is the case generally with Civil Service employees across the
the average salary of a Federal employee in 1939 was $1,871 as op-
country."
posed to $14,480 today.
Still another House Member, Representative Elizabeth Holtzman
Indeed, times have changed." The Federal government is vastly
(D.-N.Y.), said the results of a questionnaire she sent to her constit-
larger than it was in 1939 when the Hatch Act became law-it em-
uents showed the vote was two to one against weakening the Hatch
ploys three times more workers and has a budget 34 times larger.
Act. "I think that my constituents accurately perceive the need for
Accordingly, the potential for abuses in the Civil Service merit sys-
continued protection to the public and the Federal Civil Service af-
tem is far greater today than it was 36 years ago.
forded by much of the Hatch Act," she commented. Her incisive
40
41,
remarks on H.R. 8617 (Congressional Record, November 18, 1975,
of its members which showed 89 percent expressing strong support for
Pages H11390-91) underscore the dangers in partisan political activi-
continuing the Act "as is." In its 1974 convention, NFFE unanimously
ties if engaged in by Federal employees.
adopted a resolution "that the NFFE continue to vigorously oppose
Clayton Jones, President of the Federal Executive Institute Alumni
efforts to weaken the protection provided by the Hatch Act.
Association, reporting on the results of his organization's question-
naire, said that out of 3,000 career Civil Service employees who were
EVEN THE PRESENT PROVISIONS ARE VIOLATED
polled by mail, only two individuals expressed support for legislation
to change the Hatch Act.
If the incentive to engage in abuses of the merit system were suf-
In its 1967 study, the Survey Research Center of the University of
ficiently great, even the most stringent enforcement mechanism con-
Michigan found strong sentiment among Federal employees for keep-
ceivably would not deter such abuses. Even in the absence of power-
ing the Hatch Act unchanged. In surveying the attitudes of Federal
ful incentives, some abuses of the merit system appear inevitable.
employees toward the Hatch Act, 14 categories of responses were al-
More than a few witnesses testifying before the House panel con-
lowed. The category which ranked number one with the highest
sidered this legislation, complained of discrimination in appointments
response was: "The Hatch Act should remain as is; do not favor
and promotions, discrimination against minorities, and favoritism to-
changes." Obviously, Civil Service employees do not want to throw out
ward members of fraternal organizations. Since these witnesses were
the present Hatch Act.
for the most part responsible individuals, elected to posts of some im-
Joseph Young, the veteran columnist of the Washington Star who
portance, their statements cannot be dismissed as puffery or paranoia.
has covered the "government beat" for more than 25 years, made this
The conclusion that must be drawn is that there is some abuse of the
observation:
merit system.
Even the Hatch Act, with its sweeping proscriptions against politi-
Federal and postal employe union leaders are all in favor
of overhauling the law restricting the political activities of
cal activity and its stiff mandatory penalties, is persistently violated.
A Hatch Act violation which made the front pages in 1971 was
government workers, but it's doubtful that most employes are.
the case of six officials of the General Services Administration who
The unions favor overhaul because it would increase their
were charged with soliciting subordinates to buy tickets to a "Salute
clout with Congress and the political party in power in the
to the President Dinner." The Civil Service Commission found the
White House.
six, all Civil Service employees, had violated the Hatch Act.
But it would mean the end of the merit system as we know
it today.
The Survey Research Center found that at least 1.5 percent of all
Federal employees have been asked by their supervisors to contribute
The attacks on the merit system that occurred during the
Nixon administration would be mere child's play compared to
money to political campaigns, while another 1.2 percent have been
what would happen if the Hatch Act were radically changed.
requested to participate in political activities in violation of the law.
Some would claim this evidence demonstrates that the Hatch Act
Nathan T. Wolkomir, President of the largest independent union
prohibitions against partisan politicking are not working and should
of career employees-the widely respected National Federation of
be repealed. Little thought is needed to see that repeal would only
Federal Employees-said:
worsen the situation. Repeal the the prohibitions and abuse becomes
There is no question in my mind that this is a further at-
more profitable; if it is more profitable, more abuses will follow.
tempt by the AFL-CIO to have terrific political impact on
the Hill.
FEDERAL WORKERS NoT "Second-Class CITIZENS"
And John McCart, head of the AFL-CIO's public-employee section,
Proponents of H.R. 8617 have advanced the specious claim that the
agrees:
Hatch Act reduces, Federal employees to the status of "second-class
I suppose that to the extent we make our people more aware
citizens," depriving them of their First Amendment rights of free
of the political process, you could say that we could acquire
speech and free association.
more political clout. But what's wrong with that Our un-
The right to participate in political activities is not, and never
ion's whole history is related to politics.
has been, absolute. In U.S. Civil Service Commission V. National
Association of Letter Carriers, the Supreme Court recently sustained
And so, if the AFL-CIO has its way, union will soon be engaged
the constitutionality of that provision in title 5, United States Code,
in exacting political favors from union members in the Federal service.
which prohibits Federal employees from taking an active part in
Our Nation's history, though, shows that "politics" should have no
political management or in political campaigns, the very provision
place in the impartial administration of Federal laws-no place in
H.R. 8617 would repeal.
the Civil Service-regardless of the AFL-CIO desire to open the
The Court held that:
public service to unrestricted political activity.
Employees do not want this or any other change in the Hatch Act.
A major thesis of the Hatch Act is that to serve this great
Mr. Wolkomir testified that his union, the NFFE, conducted a poll
end of government-the impartial execution of the laws-it is
essential that Federal employees not, for example, take formal
42
43
positions in political parties, not undertake to play substan-
elections. In these designated municipalities, an employee is permitted
tial roles in partisan political campaigns and not run for
to run in a partisan election if he runs as an independent candidate.
office on partisan political tickets. Forbidding activities like
Employees who reside in areas which do not qualify under the cri-
these will reduce the hazards to fair and effective government.
teria cited above, may also run for public office and engage in political
There is another consideration in this judgment: It is not
activity, but only in a nonpartisan election.
only important that the government and its employees in
The Hatch Act does not deny a citizen his right to manage a po-
fact avoid practicing political justice, but it is also critical
litical campaign or to run for partisan office. Nor does it deny the
that they appear to the public to be avoiding it, if confidence
qualified citizen the privilege of a secure, well-paying post in the
in the system of representative government is not to be eroded
Civil Service. The act merely recognizes that one cannot administer
to a disastrous extent.
the law impartially while advocating a partisan platform, that one
The Supreme Court has repeatedly held that the interests of society
has no inherent right under the Constitution to be a Federal employee
must be balanced against the interests of the individual. In this case,
and a political activist at the same time.
it is reasonable, and the lesson of history shows it is necessary, to
Nathan Wolkomir, President of the National Federation of Federal
curtail the political activities of Federal employees in the interests
Employees, has capsuled the issue more bluntly
of society and also in the interests of employees. The Fisher poll
Claims that the Hatch Act makes "second-class citizens"
shows that Federal employees know this. Impartial administration
of Federal employees is just SO much eyewash. Federal em-
of the law without regard to personal convictions or political affilia-
ployees are not denied reasonable and appropriate participa-
tions is required for a fair and efficient government.
tion in the political process. Oddly, many of those who moan
Even if intensive involvement in politics does not taint an em-
most loudly about this moth-eaten cliche fail to exercise the
ployee's administration of the law (an unlikely situation), it would
basic and most elementary action of a citizen, namely, to reg-
certainly taint the public's perception of government affairs. More
ister and vote.
than a few citizens, one suspects, would be less willing to comply
voluntarily with Internal Revenue Service regulations, were the Re-
Robert E. Hampton, Chairman of the U.S. Civil Service Commis-
gional Director of the Revenue Service also the manager of a gov-
sion, testified before the Senate Post Office and Civil Service Commit-
ernor's campaign.
tee that a record number of people in recent years have expressed in-
Moreover, the interests of the vast majority of Federal employees,
terest in Federal employment and most of them were well aware of
those with no burning desire to become involved in partisan affairs,
the Hatch Act restrictions on their political activity if they accepted a
seem to require that restraints be placed upon the ambitions of their
Federal job. Evidently, these individuals don't think the Hatch Act
more politically inclined co-workers.
makes them "second-class citizens," Chairman Hampton said, and the
political restrictions are not a deterrent to their seeking Federal em-
POLITICAL RIGHTS OF FEDERAL EMPLOYEES
ployment.
Nor are the First Amendment rights of Federal employees im-
POSTAL WORKER VERSUS SEARS ROEBUCK EMPLOYEE
paired. While there are prohibited activities under the Hatch Act,
there are at least as many permissible activities. An employee may
The question has been raised as to how a Postal employee differs
register and vote in any election; express his opinion privately and
from an employee of Sears Roebuck. Why should the political activity
publicly on political subjects and candidates; display a political pic-
of the Postal employee be restricted while that of the Sears employee
ture, sticker, badge, or button; participate in the nonpartisan activi-
is not?
ties of a civic, community, social, labor, or professional organization;
There is a major difference between these two types of employees.
be a member of a political party and participate in its activities to the
Government employees, unlike private enterprise employees, are prom-
extent consistent with the law; attend a political convention, rally,
inently identified with public programs and the impartial implementa-
fund-raising function, or other political gathering sign a petition as
tion of legislation which may have been bitterly contested by partisan
an individual; be politically active in connection with a question not
forces. Briefly put, the Postal employee (or any Government employee)
specifically identified with a political party, such as a constitutional
is a representative of the U.S. Government, not of a political party. His
amendment, referendum, approval of a municipal ordinance or any
work is of major importance to all citizens.
other question or issue of a similar character; and serve as an election
The Postal employee in particular is the one government employee
judge or clerk, or in a similar position to perform nonpartisan duties
with whom many people in our country come into contact every day.
as prescribed by State or local law.
He is the one who delivers the Social Security check; he is the one who
In addition, the Civil Service Commission has determined that in
delivers bill payments to small businesses with a critical cash-flow;
certain municipalities in Maryland and Virginia in the vicinity of
he is the one who delivers the advertisements for one-day-only sales;
of the District of Columbia, or a municipality in which the majority
he is the one who delivers the political campaign advertisements for
of voters are employed by the Government of the United States, it
parties and candidates. In short, he is a person who is intimately
is in the domestic interest of employees for them to participate in local
aware of a postal patron's interests and business.
44
45
He could, if partisan considerations were involved, engage in a form
tion ? And if one candidate for a promotion tells his supervisor, when
of coercion by "accidentally" delaying delivery of mail in a way which
no one else can hear, that the increased salary will make it much easier
would benefit his candidate. For example, a political brochure "acci-
for him to pitch in come election time, who will ever know
dentally" delivered on November 5 is of no value to the candidate who
Fifty-two percent of Federal employees interviewed by the Survey
mailed it. And late delivery of a Social Security check can cause real
Research Center felt that "promotion decisions and job assignments
hardship for those dependent upon its prompt arrival.
would change if Federal employees were allowed to be more active
As set forth above, such actions would have a serious effect not only
in politics." Few who feel this way would dare attend a fund-raiser
on the efficient delivery of the mail but also on the public's perception
for the opposition party, if their supervisor happened to be the State
of the manner in which government business is conducted. The public
party chairman. And many who ordinarily would not even contribute
servant would seem to be more an employee of a political party.
to a political party might seriously consider putting up posters or
Indeed, a Philadelphia official of the National Association of Letter
driving people to the polls, just to give their boss a hand.
Carriers whose members, the official points out, deliver mail to every
And what about the employee whose union holds one view, and
home in America, has been quoted as saying:
pressures him to actively support it, while his supervisor holds a
different view?
Our people have the ability to meet and contact people that
other people don't have. We could be effective if we were un-
Ironically, enforcement of the law merely compounds the problem;
shackled. We do some talking right now, but we're not sup-
if a supervisor who had abused the merit system was not successfully
prosecuted, every employee who had ever entertained the notion that
posed to.
partisan activity counts would then be convinced that his darkest
The Sears employee, on the other hand, is an employee of a private,
suspicions had been correct all along.
competitive business. The public does not pay his salary, does not ex-
pect him to be impartial, does not look to him to execute public laws
PUBLIC PERCEPTION OF IMPARTIAL GOVERNMENT
and programs, and does not depend on him for the many basic services
which are now provided by the government. A dissatisfied Sears cus-
Even if intensive involvement in politics does not taint a public
tomer can always turn to another store.
employee's administration of the law, it would certainly taint the
In regard to government services, such as the Postal Service, how-
public's perception of government affairs.
ever, the "customer" does not have a similar option. It is, therefore,
Consider the public's perception of government affairs if the fol-
inappropriate to compare a Postal employee with an employee of Sears
lowing Federal employees were engaged in partisan political activity.
Roebuck, or to compare any government employee with an employee
The illustrations were cited in the Senate Post Office and Civil Service
of a private, competitive business.
Committee hearings by Carl F. Goodman, General Counsel of the Civil
Service Commission:
COERCION DIFFERS FROM DISCRIMINATION
A "superior" is known to be actively campaigning for can-
Enforcement of the Hatch Act anti-coercion provisions is an ex-
didate X. One of his subordinates, who is generally known
to be personally close to the superior, or who is known to be
tremely difficult task and cannot in any way be compared with the
enforcement of antidiscrimination laws.
the superior's "right-hand-man," but is actually not a superior
to the employees, approaches other employees in front of the
Racism is ugly, a social toxin, universally condemned. Political par-
building, or in a parking lot, or at their residences, (H.R.
ticipation is a virtue, a social tonic, as prized by many Americans as
racism is abhorred. Discrimination may be documented with the statis-
8617 prohibits fund solicitation in Federal buildings) and
solicits contributions for candidate X.
tician's tools, eradicated with a sweeping directive. Coercion can be
established only after exhaustive investigation and painstaking cross-
The solicited employees must decide if it is expedient for
examination, and must be eradicated case by case.
them to contribute, being aware of the possibility that the
Too, coercion is a far more subtle thing. A vague remark, the wave
superior may learn whether or not a contribution was made.
of an arm, effusive praise, or its sudden absence, is sufficient to influ-
They would also be aware that it would be extremely diffi-
ence the activity of a Federal employee properly concerned with his
cult, if not for all practical purposes impossible, to prove that
own future. And who can fault him? He is aware that his supervisor,
any particular employee is promoted or passed over for pro-
when making an appointment or transfer, may choose one of three
motion because he made a political contribution, or failed to.
equally qualified candidates. Under these circumstances, merit system
There is no evidence to indicate that the superior instructed
abuse is almost impossible to establish. As one witness said Substan-
or even suggested to the subordinate that contributions should
tiating charges of subtle coercion is "like trying to put your finger
be
solicited unlikely that such evidence could be
on a greasy marble."
obtained.
Who can demonstrate that one was selected because he contributed
generously to a campaign the supervisor managed? That another was
An employee is aware of a vacancy which would be a pro-
passed over because he had once sported a button touting the opposi-
motion for him. He also is aware that the person who will
46,
47
make the selection is actively supporting particular candi-
political influence in the Federal law enforcement and in-
date. Add to that the fact that another employee who will be
vestigative agencies. This bill would, instead, authorize and
in competition for the vacancy is also working actively on
invite the politicizing of the Justice Department, FBI,
behalf of the same candidate.
U.S. Attorney's Offices and Internal Revenue Service, as well
Our first employee must now make a decision with respect
as the CIA, National Security Agency and Defense Intelli-
to his own activity. Can he really afford not to also cam-
gence Agency. The dangers are two-fold: that law enforce-
paign for that candidate? Or can he afford to exercise his
ment and investigative powers will be used to serve political
"right" of choice by actively campaigning for the opposi-
ends, and that law enforcement and investigative offices,
tion?
which should be wholly merit operations, will instead return
What is at play here is internal coercion-the employee is
to the spoils system. In addition, the administration of justice
caught between the proverbial rock and the hard place.
must not only be free of political influence in fact; it must
Today he need not be concerned about making this no-win
be perceived as fair and impartial as well.
choice-he is hatched; he is protected.
It is significant that in its final report in June, 1974, the Senate
*
Select Committee on Presidential Campaign Activities-the Senate
How about the employee engaged in political manage-
Watergate Committee-recommended that Congress amend the Hatch
ment who suddenly finds that the opposition candidate is his
Act to place all Justice Department officials-including the Attorney
boss; or worse yet that the candidate he just successfully
General-under its purview. At present, certain Justice Department
helped defeat now is boss and is responsible for his promo-
officials are exempt from Hatch Act coverage. The Watergate com-
tions, work assignments, leave, etc.?
mittee, however, stated it believes that all Justice Department officials
Are all political activists of such pure heart that they can
should administer the nation's laws totally removed from all political
and will completely overlook the fact that subordinates de-
considerations.
prived them of elective offices they worked SO hard to obtain
The Watergate Committee's recommendation to extend the Hatch
Still more illustrations can be offered
Act to all Justice Department employees, including the Attorney
If the General Counsel of the Civil Service Commission were
General, is also in the report of the Watergate Special Prosecution
known to be an active campaigner and fund-raiser for a political
Force issued in October 1975. Deputy Attorney General Harold R.
party, who. would believe his report as to that party's abuse of the
Tyler, Jr., said such an action would add "a certain amount of public
confidence."
merit system?
What would be the public reaction to an Internal Revenue Service
FALLACIOUS COMPARISON WITH OTHER COUNTRIES
agent who investigates tax fraud, and in the same community solicits
campaign funds SO he or a friend can run for office?
Proponents of H.R. 8617 assert that the United States is the only
The Commissioner of the Internal Revenue Service in testimony
free world country to SO severely restrict the political activities of its
before the Senate Committee, stated:
government employees.
I think the American people would quickly lose confidence
But compared to Japan, which prohibits all forms of political activ-
in the integrity of an internal revenue system which per-
ity and political expression, with the single exception of the vote, the
mitted its employees to be avid political partisans one day
United States is a paragon of liberalism and tolerance. As one might
and expect them to be perceived the next as wholly non-parti-
expect, for the past 30 years Japan has benefited from a strictly pro-
san by both political friends and foes.
fessional and scrupulously nonpartisan Civil Service, while the United
States has had more than its share of blemishes, particularly at the
The list could go on endlessly: the Federal Prosecutor handling
State and local level.
fraud cases; the farm agent distributing cash assistance; the Small
We do not think the United States should restrict the political activ-
Business Administration employees approving or rejecting a loan;
ities of its employees to the same degree as Japan. We are two different
the contracting officer and the grant officer whose day-to-day decisions
nations, with different governments, histories, cultures, customs, and
are so very important.
legal.codes.
In the Executive Branch as a whole, the public's perception of
If the Civil Service laws of Japan should not serve as a model for
the equitable, impartial, non-partisan integrity of the system is of
the United States, neither should those of Britain, Germany, Canada,
major importance.
France, or any other nation. Aside from the obvious historical differ-
ences, our system of checks and balances is fundamentally different
THE LESSON FROM WATERGATE
from other countries.
Representative Elizabeth Holtzman has emphasized,
Though the differences between the United States and other free
world nations are many, the most significant, for our purposes, is
If there is one lesson we should have learned from Water-
this: for every administrative office filled by a political appointee in
gate, it is that we must strive to reduce, rather than increase,
48
49
other countries, dozens are filled with appointees in the United States.
This is no flaw in our system of government, but a necessity. The will
tive. And every citizen in the country would suffer if the politicization
of the nation, as interpreted by the Chief Executive, could not other-
of the Civil Service leads to a deterioration in the quality of service
wise be translated into action. But political appointees can undermine
government can provide. Then America would be left with what Chair-
the administration of the law as well as promote it, if the partisan
man Hampton of the Civil Service Commission has described as "a
pressures they inevitably exert result in the politicization of the Civil
second-class Civil Service."
Service. No other nation possesses Civil Service is susceptible to this
risk.
H.R. 8617 SHOULD BE DEFEATED
MAKING THE HATCH ACT CLEARER
This bill, if enacted, will be disastrous for the Federal employees,
the Civil Service merit system, and the American public.
Some critics claim that the Hatch Act, which incorporates into
It will strip away the protection which the employees have enjoyed
statute over 3,000 administrative decisions, is vague and overbroad.
under the Hatch Act for the past 36 years.
The answer to this criticism is that the Federal employee who is deter-
It will seriously damage the integrity of the merit system and the
mined to participate in politics to the extent permitted by law does
efficiency of the nonpartisan, independent Civil Service.
not have to spend his weekends in the darkened aisles of vast law li-
And it will be most unfair to the American people who will be
braries, paging through volume after volume of musty Civil Service
saddled eventually with a second class Civil Service open to the evils
reports. All the work has been done for him.
of the old spoils system.
Commission determinations are summarized in the Civil Service
H.R. 8617 should be defeated.
Regulations, which list 13 permissible and 13 prohibited activities in
HIRAM L. FONG.
clear, comprehensible language.
HENRY BELLMON.
If the regulations are themselves indecipherable-and in the opin-
ion of the Supreme Court, they are not-the appropriate prescription
is an editor's pen, not H.R. 8617.
If an employee is worried that the activity he would like to engage
in may be prohibited by the Hatch Act, he can obtain advice from the
Information Office of the Civil Service Commission and remove the
last traces of doubt as to the legality of his action.
Since the regulations are, in fact, widely distributed and reasonably
clear, it is unlikely that many employees refrain from participating
in permissible activities because they fear running afoul of the law.
IRONY OF H.R. 8617
It seems ironic that in the present post-Watergate atmosphere, some
Members of Congress are urging prosecution of violations of the merit
system, while they are, at the same time, urging repeal of the Hatch
Act, thereby inviting untold abuses of the merit system. This bill can
only heighten the public cynicism toward our institutions.
In recent weeks, concern has been voiced by some Congressional
critics that the nomination of a politically experienced official to a
sensitive agency might "politicize" that agency. How ironic, therefore,
if these same critics now remain silent when a bill like H.R. 8617
threatens to politicize not one agency but the entire Federal govern-
ment with its 2.8 million Civil Service and Postal Service employees.
Although only a handful of Federal employees would seek to be-
come involved in partisan affairs, if H.R. 8617 becomes law, all will
be subjected to the subtle coercive forces that would be unleased. In
the minds of many employees, there is little doubt that such coercive
forces would exist.
When asked by the Survey Research Center of the University of
Michigan whether reneal of the Hatch Act would "change things like
job appointment and job promotion," a majority replied in the affirma-
94TH CONGRESS
HOUSE OF REPRESENTATIVES
REPORT
2d Session
No. 94-943
FEDERAL EMPLOYEES' POLITICAL ACTIVITIES ACT
MARCH 23, 1976-Ordered to be printed
Mr. HENDERSON, from the committee of conference,
submitted the following
CONFERENCE REPORT
[To accompany H.R. 86171
The committee of conference on the disagreeing votes of the two
Houses on the amendments of the Senate to the bill (H.R. 8617) to
restore to Federal civilian and Postal Service employees their rights
to participate voluntarily, as private citizens, in the political processes
of the Nation, to protect such employees from improper political solic-
itations, and for other purposes, having met, after full and free con-
ference, have agreed to recommend and do recommend to their re-
spective Houses as follows:
That the Senate recede from its amendments numbered 1, 2,, 3, 7, 8,
13, 21, 23, 24, 25, 26, 27, 28, 30, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42,
43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 58, 59, 60, 61, 62, 63,
64, 66, 67, 68, 69, 71, 72, 74, 75, and 76.
That the House recede from its disagreement to the amendments of
the Senate numbered 4, 5, 10, 11, 16, 17, 18, 19, 20, 29, 70, and 73, and
agree to, the same.
Amendment numbered 6:
That the House. recede from its disagreement to the amendment
of the Senate numbered 6, and agree to the same with an amendment
as follows:
In the matter proposed to be inserted by the Senate amendment,
strike out "or any individual" and insert in lieu thereof the following:
of any individual; and the Senate agree to the same.
Amendment numbered 9:
That the House recede from its disagreement to the amendment of
the Senate numbered 9, and agree to the same with an amendment as
follows:
In the matter proposed to be inserted by the Senate amendment,
strike out "authorizes" and insert in lieu thereof the following: shall
be construed to authorize; and the Senate agree to the same.
is
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2
3
Amendment numbered 12:
Amendment numbered 15:
That the House recede from its disagreement to the amendment
That the House recede from its disagreement to the amendment of
of the Senate numbered 12 and agree to the same with an amendment
the Senate numbered 15 and agree to the same with an amendment
as follows:
as follows:
In lieu of the matter proposed to be inserted by the Senate amend-
In lieu of the matter proposed to be inserted by the Senate amend-
ment, insert the following:
ment, insert the following:
(b) (1) In addition to the prohibitions of subsection (a) of this sub-
(d) (1) In addition to the prohibitions of subsection (a) of this
section, an employee to whom this paragraph applies may not solicit,
section, an employee of the Internal Revenue Service, the Department
accept, or receive a political contribution from, or give a political con-
of Justice, or the Central Intelligence Agency to whom the prohibi-
tribution to, an employee, a Member of Congress, or an officer of a
tions of section 7324(b) of this title apply may not take an active
uniformed service.
part in political management or political campaigns unless such
(2) Paragraph (1) of this subsection shall apply to any employee
part-
of the Internal Revenue Service, the Department of Justice, or the
'(A) is in connection with (i) an election and preceding cam-
Central Intelligence Agency, other than—
paign if none of the candidates is to be nominated or elected at
(4) an employee of such an agency who is in a position which
that election as representing a party any of whose candidates for
is not a sensitive position,
Presidential elector received votes in the last preceding election
(B) an employee of such an agency who is in a sensitive posi-
at which Presidential electors were selected, or (ii) a question
tion with respect to which the head of such agency has designated,
which is not specifically identified with a National or State
by regulation, that if any person holding such position engaged
political party or political party of a territory or possession of
in activities prohibited by paragraph (1) of this subsection or
the United States; or
by section 7325 (d) (1) of this title it would not adversely affect
(B) is permitted by regulations prescribed by the Civil Serv-
the integrity of the Government, or the public's confidence in the
ice Commission and involves the municipality or political sub-
integrity of the Government, or
division in which such employee resides, when-
(C) an individual appointed by the President, by and with the
(i) the mamicipality or political subdivision is in Mary-
advice and consent of the Senate, who determines policies to be
land or Virginia in the immediate vicinity of the District
pursued in the nationwide administration of Federal laws.
of Calumbia or is a municipality in which a majority of voters
For the purpose of this paragraph, 'sensitive position' means any posi-
are employed by the Government of the United States; and
tion designated as a sensitive position pursuant to Executive Order
" (ii) the Commission determines that because of special or
Numbered 10450 or under any superceding Federal statute or Execu-
unusual circumstances which exist in the municipality or
tive order.
political subdivision it is in the domestic interest of the em-
(3) Regulations referred to in subparagraph (A) of this para-
ployees to permit political participation.
graph shall be prescribed not later than 90 days after the effective date
(2) For the purpose of this subsection, 'an active part in political
of this section. Thereafter any revision of such regulations shall be pre-
management or in political campaigns' means those acts of political
scribed not later than March 1 of the year in which such revision is to
management or political campaigning which were prohibited on the
take effect. Such regulations shall become effective the first day after
part of the employees in the competitive service before July 19, 1940, by
the close of the first period of 30 calendar days of continuous session
the determinations of the Civil Service Commission under the rules
of Congress after the date on which such regulations are transmitted to
prescribed by the President.
the Congress, unless both Houses of Congress adopt a concurrent reso-
And the Senate agree to the same.
lution disapproving such regulations. Continuity of a session is broken
Amendment numbered 22:
only by an adjournment of the Congress sine die, and the days on which
either House is not in session because of an adjournment of more than
That the House recede from its disagreement to the amendment of
3 days to a day certain are excluded in the computation of the 30-day
the Senate numbered 22, and agree to the same with an amendment as
period."
follows:
And the Senate agree to the same.
Restore the matter proposed to be stricken out by the Senate amend-
ment, and on page 9, line 20, of the House engrossed bill, strike out
Amendment numbered 14:
the quotation marks following "1 year."; and the Senate agree to the
That the House recede from its disagreement to the amendment of
same.
the Senate numbered 14, and agree to the same with an amendment as
Amendment numbered 31
follows:
In the matter proposed to be inserted by the Senate amendment,
That the House recede from its disagreement to the amendment of
insert after "political activity" the following: otherwise prohibited
the Senate numbered 31, and agree to the same with an amendment as
follows:
by or under law and the Senate agree to the same.
In lieu of the matter proposed to be inserted by the Senate amend-
ment, insert the following: filed within the time allowed therefor, ;
and the Senate agree to the same.
H.R. 943
H.R. 943
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4
Amendment number 57
That the House recede from its disagreement to the amendment of
the Senate numbered 57, and agree to the same with an amendment
as follows:
In the matter proposed to be inserted by the Senate amendment,
strike out "Commission" and insert the following: Board; and the
JOINT EXPLANATORY STATEMENT OF THE COMMITTEE
Senate agree to the same.
OF CONFERENCE
Amendment numbered 65
That the House recede from its disagreement to the amendment of
The managers on the part of the House and the Senate at the confer-
the Senate numbered 65, and agree to the same with amendments
ence on the disagreeing votes of the two Houses on the amendments of
as follows:
the Senate to the bill (H.R. 8617) to restore to Federal civilian and
In the matter proposed to be inserted by the Senate amendment,
Postal Service employees their rights to participate voluntarily, as pri-
strike out "ninety days" and insert in lieu thereof 30 days, and strike
vate citizens, in the political processes of the Nation, to protect such
out "Commission" each place it appears and insert in lieu thereof
employees from improper political solicitations, and for other pur-
Board; and the Senate agree to the same.
poses, submit the following joint statement to the House and the
DAVID N. HENDERSON,
Senate in explanation of the effect of the action agreed upon by the
DOMINICK V. DANIELS,
managers and recommended in the accompanying conference report:
ROBERT N. C. NIx,
JIM HANLEY,
TECHNICAL, CLERICAL, CLARIFING, OR CONFORMING CHANGES
CHAS. H. WILSON of California,
The following Senate amendments made technical, clerical, clarify-
W. CLAY,
ing, or conforming changes: 1, 2, 3, 4, 5, 7, 8, 10, 11, 13, 17, 18, 19,
GLADYS NOON SPELLMAN,
20, 21, 23, 24, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41,
HERBERT E. HARRIS II,
42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60,
STEPHEN J. SOLARZ,
M anagers on the Part of the House.
61, 62, 63, 64, 67, 68, 69, 71, 72, and 74.
With respect to these amendments either the House recedes, the
GALE W. McGEE,
Senate recedes, or the House recedes with an amendment in order to
Q. BURDICK,
conform to other action agreed upon by the committee of conference.
TED STEVENS,
Managers on the Part of the Senate.
PERSONAL SERVICES
AMENDMENT NO. 6
This amendment expressly includes the provision of personal serv-
ices within the meaning of "political contributions", as defined for pur-
poses of subchapter III of chapter 73 of title 5 (the Hatch Act), as
amended by the House bill.
The House bill does not contain a similar provision, although the
House Report specifically states that the term "political contributions"
is intended to include the rendering of personal services.
The House recedes with a clerical amendment. It should be noted
that it is the understanding of the conferees that the Senate amend-
ment does not prohibit an employee from voluntarily contributing his
personal services for political purposes except to the same extent that
political contributions are otherwise prohibited by the House bill, in-
cluding the prohibition against the giving of a political contribution to
or the acceptance of a political contribution by the superior of an em-
ployee. It is also the understanding of the conferees that an employee
contributing his personal services or a candidate or other person ac-
cepting such contribution shall not be required under the provisions of
the bill to place a dollar value on such contribution.
(5)
H.K 943
H.R. 943
6
7
USE OF OFFICIAL INFORMATION
public contact, or other duties that demand the highest degree of
public trust.
AMENDMENT NO. 9
This amendment provides that section 7323 of title 5, United States
OTHER POLITICAL ACTIVITIES OF JUSTICE, IRS, AND CIA EMPLOYEES
Code, as proposed to be added by the House bill, does not authorize the
use by any employee of any information coming to him in the course
AMENDMENT NO. 15
of his employment or official duties if such use is otherwise prohibited
The House bill provides in effect that subject to the specific prohibi-
by law.
tions of sections 7323, 7325, and 7326 of title 5, as proposed to be added
The House bill does not contain a similar provision.
by the House bill, employees of the Justice Department, the CIA, or
The House recedes with a conforming amendment.
the IRS (as in the case of other Federal employees) may actively en-
POLITICAL CONTRIBUTIONS BY OR TO JUSTICE, IRS, AND CIA
gage in political activities and run for elective office.
Senate Amendment No. 15 continues the present provisions of sub-
EMPLOYEES
chapter III of chapter 73 of title 5 (the Hatch Act), relating to em-
ployees taking an active part in political management or political
AMENDMENT NO. 12
campaigns, with respect to employees of the Justice Department, the
The House bill provides in effect that, subject to the provisions of
CIA, and the IRS.
section 7324 of title 5, as proposed to be added by the House bill,
The House recedes with an amendment which provides that em-
employees of the Justice Department, the CIA, or the IRS (as in the
ployees of the Justice Department, the IRS, and the CIA with respect
case of other Federal employees) may solicit and give political con-
to whom the prohibitions of section 7324(b) (1) of title 5, as proposed
tributions.
to be added by the House bill, apply will remain subject to the present
Senate amendment No. 12, in addition to the prohibitions of the
provisions of existing law which relate to employees taking an active
House bill, prohibits employees of the Justice Department, the CIA,
part in political management or political campaigns.
and the IRS from requesting, or receiving from, or giving to, an em-
ployee, a Member of Congress, or an officer of a uniformed service, a
POLITICAL ACTIVITIES BY EMPLOYEES OF THE WHITE HOUSE AND VICE
political contribution, thus retaining existing law (5 U.S.C. 7323) for
PRESIDENTIAL STAFFS
such employees with regard to political contributions.
The House recedes with an amendment which narrows the Senate
AMENDMENT NO. 14
amendment with respect to the number of employees of the Justice
Department, the CIA, and the IRS who are subject to the additional
The House bill exempts certain employees of the White House and
prohibitions. Employees exempted include: (A) employees in non-
Vice Presidential staffs from the provisions of section 7325 (a) of title
sensitive positions; (B) employees in sensitive positions when the
5, as proposed to be added by the House bill, prohibiting political
agency head determines, by regulation, that active political partici-
activity while on duty, while on Government property, or while in
uniform.
pation by incumbents of those positions would not adversely affect the
integrity of the Government or the public's confidence in the integrity
Senate amendment No. 14 provides that such an exemption shall
of the Government; and (C) individuals appointed by the President,
not be construed as an authorization for the individuals SO exempted to
engage in political activity.
by and with the advice and consent of the Senate, who determine poli-
cies to be determined in the nationwide administration of Federal
The House recedes with an amendment, inserting otherwise prohib-
laws. The amendment further provides that such regulations must be
ited by or under law after "political activity" in the matter proposed
prescribed not later than 90 days after the effective date of section
to be inserted by the Senate amendment.
7324, and that such regulations become effective 30 legislative days
LEAVE To RUN FOR ELECTIVE OFFICE
thereafter unless disapproved by both Houses of Congress.
It is the understanding of the conferees that the term "sensitive
AMENDMENT NO. 16
position" includes any position which the head of the Justice Depart-
ment, the CIA, or the IRS is required to designate as sensitive under
The House bill provides that an agency must, upon request, grant
section 3(b) of Executive Order No. 10450, as amended. It is the
accrued annual leave and leave-without-pay to an employee running
further understanding of the conferees that under subchapter I-3 of
for elective office. The House bill also provides that an employee who
chapter 732 of the Federal Personnel Manual, those positions required
is a candidate for elective office must go on leave-without-pay not later
to be designated as sensitive include positions which require fiduciary,
than 90 days before an election.
H.R. 943
H.R. 943
9
8
time it appears in the matter proposed to be inserted by the Senate
Senate amendment No. 16 strikes out the provisions of the House
amendment and inserting in lieu thereof Board.
bill which require that leave-without-pay must be granted upon request
and that a candidate must take leave-without-pay 90 days before an
PENALTIES FOR REPEAT OFFENDERS
election.
The House recedes.
AMENDMENT NO. 66
BOARD ON POLITICAL ACTIVITIES OF FEDERAL EMPLOYEES
This amendment provides that an employee, who has been found
to have violated on two occasions section 7323, 7324, or 7325 of title
AMENDMENT NO. 22
5, as proposed to be added by the House bill, must be removed from
employment and is thereafter barred from Federal employment.
The House bill separates prosecutorial and adjudicatory responsi-
The House bill has no similar provision.
bility now held by the Civil Service Commission by establishing an
The Senate recedes.
independent 3-member board and by granting to such board the au-
thoriy to hear and decide cases regarding violations of section 7323,
TIME LIMITATION FOR PROVIDING CERTAIN INFORMATION
7324, and 7325 of title 5, as proposed to be added by the House bill. The
Civil Service Commission retains the investigatory, educational, and
AMENDMENT NO. 70
enforcement authority with respect to political activity.
Senate amendment No. 22 provides that the Commission, not the
The House bill requires the Commission to annually inform each
Board, is responsible for hearing and deciding cases involving viola-
employee, in writing, of prohibited and permissible political activi-
tions of prohibitions on political activity.
ties. Such information must be provided not later than 60 days before
The House recedes with an amendment under which the provisions
the earliest primary or general election in the State where the em-
of the House bill are restored, and which corrects a clerical error in
ployee is employed.
such provisions.
Senate amendment No. 70 requires that such information be pro-
NOTICES OF VIOLATIONS
vided not later than 120 days before such an election.
The House recedes.
AMENDMENT NO. 25
EFFECTIVE DATE
The House bill provides that service of a written notice of any
AMENDMENT NO. 73
alleged violation of sections 7323, 7324, or 7325 of title 5, as proposed
to be added by the House bill, shall be made by certified mail, return
The House bill provides that the amendments made by this Act
receipt requested.
shall take effect 90 days after the date of enactment.
Senate amendment No. 25 eliminates the requirement for a return
Senate amendment No. 73 provides that the amendments made
receipt request with a certified notice, leaving it to the Civil Service
by this Act shall take effect on January 1, 1977.
Commission to determine the requirements with respect to such notice.
The House recedes.
The Senate recedes.
RESTRICTION ON WHEN PAY INCREASES FOR MEMBERS OF CONGRESS
PENALTIES FOR MISUSE OF OFFICIAL AUTHORITY OR INFLUENCE
TAKE EFFECT
AMENDMENT NO. 65
AMENDMENT NO. 75
The House bill provides for the imposition of appropriate penalties
This amendment provides that any provision for any pay increase
by the Board in the case of an employee who has violated sections
for Members of Congress shall not take effect before the first day of
7323, 7324, or 7325 of title 5, as proposed to be added by the House
the next Congress.
bill.
The House bill does not contain a similar provision.
Senate amendment No. 65 provides a minimum penalty of a 90-day
The Senate recedes.
suspension for an employee found to have violated the restrictions
on misuse of official authority or influence and the imposition of ap-
REQUIREMENT OF SEPARATE RESOLUTION ON PAY INCREASES FOR
propriate penalties for violations of the restrictions on soliciting
MEMBERS OF CONGRESS
political contributions and engaging in political activity while on
duty, while on government property, or while in uniform.
AMENDMENT NO. 76
The House recedes, with amendments striking out "ninety days"
in the matter proposed to be inserted by the Senate amendment and
This amendment requires that if the President submits an alterna-
inserting in lieu thereof 30 days and striking out "Commission" each
tive plan with respect to a comparability pay adjustment, the alterna-
H.R. 943
H.R. 943
10
tive plan will not be effective with respect to the rate of pay of Mem-
bers of Congress unless either House adopts a separate resolution
disapproving the application of such plan to the pay of Members of
Congress in addition to any resolution under section 5305 of title 5.
This amendment also provides that the rate of pay of officers and
employees of the Congress and other officers and employees in the
legislative branch may not exceed the rate of pay for Members of
Congress.
The House bill does not contain a similar provision.
The Senate recedes.
DAVID N. HENDERSON,
DOMINICE V. DANIELS,
ROBERT N. C. Nix,
JIM HANLEY,
CHAS. H. WILSON of California,
W. CLAY,
GLADYS NOON SPELLMAN,
HERBERT E. HARRIS II,
STEPHEN J. SOLARZ,
Managers on the Part of the House.
GALE W. McGEE,
Q. BURDICK,
TED STEVENS,
Managers on the Part of the Senate.
H.R. 943
H. R. 8617
Ainety-fourth Congress of the United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Monday, the nineteenth day of January,
one thousand nine hundred and seventy-six
An Art
To restore to Federal civilian and Postal Service employees their rights to
participate voluntarily, as private citizens, in the political processes of the
Nation, to protect such employees from improper political solicitations, and
for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That this Act may
be cited as the "Federal Employees' Political Activities Act of 1976".
SEC. 2. (a) Subchapter III of chapter 73 of title 5, United States
Code, is amended to read as follows:
"SUBCHAPTER II-POLITICAL ACTIVITIES
"§ 7321. Political participation
"It is the policy of the Congress that employees should be encour-
aged to fully exercise, to the extent not expressly prohibited by law,
their rights of voluntary participation in the political processes of
our Nation.
"§ 7322. Definitions
"For the purpose of this subchapter-
"(1) 'employee' means any individual, including the President
and the Vice President, employed or holding office in-
" (A) an Executive agency,
(B) the government of the District of Columbia,
(C) the competitive service, or
(D) the United States Postal Service or the Postal Rate
Commission;
but does not include a member of the uniformed services;
"(2) 'candidate' means any individual who seeks nomination
for election, or election, to any elective office, whether or not such
individual is elected, and, for the purpose of this paragraph, an
individual shall be deemed to seek nomination for election, or
election, to an elective office, if such individual has-
'(A) taken the action required to qualify for nomination
for election, or election, or
(B) received political contributions or made expenditures,
or has given consent for any other person to receive political
contributions or make expenditures, with a view to bringing
about such individual's nomination for election, or election,
to such office;
"(3) 'political contribution'-
(A) means a gift, subscription, loan, advance, or deposit
of money or anything of value, made for the purpose of influ-
encing the nomination for election, or election, of any indi-
vidual to elective office or for the purpose of otherwise
influencing the results of any election;
"(B) includes a contract, promise, or agreement, express
or implied, whether or not legally enforceable, to make a
political contribution for any such purpose;
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H. R. 8617-2
"(C) includes the payment by any person, other than a
candidate or a political organization of compensation for the
personal services of another person which are rendered to
such candidate or political organization without charge for
any such purpose; and
" (D) includes the provision of personal services for the
purpose of influencing the nomination for election, or elec-
tion, of any individual to elective office or for the purpose
of otherwise influencing the results of any election;
"(4) 'superior' means an employee (other than the President
or the Vice President) who exercises supervision of, or control or
administrative direction over, another employee;
"(5) 'elective office' means any elective public office and any
elective office of any political party or affiliated organization; and
"(6) 'Board' means the Board on Political Activities of Fed-
eral Employees established under section 7327 of this title.
"§ 7323. Use of official authority or influence; prohibition
"(a) An employee may not directly or indirectly use or attempt
to use the official authority or influence of such employee for the pur-
pose of-
"(1) interfering with or affecting the result of any election; or
"(2) intimidating, threatening, coercing, commanding, influenc-
ing, or attempting to intimidate, threaten, coerce, command, or
influence-
"(A) any individual for the purpose of interfering with
the right of any individual to vote as such individual may
choose, or of causing any individual to vote, or not to vote,
for any candidate or measure in any election;
"(B) any person to give or withhold any political contribu-
tion; or
"(C) any person to engage, or not to engage, in any form
of political activity whether or not such activity is prohib-
ited by law.
"(b) Nothing in this section shall be construed to authorize the
use by any employee of any information coming to him in the course
of his employment or official duties for any purpose where otherwise
prohibited by law.
'(c) For the purpose of subsection (a) of this section, 'use of official
authority or influence' includes, but is not limited to, promising to
confer or conferring any benefit (such as appointment, promotion,
compensation, grant, contract. license, or ruling), or effecting or
threatening to effect any reprisal (such as deprivation of appointment,
promotion, compensation, grant, contract, license, or ruling).
"§ 7324. Solicitation; prohibition
"(a) An employee may not-
"(1) give or offer to give a political contribution to any
individual either to voite or refrain from voting, or to vote for or
against any candidate or measure, in any election;
"(2) solicit, accept, or receive a political contribution to vote
or refrain from voting, or to vote for or against any candidate
or measure, in any election;
"(3) knowingly give or hand over a political contribution to
a superior of such employee; or
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H. R. 8617-3
'(4) knowingly solicit, accept, or receive, or be in any manner
concerned with soliciting, accepting, or receiving, a political
contribution-
"(A) from another employee (or a member of another
employee's immediate family) with respect to whom such
employee is a superior; or
(B) in any room or building occupied in the discharge of
official duties by-
"(i) an individual employed or holding office in the
Government of the United States, in the government of
the District of Columbia, or in any agency or instru-
mentality of the foregoing; or
"(ii) an individual receiving any salary or compensa-
tion for services from money derived from the Treasury
of the United States.
(b) (1) In addition to the prohibitions of subsection (a) of this
section, an employee to whom this paragraph applies may not
solicit, accept, or receive a political contribution from, or give a polit-
ical contribution to, an employee, a Member of Congress, or an officer
of a uniformed service.
"(2) Paragraph (1) of this subsection shall apply to any employee
of the Internal Revenue Service, the Department of Justice, or the
@
Central Intelligence Agency, other than-
"(A) an employee of such an agency who is in a position which
is not a sensitive position,
"(B) an employee of such an agency who is in a sensitive posi-
tion with respect to which the head of such agency has designated,
by regulation, that if any person holding such position engaged
in activities prohibited by paragraph (1) of this subsection or by
section 7325 (d) (1) of this title it would not adversely affect the
integrity of the Government, or the public's confidence in the
integrity of the Government, or
(C) an individual appointed by the President, by and with
the advice and consent of the Senate, who determines policies to
be pursued in the nationwide administration of Federal laws.
For the purpose of this paragraph, 'sensitive position' means any
position designated as a sensitive position pursuant to Executive
Order Numbered 10450 or under any superseding Federal statute or
Executive order.
"(3) Regulations referred to in subparagraph (B) of this para-
graph shall be prescribed not later than 90 days after the effective
date of this section. Thereafter any revision of such regulations shall
be prescribed not later than March 1 of the year in which such revision
is to take effect. Such regulations shall become effective the first day
after the close of the first period of 30 calendar days of continuous
session of Congress after the date on which such regulations are trans-
mitted to the Congress, unless both Houses of Congress adopt a concur-
rent resolution disapproving such regulations. Continuity of a session
is broken only by an adjournment of the Congress sine die, and the
days on which either House is not in session because of an adjourn-
ment of more than 3 days to a day certain are excluded in the computa-
tion of the 30-day period.
"§ 7325. Political activities on duty, etc.; prohibition
"(a) An employee may not engage in political activity-
(1) while such employee is on duty,
"(2) in any room or building occupied in the discharge of
official duties by an individual employed or holding office in the
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H. R. 8617-4
Government of the United States, in the government of the
District of Columbia, or in any agency or instrumentality of the
foregoing, or
"(3) while wearing a uniform or official insignia identifying
the office or position of such employee.
"(b) The provisions of subsection (a) of this section shall not
apply to—
"(1) the President and the Vice President;
"(2) an individual-
"(A) paid from the appropriation for the White House
Office,
'(B) paid from funds to enable the Vice President to
provide assistance to the President, or
"(C) on special assignment to the White House Office,
unless such individual holds a career or career-conditional
appointment in the competitive service; or
(3) the Mayor of the District of Columbia, the Chairman or
a member of the Council of the District of Columbia, as estab-
lished by the District of Columbia Self-Government and Gov-
ernmental Reorganization Act.
"(c) Nothing in this section shall be construed to authorize an
individual designated in subsection (b) (2) to engage in political
activity otherwise prohibited by or under law.
"(d) (1) In addition to the prohibitions of subsection (a) of this
section, an employee of the Internal Revenue Service, the Department
of Justice, or the Central Intelligence Agency to whom the prohi-
bitions of section 7324(b) of this title apply may not take an active
part in political management or political campaigns unless such
part-
"(A) is in connection with (i) an election and preceding cam-
paign if none of the candidates is to be nominated or elected at
that election as representing a party any of whose candidates for
Presidential elector received votes in the last preceding election
at which Presidential electors were selected, or (ii) a question
which is not specifically identified with a National or State
political party or political party of a territory or possession of
the United States; or
"(B) is permitted by regulations prescribed by the Civil Serv-
ice Commission and involves the municipality or political
subdivision in which such employee resides, when-
"(i) the municipality or political subdivision is in Mary-
land or Virginia and in the immediate vicinity of the District
of Columbia or is a municipality in which a majority of voters
are employed by the Government of the United States; and
"(ii) the Commission determines that because of special
or unusual circumstances which exist in the municipality or
political subdivision it is in the domestic interest of the
employees to permit political participation.
"(2) For the purpose of this subsection, 'an active part in political
management or in political campaigns' means those acts of political
management or political campaigning which were prohibited on the
part of employees in the competitive service before July 19, 1940, by
the determinations of the Civil Service Commission under the rules
prescribed by the President.
"§ 7326. Candidates for elective office; leave, notification by em-
ployees
"(a) Notwithstanding section 6302(d) of this title, an employee
who is a candidate for elective office shall, upon the request of such
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H. R. 8617-5
employee, be granted accrued annual leave for the purpose of allow-
ing such employee to engage in activities relating to such candidacy.
" (b) An employee shall promptly notify the agency in which he is
employed upon becoming a candidate for elective office and upon the
termination of such candidacy.
"(c) The foregoing provisions of this section shall not apply in the
case of an individual who is an employee by reason of holding an
elective public office.
"§ 7327. Board on Political Activities of Federal Employees
(a) There is established a board to be known as the Board on
Political Activities of Federal Employees. It shall be the function
of the Board to hear and decide cases regarding violations of sections
7323, 7324, and 7325 of this title.
"(b) The Board shall be composed of 3 members, appointed by
the President, by and with the advice and consent of the Senate. One
member shall be designated by the President as Chairman of the
Board.
(c) Members of the Board shall be chosen on the basis of their
professional qualifications from among individuals who, at the time
of their appointment, are employees (as defined under section 7322 (1)
of this title), except that not more than 2 individuals of the same
political party may be appointed as members. Employees of the Civil
Service Commission shall be ineligible to be appointed to or to hold
office as members of the Board.
(d) (1) Members of the Board shall serve a term of 3 years, except
that of the members first appointed-
"(A) the Chairman shall be appointed for a term of 3 years,
(B) one member, designated by the President, shall be
appointed for a term of 2 years, and
(C) one member, designated by the President, shall be
appointed for a term of 1 year.
An individual appointed to fill a vacancy occurring other than by the
expiration of a term of office shall be appointed only for the unexpired
term of the member such individual will succeed. Any vacancy occur-
ring in the membership of the Board shall be filled in the same manner
as in the case of the original appointment.
"(2) If an employee who was appointed as a member of the Board
is separated from service as an employee, he may not continue as a
member of the Board after the 60-day period beginning on the date SO
separated.
" (e) The Board shall meet at the call of the Chairman.
(f) All decisions of the Board with respect to the exercise of its
duties and powers under the provisions of this subchapter shall be
made by a majority vote of the Board.
"(g) A member of the Board may not delegate to any person his
vote nor, except as expressly provided by this subchapter, may any
decisionmaking authority vested in the Board by the provisions of this
subchapter be delegated to any member or person.
(h) The Board shall prepare and publish in the Federal Register
written rules for the conduct of its activities, shall have an official seal
which shall be judicially noticed, and shall have its office in or near
the District of Columbia (but it may meet or exercise any of its powers
anywhere in the United States).
" (i) The Civil Service Commission shall provide such clerical and
professional personnel, and administrative support, as the Chairman
of the Board considers appropriate and necessary to carry out the
Board's functions under this subchapter. Such personnel shall be
responsible to the Chairman of the Board.
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H. R. 8617-6
"(j) The Administrator of the General Services Administration
shall furnish the Board suitable office space appropriately furnished
and equipped, as determined by the Administrator.
"(k) (1) Members of the Board shall receive no additional pay on
account of their service on the Board.
"(2) Members shall be entitled to leave without loss of or reduction
in pay, leave, or performance or efficiency rating during a period of
absence while in the actual performance of duties vested in the Board.
"§ 7328. Investigation; procedures; hearing
(a) The Civil Service Commission shall investigate reports and
allegations of any activity prohibited by section 7323, 7324, or 7325 of
this title. Any such investigation shall terminate not later than 90 days
after the date of its commencement, except that such 90-day limitation
may be extended upon the written approval of the Board for the period
specified in such approval. If the Commission does not make the
notification required under subsection (c) of this section before the
close of the period for investigation, subsections (c) (2) and (3) and
(d) of this section, and section 7329 of this title, shall not apply there-
after to the employee involved with respect to the activities under
investigation.
"(b) As a part of the investigation of the activities of an employee,
the Commission shall provide such employee an opportunity to make
a statement concerning the matters under investigation and to support
such statement with any documents the employee wishes to submit. An
employee of the Commission lawfully assigned to investigate a viola-
tion of this subchapter may administer an oath to a witness attending
to testify or depose in the course of the investigation.
"(c) (1) If it appears to the Commission after investigation that a
violation of section 7323, 7324, or 7325 of this title has not occurred,
it shall SO notify the employee and the agency in which the employee
is employed.
"(2) Except as provided in paragraph (3) of this subsection, if it
appears to the Commission after investigation that a violation of sec-
tion 7323, 7324, or 7325 of this title has occurred, the Commission shall
submit to the Board and serve upon the employee a notice by certified
mail, return receipt requested (or if notice cannot be served in such
manner, then by any method calculated to reasonably apprise the
employee)-
"(A) setting forth specifically and in detail the charges of
alleged prohibited activity;
"(B) advising the employee of the penalties provided under
section 7329 of this title;
"(C) specifying a period of not less than 30 days within which
the employee may file with the Board a written answer to the
charges in the manner prescribed by rules issued by the Board;
and
"(D) advising the employee that unless the employee answers
the charges, in writing, within the time allowed therefor, the
Board is authorized to treat such failure as an admission by the
employee of the charges set forth in the notice and a waiver by the
employee of the right to a hearing on the charges.
(3) If it appears to the Commission after investigation that a
violation of section 7323, 7324, or 7325 of this title has been com-
mitted by-
"(A) the Vice President;
(B) an employee appointed by the President by and with the
advice and consent of the Senate;
H. R. 8617-7
"(C) an employee whose appointment is expressly required by
statute to be made by the President;
"(D) the Mayor of the District of Columbia or
"(E) the Chairman or a member of the Council of the District
of Columbia, as established by the District of Columbia Self-
Government and Governmental Reorganization Act;
the Commission shall refer the case to the Attorney General for
prosecution under title 18, and shall report the nature and details of
the violation to the President and to the Congress.
"(d) (1) If a written answer is not filed within the time allowed
therefor, the Board may, without further proceedings, issue its final
decision and order.
(2) If an answer is filed within the time allowed therefor, the
charges shall be determined by the Board on the record after a hearing
conducted by a hearing examiner appointed under section 3105 of this
title, and, except as otherwise expressly provided under this sub-
chapter, in accordance with the requirements of subchapter II of
chapter 5 of this title, notwithstanding any exception therein for
matters involving the tenure of an employee. The hearing shall be
commenced within 30 days after the answer is filed with the Board
and shall be conducted without unreasonable delay. As soon as prac-
ticable after the conclusion of the hearing, the examiner shall serve
upon the Board, the Commission, and the employee such examiner's
recommended decision with notice to the Commission and the employee
of opportunity to file with the Board, within 30 days after the date
of such notice, exceptions to the recommended decision. The Board
shall issue its final decision and order in the proceeding no later than
60 days after the date the recommended decision is served. The
employee shall not be removed from active duty status by reason of
the alleged violation of this subchapter at any time before the effective
date specified by the Board.
"(e) (1) At any stage of a proceeding or investigation under this
subchapter, the Board may, at the written request of the Commission
or the employee, require by subpena the attendance and testimony
of witnesses and the production of documentary or other evidence
relating to the proceeding or investigation at any designated place,
from any place in the United States or any territory or possession
thereof, the Commonwealth of Puerto Rico, or the District of
Columbia. Any member of the Board may issue subpenas, and members
of the Board and any hearing examiner authorized by the Board
may administer oaths, examine witnesses, and receive evidence. In the
case of contumacy or failure to obey a subpena, the United States
district court for the judicial district in which the person to whom
the subpena is addressed resides or is served may, upon application
by the Board, issue an order requiring such person to appear at any
designated place to testify or to produce documentary or other
evidence. Any failure to obey the order of the court may be punished
by the.court as a contempt thereof.
(2) The Board (or a member designated by the Board) may order
the taking of depositions at any stage of a proceeding or investigation
under this subchapter. Depositions shall be taken before an individual
designated by the Board and having the power to administer oaths.
Testimony shall be reduced to writing by or under the direction of
the individual taking the deposition and shall be subscribed by the
deponent.
" (3) (A) After requesting in writing and obtaining the approval of
the Attorney General, the Board may determine that an employee's
attendance and testimony are necessary to the carrying out of the
Board's functions under this subchapter. For purposes of the preceding
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H. R. 8617-8
sentence, if the Attorney General does not notify the Board in writing
within 30 days after the date on which a request for such approval is
made that the Board does not have his approval, then such approval
is deemed to have been given. Such 30-day period shall be extended an
additional 10 days if the Attorney General submits in writing to the
Board the reason for such extension.
'(B) If the Board makes a determination under subparagraph (A)
with respect to any employee, such employee may not be excused from
attending and testifying or from producing documentary or other
evidence in obedience to a subpena of the Board on the ground that
the testimony or evidence required of the employee may tend to incrim-
inate the employee or subject the employee to a penalty or forfeiture
for or on account of any transaction, matter, or thing concerning which
the employee is compelled to testify or produce evidence. No employee
shall be prosecuted or subjected to any penalty or forfeiture for or on
account of any transaction, matter, or thing concerning which the
employee is compelled under this paragraph, after having claimed the
privilege against self-incrimination, to testify or produce evidence, nor
shall testimony or evidence SO compelled be used as evidence in any
criminal proceeding against the employee in any court, except that no
employee shall be exempt from prosecution and punishment for per-
jury committed in SO testifying.
(f) An employee upon whom a penalty is imposed by an order of
the Board under subsection (d) of this section may, within 30 days
after the date on which the order was issued, institute an action for
judicial review of the Board's order in the United States District Court
for the District of Columbia or in the United States district court for
the judicial district in which the employee resides or is employed. The
institution of an action for judicial review shall not operate as a stay
of the Board's order, unless the court specifically orders such stay.
A copy of the summons and complaint shall be served as otherwise
prescribed by law and, in addition, upon the Board which shall then
certify and file with the court the record upon which the Board's order
was based. If application is made to the court for leave to adduce
additional evidence, and it is shown to the satisfaction of the court that
the additional evidence may materially affect the result of the proceed-
ing and that there were reasonable grounds for failure to adduce the
evidence at the hearing conducted under subsection (d) (2) of this
section, the court may direct that the additional evidence be taken
before the Board in the manner and on the terms and conditions fixed
by the court. The Board may modify its findings of fact or order, in
the light of the additional evidence, and shall file with the court such
modified findings or order. The Board's findings of fact, if supported
by substantial evidence, shall be conclusive. The court shall affirm the
Board's order if it determines that it is in accordance with law. If the
court determines that the order is not in accordance with law-
"(1) it shall remand the proceeding to the Board with directions
either to enter an order determined by the court to be lawful
or to take such further proceedings as, in the opinion of the court,
are required; and
'(2) it may assess against the United States reasonable attorney
fees and other litigation costs reasonably incurred by the
employee.
"(g) The Commission or the Board, in its discretion, may proceed
with any investigation or proceeding instituted under this subchapter
notwithstanding that the Commission or the head of an employing
agency or department has reported the alleged violation to the
Attorney General as required by section 535 of title 28.
H. R. 8617-9
"§ 7329. Penalties
(a) Subject to and in accordance with section 7328 of this title,
an employee who is found to have violated any provision of-
(1) section 7323 of this title shall, upon a final order of the
Board, be suspended without pay from such employee's position
for a period not less than 30 days, or shall be permanently removed
in which event that employee may not thereafter hold any position
(other than an elected position) as an employee (as defined in
section 7322(1) of this title) ;
"(2) section 7324 or 7325 of this title shall, upon a final order
of the Board, be-
"(A) removed from such employee's position, in which
event that employee may not thereafter hold any position
(other than an elected position) as an employee (as defined
in section 7322(1) of this title) for such period as the Board
may prescribe;
(B) suspended without pay from such employee's position
for such period as the Board may prescribe; or
"(C) disciplined in such other manner as the Board shall
deem appropriate.
(b) The Board shall notify the Commission, the employee, and the
employing agency of any penalty it has imposed under this section.
The employing agency shall certify to the Board the measures under-
taken to implement the penalty.
"§ 7330. Educational program; reports
(a) The Commission shall establish and conduct a continuing
program to inform all employees of their rights of political partici-
pation and to educate employees with respect to those political
activities which are prohibited. The Commission shall inform each
employee individually in writing, at least once each calendar year,
of such employee's political rights and of the restrictions under this
subchapter. The Commission may determine, for each State, the most
appropriate date for providing information required by this subsec-
tion. Such information, however, shall be provided to employees
employed or holding office in any State not later than 120 days
before the earliest primary or general election for State or Federal
elective office held in such State.
'(b) On or before March 30 of each calendar year, the Commission
shall submit a report covering the preceding calendar year to the
Speaker of the House of Representatives and the President pro tem-
pore of the Senate for referral to the appropriate committees of the
Congress. The report shall include—
"(1) the number of investigations conducted under section
7328 of this title and the results of such investigations;
(2) the name and position or title of each individual involved,
and the funds expended by the Commission, in carrying out the
program required under subsection (a) of this section; and
(3) an evaluation which describes-
(A) the manner in which such program is being carried
out; and
¹(B) the effectiveness of such program in carrying out
the purposes set forth in subsection (a) of this section.
"§ 7331. Regulations
"The Civil Service Commission shall prescribe such rules and regu-
lations as may be necessary to carry out its responsibilities under this
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LIBRARY
H. R. 8617-10
subchapter. However, no regulation or rule of the Commission or
any amendment thereto shall take effect unless-
"(1) the Commission transmits such rule, regulation, or
amendments to the Congress; and
"(2) neither House of Congress has disapproved such rule,
regulation, or amendment within 30 legislative days from the
date of transmittal to the Congress.".
(b) (1) Section 3302 of title 5, United States Code, is amended by
striking out "7153, 7321, and 7322" and inserting in lieu thereof "and
7153".
(2) Section 1308(a) of title 5, United States Code, is amended-
(A) by inserting "and" at the end of paragraph (2) ;
(B) by striking out paragraph (3) and
(C) by redesignating paragraph (4) as paragraph (3).
(3) The second sentence of section 8332(k) (1) of title 5, United
States Code, is amended by striking out "second" and inserting "last"
in lieu thereof.
(4) The section analysis for subchapter III of chapter 73 of title
5, United States Code, is amended to read as follows:
"SUBCHAPTER III-POLITICAL ACTIVITIES
"Sec.
"7321. Political participation.
"7322. Definitions.
"7323. Use of official authority or influence prohibition.
"7324. Solicitation; prohibition.
"7325. Political activities on duty, etc. ; prohibition.
"7326. Candidates for elective office leave, notification by employees.
"7327. Board on Political Activities of Federal Employees.
"7328. Investigation procedures hearing.
"7329. Penalties.
"7330. Educational program ; reports.
"7331. Regulations."
(c) (1) Sections 602 and 607 of title 18, United States Code, relating
to solicitations and making of political contributions, are each amended
by adding at the end thereof the following new sentence "This section
does not apply to any activity of an employee, as defined in section
7322 (1) of title 5, unless such activity is prohibited by section 7324 of
that title."
(2) Chapter 29 of title 18 of the United States Code is amended-
(A) by adding at the end the following new section
"§ 618. Extortion of political contributions from Federal per-
sonnel
"Whoever, by the commission of or threat of physical violence to,
or economic sanction against, any person, obtains, or endeavors to
obtain, from an officer or employee of the United States or of any
department or agency thereof, or from a person receiving any salary
or compensation for services from money derived from the Treasury of
the United States, any contribution for the promotion of a political
object, shall be imprisoned not less than two nor more than three years,
or fined not more than $5,000, or both."; and
(B) by adding at the end of the table of sections for such chapter
the following new item
"618. Extortion of political contributions from Federal personnel."
BERALD
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H. R. 8617-11
(d) Section 6 of the Voting Rights Act of 1965 (42 U.S.C. 1973d)
is amended by striking out "the provisions of section 9 of the Act of
August 2, 1939, as amended (5 U.S.C. 118i), prohibiting partisan
political activity" and by inserting in lieu thereof "the provisions of
subchapter III of chapter 73 of title 5, United States Code, relating
to political activities".
(e) Sections 103 (a) (4) (D) and 203(a) (4) (D) of the District of
Columbia Public Education Act are each amended by striking out
"sections 7324 through 7327 of title 5" and inserting in lieu thereof
"section 7325 of title 5".
(f) The amendments made by this section shall take effect on
January 1, 1977.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.
RALD
R.
FORD
LIBRAR
FOR IMMEDIATE RELEASE
APRIL 12, 1976
Office of the White House Press Secretary
THE WHITE HOUSE
TO THE HOUSE OF REPRESENTATIVES:
I am today returning, without my approval, H.R. 8617,
a bill that would essentially repeal the Federal law
commonly known as the Hatch Act, which prohibits Federal
employees from taking an active part in partisan politics.
The public expects that government service will be
provided in a neutral, nonpartisan fashion. This bill
would produce an opposite result.
Thomas Jefferson foresaw the dangers of Federal
employees electioneering, and some of the explicit Hatch
Act rules were first applied in 1907 by President Theodore
Roosevelt. In 1939, as an outgrowth of concern over politi-
cal coercion of Federal employees, the Hatch Act itself was
enacted.
The amendments which this bill make to the Hatch Act
would deny the lessons of history.
If, as contemplated by H.R. 8617, the prohibitions
against political campaigning were removed, we would be
endangering the entire concept of employee independence
and freedom from coercion which has been largely success-
ful in preventing undue political influence in Government
programs or personnel management. If this bill were to
become law, I believe pressures could be brought to bear
on Federal employees in extremely subtle ways beyond the
reach of any anti-coercion statute so that they would
inevitably feel compelled to engage in partisan political
activity. This would be bad for the employee, bad for the
government, and bad for the public.
Proponents of this bill argue that the Hatch Act limits
the rights of Federal employees. The Hatch Act does in fact
restrict the right of employees to fully engage in partisan
politics. It was intended, for good reason, to do precisely
that. Most people, including most Federal employees, not
only understand the reasons for these restrictions, but
support them.
However, present law does not bar all political activity
on the part of Federal employees. They may register and vote
in any election, express opinions on political issues or
candidates, be members of and make contributions to political
parties, and attend political rallies and conventions, and
engage in a variety of other political activities. What
they may not -- and, in my view, should not -- do is attempt
to be partisan political activists and impartial Government
employees at the same time.
more
FORD LIBRARY
2
The U.S. Supreme Court in 1973 in affirming the validity
of the Hatch Act, noted that it represented
"a judgment made by this country over the last
century that it is in the best interest of the
country, indeed essential, that federal service
should depend upon meritorious performance rather
than political service, and that the political
influence of federal employees on others and on
the electoral process should be limited."
The Hatch Act is intended to strike a delicate balance
between fair and effective government and the First Amendment
rights of individual employees. It has been successful, in
my opinion, in striking that balance.
H.R. 8617 is bad law in other respects. The bill's
provisions for the exercise of a Congressional right of
disapproval of executive agency regulations are Constitu-
tionally objectionable. In addition, it would shift the
responsibility for adjudicating Hatch Act violations from
the Civil Service Commission to a new Board composed of
Federal employees. No convincing evidence exists to
justify this shift. However, the fundamental objection
to this bill is that politicizing the Civil Service is
intolerable.
I, therefore, must veto the measure.
GERALD R. FORD
THE WHITE HOUSE,
APRIL 12, 1976
#####
FORD i LIBRARY GERALD
FOR IMMEDIATE RELEASE
APRIL 12, 1976
OFFICE OF THE WHITE HOUSE PRESS SECRETARY
THE WHITE HOUSE
STATEMENT OF THE PRESIDENT
UPON HIS VETO
OF THE HATCH ACT AMENDMENTS
THE OVAL OFFICE
1:48 P.M. EST
I am returning to Congress today without my signature
a bill that would lift the ban against partisan political
activity by Federal civil servants. For almost 40 years
under the Hatch Act civil servants have been allowed an
active role in the Democratic process. They can vote, they
can attend rallies and conventions, they can contribute
to the candidates of their choice.
However, the Hatch Act has also prohibited
civil servants from engaging in other far more partisan
activities, such as political campaigns. The prohibition
against the partisan politics in the Civil Service was
written into the law for two very sound and worthwhile
reasons: to assure the American people that their affairs
were being conducted with an eye on the public interest,
not a partisan interest, and to protect civil servants
themselves from undue political coercion.
I believe that the concerns that have been valid
for the last four decades are still valid today. The
public business of our Government must be conducted without
the taint of partisan politics. I am, therefore, returning
this bill to the Congress without my approval.
FORD
END
(AT 1:49 P.M. EST)
LIBRARY
2
April 1, 1976
Dear Mr. Director:
The following bills were received at the White
House on April 1st:
S. 3060
H.R. 49
H.R. 200
H.R. 8617
Please let the President have reports and
recommendations as to the approval of these
bills as soon as possible.
Sincerely,
FORD LIBRAEZ
Robert D. Linder
Chief Executive Clerk
The Honorable James T. Igan
Director
Office of Management and Budget
Washington, D.C.