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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) (1)" 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States of America his copyrights in all of his unpublished writings in National Archives collections.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
THE WHITE HOUSE
WASHINGTON
Bob Linder
The story is that what Gergen is
doing is a statement for the 1:45
TV bit on the Hatch Act --
So therefore there is no hold on
this.
FORD & LIBRARY 076839
Tru dy
THE WHITE HOUSE
WASHINGTON
Last
FORD i LIBRARY GERALD
Day -
Tues Apr 13th
VETOEL I fours 4/12/76 -4/12/76
notos
4/11/96
THE WHITE HOUSE
ACTION
WASHINGTON
Last Day: April 13, 1976
April 9, 1976
Statement
MEMORANDUM FOR:
THE PRESIDENT
FROM:
JIM CANNON Jun
SUBJECT:
Enrolled Bill H.R. 8617 - Federal Employees
Political Activities Act of 1976
Background
H.R. 8617 substantially repeals Hatch Act restrictions and
would allow nearly all Federal employees to participate
actively in partisan politics.
The original House version of H.R. 8617, passed by a vote of
288 to 119 in October 1975; the House adopted the conference
report 241 to 164. The original Senate vote was 47 to 32;
the conference report was adopted by a vote of 54 to 36.
The enrolled bill would allow most Federal employees to engage
in partisan activity during off-duty hours. Federal employees
could run for office without severing their connection with the
Government. The enrolled bill mandates that such employees
would be entitled to use accrued annual leave for such a pur-
pose.
The enrolled bill retains prohibitions on the use of official
authority. It also bars employees from making political con-
tributions to their immediate supervisors. The original Hatch
Act restrictions would be retained for employees of the Depart-
ment of Justice, the Internal Revenue Service and the Central
Intelligence Agency in "sensitive" positions.
The President and Vice President are treated as "employees" by
this bill. They could engage in political activity while on
duty but could not use official authority or influence to sway
votes, affect an election, promise or confer benefits, or
threaten reprisals.
FORD i LIBRARY GER LD
- 2 -
Pressure to repeal the Hatch Act comes from the AFL-CIO
affiliated unions. The National Civil Service League, the
National Academy of Public Administration and the National
Federation of Federal Employees, one of the oldest non-
affiliated employee organizations, all urge a veto of this
enrolled bill. Newspaper editorial comment has also been
supportive of a veto.
Recommendations
All who have reviewed this enrolled bill recommend that you
veto it.
The following recommend a veto:
Office of Management and Budget (enrolled bill report Tab A)
Civil Service Commission
Central Intelligence Agency
U.S. Postal Service
Department of Justice
Department of the Treasury
Max Friedersdorf
Jack Marsh
Ken Lazarus
I recommend that you veto the enrolled bill. A proposed veto
message is at Tab C. It has been cleared by Paul O'Neill, Ken
Lazarus and Doug Smith.
Decision
1. Approve H.R. 8617 (Tab B)
2. Disapprove H.R. 8617 and issue veto message AR7 at Tab
FORD
Tab A - Enrolled Bill Report
Tab B - H.R. 8617
Tab C - Veto Message
OF THE
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE
UNITED
OFFICE OF MANAGEMENT AND BUDGET
SECURITY
STATES
WASHINGTON, D.C. 20503
APR 6 1976
MEMORANDUM FOR THE PRESIDENT
Subject: Enrolled Bill H.R. 8617 - Federal employee
political activity
Sponsor - Rep. Clay (D) Missouri and 5 others
Last Day for Action
April 13, 1976 - Tuesday
Purpose
Substantially repeals Hatch Act restrictions to allow
nearly all Federal employees to participate actively
in regular party politics, become candidates for elective
office, and collect and exchange political contributions.
Agency Recommendations
Office of Management and Budget
Disapproval (Veto
message attached)
Civil Service Commission
Disapproval (Veto
message attached)
Central Intelligency Agency
Disapproval
U.S. Postal Service
Disapproval
Department of Justice
Unable to recommend
approval
Department of the Treasury
Concurs in recommendation
against approval
Discussion
The stated purpose of the enrolled bill is to encourage
Federal employees to fully exercise their rights of
voluntary participation in the political processes of
the Nation. To that end, the bill would repeal nearly
all existing restraints imposed by the Hatch Act on off-
duty political party activity of Federal employees. The
original House version of H.R. 8617, which is substantially
BERALD
2
the same as the enrolled bill, passed by a vote of 288
to 119 in October 1975; the House adopted the conference
report 241 to 164. The original Senate vote was 47 to
32; the conference report was adopted in the Senate by a
vote of 54 to 36.
Hatch Act--current law
The Hatch Act bars Federal employees from taking an active,
formal role in partisan political activities. As elaborated
in regulations of the Civil Service Commission, for example,
Federal employees cannot serve as managers, workers, or
candidates in political parties, or as officers of political
clubs and parties, or delegates to conventions. They
cannot be fund-raisers, sell tickets for party affairs, or
serve as poll-watchers, challengers or recorders, solicit
votes for or against partisan candidates, or engage in
other political activity which would formally identify
them with one party or another. The law also bars use of
official authority or influence to interfere with an
election.
The Hatch Act does not bar all political activity of Federal
employees, however. For example, they are entitled to
register and vote, to express opinions as individuals on
political issues or candidates, to be members of and make
contributions to political parties, to attend political
conventions and rallies and to wear political buttons,
display political pictures and stickers, and engage in
similar activities while off duty and not in a uniform
that identifies them as Federal employees.
Major provisions of H.R. 8617
The principal features of the enrolled bill would:
-- repeal existing restrictions on active partisan
political party activity--i.e., managing and campaigning--
by Federal employees during their off-duty hours and
outside Government offices. For instance, they would
be able to be candidates themselves for partisan office,
to serve as party officials and delegates, to serve as
fund raisers and poll watchers, and to be otherwise formally
identified with political parties, issues and candidates.
-- allow Federal employees who become candidates to
campaign without severing their connection with the Govern-
ment by mandating their entitlement to use accrued annual
leave for such purpose. There would be no requirement for
3
resignation, as is the usual case in the private sector,
but under existing law leave without pay, with attendant
return rights to a Federal position, could be granted at
the discretion of the individual agency. (A mandatory
leave-without-pay provision for such purpose was deleted
in the Senate on the ground the "guaranteed reemployment
represents a privilege and right which employees in the
private sector do not have.")
-- allow Federal employees freely to solicit and exchange
political contributions on behalf of parties or candidates,
but only off-duty and outside Government offices.
-- retain and restate existing prohibitions on use of
official authority or influence to affect elections, and
specifically bar employees from soliciting or receiving
funds to sway votes or from making political contributions
to their immediate superiors.
-- place rule-making authority under the Act in the
Civil Service Commission (CSC), where present law vests
such authority in the President, and provide that CSC
rules, regulations or amendments thereto under the law
would not take effect until 30 days after they are trans-
mitted to Congress, unless disapproved by either House.
-- shift authority for adjudication of violations of
the limited prohibitions on political activity retained
by the enrolled bill from the CSC to a Board on Political
Activities of Federal Employees, a new agency composed of
three Federal employees other than those from CSC. No
more than two members could be of the same political party.
They would be appointed by the President with Senate confirma-
tion for three-year terms. Agencies from which such employees
are appointed would be required to grant them leaves of
absence without loss of pay or leave for Board service. The
Board would have subpoena power and could exercise its
authority anywhere in the United States.
-- impose a minimum penalty of 30 days suspension for
employees found guilty of misusing official authority;
penalties for violation of such prohibitions as politicking
or soliciting funds while on duty would be left to the
discretion of the new Board, which could order disciplinary
action, suspension, or removal.
4
-- retain the original Hatch Act restrictions for
employees of the Department of Justice, the Internal
Revenue Service and the Central Intelligence Agency in
"sensitive" positions, but require those agencies to
designate, in regulations promulgated annually, those
sensitive positions whose incumbents may engage in all of
the political activities permitted under the bill if such
activity "would not adversely affect the integrity of the
Government, or the public's confidence in the integrity
of the Government". Such agency regulations would take
effect 30 days after transmittal to Congress unless
disapproved by concurrent resolution.
-- treat the President and Vice President as "employees"
for purposes of the bill, although they would be exempt
from the prohibitions on engaging in political activity
while on duty and on solicitation and receipt of political
contributions. They would, however, be subject to the ban
on "use of official authority or influence" for example,
to sway votes, affect the result of any election, promise
to confer benefits, or threaten reprisals. The Civil
Service Commission's attached views letter on the enrolled
bill notes that this feature of the bill leaves uncertain
the point at which a President or Vice President might be
in violation of prohibitions.
Background
The Hatch Act was enacted in 1939 as an outgrowth of
instances of political coercion of Federal employees in
connection with the 1936 and 1938 elections. The 1939
law actually codified a series of statutory and adminis-
trative restrictions on political activities by Federal
employees imposed as early as President Thomas Jefferson's
ban on their "electioneering." The explicit Hatch Act
prohibition on political campaigning and managing in off-
duty hours was first imposed by President Theodore Roosevelt
in 1907. His action followed his tenure as a Civil Service
Commissioner where reportedly he found that the prohibitions
of the Civil Service Act of 1883 against coercion and mis-
use of official authority or influence were insufficient
to prevent political abuse.
Agitation for liberalization of Hatch Act restrictions is
a recent phenomenon reflecting the unionization of Federal
employees. In Senate debate on H.R. 8617, Senator Fong
attributed its support to pressure from leaders of unions
of Federal and postal employee unions, "most of them
affiliated with the newly organized Public Employee
Department of the AFL-CIO." The chief of the National
Federation of Federal Employees (NFFE), one of the oldest
5
non-affiliated employee organizations, bluntly characterized
the campaign for Hatch Act repeal in H.R. 8617 as "nothing
more than the old AFL-CIO pitch for muscle and power. It
is a move for money and organizing influence."
Several of the larger unions affiliated with the AFL-CIO
adopted resolutions in their 1964 annual conventions
urging Hatch Act liberalization. These and other unions
were among those who pressed for the 1966 enactment of the
law creating a Commission on Political Activity of
Government Personnel (CPA) whose function was to study
the possibility of relaxation of Hatch Act restraints.
The CPA's 1967 report recommended only limited, partial
repeal of the ban on partisan political activity. Union
dissatisfaction with that result prompted the Letter
Carriers' union, a powerful AFL-CIO affiliate, to mount a
new challenge as to constitutionality of the Hatch Act.
The Supreme Court, which had found the Hatch Act con-
stitutional in an earlier, 1947 challenge, again upheld
the Act's constitutionality in 1973 in the Letter Carriers'
case.
Then, as now, proponents of Hatch Act repeal argue that
its restrictions on party activity by Federal employees
make them second-class citizens by denying them the full
exercise of the First Amendment rights of speech and asso-
ciation allowed other citizens, that the circumstances which
prompted enactment of the original restrictions have
disappeared with the growth of the career service and
diminution of widespread patronage, and that the Act is so
vague and overbroad in its prohibitions as to have a
"chilling effect" on the exercise by Federal employees of
those political rights the law allows them.
It is of interest that a substantial majority of Federal
employees are opposed to repeal of Hatch Act protections,
as reported by Congressmen and Senators from nearby
Maryland and Virginia communities with heavy concentrations
of Federal employees. This is verified by the NFFE, which
has reported that 89% of its members polled support
retention of present restrictions.
Moreover, disinterested groups, such as the National Civil
Service League, a citizens' organization which has led the
fight for merit principles in public employment since
about 1881, also oppose H.R. 8617. Its founders were
instrumental in securing passage of the first civil service
FORD
6
law, the Pendleton Act of 1883, and its activities on
behalf of a merit-based and politically neutral civil
service have continued since that time.
Administration position
The Administration expressed strong opposition to Hatch
Act repeal at every stage of Congressional consideration,
on the grounds that:
-- Formal identification of Federal employees with
party politics would erode public confidence in
Government operations at a time when that con-
fidence is acknowledged to be low.
-- Unlimited political party involvement by Federal
employees would increase the likelihood that their
own political views and considerations would be
injected into and interfere with the impartial
execution of the Government's business. The effect
would be to deny the public its inherent right to
the impartial administration and application of the
laws and to convert the Federal workforce into an
organized instrument for affecting the outcome of
elections.
-- Repeal of Hatch Act restrictions would deprive
Federal employees of the protection they now have
not only from overt political abuse, but also from
indirect, subtle pressures to comply or curry
favor with one party or another.
-- The only real protection for employees against
subtle pressures beyond the reach of anti-coercion
provisions is the absolute ban on party politicking
and electioneering. (Indeed, the enrolled bill
itself recognizes this in its provisions which would
apply the present Hatch Act restrictions to certain
employees of the Department of Justice, the IRS
and CIA.)
-- Federal employees subject to present Hatch Act
restrictions are not disenfranchised, as argued by
some proponents of H.R. 8617, and the limitation
of their formal party involvement and participation
is based on the historic necessity to find a balance
between the rights of employees as citizens and the
compelling need of Government and the public it
serves for an impartial, politically neutral civil
service.
7
-- No convincing evidence has been introduced which
would warrant shifting responsibility for adjudica-
tion of Hatch Act violations from the Civil Service
Commission to a new Board composed of Federal
employees.
-- The provisions of H.R. 8617 which would authorize
a one-House veto of Civil Service Commission rules
and regulations relative to Hatch Act administra-
tion, and Congressional disapproval of regulations
promulgated by the Department of Justice, IRS and
CIA under the Act, are constitutionally objectionable
as congressional infringements upon the legitimate
functions of executive agencies.
Recommendations
CSC, in its views letter, recommends disapproval, and has
attached a draft veto message. The Commission states that
it is unalterably opposed to the enrolled bill and that its
enactment "would have serious deleterious effects on the
impartial administration of, and public confidence in,
the Federal civil service The Commission further
states that "it is an empty hope" that provisions against
coercion, however carefully drawn, can alone protect the
merit system against the encroachment of partisan political
influences, and that the existing prohibition against
active political participation is the only safeguard and
protection against subtle political pressures which can and
will be brought to bear against employees. The Commission
believes H.R. 8617 would remove this essential "shield of
impartiality" from the Federal service and from the public.
CIA recommends veto of H.R. 8617, favoring the retention
of existing law as "more certain, clear and equitable"
than the proposed selective application of the present law
to three agencies (CIA, Justice, and IRS). CIA believes
this proposed arrangement is arbitrary in setting different
restrictions for its employees and other employees of the
Intelligence Community. It also believes the bill's
standards for determining which employees may engage in
political activity are vague and arbitrary, and would
invite contention and litigation. Finally, CIA questions
the propriety of a legislative veto of administrative
decisions in the Executive branch.
Postal Service also believes that you should veto this
measure. The Postal Service states that "The elimination
of partisan political considerations from postal operations
was a hallmark of the Postal Reorganization Act. Removing
8
the prohibitions against partisan activity by postal
employees could seriously undermine this important component
of postal reform."
Justice states that it is unable to recommend Executive
approval of the enrolled bill. Justice is opposed, for
constitutional reasons, to the provisions subjecting
agency regulations to disapproval by concurrent resolution
and one-House veto. The Department also objects, as
"most undesirable," to a provision of the bill conferring
transactional immunity on employees in procedures before
the proposed Board on Political Activities of Federal
Employees; Justice states that such immunity confers an
unnecessary gratuity in that it is broader than that required
by the Fifth Amendment. Finally, Justice objects to a
provision of the bill authorizing the award of counsel
fees and other costs incurred by employees who prevail in
appeals in court against Board decisions.
Treasury states that it would concur in a recommendation
that the enrolled bill not be approved. The Department
believes that any benefits to Federal employees from
liberalizing the Hatch Act "would be outweighed by the
concomitant negative impact on the merit system and on
public confidence in the nonpartisan administration of
Government operations." Treasury is especially concerned
about the provisions of the bill relating to IRS, noting
that only 70 IRS employees fall within the definition of
"sensitive position" contained in H.R. 8617, and that the
existing prohibitions would apply only to those employees.
********
We believe the arguments for veto of H.R. 8617 advanced
by the Administration, as described above, are compelling.
We would add only that the enrolled bill's effect on the
President and Vice President, and on department and agency
heads and their deputies, is at best unclear. For example,
H.R. 8617 does not exempt department and agency heads
from the ban on political activity while on duty. The
literal effect of this provision might be to bar Cabinet
officials and other Presidential appointees from all
political activity. Also, as noted in the CSC views letter,
there is an area of uncertainty as to the precise impact
on the President, Vice President, and top officials of
the proposed ban on use of official authority and influence
for various purposes, such as affecting the outcome of an
election. This simply illustrates the numerous technical
9
and procedural defects in the bill, apart from its more
fundamental faults.
We have attached a draft veto message for your consideration.
Jostif James T. Lynn
Director
Attachments
LOR FORD LISTED
UNITED
STATE
UNITED STATES CIVIL SERVICE COMMISSION
IN REPLY PLEASE REFER TO
CIVIL SERVICE COMMINSIONER
WASHINGTON, D.C. 20415
April 2, 1976
YOUR REFERENCE
Honorable James T. Lynn
Director
Office of Management and Budget
Washington, D. C. 20503
Dear Mr. Lynn:
This is in response to your request for our views on H.R. 8617, the
"Federal Employees Political Activities Act of 1976," an act "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 Commission is unalterably opposed to this legislation.
We strongly urge that the President veto this bill.
This Commission has, over the years, consistently been opposed to any
legislation which would remove or substantially relax the political
activity restrictions which current Federal law places on Federal
employees in the Executive branch. This opposition is based, not on
any misguided interest in retaining a programmatic responsibility, but,
rather, on a sincere and historically founded belief that a relaxation
of the political activity restrictions would pose a very real and
serious threat to the maintenance of a career merit system. The
enactment of such legislation would deprive employees of the pro-
tections which they now enjoy from the subtle, sometimes even
unintended, pressures which can be and would be brought to bear.
As I testified before the House Subcommittee on Employee Political
Rights and Inter-governmental Programs on March 25, 1975, it is an
empty hope that provisions against coercion, no matter how tightly
drawn they might be, can alone protect the merit system against the
encroachment of partisan political influences. It is the prohibition
against active participation in partisan political management and
partisan political campaigns which constitutes the most significant
safeguard against coercion--whether from superiors in the Federal
service, or from outsiders. Employees realize that partisan political
activity can subject them to removal, and know that those persons who
could request them to be politically active have no greater threat
FORD
is
GERALD
LIBRARY
THE MERIT SYSTEM-A GOOD INVESTMENT IN GOOD GOVERNMENT
2
than that. Because of the management and campaigning provisions of
the Hatch Act, most employees know that they need not respond to
political requests or suggestions. This entire protective fabric
would be destroyed if the prohibitions against political management
and campaigning are removed, as is being proposed in this legislation.
This is true even in view of the proposed continuation of present Hatch
Act restrictions with respect to certain employees of the Internal
Revenue Service, the Department of Justice, and the Central Intelligence
Agency. We believe that whatever political activity is permitted to
employees will eventually become that which is required of them. We do
not believe, as has been stated by the public employee organizations,
that Federal employees overwhelmingly, or that even a majority of them,
are in favor of repealing the management and campaigning prohibition.
We believe the opposite to be true.
Moreover, by limiting the Government employee's involvement in partisan
politics, the Hatch Act reduces the likelihood that an employee will
allow partisan political views to interfere with the impartial execution
of the Government's business. The current Hatch 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. Equally important, in our view, is the concern that
involvement in partisan political activities on the part of Federal
employees, being observed by the public, will erode public confidence
in the impartial administration of Federal laws and programs. When
the public sees at work a Federal employee who is prominently identified
with partisan politics, and at the same time is charged with responsi-
bility for the impartial, nonpartisan execution of public duties, it
will inevitably have doubts about that employee's impartiality. One of
the frequently made observations concerning the recent "Watergate"
revelations, was the manner in which the daily operation of the
Government continued uninterrupted, due in large measure to the
dedication and efforts of impartial civil servants in the career
service. It seems incongruous for the Congress to now seriously
entertain a proposal to deprive the Federal service of that shield of
impartiality. It seems to us that anything which has the clear potential
for undermining the public's confidence in the impartiality and efficiency
of the civil service should be rejected.
In addition to those concerns with the proposed bill in general, we would
like to direct your attention to several other of the provisions which we
feel are particularly troublesome.
Since, for the purposes of the proposed legislation, [section 7322 (1)
the President and the Vice President are deemed to be employees, they
are, unless otherwise excepted, covered by the political activity
restrictions applicable to other employees. Although the President and
the Vice President are excluded from the prohibitions of section 7324
(Solicitation), and from section 7325 (Political activities on duty),
they are nonetheless subject to section 7323, (use of official authority
or influence). Under this section the President and the Vice President
3
are prohibited, in part, from influencing others with respect to their
vote, the giving or withholding of a political contribution, or engaging
in political activity. Although such misuse of official authority or
influence is further defined with respect to a promise to confer a
benefit or to effect a reprisal, it is "not limited to" these areas
alone [section 7323(a) and (c)]. Thus, this section leaves an area of
uncertainty as to the specific point at which a President or Vice
President might violate this provision. Further, no procedure is set
forth under section 7328(c)(3) should it appear that the President has
committed a violation.
We are also troubled by the relaxation on the exchange of contributions
among employees which results from section 7324. The Congress has
previously recognized the need to restrict any solicitation or receipt
of political contributions among employees, regardless of whether there
exists a superior-subordinate relationship. The seriousness with which
Congress has previously viewed this matter is evidenced by the existence
of prohibitory provisions in the criminal code. Now it is being proposed
that even those criminal provisions be amended, and that employees be
permitted to freely solicit and receive contributions from one another,
with the exception of those in a superior-subordinate relationship
and of certain employees of the Internal Revenue Service, the Department
of Justice and the Central Intelligence Agency. The possibilities for
abuse are obvious. We would point out that the current restrictions do
not preclude or inhibit an employee from making a voluntary contribution
to the duly constituted campaign organization of any candidate, including
that of an incumbent Member of Congress.
We seriously question the effectiveness of enforcement of the prohibition
on an employee engaging in campaign or management activities while on
duty, if the employee is not required to take a leave of absence from
his or her job to become a candidate. Proposed section 7326 would
require agencies to grant use of accrued annual leave to an employee-
candidate upon request, but does not require the employee to take a leave
of absence.
We have some reservations about the need for the proposed Board on
Political Activities of Federal Employees as well. We would point
out that there was no credible evidence introduced during the
Congressional hearings that the Commission's performance of the
responsibilities which would now be assumed by the Board has ever
been inadequate or subject to serious criticism. We accordingly see
no need for the new Board.
Finally, we 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, but would defer to the Department of Justice on that
issue.
4
Because we feel strongly that enactment of this type of legislation
would have serious deleterious effects on the impartial administration
of, and public confidence in, the Federal civil service, the Commission
strongly urges that the President not approve this enrolled bill. A
veto message is attached.
By direction of the Commission:
Cobut Sincerely yours,
Robert E. Hampton Hampton
Chairman
Enclosure
GERALD FORD Jessey
CENTRAL INTELLIGENCE AGENCY
WASHINGTON,D.C. 20505
5 April 1976
Mr. James M. Frey
Assistant Director for Legislative Reference
Office of Management and Budget
Washington, D.C. 20503
Dear Mr. Frey:
This is in response to your request for our views and recommendations
on enrolled 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
solicitations, and for other purposes. If
Enrolled bill H.R. 8617 would permit most Federal employees to
participate in partisan political activity; however, it would permit employees
of the Central Intelligence Agency, the Justice Department, and the Internal
Revenue Service to engage in political activities only when the agency head
determines that their activities would not adversely affect public confidence
or the integrity of the Government. The Congress could disapprove determina-
tions of any agency head.
It is recommended that the President veto H.R. 8617. While the Agency
favors restrictions on the partisan political activities of Federal employees,
it is believed that the selective application of such restrictions to three agencies
is arbitrary. For example, the political activities of Federal employees in
other Intelligence Community components with responsibilities similar to
those of the Central Intelligence Agency are not restricted. In addition, the
proposed legislation would impose on the agency head the burden of determin-
ing under a set of vague and inherently arbitrary standards which employees
may engage in political activity. This would invite contention and litigation.
Finally, by authorizing Congress to overturn an agency head's determination,
the bill raises the question of the propriety of legislative veto of adminis-
trative decisions in the Executive branch.
For the foregoing reasons, the Central Intelligence Agency favors
retaining existing law, which is more certain, clear and equitable than the
proposed arrangement.
Sincerely,
George Bush
Director
REVOLUTION
AMERICAN
BICENTENNIAL
1776-1976
POSTA
STATES UNITED
U.S.MAIL
SERVICE *
LAW DEPARTMENT
Washington, DC 20260
April 5, 1976
Mr. James M. Frey
Assistant Director for Legislative Reference
Office of Management and Budget
Washington, D. C. 20503
Dear Mr. Frey:
This responds to your request for the views of the Postal Service
with respect to the enrolled 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 solicitations, and for other
purposes. 11
1. Purpose of Legislation as it
The bill would amend Subchapter III
Pertains to the Postal Service
of chapter 73 of title 5, United States
Code, dealing with political activi-
ties, which applies to Postal Service
employees under 39 U.S. C. §410(b)(1).
The bill would repeal the current
prohibition on partisan political
activity by Federal and postal employ-
ees, and establish a policy encouraging
employees fully to exercise, to the
extent not expressly prohibited by law,
their rights of voluntary participation
in the political processes of the Nation.
The bill would retain or strengthen
existing prohibitions against using
official authority to affect the result of
an election, soliciting or accepting
payments for voting, engaging in
GERALD FORD
political activity while on duty, and
similar practices. The bill would
establish a new Board on Political
Activities of Federal employees to
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hear and decide cases regarding
violations of these provisions.
2. Position of the Postal Service.
The Postal Service opposes the enact-
ment of this measure. The elimina-
tion of partisan political considerations
from postal operations was a hallmark
of the Postal Reorganization Act.
Removing the prohibitions against
partisan activity by postal employees
could seriously undermine this
important component of postal reform.
3. Timing.
We have no recommendation regarding
the timing of Presidential action on
this measure.
4. Cost or Savings.
We have no estimate as to the cost or
savings of this measure.
5. Recommendation of
The Postal Service believes the
Presidential Action.
President should veto this measure.
Sincerely,
W. allen Sanders
W. Allen Sanders
Assistant General Counsel
Legislative Division
ASSISTANT ATTORNEY GENERAL
LEGISLATIVE AFFAIRS
Department of Justice
Washington, D.C. 20530
April 5, 1976
Honorable James T. Lynn
Director
Office of Management and Budget
Washington, D.C. 20503
Dear Mr. Lynn:
In compliance with your request I have examined a fasimile
of the enrolled bill H.R. 8617, 94th Cong., the Federal Employees'
Political Activities Act of 1976. In view of the time pressure
your office suggested that this Department focus its review
on proposed sections 7324(b) (2) and (3) ; 7328 (e) (3) (A) ; 7328
(f) (2), and 7331 of title 5, U.S. Code.
1. Sections 7324 (b) (2) and 7325 (d) (1) would provide
that certain relaxations from the original Hatch Act are not
to apply to employees of the Internal Revenue Service, the
Department of Justice and the Central Intelligence Agency.
Section 7324(b) (2) would carve out of that exception (A) em-
ployees of those agencies who are not in a sensitive position,
and (B) those who are in a sensitive position but with respect
to whom the agency head has determined by regulation that the
involvement of such employees in the relevant activities
would not adversely affect the integrity of the Government,
or the public's confidence in the integrity of the Government.
Section 7324(b) (3) would provide for the disapproval by con-
current resolution of the regulations issued by the agency
head.
The Department has some reservation concerning the prac-
ticability of determining which of its employees in a sensitive
position should be excepted because their activities otherwise
prohibited would not adversely affect the integrity of the
Government or the public's confidence in the integrity of the
Government.
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More serious is the provision that subjects regulations
to disapproval by concurrent resolution. This Department
has consistently taken the position that provisions which
enable Congress to disapprove implementing regulations
authorized by statute violate the Constitution on two grounds:
First, they are inconsistent with the principle of Separation
of Powers, and, second, they are inconsistent with Article I,
section 7, clauses 2 and 3 which require presentation to the
President of all Congressional action which is designed to have
legal effect beyond its confines. President Ford announced
his agreement with this position in several signing statements:
see, e.g., those relating to the Education Amendments of 1974,
Pub.. Law 93-380, 10 Weekly Compilation of Presidential Documents
1056; Amtrak Improvement Act of 1975, Pub. Law 94-25, 11 id.
560; Child Support Amendments, Pub. Law 94-88, 11 id.856, In
his signing statement on the Social Security Act Amendments
of 1973, Pub. Law 93-66, 9 id. 896, President Nixon instructed
the agency head involved not to exercise a statutory rulemaking
authority, subject to a Congressional veto.
2. Section 7328 (e) (3) (A) and (B) would establish a
procedure for the Board on Political Activities of Federal
Employees to confer transactional immunity upon employees and
thereby obtain their testimony in certain cases. The Depart-
ment has no objection to permitting the Board to compel testi-
mony pursuant to a grant of immunity, nor do we object in
substance, to the procedures outlined in section 7328 (e) (3) (A),
which -- similarly to those in 18 U.S.C. 6001 et seq., appli-
cable to other government agencies -- require that the Attorney
General's approval be first obtained for the purpose. The
Department, however, does strongly object to the provision in
section 7328 (e) (3) (B), which would authorize the Board, upon
obtaining the Attorney General's approval, to bestow immunity
from prosecution "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". Such immunity
confers an unnecessary gratuity in that it is broader than re-
quired by the Fifth Amendment. Kastigar V. United States,
406 U.S. 441 (1972). Moreover, this proposed section would
operate outside the unified framework for immunity that was
enacted by Congress in 1970, and is codified as 18 U.S.C. 6001-
6005. Those statutes (sustained in the Kastigar case, supra)
provide for the supplanting of the Fifth Amendment privilege
by the conferral of immunity from use of the testimony that is
compelled. The proposal to return to the "transactional" form
of immunity which 18 U.S.C. 6001 et seq. was designed to
replace is regarded as most undesirable. We note that the
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goal of section 7328 (e) (3) (A) and (B) may be accomplished
readily in a manner acceptable to this Department by including
the Board as an "Agency of the United States" through an
amendment of 18 U.S.C. 6001, thus bringing the Board within
the purview of the existing generally applicable statutory
scheme.
3. Section 7328 (f) (2) would authorize the court to award
against the United States reasonable counsel fees and other
litigation costs reasonably incurred by an employee who pre-
vails in his attack against a penalty imposed by the Board
on Political Activities of Federal Employees. The general
rule governing the award of costs against the United States
(28 U.S.C. 2412) does not authorize the award of counsel fees
against the United States. Although analogous provisions may
be found in legislation such as the Freedom of Information
Act Amendments of 1974 and the Privacy Act, both enacted in
1974, 5 U.S.C. (Supp. IV) 552 (a) (4) (E), 552a (g) (1) (B), the
Department is unable to perceive any sound ground for the
proliferation of such provisions.
4. Section 7331 would provide that the regulations of
the Civil Service Commission implementing its responsibilities
under the provision of the bill cannot take effect if dis-
approved by either House of Congress. This Department is
opposed to these provisions for the constitutional reasons
set forth above.
In sum, the Department of Justice is unable to recommend
Executive approval of the bill.
Sincerely,
Michael M Whlmann
Michael M. Uhlmann
Assistant Attorney General
GERALD FORD
OF
DEPARTMENT THE 1789 THE TREASURY
THE GENERAL COUNSEL OF THE TREASURY
WASHINGTON, D.C. 20220
APR 5 1976
Director, Office of Management and Budget
Executive Office of the President
Washington, D. C. 20503
Attention: Assistant Director for Legislative
Reference
Sir:
Reference is made to your request for the views of this Department on
the enrolled enactment of 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."
The primary thrust of the enrolled bill is to repeal certain of the
existing restrictions in the Hatch Act, subchapter III of chapter 73 of title
5, United States Code, which prohibit employees of the District of Columbia
and of the Federal Government from participation in partisan political
campaigns and other political practices.
The House and Senate Committee reports on H.R. 8617 include letters from
the Office of Management and Budget, the Civil Service Commission and the
Department of Justice, among others, strongly opposing H.R. 8617 and other
similar bills. Treasury concurs in that opposition and believes that
any benefits to Federal employees resulting from the liberalization of
the Hatch Act, as enacted in H.R. 8617, would be outweighed by the
concomitant negative impact on the merit system and on public confidence in
the nonpartisan administration of Government operations.
By limiting the Government employee's involvement in partisan political
activities, the Hatch Act assures that employees will not be compelled, or
feel themselves compelled, to engage in such activities in order to enhance
their career prospects. If the enrolled bill were to become law, the fine
line between voluntary and involuntary political contributions and participation
would become even less distinct, and the pressures on Federal employees
could greatly increase.
-2-
Further, when a Federal employee is both prominently identified with
partisan politics and charged with the execution of public duties, the public
will inevitably have serious doubts about that employee's impartiality.
The Department raises these concerns especially with regard to
employees of the Internal Revenue Service (IRS). When H.R. 8617 was under
consideration by the Senate Post Office and Civil Service Committee,
Commissioner Alexander stressed to that Committee the need for retaining
Hatch Act prohibitions with respect to IRS personnel in general. The bill
as enacted would retain existing prohibitions only with respect to those IRS
employees who are in sensitive positions. Only 70 of the approximately
80,000 IRS employees occupy positions which would fall within the definition
of "sensitive position" contained in H.R. 8617. Thus, the enrolled bill also
fails to incorporate the significant recommendation which the Commissioner
urged on the Congress.
In view of the foregoing, this Department would concur in a recommendation
that the enrolled enactment not be approved by the President.
Sincerely yours,
General Counsel
Richard R. Albrocht
GERALD Fand
THE WHITE HOUSE
ACTION MEMORANDUM
WASHINGTON
LOG NO.:
Date: April 7
ation
Time:
1100am
DAV DLISS
FOR ACTION:
Blok Parsons
CC (for information): Jim Cavanaugh
Max Friedersdorf wats
Ed Schmults
Ken Lazarus vets
Jack Marsh
NSC/S OK
Robert Hartmann
FROM THE STAFF SECRETARY
DUE: Date:
Time:
April 8
1000
SUBJECT:
H.R. 8617 - Federal employee political activity
ACTION REQUESTED:
For Necessary Action
For Your Recommendations
Prepare Agenda and Brief
Draft Reply
X For Your Comments
Draft Remarks
REMARKS:
Please return to Judy Johnston, Ground Floor West Wing
Cannox 4/9 652pm
GERALO FORD IBRART
PLEASE ATTACH THIS COPY TO MATERIAL SUBMITTED.
If you have any questions or if you anticipate a
delay in submitting the required material, please
telephone the Staff Secretary immediately.
President
THE WHITE HOUSE
ACTION MEMORANDUM
WASHINGTOS
LOG NO.:
Date:
April 7
Time:
1100am
FOR ACTION:
Dick Parsons
CC (for information): Jim Cavanaugh
Max Friedersdorf
Ed Schmults
Ken Lazarus
Jack Marsh
NSC/S
Robert Hartmann
FROM THE STAFF SECRETARY
DUE: Date:
Time:
April 8
1000am
SUBJECT:
H.R. 8617 - Federal employee political activity
ACTION REQUESTED:
For Necessary Action
For Your Recommendations
Prepare Agenda and Brief
Draft Reply
X
For Your Comments
Draft Remarks
REMARKS:
Please return to Judy Johnston, Ground Floor West Wing
Recommend veto occur on Tuesday, April 13th (last day for action) in
order that vote to override not occur until after the Easter Recess. Since
editorials and public sentiment are in our favor, an additional period of
time prior to a vote would benefit the President's position. Additionally,
a number of groups opposed to the legislation are keying their mass
mailings to a vote after the Recess. The veto message needs some work
and I shall provide our comments in this regard to the Domestic Council.
Ken Lazarus 4/8/76
BERALD LIBRARY Page
PLEASE ATTACH THIS COPY TO MATERIAL SUBMITTED
If you have any questions or if you anticipate a
delay in submitting the required moterial, please
James M. Cannon
For the President
telephone the Staff Secretary immediately.
2051
MEMORANDUM
NATIONAL SECURITY COUNCIL
April 8, 1976
MEMORANDUM FOR: Mr. James Cannon
FROM:
Jeanne W. Davis wit
for
SUBJECT:
H.R. 8617 - Federal Employee
Political Activity
The NSC Staff concurs in the recommendation to veto this legislation.
3080 LIBRARY is
THE WHITE HOUSE
WASHINGTON
April 8, 1976
MEMORANDUM FOR:
FROM:
JIM MAX L. CAVANAUGH FRIEDERSDORF m 6.
SUBJECT:
H.R. 8617 - Federal employee political activity
The Office of Legislative Affairs concurs with the agencies
that the
subject bill be VETOED.
Attachments
FORD
LIBRACY
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON. D.C. 20503
10:15a.m.
APR 6 1976
MEMORANDUM FOR THE PRESIDENT
Subject: Enrolled Bill H.R. 8617 - Federal employee
political activity
Sponsor - Rep. Clay (D) Missouri and 5 others
Last Day for Action
April 13, 1976 - Tuesday
Purpose
Substantially repeals Hatch Act restrictions to allow
nearly all Federal employees to participate actively
in regular party politics, become candidates for elective
office, and collect and exchange political contributions.
Agency Recommendations
Office of Management and Budget
Disapproval (Veto
message attached)
Civil Service Commission
Disapproval (Veto
message attached)
Central Intelligency Agency
Disapproval
U.S. Postal Service
Disapproval
Department of Justice
Unable to recommend
approval
Department of the Treasury
Concurs in recommendation
against approval
Discussion
The stated purpose of the enrolled bill is to encourage
Federal employees to fully exercise their rights of
voluntary participation in the political processes of
the Nation. To that end, the bill would repeal nearly
all existing restraints imposed by the Hatch Act on off-
duty political party activity of Federal employees. The
original House version of H.R. 8617, which is substantially
FORD LIDRARY &
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
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,
FORD
LIBRARY
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.
LIBRARY
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.
The WHITE HOUSE
April , 1976
FORD