Fedweek

Chief Justice John Roberts presiding over the Senate trial of President Donald Trump on day 4.

The AFGE union has asked a federal judge to speed up a decision in a suit against guidance on what constitutes political “advocacy” in federal offices that is banned by the Hatch Act.

While the suit was filed in mid-2019, the union argues that the underlying First Amendment issues have taken on new importance as the House considered and then approved an impeachment resolution against President Trump and the Senate has moved to the trial stage.

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At issue is OSC guidance issued in March 2018 after Trump appointed a campaign manager, formally making him a candidate for re-election.

That brought additional Hatch Act considerations into play: while on duty or otherwise in a federal workplace, employees may not engage in activities directed at the success or failure of the candidate. That means, for example, that employees may not wear, display, or distribute items with slogans such as Make America Great Again or Resist.

Further guidance issued later in that year added that while employees may discuss impeachment in the workplace, they may not advocate for or against it, on the reasoning that the outcome of an impeachment process will in turn affect the outcome of an election.

The AFGE has now asked the court to issue an order blocking the OSC from enforcing those standards.

AFGE argues that a distinction between discussing impeachment and advocating for or against it is “meaningless” and has made “silence the only safe option for workers wishing to avoid potential punishment.”

The union’s motion includes affidavits from two of its members who work for the National Archives and Records Administration to that effect.

While the case will not be resolved until after the current Senate trial is over, the court’s decision could address larger issues related to Hatch Act restrictions on partisan political activities by federal employees.

Those issues take on greater visibility in election years, particularly presidential election years, as illustrated by a recent case in which an employee agreed to resign with a three-year ban against returning to federal employment after being charged with conducting a tour of agency facilities for a partisan candidate.

Suit Filed over Hatch Act Guidance (8/16/19)

See also: The Hatch Act and Politics in Government at ask.FEDweek.com

2020 Federal Employees Handbook