The OSC has issued a clarification of recent Hatch Act guidance related to use of terms such as “resist” or “make America great again” and advocacy for or against impeachment of a political incumbent who is a candidate for partisan office. The clarification and the original guidance are below.
Clarification of November 27, 2018 Email
The U.S. Office of Special Counsel (OSC) is clarifying the November 27 extension of our March 5 guidance. OSC is authorized to issue advisory opinions regarding the Hatch Act. In furtherance of this mission, OSC regularly issues and publishes advisory opinions in response to questions received from federal employees. These advisory opinions inform the federal workforce of what activities are both permissible and prohibited under the Hatch Act.
By way of background, in March 2018 OSC determined that President Trump was a candidate for reelection. Because of President Trump’s status as a candidate, OSC advised employees that, while on duty or in the federal workplace, they may not engage in activity directed toward the success or failure of President Trump’s reelection campaign. So, while on duty or in a federal workplace, employees are prohibited from wearing, displaying, or distributing items from President Trump’s 2016 or 2020 campaigns, like “Make America Great Again,” “#MAGA,” or, in the alternative, items directed at the failure of President Trump’s reelection campaign, such as those containing the slogan “#ResistTrump.” This prohibition extends to activity on social media or in other forums.
Over the past several months, federal employees have repeatedly asked whether use or display of “#resist” or “the Resistance,” or advocating or opposing impeachment of the president, while on duty or in the workplace, is prohibited political activity for Hatch Act purposes. Having answered this question numerous times, OSC decided to distribute the November 27 email.
Specifically, OSC’s guidance only applies to covered employees while they are on duty or in the workplace. It does not impose any restrictions on the ability of employees to engage in political activity while off-duty and away from the workplace. Equally important, the guidance does not limit whistleblowers in any way from reporting or disclosing wrongdoing.
In responding to questions from federal employees regarding “#resist” and “the Resistance,” OSC considered that “#resist” and “the Resistance” have become slogans of political parties and partisan political groups, including in their efforts to oppose President Trump’s reelection. For example, both the Democratic National Committee (DNC) and the partisan political group MoveOn Political Action, among others, have incorporated the concept of “resisting” or “resistance” into their partisan political efforts. The DNC sponsored what it called a “Resistance Summer” in 2017, while MoveOn Political Action sells “Resistance”-themed stickers. Based upon how “#resist,” “the Resistance,” and other terms have been adopted as slogans by political parties and partisan political groups, OSC advised that employees may violate the Hatch Act by using or displaying in isolation “#resist” or “the Resistance” while on duty or in the workplace. Similar slogans used by the Republican National Committee or other partisan political groups would raise the same concerns.
Usages of the terms “resist” and “the Resistance” while on duty or in the workplace that are not directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group are not prohibited by the Hatch Act. For example, using “#resist” in relation to an issue, such as “#ResistHate” or “#ResistKavanaugh,” is not political activity under the Hatch Act. We will continue to evaluate the facts and circumstances of each individual complaint that we receive in order to determine whether any alleged conduct violates the Hatch Act.
Regarding impeachment, OSC’s guidance was not intended to prevent all discussions of impeachment in the federal workplace. OSC has been asked whether an employee may display items that advocate for the impeachment of the president, who is a candidate for reelection. OSC has advised against this activity because OSC considers advocacy for or against the impeachment of a candidate for federal office to be political activity under the Hatch Act. However, merely discussing impeachment, without advocating for or against its use against such a candidate, is not political activity. For example, two employees may discuss whether reported conduct by the president warrants impeachment and express an opinion about whether the president should be impeached without engaging in political activity. An employee may not, however, display in his or her office a poster that states “#Impeach45” or place a “Don’t Impeach Trump” bumper sticker on a government-owned vehicle because such conduct advocates for or against impeachment of a candidate for federal office.
Original Guidance—November 27, 2018
The U.S. Office of Special Counsel (OSC) Hatch Act Unit has received several questions lately regarding whether the following constitute “political activity” for purposes of the Hatch Act: (1) strong criticism or praise of a presidential administration’s policies and actions; (2) advocating for or against impeachment of a candidate for federal office; and (3) activity related to “the Resistance” and/or “#Resist.” We are providing the information below to assist you as you advise employees on the Hatch Act. As always, please do not hesitate to contact OSC with any questions that you may have.
1. Is strong criticism or praise of an administration’s policies and actions considered political activity?
Criticism or praise that is directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group is political activity. Absent evidence that the criticism or praise is so directed, criticism or praise of an administration’s policies and actions is not considered political activity. Whether a particular statement constitutes political activity depends upon the facts and circumstances.
Consider, for example, the administration’s recent decision to move the U.S. embassy in Israel to Jerusalem. An employee who strongly criticizes or praises that decision during a workplace discussion with a colleague in the days immediately following the decision is less likely to be engaging in political activity than one making those same statements in the run-up to the next presidential election—when the decision will likely have been out of the news for several years—to a colleague that the employee knows has strong feelings about the subject.
There are no “magic words” of express advocacy necessary in order for statements to be considered political activity under the Hatch Act. Therefore, when a federal employee is prohibited by the Hatch Act from engaging in political activity—e.g., when on duty, in the federal workplace, or invoking official authority—the employee must be careful to avoid making statements directed toward the success or failure of, among others, a candidate for partisan political office.
2. Is advocating for or against impeachment of a candidate for federal office considered political activity?
Yes. Impeachment is the process by which certain federal officials, including the president and the vice president, may be removed from office and disqualified from holding any future “Office of honor, Trust or Profit under the United States.”1 We are not aware of any case law establishing whether the disqualification from holding future office applies to the office of the president, but we presume that it does based upon how the term “office of profit or trust” has been interpreted where it appears elsewhere in the Constitution. Assuming that disqualification from holding federal office would bar an individual from serving as president, any advocacy for or against an effort to impeach a candidate is squarely within the definition of political activity for purposes of the Hatch Act. Advocating for a candidate to be impeached, and thus potentially disqualified from holding federal office, is clearly directed at the failure of that candidate’s campaign for federal office. Similarly, advocating against a candidate’s impeachment is activity directed at maintaining that candidate’s eligibility for federal office and therefore also considered political activity. Note that activity directed at the success or failure of an impeachment effort regarding someone who is not a candidate for partisan elective office would not be considered political activity.
3. Is activity related to “the Resistance” considered political activity?
To the extent that the statement relates to resistance to President Donald J. Trump, usage of the terms “resistance,” “#resist,” and derivatives thereof is political activity. We understand that the “resistance” and “#resist” originally gained prominence shortly after President Trump’s election in 2016 and generally related to efforts to oppose administration policies. However, “resistance,” “#resist,” and similar terms have become inextricably linked with the electoral success (or failure) of the president. During the period when President Trump was not considered by OSC to be a candidate for reelection the terms did not raise any Hatch Act concerns. Now that President Trump is a candidate for reelection, we must presume that the use or display of “resistance,” “#resist,” “#resistTrump,” and similar statements is political activity unless the facts and circumstances indicate otherwise.
Note that this presumption is only relevant to employee conduct that takes place on duty, in the workplace, while wearing an agency uniform or insignia, or while invoking any official authority or influence. Provided that they comply with the Hatch Act’s restrictions, employees are free to engage in political activity while off-duty and away from the federal workplace.
More broadly, usages of the terms “resist” and “resistance” that are not directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group are not prohibited by the Hatch Act. For example, an employee would not be engaging in political activity by posting on social media “I must #resist the temptation to eat another donut from the break room.” That said, we do presume that the use or display of the hashtags #resist and #resistTrump, in isolation, is political activity under the Hatch Act.