Understanding the Hatch Act and Executive Branch Limits
Cabinet Officials on the Campaign Trail? Ethics Experts Say Some Are Breaking the Law.
The Hatch Act of 1939 is a federal law prohibiting certain federal executive branch employees from engaging in specific political activities. The law was signed on August 2, 1939, and named after Senator Carl Hatch of New Mexico. Passage of the act was prompted by widespread allegations of local Democratic politicians using Works Progress Administration employees during the 1938 elections. The 1939 Act forbids the intimidation or bribery of voters and restricts political campaign activities by federal employees. The law prohibits using public funds designated for relief or public works for electoral purposes. Federal employees below the policy-making level must abstain from taking an active part in political campaigns. Exemptions from the active campaigning ban include employees paid from Executive Office of the President appropriations and Senate-confirmed presidential appointees. Hatch Act violations are investigated by the Office of Special Counsel. The law prohibits federal employees from using official authority or influence to interfere with or affect election results. Prohibited behaviors include using official titles or positions during political activities and fundraising for political parties or candidates.
Origins in the WPA
The roots of the Hatch Act stretch to the late 1930s. Widespread allegations that local Democratic Party politicians used employees of the Works Progress Administration during the congressional elections of 1938 provided the immediate impetus for the passage of the Hatch Act. Criticism centered on swing states such as Kentucky, Tennessee, Pennsylvania, and Maryland. In Pennsylvania, Republicans and dissident Democrats publicized evidence that Democratic politicians were consulted on the appointment of WPA administrators and case workers and that they used WPA jobs to gain unfair political advantage. In 1938, a series of newspaper articles exposed WPA patronage, and political contributions in return for employment, prompting an investigation by the Senate Campaign Expenditures Committee, headed by Sen. Morris Sheppard, a Texas Democrat. Despite that investigation’s inconclusive findings, many in both parties determined to take action against the growing power of the WPA and its chief administrator, Harry Hopkins, an intimate of President Franklin Roosevelt. The Act was sponsored by Senator Carl Hatch, a Democrat from New Mexico. At the time, Roosevelt was struggling to purge the Democratic Party of its more conservative members, who were increasingly aligned with the administration’s Republican opponents. The president considered vetoing the legislation or allowing it to become law without his signature, but instead signed it on the last day he could do so. His signing message welcomed the legislation as if he had called for it, and emphasized the protection his administration would provide for political expression on the part of public employees.
Core Statutory Prohibitions
The 1939 Act forbids the intimidation or bribery of voters and restricts political campaign activities by federal employees. It prohibits using any public funds designated for relief or public works for electoral purposes. It forbids officials paid with federal funds from using promises of jobs, promotion, financial assistance, contracts, or any other benefit to coerce campaign contributions or political support. It provides that persons below the policy-making level in the executive branch of the federal government must not only refrain from political practices that would be illegal for any citizen, but must abstain from “any active part” in political campaigns, using this language to specify those who are exempt: (i) an employee paid from an appropriation for the Executive Office of the President; or (ii) an employee appointed by the President, by and with the advice and consent of the Senate, whose position is policy-making. The law prohibits federal employees from using official authority or influence for the purpose of interfering with or affecting the result of an election. In practice, this means that federal employees must refrain from certain political behaviors, including using their official title or position while engaged in political activity, fundraising for a political party or candidate, and even using their official social media accounts to post political messages.
Oversight and the Office of Special Counsel
Hatch Act violations are investigated by the Office of Special Counsel. The Office of Special Counsel is an independent federal agency responsible for investigating allegations of Hatch Act violations. Recent scrutiny has focused on the conduct of cabinet officials during election cycles. In the weeks leading up to the 2026 midterm elections, administration officials have been posting on social media in support of candidates, speaking at rallies while blurring the lines with their official duties and appearing on news programs and attacking candidates for office. Official government accounts, including law enforcement agencies like the FBI, have also posted videos attacking candidates for office, and perhaps most blatantly, the Department of Homeland Security issued a press release attacking a Pennsylvania congressional candidate by name. CREW has filed complaints with the Office of Special Counsel regarding multiple instances of alleged violations, including senior counsel at the Department of Justice posting repeatedly from his government account advocating for the success or failure of a candidate, and a congressional campaign fundraising event that included remarks by the Department of Homeland Security Secretary using his official title and discussing his work regarding immigration and law enforcement. FBI Director comments during a news segment about official operations have also been cited in complaints as potential violations.
Modern Challenges and Exemptions
The specific legal boundaries for cabinet officials participating in political campaign activities hinge on the distinction between policy-making and non-policy-making roles. Exemptions from the active campaigning ban include employees paid from Executive Office of the President appropriations and Senate-confirmed presidential appointees. Federal employees below the policy-making level must abstain from taking an active part in political campaigns. The law prohibits using public funds designated for relief or public works for electoral purposes. It also prohibits federal employees from using official authority or influence to interfere with or affect election results. As the 2026 midterms approach, the application of these long-standing restrictions to high-level officials remains a subject of ongoing legal and ethical scrutiny.
Sources
- Hatch Act
- The Trump administration’s midterms Hatch Act violation rampage – CREW | Citizens for Responsibility and Ethics in Washington
- Wisconsin Democrats sue Trump for using taxpayer dollars for campaign ads
Photo: Martin Falbisoner (CC BY-SA 3.0)
