Henry Kerner heads the Office of Special Counsel, and his new report following investigations into violations of the 1939 vintage law, known as the Hatch Act, that prohibits Federal employees from using their position to campaign for political candidates fingers thirteen of President Donald Trump’s senior aides, including his son-in-law and his chief of staff. It shows that they blatantly breached the law during the last weeks of the 2020 Presidential campaign, calculating that the Office of Special Counsel would not have time to investigate and issue findings before Election Day.
I’d say that calculation was correct, wouldn’t you? The report has come out more than a year later.
“Senior Trump administration officials chose to use their official authority not for the legitimate functions of the government, but to promote the re-election of President Trump in violation of the law,” the report concluded, adding, “The administration’s willful disregard for the law was especially pernicious considering the timing of when many of these violations took place.”
Yeah, yeah, yeah. So what are you gong to do about it, other than make faces and write mean things? The Hatch Act is a perfect example of the principle that if people can cheat to obtain power or keep power, they will, if they know the penalties will be minimal or less. This is why mail-in ballots corrupt the electoral system, along with other holes in voting integrity. The Hatch Act isn’t enforced, so all administrations allow their officials to violate it. I don’t know if the law is enforceable. It is naive and irresponsible to expect Trump’s aides or any Presidential underlings regardless of party to eschew this unethical practice when they know they can get away with it, and the potential benefits of the violations are significant.
A President has to show that he regards the law as important. I can’t recall any President doing that as long as I’ve followed politics.
Health and Human Services Secretary Kathleen Sebelius made a speech in 2012 that the Office of Special Counsel determined was in violation of the Act. What did President Obama do? Nothing. His Housing and Urban Development Secretary Julian Castro made political comments during an interview with Katie Couric in 2016. The Office of Special Counsel also determined that was a violation of the Act. Obama’s response? Crickets. Now, if he had fired both of them, that would have set a powerful precedent. If they had been hit by a whopping fine, or banned from future government service, or locked up for a month, that would have signaled that the Hatch Act was more than a toothless exhortation. There were literally no consequences of the violations, and maybe some benefits for Democrats; on balance, these violations were a team win.
As for Republicans, the latest report is like deja vu. This is from 2011:
A long-running federal investigation has found that White House political aides to President George W. Bush engaged in widespread violations of a federal law which limits partisan political activity by government employees during the 2006 midterm elections.
A 118-page report issued Monday by the little-known Office of Special Counsel cites numerous violations of the Hatch Act by the Bush-era White House Office of Political Affairs. The report concludes that federal taxpayers footed the bill for improper activities that were intended to advance Republican political candidates.
But, of course, the new report impugns Trump, so it’s first section news in the Times. [ See previous post from yesterday, which contained this statement:”We will be seeing more of this, as the mainstream news media embarks on its mission of trying to torpedo Trump’s 2021 Presidential prospects, since it is increasingly clear that a relatively bright GOP sea anemone will be able to defeat Joe Biden.”] But…but...what about Biden administration Hatch Act breaches? Sayeth the Times “In October, Jen Psaki, the White House press secretary, apologized after an outside group accused her of violating the law by commenting in the White House press room on the pending governor’s race in Virginia.”
Oh, she apologized! Then it’s all right then? If the 13 Trump aides named in the report apologize, will the boo-boo be better? The Biden administration isn’t even a year old: if there was a serious intention to enforce the Hatch Act, Psaki’s violation was the perfect opportunity to show it (particularly since the shameless, incompetent hack needs to be fired anyway). Instead, the opposite example was set, just like it was in the Trump administration when Kellyanne Conway was allowed to repeatedly violate the law without consequences.
This is easy: enforce the Hatch Act, or get rid of it.
Trump’s Secretary of State, Mike Pompeo, flagrantly violated the Hatch Act in 2020 by speaking at the GOP convention. I wrote about that here, and said in part,
Trump-haters complaining about the Hatch Act get little sympathy from me.
I think the Hatch Act is a bad law, but it is a law, and laws should be enforced, or repealed. Since no party is in favor of enforcing the law when its own members violate it, and it is now openly breached by whichever party is in the White House, it should be ditched. I have always tended toward the liberal dissenters on the Supreme Court when the law was challenged as an abridgement of free speech. Liberal icon William O. Douglas wrote: “It is no concern of government what an employee does in his or her spare time, whether religion, recreation, social work or politics is his hobby, unless what he or she does impairs efficiency or other facets of the merits of his job.” Since no one is going to enforce the damn thing, that’s as good a reason to eliminate it as any.
An interesting historical note on Pompeo’s violation came from the National Review, which pronounced the media’s huffing over Trump’s Secretary of State being “political” “an open fraud”:
Did anyone actually think that John Kerry or Hillary Clinton or James Baker (who had previously been a campaign manager for Gerald Ford, Ronald Reagan, and George H. W. Bush) were apolitical figures? Or, going further back, that William Jennings Bryan, James G. Blaine, Henry Clay, or Thomas Jefferson were above politics? Three presidents (James Madison, James Monroe, and John Quincy Adams) were elected president while serving as secretary of state. James Buchanan and Daniel Webster both sought their party’s nomination while serving in the job. Jefferson more or less created the Democratic Party while serving as secretary of state; Clay got the job as part of a deal to resolve the 1824 election.
Laws that can’t be enforced can still be ethical laws if they truly announce the government’s and the culture’s values. Laws that the government refuses to even try to enforce are unethical, because they undermine trust in the government’s motives and honesty, and create a cynical public.