Among other things, this week’s Republican National Convention has featured a steady stream of violations of the Hatch Act and other federal ethics laws that, between them, impose rigid limits on when government employees, resources and property can be used to support partisan political campaigns. As the Supreme Court explained in 1973, these laws reflect “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.”
To put the point a bit more bluntly, our tax dollars should be funding government operations, not political campaigns that we may or may not support.
To put the point a bit more bluntly, our tax dollars should be funding government operations, not political campaigns that we may or may not support. Although it is inevitable that candidates will run for re-election while in office, it is not inevitable that the government becomes an arm of the campaign — not only funded by taxpayers, but seemingly prioritizing the goals of the candidate over the needs of the country. And yet, that is exactly what has been happening over and over this week.
Among other things, American laws prohibit running the RNC out of the White House; having the (putative) acting Homeland Security secretary administer a naturalization ceremony as a convention event; having the secretary of state speak to the convention while on an official foreign trip; having on-duty, uniformed Marines provide the backdrop for convention speeches; and a seemingly endless array of other breaches of protocol.
Nor is this a new problem for the Trump administration. Last June, the Office of Special Counsel (OSC) — the government agency that monitors compliance with federal ethics laws — identified dozens of violations of the Hatch Act by White House counselor Kellyanne Conway, and, in an unprecedented move, recommended that as a result, she be terminated. Conway’s response? “Blah, blah, blah. If you’re trying to silence me through the Hatch Act, it’s not going to work. Let me know when the jail sentence starts.” Echoing Conway, acting White House chief of staff Mark Meadows waved his arms at the Hatch Act just Wednesday morning, saying that “nobody outside of the Beltway really cares.”
The problem with the Hatch Act and similar statutes is not that “nobody cares”; millions of federal employees are still endlessly drilled each year on how to separate politics from work. But as we have seen with so many other legal constraints on the executive branch over the past three and a half years, the problem is that those who are violating these laws don’t care. And they don’t need to care, because the enforcement mechanisms have proven woefully ineffective.
Echoing Conway, acting White House chief of staff Mark Meadows waved his arms at the Hatch Act just Wednesday morning, saying that “nobody outside of the Beltway really cares.”
Much of the fault for that starts with President Donald Trump, who has led by (terrible) example when it comes to holding his associates and supporters (not to mention himself) to the same standard of “law and order” he demands from everyone else. But the fault is not his alone; it also lies at least partially with Congress, which has given far too much responsibility to the executive branch to check itself, assuming that political pressure would ensure fidelity to ethics laws. Meanwhile, the laws leave far too little in the way of accountability mechanisms for an executive branch that doesn’t care.
When a federal employee violates the Hatch Act, the consequences are usually administrative. For most federal employees, disputes over violations end up before the Merit Systems Protection Board — an independent agency Congress created after Watergate to provide a neutral arbiter in such cases. But the board currently lacks a quorum — because the Senate has not acted to confirm any of Trump’s nominees. Meanwhile, it has amassed a backlog of nearly 3000 cases. And the board does not even have jurisdiction over presidential appointees. When appointees violate these ethics rules, the most that the special counsel can do, as in Conway’s case, is recommend sanctions. It’s up to the president whether to implement them.
In addition to administrative penalties, there are also federal criminal statutes for especially egregious violations of ethics rules. Indeed, although it’s a common assertion that the Hatch Act doesn’t apply to the president and the vice president, that’s only true as to the civil provisions. Federal law makes it a crime for any federal officer or employee to “use his official authority for the purpose of interfering with, or affecting, the nomination or the election of any candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives.” The problem there, of course, is that federal criminal laws are enforced by the Department of Justice — run by an attorney general who answers directly to the president.
None of this is new. But what is new is the inefficacy of the political checks that used to incentivize presidents from both parties to prioritize compliance. As partisanship becomes increasingly polarizing, it has essentially supplanted the separation of powers as the central organizing theme of our government. And as a result, those checks have broken down. As Meadows’ comments make clear, it’s no longer a scandal to the president’s supporters when his administration openly flouts the rules; it’s just more “liberal tears.”
We can, of course, aspire to elect political leaders who prioritize compliance with ethics rules. But assuming that our future leaders will not all be angels, the more sustainable solution is to provide clearer mechanisms for enforcement of these rules outside of the executive branch. Among other things, Congress can — and should — make the punishments for violating these rules clearer, and it should give the Office of Special Counsel the power to enforce those punishments in court. Perhaps then, it won’t just be the president’s critics or the line employees who care about compliance with federal ethics laws.