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April 20, 2020
The Hatch Act: A Primer
The Hatch Act (the Act) is a federal law that regulates the
partisan political activities of most executive branch
employees as well as certain state and local employees. The
statute seeks to balance the government's interest in an
efficient and impartial workforce with employees' rights to
participate in the political process. This In Focus provides
an overview of the law, including its origins, its current
scope, and what activities are prohibited under the Act.
Congress has regulated the political activities of federal
executive branch employees since the passage of the
Pendleton Civil Service Act in 1883. The Pendleton Act,
which sought to create a merit-based federal workforce,
also established the Civil Service Commission (CSC)-a
predecessor to the modern-day Merit Systems Protection
Board (MSPB). In 1883, the CSC issued Rule 1, prohibiting
employees in the classified civil service from using their
authority or influence to coerce any other person or
interfere with an election. In 1907, Rule 1 was amended to
prohibit employees from taking an active part in political
management or campaigns.
In 1939, Congress passed An Act to Prevent Pernicious
Political Activities, more commonly known as the Hatch
Act. The Act codified Rule I's ban on active participation
in political management or political campaigns and
extended its coverage to include nearly all federal
employees, rather than just those in the classified civil
service. In 1940, the Act was extended to cover state and
local employees who work on federally financed projects.
As the civil service became more independent and merit-
based, Congress further altered the Act because the original
rationale for the statute no longer justified broad restrictions
on employee political activity. The Hatch Act Reform
Amendments of 1993 significantly amended the Act,
notably allowing most covered federal employees to engage
in off-duty political activity. The Act was most recently
amended through the Hatch Act Modernization Act of
2012. The amendments expanded the available penalties for
violations of the Act and allowed for covered state or local
employees to run for partisan elective office so long as the
federal government did not fund the entirety of their salary.
The Supreme Court has largely rejected facial constitutional
challenges to the statute. Twice-once in 1947 and once in
1973-the Court rejected First Amendment challenges to
the Act, employing a balancing test to hold that the Act's
restrictions were a reasonable means of ensuring integrity
and competency within the government workforce, relying
on the government's unique interests as an employer in
regulating the speech and conduct of its own employees.
And in 1947, the Court also rejected a Tenth Amendment
challenge to the statute's provisions on state and local
employees, holding that while Congress may not directly
regulate local political activities, it does have the power to
attach conditions on the funds it grants to states.
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In its current form, the Act generally regulates the political
activities of certain government employees. The statute and
corresponding regulations define what employees are
covered under the Act, what activities are permitted and
prohibited, and what entities have the authority to remedy
violations of the Act.
W, '°o s Coveted
The Act generally defines employee as any individual
employed or holding office in (A) an executive agency or
(B) a position within the competitive service that is not in
an executive agency. This definition broadly extends to
nearly all federal civilian executive branch employees,
including postal service employees. Legislative and judicial
branch employees who serve in positions specifically made
subject to civil service rules requiring open competition in
the application process are also covered under the Act.
Nonetheless, there are certain exceptions and limitations to
the Act's scope. The President, Vice President, members of
the uniformed services, and Government Accountability
Office employees are expressly excluded from coverage.
Also, because the definition includes only executive branch
employees, the Act does not apply to the judicial or
legislative branch, unless such employees are expressly
included in the competitive service. Employees of all three
branches, however, are still subject to various provisions of
federal law relating to political corruption or campaign
finance. Judicial and legislative branch employees also have
their own ethics codes that govern political activities.
The Act also extends to state or local officers or employees
whose principal employment is in connection with an
activity which is financed in whole or in par by the
federal government. This definition does not include
individuals employed by educational or research institutions
that a state or recognized religious, philanthropic, or
cultural organization supports. For example, school teachers
are not covered under the Act.
The Act expressly states that covered employees retain the
right to vote and express opinion[s] on political subjects
and candidates. Most federal employees may also actively
participate in partisan political activities (i.e., activities
directed toward the success or failure of a political party,
candidate for partisan political office, or partisan political
group) so long as the employee is not on duty or in the
workplace. For example, these employees-who are also
referred to as less restricted employees-may, while off
duty, campaign for or against candidates in partisan
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