While running for president, then-Senator Obama promised to clean up Washington with “the most sweeping ethics reform in history.” He papered up that promise pretty well, too, imposing tough ethics rules on his first day in office. Like any compliance program, however, the devil is in the follow-through, and when it comes to political ethics, the administration seems to have fallen way short of its early lofty rhetoric.
After President Obama decried the U.S. Supreme Court’s Citizens United decision in 2010 as opening “the floodgates for … foreign corporations to spend without limit in our elections,” multiple reports in recent weeks indicate that his campaign accepted illegal foreign contributions, or at least has been willfully blind to the origin of its donations.
After the president repeatedly promised the most transparent administration in history, including full disclosure of all visitors to the White House, White House staffers simply set up shop at Caribou Coffee across the street for meetings with lobbyists or anyone else they did not want to appear in the White House visitor logs.
And when it comes to the Hatch Act, which forbids federal employees from using their “official authority or influence for the purpose of interfering with or affecting the result of an election” and from engaging in political activity where the associated costs are paid for with funds “derived from the Treasury of the United States,” there have been at least four significant violations by high-level administration officials, none of whom has been punished for their transgressions.
In late 2009 or early 2010, former White House Chief of Staff Rahm Emanuel attempted to interfere in Pennsylvania’s Democratic Senate primary directly, by dispatching former President Bill Clinton to offer Joe Sestak a position in the administration if he would agree to drop out of the primary and cede the election to then-Senator Arlen Specter. The White House at first dismissed questions about this extraordinary interference with the electoral choices for voters in its own party, and when that did not tamp down the growing scandal, it released a legal memorandum by the White House counsel, who concluded that there was no wrongdoing because “the Democratic party leadership had a legitimate interest in averting a divisive primary fight.”
In fact, the White House counsel’s post-hoc analysis proved the violation of the Hatch Act. It is a quintessential Hatch Act violation for the chief of staff to use his official authority by generating a job offer to entice a candidate to drop out of an election in order to advance the prospects of his political party. Emanuel was not working in the White House to serve the “legitimate” interests of the “Democratic party leadership,” but to serve the interests of you and me and our fellow citizens.
The Sestak scandal eventually blew over with minimal damage to the administration. The press moved on, the 2010 election cycle passed and the Office of Special Counsel, which is charged with enforcing the Hatch Act, apparently never pursued an investigation.
The election cycles featuring a presidential election campaign always raise issues of Hatch Act compliance throughout the federal government, because of the heightened interest and, especially during a presidential re-election campaign, the unavoidable blurring of politics and policy.
Accordingly, an incumbent president deserves some latitude in any scrutiny of whether his activities are “official” or “political.” To some degree, everything is political during a re-election campaign. Precisely for this reason, however, it is incumbent upon the president and his staff to be vigilant in adhering to standards for the allocation of costs between official and political business. Unfortunately, the White House has fallen short here as well.
One notable example is an “official,” taxpayer-funded event the president held in Scranton last November. Billed as a “jobs speech,” the event resembled a political rally in every way, including, most importantly, the president’s remarks.
Speaking before an enthusiastic crowd that applauded for the president and booed at references to his political opposition, the president supplemented his remarks promoting the jobs bill with a laundry list of accomplishments, including student loan reform, mortgage relief, veterans job preferences and tax relief — “We have cut taxes for small businesses not once, not twice, but 17 times,” he said — and with criticisms of Republicans opposing the jobs bill and other administration initiatives.
What’s more, the trip to Scranton represented a detour into an electoral battleground state (one which the president has visited as much as almost any other during his term) during a political trip to New York City, where the president attended three fundraisers that same evening. Obviously, the nature, timing and location of the rally at Scranton High School raise substantial questions as to its origin, its purpose and, ultimately, whether the taxpayers or the Obama campaign should have picked up the tab. The president is exempt from the Hatch Act, but he cannot spend public money on his re-election campaign.
The administration’s persistent disregard of the Hatch Act is not confined to the White House. In February, Health and Human Services Secretary Kathleen Sebelius, during an official appearance at the Human Rights Campaign’s gala in Charlotte, N.C., went off script to exhort the crowd that “it’s hugely important to make sure that we re-elect the president and elect a Democratic governor here in North Carolina.”
Following media inquiries about her obvious encroachment into partisan political advocacy at an official event, Sebelius took steps to have the Obama campaign and/or the Democratic National Committee reimburse the Treasury for her travel expenses. While reclassifying the expenses was a positive step, she could not unring the bell of using the platform of an official appearance to engage in political activity. Investigating a complaint about her speech in Charlotte, the Office of Special Counsel determined that Sebelius violated the Hatch Act and, pursuant to the statute, referred it to the president to take “appropriate action.”
Appropriate action for any other federal employee who violates the Hatch Act is, presumptively, termination from employment. It does not appear, however, that Obama is going to take any action against Sebelius for violating the law.
When asked about the matter shortly after it was referred from the Office of Special Counsel, White House Press Secretary Jay Carney strongly indicated that nothing would be done. He said, “I think it’s safe to assume that action has been taken by the secretary and department to remedy what was the result of an inadvertent error based on extemporaneous remarks.” I suppose if the president loses his bid for re-election, he might take appropriate action by terminating her government employment as of January 20, 2013.
At the outset of the 2008 election cycle, the White House counsel conducted training on the Hatch Act for the entire White House staff, and urged all federal agencies likewise to conduct training for their employees. This training was repeated at the outset of the general election campaign in the summer of 2008.
One has to wonder if there has been any similar training in the current administration, as yet another violation of the Hatch Act occurred in recent weeks, when Interior Secretary Ken Salazar was identified by his official title at a rally sponsored by the Montrose County, Colo., Democratic Party. This may have been inadvertent, but it is a violation of the Hatch Act — punishable for other federal employees by the loss of their employment — nevertheless.
A cabinet secretary is permitted to engage in political activity while on duty, but may not use his or her official title when doing so. While perhaps a minor violation — anyone drawn to the rally by Salazar’s attendance presumably already knows he is secretary of the interior — it reflects a carelessness and cavalier attitude to the law. Simple vetting of the local party’s announcement would have prevented it from occurring.
The Hatch Act is wielded as a political weapon by the party out of power so often that people tend to forget its importance or dismiss violations as mere “business as usual.” But this is an important law designed to keep partisan politics — and pressure — out of the federal workplace, and to avoid the use of taxpayer money for partisan political goals.
Consider the messages the administration has sent by its serial violations of the Hatch Act: government jobs exist to advance the interests of the party, not the public; cabinet secretaries and chiefs of staff are above the law, but line employees are not; “official” trips, funded by taxpayers, can be used as campaign rallies. These sentiments are exactly what the Hatch Act was passed in 1939 to combat, and precisely the opposite of what the “most sweeping ethics reform” in history was supposed to represent. •
Scott A. Coffina is a former associate counsel to President George W. Bush, and a former assistant United States attorney. He currently is a partner at Drinker, Biddle & Reath, in Philadelphia and Washington, D.C.