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Calendar No. 508
112th Congress Report
2d Session SENATE 112-211
_______________________________________________________________________
HATCH ACT MODERNIZATION ACT OF 2012
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 2170
TO AMEND THE PROVISIONS OF TITLE 5, UNITED STATES CODE, WHICH ARE
COMMONLY REFERRED TO AS THE ``HATCH ACT'' TO ELIMINATE THE PROVISION
PREVENTING CERTAIN STATE AND LOCAL EMPLOYEES FROM SEEKING ELECTIVE
OFFICE, CLARIFY THE APPLICATION OF CERTAIN PROVISIONS TO THE DISTRICT
OF COLUMBIA, AND MODIFY THE PENALTIES WHICH MAY BE IMPOSED FOR CERTAIN
VIOLATIONS UNDER SUBCHAPTER III OF CHAPTER 73 OF THAT TITLE
September 13, 2012.--Ordered to be printed
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware SCOTT P. BROWN, Massachusetts
MARK L. PRYOR, Arkansas JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana RON JOHNSON, Wisconsin
CLAIRE McCASKILL, Missouri ROB PORTMAN, Ohio
JON TESTER, Montana RAND PAUL, Kentucky
MARK BEGICH, Alaska JERRY MORAN, Kansas
Michael L. Alexander, Staff Director
Beth M. Grossman, Deputy Staff Director and Chief Counsel
Lawrence B. Novey, Associate Staff Director and Chief Counsel for
Governmental Affairs
Elyse F. Greenwald, Professional Staff Member
Bryan G. Polisuk, Counsel, Subcommittee on Oversight of Government
Management,
the Federal Workforce, and the District of Columbia
Nicholas A. Rossi, Minority Staff Director
Mark B. LeDuc, Minority General Counsel
Richard H. Houghton, Minority Deputy General Counsel
Trina Driessnack Tyrer, Chief Clerk
Calendar No. 508
112th Congress Report
SENATE
2d Session 112-211
======================================================================
HATCH ACT MODERNIZATION ACT OF 2012
_______
September 13, 2012.--Ordered to be printed
_______
Mr. Lieberman, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany S. 2170]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 2170) to amend the
provisions of title 5, United States Code, which are commonly
referred to as the ``Hatch Act'' to eliminate the provision
preventing certain State and local employees from seeking
elective office, clarify the application of certain provisions
to the District of Columbia, and modify the penalties which may
be imposed for certain violations under subchapter III of
chapter 73 of that title, having considered the same, reports
favorably thereon with an amendment and an amendment to the
title and recommends that the bill, as amended, do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History..............................................7
IV. Section-by-Section Analysis......................................8
V. Estimated Cost of Legislation....................................9
VI. Evaluation of Regulatory Impact.................................10
VII. Changes in Existing Law.........................................10
I. Purpose and Summary
The Hatch Act prohibits certain federal, state, and local
government employees from running for partisan political office
and from engaging in certain other partisan political
activities.\1\ S. 2170, as reported by this Committee, will
update the Hatch Act by (1) removing the prohibition on certain
state and local employees running for partisan elective office
unless their salary is paid entirely from federal funding; (2)
providing more flexibility with respect to penalties that may
be imposed on federal employees for Hatch Act violations; (3)
applying to D.C. government employees the same Hatch Act
provisions that apply to state and local government employees;
and (4) giving federal employees who are residents of the
District of Columbia the same right to participate in municipal
political management and political campaigns that federal
employees residing in nearby areas of Maryland and Virginia now
have.
---------------------------------------------------------------------------
\1\The Hatch Act is codified at 5 U.S.C. Sec. Sec. 1501-1508
(applicable to state and local employees) and 5 U.S.C. Sec. Sec. 7321-
7326 (applicable to federal employees).
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II. Background and Need for Legislation
A. HISTORICAL DEVELOPMENT OF THE HATCH ACT
Federal employees have faced restrictions on their
political activities since the earliest days of the Republic.
The Jefferson Administration, for example, issued an order
stating--
[although it is the] right of any officer to give his
vote at elections as a qualified citizen . . . it is
expected that he will not attempt to influence the
votes of others nor take any part in the business of
electioneering, that being deemed inconsistent with the
spirit of the Constitution.\2\
\2\A Compilation of the Messages and Papers of the Presidents,
Volume 10, at 98-99 (1899).
---------------------------------------------------------------------------
In 1939, increased concerns about partisan political
activity of certain federal employees led Congress to pass what
has become known as the ``Hatch Act.''\3\ The legislation was
enacted in response to concerns that officials administering
certain New Deal relief programs might use their powers for
partisan ends, including by inducing political activities by
workers employed through the programs.\4\ As originally
enacted, the legislation restricted the political activities of
federal executive branch employees, but one year later, in
1940, Congress amended the law to also impose restrictions on
political activities of state and local government employees
who work ``in connection'' with federally funded activities.\5\
---------------------------------------------------------------------------
\3\Public Law No. 76-252 (Aug. 2, 1939) (commonly referred to as
the ``Hatch Act,'' after its sponsor, Senator Carl Hatch of New
Mexico).
\4\See S. Rep. No. 76-1 (1939); see, also, H.R. Rep. No. 103-16, at
7-13 (1993).
\5\Public Law No. 76-753 (1940), 54 Stat. 767, Sec. 4.
---------------------------------------------------------------------------
In 1974, Congress amended the Hatch Act to remove the
federal restriction on state and local employees actively
participating in political campaigns.\6\ Congress most recently
reformed the Hatch Act in 1993, allowing most federal employees
to engage in voluntary, partisan political activities as long
as those activities take place during their own free time, away
from their federal jobs, and off of federal premises.\7\
---------------------------------------------------------------------------
\6\Federal Election Campaign Act Amendments, Sec. 401, Public Law
93-443 (Oct. 15, 1974).
\7\Hatch Act Reform Amendments of 1993, Sec. 2, Public Law 103-94
(Oct. 6, 1993).
---------------------------------------------------------------------------
Under Hatch Act provisions now applicable to state and
local government employees,\8\ those whose employment is in
connection with activities receiving federal funding may not
use their official authority to influence an election or
nomination, may not pressure or advise another state or local
employee to make a political contribution, and generally may
not run for partisan elective office. The prohibition against
running for partisan office does not apply to state governors
and lieutenant governors, city mayors, certain other top state
and local officials, and others holding elective office. In
addition, employees of educational or research agencies and
institutions are exempt from all coverage under the Hatch Act.
---------------------------------------------------------------------------
\8\5 U.S.C. Sec. Sec. 1501-1508.
---------------------------------------------------------------------------
Other provisions of the Hatch Act\9\ apply to federal
employees in executive branch agencies (as well as to federal
employees in other branches holding positions designated as
being in the ``competitive service''), and also now apply to
employees in the government of the District of Columbia.
Employees covered by these provisions may not use their
official authority to influence or affect an election and may
not knowingly help in political fundraising, run for partisan
elective office, knowingly solicit or discourage political
activity by persons with certain business before the agency, or
engage in political activity on government time or using
government resources. Employees at certain listed agencies are
further forbidden to take any active part in political
management or political campaigns. Exceptions apply for the
President and Vice President and for certain other top
officials.
---------------------------------------------------------------------------
\9\5 U.S.C. Sec. Sec. 7321-7326.
---------------------------------------------------------------------------
The Special Counsel, who heads a small executive branch
agency entitled the Office of Special Counsel (OSC), is
responsible for investigating violations of the Hatch Act and
for bringing charges of violations before the Merit Systems
Protection Board (MSPB or the Board).\10\ A Hatch Act case is
then adjudicated before the MSPB, which decides whether a
violation occurred and, if so, determines the penalty.\11\
---------------------------------------------------------------------------
\10\5 U.S.C. Sec. Sec. 1216, 1504-1506, 7326.
\11\Id.
---------------------------------------------------------------------------
B. HATCH ACT PROVISIONS BEING UPDATED BY S. 2170
S. 2170 amends several provisions of the Hatch Act that the
Committee has concluded are out of date and need to be
modernized.
1. Candidacy for partisan political office by state and local employees
Carolyn Lerner, who, as Special Counsel and head of the
Office of Special Counsel is responsible for enforcement of the
Hatch Act, advised this Committee by letter\12\ and hearing
testimony\13\ that the Hatch Act provision enacted in 1940
forbidding certain state and local employees to run for
partisan office now covers too many employees and has become
confusing and inequitable, and she urged Congress to repeal it.
As discussed below, the Committee decided against complete
repeal, but instead decided to scale the prohibition back to
apply only to those state and local employees whose salary
comes completely from federal funding.
---------------------------------------------------------------------------
\12\Identical letters from Special Counsel Carolyn N. Lerner to
each of Chairman Lieberman and Ranking Member Collins, Committee on
Homeland Security and Governmental Affairs, and Chairman Akaka and
Ranking Member Johnson of its Subcommittee on Oversight of Government
Management, the Federal Workforce, and the District of Columbia (OGM),
October 6, 2011.
\13\Testimony of Special Counsel Carolyn N. Lerner at the hearing
entitled ``A Review of the Office of Special Counsel and Merit Systems
Protection Board'' before the OGM Subcommittee, 112th Congress, 2nd
Session, March 20, 2012 (``Senate hearing''). See also Testimony of
Special Counsel Carolyn N. Lerner at the hearing entitled: ``The Hatch
Act: Options for Reform'' before the United States House of
Representatives Committee on Oversight and Government Reform,
Subcommittee on the Federal Workforce, U.S. Postal Service and Labor
Policy, 112th Congress, 2nd Session, May 16, 2012 (``House hearing'').
---------------------------------------------------------------------------
The increase in the size and scope of federal funding of
state and local programs since 1940 has vastly expanded the
numbers and kinds of state and local employees forbidden by the
Hatch Act to run for partisan office. As Special Counsel Lerner
explained, hundreds of thousands of state and local employees
in every part of the country and in many occupations--law
enforcement officers, first responders, healthcare workers, and
many others--are now forbidden to run for partisan office.\14\
---------------------------------------------------------------------------
\14\Letter from Special Counsel Lerner, note 12 above; testimony of
Special Counsel Lerner at House hearing, note 12 above.
---------------------------------------------------------------------------
A number of recent examples illustrate that some state and
local employees covered by the Hatch Act have only a tenuous
connection to federal funds. For example, in 2011 a transit
police officer was forced to abandon his candidacy for a seat
on the local school board after OSC advised him that he was
covered by the Hatch Act because he was assisted by a police
dog partially financed by a Department of Homeland Security
grant.\15\ That same year, OSC concluded that a county District
Attorney had violated the Hatch Act when she had campaigned for
that position while employed as a first assistant district
attorney, the office having received a 2007 federal grant to
battle drug crimes and domestic violence.\16\ As a third
example, OSC recently advised a paramedic in South Carolina
that the Hatch Act prohibited him from running for the office
of county coroner while holding his current position, because
Medicaid funded the healthcare of some of the patients he
transported in his ambulance.\17\
---------------------------------------------------------------------------
\15\OSC Case No. HA-11-3066; see also Joan Hellyer, Arlen Drops Out
of the School Board Race, phillyburbs.com, July 27, 2011, available at:
http://www.phillyburbs.com/my_town/yardley/arlen-drops-out-of-school-
board-race/article_b8330b6a-44df-5c5c-8c54-b57333fe737b.html.
\16\OSC Case No. HA-10-2919; see also Jeremy Roebuck, Some Say
Hatch Act is too Vague, Want to see it Changed, The Inquirer, July 4,
2011, available at: http://articles.philly.com/2011-07-04/news/
29736213_1_hatch-act-election-law-federal-employees.
\17\OSC Case No. AD-11-0140. See written statement of Carolyn
Lerner, House Hearing, note 13 above.
---------------------------------------------------------------------------
Moreover, the Hatch Act injects the federal government in a
way that weakens state and local government by forbidding
otherwise qualified individuals from running and serving in
elected office. Special Counsel Lerner explained that the Hatch
Act has a particularly troubling effect on elections for
sheriff in some communities.\18\ Because of the great influx of
federal grant money to local police departments after the
terrorist attacks of September 11, 2001, OSC must frequently
advise deputy sheriffs that they may not run for sheriff. As
Lerner has stated, ``This is a disservice to local communities
because the most qualified candidates for law enforcement and
other positions are commonly disqualified from participating in
a local election.''\19\
---------------------------------------------------------------------------
\18\Written statement of Carolyn Lerner, House Hearing, note 13
above.
\19\Id.
---------------------------------------------------------------------------
Scaling back the prohibition on running for partisan
political office will not diminish OSC's ability to enforce the
Hatch Act in situations where state or local employees actually
misuse their authority or engage in coercive conduct for
political purposes. Under S. 2170, the Hatch Act will continue
to forbid state and local employees whose employment is ``in
connection with'' an activity supported by any federal funding
to use their official authority to affect an election or
nomination or to coerce or advise another state or local
employee to make a political contribution.
Furthermore, as the Special Counsel Lerner pointed out in
her October 6, 2011, letter, cutting back the prohibition on
state and local employees running for office will allow OSC to
focus more of its resources on these more serious matters.\20\
She reported that 45 percent of the Hatch Act Unit's cases and
the vast majority of the Hatch Act Unit's advisory opinions
involve state and local political campaign cases that lack any
allegation of coercive or abusive political conduct.\21\ S.
2170 will greatly reduce the amount of resources OSC must
divert to these matters that have little or no value for
reducing corruption.
---------------------------------------------------------------------------
\20\Letter from Special Counsel Lerner, note 12 above.
\21\Written statement of Carolyn Lerner, House Hearing, note 13
above.
---------------------------------------------------------------------------
In light of the limited connection of many state and local
employees' work to federal funding and the more targeted
prohibitions available under the Hatch Act for remedying any
political abuse associated with federal programs, the Committee
concludes that a broad federal restriction on these state and
local employees' ability to run for office, and on the
electorate's opportunity to decide whether to elect them, is
not justified.
2. Penalty provision for federal employees
In her October 6, 2011, letter to this Committee,\22\
Special Counsel Lerner also recommended that Congress rewrite
the Hatch Act's penalty provision for federal employees.
Current law requires that, if a federal employee is found to
have violated the Hatch Act, the employee must be removed from
office unless the MSPB unanimously finds that the violation
does not warrant termination, in which case the employee must
be suspended for at least 30 days without pay.\23\ According to
Special Counsel Lerner, this structure is overly restrictive,
can lead to unjust results, and, therefore, may actually deter
agencies from referring potential violations to OSC.\24\
---------------------------------------------------------------------------
\22\Letter from Special Counsel Lerner, note 12 above.
\23\5 U.S.C. Sec. 7326.
\24\Letter from Special Counsel Lerner, note 12 above.
---------------------------------------------------------------------------
Lerner recommended that Congress amend the Hatch Act
penalty provisions to mirror the range of penalties authorized
for other disciplinary actions under OSC's jurisdiction.\25\
Under that authority, depending on the severity of the
violation and other aggravating or mitigating factors, the MSPB
may select from a range of penalties consisting of removal,
reduction in grade, debarment from federal employment for a
period not to exceed five years, suspension, reprimand, or a
civil penalty not to exceed $1,000.\26\
---------------------------------------------------------------------------
\25\Id. (recommending the penalty provisions in 5 U.S.C. Sec. 1215
be adopted for Hatch Act cases).
\26\5 U.S.C. Sec. 1215(a)(3).
---------------------------------------------------------------------------
The Committee agrees that the Hatch Act's penalty provision
should be modified to allow the MSPB to impose a broader range
of penalties, and S. 2170 amends the Hatch Act to authorize the
same range of penalties authorized for other disciplinary
actions under OSC's jurisdiction. Further, the Committee
expects that, in selecting a penalty for a Hatch Act violation,
the Board will consider the severity of the violation and other
aggravating or mitigating factors, as the Board does with
respect to non-Hatch Act violations.
3. District of Columbia employees
In 1940 Congress placed employees of the government of the
District of Columbia under the same provisions of the Hatch Act
that governed federal employees rather than under the
provisions that governed state and local employees, at a time
when Congress exercised direct control over the District of
Columbia.\27\ However, the role of the D.C. government, and
therefore of its employees, has evolved significantly since
1940. A series of changes culminating in the landmark District
of Columbia Home Rule Act of 1973 have provided the District
the powers of local self-government\28\ and have made D.C.
government employees' relationship to the federal government
more like that of state and local employees than of federal
employees.
---------------------------------------------------------------------------
\27\Public Law No. 76-753 (1940) (codified at 5 U.S.C.
Sec. 7322(1)(C)).
\28\Public Law No. 93-198 (1973) (codified at D.C. Code Sec. 1-
201.01 et seq.).
---------------------------------------------------------------------------
Congress has previously recognized the need for the Hatch
Act to accommodate the unique nature of the D.C. government and
its employees. In 1940, at the same time that Congress placed
D.C. government employees under Hatch Act coverage, it exempted
``commissioners'' and ``the Recorder of Deeds of the District
of Columbia.''\29\ Moreover, one year after enacting the D.C.
Home Rule law in 1973, Congress amended the Hatch Act to exempt
the newly-created positions of Mayor of the District of
Columbia and members of the City Council.\30\ These exemptions
enacted in 1974 for certain D.C. officials are similar to those
that had previously been enacted\31\ for elected state and
local officials.
---------------------------------------------------------------------------
\29\Public Law No. 76-753 (1940) (codified at 5 U.S.C.
Sec. 7322(1)(C)).
\30\Public Law No. 93-268 (1974) (codified at 5 U.S.C.
Sec. 7322(1)(C)).
\31\Public Law No. 76-753 (1940) (codified at 5 U.S.C.
Sec. 1502(c)).
---------------------------------------------------------------------------
The Committee concludes that it is now time to more
precisely align the Hatch Act's mandates with the current
structure of the D.C. government. Accordingly, S. 2170 amends
the Hatch Act to remove employees of the District of Columbia
from coverage under the provisions that apply to federal
employees and place them under the provisions of the Hatch Act
that apply to state and local government employees.
4. Designated localities
Notwithstanding the general prohibition against federal
employees running for partisan elective office or engaging in
political fundraising, the Hatch Act authorizes the Office of
Personnel Management (OPM) to prescribe regulations allowing
federal employees to take an active part in political
management or in political campaigns involving the municipality
or political subdivision in which they reside under certain
circumstances.\32\ For OPM to authorize federal employees to
participate in local elections in this manner, either the
municipality or political subdivision must be in Maryland or
Virginia and in the immediate vicinity of the District of
Columbia, or a majority of the voters in the municipality must
be federal employees. OPM must also determine that, because of
special circumstances, it is in the interest of employees to
allow them to actively participate in local political
campaigns.
---------------------------------------------------------------------------
\32\5 U.S.C. Sec. 7325.
---------------------------------------------------------------------------
Soon after enactment of the District of Columbia Home Rule
Act of 1973, which enabled District residents to elect a local
mayor and city council,\33\ the Civil Service Commission--which
then exercised the authorities now vested in OPM--sought by
regulation to add the District to the list of localities in
which federal employees could participate in local
elections.\34\ However, after lengthy litigation, the U.S.
Court of Appeals for the District of Columbia invalidated the
Commission's efforts, since a majority of District voters are
not federal employees and the District of Columbia is not ``in
Maryland or Virginia in the immediately vicinity of the
District of Columbia.''\35\
---------------------------------------------------------------------------
\33\Public Law No. 93-198 (1973) (codified at D.C. Code Sec. 1-
201.01 et seq.).
\34\39 Fed. Reg. 18761 (1974); 42 Fed. Reg. 23160 (1977).
\35\Joseph v. Civil Service Commission, 554 F.2d 1140, 1144 (D.C.
Cir. 1977); Ward Three Democratic Committee v. United States, 609 F.2d
10, 12 (D.C. Cir. 1979).
---------------------------------------------------------------------------
The anomaly that federal employees may participate in local
elections if they live ``in the immediate vicinity of the
District of Columbia'' but not actually within D.C. itself was
not lost on the appeals court, which explained the situation
this way:
Admittedly the failure to include areas within the
District may well have been due to the fact that there
were no elective positions within the District
government in 1940 when the [Civil Service] Commission
was given its exemption authority. . . . [A]lthough a
court should interpret the meaning of statutory
language in light of the intent of its drafters, we
cannot rewrite the statute to compensate for unforeseen
circumstances. That power belongs to the legislature
alone.\36\
---------------------------------------------------------------------------
\36\Joseph v. Civil Service Commission, 554 F.2d at 1154-1155.
Recognizing that the District government now has a number
of partisan elective positions, this Committee has concluded
that the Hatch Act should be amended to grant federal employees
who reside in D.C. the same ability to run for local office and
otherwise to actively participate in local elections as federal
employees residing in nearby communities in Virginia and
Maryland.
III. Legislative History
In the 111th Congress, this Committee considered H.R. 1345,
which would have amended the Hatch Act to apply to D.C.
government employees the same provisions of the Hatch Act that
govern state and local employees rather than those governing
federal employees. H.R. 1345 had passed the House of
Representatives on September 8, 2009, by voice vote, and this
Committee approved H.R. 1345 by voice vote and on September 28,
2010, favorably reported the bill. However, the 111th Congress
ended without the Senate having considered the bill further.
In this 112th Congress, on March 7, 2012, Senator Akaka
introduced S. 2170, which was cosponsored by Senators
Lieberman, Levin, and Lee, and was referred to the Committee on
Homeland Security and Governmental Affairs and further referred
to the OGM Subcommittee. On March 22, 2012, the OGM
Subcommittee polled the bill out favorably, and at a business
meeting on April 25, 2012, the Committee considered the bill.
During the business meeting, Senator Collins expressed concern
about the provision in S. 2170, as introduced, that would have
completely repealed the prohibition on state and local
employees running for partisan elective office, and the
Committee agreed to hold over the bill to the next markup to
enable the Senators to address that concern.
The Committee again considered the bill at a business
meeting held on June 27 and continued on June 29, 2012. Senator
Akaka offered an amendment in the nature of a substitute on
behalf of himself and Senator Lieberman. Rather than repealing
the Hatch Act provision forbidding certain state and local
employees to run for partisan office as the original bill had
done, the amendment limited the prohibition to those state and
local employees whose salary comes entirely from federal
funding. The amendment also added a provision enabling federal
employees who reside in the District to be allowed to run for
local elective office and made technical changes to the
legislation. The Committee agreed to the substitute amendment
and ordered the bill reported favorably, as amended, en bloc by
a voice vote. Members present were: Lieberman, Levin, Akaka,
Carper, Pryor, Landrieu, Tester, Begich, Collins, Brown,
McCain, Johnson, Portman, and Moran.
IV. Section-by-Section Analysis
Section 1. Short title
The short title of this bill is the ``Hatch Act
Modernization Act of 2012.''
Section 2. Permitting state and local employees to be candidates for
elective office
Section 2 of the bill amends 5 U.S.C. Sec. 1502(a)(3) to
scale back the provision forbidding state or local employees
employed in connection with a federally supported activity to
run for partisan elective office. Such state or local employees
will be allowed to run for elective office unless the
employee's salary is paid completely, directly or indirectly,
by loans or grants made by the United States or a federal
agency.
Section 3. Applicability of provisions relating to state and local
employees
Section 3 amends several provisions of the Hatch Act to
subject employees of the government of the District of Columbia
to the same restrictions on partisan political activity that
currently apply under the Hatch Act to state and local
government employees.
Subsection (a) amends 5 U.S.C. Sec. 1501(2) to add the
executive branch of the District of Columbia, or an agency or
department of the District of Columbia, to the definition of a
``state or local agency.''
Subsection (b) amends 5 U.S.C. Sec. 1501(4) to exempt
individuals employed by an educational or research institution,
establishment, agency, or system supported in whole or in part
by the District of Columbia from the Hatch Act. The Hatch Act
now provides such an exemption for similarly-situated employees
of state and local governments.
Subsection (c) amends 5 U.S.C. Sec. 1502(c)(3) to exclude
the duly elected head of an executive department of the
District of Columbia who is not classified under an applicable
merit or civil-service system from the prohibition against
running for elective office. The Hatch Act now provides such an
exclusion for similarly-situated executive-department heads in
state and local governments.
Subsection (d) amends 5 U.S.C. Sec. 1506(a)(2) to require
the MSPB to issue an order to withhold federal funds from an
agency of the District of Columbia if the Board finds that an
employee ordered removed for violating the Hatch Act has been
reappointed in the District of Columbia within 18 months. The
Hatch Act now provides such a requirement for state and local
agencies under similar circumstances.
Subsection (e) amends 5 U.S.C. Sec. 7322(1) to remove
individuals employed or holding office in the government of the
District of Columbia from provisions of the Hatch Act
applicable to federal employees.
Subsection (f) amends 5 U.S.C. Sec. 7325(1) to provide
federal employees living in the District of Columbia the same
permission to participate in local politics that the Hatch Act
now provides to those living in nearby areas of Maryland or
Virginia. The statute now authorizes OPM to prescribe
regulations to permit federal employees who live in Maryland or
Virginia in the immediate vicinity of the District of Columbia
to take an active part in political management and political
campaigns in the municipality or political subdivision where
they live. Subsection (f) authorizes OPM to grant the same
rights to federal employees who reside in the District.
Section 4. Hatch Act penalties for federal employees
Section 4 of the bill strikes and replaces 5 U.S.C.
Sec. 7326, which provides the penalty for federal employees who
violate the Hatch Act. The statute now requires that a federal
employee who violates the Hatch Act must be removed from
office, unless the MSPB unanimously finds that the violation
does not warrant removal, in which case the Board must impose a
penalty of no less than 30 days' suspension without pay. Under
the bill, a federal employee who violates the Hatch Act will be
subject to removal, reduction in grade, debarment from federal
employment for a period not to exceed five years, suspension,
reprimand, or an assessment of a civil penalty not to exceed
$1,000.
Section 5. Effective date
Subsection (a) provides that this legislation will take
effect 30 days after the date of enactment.
Subsection (b) provides that the new penalty provisions for
federal employees shall apply to any violation occurring
before, on, or after the effective date of the Act unless,
before the effective date, either (1) the OSC has presented a
complaint for disciplinary action pursuant to 5 U.S.C.
Sec. 1215 with respect to the alleged violation, or (2) the
federal employee alleged to have violated the Hatch Act has
entered into a signed settlement agreement with the OSC with
respect to the alleged violation.
V. Cost of the Legislation
July 11, 2012.
Hon. Joseph I. Lieberman,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 2170, the Hatch Act
Modernization Act of 2012.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
S. 2170--Hatch Act Modernization Act of 2012
S. 2170 would amend the Hatch Act, which covers the
political activities of public employees. The legislation would
remove some restrictions on the political activities of most
District of Columbia government employees and many other state
and local officials. In addition, S. 2170 would establish civil
penalties for federal employees that violate the Hatch Act.
Under current law, state and local government employees are
prohibited from running for a partisan political office if
their employment relates to an activity at least partly
financed with federal funds. Under S. 2170, many state and
local employees, including those from the District of Columbia,
could run for partisan office. Based on information from the
Office of Special Counsel, CBO estimates that implementing
those provisions would have no significant impact on the
federal budget.
Because enacting S. 2170 could increase revenues from civil
fines that could be imposed on federal employees who violate
the Hatch Act, pay-as-you-go procedures apply. However, CBO
expects that any additional revenues collected would not be
significant in any year. Enacting the bill would not affect
direct spending.
S. 2170 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Matthew
Pickford. The estimate was approved by Peter H. Fontaine,
Assistant Director for Budget Analysis.
VI. Evaluation of Regulatory Impact
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill. The Committee
agrees with the Congressional Budget Office (CBO), which states
that there are no intergovernmental or private-sector mandates
as defined in the Unfunded Mandates Reform Act and no costs on
State, local, or tribal governments. The legislation contains
no other regulatory impact.
VII. Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic and existing law, in which no
change is proposed, is shown in roman):
TITLE 5, UNITED STATES CODE: GOVERNMENT ORGANIZATION AND EMPLOYEES
PART II--CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES
CHAPTER 15--POLITICAL ACTIVITY OF CERTAIN STATE AND LOCAL EMPLOYEES
SEC. 1501. DEFINITIONS.
For the purpose of this chapter--
* * * * * * *
(2) ``State or local agency'' means the executive
branch of a State, municipality, or other political
subdivision of a State, or an agency or department
thereof, or the executive branch of the District of
Columbia, or an agency or department thereof;
* * * * * * *
(4) ``State or local officer or employee'' means an
individual employed by a State or local agency whose
principal employment is in connection with an activity
which is financed in whole or in part by loans or
grants made by the United States or a Federal agency,
but does not include--
(A) an individual who exercises no functions
in connection with that activity; or
[(B) an individual employed by an educational
or research institution, establishment, agency,
or system which is supported in whole or in
part by a State or political subdivision
thereof, or by a recognized religious,
philanthropic, or cultural organization]
(B) an individual employed by an educational
or research institution, establishment, agency,
or system which is supported in whole or in
part by--
(i) a State or political subdivision
thereof;
(ii) the District of Columbia; or
(iii) a recognized religious,
philanthropic, or cultural
organization.
SEC. 1502. INFLUENCING ELECTIONS; TAKING PART IN POLITICAL CAMPAIGNS;
PROHIBITIONS; EXCEPTIONS.
(a) A State or local officer may not--
* * * * * * *
(3) [be a candidate for elective office] if the
salary of the employee is paid completely, directly or
indirectly, by loans or grants made by the United
States or a Federal agency, be a candidate for elective
office.
* * * * * * *
(c) Subsection (a)(3) of this section does not apply to--
(1) the Governor or Lieutenant Governor of a State or
an individual authorized by law to act as Governor;
(2) the mayor of a city;
(3) a duly elected head of an executive department of
a State [or municipality], municipality, or the
District of Columbia who is not classified under a
State [or municipal], municipal, or the District of
Columbia merit or civil-service system; or
(4) an individual holding elective office.
SEC. 1506. ORDERS; WITHOLDING LOANS OR GRANTS; LIMITATIONS
(a) When the Merit Systems Protection Board finds--
(1) that a State or local officer or employee has not
been removed from his office or employment within 30
days after notice of a determination by the Board that
he has violated section 1502 of this title and that the
violation warrants removal; or
(2) that the State or local officer or employee has
been removed and has been appointed within 18 months
after his removal to an office or employment in the
same State (or in the case of the District of Columbia,
in the District of Columbia) in a State or local agency
which does not receive loans or grants from a Federal
agency;
the Board shall make and certify to the appropriate Federal
agency an order requiring that agency to withhold from its
loans or grants to the State or local agency to which notice
was given an amount equal to 2 years' pay at the rate the
officer or employee was receiving at the time of the violation.
When the State or local agency to which appointment within 18
months after removal has been made is one that receives loans
or grants from a Federal agency, the Board order shall direct
that the withholding be made from that State or local agency.
* * * * * * *
PART III--EMPLOYEES
CHAPTER 73--SUITABILITY, SECURITY, AND CONDUCT
Subchapter II--Political Activities
SEC. 7322. DEFINITIONS.
For the purpose of this subchapter--
(1) ``employee'' means any individual, other than the
President and the Vice President, employed or holding
office in--
(A) an Executive agency other than the
Government Accountability Office; or
(B) a position within the competitive service
which is not in an Executive agency; [or]
[(C) the government of the District of
Columbia, other than the Mayor or a member of
the City Council or the Recorder of Deeds;]
but does not include a member of the uniformed
[services;] services or an individual employed or
holding office in the government of the District of
Columbia;
SEC. 7325. POLITICAL ACTIVITY PERMITTED; EMPLOYEES RESIDING IN CERTAIN
MUNICIPALITIES.
The Office of Personnel Management may prescribe
regulations permitting employees, without regard to the
prohibitions in paragraphs (2) and (3) of section 7323(a) and
paragraph (2) of section 7323(b) of this title, to take an
active part in political management and political campaigns
involving the municipality or other political subdivision in
which they reside, to the extent the Office considers it to be
in their domestic interest, when--
[(1) the municipality or political subdivision is in
Maryland or Virginia and in the immediate vicinity of
the District of Columbia, or is a municipality in which
the majority of voters are employed by the Government
of the United States; and]
(1) the municipality or political subdivision is--
(A) the District of Columbia;
(B) in Maryland or Virginia and in the
immediate vicinity of the District of Columbia;
or
(C) a municipality in which the majority of
voters are employed by the Government of the
United States; and
* * * * * * *
[SEC. 7326. POLITICAL ACTIVITY PERMITTED; EMPLOYEES RESIDING IN CERTAIN
MUNICIPALITIES.
[An employee or individual who violates section 7323 or
7324 of this title shall be removed from his position, and
funds appropriated for the position from which removed
thereafter may not be sued to pay the employee or individual.
However, if the Merit System Protection Board finds by
unanimous vote that the violation does not warrant removal, a
penalty of not less than 30 days' suspension without pay shall
be imposed by direction of the Board.]
SEC. 7326. PENALTIES.
An employee or individual who violates section 7323 or 7324
shall be subject to removal, reduction in grade, debarment from
Federal employment for a period not to exceed 5 years,
suspension, reprimand, or an assessment of a civil penalty not
to exceed $1,000.
