Posted by Richard Painter, guest-blogging: Refroming The White House Office of Political Affairs http://volokh.com/archives/archive_2009_03_22-2009_03_28.shtml#1237783806
My first post concerns appropriate boundaries of political activity by the White House staff and by senior political appointees in the Administration. Political campaigning by Administration officials is ostensibly conducted in a �personal capacity� without use of official title because such is what the Hatch Act requires. For all practical purposes, however, this activity is conducted on behalf of the President, and often because it was specifically requested by the White House Office of Political Affairs (OPA). This political activity creates conflicts of interest for government officials and gives campaign contributors an unwarranted access to key decision makers. I have proposed in my book (Chapter 10) that such political activity by senior Executive Branch officials be sharply curtailed. Apparently, however, the President is sticking with the status quo. He has decided to retain the White House OPA. OPA was for much of the George W. Bush Administration run by Karl Rove. Under President Obama, OPA has been taken over by Patrick Gaspard, a union advisor from New York. This is the Office that has in the past encouraged political appointees across the Executive Branch to moonlight for the President�s political party by, for example, speaking at campaign fundraisers or at political events in a congressional candidate�s district. The first problem with this political work is its legality. The Hatch Act prohibits government officials from engaging in political activity using official titles or at government expense. Most government officials may not participate in political activity while on government property or during working hours. An exception in the Hatch Act regulations, however, allows senior political appointees to do so provided they do not use their official titles or incur additional expense for the government. This exception permits some people to do both official and political work in the same office, provided they purport to distinguish between the two. Numerous gadgets--BlackBerries, cell phones, computers � are thus provided by the DNC or RNC (depending upon which party controls the White House) to OPA staff and some other Administration officials. Calls coming from White House officials on DNC cell phones and emails sent on DNC BlackBerries are, legally, not coming from the White House at all. They are merely �personal capacity� communications by persons who happen to be White House staff. These distinctions are more theoretical than real. When OPA staff members make phone calls or send email, everyone knows where they work. When they speak at campaign events, everyone knows who they are. The same is true when other White House staff members and political appointees from the agencies are recruited by OPA to work for political campaigns. Calling this partisan political activity �personal� rather than �official� is a legal fiction. The second problem is conflict of commitment. There is no way of knowing how much time is spent on politics instead of official duties because time records for senior political employees are not required. Presumably, records of reimbursements they receive from campaigns for travel expenses are filed with the FEC, but this information is difficult for the public to obtain. Little is known, for example, about how many trips are taken by OPA staff and who pays for them. The third and most serious problem is conflict of interest. Many contacts made in partisan politics are with fundraisers and donors. The Hatch Act allows government employees to speak at fundraisers provided they do not explicitly ask for money (another legal distinction with little grounding in reality). White House staff and other Administration officials are highly sought-after speakers because they fill the room with people who pay. These people usually want something in return. Lobbyists are among the most frequent attendees (some fundraisers are hosted by lobbyists). Corporations and other organizations that want a share of government economic stimulus money or a government bailout package know they had better attend fundraisers. Government officials learn at these events what contributors want. The contributors also expect to get what they want and sometimes do. Concurrent political and official roles thus put government officials in an untenable position. Critics often blame OPA staff members for the resulting problems and claim things would be better if another political party controlled the White House. These problems, however, are inevitable. Retaining the White House OPA can work for the Obama Administration, but ethical quagmire will be inevitable unless the role of OPA changes. OPA should stick to providing the President with official capacity advice about the political strengths and weaknesses of the President�s policy proposals. OPA Staff, along with other White House staff should not personally participate in partisan politics. Hatch Act regulations already bar some Administration officials, for example those in national security related work, from most political activity. Similar restrictions should apply to political appointees in all or most other parts of the Administration � particularly anyone involved in handing out economic stimulus or corporate bailout money that will cost taxpayers trillions of dollars. The Administration should be served by officials with undivided loyalties to the government and the Country it serves. Richard Painter
_______________________________________________ Volokh mailing list [email protected] http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
