Posted by Richard Painter, guest-blogging: Responses to (Some) Comments http://volokh.com/archives/archive_2009_03_22-2009_03_28.shtml#1237826556
Here are my responses to some of the comments made thus far. If you believe I have not answered your question in the next 24 hours, please post it again or email me at [email protected]. Richard Painter First Amendment concerns with my proposal would be relevant for career government employees and indeed Hatch Act rules have been drafted to address concerns that courts have about excessively strict rules for career employees. I do not, however, intend my proposal to apply to career government employees or even to more junior (Schedule C) political appointees. Political appointees, unlike career employees, serve at the pleasure of the President. If their conduct and speech, whether official capacity or personal capacity, displeases the President or the President�s senior staff, political appointees are likely to be fired (try for example engaging in Democratic party political activity while working as a political appointee for a Republican administration, or vice versa, and see what happens!). The best way to implement the change I am suggesting would be for the President to voluntarily impose it. I circulated this proposal privately before the election and, for whatever reason, Senator McCain specifically said that if elected he would close down the Office of Political Affairs and send this work over to RNC where it belonged. The issue did not, however, get enough attention in the election and Senator Obama did not match this campaign promise of Senator McCain or even respond to it. I do not doubt, however, that President Obama could constitutionally require that his political appointees refrain from partisan political activity to the extent the President believes appropriate. For Congress to impose such a rule would raise some free speech issues, although the Hatch Act restrictions on most political activity by national security and intelligence officials have thus far remained intact. If these rules are constitutional, I do not see how the constitutional analysis would be different for Treasury officials and others who hand out bailout and stimulus funds, or for any other officials whose government function could be easily corrupted by constant access to political operatives and campaign contributors. Furthermore, at a minimum Congress should amend the Hatch Act to change the current rule which is more permissive for senior political appointees than for other government employees. The former can engage in political activity during normal working hours and on government property (including the White House). The latter cannot do so. If anything, it should be the other way around. At a minimum, the rule should be the same for everybody. Finally, I am not concerned about government officials knocking on doors or standing on street corners handing out leaflets, or going to campaign rallies. The problem is that this is not what they do. My concern is fundraisers and similar events where senior Administration officials speak in their �personal capacity� about official business. The people who pay to attend these events get preferential access to Executive Branch officials to discuss official business. Another consideration is how easy it should be for political operatives outside the government to get access to officials inside the government. There will undoubtedly be some contact, but how much is appropriate? One hypothetical in my book involves a state political party operative complaining at a purely political event to an OPA staff member that the local United States Attorney�s office is not diligent about prosecuting election fraud (read between the lines that what really worries the political party operative, a Democrat, is that not enough Republicans are being prosecuted for election fraud). If the allegation is true, the lax enforcement of election fraud laws is a matter of official business and official concern, but fact is that in my hypothetical the communication is made in a �personal capacity� political context. What then if the OPA official acts on this complaint in an official capacity or involves the Justice Department in taking official action? Assuming legal means are used to take official action on the matter, the Administration is within its rights and responsibilities in addressing the problem of election fraud. Nonetheless, the manner in which the matter originated � in a �personal capacity� political communication � would raise substantial questions of impropriety, even if there were in fact no impropriety. Perhaps this type of thing has never happened and would not happen in the future; but perhaps it could happen and a realist might even speculate that under current practice it is indeed likely to happen. Reduced political activity by White House staff and senior political appointees would make such a scenario less likely and would make public acceptance of official action more likely. Finally, nowhere do I suggest that political considerations be removed from official decisions. I also do not propose to go so far as to prohibit contact between White House officials and political party operatives, who should be treated like any other outside group such as labor unions, the chamber of commerce, etc., and these groups frequently get access to the White House. I do suggest that White House officials and other senior political appointees should not be working for these outside political operatives � mostly at fundraisers � in their �spare time� while pretending that they are not doing so on behalf of the White House or the Administration. As with many other problems in ethics, whether for government employees or private practice lawyers, these problems come up because somebody tries to wear two hats at the same time. Sometimes we have to regulate such conflicts of interest, but sometimes the best response is for the boss or the client � here the President � to simply say no.
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