Posted by Richard Painter, guest-blogging: Defining Political Activity http://volokh.com/archives/archive_2009_03_22-2009_03_28.shtml#1237842286
There is no intent in my proposal to remove politics from the White House or from the Executive Branch. Good policy decisions must be politically informed decisions, or the policy will go nowhere (e.g. 1993 Clinton health plan). The President needs good political advisors. The question I present is whether these advisors and other political appointees ought to work only for the President as chief executive of the United States or also for the President as head of a political party. Should they wear one hat or two? The point about the email of Karl Rove and others is precisely the type of thing I am talking about. Wear two hats and have two email accounts, two Blackberries, two cell phones, two fax machines, two sets of lawyers etc. means you will have many problems. It does not matter how hard you try to keep the official and the political party work separate, One will always spill over into the other. Put away the political party gadgets and stick to official work, and life will be easier. The political party will be an outside constituency, and an important one, but you will not work for the political party as well as for the government. Defining appropriate and inappropriate political activity is not an easy task, but for purposes of this discussion we should look at some of the lines the law has already drawn. Nowhere, it should be noted, does the law seek to require that policy decisions in any agency � even agencies subject to the strictest Hatch Act regulations -- be devoid of intent to please political supporters of the President or his political party. It is the day-to-day interaction between federal employees and political parties and political candidates that is subject to regulation. For purposes of the Hatch Act rules, federal employees are divided into two categories, those subject to the general rules and those who are subject to stricter rules or who are �Hatched.� An important subset of the first category is employees of the Executive Office of the President and holders of Presidential appointed Senate confirmed positions in the agencies. This subset of the first category is permitted to engage in partisan political activity in government buildings and during normal working hours as well as after hours. The First category is subject to the following rules that apply to most federal employees: These employees may- �� be candidates for public office in nonpartisan elections �� register and vote as they choose �� assist in voter registration drives �� express opinions about candidates and issues �� contribute money to political organizations �� attend political fundraising functions �� attend and be active at political rallies and meetings �� join and be an active member of a political party or club �� sign nominating petitions �� campaign for or against referendum questions, constitutional amendments, municipal ordinances �� campaign for or against candidates in partisan elections �� make campaign speeches for candidates in partisan elections �� distribute campaign literature in partisan elections �� hold office in political clubs or parties These employees may not- �� use official authority or influence to interfere with an election �� solicit or discourage political activity of anyone with business before their agency �� solicit or receive political contributions (may be done in certain limited situations by federal labor or other employee organizations) �� be candidates for public office in partisan elections �� engage in political activity while: o on duty o in a government office o wearing an official uniform o using a government vehicle �� wear partisan political buttons on duty Employees of the following agencies (or agency components), or in the following categories, are subject to more extensive restrictions on their political activities than employees in other Departments and agencies: Administrative Law Judges (positions described at 5 U.S.C. ?5372) Central Imagery Office Central Intelligence Agency Contract Appeals Boards (positions described at 5 U.S.C. ?5372a) Criminal Division (Department of Justice) Defense Intelligence Agency Federal Bureau of Investigation Federal Elections Commission Merit Systems Protection Board National Security Agency National Security Council Office of Criminal Investigation (Internal Revenue Service) Office of Investigative Programs (Customs Service) Office of Law Enforcement (Bureau of Alcohol, Tobacco and Firearms) Office of Special Counsel Secret Service These employees may- �� register and vote as they choose �� assist in voter registration drives �� express opinions about candidates and issues �� participate in campaigns where none of the candidates represent a political party �� contribute money to political organizations or attend political fund raising functions �� attend political rallies and meetings �� join political clubs or parties �� sign nominating petitions �� campaign for or against referendum questions, constitutional amendments, municipal ordinances These employees may not- �� be candidates for public office in partisan elections �� campaign for or against a candidate or slate of candidates in partisan elections �� make campaign speeches �� collect contributions or sell tickets to political fund raising functions �� distribute campaign material in partisan elections �� organize or manage political rallies or meetings �� hold office in political clubs or parties �� circulate nominating petitions �� work to register voters for one party only �� wear political buttons at work This information is available at the Office of Special Counsel Web Site http://www.osc.gov/ha_fed.htm
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