The federal government issued new guidance this week informing federal employees that prohibited political activity and speech will now include anything related to impeachment and “the Resistance”, The Washington Post reported Friday.
Some ethics advocates fear this could constitute a step toward quashing dissent among federal government workers and could also face successful legal challenge.
The Office of Special Counsel is charged with enforcing the Hatch Act, which prohibits federal employees from engaging in political activity in the course of their work. The office, not to be confused with special counsel Robert S. Mueller III’s investigation, is run by Henry Kerner, whom President Trump nominated to the post.
The unsigned “Guidance Regarding Political Activity,” which was issued Tuesday, uses a question-and-answer format as it seeks to clarify the types of actions and rhetoric considered political activity, and therefore prohibited at work.
Among the types of speech limited by the guidance is advocating for or against impeachment of a candidate for federal office, citing the potential impact on future elections. The use of such terms as “resistance” and “#resist” will now be considered political activity as well.
But some government watchdogs said they feared the guidelines could have wide-ranging effects on the nearly 3 million federal employees in the United States, as well as state and local government employees who work with federally funded programs. The ethics nonprofit American Oversight said the guidance raised “significant concerns” in a letter it sent to the office on Thursday, urging it to withdraw the memo.
“OSC’s position on impeachment advocacy or opinions goes too far,” the group’s executive director, Austin Evers, wrote in the letter, adding that “certainly there is a difference between advocating that an official should (or should not) be elected and advocating that an official did (or did not) commit treason or high crimes and misdemeanors under the Constitution.”
In particular, Evers expressed concern that the guidelines could constrain whistle-blowers.
“As OSC knows well, it is critically important to ensure public employees are comfortable raising concerns about waste, fraud, or abuse in the government,” he wrote. “Impeachment is primarily a remedy for severe misconduct. If public employees are aware of conduct that could be impeachable but fear civil or criminal liability under the Hatch Act for saying so, they may be reluctant to approach OSA, inspectors general, or Congress.”
Some experts believe the guidance crosses into illegality and could be successfully challenged in court.
Nick Schwellenbach, the director of investigations at the Project on Government Oversight and an employee of the OSC from 2014 to 2017, said he felt the guidance likely crossed a legal line, saying the Hatch Act was meant to be narrowly focused on political activities around parties and candidates.
“The way OSC has traditionally balanced its enforcement of that statute with the First Amendment is [focused on] supporting a candidate or political party for election. I think once you start talking about more general political views, you’re starting to infringe upon people’s rights,” he said. “This one, I think, goes too far for them. It runs the risk of turning the OSC into an Orwellian enforcer inside the federal workforce.”
Schwellenbach said he believed the guidance could be successfully challenged in court on its constitutionality.