What is the Hatch Act? Explaining the Kellyanne Conway dispute

The U.S. Office of Special Counsel issued a report on Thursday recommending that Kellyanne Conway, an aide to President Donald Trump who frequently defends him on television, be fired for “persistent, notorious and deliberate Hatch Act violations.”

The Trump administration gave no sign it would comply. The White House counsel, Pat A. Cipollone, shot back in a letter that the Office of Special Counsel’s conclusions about Conway were based on “numerous grave, legal, factual and procedural errors.”

Here is what you need to know to make sense of the dispute.

The Hatch Act prohibits federal employees from engaging in political activities while they are on the job. Named for former Sen. Carl A. Hatch, D-N.M., the law has been on the books for 80 years.

The act dates to Depression-era reforms intended to prevent machine politics in which patronage jobs were handed out to people who then used their positions to help keep their patrons in power. The act has been amended several times.

“It’s about equal treatment and keeping partisan activity out of the federal government,” said Kathleen Clark, a professor of law at Washington University in St. Louis and a government ethics lawyer.

It is an independent agency that enforces civil service laws that govern the federal workforce. The agency is currently led by Special Counsel Henry Kerner, whom Trump appointed in 2017.

Despite its similar name, the agency has nothing to do with the former Special Counsel’s Office headed by Robert Mueller, which investigated potential links between the Trump campaign and the Russian government during its covert operation to influence the 2016 presidential election.

Conway, who served as a top Trump campaign surrogate in the 2016 race, is not the first presidential appointee to face criticism for violating the Hatch Act.

In 2017, the Office of Special Counsel concluded that Dan Scavino Jr., the White House director of social media, violated the law when he called for the defeat of Rep. Justin Amash, R-Mich., on Twitter.

In 2012, Kathleen Sebelius, then the secretary of health and human services, apologized for partisan remarks she made in North Carolina to a gay rights group in which she promoted former President Barack Obama’s reelection — a violation of the law, according to the office.

Julián Castro, the secretary of housing and urban development under the Obama administration and a candidate for the 2020 Democratic nomination, avoided punishment for a 2016 Hatch Act violation stemming from his endorsement of Hillary Clinton.

Members of Obama’s Cabinet were later barred from speaking at the 2016 Democratic National Convention to avoid further violations.

The George W. Bush White House faced its own problems, with the Office of Special Counsel ruling that the Office of Political Affairs, which was overseen by Karl Rove, broke the law by coordinating appearances of Cabinet members at political rallies for Republican candidates during the 2006 midterm elections.

Jonathan Turley, a law professor at George Washington University who once taught Conway, said previous administrations had griped about the Hatch Act restrictions, but generally heeded the office’s findings.

“There is no question that there are violations of the Hatch Act by Kellyanne Conway,” he said. “There’s a difference. Rather than a record of compliance, this administration has a record of open defiance.”

In 2018, the office developed social media guidelines for government employees in the political arena, Clark said.

“One of the areas where it gets a little gray has to do with social media accounts,” Clark said, adding that Conway uses her personal Twitter account for official announcements.

“You have to segregate government activity from partisan political activity,” she said.

Legal experts seemed to agree that Conway’s Twitter feed didn’t distinguish between policy and politics.

“Kellyanne often brings up political candidates and refers to individuals in terms of their candidacy,” Turley said.

Turley said he wasn’t aware of any examples in modern politics of White House officials who were dismissed because of a violation. That would be up to the president to decide.

“This is very uncommon,” he said.