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The Trump administration has announced a significant easing of certain provisions of the Hatch Act, which regulates political activities among federal employees. This change, unveiled on Friday, follows the rescindment of a prior advisory from the Office of Special Counsel that had been issued in May 2024 during the tenure of former Special Counsel Hampton Dellinger, who was removed from his position earlier this year.
One key adjustment permits federal employees to don campaign-related merchandise, provided such items do not support individuals currently running for office. This contrasts with Dellinger’s year-round ban on such attire, which reversed a previously more lenient policy that allowed campaign items post-Election Day.
The new advisory from the Office of Special Counsel (OSC) acknowledged concerns about potential First Amendment infringements arising from the previous regulations. “After observing the policy in action, OSC has concluded that the rule imposes excessive burdens on free speech and should therefore be abolished,” the advisory states.
Legal expert Stephanie Rapp-Tully noted that this policy shift allows federal employees to sport items like “Make America Great Again” hats. Interestingly, this could also extend to apparel supporting potential presidential candidates like Kamala Harris, indicating a broader interpretation of the law’s application. Rapp-Tully pointed out that historical items or memorabilia could lead to ambiguous legal interpretations regarding Hatch Act violations.
Additionally, the OSC has reverted to referring Hatch Act violations involving political appointees who are not Senate-confirmed directly to the president for disciplinary measures, as opposed to the Merit Systems Protection Board (MSPB), an independent body that may issue penalties. Dellinger had previously sought to address what he termed a “loophole” in accountability associated with the Hatch Act, arguing that this two-tiered system of accountability could lead to unequal enforcement.
Currently, the OSC expresses concerns over the MSPB’s jurisdiction pertaining to the discipline of White House officials, especially as the MSPB suffers from a lack of quorum following recent resignations and dismissals.
Moreover, the OSC has stated that it will cease pursuing disciplinary actions against former federal employees once they depart from service before a Hatch Act complaint is lodged. “OSC is engaged in litigation regarding this matter and will refrain from filing new complaints against ex-employees until there is clarity on jurisdiction,” the advisory details.
Hatch Act violations carry serious consequences, including removal from federal positions, disqualification from federal employment for up to five years, or civil fines reaching $1,000. Legal experts like Rapp-Tully emphasize that, despite these recent changes in enforcement, the Hatch Act is still a standing law, highlighting its ongoing relevance for federal employees.
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