August 2, 2013
In 2010’s Citizens United v. FEC, the Supreme Court held that the government’s interest in preventing corruption or the appearance of corruption in the electoral process was not sufficiently served by limitations on corporate spending in elections.
The ruling made the unusual move of overriding Congress’ legislative findings. Moreover, the majority stated that the appearance of improper influence “will not cause the electorate to lose faith in this democracy.”
Thus, it is apparent that the five justice majority was interested in extending First Amendment speech rights, despite any impact corruption might have on the electoral process.
One has to wonder what this same Supreme Court would think about the Hatch Act, which, among other things, forbids federal executive branch employees (aside from the president, vice president, and other high-ranking officials) from engaging in partisan political activity.
The Hatch Act, officially named “An Act to Prevent Pernicious Political Activities,” was signed into law on August 2, 1939, 74 years ago today.
The creation of the act was prompted by allegations of actual corruption on the part of executive branch employees.
Specifically, these allegations claimed that the Works Progress Administration (WPA), which was founded in 1935 as a Great Depression relief program, being used by certain Democrats for political advantage.
In the 1938 Kentucky primary, for example, WPA employees were found to have contributed $24,000 to the campaign of Democratic Senator Alben Barkley, with Democratic officials soliciting these funds directly from the WPA, supposedly under intimidation and coercion (i.e. WPA employees would lose their jobs if they failed to make these donations).
In Tennessee, Senator Thomas Stewart had also received sizeable donations from Federal civil service and relief employees, also supposedly under “intimidation” and “coercion.”
In addition to threats about political donations, WPA officials also ordered workers to change their registrations from Republican to Democratic, or risk termination.
After these incidents were revealed (as part of an investigation by the Senate Campaign Expenditures Committee), a Democratic senator from New Mexico, Carl Hatch, launched a rigorous personal campaign against such political corruption.
Hatch himself was not a political opponent of the New Deal, whom these acts of corruption were intended to remove from political office; since he strongly supported the New Deal, he was not personally threatened by the flagrant acts of corruption of the 1938 elections.
Instead, Hatch’s issue with these activities was that he simply detested political corruption. In short, he was an idealist.
Hatch drafted a bill that sought to prevent this kind of corruption; specifically, this bill prohibited the assessment or solicitation of funds from those receiving federal relief benefits, the denial of federal relief assistance due to political affiliation, the deprivation of employment (or threat thereof) of any person whose job was “provided for or made possible by any Act of Congress appropriating funds for work relief or relief purposes.”
The proposal received faced very little opposition initially, largely because most viewed it as a direct, limited response to the 1938 election scandal, which the public was already largely aware of and quite troubled over. The Senate unanimously approved the bill in April of 1939.
Opposition began to mount, however, once more became aware of a provision – Section 9 – nestled near the end of the bill.
This section barred officers and employees of the executive branch, or any agency or department thereof, from taking “any active part in political management or in political campaigns.”
President Roosevelt, fearing the bill, should it become law, would be used by his political opponents to “hit the President himself,” made some calls and had the bill stalled in the House Judiciary Committee.
When the House Committee finally reported the bill in late June, they had effectively gutted Section 9, much to Hatch’s dismay.
Hatch rewrote the bill with exceptions for the president, vice president, and other high-ranking executive branch officers, but opposition still persisted.
This opposition, though, was overwhelmed by support for the bill from conservative Democrats and Republicans in the House, who went further than Hatch’s original proposal and added a section that prohibited “any person employed in the executive branch of the Federal Government, or any agency or department thereof,” from using “his official authority or influence for the purpose of interfering with an election or affecting the result thereof.” The Hatch Act passed the House on July 20, 1939.
Although the prospects of the Senate consenting to the House amendments weren’t all that great, Hatch gave an emotional speech on the Senate floor, urging Senate concurrence. As a result, the Senate consented “without opposition” on July 21.
The bill then reached Roosevelt’s desk; in spite of serious reservations, Roosevelt signed the bill into law on August 2 – only after Roosevelt received a letter from Hatch assuring the president that it wouldn’t restrict any federal employees from engaging in voluntary political activities except for campaign speeches.
The Act was amended several times, notably in 1940, 1974, 1993, and most recently in December of 2012. Nevertheless, the core provisions of the act have remained intact.
Even though the current Supreme Court – which handed down the Citizens United decision – has never ruled on the constitutionality of the First Amendment restrictions found in the Act, the Court has nonetheless ruled on the Hatch Act’s constitutionality: in 1947’s United Public Workers v. Mitchell, and in 1973’s United States Civil Service Commission v. National Association of Letter Carriers.
In both cases, the Court upheld the validity of the Act.
The current Supreme Court may never hear a challenge to the Hatch Act; however, should such a challenge reach the Court – and the Court were to faithfully apply principles set forth in Citizens United – the Hatch Act seems unlikely to survive.
Should such a hypothetical scenario arise, one might beg the question: has the Court become more protective of the First Amendment, or simply more dismissive of political corruption?