Congressional Regulation of Conduct in Office.

Congress has very broad powers in regulating the conduct in office of officers and employees of the United States, and this authority extends to regulation of political activities. By an act passed in 1876, it prohibited “all executive officers or employees of the United States not appointed by the President, with the advice and consent of the Senate, . . . from requesting, giving to, or receiving from, any other officer or employee of the Government, any money or property or other thing of value for political purposes.”547 The validity of this measure having been sustained,548 the substance of it, with some elaborations, was incorporated in the Civil Service Act of 1883.549 The Lloyd-La Follette Act in 1912 began the process of protecting civil servants from unwarranted or abusive removal by codifying “just cause” standards previously embodied in presidential orders, defining “just causes” as those that would promote the “efficiency of the service.”550 Substantial changes in the civil service system were instituted by the Civil Service Reform Act of 1978, which abolished the Civil Service Commission and delegated its responsibilities, its management, and its administrative duties to the Office of Personnel Management and its review and protective functions to the Merit Systems Protection Board.551

Until 1993, § 9(a) of the Hatch Act552 prohibited any person in the executive branch, or any executive branch department or agency, except the President and the Vice President and certain “policy determining” officers, to “take an active part in political management or political campaigns,” although employees had been permitted to “express their opinions on all political subjects and candidates.” In United Public Workers v. Mitchell,553 these provisions were upheld as “reasonable” against objections based on the First, Fifth, Ninth, and Tenth Amendments. The Hatch Act Reform Amendments of 1993, however, substantially liberalized the rules for political activities during off-duty hours for most executive branch employees, subject to certain limitations on off-duty hours activities and express prohibitions against on-the-job partisan political activities.554

Footnotes

547
19 Stat. 143, 169 (1876). [Back to text]
548
Ex parte Curtis, 106 U.S. 371 (1882). Chief Justice Waite’s opinion extensively reviews early congressional legislation regulative of conduct in office. Id. at 372–73. [Back to text]
549
22 Stat. 403 (the Pendleton Act). On this law and subsequent enactments that created the civil service as a professional cadre of bureaucrats insulated from politics, see Developments in the Law: Public Employment, 97 HARV. L. REV. 1611, 1619–1676 (1984). [Back to text]
550
Act of Aug. 24, 1912, § 6, 37 Stat. 539, 555, codified as amended at 5 U.S.C. § 7513. The protection was circumscribed by the limited enforcement mechanisms under the Civil Service Commission, which were gradually strengthened. See Developments, supra, 97 HARV. L. REV., 1630–31. [Back to text]
551
92 Stat. 1111 (codified in scattered sections of titles 5, 10, 15, 28, 31, 38, 39, and 42 U.S.C.). For the long development, see, Developments, supra, 97 HARV. L. REV. at 1632–1650. [Back to text]
552
53 Stat. 1147, 1148 (1939), then 5 U.S.C. § 7324(a). The 1940 law, § 12(a), 54 Stat. 767–768, applied the same broad ban to employees of federally funded state and local agencies, but this provision was amended in 1974 to restrict state and local government employees in only one respect: running for public office in partisan elections. Act of Oct. 15, 1974, Pub. L. 93–443, § 401(a), 88 Stat. 1290, 5 U.S.C. § 1502. [Back to text]
553
330 U.S. 75 (1947). See also Civil Serv. Comm’n v. National Ass’n of Letter Carriers, 413 U.S. 548 (1973), in which the constitutional attack was renewed, in large part based on the Court’s expanding free speech jurisprudence, but the act was again sustained. A “little Hatch Act” of a state, applying to its employees, was sustained in Broadrick v. Oklahoma, 413 U.S. 601 (1973). [Back to text]
554
Pub. L. 103–94, § 2(a), 107 Stat. 1001 (1993), 5 U.S.C. §§ 73217326. Executive branch employees (except those appointed by the President, by and with the advice and consent of the Senate) who are listed in § 7323(b)(2), which generally include those employed by agencies involved in law enforcement or national security, remain under restrictions similar to the those in the old Hatch Act on taking an active part in political management or political campaigns. [Back to text]