Kellyanne Conway versus the Law: What is the Hatch Act and Why Do We Have It?

Note: I have written four books and at least seven articles that have discussed or examined the Hatch Acts.

Kellyanne Conway serves in her official capacity as White House counselor to President Donald Trump. She  has been accused by the Office of Special Counsel of violating the Hatch Act and should be dismissed from office.  Most people have not heard of the Hatch Act, yet the Act, actually several Acts, are important federal public administration laws.  They are part of a cluster of federal laws and Supreme Court decisions going back 150 years seeking to limit the ability of the president or his staff from using federal office or resources for partisan
At the end of the nineteenth century public administration scholars such as future president Woodrow Wilson, Frank Goodnow, and other reformers sought to clean up the federal government which had become corrupted by the patronage or spoils system.  The spoils system gave the president to politicize the federal bureaucracy and use it for partisan and political gain. The argument of the reformers was that the administration of government should be separate from politics.  Public administrations should be guided by the public interest, not partisan politics, and no one should be allowed to use their position for personal or party interest.
This move to separate politics from administration and prevent the president from politicizing the federal government began in 1876 when Congress passed a law that prohibited all members of the Executive branch who had received Senate confirmation 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."  In Ex Parte Curtis, 106 U.S. 371 (1882) the Supreme Court upheld the Act.
Second,  the 1883 passage of the Pendleton Act  initiated the creation of the federal service.  This Act and its extensions placed the employment of most federal employees under a merit system that limited the ability of the president to make hiring and firing decisions based on partisanship.
Third in United States v. Wurzbach, 280 U.S. 397 (1929) the Court upheld a 1925 Corrupt Practices Act that made it illegal for officers and employees of the United States to promote their candidacy or reelection in a party primary.  Justice Holmes, writing for the Court, ruled that Congress could provide measures that would limit the political pressure that employees might face to contribute money if they were to retain employment.   In both the Curtis and Wurzbach cases, the First Amendment rights of workers could be limited in order to encourage political neutrality and abate potential political corruption.
Fourth, starting in 1939, Congress passed a variety of acts that sought to place limits upon the ability of the Roosevelt administration to use the federal bureaucracy for political/partisan purposes. The Act, bared employees and officers of the executive branch from taking any active part in political management or in political campaigns.  It also barred them, while on government time or in their official capacity, from using their office for partisan purposes.  “Partisan purposes” includes among other things, making endorsements for candidates, working for them, using government resources, or in a way, shape or form using public office, position, or resources for partisan purposes.  The Hatch Acts make clear which government agencies and officials are covered by the law, and it also  makes it generally clear the type of permitted and prohibited political activity.
The primary purpose of the Hatch Acts was to depoliticize the federal government so that no president, subordinate, or political party could use the government for partisan benefit.  Twice the US Supreme Court was asked to adjudicate the constitutionality of the Hatch Acts, and the laws were upheld as not a violation of the First Amendment.
First in United Public Workers v. Mitchell, 330 U.S. 75 (1947) and then again in United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548 (1973)  the Court upheld against First Amendment challenges  the political activity bans in the Hatch Act.
In Mitchell the Court stated that "the interference with free expression is seen in better proportion as compared with the requirements of orderly management of administrative personnel” (94)   For the Court, several factors contribute to the need to limit the political activity of workers in order to promote good administrative management.  First, it notes how if political activity of federal workers hurts the civil service, its damage is no less than if the activity occurs after work hours (95-6).  Second, the Court indicated how free speech rights had to be balanced against the needs to protect a democratic society against the evils of political partisanship in the federal service (95-6).  The Court, in citing public administration scholarship as authority (97), argued that there was a need to limit political activity in order to promote "political neutrality for public servants as a sound element for efficiency” (97). Elsewhere, the Court also noted how an "actively partisan governmental personnel threatens good administration” (98), hurts political neutrality and that, overall, partisan political activity is a threat to efficiency, political neutrality, and discipline.
United States Civil Service Commission v. National Association of Letter Carriers was also a challenge to Section 9 of the Hatch Act and again the Court upheld the Act.  The Court stated that "federal service should depend upon meritorious performance rather than political service, and that the political influence of  federal employees on others and the electoral process should be limited” (548)  The basis of this claim rested in the majority's recounting the 19th century reforms directed against spoils and in their agreement that "partisan political activities by federal employees must be limited if the Government is to operate effectively and fairly” (547)  Political neutralization is thus required by the First Amendment.
The Hatch Acts decisions stated that the political neutrality of federal employees was dictated by the First Amendment.  Taxpayers had a right not to have public officials use public resources for  partisan purposes. However, the Hatch Acts need also to be read in conjunction with five Supreme Court decisions that also sought to depoliticize the federal bureaucracy, promote political neutrality, and respect the First Amendment rights of taxpayers and employees.
The patronage decisions (Elrod v. Burns, 427 U.S. 347 (1976); Branti v. Finkel, 445 U.S. 507 (1979); Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990); Board of County Commissioners v. Umbehr, 518 U.S. 668 (1996); and O'Hare Truck Service Inc. v. City of Northgate, 518 U.S. 712 (1996)) placed limits upon the government using political affiliation as a factor in hiring, firing, and promotion decisions.  In these decisions the Court engaged in extensive debate concerning the merits of patronage with arguments over the supposed contributions that spoils had to the maintenance of democracy, political parties, public accountability, and administrative control.  These debates made significant reference to political science and public administration scholarship on these topics.  These debates were framed within the rhetoric of the neutral competence.  In all five of these decisions the Court finds that the consideration of partisan affiliation or party activity in the hiring, firing, promotion, or letting of contracts was a violation of the First Amendment.  It did so by declaring the use of partisanship or party preference is not a compelling governmental interest in employment decisions. In all of these decisions, the Court also appeals to the ideology of neutrality and neutral competence.
If one reads the patronage, Hatch Act, Wurzbach, and Curtis cases together, they demonstrate  a commitment to taking the partisan politics out of public administration and service.  These laws have been instrumental and important tools in abating government corruption and promoting neutral government.  If, as the Office of Special Counsel has shown, Kellyanne Conway has made repeated  partisan statements in her official government capacity, she has clearly violated the Hatch Acts, as well as nearly 150 years of growing norms to prevent this type of abuse of government position or authority.  Should Trump not dismiss her it would be yet another example of how his administration has simply disregarded the law and norms governing America, seeking to limit presidential power.

The Trump Presidency versus the Deep State

The Trump presidency is fraught with contradictions.  Among the most notable is the degree to which
the Steve Bannon war on the “deep administrative state” is at odds with a presidency aimed at making America great again.  To achieve that goal–whatever it means–it requires the Trump administration to take control of the political machinery of the state to secure policy goals, not seek to destroy it as Bannon and many Republicans aspire.
There is an old adage that the skills need to become president are different from those to be president. Presidential campaigns depend on media skills, crafting narratives and messages, and on fund raising among other things.  While some of these skills might also apply to being president, campaigning is different from governing.  Governance is more than words and rhetoric; it is formulating public policies and setting agendas.  It requires the coordination of multiple agencies and officials, working with Congress, proper use of discretion, implementation, and the oversight of programs.
Campaigning is easy, but governing is hard.  Fortunately there are careerists and a civil service in Washington that transcends presidents to maintain institutional knowledge about how to run things.  There are the 3,000 or so members of the Senior Executive Service–the most senior careerists who  run the major government agencies and programs.  There is the foreign policy establishment that generally directs the US national security and diplomatic functions of the country.   All of this is what makes the federal government work and gets things done.   It assures stability, consistency, competence.  This is the real  deep state–not the deep state of those conspiracists who still think there was a second shooter in Dallas in 1963 or who think there is a CIA coverup over area 51 in New Mexico.   Or the deep state of anti-Semites, racists, misogynists,  and homophobes who see CNN and the NY Times in a plot to oppress white Christian men.  Trump needs the real deep state–the administrative state– but he is at war with it.
Trump’s presidential campaign as an outsider was not atypical of many recent candidates.  He ran as the outsider, as someone who would “drain the swamp” of Washington.  Yet the Trump candidacy and now the Trump presidency went further.  It saw a virtue in no government knowledge or experience.  It naively believed that a bunch of real outsiders with no government experience could simply come in and get things done, such as building a Mexican wall, crushing Isis, imposing tariffs, forcing renegotiation of trade agreements, and demanding changes to health care.   To accomplish any of these tasks a president and his staff have to have a plane, and people who can execute it.  So far it does not appear Trump has either.  He is literally a man without a plan–except for one–to also destroy the current administrative state, if Steve Bannon is to be so understood.
The entire foundation of anything the Trump wants to do rests upon the deep or the administrative state.  Executive orders in part get their power from administrative law and regulations.  The ability to move on any of the issues that Trump says he cares about requires there to be a strong and viable administrative state.  Yet this is the very state Bannon wants to see wither away.  Take away the administrative state and Trump will be weak, ineffective president.  That appears where the Trump presidency is now.
The efforts to destabilize the government only weaken it.  The failure to get hi appointments named and confirmed weaken the state.   The failure to listen to those who know better or how to get things done weakens the state.  Trump may simply not realize that his tactics are at odds with policy views.  Or perhaps what Trump wants and what Bannon wants are two different things.  Trump may want to build, Bannon wants to destroy.
Back in the 1960s when people were still waiting for the revolution to occur political scientist Robert Dahl wrote a book called After the Revolution?  He pointed out that after the revolution someone would still have to pick up the garbage, make sure the streets are paved, that sewage goes down sewers, and that all the other functions that we cherish as part of civilization would go on.     Revolutions to improve the quality of life still require authority, structure, and organization, unless of course you are a complete anarchist and either don’t want that or think that a modern society can spontaneously govern and structure itself.  Maybe that is what Bannon thinks.  However the track record of complex systems simply self-ordering themselves in ways that are beneficial to all is not very good.  Free markets and capitalism are the most notable failures in that aspect.
The point here is that contrary to the simplistic view that the state is going to wither away and  allow Trump to be a strong and effective president, the two cannot stand together.  The Trump presidency is actually pursuing policies that will largely make it less effective and competent than many hoped or feared.  The contradictions of the Trump style of anti-governance doom his presidency, and perhaps setting it up to be crushed by the deep state that it resents but needs.