Laws are only as good as their execution. That’s why the Office of Special Counsel recommended Thursday that White House adviser Kellyanne Conway be removed from her position for “egregious, notorious, and ongoing” violations of the Hatch Act, a law that specifically prohibits federal employees from advocating for or against a political candidate.
Generally, the Hatch Act forbids federal employees from engaging in political advocacy of any kind. But the applicable scenarios are vague and the revisions too frequent, rendering enforcement inconsistent and weak.
Special Counsel Henry Kerner, a Trump appointee, wants to change that.
The OSC — an independent agency tasked with enforcing the Hatch Act — described Conway as a “repeat offender “ of the law, naming several examples: Conway used her position to openly advocate for disgraced Alabama Senate candidate Roy Moore in 2018 and has since disparaged several Democratic presidential candidates during television interviews and on social media.
“Ms. Conway’s violations, if left unpunished, would send a message to all federal employees that they need not abide by the Hatch Act’s restrictions. Her actions thus erode the principal foundation of our democratic system — the rule of law,” Kerner wrote in a letter to Trump.
To understand why Conway’s alleged violations are significant, we must first recognize why the Hatch Act was passed in the first place and what it is supposed to prevent.
Passed in 1939 as a codification of a 1907 executive order signed by President Theodore Roosevelt, the Hatch Act was intended to minimize the corrupting influence of partisanship in the executive branch — a noble, albeit naïve, aim.
Conway seems to care little for the law’s intent. When asked about the alleged violations, Conway quipped, “Blah, blah, blah … Let me know when the jail sentence starts.”
This casual disregard for the Hatch Act is unsurprising and perhaps even understandable. The law’s requirements are subjective at best. In its last revision, the OSC admitted there is no specific standard the law clings to.
“There are no magic words or express advocacy necessary for statements to be considered political activity under the Hatch Act,” the OSC’s guidance reads, noting that specific factors must be taken into consideration.
Broad laws dependent on individual discretion lead to hypocrisy and degrade the rule of law. Trump has defended Conway and said he won’t fire her. And why would he? If we know one thing about Trump, it’s that he values loyalty above all else.
“I think she’s a terrific person,” Trump told Fox News. “She’s a tremendous spokeswoman. She’s been loyal. She’s just a great person.”
Trump is simply following precedent. Most, if not all, former presidents since the Hatch Act’s passage have chosen to look the other way when the law is violated. Take President Barack Obama, for example. Two of Obama’s Cabinet officials, Secretary of Health and Human Services Kathleen Sebelius and Secretary of Housing and Urban Development Julián Castro, similarly violated the law, but no action was taken.
Kerner’s decision to take the law seriously is commendable. He seems to understand that laws without enforcement are just words on paper: Execution gives them meaning.
But citizens must also know and understand the laws. How can we obey what we don’t know?
The Hatch Act’s “cans” and “cannots” must be spelled out in a clear and direct way. Until they are, the law will continue to be violated, and no one will be held accountable.
