SMF refuses to air video blaming Democrats for government shutdown. Does it violate the Hatch Act?

The federal government shutdown continues to drag on as Congress repeatedly fails to reach a funding deal. Messages assigning blame to either side continue to fly, with one recent example gaining national attention.

A video being shown at airports across the country features Homeland Security Secretary Kristi Noem directly blaming Democrats for the shutdown.

Similar messages have been posted on a number of government websites, including the U.S. Forest Service and U.S. Attorney’s Office for the Eastern District of California, casting blame on Democrats.

But some airports have refused to show Noem’s video, including Sacramento International Airport. An SMF spokesperson confirmed to CapRadio the Department of Homeland Security had made the request, “and we chose not to do it.”

These messages are also causing some legal experts to sound the alarm, as they potentially violate a decades-old federal law called the Hatch Act.

Steven Macias is a Visiting Professor of Law at McGeorge School of Law. He spoke with CapRadio’s Chris Nichols on Insight about how the Hatch Act is applied and enforced, and whether these videos and posts are crossing a line.

This interview has been edited for length and clarity.

Interview highlights

What exactly is the Hatch Act, what does it do?

The Hatch Act is a federal law that, in part, limits the partisan political activities of federal employees. It has a couple of different ideas behind it. One is that if federal workers weren't prohibited from such activities, then maybe their supervisors who have stronger political connections, or who might have been politically appointed themselves, might force workers to engage in partisan activity under threat of losing their jobs. From that perspective, it can sort of be viewed as a protection for rank-and-file federal employees.

But it also is seen as a way to keep governmental operations nonpartisan, which I think is the version of the act that we’re seeing discussed with the TSA-type video.

This might be an obvious question, but why is it important for the federal government to work in a nonpartisan way?

Partisan politics is fine for the campaign trail, but perhaps it shouldn’t impact the provision of basic governmental services. The services are there for everyone regardless of who you voted for. For example, if you imagine the line at the TSA checkpoint it's full of people who voted for all sorts of different candidates: Democrats, Republicans and everything in-between. And the idea is you shouldn’t have to run in or face partisan issues when you’re in a situation like that, when you’re simply trying to receive basic governmental services.

Some federal workers like department secretaries are appointed by the president, to carry out an agenda which reflects the president’s political views. How are they expected to balance carrying out that partisan agenda while also respecting the law?

The very agenda itself might be the result of partisan [or] political compromise or enforcing political promises… but the idea is that it can be done in a way that isn’t constantly reminding people of the underlying politics behind it. So the secretary can certainly post a video that she'd like shown at airports that explains difficulties of a shutdown, but [there] doesn't necessarily have to be anything overtly partisan in it in order to carry out the policies that she would be expected to carry out.

The Hatch Act applies to federal officials and employees in their official capacity, but what about when they’re off the clock?

The statute has a very interesting history, but as originally enacted in 1939 it applied broadly across the board to federal employees, even state and local government employees whose jobs depended on federal funding in some way. It originally prohibited partisan activities [and] political activities across the board, off the clock as well as on the clock. And the Supreme Court upheld that limitation of political activity as not a violation of people’s speech rights [under] the First Amendment. 

But there was a significant change in the law in 1993, when many restrictions were eased and partisan activity outside of working hours, and when one was away from the federal job site, were permitted in that revision. 

Let’s talk a little bit about these airport videos with Secretary Noem, and the messages posted on federal websites. Would you consider them to be violations of the Hatch Act? 

They certainly seem to be engaged in partisan activity, yes. The video that was designed to be shown in TSA lines twice references Democrats, lays the blame for the federal shutdown at their feet, specifically says that TSA employees are not being paid because of it and notes that travel delays might also be blamed on Democrats. So it certainly seems to be an overt partisan message while the secretary is sitting in front of the department’s flag.

Is it cut-and-dry to determine when this law is violated, or is it more difficult?

Well, there certainly would be cases that are close to the line. But this one doesn't seem to be that close. The secretary is clearly using her government office, her position, the insignia of the department. And this is being put in a space where you would expect the TSA to be doing its work, so this seems to be a clear example of a partisan attack.

We’ve seen complaints by members of Congress calling for those who should be enforcing the law, calling this to their attention and laying out their case for the violation as well.

Speaking of enforcement, what kind of mechanisms or penalties are there if a political official or employee violates the Hatch Act?

Even going back to when the act was originally written, lots of critics even then noted that the enforcement mechanisms were fairly weak. And the current penalties range mostly within the realm of personnel consequences, so removal, demotion, suspension, letters of reprimand. All of this is supposed to be enforced today through the Office of Special Counsel, which is an independent agency. 

This Office of Special Counsel has been in the news very recently for more than one reason, but largely instigated by the president’s firing of the head of that office several months ago, who had been appointed by the previous administration. This has been part of the president's firing of independent agency heads across the board.

When you look at examples like the TSA videos or others from the recent past, are we seeing a growing trend beyond just the current administration? Have there been violations from both parties when they’ve been in power?

There certainly have been recorded violations and letters of reprimand to both political parties. When the statute and its enforcement is designed to prevent partisan political activity, there’s always a danger that the individual in power potentially could abuse that, or also just see things differently depending on that person’s political sympathy. So, it might be easier to see Republicans engaging in political activity if you’re a Democrat or vice-versa, which is why Congress gave this power to an independent agency… an individual who would be above that political frame.

We live in a world that is increasingly partisan, especially in the nation’s capital. Some people may question why we should care about the Hatch Act, especially if it’s not often enforced. What are the consequences if this activity continues without any checks?

One of the unfortunate realities is that the politicization of basic government government activities almost no longer comes as a surprise. Certainly not welcome, but not unexpected. I think if one is concerned about the overt mixing of partisanship politics and basic government in some place as mundane as an airport security line, then maybe the lesson is that basic guarantors of democratic values and rule of law aren’t the law enforcers, those who would enforce a statute like the Hatch Act or even the courts.

But it’s up to the people who are concerned about this to be vigilant and attentive to what they might view as abuses of power, or as government officials looking the other way when those in their political party seem to take advantage of the system.