The White House and the Hatch Act
The presidency cannot be
separated from politics, but the political uses of the presidency by the
Clinton administration strike many people as abusive. There are calls for a
special prosecutor. What behavior would he or she prosecute? What exactly is
the law about politicking and the presidency?
The law
most often cited is the Hatch Act (1939). The law passed following
several big corruption cases involving the burgeoning post-New Deal
bureaucracy, and was aimed at the civil service. But by its terms, it applies
to almost anyone on the U.S. government payroll. Only the president, vice
president, and appointees requiring Senate confirmation (such as Cabinet
secretaries) are exempt. The original Hatch Act forbade government employees to
raise funds, give partisan public speeches, or volunteer for any candidate or
party. In 1993, with President Clinton's backing, the act was amended to allow
all these things, so long as they are done outside the workplace and government
employees don't exploit their positions for political purposes.
Enforcement of the Hatch Act was always erratic, and there
was no serious attempt to apply its general ban on politicking to the White
House. The 1993 amendment specifically allows employees of the Executive Office
of the president to engage in "political activity." The law defines political
activity to include anything campaign-related --organizing events,
planning party strategy-- except fund raising , which it completely
prohibits. These same limits apply to Cabinet secretaries and all other
presidential appointees approved by the Senate. The president's campaign or
party must reimburse the government for the use of its offices and
resources.
The
Clinton administration imposed additional Hatch-like regulations on itself.
White House employees can work on their "political" projects only if they put
in 40 hours' work over the course of the week on "official" business. And the
White House installed separate phone and fax lines for political work. But
these rules are not legally binding. And in practice, such distinctions between
"official" and "political" White House work are almost meaningless.
Alexis Herman , who was in charge of
White House "public liaison," is the only member of the Clinton administration
now under investigation for violation of the Hatch Act. Her nomination to be
secretary of labor is in trouble. The allegation: Herman headed a working group
that planned strategies for hyping the president to different ethnic groups.
She did wrong, the argument goes, by using government computers to draw up
campaign strategy.
According to the White
House, Herman's work complied with Hatch: The Clinton campaign reimbursed the
government for the work Herman did on the memos she wrote. Besides, the
activity under investigation is simply part of the job description of public
liaison, which is supposed to "outreach" with "different constituencies" to
improve their relationships with the White House. Clintonites say the public
liaisons under Reagan and Bush did much the same things. For instance, Bush's
Liaison Bobbie Kilberg spent much of her time wooing the religious right.
Republicans point out that, unlike Herman and George Stephanopoulos, Reagan and
Bush aides (such as James Baker and Robert Teeter) resigned from the
administration to work on re-election campaigns. But these resignations were
legally required under the rules of the pre-'93 Hatch Act, which no longer
apply.
Other possible Hatch Act violations: Newsweek
reports that Deputy Chief of Staff Harold Ickes solicited campaign
contributions, despite Hatch's prohibition on fund raising. And a White House
database may have been used by Democratic Party fund-raisers without
reimbursement to the government as required.
Legal questions are also
raised by allegations that the administration granted access to the White House
to elicit donations. The New Yorker 's Jane Mayer uncovered examples of
big donors being invited to the White House tennis court and movie theater. The
New York Times this week quoted Democratic fund-raisers who say they
attracted donors with promises of invitations to the White House, including
coffees and overnights in the Lincoln bedroom .
These
sorts of perks are potentially illegal for two reasons. First, election laws
bar the solicitation of money (by both employees and nonemployees) in all
federal office buildings --the White House included. In these cases,
Republicans argue, donors received White House invitations to entice them to
give more money. Even if the attendees were never explicitly asked to open
their checkbooks on these visits, the administration's intention was obvious.
The language of these laws, however, only forbids explicit appeals for
donations. Ickes apparently made calls to donors from his government office,
but there is no evidence so far that anyone else solicited funds in a federal
building.
Second, campaign-finance and anti-bribery laws
prohibit granting government favors in exchange for political donations. The
law specifically forbids favoritism in awarding government jobs and contracts.
More ambiguously, it proscribes "special access" to government
officials. Like the Hatch Act, however, these laws have never been enforced
against the White House.
Preferential treatment for
big donors is nothing new. Eleven out of 249 $100,000-plus donors to the
Republican National Committee received ambassadorships from the Bush
administration. "Team 100" donors also received special policy briefings
from administration officials and invitations to White House dinners. Many of
the members had matters pending before the administration.
President Clinton's response
to charges of selling "special access"--that these donors are also his friends
and he has the right to have conversations with his friends and invite them to
his home--is disingenuous, but might be hard to refute in court.
