Historical Regulation of Government Employees' Political Activities

Employees in the executive branch of the federal government have been subject to certain limitations and restrictions on their partisan political activities for over a century. A general ban on voluntary, off-duty participation in partisan politics by merit system employees was instituted by executive order in 1907. Employees retained their right to vote and privately express political opinions, but were prohibited from taking "active part in political management or in political campaigns." Known as Civil Service Rule 1, this restriction and all of the administrative interpretations under it were eventually codified in 1939 and made applicable to most federal executive branch employees under a law commonly known as the Hatch Act. With the advent of the modern, more independent and merit-based civil service, and the adoption of increased statutory and regulatory protections of federal employees against improper coercion and retaliation, the need for a broad ban on all voluntary, outside activities in politics as a means to protect employees was seen as less necessary and more restrictive of the rights of private expression of millions of citizens than was needed to accomplish the goals of the Hatch Act. The 1993 amendments allow most federal employees to engage in a wide range of voluntary, partisan political activities in their time off-duty, away from their federal jobs, and off of any federal premises. These restrictions generally prohibit such employees from the following:
using their "official authority or influence for the purpose of interfering with or affecting the result of an election"; soliciting, accepting, or receiving political campaign contributions from any person; running "for election to a partisan political office"; soliciting or discouraging participation in political activity of any person who either has an application for a grant, contract, or other status pending before the employing agency or is the subject of an ongoing audit, investigation, or enforcement action by the employing agency; engaging in partisan political activity on official duty time; on federal property; while wearing a uniform or insignia identifying them as federal officials or employees; or while using a government vehicle. Further Restricted Employees

Some employees covered by the Hatch Act are subject to additional restrictions under current law, and may be referred to as "further restricted employees." The changing nature of the workplace may raise questions regarding the balance between personal and professional activity, including various platforms of political activity such as email, mobile devices, social media, and telework. The scope of the prohibition on political activities on duty, including such activities conducted in the federal workplace, depends largely on the general definitions of these terms. These terms are particularly relevant when applying the Hatch Act to new work scenarios. Email and Mobile Communications

Although email has been a common tool in federal offices for decades, the prevalence of smartphones, both for personal and professional use, over the last decade has highlighted new issues in regulation of political activity under the Hatch Act.
Federal officers and employees historically have been subject to certain limitations when engaging in partisan political activities. Although they have always retained their right to vote and privately express political opinions, for most of the last century, they were prohibited from being actively involved in political management or political campaigns. At the beginning of the 20th century, civil service rules imposed a general ban on voluntary, off-duty participation in partisan politics by merit system employees. The ban prohibited employees from using their "official authority or influence for the purpose of interfering with an election or affecting the result thereof." These rules were eventually codified in 1939 and are commonly known as the Hatch Act.
By the late 20th century, such broad restrictions were seen as unnecessary due to other changes in the nature of the federal workforce, including the advent of a more independent and merit-based civil service and adoption of increased protections for employees against coercion and retaliation. Accordingly, the Hatch Act was significantly amended in 1993 to relax the broad ban on political activities, and now allows most employees to engage in a wide range of voluntary, partisan political activities in their free time, while away from the federal workplace. Some employees may be subject to additional restrictions depending on the employing agency or an employee's specific position.
The nature of the federal workforce and work environment has continued to evolve since these amendments, and new issues have arisen for congressional consideration in recent years. In particular, the increased use of technology has raised questions about how email and mobile communications may be regulated under the Hatch Act. The increased availability and use of smartphones may be seen as blurring an employee's time, either by using a personal device while working or using a government device while off-duty. Additionally, alternative work arrangements, for example, telework, have presented similar dilemmas in understanding how Hatch Act restrictions might be applied in the modern workplace.
This report examines the history of regulation of federal employees' partisan political activity under the Hatch Act and related federal regulations. It discusses the scope of the application of these restrictions to different categories of employees and provides a background analysis of the general restrictions currently in place. Finally, it analyzes potential issues that have arisen and interpretations that have been offered related to the application of these restrictions to new platforms of activity, for example, email, social media, and telework.