While not officially declaring his candidacy, this January, President Donald Trump filed paperwork with the Federal Election Commission that establishes he is a candidate for purposes of the Federal Election Campaign Act for the 2020 election. NTEU has received questions from employees on President Trump’s status as a candidate and its impact on the Hatch Act’s prohibition against political activity in the federal workplace. On February 7, 2017, the Office of Special Counsel (OSC) — the federal agency responsible for implementing the Hatch Act — issued guidance regarding President Trump’s candidacy.
As a reminder, the Hatch Act gives federal workers the right to participate in virtually all aspects of the political process, so long as they are off-duty and not on government property. Put another way, a federal employee may not engage in partisan political activity while on duty, in uniform, in a government building, or in a government car. The Hatch Act’s rules apply, however, only to partisan political activity: that is, activity directed toward the success or failure of a political party or candidate. Past OSC opinions state that an incumbent President is considered a candidate for purposes of the Hatch Act when he officially announces his candidacy for reelection.
According to OSC, because the 2020 election is still more than three years away, at this time not all expressions of support or opposition of President Trump or his administration constitute prohibited “partisan political activity” under the Act. Federal employees are thus permitted to wear or display pictures or other items, engage in communications, or otherwise express their approval or disapproval of President Trump and his policies or actions in the workplace. But employees’ actions, in the workplace, cannot be specifically directed at the success or failure of President Trump’s reelection in 2020. For example, a federal employee would not be permitted to hang a sign or send an e-mail stating “Reelect Trump 2020” or “Defeat Trump 2020.”
Of note, once President Trump officially announces his candidacy, the Hatch Act will apply to prohibit federal employees from engaging in any activity in the workplace aimed at his success or failure in the election. As customary, NTEU will issue guidance to employees when that occurs. Yet, even then, because the Hatch Act does not govern legislative activity, employees will continue to be permitted to express their support for or opposition to legislation affecting federal employees whether in the workplace or not. I encourage you visit NTEU’s Legislative Action Center to learn more about these efforts.