Mr. _____________
Re: OSC File No. AD-04-xxxx
Dear Mr. __________:
This letter is in response to your request for an
advisory opinion concerning the Hatch Act. The Office of Special Counsel
(OSC) is authorized pursuant to 5 U.S.C. § 1212(f) to issue binding opinions
under the Act. Specifically, you ask us to reconsider an opinion we issued
on April 6, 1984, regarding voter registration drives conducted by unions
and to provide guidance on how a union that has endorsed a candidate can
conduct a nonpartisan voter registration drive in a federal workplace.
Although the Hatch Act was amended subsequent to our previous opinion on
this subject, the guiding principles of that opinion remain current and
relevant to the present analysis, as explained below.
On April 6, 19841, OSC issued an advisory opinion
concluding that voter registration drives, sponsored or conducted by a union
that has endorsed partisan candidates and has issued public statements to
its members emphasizing the importance of voter registration in advancing
the campaigns of these candidates, ineluctably must be partisan for purposes
of the Hatch Act. Accordingly, we advised that participation by federal
employees in such drives would constitute taking an active part in political
campaigns and, thus, would be prohibited political activity under the Act.
As you know, Congress passed legislation in 1993 that
significantly amended the Hatch Act as it applies to most federal employees.
Most federal employees are now permitted to actively participate in partisan
political management and partisan political campaigns.2 The amendments,
however, specifically prohibited any political activity in the workplace.
Thus, federal employees are now prohibited from, among other things,
engaging in political activity while on duty, in any room or building
occupied in the discharge of official duties by an individual employed or
holding office in the Government of the United States or any agency or
instrumentality thereof, while wearing a uniform or official insignia
identifying the office or position of the employee, or using any vehicle
owned or leased by the Government of the United States or any agency or
instrumentality thereof. 5 U.S.C. § 7324. Political activity has been
defined as activity directed toward the success or failure of a political
party, candidate for a partisan political office or partisan political
group. 5 C.F.R. § 734.101. Therefore, the Hatch Act would prohibit a federal
employee, while on duty or in his or her workplace, from participating in a
partisan voter registration drive, e.g., a drive aimed at helping a
political party or candidate succeed.
In determining whether a voter registration drive is
partisan, OSC considers all of the circumstances surrounding the drive. Some
of the factors relevant to this inquiry, as discussed in our 1984 opinion,
include: 1) the political activities of the sponsoring organization; 2) the
degree to which that organization has become identified with the success or
failure of a partisan political candidate, issue or party (e.g., whether it
has endorsed a candidate); 3) the nexus, if any, between the decision to
undertake a voter registration drive and the other political objectives of
the sponsor; 4) whether particular groups are targeted for registration on
the basis of their perceived political preference; and 5) the nature of
publicity circulated to targets of the drive immediately prior to or during
the drive.
In your letter requesting this advisory opinion, you
state that AFGE conducts voter registration in a “strictly non-partisan
fashion.” However, as we explained in our 1984 opinion, because voter
registration is frequently used as a tool in partisan political campaigns,
we cannot accept at face value the assertion that a planned registration
drive is nonpartisan. This is particularly true once a union has endorsed a
candidate for partisan political office, because at that point, the union
has become identified with the success of the endorsed candidate. As such,
it is not enough for the union to agree not to solicit registrants on the
basis of political party or candidate preference or not to advocate or
display support for a particular party or candidate during the drive. If the
union’s voter registration drive is part of an effort to advance the
campaign of its endorsed candidate, federal employees would not be able to
participate, because the Hatch Act prohibits them from engaging in activity
directed towards the success of a candidate for partisan political office
while on duty or in a federal building.
In sum, the issue you present to our office requires a
very fact specific analysis. In light of the above, we believe it would be
difficult for a union, or any other organization, to conduct a truly
nonpartisan voter registration drive once it has endorsed a candidate for
partisan political office. Keep in mind, though, that because of the 1993
amendments, most federal employees are now able to participate in partisan
voter registration drives, provided that they are not conducted while on
duty, in a government office or building, while wearing an official uniform
or insignia, or using a government vehicle. Thus, viable means exist by
which unions can encourage its members to exercise their fundamental right
to vote and participate in the democratic process.
Please contact OSC attorney Erica Stern at 202-254-3650
if you have additional questions regarding this matter.
Sincerely yours,
_______/s/___________
Scott J. Bloch
Special Counsel
__________
1At that time, federal employees were prohibited from taking an
active part in political management or political campaigns.
2Federal
employees in certain specified agencies and positions remain subject to the
Hatch Act prohibitions in effect prior to the 1993 amendments and are not
permitted to actively participate in partisan political management and
partisan political campaigns. See 5 U.S.C. § 7323(b).
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