The Hatch Act continues to restrict federal employee political behavior no matter the time of year, but what constitutes a Hatch Act violation for most employees changes after Election Day, according to an advisory issued Nov. 4 by the Office of Special Counsel.
Normally, federal employees are prohibited from wearing or displaying campaign items while in the federal workplace, as these constitute engaging in political activity on behalf of a particular candidate, which the law prohibits.
But according to the OSC, those “candidates” effectively cease to exist after the election, for the purposes of enforcing the Hatch Act. Instead, one person is the victor of the race and the remainder is the losing party, even if vote tabulation has yet to determine which is which.
The Hatch Act is designed to ensure that the work of federal civil servants is not influenced by political motivations.
“For purposes of the Hatch Act, an individual is no longer considered a candidate when the outcome of the election is determined by vote of the Electoral College on the sixth day of January after the election. But while presidential candidates may retain their status as candidates well past Election Day, OSC has consistently advised that, with rare exception, post-Election Day activities showing support for or opposition to a presidential candidate will not affect the result of the election for that office,” the advisory states.
“Therefore, wearing campaign items, like T-shirts or hats, and displaying candidate photographs in the workplace after Election Day no longer constitute political activity for purposes of the Hatch Act. Similarly, expressing views about the election results or the presidential candidates is no longer considered political activity.”
That said, the day after an election does not make it open season for federal employees to take any political action without consequence.
Though the candidates cease to exist in the eyes of the Hatch Act, the political parties and organizations that support them continue to be recognized.
“Thus, activity directed at the success or failure of political parties or partisan political groups is prohibited by the Hatch Act even after Election Day,” the advisory states.
“Examples of activities that could violate this prohibition include wearing or displaying political party items, forwarding emails from a political party, texting about a partisan political group event or sharing a post from a political party on social media while on duty, in a government room or building, wearing an official uniform or insignia or using a government vehicle.”
Outside of the workplace and while not in uniform, most federal employees are permitted to participate in or advocate for partisan political activities, so long as doing so does not intersect with their roles as feds.
Employees classified as “further restricted,” however, are barred from participating in partisan political activities that my impact the outcome of the election — such as legal challenges or recount efforts — even while outside the workplace.
Further restricted employees include those that work in intelligence, enforcement and the Senior Executive Service, and the vast majority of federal employees instead fall into the less restricted category.