[Richard Painter, guest-blogging, March 23, 2009 at 5:04pm] Trackbacks
Defining Political Activity:

There is no intent in my proposal to remove politics from the White House or from the Executive Branch. Good policy decisions must be politically informed decisions, or the policy will go nowhere (e.g. 1993 Clinton health plan). The President needs good political advisors. The question I present is whether these advisors and other political appointees ought to work only for the President as chief executive of the United States or also for the President as head of a political party. Should they wear one hat or two?

The point about the email of Karl Rove and others is precisely the type of thing I am talking about. Wear two hats and have two email accounts, two Blackberries, two cell phones, two fax machines, two sets of lawyers etc. means you will have many problems. It does not matter how hard you try to keep the official and the political party work separate, One will always spill over into the other. Put away the political party gadgets and stick to official work, and life will be easier. The political party will be an outside constituency, and an important one, but you will not work for the political party as well as for the government.

Defining appropriate and inappropriate political activity is not an easy task, but for purposes of this discussion we should look at some of the lines the law has already drawn. Nowhere, it should be noted, does the law seek to require that policy decisions in any agency -- even agencies subject to the strictest Hatch Act regulations — be devoid of intent to please political supporters of the President or his political party. It is the day-to-day interaction between federal employees and political parties and political candidates that is subject to regulation.

For purposes of the Hatch Act rules, federal employees are divided into two categories, those subject to the general rules and those who are subject to stricter rules or who are "Hatched." An important subset of the first category is employees of the Executive Office of the President and holders of Presidential appointed Senate confirmed positions in the agencies. This subset of the first category is permitted to engage in partisan political activity in government buildings and during normal working hours as well as after hours.

The First category is subject to the following rules that apply to most federal employees: These employees may- • be candidates for public office in nonpartisan elections • register and vote as they choose • assist in voter registration drives • express opinions about candidates and issues • contribute money to political organizations • attend political fundraising functions • attend and be active at political rallies and meetings • join and be an active member of a political party or club • sign nominating petitions • campaign for or against referendum questions, constitutional amendments, municipal ordinances • campaign for or against candidates in partisan elections • make campaign speeches for candidates in partisan elections • distribute campaign literature in partisan elections • hold office in political clubs or parties

These employees may not- • use official authority or influence to interfere with an election • solicit or discourage political activity of anyone with business before their agency • solicit or receive political contributions (may be done in certain limited situations by federal labor or other employee organizations) • be candidates for public office in partisan elections • engage in political activity while: o on duty o in a government office o wearing an official uniform o using a government vehicle • wear partisan political buttons on duty

Employees of the following agencies (or agency components), or in the following categories, are subject to more extensive restrictions on their political activities than employees in other Departments and agencies: Administrative Law Judges (positions described at 5 U.S.C. ?5372) Central Imagery Office Central Intelligence Agency Contract Appeals Boards (positions described at 5 U.S.C. ?5372a) Criminal Division (Department of Justice) Defense Intelligence Agency Federal Bureau of Investigation Federal Elections Commission Merit Systems Protection Board National Security Agency National Security Council Office of Criminal Investigation (Internal Revenue Service) Office of Investigative Programs (Customs Service) Office of Law Enforcement (Bureau of Alcohol, Tobacco and Firearms) Office of Special Counsel Secret Service

These employees may- • register and vote as they choose • assist in voter registration drives • express opinions about candidates and issues • participate in campaigns where none of the candidates represent a political party • contribute money to political organizations or attend political fund raising functions • attend political rallies and meetings • join political clubs or parties • sign nominating petitions • campaign for or against referendum questions, constitutional amendments, municipal ordinances

These employees may not- • be candidates for public office in partisan elections • campaign for or against a candidate or slate of candidates in partisan elections • make campaign speeches • collect contributions or sell tickets to political fund raising functions • distribute campaign material in partisan elections • organize or manage political rallies or meetings • hold office in political clubs or parties • circulate nominating petitions • work to register voters for one party only • wear political buttons at work

This information is available at the Office of Special Counsel Web Site

Soronel Haetir (mail):
Thanks for being so responsive to the comments.

Given how impossible the task is otherwise to define what is allowed and what is not, I am starting to see Curt F's idea to make these folks private employees of the president an even better idea.
3.23.2009 5:19pm
PatHMV (mail) (www):
I'm afraid I'm not sure now what your proposal is. You want to get rid of the Karl Rove-type position, ok. But don't you then just have 6 or 7 or 20 or 30 WH staffers (and cabinet positions) all trying to talk with party official, rather than get their political directions from one person or office, under the direct control of the President?

What, exactly, would you seek to prohibit? Can the WH Chief of Staff e-mail and phone the "Presidential Liaison Office" of the DNC a dozen times a day, every day? If so, wouldn't that merely move the same office and function farther away from the clear control of the President, without necessarily limiting the influence of politics on these decisions? Karl Rove served not 2 masters but 1, President Bush. His party activities were conducted not to help the GOP (I hope, because if he did, he didn't do it very well) but to help the President enact his preferred policies.

Having the political affairs office within the WH gives the President more control over the political decisions and concerns. If he treated them as an "outside constituency," he would be giving up substantial amounts of that control. Worse, to the extent that politics still must be played in order to implement the President's policies, the President would be ceding that influence to an outside agency not directly accountable to him. I don't think that would increase accountability.

One of my substantial criticisms of "campaign finance reform" is that it has led to a tremendous HIDING of responsibility, and has made it exceedingly difficult to hold anybody accountable for anything. When money flows through "Leadership PACs," it's impossible to keep track of. With the monstrosity of McCain-Feingold, a campaign legally cannot stop the "independent" expenditures made by their independent supporters. This leads to plenty of "plausible deniability" by the campaigns when questioned about spurious attack ads from independent sources. "We'd love for them to stop, but if we ask them to do so, we'd be breaking the law by coordinating our messages."

So I say recognize the inherent political nature of that level of proceeding. Get rid of the arcane restrictions, for them, requiring 2 cell phones and 2 e-mail accounts. Instead, tell them that they are always government employees, so they must always use the government e-mail account (a public record), but they are legally free to discuss all the politics they want under those circumstances.
3.23.2009 5:25pm
Tim (mail):
I will take this off on a tangent.

Why should this group be able to vote? They have enough say in the fedeal government operations without the conflict of interest to allow more power flow into government instead of away from it.
3.23.2009 6:17pm
PatHMV (mail) (www):
Let me ask a couple of particular questions, to see how day-to-day problems might be caused or solved.

The President is, of course, flooded with political invitations to speak at fundraisers for various candidates of his own party (and probably occasionally for members of the other party, even!). Which office in the WH should help the President decide which to attend and which to not attend? Should those decisions be made by the DNC? How much interaction should there be between the WH Chief of Staff's scheduling office and the DNC or the President's reelection campaign?

When a first term President is up for re-election, what should the relationship be between his official scheduling staff and his "political" scheduling staff, who work for the Committee to Reelect the President? How many times are they allowed to talk on the phone or e-mail each other?

Similarly with cabinet secretaries. They, like the President, are sought-after to help Congressmen and would-be Congressmen on the campaign trail. Who should coordinate which candidates get help from which Secretary? Should the DNC maintain that coordination mission? Or should the President, through an office of political affairs, do so?
3.23.2009 6:24pm
Curt Fischer:
Agreed with Soronel H. that responding to comments so thoroughly and quickly is awesome.

What would be the downsides to totally privatizing the White House (except for the President and the VP)? With a lame duck President there would be no mechanism for oversight and no incentive to avoid truly heinous (not just borderline) misdeeds? No one wants to sign up to work for Barack Obama Presiding Company, Inc. because the business cards don't look as cool?

Seems like privatization would turn the WH into a politics center, but that the Cabinet's power could possibly be strengthened in relatively "non-partisan" policy areas. Maybe.
3.23.2009 6:28pm
BZ (mail):
Well, I see what you're saying here and in the prior two posts. If I can paraphrase: permit the White House to have political people, but don't let them also be policy operatives. One hat. Only.

I'm just not sure how that can be done, in the real world. I see where you're going with the Hatched/non-Hatched dichotomy, but isn't that just begging the question? What you're proposing is what already happens now: the agencies delegate policy wonks to the WH to do the heavy policy lifting. And when a politico has a question, she calls an agency, which leaps into action. I have been herded by political aides and by agency aides for essentially the same purpose: serve as props for Presidents from Ford to Bush (no Obama so far). Sometimes it was for ostensibly "policy" reasons, but people as props was really only for politics.

It does all get back to transparency. So much of the "political" work is hidden, while the policy work is often open. That's why I eagerly await more details on how you would propose to actually make this "chinese wall" between politics and policy work.
3.23.2009 9:39pm

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