July 20, 2016
Colleen Rasa, Associate, Partnership for Public Service
You’re a federal government employee who runs into your favorite Senate candidate during your daily coffee run, and your star-struck self decides to take a selfie. Afterwards, you post your prized photo to your Facebook account and link it to the senator’s campaign site asking your friends to make a contribution to the campaign. Did you just break the law? As a federal employee, the answer is yes.
Social media interactions such as these have become second nature to many of today’s 1.32 billion active Facebook users. However, when you are a federal employee, how you choose to interact on social media, particularly during an election season, could land you on the wrong side of a law that restricts the political activity of some federal employees—the Hatch Act.
Congress passed the Hatch Act to encourage employees “to exercise fully, freely, and without fear of penalty or reprisal, and to the extent not expressly prohibited by law, their right to participate or to refrain from participating in the political processes of the Nation.” At the same time, Congress sought to limit “certain political activities of federal employees” and “to ensure that federal programs are administered in a nonpartisan fashion, to protect federal employees from political coercion in the workplace, and to ensure that federal employees are advanced based on merit and not based on political affiliation.”
The agency that oversees the Hatch Act, the Office of Special Counsel (OSC), works to not only enforce the Hatch Act, but equip federal employees with the knowledge they need to successfully navigate all aspects of it, including its implications for social media use.
Because “liking” and “tweeting” are not addressed in the Hatch Act (as amended), OSC has released social media guidance to federal employees and advocated to Congress to update this legislation. In 2012, Carolyn Lerner, who heads OSC, testified before Congress on this issue, explaining, “The internet and social media have dramatically changed the way we gather and share information, communicate our views, or engage in the political process…OSC has issued detailed advisory opinions on the use of social media and the Hatch Act.”
Social Media, Hatch Act & Tetris
These advisory opinions acknowledge that Facebook, Instagram, Twitter and other social media platforms have thrown a wrench into the Hatch Act, making interacting on social media increasingly more like playing a Tetris game—if one block falls a certain way, it affects how the next one fits.
For example, the first block falls.
Take a federal employee who includes her official title or position on Facebook and displays the “political views” field. Is this a violation of the Hatch Act? The answer is no. Filling in her political party affiliation on her social media profile would not be seen as “an improper use of official authority.” However, if she included her official title in a post supporting or opposing a candidate for partisan office, a political party, or partisan political group, then she would be in violation of the Hatch Act.
The second block falls.
Instead of just stating her political views in a post, this federal employee displays her preferred candidate’s campaign logo as her Facebook profile picture. Is this in violation of the act? It is not. However, she would be in violation of the Hatch Act if she “shared,” “posted” or “liked” anything while on duty or in the workplace because every Facebook action thereafter would be seen as an endorsement from the partisan group displayed in the profile picture.
And the blocks continue to build…
For instance, what if this federal employee was a career senior executive? Would the rules change? In some cases, yes. Further, restricted employees are prohibited from “posting or linking to campaign or other partisan material of a partisan group or candidate in a partisan race,” not just campaign posts that are soliciting for money.
As one can see, social media and the Hatch Act make for a complicated Tetris game. For additional scenarios regarding online dos and don’ts, visit OSC’s social media and email FAQs page.
Knowledge is power when it comes to the Hatch Act. To learn more, see the resources from OSC and the Office of Government Ethics. Be sure to contact your designated agency ethics official or OSC with specific questions.
More Hatch Act Resources
UPDATE: In case you missed it, the Washington Post reported this week that Housing and Urban Development Secretary Julian Castro was in violation of the Hatch Act. According to the Post, “A report from the Office of Special Counsel delivered a mild rebuke to Castro for his handling of the April interview with Yahoo News. The seal of the Housing and Urban Development Department was visible behind Castro as he answered questions from host Katie Couric about his support for Clinton, including his chances as running mate.” You can read more here.