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Why Federal Employees Can Thank FDR for Some Restrictions on Their Tweets

7 minute read

President Donald Trump’s social media director Dan Scavino is under fire for sending a tweet over the weekend that called for the primary-election defeat of Michigan GOP congressman John Amash, a member of the so-called Freedom Caucus group that the President implied he might go after during the 2018 midterm elections if they did not support his attempt to overhaul healthcare.

The reason why the tweet is so controversial is that some see it as a violation of the Hatch Act, which generally prohibits civilian officers and employees in the Executive Branch from “using their official authority or influence to interfere with an election.” Though they are free to express their opinions privately and participate in the political process as citizens, they cannot participate in or advocate for partisan political activities while they’re on the clock, on federal property, in a government vehicle or wearing anything that identifies them as a federal employee. This is not the first time the Hatch Act has made news in recent memory.

Former White House ethics lawyers Daniel Jacobson and Richard W. Painter, who worked in the administrations of Barack Obama and George W. Bush, respectively, argued in response to the tweet that Scavino’s Twitter avatar was a photo of him in the White House and that his bio at the time identified him as a federal employee, which may mean that his statement would still fall under the law’s scope. However, ABC News quoted an unnamed White House official arguing that the tweet is not a violation of the act because it came from Scavino’s personal account.

One thing that is clear: when the law was created, those who crafted it weren’t exactly worried about Twitter.

The man who conceived the “Act to Prevent Pernicious Political Activities” was New Mexico Democratic Senator Carl “Cowboy Carl” Hatch, and the law was passed in 1939.

It came about shortly after President Franklin Delano Roosevelt unsuccessfully tried to “purge” members of Congress from his own party who didn’t fully support his policies, when it turned out that attempts to sway the vote may have gone beyond the President’s stumping for his preferred candidates.

According to FDR scholar William Leuchtenburg, a series of newspaper articles alleged that the Works Progress Administration (WPA), one of the New Deal’s biggest relief agencies, had been involved in what was essentially vote buying. The core of the charge was that WPA director Harry Hopkins — a powerful New Deal administrator and close associate of the President’s — had promised jobs and promotions within the WPA in exchange for votes in the U.S. Senate election in Kentucky. During the Great Depression, such promises would have carried great weight. “It was never clearly demonstrated that this happened,” Leuchtenburg says, “but in general, [the newspaper company] Scripps-Howard was a liberal chain well-disposed towards FDR, so the allegations got a lot of credence.”

And the Kentucky case wasn’t everything. Susan Dunn, author of Roosevelt’s Purge: How FDR Fought to Change the Democratic Party, points to another similar incident involving Hopkins and a Senator named Guy Gillette, who was elected in a 1936 special election for a U.S. Senate seat in Iowa and who was “one of FDR’s least favorites in the Senate,” as Dunn puts it.

Sure enough, Gillette got a challenger: 35-year-old Congressman Otha Wearin, who supported FDR’s executive reorganization plan, but was better known for participating in a hog-calling contest on the Capitol steps and for his annual proposals to move the nation’s capital from Washington to the Midwest. Hopkins told The Des Moines Register that, if he were an Iowa voter, he would go for Wearin, “on the basis of his record,” prompting outrage from those in Iowa and Washington alike who felt that Hopkins was interfering inappropriately.

That’s when Hatch, considered a moderate Democrat, introduced an amendment to a relief spending bill. His amendment would prohibit officials and employees of federal relief programs from engaging in partisan political activities. Though the Senate rejected Hatch’s original proposal, a version passed in July 1939, after a Senate Committee on Campaign Expenditures found that Works Progress Administration funds and manpower had been used for political purposes in 1938 in three states “sometimes under pressure,” as John W. Jeffries writes in his new book A Third Term for FDR: The Election of 1940.

“The Hatch bill effectually demolished the national Roosevelt political machine,” TIME reported in the July 31, 1939, issue.

But many state and local officials were still in FDR fans, which was important when the 1940 presidential election came around.

It had been anticipated that the act would decrease the influence of Roosevelt and his allies at the 1940 nominating convention, just as the President sought an unprecedented third term, according to the Jeffries book. “But that reading of the act misunderstood the calculations of pragmatic party professionals,” he writes. “[It] was Roosevelt’s vote-getting power that had elected local tickets and created federal patronage.”

In March of 1940, TIME poked fun at “Mr. Hatch’s annoying highmindness” as he introduced an amendment to the Hatch Act that would make it also apply to state and local employees whose salaries came from federal funds. “Cowboy Carl,” the magazine noted, had pulled off an impressive feat in getting his original act through without making enemies — but taking his law all the way to the states proved more difficult, as the State highway commissions were “1) largely dependent on Federal funds, 2) almost invariably the largest single organized political group in each State.” Nevertheless, with the cooperation of Senate Republicans, the amendment would go into effect that July.

Some states and municipalities even enacted “Little Hatch acts,” as TIME later put it, that covered firemen, policemen, clerks and dogcatchers.

Over time, the main criticism of the law has been that it impinges on the First Amendment rights of federal employees, but the U.S. Supreme Court upheld it twice in 1947 and 1973. A 1993 amendment, however, enabled those governed by the law to be actively involved in political management or political campaigns. Hatch Act violators get investigated by The U.S. Office of Special Counsel (OSC), but the penalties are usually administrative — in other words, being fired, demoted, reprimanded or along those lines — according to the Congressional Research Service.

What can be learned from Scavino’s tweet, however, may be something that goes beyond whether or not his specific statement is a violation: it illustrates a larger shift in the practical implications of the law. Nowadays, thanks to technology that Hatch and FDR didn’t have to contend with, it’s arguably easier for select federal employees to run afoul of the Hatch Act.

As the Congressional Research Service put it last year, “the increased use of technology has raised questions about how email and mobile communications may be regulated under the Hatch Act. The increased availability and use of smartphones may be seen has blurring an employee’s time, either by using a personal device while working or using a government device while off-duty. Additionally, alternative work arrangements, for example, telework, have presented similar dilemmas in understanding how Hatch Act restrictions might be applied in the modern workplace.”

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Write to Olivia B. Waxman at olivia.waxman@time.com