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THE HATCH ACT: THE CHALLENGES OF

SEPARATING POLITICS FROM POLICY

HEARING

BEFORE THE

COMMITTEE ON OVERSIGHT

AND GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS

FIRST SESSION

JUNE 21, 2011

Serial No. 112–67

Printed for the use of the Committee on Oversight and Government Reform

(

Available via the World Wide Web: http://www.fdsys.gov

http://www.house.gov/reform

(II)

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

DARRELL E. ISSA, California, Chairman

DAN BURTON, Indiana

JOHN L. MICA, Florida

TODD RUSSELL PLATTS, Pennsylvania

MICHAEL R. TURNER, Ohio

PATRICK T. MCHENRY, North Carolina

JIM JORDAN, Ohio

JASON CHAFFETZ, Utah

CONNIE MACK, Florida

TIM WALBERG, Michigan

JAMES LANKFORD, Oklahoma

JUSTIN AMASH, Michigan

ANN MARIE BUERKLE, New York

PAUL A. GOSAR, Arizona

RAU ́ L R. LABRADOR, Idaho

PATRICK MEEHAN, Pennsylvania

SCOTT DESJARLAIS, Tennessee

JOE WALSH, Illinois

TREY GOWDY, South Carolina

DENNIS A. ROSS, Florida

FRANK C. GUINTA, New Hampshire

BLAKE FARENTHOLD, Texas

MIKE KELLY, Pennsylvania

ELIJAH E. CUMMINGS, Maryland, Ranking

Minority Member

EDOLPHUS TOWNS, New York

CAROLYN B. MALONEY, New York

ELEANOR HOLMES NORTON, District of

Columbia

DENNIS J. KUCINICH, Ohio

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

STEPHEN F. LYNCH, Massachusetts

JIM COOPER, Tennessee

GERALD E. CONNOLLY, Virginia

MIKE QUIGLEY, Illinois

DANNY K. DAVIS, Illinois

BRUCE L. BRALEY, Iowa

PETER WELCH, Vermont

JOHN A. YARMUTH, Kentucky

CHRISTOPHER S. MURPHY, Connecticut

JACKIE SPEIER, California

LAWRENCE J. BRADY, Staff Director

JOHN D. CUADERES, Deputy Staff Director

ROBERT BORDEN, General Counsel

LINDA A. GOOD, Chief Clerk

DAVID RAPALLO, Minority Staff Director

(III)

C O N T E N T S

Page

Hearing held on June 21, 2011 ............................................................................... 1

Statement of:

Painter, Richard W., professor of corporate law, University of Minnesota

Law School, former associate White House counsel to President George

W. Bush, 2005–2007; Scott A. Coffina, partner, Montgomery,

McCracken, Walker & Rhoads, LLP, former associate White House

counsel to President George W. Bush, 2007–2009; and Ana Galindo–

Marrone, Hatch Act Unit Chief, U.S. Office of Special Counsel ............... 4

Coffina, Scott A. ......................................................................................... 12

Galindo–Marrone, Ana .............................................................................. 22

Painter, Richard W. ................................................................................... 4

Letters, statements, etc., submitted for the record by:

Coffina, Scott A., partner, Montgomery, McCracken, Walker & Rhoads,

LLP, former associate White House counsel to President George W.

Bush, 2007–2009, prepared statement of ................................................... 15

Connolly, Hon. Gerald E., a Representative in Congress from the State

of Virginia, prepared statement of .............................................................. 39

Galindo–Marrone, Ana, Hatch Act Unit Chief, U.S. Office of Special

Counsel, prepared statement of ................................................................... 24

Painter, Richard W., professor of corporate law, University of Minnesota

Law School, former associate White House counsel to President George

W. Bush, 2005–2007, prepared statement of .............................................. 6

(1)

THE HATCH ACT: THE CHALLENGES OF

SEPARATING POLITICS FROM POLICY

TUESDAY, JUNE 21, 2011

HOUSE OF REPRESENTATIVES, COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, Washington, DC.

The committee met, pursuant to notice, at 3:02 p.m., in room

2154, Rayburn House Office Building, Hon. Darrell E. Issa (chairman of the committee) presiding.

Present: Representatives Issa, Walberg, Lankford, Amash,

Buerkle, Meehan, Gowdy, Cummings, Maloney, Norton, and

Connolly.

Staff present: Molly Boyl, parliamentarian; Steve Castor, chief

counsel, investigations; Kate Dunbar, staff assistant; Jessica L.

Laux and John A. Zadrozny, counsels; Ashok M. Pinto, deputy chief

counsel, investigations; Krista Boyd, minority counsel; Carla

Hultberg, minority chief clerk; William Miles, minority professional

staff member; Susanne Sachsman Grooms, minority chief counsel;

and Mark Stephenson, minority senior policy advisor/legislative director.

Chairman ISSA. The hearing will come to order.

The Oversight Committee exists to secure two fundamental principles: First, Americans have a right to know the money Washington takes from them is well-spent. And, second, Americans deserve an efficient, effective government that works for them.

Our duty on the Oversight and Government Reform Committee

is to protect these rights. Our solemn responsibility is to hold government accountable to taxpayers, because taxpayers have a right

to know what they get from their government. We will work tirelessly, in partnership with citizen watchdogs, to deliver the facts to

the American people and bring genuine reform to the Federal bureaucracy.

I will yield to myself.

Today’s hearing will examine the Hatch Act’s enforcement difficulties and regulatory cost.

The Hatch Act is inherently a partisan question, but this committee has looked at it under both Republicans and Democrats. We

have seen, or failed to see, discrepancies in the past. Today’s hearing is not on a failure by either party during their time running

the executive branch, but, rather, to review the status of and condition of the Hatch Act and to determine whether there are meaningful changes that should be made to both protect the public and to

protect political appointees from inadvertently violating the act. Inconsistencies within the act and/or loopholes need to be reviewed.

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This committee takes seriously the use of political office for political purposes. We are not paid to run for re-election or to support

a President’s run for re-election, but, rather, if you are taking the

Federal payroll, you are expected to do the job for which you have

been selected or appointed.

The Oversight Committee is intending to author such legislation

as may be necessary and will affect the next President. Necessarily,

we will, in fact, work on a bipartisan basis to find any and all

changes necessary to take effect upon the inauguration of the next

President. Although this is 18 months and it seems like a long

time, in political time it is very short.

So this will be the first of as many hearings as are necessary to

determine those changes, evaluate them, hold public comment on

those potential changes, and implement those changes effective

January 2013.

And, with that, I recognize the ranking member for his opening

statement.

Mr. CUMMINGS. Thank you very much, Mr. Chairman, and I

want to thank you for calling this hearing.

The Hatch Act was passed to ensure that Federal Government

employees work on behalf of the American people rather than the

political party that happens to be in power. The Hatch Act prohibits Federal employees from engaging in political activity on Federal property and from using their official authority to influence

elections. The Hatch Act strikes a balance between protecting the

free-speech rights of hardworking public servants and ensuring

that government operations are being conducted appropriately.

This committee has conducted significant oversight work on the

Hatch Act in the past. After determining that the White House officials provided political briefings to agency political appointees prior

to the 2006 midterm elections, the committee conducted an investigation into the activities of the White House Office of Political Affairs. In 2008, former Chairman Henry Waxman issued a staff report of that investigation, concluding that the Office of Political Affairs enlisted agency heads across government in a coordinated effort to elect Republican candidates to Congress. This report recommended eliminating the Office of Political Affairs.

The Office of Special Counsel, an independent agency charged

with providing guidance and enforcement of the Hatch Act, conducted a parallel investigation and issued a report of its findings

on January 21, 2011. The report concluded that numerous White

House officials and political appointees in the previous administration had violated the Hatch Act.

On January 20, 2011, it was reported that the President would

close the Office of Political Affairs. I believe this is an improvement

that should have been made back in 2008.

Another significant improvement is the appointment of a new

special counsel, Carolyn Lerner, who was sworn in just last week.

The Hatch Act is meaningless without responsible enforcement.

Unfortunately, the Office of Special Counsel experienced significant

problems under its previous leader, who was sentenced to 1 month

in prison for contempt of Congress for lying in statements made to

this very committee.

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Now is the chance for the Office of Special Counsel to turn the

page. And I look forward to working with the new special counsel

on the implementation of the Hatch Act as well as efforts to

strengthen whistleblower protections for Federal workers.

I also look forward to working with the chairman and the new

special counsel on bipartisan legislation to update and clarify the

Hatch Act. The witnesses before us today will express concern that

a report issued by the Office of Special Counsel in January was unfair because it established a new interpretation of the Hatch Act

that employees were unaware of prior to the report. Many other

Federal employees feel the same way. They find themselves penalized after the fact for actions they did not realize were against the

rules.

Increased training is always helpful to help prevent these problems, but it also may be helpful to revisit some of these issues legislatively. For example, the Hatch Act does not provide for a graduated penalty system, and Federal employees have been subjected

to varying interpretations of the appropriate use of email.

I want to thank all the witnesses for coming here today. I look

forward to your testimony. I hope that, by working together in a

bipartisan manner, we will be able to achieve the right balance for

the American people and for our Federal employees.

And, with that, Mr. Chairman, I yield back.

Chairman ISSA. I thank the Member.

All Members will have 7 days to submit opening statements and

additional materials.

We now recognize our panel of witnesses.

Professor Richard Painter is a professor of corporate law at the

University of Minnesota Law School and a former associate counsel

to President George W. Bush from 2005 to 2007.

Mr. Scott Coffina is a partner at the law firm of Montgomery &

McCracken and a former associate counsel, also, to President

George W. Bush from 2007 to 2009.

Ms. Ana Marrone is the chief—is the current chief of the U.S. Office of Special Counsel for the Hatch Act.

Pursuant to the committee rules, I would ask all to rise, raise

their right hands, and take the oath.

[Witnesses sworn.]

Chairman ISSA. Let the record indicate that all witnesses answered in the affirmative.

Please be seated.

I believe all of you have seen this before, but just for clarification, your entire written statement will be placed in the record. We

strongly encourage you to use your 5 minutes for things not just

in the record, but it is up to you. When the light turns yellow,

please try to summarize. When it turns red, please yield to the

next person.

Professor Painter.

I am afraid you are going to have to either pull it closer or hit

the microphone button.

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STATEMENTS OF RICHARD W. PAINTER, PROFESSOR OF CORPORATE LAW, UNIVERSITY OF MINNESOTA LAW SCHOOL,

FORMER ASSOCIATE WHITE HOUSE COUNSEL TO PRESIDENT GEORGE W. BUSH, 2005–2007; SCOTT A. COFFINA, PARTNER, MONTGOMERY, MCCRACKEN, WALKER & RHOADS, LLP,

FORMER ASSOCIATE WHITE HOUSE COUNSEL TO PRESIDENT GEORGE W. BUSH, 2007–2009; AND ANA GALINDOMARRONE, HATCH ACT UNIT CHIEF, U.S. OFFICE OF SPECIAL COUNSEL

STATEMENT OF RICHARD W. PAINTER

Mr. PAINTER. Mr. Chairman and members of the committee,

thank you very much for inviting me to testify today.

For 21⁄2 years, from 2005 to 2007, I was the chief White House

ethics lawyer. The White House Counsel’s Office had another lawyer cover Hatch Act issues, but I was consulted on Hatch Act matters, and I included Hatch Act compliance in my monthly lectures

for incoming White House staff.

The Office of Political Affairs, I believe, does not belong in the

White House. And I believe that partisan political activity by White

House staff and other government employees in the executive

branch is inconsistent with their official duties. There are several

problems I see with it.

First, the legal distinctions are very difficult to make. This report

from the Office of Special Counsel, I believe, makes that abundantly clear. Figuring out which events are official events, which

events are political events can be extraordinarily difficult. Figuring

out who pays for what can be very difficult. And figuring out how

to use email, whether an email is an official email or a political

email, can be difficult. If you make the wrong decision and send an

official email through a political email system, you risk losing the

record and violating the Presidential Records Act. There are too

many legal problems with having executive-branch employees and

White House staff wearing two hats at the same time—the political

and the official.

Second, it is conflict of commitment. One hundred percent of U.S.

Government employees’ time should be devoted to the public interest, to the work of the U.S. Government, not to the work of a political party. Too much time is spent by some executive-branch employees, particularly close to an election, on political work that detracts from official duties.

And, finally, and my most serious concern, is conflict of interest.

And I discuss this more in my written testimony. When you have

political events, particularly fundraisers, that executive-branch employees and high-ranking White House staff and agency employees

attend in the evening hours and speak with donors about what

they want and what they don’t want and all of that is done in a

personal capacity and then those very same people go to the office

the next morning to make official-capacity decisions, sometimes allocating billions of dollars in our budget or deciding whether to regulate an industry and how, those discussions, had in a so-called

personal capacity, can have a direct impact on official policy. I believe the conflict of interest is insurmountable.

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So, therefore, I am strongly of the view—I know the law is not

this way—but I am strongly of the view that the law should prohibit partisan political activity by executive-branch employees

other than the President and the Vice President.

Whatever the law is, it needs to be a lot clearer than it is today

in this area. There are a number of issues addressed in the report

by the Office of Special Counsel where I think the law has been

very unclear. Who, for example, in the White House, on the White

House staff, is a so-called 24/7 employee who can engage in political activity during the day, during the workday, in a U.S. Government building?

The law says that anyone who is paid out of the budget of the

Executive Office of the President whose duties extend beyond normal working hours and away from the office is exempt from the

Hatch Act restrictions with respect to political activity in a U.S.

Government building during the workday. Well, I have worked in

the White House, and I have seen almost nobody go home at 5

o’clock. I have seen very few people go home at 6 o’clock or 6:30,

7 o’clock—a lot of people there in the evening very late, working

weekends, working from home on official U.S. Government business.

So it would seem to me—and I know that the White House,

under several administrations, has operated under the assumption

that many White House staff members are so-called 24/7 and

therefore qualify for this exemption. I do not agree with the exemption; I don’t think it ought to be there. But it is there, and that

is how it has been interpreted under several administrations.

And now the Office of Special Counsel report has taken the position, referring to the Leave Act—and I think has made a credible

argument—but referring to the Leave Act, has said that basically

commissioned officers in the White House only may participate in

political activity of this sort.

So this is a serious concern, that the law is not clear in this area.

And, therefore, I believe strongly that the law needs to be clearer,

that the law, in my view, should simply prohibit the political activity of this sort, but we need a clear message to executive-branch

employees as to what they can do and what they cannot do.

I believe my time has now expired.

[The prepared statement of Mr. Painter follows:]

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Chairman ISSA. It is. But, not as a form of a question, but if you

will clarify for our freshmen what constitutes a commissioned officer in the White House, so that the new Members understand.

Mr. PAINTER. There are 100 commissioned officers, I believe, in

the White House. And those are assistants to the President, of

which there are 25; deputy assistants to the President, of which

there are 25; and special assistants to the President—and associate

White House counsels, of which there are approximately 50.

Chairman ISSA. Thank you. None of whom are uniformed commissioned officers is what I was hoping you would clarify.

Mr. PAINTER. Oh, yes. That is true, Mr. Chairman. They are not

uniformed.

Chairman ISSA. Thank you.

Mr. Coffina.

STATEMENT OF SCOTT A. COFFINA

Mr. COFFINA. Chairman Issa, Ranking Member——

Chairman ISSA. You have the same microphone problem, if you

could, please.

Mr. COFFINA. Chairman Issa, Ranking Member Cummings, and

members of the committee, my name is Scott Coffina, and I appreciate your invitation to sit before you today to discuss how effectively the Hatch Act accommodates the intersection of politics and

policy in the White House.

I have had the privilege of serving in the White House two times,

first as a staff assistant in the Office of Political Affairs under

President Reagan, where I worked under the restrictions of the

Hatch Act, and then as associate counsel to President George W.

Bush from 2007 to 2009, where my responsibilities included advising the Office of Political Affairs and the rest of the White House

staff on the Hatch Act.

While the Hatch Act recognizes the unique Federal employment

environment of the White House, where the President has the dual

role as head of state and head of his political party, the specific

rules of the road for White House employees have never been entirely clear. Advising the White House staff on the contours of the

law, therefore, has been more of an art than a science. This committee is doing a service to current and future members of the

White House staff by considering how the parameters of the Hatch

Act might be refined and clarified to guide their future conduct.

The White House Office of Political Affairs generally has been

the organizational hub for the President’s political advisors. OPA

historically has been responsible for facilitating the President’s

communications with supporters, national campaign committees,

and the campaigns of House and Senate candidates, and to plan

and coordinate his political activities.

It is important to consider, however, that ‘‘political affairs’’ does

not necessarily mean ‘‘partisan affairs.’’ OPA also supports the

President in a wide range of official matters, serving as an important conduit to and from the President’s supporters on policy

issues, personnel decisions, and appointments. Sound political advice on how policy proposals will be received by the public and

their chances for success is an important part of Presidential governance.

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Having a defined office within the White House to support the

President in his political role, as well as in his official role, allows

for greater discipline and accountability to Congress and to OSC in

carrying out their respective oversight and enforcement responsibilities. Therein lies the concern with the White House’s decision in

January to disband the Office of Political Affairs: a lack of transparency into the political activities of the White House.

OPA may have outsourced to the President’s re-election campaign office in Chicago, but politics in the White House does not

just go away. This committee has rightfully been concerned about

how political activities within the White House will be coordinated

and executed going forward, which is becoming increasingly more

important as the President’s re-election campaign heats up.

Last week, the New York Times reported that President Obama

hosted a group of Wall Street executives, many of them long-time

donors, in a meeting in the Blue Room of the White House that

was organized by the Democratic National Committee. When asked

about this event last week, the White House Press Secretary described it as ‘‘the President meeting with his supporters in the

business arena to solicit ideas about how to improve the economy.’’

It is unclear why the Democratic National Committee would have

been used to organize a meeting to solicit advice on the economy.

Indeed, this meeting seems to walk a fine line between official and

political, with all the attendant Hatch Act concerns.

With the Political Affairs Office closed, it is unclear who at the

White House would be involved in this outreach to key supporters

of the 2008 campaign and ensuring that they complied with the

Hatch Act and the Presidential Records Act.

Turning to the Office of Special Counsel report, the report released in January about the 2006 election cycle raises a number of

important issues concerning the intersection of politics and policy.

Unfortunately, OSC did not consider these issues in a constructive

way, employing inappropriate legal standards, drawing conclusions

based on ambiguous evidence about activities for which the statute

provides minimal guidance, and failing to consider important information that would place these activities in a fuller context.

One important issue raised by the OSC report is determining the

scope of Hatch Act exemption on its workplace restrictions for employees within the White House. The Hatch Act supplies a standard: those whose duties continue outside of normal business hours

and while away from their normal duty post. However, OSC applied a separate employment statute governing pay levels and

leave requirements to determine that less-senior members of OPA

fell outside of the exemption.

The job requirements of associate directors should have qualified

them for the exemption, but OSC applied a standard that relies on

status, not function. Since the Hatch Act itself provides a standard

by which to evaluate, it is improper for OSC to look to the Leave

Act instead. The decision to rely on the Leave Act was outcome-determinative. If OSC had fairly evaluated the job responsibilities of

associate directors under the terms of the Hatch Act, OSC could

not support its conclusion that they violated the statute by engaging in political activity while on duty.

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More importantly, if associate directors of political affairs cannot

participate in political activities while on duty, they also cannot

support the political activities of the President himself. In other

words, under OSC’s reasoning, the President cannot rely upon junior members of his staff for logistical support for his own political

activities. This begs the question about what duties the associate

directors have performed in the current White House.

The OSC report also raises one more complex Hatch Act issue,

that being the classification of certain Presidential or Cabinet-level

travel as official, political, or mixed, which is important to ensure

the proper allocation of costs. In its report, OSC concludes that certain events were misclassified as official trips and should not have

been funded at taxpayer expense because of evidence that such

events were politically inspired without evaluating the content of

the events themselves, which I submit is a far more objective and

easier standard to employ.

In——

Chairman ISSA. In conclusion?

Mr. COFFINA. Yes.

In conclusion—and I have a number of recommendations that

might clarify the rules of the road. But I think that the OSC has

provided an impossibly subjective standard in terms of trying to

evaluate and discern the motivation behind a political activity and

official event, whereas there are objective criteria that we might

employ.

[The prepared statement of Mr. Coffina follows:]

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Chairman ISSA. Thank you.

Ms. Marrone, I think he was talking about you.

Ms. GALINDO-MARRONE. He was.

Chairman ISSA. You are recognized to respond in any way you

want to respond.

STATEMENT OF ANA GALINDO-MARRONE

Ms. GALINDO-MARRONE. Mr. Chairman Issa, Representative

Cummings, and members of the committee, I thank you for the opportunity to appear before this committee to discuss the Hatch Act.

My name is Ana Galindo-Marrone, and I am a career civil servant. I have been the chief of the Hatch Act Unit at OSC since 2000.

I am pleased to speak about OSC’s experience enforcing the Hatch

Act. The visibility this hearing brings to the Hatch Act can enhance

awareness and understanding and deter violations of the law,

which is central to our mission.

The Hatch Act restricts the political activity of Federal executivebranch employees, District of Columbia employees, and State and

local employees who work on federally funded programs.

The law was enacted in 1939 to address the spoils system that

dominated the Federal workplace in the 19th and early 20th centuries, under which Federal employment and advancement depended largely upon political party service and changing administrations, rather than meritorious performance. In passing the law,

Congress determined that placing limits on employees’ partisan political activity was necessary for public institutions to function fairly and effectively.

The Hatch Act is essential to ensuring that our government operates under a merit-based system and serves all citizens regardless

of partisan interests. Indeed, the Supreme Court recognized the

purposes enacting the Hatch Act were to ensure: the impartial execution of the laws; that the rapidly expanding government work

force should not be employed to build the powerful, invincible, and

perhaps corrupt political machine; and that employment and advancement in the governmentservice not depend on political performance; and, at the same time, to make sure that government

employees would be free from pressure and from expressed or tacit

invitation to vote in a certain way or perform political chores in

order to curry favor with their superiors, rather than to act on

their own beliefs.

The reasons for the passage of the Hatch Act remain as compelling today as they were when it was first enacted. Critical to good

and fair governance and to maintaining the public trust is a commitment by public servants to a neutral, nonpartisan Federal

workplace. OSC is committed to its statutory mission to enforce the

Hatch Act, and that commitment is demonstrated in the hard work

of the career lawyers that work in OSC’s Hatch Act Unit.

Growing public awareness of OSC’s enforcement efforts and increased media attention contributed to record numbers of Hatch

Act complaints received and advisory opinions issued in fiscal year

2010. During that year, Hatch Act Unit staff, which consists of only

15 employees, issued well over 4,000 advisory opinions. Also during

that time, the unit received 526 complaints and investigated and

resolved 535 cases. Many of these cases were resolved informally

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without litigation by advising employees they were in violation of

the act and securing their willingness to comply with the law.

A number of the complaints the unit investigated or is currently

investigating concern allegations of Federal employees using their

official authority to effect the results of elections, including instances where supervisors targeted subordinates for political contributions. Similarly, in State and local cases, the unit investigated

allegations of supervisors, including law enforcement officials,

using their official authority to coerce subordinates into making political contributions.

The unit has been proactive through its advisory and outreach

efforts in educating employees about the act. In particular, the unit

is responsible for a nationwide program that provides Federal, District of Columbia, and State and local employees, as well as the

public at large, with legal advice.

The unit is also active in OSC’s outreach program. In the last fiscal year, the unit conducted approximately 30 outreach presentations. Many of these programs involved high-level agency officials. Notably, several of these programs were conducted as roundtable discussions with political appointees in attendance.

As part of OSC’s outreach efforts, Hatch Act publications are

available upon request on OSC’s Web site and distributed during

outreach programs. Currently, some of our efforts are focused on

educating Federal employees about the Hatch Act and the use of

technologies, including email, blogs, social media such as Twitter

and Facebook.

OSC also enforces compliance with the Hatch Act by investigating complaints and, in some cases, seeking disciplinary action.

In the last 12 months, OSC has sought disciplinary action in several cases involving Federal employees who engaged in prohibited

political activity, including using a government computer to make

political contributions or emailing invitations to political fundraisers while on duty, soliciting political contributions from subordinates via email, and hosting political fundraisers. The MSPB, the

Merit Systems Protection Board, has found that engaging in such

prohibited activity warrants disciplinary action.

The Hatch Act was last amended in 1993. OSC looks forward to

working with Congress if it determines that the act should be

amended again.

Thank you, and I look forward to taking your questions.

[The prepared statement of Ms. Galindo-Marrone follows:]

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Chairman ISSA. Thank you.

I will recognize myself for the first round.

Could you put the slide up?

I think, Ms. Galindo-Marrone, this is from the Web site of the

Office of the President. Can you say whether or not the announcement made in January that the political office was being closed,

that it has been closed? Or does this mean that it is still open but

still in the process of closing?

Ms. GALINDO-MARRONE. I am sorry. This announcement appears—Chairman, this announcement appears where? I am sorry?

Chairman ISSA. This is on the White House Web site.

Ms. GALINDO-MARRONE. Oh, the White House Web site. I am

sorry.

Chairman ISSA. So, I mean, the question is, if it is still on the

Web site as of today, 6 months after an announcement of its closing, since you work directly on this, is there still an office, are

there still any personnel? Or is this just an oversight, that it still

essentially appears to be in place?

Ms. GALINDO-MARRONE. I am not aware of the White House’s Office of Political Affairs——

Chairman ISSA. So this is just legacy, as far as you know?

We asked somebody from the White House to come, and we got

a refusal for anyone to come from the White House, so this is one

of our questions.

Mr. Coffina, you said you can’t actually operate without this,

without having somebody doing the same job. To your knowledge,

is there an office there or are other people just doing that job?

Mr. COFFINA. Mr. Chairman, I don’t know if they have officially

closed the office. I do suspect from my own experience that somebody is advising the President on political events, political activities, and also handling some logistics for them. But I don’t know

the structure right now.

Chairman ISSA. Okay, I am going to ask a broad question, and

I will start off by characterizing it.

On this side of the dais, we have a much different set of rules,

and although it attempts to mirror the Hatch Act—it is a great

question for all of you—well, particularly for our two former counsels. One of the things that we have to look at here is, anything

we ask the administration to do we have to try to mirror something

similar here on the Hill. If we don’t, then it would be inappropriate

relative to our oversight of their branch versus fairness here.

Is it fair to say that, in the past, people working in the White

House consistently reached out and asked donors for money, during

previous administrations and probably still today, in their exempt

role? I didn’t say political activities. I said, asked for money, solicited people to give money to the campaign to elect or re-elect the—

or, re-elect the President.

Please, Mr. Painter, Professor.

Mr. PAINTER. I would very much hope not, because solicitation of

contributions is prohibited under the Hatch Act, both in a personal

capacity and in a political capacity. They may speak at the fundraiser, but they may not ask for money.

Chairman ISSA. But if a Cabinet officer—some are prohibited,

but some are not—or any number of other people in the Office of

27

the President or in the administration, if they regularly are noted

as the person that is going to speak, talk, converse, mingle with

people at a fundraiser, are you saying that they are simply being

used to gain that funding but they don’t make the ask, even though

they are there overtly to thank everyone for being there?

Mr. PAINTER. Yes, I believe the distinction is artificial. It is a distinction made under the law as it now stands. I do not think they

ought to be there, I do not think they ought to be speaking at those

fundraising events, for exactly the reason you describe.

Chairman ISSA. And I take from Mr. Coffina’s statement, a line

that is hard to discern, which is, it is hard to figure out what is

a political related to the policy of the President, the ongoing legislation, such as the example of meeting with people who happen to

be donors but also happen to be knowledgeable people in the business arena.

But is it so hard to have a clear cutoff that people who are on

the Federal payroll for the executive branch may not attend fundraisers on behalf of the President’s re-election or similar activities

for the party of the President?

Mr. PAINTER. I believe that works. The President and the Vice

President of the United States may attend, and so may you. You

are an elected Member of Congress.

Chairman ISSA. Trust me, if I don’t come, I am not getting reelected.

Mr. PAINTER. Absolutely.

Chairman ISSA. But leaving aside the elected officials, would you

say that, in changing the Hatch Act, one thing we should consider

is a bright line that prohibits employees of the President effectively

from attending fundraisers?

Mr. PAINTER. Absolutely, yes. I would agree with that.

Chairman ISSA. How should we define the difference between a

postal worker who attends who simply happens to work indirectly

for the executive branch and where the bright line should be under

the Hatch Act?

Mr. PAINTER. That is a more difficult determination, but the political appointees often are either—some of them are Schedule C.

Political appointees are easier to designate than the—you can designate the difference between a political appointee and a career

civil servant. We do that throughout the United Sates Government.

So that would be part of the drafting process for a statute, to designate those Federal employees who may not attend political fundraisers. But it essentially would be the politicals.

Chairman ISSA. Right.

My time has expired, but, Ms. Marrone, would you tell me how

that would be if we made that sort of a change to the Hatch Act,

a bright line at some level of either level of service or a political

appointee? Would that make your enforcement clearer relative to

that political activity most commonly called fundraising?

Ms. GALINDO-MARRONE. Currently, the rules, the law does permit all individuals covered by the Hatch Act to attend fundraisers.

And, in fact, if the individual does not solicit but they are there as

a guest speaker in attendance, as long as they don’t personally solicit for the contributions, it is not prohibited.

28

In terms of drawing a distinction between the civil service and

the political appointees, the Hatch Act regulations that are written

by OPM indicate that political appointees may be further restricted.

Chairman ISSA. Thank you.

Okay. I think I will go to the ranking member, if you don’t mind.

The ranking member is recognized for his questions.

Mr. CUMMINGS. Thank you very much.

I want to go back to a question that the chairman asked about

the closure of the political office. My understanding is that White

House counsel briefed the staff, both Republican and Democratic

staff, on June the 10th, and this issue was specifically addressed.

And the White House said that the office was closed and that the

Web site was a legacy issue that needs to be fixed. And they need

to do that. I would agree that it should not have something on a

Web site that is not accurate or what have you.

OSC generally provides guidance on the Hatch Act issues

through advisory opinions. In 2002, OSC issued an advisory opinion that permitted executive-branch employees some limited use of

emails to engage in partisan political activities when it was similar

to a social conversation around a watercooler.

Ms. Marrone—is it ‘‘Marrone?’’

Ms. GALINDO-MARRONE. ‘‘Marrone.’’

Mr. CUMMINGS. Is that an accurate explanation of the 2002 guidance?

Ms. GALINDO-MARRONE. There was a lot of confusion surrounding

the 2002 guidance. The 2002 guidance was an attempt to address

what we saw in the 2000 election going forward, where Federal employees began to use their emails, their emails at work, to engage

in political activity. In an attempt to address the issue, we put out

this advisory opinion that, in explaining that email could not be

used to engage in political activity, what was not prohibited still

were watercooler-type conversations.

But it became known as the watercooler exception, and there has

never been such an exception. When we look at what is prohibited,

we look at the definition of political activity, and it is activity directed at the success or failure of a candidate for partisan office,

political party, or partisan group.

So if the conversation, whether it be via email or in person, does

not fall within that definition, then it is permissible. But if it is activity directed at the success or failure of a candidate or one of the

other groups, then it would be prohibited.

Mr. CUMMINGS. So you are telling us that, in March 2007, OSC

basically rescinded the 2002 advisory opinion. Is that an accurate

statement?

Ms. GALINDO-MARRONE. We rescinded it because we felt that the

Federal community found it confusing.

Mr. CUMMINGS. Uh-huh.

Now, that is not an insignificant difference, is it? In other words,

this is saying that something is permissible for 5 years and then

saying that the same actions were no longer permissible. Can you

explain why OSC’s guidance on this issue changed? Because I don’t

see that as being insignificant at all.

29

Ms. GALINDO-MARRONE. Sure. The position of the office is that

the opinion—the guidance has never changed. The way it was

being interpreted was the issue. Watercooler-type conversations

have always been permissible, in that if the conversation, the communication is not directed at the success or failure of a candidate,

then it is permissible.

And that has been the consistent position of the office. But some

of the readers of the advisory opinion found it confusing. That is

why we rescinded it, not because we were changing our position on

the issue.

Mr. CUMMINGS. Now, do you still get inquiries about that issue,

this watercooler email issue?

Ms. GALINDO-MARRONE. We receive a number of inquiries about

political activity on duty, including the use of the email system.

Mr. CUMMINGS. Uh-huh. The reason why I ask that is we are

hearing a lot of workers and employee groups sort of complain

about the two conflicting opinions and continued confusion over

what an employee can and cannot say, particularly in a casual

email.

Do you think that you have provided the—do you think it deserves even more clarification? And do you see a very thin line?

Ms. GALINDO-MARRONE. We have——

Mr. CUMMINGS. So this is a case-by-case thing, isn’t it?

Ms. GALINDO-MARRONE. It is. It is. And the devil is in the details. We, as I think I indicated in the opening statement, we

issued over 4,000 advisory opinions last year. So there is certainly

a need for us to do outreach and continue to provide guidance.

Sometimes these issues, there are shades of grey. So we have to

look at the actual activity, the communication, in order to be able

to assist and guide the employee in trying to figure out whether it

is prohibited or not.

Mr. CUMMINGS. Let me ask you this. What are some of the challenges that email and social media pose for OSC and the agencies

in terms of interpreting and enforcing the Hatch Act? With technology being what it is today and changing, you have one kind of

technology this morning, and then it is outdated this afternoon.

Ms. GALINDO-MARRONE. Certainly. Well, we recently—and I have

copies with me if anyone is interested—but we recently issued a

pretty comprehensive advisory on social media, as issues started to

come up within the last 12 months concerning the rapid use of it.

And some of the issues, for example, include what employees can

or can’t do with respect to posting on their Facebook page or in

terms of posting tweets, including also issues about soliciting on

their Facebook page; or what if a friend posts something onto their

page that is a solicitation, are they responsible for removing that

post or not?

In addition, we have received a number of issues in this area

concerning the profile that many individuals have on their

Facebook page, and the fields. And employees are confused as to

whether they can populate the fields with their employment position.

Mr. CUMMINGS. Uh-huh.

I see my time is up. Thank you.

Chairman ISSA. I thank the gentleman.

30

We now recognize the gentleman from South Carolina, in his

fresh seersucker suit, Mr. Gowdy.

Mr. GOWDY. It was the only suit that was clean, Mr. Chairman.

Thank you.

Professor Painter, I wrote as quickly as I could while you were

talking, and I ran out toward the end. You said 100 percent of government employee time should be spent on doing?

Mr. PAINTER. The business of the U.S. Government.

Mr. GOWDY. Does your opinion extend to what is called official

time?

Mr. PAINTER. It extends to official time and to personal time. I

do not believe that the political appointees in the government

should be in their personal capacity——

Mr. GOWDY. When I say official time, I am talking about unionrelated activities on government time.

Mr. PAINTER. I have not considered union-related activities in my

analysis here.

Mr. GOWDY. Well——

Mr. PAINTER. I would have to think about that, because that is

a serious concern, the union-related political activities.

Mr. GOWDY. How long do you think it would take you to think

about it? Because the analysis—I mean, you were pretty clear, a

hundred percent of the time should be spent doing a hundred percent of the people’s work.

Mr. PAINTER. Yes.

Mr. GOWDY. Does that include lobbying Congress and union-related activities?

Mr. PAINTER. On the official clock?

Mr. GOWDY. Yes.

Mr. PAINTER. Oh, during their official time, when they are actually supposed to be at work.

Mr. GOWDY. Well, that is what official time means, is that you

don’t have to do your day job; you can spend all your time on

union-related activities.

Mr. PAINTER. I haven’t looked carefully at that area. I don’t like

it. I mean, my initial reaction is, that shouldn’t be going on.

Mr. GOWDY. Would you be gracious enough to take a look at it

and let me know what your perspective is? Because you have obviously studied this issue more than I have.

Mr. PAINTER. Yes. The union-related work I have not looked at

in detail, but I am concerned about that.

Mr. GOWDY. Good.

Mr. PAINTER. If, on the official time, there is lobbying going on

that is focused on the political—I mean, the political activity that

I am talking about here is campaigns. There is a separate set of

issues that surrounds lobbying Congress and there is a separate set

of rules that governs lobbying Congress——

Mr. GOWDY. Right.

Mr. PAINTER [continuing]. As opposed to political activity geared

toward elections. So those are two sets of categories, and these

unions are doing both.

Mr. GOWDY. I get that. I get that. If you would just look and

maybe just, I don’t know, write a paper on it or publish an article

or something that——

31

Mr. PAINTER. Yes.

Mr. GOWDY. Put it where I can read it, though, so maybe in a

newspaper, because I may not have access to your trade journals

or something like that. I would be curious what your analysis is.

Mr. PAINTER. Thank you.

Mr. GOWDY. Ms. Marrone, let me ask you a couple questions. In

South Carolina, sheriffs run in partisan elections. In other States,

they do not, which creates the anomaly that in South Carolina, say,

a current U.S. marshal, as I understand it, cannot run for sheriff,

but in another State they could?

Ms. GALINDO-MARRONE. Under the Hatch Act, State and local

employees that are covered by the Hatch Act—and it is not all

State and local employees—but assuming they are covered because

they have duties in connection with federally funded programs,

there is an exemption for elected officials to run for partisan elective office.

Mr. GOWDY. No, no, no. I mean a current U.S. marshal, a

current——

Ms. GALINDO-MARRONE. So Federal?

Mr. GOWDY [continuing]. A current DEA agent, a current Bureau

agent. Can they run for sheriff in South Carolina because it is partisan? And do you see any anomaly in the fact that they can run

in States where it is nonpartisan?

Ms. GALINDO-MARRONE. Currently, under the Hatch Act, if the

election is partisan, they would be prohibited from running in such

an election.

Mr. GOWDY. So, in South Carolina, a Federal prosecutor can run

for State court judgeship because that is nonpartisan. But if they

want to step across the North Carolina line, they cannot run for

judgeship in North Carolina because it is partisan.

Ms. GALINDO-MARRONE. Yes, if they are covered by the Hatch

Act.

Mr. GOWDY. What is the explanation for that? Because I am

struggling with it.

Ms. GALINDO-MARRONE. I guess you would—I would say Congress, I think, would be in the best position to address that——

Mr. GOWDY. So you would agree that it doesn’t make any sense.

Ms. GALINDO-MARRONE. I don’t have an opinion on that.

Mr. GOWDY. Sure you do. Everybody has an opinion on it.

Ms. GALINDO-MARRONE. We are responsible for enforcing the law.

And, currently, the law does make those distinctions——

Mr. GOWDY. Can a Federal prosecutor attend a political fundraiser?

Ms. GALINDO-MARRONE. Yes.

Mr. GOWDY. Can a Federal prosecutor be on the host committee?

Ms. GALINDO-MARRONE. No.

Mr. GOWDY. Can a Federal prosecutor speak at that fundraiser?

Ms. GALINDO-MARRONE. Are we talking about a U.S. attorney

or——

Mr. GOWDY. An assistant U.S. attorney.

Ms. GALINDO-MARRONE. An assistant United Sates attorney.

They would be able to speak at the fundraiser as long as they are

not soliciting for political contributions.

Mr. GOWDY. They can contribute.

32

Ms. GALINDO-MARRONE. They can contribute.

Mr. GOWDY. They can’t solicit. Can they ask for help? If they are

introducing their U.S. Senator, can they say, we would like you to

help Senator Issa or Senator Cummings?

Ms. GALINDO-MARRONE. They could solicit for votes——

Mr. GOWDY. But not for money.

Ms. GALINDO-MARRONE [continuing]. But not for money.

Mr. CONNOLLY. Run, Darrell, run.

Mr. GOWDY. Wow. Thank you.

Chairman ISSA. But they can be contributors, so they can be on

the host list, because they gave a certain amount and they are put

on that list. Or do they fall prey to someone who printed something?

Ms. GALINDO-MARRONE. That has happened from time to time,

that they have made a contribution and they appear on the host

committee, and now they appear to be soliciting.

Chairman ISSA. Thank you for making the case for intervention

by Congress.

The gentlelady from the District of Columbia.

Ms. NORTON. I appreciate this hearing, Mr. Chairman, as we approach another election.

I must say, the line-drawing in the White House I find particularly difficult. But there are millions of—what is it, almost 3 million—Federal employees who also come under the Hatch Act. They

are probably more political than most; they are highly educated

people. And they are very law-abiding people.

I just hope—you know, when we lawyers get a hold of something,

we tend to really make it confusing. For example, I am a member

of the Congressional Black Caucus. It has an event every single

year. We have had to have two briefings—this is our own ethics

that the chairman spoke of—we have had to have two briefings.

And the kind of thing that I think gets people stumbled, for example, is we learned that you could go to an event if there was finger

food and you could sponsor an event if there was finger food, but

if it was a hotdog, that was a meal and you couldn’t eat that. Do

you see how this trivializes—that is what they said with a straight

face.

When I think of with Federal employees who are held to Hatch

Act standards, I am concerned that the law may make a mockery

of itself. Because the Hatch Act says that there is only one penalty,

as I understand it, for violation of the Hatch Act for a Federal employee, and that is removal. Pretty nuclear. Is that true?

Ms. GALINDO-MARRONE. Well, the penalty provision for Federal

employees is different than it is for State and local employees. For

State and local employees, the only penalty is removal. For Federal

employees, the presumptive penalty is removal, but if by a unanimous vote of the MeritSystems Protection Board there is found to

be mitigating factors, then the penalty can be something less than

removal.

Ms. NORTON. Why was that chosen instead of the kinds of penalties we find in American law generally? Why not have penalties

that put an employee on notice, if you do these kinds of things, you

will get this kind of thing? The whole point of the law is the deterrent effect.

33

Does the Merit Systems Protection Board often unanimously

mitigate the penalty?

Ms. GALINDO-MARRONE. I would say, just in my experience from

the last year, of the cases that I mentioned in my opening statement, one was mitigated from removal to 120 days suspension, but

the other cases were removals.

Ms. NORTON. How many removals?

Ms. GALINDO-MARRONE. To give you an accurate answer, I would

have to get back to you with that.

Ms. NORTON. I would ask that you send that information to the

chairman and the ranking member and that they share it with us.

What is the argument against a graduated penalty?

Ms. GALINDO-MARRONE. OSC, at this time, doesn’t have an opinion as to whether that would be a good or a bad thing.

Anecdotally, I can share that, from time to time, agencies seem

reluctant to refer Hatch Act complaints to our office for concern

that, if it is a case where the office, after investigating, finds that

it warrants a prosecution, that they might lose a good employee.

Ms. NORTON. So, since the only penalty is removal, far from a deterrent effect, the nature of the penalty is such, I take it, that is

so disproportionate, as it were, to the crime, that perhaps many

violations do, in fact, not get referred, and therefore the violations,

perhaps, are encouraged to continue.

Ms. GALINDO-MARRONE. Well, certainly, if Congress wants to

consider making revision, that is something that OSC would be

willing and eager to assist with.

Ms. NORTON. You know, Mr. Chairman, this is a very old law,

and I can understand how when there was no experience with it—

now that we have almost 3 million employees, it does seem to me

that fair notice is a part of due process. And fair notice says, this

is how serious we take certain aspects of this violation to be. Federal employees—I am not sure about the White House—but Federal employees, it seems to me, would be very alert to try to abide

by the Hatch Act if that was the case.

Chairman ISSA. Would the gentlelady yield?

Ms. NORTON. Yes, sir, Mr. Chairman.

Chairman ISSA. I couldn’t agree with you more, that—I have

checked, and none of our staff was working here when this law was

passed. So, clearly, whoever misinformed us so clearly on writing

the law is no longer——

Ms. NORTON. It was 1939, Mr. Chairman.

Chairman ISSA. Exactly. Well, I have some old staff on my side.

But you are absolutely right. That is the reason we are holding this

hearing, in hopes that we can find this and other problems, working with the special counsel, so that, in fact, we can draft changes

that make sense for the entire Federal work force.

I yield back.

Ms. NORTON. Thank you, Mr. Chairman.

Chairman ISSA. We now recognize the gentleman from Michigan,

Mr. Walberg, for his line of questioning.

Mr. WALBERG. Thank you, Mr. Chairman.

And thank you to the panel for being here.

And I guess, for full disclosure, I take a position right now that

I am not sure that government is capable of putting together a

34

campaign or political activity act that will ever work totally. But

we have what we have, and we have to deal with it.

So let me—I have some questions, just in general, for the whole

panel. But, specifically, just to make sure that there is understanding on my part—I will ask Ms. Marrone first—what are the

civil and criminal penalties for violating the Hatch Act?

Ms. GALINDO-MARRONE. There are no criminal penalties. The

civil penalties for State and local is removal from employment.

With respect to Federal employees, it is a range, from a 30-day suspension, no less than a 30-day suspension, to removal. But, again,

the presumptive penalty so the starting point is removal for Federal employees.

Mr. WALBERG. No criminal penalties?

Ms. GALINDO-MARRONE. No criminal penalties.

Mr. WALBERG. Any good reason why not——

Ms. GALINDO-MARRONE. Not that I am——

Mr. WALBERG [continuing]. That you have been able to determine?

Ms. GALINDO-MARRONE [continuing]. Aware of.

Mr. WALBERG. Okay.

For the whole panel—and feel free to jump in, as you care to answer—but do you have any issues with the fact that political activity is not defined under the actual Hatch Act statute but is allowed

to be defined by regulation?

Professor Painter.

Mr. PAINTER. Well, it has to be defined much more clearly, either

through statute or through clear regulation.

To say that anything that might improve the electoral chances

of the President or the President’s political party is political activity is excessively broad. The President and his administration are

going to want to do what they need to do to get re-elected and to

get Members of their party re-elected. So that definition doesn’t

work.

And we need a definition that is clear, that focuses on the actual

campaigns—the activities of political campaigns, fundraising and

other activities. And, in my view, we ought to have a rule that then

prohibits the political appointees, not the career appointees but the

political appointees, from engaging in any of that conduct.

Mr. WALBERG. Mr. Coffina.

Mr. COFFINA. I generally agree with Professor Painter on that.

I think that the definition, as it is written in the regs, of political

activity would actually serve fairly well if it was the definition of

partisan political activity.

But as for political activity generally, because, as Professor

Painter explained, policy and politics intertwine so frequently, I

think it is very difficult sometimes to draw the line based on that,

and you start to get into subjective distinctions that do not provide

employees with fair notice of what the law is.

Mr. WALBERG. Ms. Marrone.

Ms. GALINDO-MARRONE. The definition of political activity is

broad, but it is meant to only address partisan activity. But, again,

it is through working through the regs and looking at other definitions that you arrive at that understanding.

35

But, certainly, at a minimum, updating the regs with more current examples that really address the reality that we see today in

the workplace would be very helpful.

Mr. WALBERG. Regarding the executive political activity more

generally, what is the distinction between political activity and partisan activity?

Ms. Marrone? I will start that direction and come back this way.

Ms. GALINDO-MARRONE. Sure.

I would argue that it is the same, because the definition of political activity ties through to the success or failure of a political

party, candidate for partisan political office, or partisan political

group. So when you parse out all the different components, it is always directed at partisan activity.

So, for example, if you had an employee that was engaged in activity in the office that was directed at a nonpartisan candidate,

the Hatch Act would not prohibit that activity, even though they

are both elections——

Mr. WALBERG. So, in reality, it is all partisan?

Ms. GALINDO-MARRONE. It is partisan.

Mr. WALBERG. Mr. Coffina.

Mr. COFFINA. Congressman Walberg, I believe you have touched

upon, you know, the primary concern that you have with the

vagueness of the definition.

And to sort of use an example, you can look at the Blue Room

meeting that I referred to in my statement that took place at the

White House, where the President hosted donors. One can look at

that as political activity if you look at the circumstances and note

that the Democratic National Committee coordinated that event

and issued the invitations for it. But, at the same time, the description of the event as it occurred, it seems to have been on policy

matters where the President was soliciting advice about the economy.

Mr. WALBERG. But the reality, again, is it is partisan, wouldn’t

you say?

Mr. COFFINA. Well, I think it had partisans in it. I think probably the intent of it was partisan. But that is where you get into

this very fine line that is difficult to draw. It looks like the content

was official, but, certainly, the population of attendees and probably the purpose of it was partisan and political.

Mr. WALBERG. Okay.

Mr. PAINTER. President Roosevelt or one of his assistants in the

White House once said, spend and spend and spend and elect and

elect and elect. I mean, the objective, of course, of any administration is to do that which will lead to the political success of the

President and his political party. I just don’t see that a definition

that focuses on that objective is a narrow enough definition of political activity to work.

When we have almost a trillion dollars of stimulus money being

spent, of course it is spent with a hope of political success. It may

not work, but that is a different issue.

You know, I think we need a much narrower, more specific definition of partisan political activity that focuses on the activities of

the campaign. And that is what the Hatch Act is directed at, not

36

at everything else that goes on in government that might lead to

success.

Mr. WALBERG. Thank you.

Chairman ISSA. I thank the gentleman.

The gentleman from Virginia, Mr. Connolly.

Mr. CONNOLLY. Thank you, Mr. Chairman.

And welcome, to the panel.

Mr. Coffina, you worked in the Bush White House.

Mr. COFFINA. I did, Congressman.

Mr. CONNOLLY. And you indicated that you were in agreement

with Professor Painter about certain aspects of the definition of

what constitutes a political activity and trying to constrain them?

Mr. COFFINA. Yes.

Mr. CONNOLLY. In the Bush White House, is it not true that the

Office of the Special Counsel found blatant examples of violation of

the Hatch Act being conducted by the Office of Political Affairs—

for example, political briefings to GSA and other Federal agencies

highlighting vulnerable Members of their parties, Members of Congress, at the time, throughout the 2006 campaign season, in order

to basically highlight the vulnerability and a strategy to help?

Were you aware of that?

Mr. COFFINA. Well, Congressman, I was not in the White House

during the time of those briefings, so I am a little bit hamstrung

to comment on how they were executed. Because, to me, the important part of those briefings is not simply that they took place but

how they took place.

Mr. CONNOLLY. But you are aware of the fact that OSC, in fact,

did a report on these and cited them as violations of the Hatch Act?

Mr. COFFINA. Oh, of course I am aware of that, yes.

Mr. CONNOLLY. Okay. And, presumably, the action of the Obama

White House to abolish that office in part grew out of the controversy surrounding that activity. Is that not correct?

Mr. COFFINA. Well, I think there have been controversies surrounding the Office of Political Affairs and its existence going back

to when it was formed under President Reagan. So I can’t speak

to why the Obama administration made that decision. I know

President Obama, when he was candidate Obama, spoke about

abolishing it right away, and he ultimately made the decision 2

years later. But I am not privy to why he made the decision or why

he did it then.

Mr. CONNOLLY. Professor Painter, I thought I saw you shaking

your head.

Mr. PAINTER. Well, I think it ought to be abolished. I think the

President did the right thing, abolishing it. I wish he had done that

2 years earlier. I don’t think the arrangement works, to have an

Office of Political Affairs.

But he needs to not just abolish the Office of Political Affairs but

shut down partisan political activity in the White House, period. It

doesn’t help just to shut down the office and then have people lingering back in the White House who are doing the same type of

stuff in a different office.

Mr. CONNOLLY. Okay. Thank you.

Ms. Galindo-Marrone, one of the strange aspects of—I mean,

whenever you regulate, you are going to get, sadly, sometimes, into

37

the weeds. But one of the weeds involves photographs with the

President of the United States. And there are actually restrictions

on which photographs can be used and when. Is that correct?

Ms. GALINDO-MARRONE. Yes.

Mr. CONNOLLY. So, for example, if the President is up for re-election—although presumably every President in his first term is up

for re-election, but all right—the year of the re-election, and Sally

Q just happens to be at the USDA in the atrium, and there is the

President, and someone takes her picture with the President, and

proudly she puts it up in her cubicle because she is with the President.

That is actually a violation of the Hatch Act in a re-election

year?

Ms. GALINDO-MARRONE. If the President is already a candidate,

depending on the picture, it may or may not be a violation.

Mr. CONNOLLY. Depending on the picture?

Ms. GALINDO-MARRONE. That is correct. According to the regs,

Federal employees may not display pictures of candidates in their

offices or in Federal buildings.

So a unique situation occurs each time we have a President running for re-election because the incumbent still continues to be the

head of the executive; at the same time, the incumbent is now a

candidate. So we try to strike a balance by saying that official photographs can continue to be displayed, but if it is not an official

photograph, it should not be displayed.

And even as to official photographs, just to highlight sometimes

the issues, we have had individuals in the past that have painted

horns or halos on pictures or placed the pictures upside-down in

order to demonstrate their support or opposition for a candidate. So

even as to the official photograph, we indicate that they should be

displayed in a traditional size and manner.

Mr. CONNOLLY. Do you think most members of the work force are

aware of that?

Ms. GALINDO-MARRONE. I am sorry?

Mr. CONNOLLY. Is that a regulation or a guidance that——

Ms. GALINDO-MARRONE. That is a guidance we——

Mr. CONNOLLY. No, no. Is it widely known within the Federal

work force?

Ms. GALINDO-MARRONE. Well, I would like to think so. Every

time I go out and I do outreach for the last 8, 9 years, I have been

talking about the guidance. It is published on our Web site. But it

is a big Federal Government work force, and we are a small agency.

Mr. CONNOLLY. Well, Mr. Chairman, my time is up, and I thank

you. But I have to say, I think we do need a Hatch Act to set the

rules of engagement, but when you actually prohibit somebody

from a personal photograph with the President because it is a reelection year, to me, that crosses the line.

Chairman ISSA. Would the gentleman yield?

Mr. CONNOLLY. Yes, absolutely.

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Chairman ISSA. You know, I have an old friend down in Alabama, and he says, you know, that is as clear as mud. And I think

the gentleman did a good job of pointing that out.

Mr. CONNOLLY. Thank you, Mr. Chairman.

[The prepared statement of Hon. Gerald E. Connolly follows:]

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Chairman ISSA. The gentlelady from New York, Ms. Buerkle.

Ms. BUERKLE. Thank you, Mr. Chairman. And thank you for calling this hearing today on a very important topic.

I just want to follow up with something my colleague, Mr.

Connolly, brought up, and that is the OSC findings and the report

that was done. And I will address this question to Ms. GalindoMarrone.

In that—and we have heard testimony today that, really, it just

wasn’t the Bush administration; this is a systemic problem that we

see. But the OSC report only focused on George W. Bush’s presidency. Can you explain why the scope was so narrow?

Ms. GALINDO-MARRONE. We investigated the Bush administration, because those were the allegations that we were investigating.

However, we took note in the report that it seems that this is a

problem that has occurred in previous administrations, so that this

was not a unique circumstance to the Bush administration, but we

were investigating the case we had before us.

Ms. BUERKLE. But the concern would be that we singled out

George Bush’s presidency rather than looking at the whole scope

of where the problems might be.

Also, that report, the timeframe was 2009–2010. It was released

in 2011?

Ms. GALINDO-MARRONE. It was released in 2011.

Ms. BUERKLE. And so it investigated—it looked back at 2006.

That seems like a long time for that report. It seems like it took

a long time for that report to get done.

Why wasn’t President Obama—I mean, that was 2 years of his

presidency. Why wasn’t he included in any of that report?

Ms. GALINDO-MARRONE. The investigation and the allegations

arose in 2007. So the majority of the evidence, as we gathered the

evidence, centered around the 2006 activities. We typically do not—

that I am aware of, we have never combined. I mean, we investigate the case we have before us, and we don’t look to another administration in terms of first completing the investigation that we

have before us.

Ms. BUERKLE. I want to move on to my next question, but just

if you could, do you know who waged or who made the allegation

and made the complaint?

Ms. GALINDO-MARRONE. Well, it arose from a complaint that was

filed concerning activities at the General Services Administration.

So we first received a complaint concerning a political briefing that

occurred at GSA. And then, while we were investigating that one

case, we learned of additional briefings that had occurred throughout 22 Federal agencies, so we opened a separate case.

Ms. BUERKLE. Thank you.

Mr. Coffina, I don’t know if you would like to comment on that.

Quickly, if you could, so I can get to my next question.

Mr. COFFINA. On what, Congresswoman?

Ms. BUERKLE. On the OSC study. It seemed like you wanted to

say something or had a comment to make.

Mr. COFFINA. Well, you know, I think that they did acknowledge,

I think, in one sentence that there was some historical fact of these

events that they called out in their report as having occurred in

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prior administrations. In fact, you know, the history of political

briefings goes back, I believe, as far as President Reagan.

The Political Affairs Office has had a fair amount of continuity,

in terms of through both Democratic and Republican administrations, in terms of the types of things that they have done. And I

think that with that type of historical precedent, without any enforcement action by the Office of Special Counsel, I think it is, you

know, especially unfortunate that members of the Bush administration, specifically hardworking, more junior members of the administration, were sort of labeled as law-breakers, when they, I believe, in complete good faith that what they were doing was within

the law, simply followed the practices that their predecessors of

both parties have done.

Ms. BUERKLE. Thank you.

My next question is really for all three of you, and I am not sure

we will get to hear from all three of you, so let’s start with Professor Painter.

What are the restrictions on the meetings such as that was held

at the White House and organized by the DNC?

Mr. PAINTER. I do not know all of the facts about that meeting,

and I am hearing conflicting views as to whether it was political

or official.

If it is an official-capacity meeting in which official policy is being

discussed by White House staff members acting in their official capacity, the DNC should not be organizing the meeting. The White

House should be organizing the meeting. If the DNC is setting up

the meeting, that is a political meeting. In a political meeting, the

White House staff who participate in that meeting are doing so in

a personal capacity without use of official title, in a personal capacity, and they are talking about political campaigns or whatever

they want to talk about, other than asking people for money—that

is the one thing they cannot do, is solicit contributions.

I would never have agreed to having such a meeting going on in

the White House itself, in any room of the White House. I know

there is controversy about that, but I would not want to see those

meetings, quite frankly, going on on Federal property. What the

legal restrictions are is somewhat more ambiguous.

Ms. BUERKLE. It seems to me, with the DNC sending out the invitations and organizing it, it smacks the partisan, political, what

we are talking about here, that really shouldn’t be allowed.

I see I am out of time. I yield back. Thank you, Mr. Chairman.

Chairman ISSA. Thank you.

I apologize that so many Members were unable to get into a previous—or into this hearing because it is not yet the voting time.

But I have been asked, would each of you agree to accept, if you

will, friendly interrogatories, a series of questions that you may answer in a reasonable period of time, so that Members who were not

here could ask questions after they have looked at the record?

Ms. GALINDO-MARRONE. Certainly.

Mr. COFFINA. Yes.

Mr. PAINTER. Absolutely.

Chairman ISSA. Okay. So our normal policy is to hold the record

open only for 5 days. In this case, we are going to hold this record

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open for 30 days so they can ask questions, and we will extend it

even further if you need more time to answer.

[The information referred to follows:]

[NOTE.—The information referred to was not provided to the

committee.]

Chairman ISSA. Let me just ask one closing question. Do you all

agree that, whatever we do with the Hatch Act, we must have a

carveout for the security of Cabinet officers, particularly the President and Vice President—in other words, some accommodation

within the Hatch Act to recognize that the locations in which the

President may have meetings with supporters and the like has to

be consistent with some form of security for himself and other key

members that may in the future Hatch Act be allowed to participate?

That is really—I am hoping it is a softball question, but it is one

that I am deeply concerned that we not create a situation in which

we put certain officials in a position where, in order to have the

kind of meetings they need to, they find themselves in facilities inappropriate, recognizing the White House is the most appropriate

place, usually, for the President.

Mr. Painter, yes, sir?

Mr. PAINTER. Yes. I would—my view of that, it ought to be only

the President and the Vice President who engage in partisan political activity. But if other officials are allowed to do so, we have to

provide security, and who pays for the security is not the point.

Chairman ISSA. Okay.

We have had one other Member arrive for a first round. We recognize the gentlelady from New York, Ms. Maloney, for 5 minutes.

Mrs. MALONEY. Well, I just want to thank you and the ranking

member for holding this hearing. And I am going to put my questions in writing, in the interest of other meetings we have to get

to. Thank you.

Chairman ISSA. Thank you.

And since we previously agreed to answer an interrogatory style

set of questions, I want to thank you once again for your patience

and your participation.

And this hearing is adjourned.

[Whereupon, at 4:15 p.m., the committee was adjourned.]

[Additional information submitted for the hearing record follows:]

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