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[Senate Report 111-339]
[From the U.S. Government Publishing Office]

111th Congress                                                   Report
  2d Session                  SENATE                            111-339
_______________________________________________________________________                                     

                                                       Calendar No. 627
 
           DISTRICT OF COLUMBIA HATCH ACT REFORM ACT OF 2010 

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                               H.R. 1345

 TO AMEND TITLE 5, UNITED STATES CODE, TO ELIMINATE THE DISCRIMINATORY 
   TREATMENT OF THE DISTRICT OF COLUMBIA UNDER THE PROVISIONS OF LAW 
               COMMONLY REFERRED TO AS THE ``HATCH ACT''

               [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

               September 29, 2010.--Ordered to be printed

                               ----------
                         U.S. GOVERNMENT PRINTING OFFICE 

89-010 PDF                       WASHINGTON : 2010 

For sale by the Superintendent of Documents, U.S. Government Printing 
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Washington, DC 20402-0001 

        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

               JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan                 SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii              TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware           SCOTT P. BROWN, Massachusetts
MARK L. PRYOR, Arkansas              JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana          GEORGE V. VOINOVICH, Ohio
CLAIRE McCASKILL, Missouri           JOHN ENSIGN, Nevada
JON TESTER, Montana                  LINDSEY GRAHAM, South Carolina
ROLAND W. BURRIS, Illinois
EDWARD E. KAUFMAN, Delaware
                  Michael L. Alexander, Staff Director
                     Kevin J. Landy, Chief Counsel
             Elyse F. Greenwald, Professional Staff Member
  Bryan G. Polisuk, Counsel, Subcommittee on Oversight of Government 
    Management, the Federal Workforce, and the District of Columbia
     Brandon L. Milhorn, Minority Staff Director and Chief Counsel
        Amanda Wood, Minority Director for Governmental Affairs
 Thomas A. Bishop, Minority Professional Staff Member, Subcommittee on 
  Oversight of Government Management, the Federal Workforce, and the 
                          District of Columbia
                  Trina Driessnack Tyrer, Chief Clerk

                            C O N T E N T S

                              ----------                              
                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and Need..............................................1
III. Legislative History..............................................3
 IV. Section-by-Section Analysis......................................3
  V. Evaluation of Regulatory Impact..................................4
 VI. Congressional Budget Office Cost Estimate........................5
VII. Changes in Existing Law Made by the Bill, as Reported............5

                                                       Calendar No. 627
111th Congress                                                   Report
  2d Session                  SENATE                            111-339
=======================================================================

               DISTRICT OF COLUMBIA HATCH ACT REFORM ACT 
                                OF 2010

                                _______
                                

               September 29, 2010.--Ordered to be printed

                                _______
                                

Mr. Lieberman, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                        [To accompany H.R. 1345]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (H.R. 1345) to amend 
title 5, United States Code, to eliminate the discriminatory 
treatment of the District of Columbia under the provisions of 
law commonly referred to as the ``Hatch Act,'' having 
considered the same, reports favorably thereon with an 
amendment and recommends that the bill do pass.

                         I. Purpose and Summary

    The Hatch Act prohibits certain federal, state and local 
government employees, including employees of the government of 
the District of Columbia, from engaging in specified political 
activity. Since 1940, the Act has subjected D.C. government 
employees to the same restrictions as federal employees. H.R. 
1345 would, however, amend the Hatch Act to apply to D.C. 
government employees the same laws that govern state and local 
government employees rather than those governing federal 
employees. To ensure that D.C. government employees still face 
appropriate restrictions on partisan political activity, H.R. 
1345 would not take effect until after D.C. adopts a law 
governing such activities.

                II. Background and Need for Legislation

    Federal employees have faced restrictions on their 
political activities since the earliest days of the Republic. 
The Jefferson Administration, for example, issued an order 
stating that although it is the:

        right of any officer (federal employee) to give his 
        vote at elections as a qualified citizen .  .  . it is 
        expected that he will not attempt to influence the 
        votes of others nor take any part in the business of 
        electioneering, that being deemed inconsistent with the 
        spirit of the Constitution.\1\
---------------------------------------------------------------------------
    \1\A Compilation of the Messages and Papers of the Presidents, 
Volume 10, pp. 98-99 (1899).

    In 1939, increased concerns about partisan political 
activity of certain federal employees led Congress to pass what 
has become known as the ``Hatch Act.''\2\ The Hatch Act, as 
originally passed, restricts the political activities of 
executive branch employees in the federal government. In 
passing the Hatch Act, Congress affirmed the view that partisan 
activity of government employees must be limited if federal 
laws, institutions and programs are to be administered in a 
fair and transparent manner.
---------------------------------------------------------------------------
    \2\P.L. No. 76-252 (1939) (codified at 5 U.S.C. Sec. 7321 et seq.).
---------------------------------------------------------------------------
    One year later, Congress amended the Hatch Act to add a new 
section to restrict certain state and local government 
employees--those with jobs connected to activities financed in 
whole or in part by loans or grants made by the United States 
or a federal agency--from engaging in specified political 
activities.\3\ Currently, covered state and local employees 
face a slightly narrower set of restrictions than federal 
employees. They may not run for office in a partisan election, 
use their official authority to influence an election, or 
attempt to coerce a state or local employee to make a political 
contribution.\4\ Because Congress exercised direct control over 
the District of Columbia at the time of the 1940 amendments, 
Congress placed D.C. government employees under the provisions 
applicable to federal employees instead of categorizing them as 
state and local employees.\5\
---------------------------------------------------------------------------
    \3\P.L. No. 76-753 (1940) (codified at 5 U.S.C. Sec. 1501).
    \4\See 5 U.S.C. 1502. For more information on how OSC interprets 
these restrictions, please see http://www.osc.gov/haStateLocalfaq.htm. 
Federal employees and officials may not engage in the activities 
described in the text, but also face a number of other restrictions. 
They generally may not solicit or discourage participation in any 
political activity of anyone who has business pending before their 
agencies. In addition, they may not engage in partisan campaign 
activity on federal property, on official duty time, while wearing a 
uniform identifying them as a federal official or employee, or in a 
government vehicle. (5 U.S.C. Sec. 7323). For more information on 
further and less restricted employees, please see http://www.osc.gov/
hatchact.htm.
    \5\P.L. No. 76-753 (1940) (codified at 5 U.S.C. Sec. 7322).
---------------------------------------------------------------------------
    The role of the D.C. government, and therefore its 
employees, has evolved significantly since the 1940 Hatch Act 
amendments. A series of changes that culminated in the landmark 
1973 Home Rule Act, which provided the District the powers of 
local self-government,\6\ have made D.C. government employees 
more similar to state and local employees rather than to 
federal employees.
---------------------------------------------------------------------------
    \6\P.L. No. 93-198 (1973) (codified at D.C. Code Sec. 1-201.01 et 
seq.).
---------------------------------------------------------------------------
    Congress has previously recognized the need for the Hatch 
Act to accommodate the unique nature of the D.C. government and 
its employees. In 1940, at the same time that Congress placed 
D.C. government employees under Hatch Act coverage, it exempted 
``commissioners'' and ``the Recorder of Deeds of the District 
of Columbia'' from coverage under the Act.\7\ Moreover, one 
year after enacting the D.C. Home Rule law in 1973, Congress 
amended the Hatch Act to exempt the newly-created positions of 
Mayor of the District of Columbia, the Chairman and Vice 
Chairman of the City Council of the District of Columbia, and 
members of the City Council.\8\ These exemptions are similar to 
those granted to elected state and local officials under the 
current Hatch Act.
---------------------------------------------------------------------------
    \7\P.L. No. 76-753 (1940).
    \8\P.L. No. 93-268 (1974) (codified at 5 U.S.C. Sec. 7324).
---------------------------------------------------------------------------
    The Committee concludes it is now time to more precisely 
align the Hatch Act's mandates with the current structure of 
the D.C. government. Accordingly, H.R. 1345 would amend the 
Hatch Act to place employees of the District of Columbia under 
the provisions of the Hatch Act that apply to state and local 
government employees. D.C. government employees not covered by 
Hatch Act would still face restrictions on political activity, 
but the D.C. Council would determine the scope of those 
restrictions. To preclude a period of unfettered political 
activity in the D.C. government workplace, H.R. 1345 states 
that it would not go into effect until the District enacts a 
law governing the political activities of employees of the D.C. 
government.
    In consultation with the Office of Special Counsel (OSC), 
the independent federal agency authorized to investigate and 
pursue violations of the Hatch Act, the Committee recognized 
the need to make several changes to H.R. 1345 to clarify the 
District of Columbia's coverage under Hatch Act. Senator Akaka 
offered an amendment to that effect which was adopted. The 
amendment added ``the District of Columbia, or an agency or 
department thereof'' to the definition of ``state or local 
agency'' and added the District of Columbia to several other 
provisions. These additions were made to further ensure that 
D.C. employees would be covered under provisions of the Hatch 
Act applicable to other state and local government employees.

                        III. Legislative History

    H.R. 1345 was introduced by D.C. Delegate Eleanor Holmes 
Norton on March 5, 2009. The Committee on Oversight and 
Government Reform reported the bill to the full House on June 
9, 2009, and on September 8, 2009, the House, under a motion to 
suspend the rules, agreed to H.R. 1345 by a voice vote.
    On September 8, 2009, H.R. 1345 was received in the Senate 
and referred to the Committee on Homeland Security and 
Governmental Affairs. On May 17, 2010, the Committee considered 
H.R. 1345 at a business meeting. Senator Daniel Akaka offered 
an amendment that inserted references to the District of 
Columbia in several subsections of the Hatch Act. The Committee 
adopted the amendment and ordered the bill, as amended, 
reported favorably by voice vote. Members present for both 
actions were Senators Lieberman, Akaka, Carper, Pryor, 
Landrieu, Burris, Collins, Brown, Voinovich and Graham.

                         IV. Section-by-Section

Section 1. Short title

    The short title of the bill is the District of Columbia 
Hatch Act Reform Act of 2010.

Section 2. Employees of the District of Columbia to be subject to the 
        same restrictions on political activity as apply to state and 
        local employees

    Subsection (a) of Section 2 would amend 5 U.S.C. 
Sec. Sec. 1501, 1502, and 1506 to subject employees of the 
government of the District of Columbia to the same restrictions 
on partisan political activity that currently apply to state 
and local government employees under the Hatch Act.
    First, this subsection would amend 5 U.S.C. Sec. 1501(2) to 
add the District of Columbia, or an agency or department of the 
District of Columbia, to the definition of a ``state or local 
agency.'' 5 U.S.C. Sec. 1501(4) would also be amended to ensure 
individuals employed by an educational or research institution, 
establishment, agency, or system supported in whole or in part 
by the District of Columbia are exempt. This exclusion is 
granted to similarly-situated employees of state and local 
governments.
    This subsection also would amend 5 U.S.C. Sec. 1502(c)(3) 
to exclude the duly elected head of the District of Columbia 
from prohibitions on seeking elective office that apply to 
other state or local government employees.
    Subsection 2(a) of the bill would also amend 5 U.S.C. 
Sec. 1506(a)(2) to allow the Merit Systems Protection Board to 
issue an order to withhold federal funds if the Board finds 
that an employee ordered removed for violating the Hatch Act 
has been reappointed in the District of Columbia within 18 
months.
    Subsection (b) of Section 2 would amend 5 U.S.C. 
Sec. 7322(1) to remove individuals employed or holding office 
in the government of the District of Columbia from provisions 
of the Hatch Act applicable to federal employees.

Section 3. Effective date

    Section 3 states that the Act will take effect on the 
effective date of a law enacted by the District of Columbia 
government which places restrictions on political activities of 
employees of the government of the District of Columbia and 
will apply to actions taking place on or after that date.

                   V. Evaluation of Regulatory Impact

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this bill. The 
Congressional Budget Office (CBO) states that there are no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act and no costs on State, local, or 
tribal governments. The legislation contains no other 
regulatory impact.

             VI. Congressional Budget Office Cost Estimate

                                                      May 27, 2010.
Hon. Joseph I. Lieberman,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S. 
        Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1345, the District 
of Columbia Hatch Act Reform Act of 2010.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

H.R. 1345--District of Columbia Hatch Act Reform Act of 2010

    H.R. 1345 would amend the Hatch Act to remove some 
restrictions on the political activities of District of 
Columbia government employees. Under current law, such 
employees are subject to the same restrictions as federal 
employees under the Hatch Act. The bill would amend federal law 
to subject District of Columbia government employees to the 
same Hatch Act restrictions imposed on other employees of state 
and local governments whose principal employment is connected 
to an activity financed by funds from the federal government. 
CBO estimates that implementing the legislation would have no 
significant impact on the federal budget. Enacting the bill 
would not affect direct spending or revenues; therefore, pay-
as-you-go procedures would not apply.
    H.R. 1345 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    On June 9, 2009, CBO transmitted a cost estimate for H.R. 
1345, the District of Columbia Hatch Act Reform Act of 2009, as 
ordered reported by the House Committee on Oversight and 
Government Reform. The two versions of the legislation are 
similar, and CBO's estimate of their costs is the same.
    The CBO staff contact for this estimate is Matthew 
Pickford. The estimate was approved by Theresa Gullo, Deputy 
Assistant Director for Budget Analysis.

       VII. Changes in Existing Law Made by the Bill, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic and existing law, in which no 
change is proposed, is shown in roman):

   TITLE 5, UNITED STATES CODE: GOVERNMENT ORGANIZATION AND EMPLOYEES

         PART II--CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES

  CHAPTER 15--POLITICAL ACTIVITY OF CERTAIN STATE AND LOCAL EMPLOYEES

SEC. 1501. DEFINITIONS.

    For the purpose of this chapter--
          (1) ``State'' means a State or territory or 
        possession of the United States;
          (2) ``State or local agency'' means the executive 
        branch of a State, municipality, or other political 
        subdivision of a State, or an agency or department 
        thereof, or the District of Columbia, or an agency or 
        department thereof;
          (3) * * *
          (4) ``State or local officer or employee'' means an 
        individual employed by a State or local agency whose 
        principal employment is in connection with an activity 
        which is financed in whole or in part by loans or 
        grants made by the United States or a Federal agency, 
        but does not include--
                  (A) an individual who exercises no functions 
                in connection with that activity; or
                  [(B) an individual employed by an educational 
                or research institution, establishment, agency, 
                or system which is supported in whole or in 
                part by a State or political subdivision 
                thereof, or by a recognized religious, 
                philanthropic, or cultural organization]
                  (B) an individual employed by an educational 
                or research institution, establishment, agency, 
                or system which is supported in whole or in 
                part by--
                          (i) a State or political subdivision 
                        thereof;
                          (ii) the District of Columbia; or
                          (iii) a recognized religious, 
                        philanthropic, or cultural 
                        organization.

SEC. 1502. INFLUENCING ELECTIONS; TAKING PART IN POLITICAL CAMPAIGNS; 
                    PROHIBITIONS; EXCEPTIONS.

    (a) * * *

           *       *       *       *       *       *       *

    (c) Subsection (a)(3) of this section does not apply to--
          (1) the Governor or Lieutenant Governor of a State or 
        an individual authorized by law to act as Governor;
          (2) the mayor of a city;
          (3) a duly elected head of an executive department of 
        a State [or municipality], municipality, or the 
        District of Columbia who is not classified under a 
        State[ or municipal], municipal or the District of 
        Columbia merit or civil-service system; or
          (4) an individual holding elective office.

           *       *       *       *       *       *       *

SEC. 1506. ORDERS; WITHHOLDING LOANS OR GRANTS; LIMITATIONS.

    (a) When the Merit Systems Protection Board finds--
          (1) that a State or local officer or employee has not 
        been removed from his office or employment within 30 
        days after notice of a determination by the Board that 
        he has violated section 1502 of this title and that the 
        violation warrants removal; or
          (2) that the State or local officer or employee has 
        been removed and has been appointed within 18 months 
        after his removal to an office or employment in the 
        same State (or in the case of the District of Columbia, 
        in the District of Columbia) in a State or local agency 
        which does not receive loans or grants from a Federal 
        agency;
the Board shall make and certify to the appropriate Federal 
agency an order requiring that agency to withhold from its 
loans or grants to the State or local agency to which notice 
was given an amount equal to 2 years' pay at the rate the 
officer or employee was receiving at the time of the violation. 
When the State or local agency to which appointment within 18 
months after removal has been made is one that receives loans 
or grants from a Federal agency, the Board order shall direct 
that the withholding be made from that State or local agency.

           *       *       *       *       *       *       *

                           PART III_EMPLOYEES

             CHAPTER 73--SUITABILITY, SECURITY, AND CONDUCT

                  SUBCHAPTER II--POLITICAL ACTIVITIES

SEC. 7322. DEFINITIONS.

    For the purpose of this subchapter--
          (1) ``employee'' means any individual, other than the 
        President and the Vice President, employed or holding 
        office in--
                  (A) an Executive agency other than the 
                Government Accountability Office; or
                  (B) a position within the competitive service 
                which is not in an Executive agency; [or]
                  [(C) the government of the District of 
                Columbia, other than the Mayor or a member of 
                the City Council or the Recorder of Deeds;]
but does not include a member of the uniformed [services;] 
services or an individual employed or holding office in the 
government of the District of Columbia;

           *       *       *       *       *       *       *

                                  
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