## United States Court of Appeals for the Federal Circuit

04-3066

MIKE MCENTEE, Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

Patrick J. Rogers , Modrall, Sperling, Roehl, Harris & Sisk, P.A., of Albuquerque, New Mexico, argued for petitioner. Joyce G. Friedman , Attorney, Office of the Gener al Counsel, United States Merit Systems Protection Board, of Washington, DC, argued for respondent. With her on the brief were Martha B. Schneider , General Counsel and Stephanie M. Conley , Reviewing Attorney. Appealed from: United States Merit Systems Protection Board

## United States Court of Appeals for the Federal Circuit

04-3066

MIKE MCENTEE, Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

_______________________

DECIDED: April 15, 2005

_______________________

Before GAJARSA, Circuit Judge , PLAGER, Senior Circuit Judge , and LINN, Circuit Judge

. GAJARSA, Circuit Judge

. Mike McEntee appeals from a decision by the Merit Systems Protection Board (the "Board" or "MSPB") granting summary judgment that he had committed violations of the Hatch Act in the conduct of his cam paign for Mayor of Albuquerque, New Mexico. Special Counsel v. McEntee , CB-1216-02-0007-T-1 (MSPB Sept. 8, 2003). The Hatch Act 1 is the colloquial designation for the f ederal statute that prohibits covered government employees from engaging in cert ain partisan political activities. See

1 The name "Hatch Act" initially refe rred to Senate Bill 1871 introduced by Senator Carl Hatch, enacted as chapter 410, 53 Stat. 1147 (193 9) and originally codified as 18 U.S.C. § 61. As used here, the terms "Hatch Act" or "Act" refer not to a particular bill, but to the body of federal stat utes and regulations rest ricting the political activities of federal employees.generally 5 U.S.C. §§ 7321-7326 (2000) . Because we discern no legal error in the Board’s decision and it was supported by substantial ev idence, we affirm. I. BACKGROUND In August 2001, McEntee declared himself a candidat e for Mayor of Albuquerque, New Mexic o

. According to cit y ordinanc es, the mayoral race is intended to be nonpartisan and the names of the candidates are listed on t he ballot without party or other designation. At the time he becam e a candid ate, McEntee was employed a s an air traffic control specialist with the F ederal Aviation Administ ration ("FAA"), a position he obtained in 1982. Pr ior to dec laring his candidacy, M c Entee consulted with the Albuquerque FAA Ethics Counselor regarding restricti ons imposed by the Hatch Act. When asked prior to the onset of the campaign, both the Al buquerque FAA Ethics Counselor and FAA’s regional c ounsel determined that the Hatch Act did not prevent McEntee from being a candidate. In support of McE n tee’s quest for the mayoral seat, his campaign distributed a variety of leaflets and other literature. A c a mpaign c hecking ac count was establish e d under the name "Friends for Mike McEntee," wh ich paid for the printing and distribution costs of those materials. McEntee approv ed for distribution all of the campaign literature at issue. The McEntee campaign distributed leaf lets stating "Mike McEntee – the ONLY CONSE R V A TIVE RE PUBLICAN in the race for May o r." 2 The s a me leaflet included t he statement " [f]inally , Republicans have a chance to elect a Conservative to lead our

2 All of the emphasis that appears in t he cited quotatio ns from McEntee’s campaign literature is original.

04-3066 2cit y " and t he following quote from "Former Republican State Repr esent a tive Frank Bird:" For years Republicans have been forced to hold their nose and ac cept the polic ies that city gover nment forced on them by Jim Baca, Marty Chav ez and the rest of the liberal Democrats. Now, for the first time in years we have a c h ance to elec t one of us , a conservative Re publican to clean up the mess in City Hall. Two addit i onal leaflets also described McEntee as "The ONLY Conservative Republican!" The campaign also distri buted a "Dear Friend" letter from Jack Stahl, "F ormer Republican Lieutenant Governor," whic h inc l uded the following statements: In t w o months, w e c a n FINALLY el ect a R EPUBLICAN MAYOR to lead this city ! As Republicans, we know that this is the first time in years – and probably the last ti me in even more years – that we have a chance to elect a Republican Mayor to bring conservative values and principles to City Hall. IF REPUBLICANS UNITE BEHIN D THE ONL Y CONS ERV A TIVE REPUBLICAN, MIKE McENTEE . . . . . . . . . WE WIN! We Republicans c an t u rn Albuquerque in to a great city , but we need your help twice. First; WE NEED YOUR VO TE, Secon d ; We need your financial s upport now so Mik e McEntee can put his Co n servative Republican message in the mail, on TV and on radio. Our city is crying out for new REPUBLICAN leadership. WE REPUBLICANS CAN MAKE A DIFFE RENCE! The letter further listed McEnt ee’s opponent s, all identified as " De mocrat ." McEntee’s campaign also disseminated a "Dear Repub lic an Friend" letter that stated: One reason I am writing you is be cause you are a registered Republican

.

. . . This is not supposed to be a "partisan" election , but we all kno w Mayor Baca and former Mayor Marty Chav ez are cut from the same mold!

04-3066 3As Republicans, we ar e outnumbered in Albuquerque. Our only hope of defeating t he Democr at machine is to stick together behind one c andidate. At last count there were at least 10 candidates saying they were running for Mayor, most of them Democrats like Bac a and Chav ez. Another leaflet invited Albuquer que’s kids to "[t]ake a shot at wasted spending at our Dunk the Dems tank," as part of an ev ent sponsored by the McEntee campaign. The McEntee campaign also iss ued pre ss advisories, one of which announ ced that "Former Congressman Bill Redmond jo ined with 10 Republican legislators and grassroots Republican leaders to announc e thei r endors e ment of R epublican c andidate for Mayor, Mike McEntee, at a press conference on Wednesday, August 22, 2001." McEntee was present at the referenced pr e ss conference. The same press advisor y included this quote from Senator Mark Boit ano: "Republicans need to stand behind the candidate who will stand for the va lues that Republicans hold dear ." In addition to the endorsements of individual Republicans , McEntee also received endorsements from the Executiv e Committee of the Bernalillo County Republican Party, the Republic an Assem b ly and the Republic an Lincoln Caucus. McEntee trumpeted these endors e ments in the press advisory dis c ussed above. The McEnt ee campaign solicited campaign contributions in a v a riety of ways. The "Dear Friend" letter from "Former Republican Lieutenant Go vernor" Jack Stahl included the statements " I’VE JUST SENT MY CHECK TO MIKE MCENT EE. WON’T YOU PL EASE SEND YOUR CHECK TO DAY? . . . You [sic] c ont ribution of $25, $50, $100 or ev en $1000 is vital. Plea se let us k now in the next 10 days if you can help elec t the only conservative candidate. " Similarly, the Dear Republ ican Friend told recipient s that "[i]f you can afford a sma ll contribution to help us offset the cost of this mailin g an d to help us build a warchest for the battle with Baca and Chavez down the road, we

04-3066 4would appr eciate it." Other campaign literature also in cluded s o lic itations as did the campaign website. At least two fundraising events were held in s u pport of the McEntee campaign, one on June 21, 2001, and another on September 14, 2001. The local press reported on the R epublic an partisanship of the McEntee campaign. An article in the Albuquerque Journal chronicl ed McEnt e e’s endor sement by the Bernalillo County Republican Exec utiv e Committee under the headline "Count y GOP Back McEntee for Mayor." A similar article in t he Albuquerque Tr ibune, dated August 23, 2001, was entitled " P arty Ti me? Open Republican endor sement stirs up supposedly nonpartisan election." The " P ar ty Time" article included statements from the State Republican Party Chair m an indicating that "t he county G O P’s actions take the ‘cloak off’ c l aims that party po litics don’t control city government." The artic l e includ ed the observ a tion that " M cEntee, whose campaign has struggled to catch fire, is eagerly wrapping himself in the Republ ic an flag." Finally, another article in the Albuquerque Journal, entitled "GOP Radar F o c u ses on M c En tee," stated that "[a]s the sun set on h i s fundraiser, McEntee stepped to t he microphone and stayed true to form. His message was simple: We need a Republic an on t he 11th floor." The McEntee campaign responded to the press coverage in part by circulating an editor ial under McEntee’s name stating that "[t]he Journal is irate bec ause I believe in the conservative values embraced by Republicans and am open and honest enough to proudly call myself a Republican." At no ti me during the campaign di d McEntee dis a vow his Republican identity or refute or refuse the as sistance, fi nancial or otherwise, of the Republic an Par t y structure.

04-3066 5On August 30, 2001, Amber Bell, an attorn ey with the Office of Special Counsel ("OSC"), informed McEntee that the OSC belie v ed that his candidacy for Mayor violated the Hatch Act. Bell offered McE n tee the opt ion of resigning his candidacy or resigning his federal position. McEn tee answered t hat he did not believ e his candidacy was unlawful. In a letter dated August 31, 2001, William Reukauf, Associate Special Counsel with the OSC, reiterated the mess age of Bell’s conv ersation and notified McEntee that partisan politics had entered hi s campaign and therefore his candidacy for Mayor of Albuquerque violated the Hatch Ac t. Specifically, Reukauf determined that the presumption that the Alb uquerque Mayoral election is nonpartisan was rebutted by McEntee’s endorsement by t he "Bernalillo County Republican Party" and his advertisement of that endorse ment. Reukauf’s letter permi tted McEntee to correct his violation by either publicly wi thdrawing from the electio n or resigning his federal position by September 7, 2001. McEntee, through counsel, re sponded in writing to Reuk auf’s letter. McEntee’s response challenged Reukauf ’s statement that McE n tee had been end orsed by the Bernalillo County Republican Pa rty on the grounds that Mc Entee was endorsed only by a small c o mmittee of Republicans, whic h did not have the author ity to issue an endorsement on behalf of the entire party. McEntee asse rted that because he had not received the endorsement of a s t ate or national polit ic al party the election had not been transformed into a par tisan politic al race. Mc Entee chose not to withdraw from the race and did not resign his position with the FA A. The election was held October 2, 2001 and McEntee was not elected.

04-3066 6On November 20, 2001, OSC filed a comp laint with the Merit Systems Protection Board char ging McEntee with being a c andidate fo r election to par tisan politic al office in violation of § 7323(a) (3) of the Hatch Act and its im plementing regulations. See 5 U.S.C. § 7323(a)(3) (2000); 5 C.F.R. § 734.304 (2004). The OSC a l so charged McEntee with knowingly solicit ing, accepting, or receivin g politic al contributions i n violation of § 7323(a) (2) of the Hatch Act and its im plementing regulations. See 5 U.S.C. § 7323(a)(2) (2000); 5 C. F.R. § 734. 303 (2004) . As a penalty for his violations, OSC asked that McEntee be remov ed from hi s position with the FAA. The parties agreed to bifurcate the pr oceedings into liability and penalty determinations. In its Order Granting Summary Judgmen t, the Board determined that party politics had entered the presumptiv ely nonpartisan election for Mayor of Albuquerque and that McEntee’s activities in that election violated the Hatch Act as alleged. In a separ ate Recommended Deci s i on, the Board determined that the appropriate penalty for McEntee’s violations was that he be suspended from his pos ition with the FAA for a peri od of 120 days. McEntee filed a timely appeal c h allenging only the Board’s decis ion that he had committed violations of the Hatch Act. This c ourt has jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). II. DISCUSSI ON The scope of our review in an appeal from a decision of the Board is limited. The Board's decision must be affirmed unless it was: "(1) arbitrary, capr icious, an abuse of discretion, or otherwise not in accordance with law; (2 ) obtained without procedures required by law, rule, or regulation hav ing been followed; or (3) unsupported by

04-3066 7substantial evidence." 5 U.S.C. § 7703(c) (2000); Briggs v. Merit Sys. Prot. Bd. , 331 F.3d 1307, 1311 (Fed. Cir. 2003) . McEntee alleges that the Boar d’s dec ision is not in accordanc e with law because it does not com port with the current provisions of the Hatch Act. He also alleges that the decis io n is not supported by su bstantial evidence. We review the Board’s determi nations of law for correctne ss without deference to the Board’s decision. King v. Dep’t of Navy , 130 F.3d 1031, 1033 (Fed. Cir. 1997). Substantial evidence is "such relevant evid ence as a reasonable mind might accept as adequate to support a conclusion." Cons ol. Edison Co. v. NLRB , 305 U.S. 197, 229 (1938). The Board found that McEntee had engag ed in two forms of conduct prohibited by the Hatch Act: 1) running as a candidat e for election to a partisan political office in violation of 5 U.S.C. § 7323(a)(3); and 2) knowingly solic iting and receiv ing a politica l contribution in violation of 5 U.S.C. § 7323(a)(2). The Board grounded its findings for both violations in its determination that the McEntee campaign introduced partisan politics to the 2001 Albuquerque Mayoral election, effectivel y rebutting the presumption that the race was not an election for partisan politic al office. The longst anding policy of the administra tive agencies tasked wit h enforcing the Hatch Act has been to presume that partici pation in an election for which state la w provides for a nonpartisan ballot is not a pr ohibited ac tivity. In re Broering , 1 P.A.R. 778, 779 (CSC 1955); see also Special Counsel v. Mahnke , 54 M.S.P.R. 13 (1992); Special Counsel v. Seastrunk , 28 M.S.P.R. 51 (1985); Special Counsel v

. Yoho , 15 M.S.P.R. 409 (1983). U nder the precedent of the MSPB, the pr esumption that a n election is nonpartisan could be rebutted by evidence showing th at partisan politic s

04-3066 8actually entered the campaigns of the candidates. Broering , 1 P.A.R. at 779 (presumption that election was nonpartis an rebutted by evidenc e that respondent readily acc epted partisan polit ic al support, knew that he was being supp orted by a partisan political party, and pa ssed out literature indicati ng that he had the s u pport of a partisan political party); Mahnke , 54 M.S.P.R. at 13 (presumption of nonpartisanship was rebutted by appearanc e of opponent’s party des ignation on the ballot); Seastrunk , 28 M.S.P.R. at 51 (presumption of nonpartisans hip was rebutted because two candidates opposing respondent appeared as Dem o crats on the ballot); Yoho , 15 M.S.P.R. at 409 (although Demo cratic and Republican parties remained neutral as to all of the candidates, presumption of nonpart isanship was rebutted when t w o of the candidates appeared on the ballo t with party designations). In its initial charges against McEntee, the OSC described this process of rebutting the presumption of nonpartis anship as "transforming" the presumptively nonpartisan election into a prohibited contest. McEntee has seized on the OSC’s us e of the word " t ransform" and char acterizes the rationale articulat ed by Bro e ring as a "transformation theory," whereby an el ection in which f ederal em ployees are guaranteed the right to participat e is changed into a partisan politic al race. We address below McEntee’s ass e rtions regarding the rights afforded federal employees under the Hatch Act, but we note at the outset that "transformation theory" does not accurately describe t he way in which th e Hatch Ac t is enforced. The r a tionale articulated in Broering and its progeny do es not operat e to "trans form" a protected activity into a prohibited activity, but rather it allows for the presumption of nonpar tisanship created by state and local election laws to be rebutted by the actual conduct of an e l ection. Here,

04-3066 9Albuquerque city ordinances pr ovide that candidates for mayor shall be list e d on the ballot without party or other designation. Accordingly, the Board presumed that the 2001 mayoral election qualified as a nonpartisan election in which McEntee could participate without v i olating the Hatch Act. The Board determined t hat the pr esumption of nonpartisanship was rebutted by ov erw helming evidenc e s howing that McEntee’s campaign had injected partisan politics into the race. McEntee alleges that the B oard’s reliance on evidence of the actual c onduc t of the election to rebut the pr esumption of nonpartisanship wa s improper in light of the passage of the Hatch Act Reform Amendment s of 1993, Pub. L. No. 103-94, 107 Stat. 1001 (the "1993 Amendments") . He also charges that the so-called "transformation theory" is unconstitutional because it violat es the Firs t Amendment. Finally, McEntee asserts that the Board’s determination that the 2001 Albuquerque m a yoral rac e constituted a partisan election was not supported by substantial ev idence. A. The Statutory Language In order to understand the e ffect of the 1993 Am endments, it is necessary to first understand the context in which t hey were a dopted. The Hatch Ac t was initially enacted in 1939 in response to concer ns about the harmful effects of political activities by government workers. The Ac t drew on rules promulgated by the Civil Servic e Commission that were designed to prevent me rit syste m employees from "using [their] official authority or influence either to coerce the politic al action of any person or body or to interfere with any electi on." S. Rep. 103-57 at 2, reprinted in 1993 U. S.C.C.A.N. 1802, 1803 (1993); see also Un ited States Civil Serv. Comm’ n v. Nat’l Ass’n of Letter Carriers , 413 U.S. 548, 560 (1973).

04-3066 10The pre-1993 Hatch Act broadly limited t he ability of federal employ ees t o engage in certain political activi ties by prohibiting employees subj ect to the structure of the Act from taking "an active part in politic al management or in po litic al campaigns." 5 U.S.C. § 7324(a)(2) (1988). The term "an acti ve par t in political management or in politic al campaigns" was defined in the statut e as "those acts of politic al management or politic al campaigning which were prohibited on the part of em ployees in the competitive service bef ore July 19, 1940, by determinati ons of the Civil Servic e Commiss ion un der the rules prescribed by the President." Id. In the process of upholding the constitu tionality of the pr e-1993 statute, the Supreme Court limited its reach to the specific pro h ibitions s e t out in the regulations promulgated by the Civil Service Commission in 1970. Letter Carriers , 413 U.S. at 576. At the time Letter Carriers was decided and until the pa ssage of the 1993 statutory amendments, the perti nent r egulations provided that: (a) An employ ee may not take an ac tive part in political management or in a political campaign, exc ept as permitted by this subpart. (b) Activities prohibited by paragraph (a) of this section include but are not limited to . . . [b]ecoming a partis an candidate for, or campaigning for, an elective public office. 5 C.F.R. § 733.122 (1970). Thus , the interplay of the statute, regulations, and case la w established a broad prohibition against cover ed employees play ing an active role in politic al campaigns, which in cluded a ban on becoming a parti san candidate for public office. The primary text of the Act remained in its original form until the passage of the 1993 Amendments. The post-1993 Hatch Act expres sly prohibit s covered employees from running "for the nominatio n or as a candidate for election to a partisan po litic al

04-3066 11office." 5 U.S.C. § 7323(a )(3). Furthermore, covered employees may not "knowingly solic it, accept or receive a political contri bution from any person," subject to certain exceptions not ap plic able here. Id. § 7323(a)(2). The statutor y definitio n o f a "po litica l contribution" includes "any gift subscripti on, loan advance or deposit of money or anything of value, made for any political purpose." Id. § 7322(3)(A). The relevant regulations define a "politic al purpose" as "an objective of promoting or opposing a politic al par ty, candidate for partisan politic al o ffice, or partisan political group." 5 C.F.R. § 734.101 (2004). The key language in the current statutory structure, as applied by the Board, is the term "partisan political office." The stat ute defines a "partisan political office" as "any office for which any candidate is nomi nated or elected as representing a party any of whose candidates for Presidential electo r received votes in the last preceding election at which Pres idential elec tors we re selected." 5 U.S. C. § 7322(2) (2000). 3 In addition to changing the language and subs tance of the prohibit i on effected by the Act, the 1993 Amendments added a policy statement to the stat ute. Section 7321 of the current Hatch Act reads: "It is the policy of the Congress that employees should b e encouraged to exercise fully, freely, and without fear of penalty or reprisal, and to the
extent not express l y prohibited by law, thei r right to participate or to refrain from participating in the political processes of the Nation." 5 U.S. C. § 7321 (2000). The legislative history provides furt her guidance on the purpos e of the 1993 Amendments. The Senate Report issued in conjunction with Senate Bill 185, the bill

3 For ease of reference, in the rema inder of the opin ion we use the shorthand t e rm "major political party" in place of the st atutory lan guage "a party any of whose c a ndidates for Presidential elector re ceived votes in the last preceding election at which Presidential electors were selected."

04-3066 12introducing the 1993 Amendments, questioned the efficacy of the orig inal Act’s broad ban on em ployee partisan politic al activ i ty and identified two remediable c oncerns: (1) "the neutrality requir e ment . . . inhibits F ederal employees from exercising their constitutional rights;" and (2 ) the statute and enf orcement scheme ar e vague "resulting in an inability to ascertain the precise extent of prohibited and protected activities or the penalties involved." S. Rep. No. 103-57 at 5, reprinted in 1993 U

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. at 1806 (1993). In order to address t he conc erns iden tified, the 1993 Amendments relaxed the prohibitions of the Hat c h Act "to provide for Federal civili an employees to participate voluntarily, as priv ate citizens, in the politic al proces ses of the Nation and to protec t such employees and the General citiz enry from improper politic al solic itations." S. Rep. No. 103-57 at 1, reprinted in 1993 U.S.C.C.A.N. at 1802. As express l y stated in the Senate Report to Senate Bill 185, the amendments were des igned to restore to most federal employees the right, while off-the-j ob, to "take an ac tive part in politic a l management or in political campaigns," while maintaining and strengthening prohibitions on "politic al ac tivity" while at work. Id. at 1803. The amendm ents als o continued "current law prohibitions against r unning for partisan elective office and against solicitation of potential c ontribut ions from the general public." Id. In responding to Minority Views iss ued by opponents to Senate Bill 185, the bill’s s pons or, Senator John Glenn, reiterated that, contrary to prio r attempts to reform t he Hatch Act, his bill did not relax the law prohibiti ng federal employees from running for partisan elective office. Id. at 1838. The exp licitly identifi ed purpo se of Senate Bill 1 8 5 and the statements of the bill’s drafter and chief pr oponent indicate that the changes wrought by

04-3066 13the 1993 Amendments were not intended t o alter the original Act ’ s restrictions on the ability of employees to serve as candidates in partisan elections. See Ernst & Ernst v. Hochfeld er , 425 U.S. 185, 203 (1976) (giving weight to the explanatory statements made by a spokesman for the dr afters of a statute). B. The Viability of the R ebuttable Presumption Analysis McEntee argues that the applic atio n of a rebuttable presumption of nonpartisanship is no longer a v i able const r uct because: (1) the definition of "partisan politic al office" exc l udes elections designat ed as nonpartisan under state or local law; and (2) the policy statement of § 7321 protec ts the right of federal em ployees t o participate in such elec tions. McE n tee’s inte rpretation of the statute is without merit. McEntee asserts that elections designate d as nonpar tisan under state or local law cannot meet the stat utory requirements to be cons idered a "partisan political office." To reach this conclus i on, McEntee reads t he language of § 7322(2) as requiring that a candidate be elected or nominated to repres ent a major political party. Under this theory, because elections des ignated as no npartisan do not prov ide a mec h anism for parties to choose or identify their repres entative candidates, participation in suc h elections c annot constitute running fo r a "partisan polit ical office." We reject McEntee’s reading of § 7322(2) on the ground that it is contrary to the plain meaning of the statutor y language. Statutory inte rpretation begins with the language of the statute, the plain meaning of which we derive from its text an d its
structure. Norfolk Dredging Co. , Inc. v. United States , 375 F.3d 1106, 1110 (Fed. Cir. 2004). Here, McEntee presumes that the te rm "nominated or elected" modifies the phrase "as representing a part y" thereby creating a requireme nt that the candid ates

04-3066 14represent a party by nomination or election. A careful r eading of the statute, however, reveals that the phrase "as representing a pa rty" actually modifies the term "nominated or elected" and the entire claus e " any candid ate is nominated or elected as representing a party" identifies the office sought. Accordi ngly, the definition of a "partisan political office" expressly encompasses offices for which candidates are either nominated a s representing a party or elect ed as representing a party. While the term "nomi nated . . . as repres enting" a party suggests a formal party endorsement or selection proces s, the term "elected as repr esenting a party" is broader and impos es no suc h implication. In order to give meaning t o all the words of the statute, as we must, we do not read the term "elected as representing a party" to requir e formal endorsement or selection by a major political party. TRW Inc. v. Andrews , 534 U.S. 19, 31 (2001) (stating that cardinal principles of statut ory construction require that statutes be construed so that " no clause, sentence or word sha ll be superfluous, void, or insignificant" (quoting Duncan v. Walker , 533 U.S. 167, 174 (2001))); United States v. Menasche , 348 U.S. 528, 538-39 (1955) (" It is our du ty to give effect if possible, to every clause and wor d of a stat ute." (internal c i tes omitted)); Shoshone Indian Tribe of the Wind River Res e rvation v. United St ates , 364 F.3d 1339, 1349 (Fed. Cir. 2004) ("Accepted rules of statutory construction s uggest that we should attribute meaning to all of the words in the Act if possible."); James v. Sa ntella , 328 F.3d 1374, 1381 (Fed. Cir. 2003) (stating that as a general rule a statute should not be construed in such a way that renders one of its parts inoperative). Thus, the terms of § 7322(2) do not preclude an election designated as nonparti san under state law from constituting an election for a "partisan political office."

04-3066 15McEntee also asserts that the demise of the rebuttability of the presumption of nonpartisanship is mandated by § 7321. He reads t he policy s t atement articulated in that section to prevent OSC from challenging the participat ion of federal employees in elections designated as nonpartisan under state or local law. He also c ontends that the section requires that all activities encompass ed by the prohibitions of the Hatch Act be directly addressed in the st atute thereby disallowing the applic ation of the judicially

constructed rebuttable pr esumption analysis. McEntee’s interpretation of § 7321 does not accurately reflect the changes in the statutory scheme effected by the 1993 Amendments. Se ction 7321 states that "employees should be encouraged to exercis e fully, freely, and without fear of penalty or reprisal, and to the extent not expressly prohibited by law, t heir right to partici pate or to refrain from participating in the political pr ocesses of the Nation." 5 U.S.C. § 7321 (2000). T he 1993 addition of § 7321 simply raised what had previously been the articulated policy of the Office of Personne l Management to the leve l of statute. Prior to the 1993 Amendments, the regu lations implementing the Hatch Act included the statement t hat "[a]ll employees are free to engage in politic al act i vity to the widest extent consistent with t he restrictions imposed by law and this subpart." 5 C.F.R. § 733.111( a) (1992). The regulations went on to identify the activities expressly permitted by the Act to include taking "an ac tive part, as a candidat e or in support of a candidate, in a nonpartisan election." Id. § 733.111(a)(10). A ccording to the preamendment statutory defin ition of "nonpartisan politic al ac tivity," employees were not prohibited from engaging in "political activ i ty in connection with . . . an election and the preceding campaign if none of t he candidates is to be nominat ed or elected at that

04-3066 16election as representing a party any of w hose candidates for presidential elector received v o tes in the last preceding electi on at which presidential electors were selected." 5 U.S.C. § 7326(1) (1988). It is worth noti ng that the earlier definition of "nonpartisan political activity," where no candidate could be nominated or elected as representing a major political party, is simply the converse of the definition in the current statute for "partisan political offi ce," which includes elections where any candidate is nominated or elected as representing a major political par ty. Furthermore, the current regulations continue to define "nonpartisan election" in the exact terms used in the pre1993 statute. See 5 C.F.R. § 734.101 (2004). Placing the 1993 Amendments in their full le gis l ative context, it is clear that, contrary to McEntee’s assertion, the incorporation of § 7321 did not enhance the protection afforded an employee’s right to participate in a pr es umptively nonpartisan election. Such rights were expressly protected under t he pre-1993 regulatory scheme and the policy language of § 7321 simply reinforces that employ ees retain all politica l rights not expressly pr ohibited. McEntee also argues that the phrase "not expressly prohibited by law" found in § 7321 requir es that all limitations imposed on employees’ political r i ghts be promulgated in the statute. In support of this theory, McEntee attempts to rely on the legis l ative history of the amended st atute and the regulations implementing it. The Senat e Report issued in c onjunction with the reporting of Senate Bill 185 inclu ded a ddition al views from four senators opposin g the bill a s wri tten. As cited by McEntee, those senat ors stated that they read the language of what is now § 7321 "to state clearly and unequivocally that without an express prohibiti on stated in s t atute, the

04-3066 17President or agency will lack the necessary authority to provide for additional prohibitions beyond S. 185." S. Rep. No. 103-57 at 41, reprinted in 1993 U.S.C.C.A.N. at 1842. This statement was specifically made not out of concern over the scope of the activities prohibited, but in an effort to exempt certain "s ensitive" employees, such a s "career senior executive service employee s, federal supervisors and managers, and employees of comparable rank and stat us, from coverage under the bill." Id. T h e amendment that was proposed to address the concerns expres sed in the additional views was disapproved by voic e vote. S. Rep. No. 103-57 at 9, reprinted in 1993 U.S.C.C.A.N. at 1810. McEnte e provides no rationale as to why we shou ld give we ight to an interpretation of the statute offered by senators opposing the bill adopt ed. As the Supreme Court has stated, "the fears and doubts of the oppos ition are no authoritative guide to the construction of legis l ation," Sc hwegmann Bros. v. Calvert Distillers Corp. , 341 U.S. 384, 394 (1951), because often "[i]n their zeal to defeat a bill, they understandably tend t o ov erstate its reach." NLRB v. Fruit Packers , 377 U.S. 58, 66 (1964); see also Bryan v. United States , 524 U.S. 184, 196 (1998). The relevanc e of the interpretation cited here is further diminis hed by the recogn ition that it was offered in response to concerns other than those identified by McEntee and the amendment proposed to address those conc erns was reject ed. We do not find the cited legislative history persuasive authority for interpreti ng § 7321 to prohibit application of the rebuttable presumption analysis. McEntee’s reliance on 5 C. F.R. § 734.104 is equally unav ailing. The cited regulation provides th at "[n]o further proscriptions or restrictions may be imposed upon employees covered under this regulation" with certain except ions not relevant here.

04-3066 185 C.F.R. § 734.104. T he rebuttable presumption analysis, however, does not impose an additional proscript i on or rest riction on federal employees. To the contrary, it simply permits enforcing officials to cons ider the actual conduc t of a presumptively no npartisan election in determining whet her any federal employee cand idate stood for election in that race "as representing a party." 4 Such an inq u iry does not conflict with the provisions of 5 C.F.R. § 734. 104, which restricts the government’s ability to make ille ga l activities deemed lawful un der the statute and regulations, but does not limit the government’s inquiry into determi ning wh at constitutes an unlawful activity. McEntee correctly asserts that the 1993 Amendments relaxed the scope of certain Hatch Act prohibitions and that the current implementing regulations expressly permit an employee to "[r]un as a c andidate in a nonpar tisan election." Id. § 734.207(b). McEntee’s argument founders, howe ver, when he attempts to rely on thes e precepts t o insulate from scrutiny his conduct as a candi date for public office. Reduced to its base, McEntee’s challenge to the post- 1993 v i talit y of the rebuttable pr esumption analys is is nothing more than an attempt to limit the def inition of "nonpartisan election" to the standards provided by state and local election law. We hav e previously r e jected such invitations to define federal statutory and regulatory terms so lely by reference to stat e law. Campbell v. Merit Sys. Prot. Bd. , 27 F.3d 1560 (Fed. Cir. 1994).
In Campbe ll , a cas e decided under the pre- 1993 Hatc h Act, we interpreted the regulations that permit certain employees to parti cipate in partisan elections as "independent candidat es," provided that they reside in munici palities with a majority of

4 Nothing in this opinion should be read as addressing the q u estion of whether the conduct of another candidate in a nonpartisan ele c tion could affect the entitlement of a federal employee candidate to participate. That question is not before us.

04-3066 19the voters employed by the federal government. Id. at 1568. In that case, we wisely refused to l i mit the definition of an "independent candidate" to the strict ures of state law, primarily out of concern that "reducing the factual inquiry into ‘independence’ to an examination of a person’s regis t ration card and ballot billing w ould exalt form over substance and permit circumvention of the s ubstantive congressional po licy of keeping partisan politics out of the r outine administration of the laws and the running of the bureaucrac y ." Id. According l y, we resolved Campbell by considering the facts presented to determine whether t he employ ee’ s co nduct in assoc i ating himself with the Democratic Party com ported with the comm on meaning of the wo rd "independent." Id.
at 1568-69. McEntee’s invitation to define the regul atory term "nonpartis an election" by reference solely to local election laws pres ents the identical ris k of exalting form over substance that we i dentified and avoided in Campbe ll . We follow Campb e ll ’s wellreasoned approach in rejecting that invitation in favor of a consi deration of all the relevant facts at hand. 5 The First Circuit reached the s a me conclusion when presented with a similar invitation to defin e the limits of the Hatch Act. Magill v. Lync h , 560 F.2d 22, 29 (1st. Cir. 1977) (holding that "the government may co nstitutionally restrict its employees ’ participation in nomi nally nonpartisan elections if pol i t i c al parti es pl ay a large role in the cam paigns"). Accordingly, we affirm the Board’s applic ation of the rebuttable presumption analysis to determi ne whether McEntee’s participation in a presumptively nonpart i san election consti tuted a violatio n of the Hatch Act.

5 Although Campbell interpreted the statutor y scheme of the pre-1993 Hatch Act, the merit of its reasoning is not diminished by subs equent changes in the statutory language.

04-3066 20C. The Constit u tionality of the Hatch Act as Amended McEntee argues that even if the rebuttable presumption analysis is not precluded by the terms of the current Hatch Act, its application violat es the F i rst Amendment. His constitutional arguments are premised on t he concept that the analysis makes unlawf ul activities which are otherwise legal and t herefore protected under the Hatch Act. Specifically , McEntee believes that the re buttable pr esumption ana lysis unjustifiably burdens employees’ constitutional rights to engage in politic al speech and that it is void for vagueness. 6
As discuss ed above, McEntee’s understandi ng of the effect of the ana l ysis he refers to as the "transformation theory" is inaccurate. It is not a transformation as posited by McEntee that occurs , but rather a rebuttable pres umption that is created. The rebuttable presumption anal ysis does not impose burdens on the political rights of employees beyond those provided for in the s t atute. Accordingly, McEntee’s constitutional challenges are properly directed at the Hatch Act as amended. Placed in the proper c ontext , McEntee’s constitu tional arguments fail to acknowledge the clear precedent of the S upreme Court. The Court twice upheld the constitutionality of the pre- 1993 Act against charges t hat it was vague, overbroad and placed an excess ive burden on the free speech rights of federal employ ees. Letter Carriers , 413 U.S. at 556; Unit ed Pub. Workers of Am. v. Mitchell , 330 U.S. 75, 93 (1947). Despite prior case law conclus i vely determining that the sw eeping prohibitions of the pre-1993 Hatch Act did not excess ively burden the pr otected right s of federal

6 McEntee also asserts that the stat ute is overbroad, but his argument supporting that claim is indisti nguishable from his assertion t hat the statute is void for vagueness. Accordingly, there is no need for us to separately address the overbreadth claim.

04-3066 21employees, McEntee attempts to argue that t he more limited restrictions of the current statute impermissibly upset t he balanc e of interests previ ously approved. McEntee’s efforts are undermined by dicta from Letter Carriers in which the Court stated that the government has the power to prevent em ployees from engaging in precisely the activities with which McEntee is charged, namely "ac t ively participating in fund-raisin g activities for a partisan candidate or politic al party" and "becoming a partisan candidate for, or campaigning for, an elective public office." Letter Carriers , 413 U.S. at 556. As we stated in our most recent prior case involving the Hatch Act, "precedent clearly precludes" an attack on the Act as an im proper restraint on government employ ee speech. 7 Briggs , 331 F.3d at 1315. McEntee asserts that while the Hatch Act itself may be constitutional, the application of the rebuttable pr esumption analysis is not bec aus e it blurs the dividing line between permitted and proh ibited activities. This vagueness argument again fails to recognize that it is the st atute, not the analys is, that cr eates this distinction. The appropriate inquiry, then, is not into t he vagueness of the rebu ttable presumption analys is, but rather whether the amended s t at ute and its implem enti ng regulations are sufficiently definite so as to give "fair wa rning . . . in language that the common world

7 The recent Supreme Court decision of Republican Party of Minnesota v. White , 536 U.S. 765 (2002), does not change that analysis. White involved a state canon of judicial conduct that prohibited candidates for j udicial office from announc ing their views on disput ed lega l o r political issues. Id. at 768. Because t he canon prohibited speech based on it s content and burdened a core category of protected speech, the Court applied strict scrutiny to assess its constitutionality. Id. at 774. The Court struck down the canon on t he ground that it was not na rrowly tailored to achieve the allegedly compelling state interest of ensuring the impar tiality of the state judiciary. Id. at 780. Nothing in White , however, suggests that a statute, such as the Hatch Ac t, which is not targeted at restri cting protected speech is s ubjec t to a heightened degree of scrutiny.

04-3066 22will understand, of what the law intends to do if a certai n line is passed." United States v. Lanier , 5 20 U.S. 25 9, 265 (199 7) (citation omitt ed). A statute will be foun d to be void for vagueness if it "eit her forbids or require s the doing of an act in terms so vague that men of common intellige n ce must necessarily guess at its meaning and d i ffer as to its application. " Id. ; see also Grayned v. City of Rockford , 408 U.S. 104, 108-09 (1972) (stating that vague s t atutes offend the princi ple that laws mus t "give the person of ordinary in tellig ence a reasona ble o pportunity to kn ow what is prohib ited , so that h e may act accordingly"); Coates v. City of Cincinnati , 402 U.S. 611, 614 (1971) (holding a statute to be unc onstitutionally v ague because it s ubjected First Amendment rights to "an unascertainable st andard"). In apply i ng t he void for vaguenes s doctrine in the First Amendment context, we hav e determined that the alleged vagueness must pose a real and subst antial threat to protected expre ssion suc h that a substantial amount of legitimate speech will be chilled. Griffin v. Sec’y of Veterans Affairs , 288 F.3d 1309, 1329-30 (Fed. Cir. 2002). The only s peech at issue here is that of federal employees serving as candidates for elective office. 8 McEntee argues that the statute does not clearly indic a te that an employee- candid a te’s assertion of affiliatio n with a m a jor politic al party co uld run afo u l of the provisions of the Hatch Act. But th e statute does not pr ohibit the bare speec h with which McEntee is concerned. An employee-candidate is not barred from identifying his political philoso phy , "I stand for the principles of the Republican Party," or

8 The amended Hatch Act no longer rest ricts off-duty employees from engaging in other forms of expression con nected with partisan political cam paigns. Se e 5 C.F.R. § 734.205 (permitting off-duty employees to: "display pict ures, signs , stickers, badges or buttons associated with political parties;" "initi ate and circulate a nominating petition for a candidate for partis an political office;" "endorse or oppose partis an political candidates;" and "address a convention . . . or similar gathering of a politica l party").

04-3066 23stating his party status, "I am a Republic an." The st atute and regulations clearly indic a te, however, that federal employees ar e not to participate as candidates in elections in which any candidate "r epresents" a major political party. Although the term "represents" is not defined by the statute or t he regulations, its ordinarily understood meaning includes more than the fo rmal endorsement process advocated by McEntee. See Best Power Tech. Sales Corp. v. Austin , 984 F.2d 1172, 1177 (Fed. Cir. 1993) ("It is a basic principl e of statutory interpretation . . . that undefined t e rms in a s t atute are deemed to have their or dinarily understood meaning."). While the definition of "represent" certainly inc l udes " t o be an accredited deputy or substitute for (a number of persons) in a legi slative or deliberative assembly," it also
encompass e s "to describe as hav ing a spec ified charac ter or quality; to give out assert or declare to be of a certain kind" and "to symbolize, to serv e as a v i sible or concrete embodiment." Oxford English Dictionar y 657-58 ( 2 d ed. 1989). Thus, the term "represent" as used in the Hatch Act refers not only to candidat es who have received the formal endorsement of a majo r political party, but also to candidates who act in concert wit h a major politic al party. We hold that while an employee-candidate in a presumptively nonpar tisan elec tion may independently assert a party affiliation, once the candidate and the party act in concert with each other, a repres entative relations hip may be est ablis hed s u fficient to rebut the pres umption of nonpartisanship. I n terpreted in this manner, the amended st atute sufficient ly puts an employ ee on notic e that, whe n serving as a candidat e for nonp artisan public office, he is prohibited fr om engaging in speech and conduct that indicate he is acti ng in concert with a major political party.

04-3066 24McEntee further compl a ins that the statute does not indicate the level of partisan speech and conduct required to rebut the presumption that an election deemed to be nonpartisan under state law was, in fact, a pa rtisan race from which federal employee s are banned. Admittedly, the s t atute does not give employ ees an abso lute right to participate in elections deemed to be nonpartisan under state law, but rather it give s employees the right to participate in electi ons in which no candida te represents a major politic al party. Admittedly the statute identifies no brigh t line rule for the lev e l of po litica l speech and conduct, on the part of either the c andidate or the party, that is necessary to establish r epresentation of a major politic al party. Although the standar d for what constitutes representation of a major political party is certainly flexible, "perfect clarity and precis e guidanc e have never been required even of regulations that restrict
express i ve activity." Ward v. Rock Against Racism , 491 U.S. 781, 794 (1989). McEntee has not established that the amended Hatch Act fails to "provide persons of ordinary intelligence a reasonable opportunity to know what is prohibited." Griffin , 288 F.3d at 1330. We do not believe that t he statute is unconstitutionally vague. D. Evidentiary Support for the Board’s Determination McEntee’s final c hallenge to the Board’s de cision is that it is not supported b y substantial evidenc e. McEntee bases this cl aim on the assertion that in order for an election designated as nonpartis an under s t ate law to be considered a prohibited race, a candidat e must receive a formal endorsement by a national, state, or local body of a major political party. Because McEntee received no such endorsement, he believes that the 2001 Albuquerque mayoral race did not constitute an election for a partisan

04-3066 25politic al office. The error of this asse rtion has been fully addressed above and does not need belaboring. Although we do not attempt to establish the minimum level of p a rtisan politics necessary to rebut the pres umption that an election designated as nonpar tisan under state and local law is , in fact, a prohibited po litic al race, there is no question that the record here amply supports the conclus i on that the presumption of nonpartisans hip afforded the 2001 Albuquerque Mayoral race wa s so rebutted. Here, McEntee openly solic ited members of the Republican Party fo r campaign contributions and made it clear that he was requesting donation s on the basis of party affiliation in order to further the party’s agenda. He t r umpeted his endorsem ent by the Executive Committee of the Bernalillo County Republ ican Party and individual R epublic an Party figures and appeared at press conferenc es with his endorsers. 9 Furthermore , leaders of the local and state Republic an Party actively s upport ed McEntee by publicly associat ing themselves with his campaign, advocating his election, and helping to raise funds in support of his ca ndidacy. While we le av e ope n the possib ility that less blatan t invocation of party status may not justify rebutting the presumption of nonp artisanship, there can be no doubt that t he combination of McEntee’s cond uct as a candidate and the Republican Party’s acquiesc ence in that conduct constitutes representing a major

9 McEntee contests the Board’s decisi on to admit as evidence newspaper articles describing his campaign as partisan. There is ample evidenc e in the record supporting the Board’s determination that the presumption of nonpartis anship was rebutted without relying on t he c hallenged newspaper articl es; therefore we need not address the merits of McEntee’s objection.

04-3066 26politic al party such that t he race in which he participated constituted an election for partisan political office. 10 The Board had substantial evidence to support its findings. III. CONCLUS ION For the foregoing reasons, we affirm t he Board’s determination that McEntee violated the Hatch Act by running as a candidate for election to a partisan political office and by knowingly solic iting and rece iving political contributions. IV. COSTS No costs.

AFFIRMED

10 McEntee also asserts that the precis e point at which the election was established as partisan was not clear to hi m and therefore his fundraising efforts could not be des cribed as t he knowing solic itation or receipt of banned polit ic al contributions. The record does not s upport this assertion. It shows that he held a fundrais i ng event o n September 14, 2001, two weeks after he was formally notified that the OSC believed that his activities violated the Hatch Ac t and one week after the deadline by which he needed to withdraw his candidac y or re sign his federal employment.

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