Political Activities and Government Employees

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Abolition of the “spoils system” in federal employment brought with it restrictions on political activities by federal employees. In 1876, federal employees were prohibited from requesting from, giving to, or receiving from any other federal employee money for political purposes, and the Civil Service Act of 1883 more broadly forbade civil service employees to use their official authority or influence to coerce political action of any person or to interfere with elections.1 By the Hatch Act, federal employees, and many state employees as well, are forbidden to “take any active part in political management or in political campaigns.” 2 As applied through the regulations and rulings of the Office of Personnel Management, formerly the Civil Service Commission, the Act prevents employees from running for public office, distributing campaign literature, playing an active role at political meetings, circulating nomination petitions, attending a political convention except as a spectator, publishing a letter soliciting votes for a candidate, and all similar activity.3 The question was whether government, which may not prohibit citizens in general from engaging in these activities, could nonetheless so control the off-duty activities of its own employees.

In United Public Workers v. Mitchell,4 the Court answered in the affirmative. While the Court refused to consider the claims of persons who had not yet engaged in forbidden political activities, it ruled against a mechanical employee of the Mint who had done so. The Court’s opinion, by Justice Stanley Reed, recognized that the restrictions of political activities imposed by the Act did in some measure impair First Amendment and other constitutional rights,5 but it based its decision upon the established principle that no right is absolute. The standard by which the Court judged the validity of the permissible impairment of First Amendment rights was a due process standard of reasonableness.6 Thus, changes in the standards of judging incidental restrictions on expression suggested the possibility of a reconsideration of Mitchell.7

In Civil Service Commission v. National Association of Letter Carriers, however, a divided Court, reaffirming Mitchell, sustained the Act’s limitations upon political activity against a range of First Amendment challenges.8 The Court emphasized that the interest of the government in forbidding partisan political activities by its employees was so substantial that it overrode the rights of those employees to engage in political activities and association.9 The issue in Letter Carriers, however, was whether the language that Congress had enacted, forbidding employees to take “an active part in political management or in political campaigns,” 10 was unconstitutional on its face, either because the statute was too imprecise to allow government employees to determine what was forbidden and what was permitted, or because the statute covered conduct that Congress could not forbid as well as conduct subject to prohibition or regulation. With respect to vagueness, the plaintiffs contended and the lower court had held that the quoted proscription was inadequate to provide sufficient guidance and that the only further elucidation Congress had provided was in a section stating that the forbidden activities were the same activities that the Commission had as of 1940, and reaching back to 1883, “determined are at the time of the passage of this act prohibited on the part of employees. . .by the provisions of the civil-service rules. . . .” 11 This language had been included, it was contended, to deprive the Commission of power to alter thousands of rulings it had made that were not available to employees and that were in any event mutually inconsistent and too broad.

The Court held, on the contrary, that Congress had intended to confine the Commission to the boundaries of its rulings as of 1940 but had further intended the Commission by a process of case-by-case adjudication to flesh out the prohibition and to give content to it. The Commission had done that. It had regularly summarized in understandable terms the rules that it applied, and it was authorized as well to issue advisory opinions to employees uncertain of the propriety of contemplated conduct. “[T]here are limitations in the English language with respect to being both specific and manageably brief,” said the Court, but it thought the prohibitions as elaborated in Commission regulations and rulings were “set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interests.” 12 There were conflicts, the Court conceded, between some of the things forbidden and some of the protected expressive activities, but these were at most marginal. Thus, some conduct arguably protected did, under some circumstances, so partake of partisan activities as to be properly proscribable. But the Court would not invalidate the entire statute for this degree of overbreadth.13 Subsequently, in Bush v. Lucas14 the Court held that the civil service laws and regulations constitute a sufficiently “elaborate, comprehensive scheme” to afford federal employees an adequate remedy for deprivation of First Amendment rights as a result of disciplinary actions by supervisors, and that therefore there is no need to create an additional judicial remedy for the constitutional violation.

The Court has also addressed the balance between elected officials’ First Amendment rights to speak about matters of public concern and elected bodies’ rights to censure objectionable speech. In Houston Community College System v. Wilson, a community college Board of Trustees censured one of its elected members after he made public comments that the Board found “inappropriate,” “reprehensible,” and “not consistent with the best interests of the College.” 15 The Board member claimed the censure violated his First Amendment right to be free from government retaliation for engaging in protected speech.16 While acknowledging that elected representatives, like the Board member, have the right to speak freely on government policy, the Court recognized that the censure issued by the other elected representatives was also a form of protected speech.17 According to the Court, the Board member could not use his First Amendment rights “as a weapon to silence other representatives seeking to do the same.” 18 Although it concluded that the censure at issue did not violate the First Amendment, the Court explained its decision was a “narrow one” involving only a First Amendment retaliation claim regarding the “censure of one member of an elected body by other members of the same body.” 19 As a result, claims involving other forms of discipline or punishment, such as expulsion or exclusion, may produce a different outcome.20

1: 19 Stat. 143, § 6, 18 U.S.C. §§ 602–03, sustained in Ex parte Curtis, 106 U.S. 371 (1882); 22 Stat. 403, as amended, 5 U.S.C. § 7323.
2: 53 Stat. 1147 § 9(a) (1939), as amended, 5 U.S.C. § 7324(a)(2). By 54 Stat. 767 (1940), as amended, 5 U.S.C. §§ 1501–08, the restrictions on political activity were extended to state and local governmental employees working in programs financed in whole or in part with federal funds. This provision was sustained against federalism challenges in Oklahoma v. Civ. Serv. Comm’n, 330 U.S. 127 (1947). All the states have adopted laws patterned on the Hatch Act. See Broadrick v. Oklahoma, 413 U.S. 601, 604 (1973).
3: The Comm’n on Pol. Activity of Gov’t Pers., Findings and Recommendations 11, 19–24 (1968).
4: 330 U.S. 75, 94–104 (1947)
5: Id. at 94–95.
6: Id. at 101–02.
7: The Act was held unconstitutional by a divided three-judge district court. Nat’l Ass’n of Letter Carriers v. Civil Serv. Comm’n, 346 F. Supp. 578 (D.D.C. 1972).
8: 413 U.S. 548 (1973). In Broadrick v. Oklahoma, 413 U.S. 601 (1973), the Court refused to consider overbreadth attacks on a state statute of much greater coverage because the plaintiffs had engaged in conduct that the statute clearly could constitutionally proscribe.
9: The interests the Court recognized as served by the proscription on partisan activities were (1) the interest in the efficient and fair operation of governmental activities and the appearance of such operation, (2) the interest in fair elections, and (3) the interest in protecting employees from improper political influences. 413 U.S. at 557–67.
10: Id. at 570 n.17.
11: Id..
12: Id. at 578–79.
13: Id. at 580–81.
14: 462 U.S. 367, 385 (1983).
15: 20-804, slip op. at 2 (U.S. March 24, 2022).
16: Id. at 4.
17: Id. at 9.
18: Id.
19: Id. at 13.
20: Id.