Ethics

The Office of Special Counsel (OSC), the agency charged with interpreting and enforcing the Hatch Act, this past Monday released a report on political activity by the White House Office of Political Affairs (OPA) on behalf of Republicans in the 2006 election cycle: 

http://www.osc.gov/documents/hatchact/STF%20Report%20Final.pdf

Congressman Darrell Issa, Chairman of the House Government Oversight Committee, has written to OSC requesting an investigation of OPA political activity on behalf of Democrats in the 2010 election cycle, including alleged Hatch Act violations in the Sestak-Romanoff controversy.  

A few days before release of this Report, the President shut down OPA and moved its operations out of the government to his political headquarters Chicago.

A few observations:

*In text accompanying footnote 66 of this Report, OSC adopts a narrow interpretation of § 7324(b), a provision which allows some White House staff members and senior political appointees in the Executive Branch agencies to conduct partisan political activity in government buildings and during normal working hours. OSC uses sick leave regulations by analogy to determine who is and is not eligible for the exception.  I never liked this exception ? and I believe it should be abolished ? so the more narrowly construed it is the better.

*OSCs interpretation of the § 7324(b) exception is contrary to the way OPA has functioned over the past several administrations, including Clinton, Bush II and probably the first two years of Obama (I will provide some details in the comment area for this post).  Indeed, OSC?s interpretation is sufficiently narrow that it allows only the most senior officials to conduct political activity inside the White House, and denies them the middle level and support staff they need for an effective political operation.  For reasons I have already explained in previous posts here, this is as it should be, because these political operations do not belong in the White House to begin with.

*Under OSC?s interpretation of the Hatch Act, President Obama had no choice but to move OPA out of the White House and to Chicago.  Had the OPA remained at the White House or anywhere else in the government it would have been ineffective or would have violated the Hatch Act.

*While I commend OSC for addressing this problem now, one must ask why this issue was not addressed before.  Everyone has known about extensive political operations inside the White House going back to the days of Jimmy Carter, and that these operations became even more salient in the 1990?s and early 2000?s.  Lawyers in the White House Counsel?s office furthermore over the past several administrations have been in regular contact with OSC about White House political operations and in many cases discussed with OSC specifically what OPA was doing or what OPA proposed to do.  White House Counsel?s Office lawyers consult OSC because they need clear legal guidance from OSC, and then decisive support from OSC. OSC?s construction of the § 7324(b) exception in this Report is one example of Hatch Act guidance that would have helped White House lawyers keep OPA political operations in check.  Simply saying ?it doesn?t feel right? or ?it violates the spirit of the Hatch Act? will get a lawyer nowhere when giving guidance to one of the most powerful offices in the White House.  In sum, where has OSC been on this all of these years?

*This Report can become yet one more excuse for partisan accusations, as Democrats point to violations described in the Report, and Republicans wait for the OSC investigation of the Obama White House requested by Congressman Issa, hoping to use it in November 2012.  Alternatively, leaders of both political parties can acknowledge that, as described in this Report, OPA has for many years violated the spirit if not the letter of the Hatch Act and has no business being in the White House.  We are fortunate that at least for the time being the President has deicided to move his political people to Chicago.