White House Counselor Kellyanne Conway would like the nation to see her as a victim whose free speech rights are being unfairly trampled upon by the U.S. Office of Special Counsel, an independent watchdog agency. The OSC has recommended Conway be fired for repeated violations of the Hatch Act, which prohibits federal employees from openly partisan activities while on the job.
Conway in her official role functions as a senior adviser to the president. That can take in a range of duties, but in Conway’s case, it appears to center on TV appearances in which she talks up or talks around Trump’s actions while savagely going after his opponents. She has been warned repeatedly about the Hatch Act and has responded that she doesn’t care, secure in the knowledge that her boss doesn’t care either. President Donald Trump has said he will not fire her and has complained that the OSC is attempting to restrict Conway’s freedom of speech.
This is yet another pushback against rules that have stood the test of time. Somehow, every presidential administration for the last 80 years has managed to live within the rather modest constraints of the law. The act has twice been upheld by the Supreme Court, which in 1973 said it had “struck a delicate balance between fair and effective government and the First Amendment rights of individual employees.”
Two Republican presidents, Gerald Ford and George H.W. Bush, vetoed attempts to water it down, and in 2012 President Barack Obama signed a modernization of the act that allowed for a range of disciplinary actions. It has regularly been applied to appointees on both sides of the aisle. As Obama’s health and human services secretary, Kathleen Sebelius made a remark about the need to re-elect him at an official event and by agreement with the OSC reimbursed the government for her expenses.
Those kind of bright lines are worth keeping. The OSC itself was born of the Watergate era, after it was learned that President Richard Nixon wanted to replace the civil servant system with political patronage, including ranking prospective employees by campaign contributions and potential campaign value.
If Conway wants to engage in partisan brawling, she has an option well known to all in the political world: Move to the campaign. It is a common practice among national and state politicians to move certain aides from the governing side to a campaign as an election draws near. Her salary would then be covered by campaign donations and not U.S. taxpayers.
The Trump administration would have us all believe that expecting federal employees to refrain from openly partisan activities is hopelessly old-fashioned, and that the only rule now is there are no rules. Subpoenas can be ignored, watchdog agencies dismissed.
Fortunately, OSC head Henry Kerner — himself a Trump appointee — disagrees. “Ms. Conway’s violations, if left unpunished, would send a message to all federal employees that they need not abide by the Hatch Act’s restrictions,” Kerner said in a letter. “Her actions thus erode the principal foundation of our democratic system — the rule of law.”
Kerner is fighting to preserve a rule that seeks to curb the worst excesses of partisanship in government, even if it means taking on the man who appointed him. It’s worth doing.