Outside the Beltway

Kellyanne Conway Violated Hatch Act

The legal distinction between "personal capacity" and "official capacity" makes no sense for senior presidential appointees.

James Joyner · Wednesday, March 7, 2018 · 13 comments

Lost amidst the Sam Nunberg meltdown and the Gary Cohn resignation was the news that Kellyanne Conway violated federal ethics rules.

The Hill (“Kellyanne Conway found to have violated Hatch Act“):

White House counselor Kellyanne Conway violated the Hatch Act on two occasions, the Office of Special Counsel (OSC) informed the Trump administration Tuesday.

Appearing in her official capacity, Conway endorsed and advocated against political candidates, the watchdog said, referring its findings to President Trump “for appropriate disciplinary action.”

The violations occurred during two television appearances in 2017, one on Fox News’s “Fox & Friends,” and one on CNN’s “New Day.”

“While the Hatch Act allows federal employees to express their views about candidates and political issues as private citizens, it restricts employees from using their official government positions for partisan political purposes, including by trying to influence partisan elections,” OSC says in its report.

“Ms. Conway’s statements during the ‘Fox & Friends’ and ‘New Day’ interviews impermissibly mixed official government business with political views about candidates in the Alabama special election for U.S. Senate.”

The report goes on to state that Conway received “significant training” on the Hatch Act and possible violations. OSC says it gave Conway, a former GOP pollster who served as Trump’s campaign manager, the opportunity to respond as part of its report, but she did not.

The White House rejected the report’s findings, saying “Conway did not advocate for or against the election of any particular candidate” in a statement provided to reporters.

“In fact, Kellyanne’s statements actually show her intention and desire to comply with the Hatch Act — as she twice declined to respond to the host’s specific invitation to encourage Alabamans to vote for the Republican,” deputy press secretary Hogan Gildley said.

Ahead of December’s special election to replace Attorney General Jeff Sessions in the Senate, Conway made remarks critical of then-candidate Doug Jones in his race against former Alabama Supreme Court Chief Justice Roy Moore.

During her initial Fox appearance, Conway blasted Jones as “weak on crime” and “weak on borders,” before declining to specifically endorse Moore when asked.

“Doug Jones in Alabama, folks, don’t be fooled. He will be a vote against tax cuts. He is weak on crime, weak on borders. He is strong on raising your taxes. He is terrible for property owners,” Conway said in November.

“So, vote Roy Moore?” host Brian Kilmeade interjected.

“I’m telling you that we want the votes in the Senate to get this tax bill through,” Conway responded.

In her CNN appearance in December, Conway went further, saying that Trump “doesn’t want a liberal Democrat representing Alabama” in the Senate.

“The only endorsement that matters in this race is President Trump’s,” Conway said the week before the vote. “And he came out questioning the ideology and the vote of Doug Jones. He’ll be a reliable vote for tax hikes. He’ll be a reliable vote against border security. He’ll be a reliable vote against national security and keeping [Islamic State in Iraq and Syria] ISIS in retreat. He’ll be the reliable vote against the Second Amendment and against life.”

At the time, former Office of Government Ethics Director Walter Shaub called the comments a “slam dunk” violation of the Hatch Act.

“The willfulness of Conway’s violation and her openly expressed disdain for efforts to hold her accountable for complying with ethics requirements make clear that anything less than removal from the federal service or a lengthy unpaid suspension will not deter future misconduct on her part,” Shaub said.

NPR (“Kellyanne Conway Violated Federal Ethics Rules, Watchdog Agency Says“) adds context:

“While the Hatch Act allows federal employees to express their views about candidates and political issues as private citizens, it restricts employees from using their official government positions for partisan political purposes, including by trying to influence partisan elections,” the agency’s report says. “Ms. Conway’s statements during the Fox & Friends and New Day interviews impermissibly mixed official government business with political views about candidates in the Alabama special election for U.S. Senate.”

The agency says Conway never responded to its inquiries and says that it has submitted its report to the president for “appropriate disciplinary action.” Because Conway is a high-ranking presidential appointee, it’s up to Trump to decide what action is appropriate.

The White House pushed back on the report and argued Conway did not advocate for or against a candidate in the Alabama race.

“She simply expressed the President’s obvious position that he have people in the House and Senate who support his agenda,” said deputy press secretary Hogan Gridley, in a statement. “In fact, Kellyanne’s statements actually show her intention and desire to comply with the Hatch Act – as she twice declined to respond to the host’s specific invitation to encourage Alabamans to vote for the Republican.”

U.N. Ambassador Nikki Haley was reprimanded by OSC last year for retweeting Trump’s endorsement of a South Carolina congressional candidate from her personal account. White House social media director Dan Scavino was also reprimanded for using a White House Twitter account to call for the ouster of a Republican member of Congress.

Conway clearly and brazenly broke the rules here. And, in a fashion all-too-common with this administration, thumbed her nose at standard processes by refusing to cooperate with the investigation. While it’s exceedingly unlikely the President will sanction her, he should; nobody should be above the rules.

That said, the rules here are silly. The intent of the Hatch Act, to prevent turning the civil service into a partisan tool, remains as valid today as it did when it was passed nearly eight decades ago. But it makes little sense in the case of high-level political appointees who speak for the President.

The Hatch Act already excludes the President and Vice President from its restrictions on political speech—although Federal election laws require segregation of “campaign” activities from “official duties,” even though the distinction is artificial. Everything a President does is connected in some way to partisan activities. We ought to carve out exceptions for the President’s spokespeople, too.

Most ordinary Federal employees have rather substantial free speech rights. We’re allowed to engage in partisan speech—in some cases, even run for partisan office—so long as we do so in our “off duty” hours and make it clear we’re not speaking in our “official capacity.” Even for low-level people like myself, those distinctions can be arbitrary. I’m salaried and don’t have true working hours aside from my class schedule. And, while I’m always careful to make clear that I’m speaking only for myself, my institutional affiliation naturally attaches to me.

But a Kellyanne Conway is never “off duty” and never speaking in a “personal capacity.” When she goes on a Fox & Friends, even if it’s before 9 am, she’s almost by definition on duty. And, even if she were to say “Now, I’m just speaking for myself here, not the President,” it would be an absurd ruse.

I suppose we could try to apply the same sort of financial reimbursement rules to the Conways of the world as we do to the President. If she’s effectively campaigning for Republican Senate candidates, the taxpayer shouldn’t be on the hook for her travel expenses. But, again, it gets rather silly trying to parse that out.