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Getting the Government America DeservesHow Ethics Reform Can Make a Difference$

Richard W. Painter

Print publication date: 2009

Print ISBN-13: 9780195378719

Published to Oxford Scholarship Online: May 2009

DOI: 10.1093/acprof:oso/9780195378719.001.0001

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The Official White House Office of Political Affairs, the Unofficial Office of Political Affairs, and Personal Capacity Political Activity by Government Officials

The Official White House Office of Political Affairs, the Unofficial Office of Political Affairs, and Personal Capacity Political Activity by Government Officials

Chapter:
(p.245) ten The Official White House Office of Political Affairs, the Unofficial Office of Political Affairs, and Personal Capacity Political Activity by Government Officials
Source:
Getting the Government America Deserves
Author(s):

RICHARD W. PAINTER

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780195378719.003.0010

Abstract and Keywords

This chapter focuses on political activity by government officials. It argues that concurrent political and official roles put people in a position that is difficult and untenable. Critics will blame Office of Political Affairs staff members and other officials who engage in political activity for poor ethical judgment when problems arise. These problems, however, may be inevitable if government officials continue to be asked to perform official and political roles concurrently. The public image of the White House and the rest of the government will suffer as a consequence. These and other problems would be mitigated if White House staff members were prohibited from, or voluntarily refrained from, engaging in personal capacity political activity. A strong argument can also be made for not allowing any political activity on government property, whether in the White House or anywhere else.

Keywords:   Hatch Act, political activity, government employees, government officials, White House, public image

AS ALREADY POINTED OUT in Chapters 8 and 9, government employees who engage in partisan political activity in a personal capacity are particularly likely to be influenced by both registered lobbyists and advocacy groups. Much of this lobbying takes place at political fundraisers where government officials, attending free of charge, mingle with donors. Access to government officials is sold at these events.

The Hatch Act regulates government employees’ participation in political activity. The general principle of the act is that official and political functions are supposed to be separate. This distinction, however, is difficult conceptually and more difficult to implement in practice.

A further complicating factor is that regulations under the Hatch Act impose different rules on different categories of federal employees. Employees in certain agencies, such as the Federal Bureau of Investigation (FBI); the Central Intelligence Agency (CIA) and others in the intelligence community; and the National Security Council, are prohibited from acting even in their personal capacity in concert with a political party, a partisan political group, or a candidate for partisan political office.351 Other federal employees may engage in such political activity, but only in a personal capacity without using their official title.352 They may only do so while not in government buildings and outside of their working hours. They also may not engage in fundraising or run for office in a partisan election.353 Presidential appointees to Senate confirmed positions and White House staff, however, are subject to more lenient rules set forth in a subpart of the regulation entitled “Special Provisions for Certain Presidential Appointees and Employees Paid from the (p.246) Appropriation for the Executive Office of the President.” These employees are permitted to engage in political activity while in government buildings and during normal working hours if their duties normally extend beyond working hours. These are so-called 24/7 employees who theoretically are available for official duties all day and all week.354 These employees, like other federal employees, however, may not engage in fundraising or run for office in a partisan election.

The time records of government employees’ political activity are not required to be kept. There are also no specific limits on time devoted to political activity, provided the time is personal rather than official. Empirical data on the extent of political activity by government officials is not available.

The role of government employees at political fundraisers is also ambiguous. The Hatch Act bars government employees from political fundraising, including hosting or organizing fundraisers.355 Government employees, however, are permitted to attend fundraisers and may speak at fundraisers, provided they do so in a personal rather than an official capacity. A government employee’s official title may not be used on invitations to a political event. Nonetheless, the subject matter of a personal capacity speech may include personal viewpoints on official government business, including government business handled by the same employee during working hours.

Political appointees in the agencies engage in much of this political activity. A nerve center for the operation, however, is located at the Republican National Committee (RNC) or the Democratic National Committee (DNC), depending on which party controls the executive branch. Another nerve center is located in the White House Office of Political Affairs. Political advisors have always been present in the White House. Beginning in the Reagan administration, they worked within a separate Office of Political Affairs with its own head. Their organizational framework has become tighter over the past few administrations with a formal reporting structure for political activity that often parallels the reporting structure in the Office of Political Affairs for official government work. This office was headed for much of the George W. Bush administration by Karl Rove.

(p.247) The concept behind the office is a logical one, at least in theory. A first premise is that the president needs advice about the political ramifications of presidential policies in addition to policy advice. A second premise is that the president’s political advisors give better advice if they engage in personal capacity political activity and stay in regular contact with candidates, parties, PACs, and other organizations.

The first premise is clearly correct. Proponents of the Office of Political Affairs can point to the George H. W. Bush and the early Clinton administrations, to illustrate what happens if policy is developed without effective political advice.

President George H. W. Bush’s popularity quickly plummeted from its heights at the conclusion of the Gulf War. The administration failed to explain why the United States did not “finish the job” by ousting Saddam Hussein. The administration alienated pro-Israel voters by using poorly chosen words to explain why Israel’s West Bank settlements undermined the peace process in the Middle East. The administration lost contact with the Republican base on some issues, inviting a primary challenge from Pat Buchanan, yet still alienated moderate constituencies by appearing too obsequious to the far right. The administration did not convince voters that the economy was on the mend by late 1992, although it was. It is not clear how many of these problems could have been avoided with more informed and influential political advisors in the White House. The widely held perception in Republican circles, however, is that the administration was politically out of touch, and even more so during the year leading up to President Bush’s election loss to Bill Clinton in 1992.

The failure of the Clinton health plan and the Democrats’ loss of both houses of Congress in 1994 is another poignant example of what can go wrong when policy trumps political strategy. The White House did not provide Congress with details about the plan until relatively late, while insurance company lobbyists and other opponents contacted Congress early and often with objections. Substantively, the plan was vulnerable to attack for its effect on people who already had health insurance. The administration did little to counter voters’ fear of the unknown. Political efforts to salvage the plan were too little too late.

These examples, along with political miscalculation in the Ford and Carter administrations, demonstrate that sound political advice in the White House is important not only for reelecting the president, but for achieving the president’s policy objectives.

(p.248) There is also some evidence to support the second premise that personal capacity political activity by the president’s political advisors helps them advance the president’s policy agenda. Political activity provides contacts with elected officials around the country, including governors and other state officeholders who White House officials might not have a chance to meet in Washington. Political activity provides contacts with national and local political party leaders, as well as with business leaders, union leaders, public interest groups, religious organizations, and voters. These contacts help political advisors make informed recommendations on which of the president’s policy initiatives are politically viable and which are not, as well as on how to communicate about policy with elected officials and crucial segments of the electorate.

This line of argument supporting the second premise however only goes so far. Need for political information does not necessarily justify the type of political activity engaged in by the Office of Political Affairs or its extent.

First, there are ways other than political activity for White House staff to gather political information. Many staff members, including those in the Office of Legislative Affairs, have frequent contact with members of Congress and their staff who in turn are in touch with constituents. The White House Office of Intergovernmental Affairs is in touch with state and local governments. Other White House offices, including the Domestic Policy Council and the National Economic Council, frequently hear from the many different advocacy groups, described in Chapter 9, that provide information about how various constituencies will react to proposed policy initiatives.

Second, the type of political activity that Office of Political Affairs staff and other government employees engage in may convey incomplete information about the political environment. Speaking at political fundraisers is a good strategy for financing campaigns, and is allowed under the Hatch Act, provided the official does not participate in the fundraising. Fundraisers, however, give officials a biased perspective on politics. Attendees are usually rich and intensely partisan. Voters who cannot afford fundraisers are invisible. Swing voters tend not to go either. Groups that criticize the president’s policy initiatives probably will not be there. Government officials attending fundraisers learn what campaign contributors want, but considerably less about what the public wants. On a range of policy proposals, the answer they hear at these events will often be yes when the politically astute answer is no.

Third, White House staff members outside of the Office of Political Affairs do not need to engage in political activity to appreciate political implications of official policies. Advice on political matters is presumably what White (p.249) House political advisors are for, and other staff members can listen to political advisors. Like political advisors, they also can learn about the political environment in many ways besides partisan political activity. It is doubtful that these staff members will do a better job because they spend time away from the office gathering first-hand political information at campaign events.

Fourth, White House Office of Political Affairs staff members do not enhance their own advisory role by recruiting other executive branch agency officials to engage in personal capacity political activity. This does little to politically inform White House decision making and may introduce unwanted politicization into the agencies. Presumably, agency officials can decide for themselves how much political activity, if any, is optimal to gather political information they need to do their jobs. The fact that recruiting calls are made in a personal capacity by White House staff does little to alleviate the perception that pressure is being applied.

In sum, there is a powerful argument that having an Office of Political Affairs that is active in political campaigns is not a necessary or even a desirable component of the political advisory function in the White House. Political advice given to the president would probably be just as good, and perhaps better, without White House staff members moonlighting for political campaigns.

It is expedient—particularly for people in the other political party—to attack the character of the people who staff the White House Office of Political Affairs. Government ethics reform, however, would benefit more from addressing the structural problems of having such an office within the White House to begin with and how those problems can be resolved by abolishing the office or scaling back its operations. Regardless of who controls the White House, this office cannot function properly without sorting out the complexities inherent in the intersection between official duties and personal capacity political work. From a cost-benefit perspective, this exercise may not be worthwhile.

For legal advisors, in particular, the combination of official with political work is fraught with difficulty. Regardless of synergies between official capacity political advice and personal capacity political activity, the Hatch Act requires the two to be separate. In instances in which the formalities of separation are not properly observed, the White House comes under intense criticism. At the same time, employees who engage in both types of activity may have difficulty, conceptually, separating functions they perceive to revolve around a single objective: the political success of the president and his policies.

(p.250) Confusion over e-mail is one example of problems that arise when the same people do official and political work at or about the same time. Political e-mail should be sent on computers or Blackberries that are provided by a political party (the RNC or DNC) or by political campaigns, and the e-mail should be sent on accounts maintained by these political entities. Sending political e-mail using government equipment or through government e-mail accounts creates the appearance of a Hatch Act violation because the government pays for the equipment and e-mail accounts, and using a government e-mail address implies an official endorsement of the political message’s content. Arguably, there is no actual Hatch Act violation because the cost to the government of nonofficial/personal e-mail is minimal and government endorsement of a political message cannot reasonably be assumed when it is widely known that the government is prohibited from endorsing political messages. Still, the appearance from political use of government e-mail is so poor that most ethics lawyers advise against it.

On the other hand, official business should be transacted on government equipment through government e-mail accounts. Using a political or other non-government e-mail account for official government business can compromise compliance with record-keeping requirements, including the Presidential Records Act. This is particularly true if the organization hosting an e-mail account does not save e-mail. For this reason, the White House staff manual since the Clinton administration has required official messages to be transmitted on government e-mail accounts. Also, for this reason, White House computers are set up to block access to other e-mail accounts.

These rules may be clear in principle, but identifying which e-mail falls into which category is not always easy. Some e-mail will have both political and official content. Sometimes, a political e-mail will get an official capacity response or vice versa. In an e-mail conversation among several government employees, some participants may be communicating in a political capacity while others are communicating in an official capacity; some may switch in the middle of the conversation. Although the policy is clear that government employees should keep political e-mail separate from official e-mail, confusion about which is which can become an excuse for ignoring the rules and using one e-mail account for both official and political e-mail. Depending on whether an official or a political account is used, compliance with the Hatch Act or the Presidential Records Act will at least appear to be compromised.

E-mail is only one example of practical difficulties with separating official work from political work if government employees are simultaneously (p.251) immersed in both. Complex formulas are used to allocate official and political travel; cars with military drivers from the CARPET fleet at the White House cannot be used to go to political meetings; political speeches can refer to matters pending before the government yet official titles cannot be used because political speeches are made in a personal rather than an official capacity; government employees on a leave system take personal time for political activity but accounting for leave is complicated if these employees engage in official business while away on a political trip or vice versa; round the clock 24/7 employees do not have to account for their time, but are expected to treat time spent on political activity as if it were vacation even if they are not assigned a specific number of vacation days. These are some of the many situations in which official and political functions must be separated conceptually to comply with the Hatch Act, although for some government officials the distinction is more theoretical than real.

Another problem associated with political activity by White House staff is conflict between the interest of the president receiving the best political advice and the narrower interests of campaign contributors and other core political supporters.356 For example, political advisors to the president may consult unions and trade associations to gather information about the impact on workers, suppliers, customers, and investors of proposed industry regulation. The political advisors will assess whether the regulation is politically feasible, while the president’s economic advisors presumably assess whether it is good economic policy. These same political advisors, however, may in their personal time attend political events with representatives of the unions or the trade associations. The same industry regulation may be discussed at those events. The unions or trade associations attending political events probably will not see the official and political contexts as distinct. They might expect that the favors they extend in the political arena will be returned in the official arena. Political advisors who perform both functions for too long can lose sight of the distinction as well.

This conflict is exacerbated if government officials in the White House and in the agencies collaborate in their policymaking roles and also collaborate to do political work in their personal capacities. In both collaborations, there will be formal and informal hierarchies. Suggestions can in fact be (p.252) instructions. Communication about official matters coming from the White House or from senior agency officials could be confused with political communication, and vice versa. The confusion can be inadvertent or intentional.

State political party operatives, for example, might convey to the Office of Political Affairs their dissatisfaction with a local federal prosecutor. Some of their concerns could be strictly political, and some might be characterized as relating to the way the prosecutor is doing his or her job. A staff member in the Office of Political Affairs might then call up the DOJ to pass along the complaint and perhaps suggest that there be a meeting to discuss the matter. At some stage, this matter becomes a subject of official communication, and may result in official action, such as the removal of the prosecutor, even though the matter began as a communication among persons acting strictly in a political capacity. The Office of Political Affairs, in this example, becomes the bridge between the two. Without staff members in the office being involved concurrently in political and official activity, political communications could still result in official action, but the likelihood of the state party operatives making direct contact with a White House official and then with the DOJ would be diminished. Their message about the prosecutor might still get through if they tried hard enough, perhaps by going through a member of Congress or their political party’s national committee, but they would have to jump through more hoops to get there. The office, as it is currently constructed, makes access to the highest levels of government for too many political operatives too easy.

There can also be conflict of commitment. In an election year, some government employees spend a lot of time on political work, although the lack of a reporting system makes it difficult to determine how much. This political work may leave little time for official duties. Inattention to official matters, however, can have a political price in the long run.

For all of these reasons, concurrent political and official roles put people in a position that is difficult and arguably untenable. Critics will blame Office of Political Affairs staff members and other officials who engage in political activity for poor ethical judgment when problems arise. These problems, however, may be inevitable if government officials continue to be asked to perform official and political roles concurrently. The public image of the White House and the rest of the government will suffer as a consequence.

These and other problems would be mitigated if White House staff members were prohibited from, or voluntarily refrained from, engaging in personal capacity political activity. The president and vice president, of course, should be permitted to campaign for their reelection and perhaps (p.253) also on behalf of congressional candidates, but current White House staff members do not need to do so as well. This would mean dismantling the Office of Political Affairs as currently constituted, and assembling a staff of political advisors in the White House who stay in touch with political developments by means other than political activity. Other political advisors who are not government employees could work for the RNC or DNC or for political campaigns, and focus exclusively on political work without having to concern themselves with official duties or fiduciary obligations to the public. The president’s official advisors could be allowed to talk to political advisors employed by the president’s party, as they would talk with any outside group. Individuals could move through Washington’s revolving door from one of these offices to the other provided there is compliance with revolving-door ethics rules; see Chapter 2. Such an arrangement would not eliminate all of the problems with the current system, and political party priorities would still have an impact on work at the White House. At least, however, individual political advisors would know what their function is, and to whom they owe fiduciary obligations.

A strong argument can also be made for not allowing any political activity on government property, whether in the White House or anywhere else. This would mean repealing the Hatch Act rules that allow an employee of the Executive Office of the President, or a PAS office-holder in one of the agencies, to engage in political activities on government property during normal working hours, so long as the work is done in a personal capacity and at no cost to the government. The convenience created by this exception is probably not worth the inevitable blending of official and political functions and confusion involved. It is also best that the same rule—no political activity in government buildings—apply to senior political appointees as currently applies to their subordinates. Finally, political activity by government officials should be reported and time records kept so the public can assess both conflict of commitment and conflict of interest. (p.254)

Notes:

(351.) 5 CFR Section 734.401 (Office of Personnel Management regulations under the Hatch Act).

(352.) 5 CFR Section 734.302.

(353.) 5 CFR Section 734.303 and 734.304.

(354.) 5 CFR Section 734.501 to 734.504 (Subpart E), Special Provisions for Certain Presidential Appointees and Employees Paid from the Appropriation for the Executive Office of the President.

(355.) 5 CFR Section 734.303.

(356.) The standards of conduct prohibit an employee from engaging in outside employment or an outside activity that conflicts with official duties. See 5 CFR Section 2635.802. This provision, however, has not yet been construed to preclude political activity that generates these types of conflicts.