Page:Black Lives Matter and the Hatch Act.pdf/3

U.S. Office of Special Counsel Page 3 to political parties that we can find is the statement “We are [moving forward towards justice] through our continued fight against elected officials, be it Democrat or Republican, who don’t share a vision that is radical and intersectional.” BLMGN’s website does not contain any candidate endorsements, any descriptions of its partisan political activity, or requests that visitors engage in partisan political activity.

III.A

As relevant here, the Hatch Act prohibits employees from engaging in political activity while on duty or in the federal workplace. “Political activity” is activity directed toward the success or failure of a political party, partisan political group, or candidate for partisan political office. A “partisan political group,” in turn, is a group that (1) is affiliated with a political party or candidate for partisan political office, (2) is organized for a partisan purpose, or (3) engages in partisan political activity. The Hatch Act does not prohibit employees from engaging in issue-based advocacy, such as activity in relation to an issue not specifically identified with a political party or partisan political group. Because using BLM terminology is not inherently political activity, and because BLMGN is not a partisan political group, the Hatch Act has only limited application to BLM-related activity.

1. Using BLM terminology in the workplace is not inherently political activity.

The Hatch Act generally prohibits employees from using or displaying political party and partisan campaign slogans. For example, employees may not use President Trump’s campaign slogan, “Make America Great Again,” in their email signatures while President Trump is a candidate for reelection. Employees would have similarly violated the Hatch Act by referencing Hillary Clinton’s campaign slogan, “Forward Together,” in the workplace during the 2016 election campaign.

Unlike campaign slogans, phrases related to issues—even politically charged issues—generally do not meet the definition of political activity. For example, the Tea Party movement rose to prominence during the Obama Administration in large part as a response to federal taxing and spending policies. Because of this issue-focused origin, OSC could not conclude that the movement itself was inherently partisan as opposed to issue-based. Accordingly, OSC repeatedly found that mere use of the phrase “Tea Party” by federal employees while on duty or in the workplace was not prohibited by the Hatch Act.

Although OSC deemed the Tea Party movement as not inherently partisan, OSC was also asked to evaluate whether certain Tea Party-affiliated groups met the definition of a partisan political group. OSC examined those groups on a case-by-case basis and determined that at least one was a partisan political group. Thus, a distinction arose between on-duty employees