SiriusXM’s Kent Klein interviews CoAI Assistant VP Henry Kerner on Obama admin Hatch Act violations


Is Sec. Perez Campaigning on the Taxpayer’s Dime?

Washington D.C. – Cause of Action Institute (“CoA Institute”) today sent a Freedom of Information Act (“FOIA”) request to the U.S. Department of Labor investigating whether recent outreach by Secretary Tom Perez to voting members of the Democratic National Committee (“DNC”) regarding his political future could be in violation of the Hatch Act. The Hatch Act explicitly prohibits federal employees from using their official authority for the purpose of affecting the results of an election.

Secretary Perez reportedly emailed DNC party chairs Wednesday morning and asked them to join him on a conference call this afternoon. During that call Sec. Perez announced his candidacy for DNC Chairman. Such outreach raises the possibility that Perez may be attempting to advance his political campaign while serving in his current government role.

Following the conference call, CoA Institute requested all communications surrounding this outreach to better understand whether Sec. Perez has used taxpayer resources, such as government issued computers, office space, mobile devices, staff, or email systems to promote his campaign.

CoA Institute Assistant Vice President Henry Kerner: “The law is clear: public officials paid by taxpayers cannot use their position to engage in political activities. The Obama administration’s unprecedented history of Hatch Act violations threatens to undermine this important protection. Americans have a right to know if Sec. Perez used taxpayer-funded resources to further his own political campaign.”

There have been three previous high-profile Hatch Act violations during the Obama administration. Just a few months ago in July of this year, Department of Housing and Urban Development Secretary Julian Castro was found to have violated the Hatch Act when he openly endorsed Hillary Clinton’s candidacy for president during a Yahoo News interview. Before that, in 2012, Secretary of Health and Human Services Kathleen Sebelius was also found to have violated the Hatch Act when she delivered the keynote speech at a gala calling on attendees to reelect President Obama. And prior to that, Secretary Perez’s predecessor at the Labor Department, Hilda Solis, resigned after word came out that she had solicited campaign contributions from a subordinate employee.

These were historic violations, as no Cabinet secretary in any prior administration had been found in violation of the Hatch Act since its enactment under Franklin Delano Roosevelt. Yet, neither Ms. Sebelius nor Mr. Castro suffered any consequences for these violations.

The full FOIA can be found here


Partisan politics in the Cabinet (Judge Lechner op-ed)


Obama allows senior officials to meddle unlawfully and without accountability

By Alfred J. Lechner Jr. | ANALYSIS/OPINION:

The Obama administration repeatedly allows senior officials to unlawfully meddle in politics without being held accountable. In just the latest incident, Department of Housing and Urban Development (HUD) Secretary Julian Castro in July was found to have violated a law designed to ensure that federal officials work on behalf of all Americans, not their political party. The Hatch Act, enacted in 1939, prohibits employees in the executive branch from engaging in electoral politics when acting in their official capacity. In other words, public officials paid by taxpayers cannot use their position to influence elections.

Apparently this law is a dead letter. During a recent media interview with Yahoo News, Mr. Castro violated this law when he expressed his enthusiastic support for the election of his close friend Hillary Clinton. He touted Mrs. Clinton’s accomplishments while criticizing the Republican Party and its candidate for president, Donald Trump. At the time, Mr. Castro was reported to be on Mrs. Clinton’s short list for vice president.

To be clear: Mr. Castro appeared in his official capacity. The interview was conducted in the HUD broadcast studio in Washington D.C., he was introduced and consistently referred to as the HUD secretary, and the interview was conducted with the official HUD seal visible behind him. The interview began with a discussion of various HUD programs and initiatives.

Soon after, the U.S. Office of Special Counsel (OSC), the watchdog in charge of tracking such violations, investigated and released its findings that Mr. Castro violated the Hatch Act when he discussed politics and the upcoming general election.

At the time of the interview, Mr. Castro stated he believed he had acted appropriately. The OSC, however, questioned the credibility of that statement. Mr. Castro had received four briefings on the Hatch Act during his tenure, including one as recently as February 2016. Ethics officials at HUD also stated that they had specifically advised Mr. Castro how to handle political questions when he is speaking in his official capacity by stating that he is not there to talk about politics.

Such a high-profile violation of the Hatch Act is not a mere technical error. Condoning Hatch Act violations poses a serious threat to the legitimacy of our democratic system. And this was not the first time a cabinet member in the Obama administration has violated the Hatch Act.

In August 2012, the OSC found that Secretary of Health and Human Services, Kathleen Sebelius, also violated the Hatch Act when she delivered the keynote speech at the Human Rights Campaign Gala in North Carolina on February 25, 2012. At the event, Ms. Sebelius explicitly acknowledged she was there “to represent the president and the Obama administration.” Later in her speech she said it was “imperative” that attendees “come together here in Charlotte to present the nomination to the president, [and to] make sure that in November he continues to be president for another four years.”

These were historic violations: No Cabinet secretary in any prior administration had been found in violation of the Hatch Act since its enactment under Franklin Delano Roosevelt. Yet, neither Ms. Sebelius nor Mr. Castro suffered any consequences for abusing their positions. Ms. Sebelius went on to serve an additional two years in the president’s cabinet without any official repercussion or reprimand; Mr. Castro continues to serve as HUD secretary.

The president is the only person charged with holding cabinet officials accountable for violating the Hatch Act. His failure to sanction Ms. Sebelius sent a message that he does not take violations of the Hatch Act seriously. This could have no other effect than emboldening Mr. Castro to discuss partisan electoral politics without fear of consequences. Under the law, removal or suspension from office would be have been appropriate in his case, but the president — for the second time — chose not to impose any penalty.

In response to a question about the Ms. Sebelius Hatch Act violation, White House spokesman Eric Schultz stated that the Obama administration holds itself “to the highest ethical standards.” Those words ring hollow. Three years later, White House press secretary Josh Earnest responded to Mr. Castro’s violation stating that Mr. Castro “acknowledged the mistake he made” and that he “owned up to it.” But what really matters is whether he is held accountable, and to date, Mr. Castro has not been sanctioned for his unlawful act. Mr. Obama’s unwillingness to hold Ms. Sebelius or Mr. Castro accountable raises questions as to why other high-ranking Obama administration officials would have any incentive not to use their positions to influence elections.

This is even more concerning when you compare Mr. Castro and Ms. Sebelius’ treatment with that of lower-level government employees who violate the Hatch Act. In May, a U.S. Postal Service letter carrier settled with OSC after he displayed a congressional candidate’s sign on his work vehicle. He was subsequently suspended for five days without pay. Elsewhere, an IRS employee settled with OSC for violating the act. There is thus a double-standard for cabinet-level officials — they can apparently break the law with impunity.

The Obama administration is drawing to a close, but this pattern nonetheless sets a dangerous precedent. Our democracy is undermined when those with power and political influence are exempted from the consequences of their illegal actions. Let’s hope that years from now, the Obama administration is recalled as the low-water mark for ethics violations and accountability, not a sign of things to come.

Alfred J. Lechner Jr. is a former U.S. district judge for the District of New Jersey, and president and CEO of the Cause of Action Institute.

Cause of Action statement regarding the latest Hatch Act concerns raised by Congress

Statement from Cause of Action Executive Director Dan Epstein on the latest Hatch Act concerns raised by Congress:

“The Office of Special Counsel’s (OSC) guidance on the Hatch Act prohibits certain federal employees from engaging in partisan political behavior that contributes to the success or failure of a political party, candidate or political group.  If the IRS used government resources to actively target partisan political groups, then why has OSC failed to enforce the Hatch Act against that agency?  The Obama Administration cannot have it both ways.  Either organizations singled out by this Administration are not partisan political groups and this President authorizes the suppression of First Amendment activity with impunity or the OSC is not enforcing the law against executive branch employees for their on-duty partisan targeting of organizations the White House claims are partisan political groups.”

How HHS Secretary Sebelius Broke Federal Law and Avoided Punishment

We’ve written before about Secretary of Health and Human Services Kathleen Sebelius violating the Hatch Act.  By campaigning for Walter Dalton’s election as Governor of North Carolina and Barack Obama’s reelection as President at a Human Rights Campaign Gala, Sebelius used taxpayer funding for her own partisan priorities.  The precedent for presidentially-appointed and Senate-confirmed federal employees violating the Hatch Act is resignation.  Sebelius is the highest-level federal employee to break this law, but President Obama, the sole administration official with the authority to see that the penalty for this violation was paid, not only declined to ask Sebelius to resign, but opted to keep the Secretary on for his second term.  White House spokesman Eric Schultz contended that this administration holds itself “to the highest ethical standards[,]” but the facts of the Sebelius debacle would suggest otherwise.

Sebelius labeled her speech at the Human Rights Campaign Gala as an “official” event, meaning that not only would her travel and time be paid for by the taxpayer, but the time and travel of her aide, AJ Pearlman, would be covered as well.  The Hatch Act is a federal law which, according to OSC, “prohibits federal employees from using their official authority or influence to affect the outcome of an election.”  For instance, the Secretary of Health and Human Services, under the law, cannot campaign for a political candidate using her official title, because this would be an abuse of government authority; nor can she use taxpayer-funded travel or the work hours of taxpayer-funded employees and aides to support a political event, because this would be an abuse of taxpayer funding, furthering a personal and political end.  However, Secretary Sebelius committed each of these violations at the HRC Gala – then attempted to cover it up.

In the first half-hearted attempt to make up for this abuse, Sebelius quickly reclassified the event as “political” instead of “official.”  This retroactive attempt to erase the fact that she used her standing as a Cabinet member to influence two upcoming elections was insufficient, and OSC nevertheless concluded that Sebelius did in fact violate the Hatch Act.

The second part of the abuse was the taxpayer dollars spent on the event, and accordingly, Sebelius had an HHS assistant request that the Democratic National Committee reimburse the government for her own travel.  Even this first attempt was mishandled, however: in January 2013, we filed an FEC complaint explaining that the DNC failed to properly disclose this reimbursement.  In fact, the reimbursement was almost impossible to connect to Sebelius’ Hatch Act violation at all: the DNC sent a check marked only with the word “travel” – preventing accountability in determining whether Sebelius’ violation of the law was truly “repaired” by reimbursement for her travel.

But the missteps didn’t end there.  Cause of Action found, after sending Freedom of Information Act requests to four separate agencies, that the U.S. Treasury was not, in fact, reimbursed.  Cause of Action’s FOIA request to the U.S. Treasury’s Financial Management Service turned up no responsive records – even though our FOIA production from OSC proved that Sebelius was ordered multiple times to reimburse the U.S. Treasury.  In the production we received from our FOIA request to HHS, Cause of Action found the DNC’s check, sent to reimburse HHS, not the Treasury:


While White House press secretary Jay Carney again assured reporters that “the U.S. Treasury has been reimbursed,” this has clearly not been the case.  OSC did, however, recognize that HHS was reimbursed instead of the U.S. Treasury, but failed to take action on it, as showed by Cause of Action’s FOIA production from OSC:


The improper reimbursement raises the question of whether the cost of the trip was truly reimbursed, or whether HHS was simply free to use the funds as it wished.  Because OSC did not insist on the proper execution of its own requests for reimbursement, taxpayers dollars remain, in effect, unrecovered.

While the reimbursement for Sebelius’ costs was bungled many times over, Sebelius was not the only federal employee affected by her violation.  In her lengthy process of abdicating responsibility for campaigning on the taxpayer dime, Sebelius effectively threw her own aide under the bus.  AJ Pearlman provided background research in preparation for the HRC Gala where Sebelius promoted Democratic candidates, and attended the event to assist.  As Cause of Action showed in an OSC complaint, when Sebelius scrambled to save her own skin by retroactively reclassifying the event as political instead of official, she made Pearlman’s actions illegal as well.  OSC openly acknowledged that Pearlman’s efforts could not legally be funded by the federal government and ordered Sebelius to reimburse the Pearlman’s travel costs as well, as revealed in a letter from OSC to HHS:

sebeliusblog2 sebeliusblog3

As Cause of Action showed in its January 2013 OSC complaint, if Pearlman’s actions, after Sebelius’s campaigning on government time, could not be funded by taxpayer dollars, then Pearlman too would have committed a Hatch Act violation.  As the OSC wrote to HHS: “the Hatch Act would have prohibited” Pearlman’s work on the HRC event – and so the funding had to be reimbursed.  Cause of Action did its part, but OSC has thus far refused to uphold its own rules (read more about Cause of Action’s letter to Congressman Darrell Issa requesting for investigation into OSC’s failure to execute its duties here).

OSC made clear in the excerpts above that had Sebelius classified the event as political from the beginning, Pearlman’s work would have prohibited by the Hatch Act, but it still chose not to take action against Pearlman. Additionally, the President refused to take any action against Sebelius for her violation, claiming that Sebelius’ meeting with “ethics experts” solved the problem.  The White House won’t hold Sebelius accountable, the U.S. Treasury has not been reimbursed, and OSC’s selective enforcement of the Hatch Act hides Sebelius’s victim: the aide who did as requested.

Sebelius broke federal law but the White House chose not to do its job and ask for her resignation – it seems that its “ethical standards” could use some work.

CoA letter to OPM, DOJ, OLC re: Hatch Act Guidelines

2013 4 8 CoA to OPM OSC OLC re Hatch Act

Dan Epstein on Radio America

Check out this short clip from a Radio America interview with COA Executive Director Dan Epstein.