August 2013 Bar Bulletin
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August 2013 Bar Bulletin

It's "1776" All Over Again: Public Employee Restrictions on Political Participation Loosen

By Karen Sutherland


For many years, public sector employers were restricted from running for partisan office. These restrictions come as a surprise to many people who thought the right to run for office was a basic right such as voting and petitioning the government.

The primary source of these restrictions was a 1939 law entitled "An Act to Prevent Pernicious Political Activities,"1 generally known as the Hatch Act in recognition of Sen. Carl Hatch of New Mexico. In a nutshell, the Senate Campaign Expenditures Committee found that Works Progress Administration (WPA) finances had been diverted for political purposes in the campaigns of 1938.2 Sen. Hatch drafted legislation that became the Hatch Act to prevent a reoccurrence in future elections.

72 Years of Restrictions on Running for Office

The Hatch Act was intended to stop certain federal employees from influencing elections, among other things. It was expanded by amendments in 1940 to cover certain state and local government employees whose positions were financed with federal funds.3

Among other things, the Hatch Act prohibited state and local officers and employees from being candidates for elective office if they worked in connection with programs financed in whole or in part by federal loans or grants. There was an exception for offices where none of the candidates was nominated or elected as representing a party "any of whose candidates for Presidential elector received votes in the last preceding election at which Presidential electors were selected."4

In other words, running for nonpartisan office was allowed, as was running for office on a partisan ticket if all the parties were local.5

Restrictions Loosen in 2013

The Hatch Act was amended by the Hatch Act Modernization Act (HAMA) of 2012.6 Among other things, the 2012 amendments scale back the provision forbidding certain state and local employees from seeking elective office. The changes became effective January 27.

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