Hatch Act complaints over partisan federal website messages are stalled during shutdown

It turns out that complaints about federal agency websites blaming “radical left” Democrats for the government shutdown are going into an abyss.

The Office of Special Counsel’s Hatch Act unit, which handles such complaints, has been furloughed.

And the entire Merit Systems Protection Board – where OSC takes cases involving federal employees it wants disciplined for violating an 80-year-old ban on partisan activity – is closed for the duration of the shutdown, too.

Public Citizen, a government watchdog group, filed 11 complaints with OSC last week alleging violations of the Hatch Act by the Trump administration. Some involved partisan messages on government websites. Others stemmed from out-of-office emails from furloughed employees that at least some of those employees were unaware of.

A large red banner across the top of the Department of Housing and Urban Development home page reads: “The Radical Left in Congress shut down the government. HUD will use available resources to help Americans in need.”

These messages and the complaints drew headlines. The fact that the complaints will go nowhere until the shutdown ends originally went unnoticed.

But an email sent to OSC’s Hatch Act unit Monday triggered a bounceback message that read, “The Hatch Act Unit is out of the office due to a lapse in appropriations and will respond upon return.”

Even if the OSC did process the complaints, it would have nowhere to take them because the Merit System Protection Board announced Oct. 1 that it “has ceased all operations” until the shutdown ends.

“They can choose to ignore these complaints until after the shutdown, if they are so inclined,” said Craig Holman, a government ethics expert and lobbyist with Public Citizen, but “one way or another, these Hatch Act complaints are going to get the attention they deserve.”

The Hatch Act, signed in 1939, bans political activity by federal employees to ensure that government resources aren’t used for partisan purposes.

“Blaming the liberals for the shutdown and whatnot – that may very well be a Hatch Act violation,” said Michael Fallings, a government ethics attorney in Austin, Texas.

“The law is meant to prevent and discourage bad behavior,” he said, though “that doesn’t mean it’s going to absolutely stop it.”

Violators can lose their jobs, though that rarely happens. Members of Congress are exempt, as is the president.

Although not all federal agency websites have posted partisan messages since the shutdown started last week, many do.

The White House Office of Management and Budget site has a clock at the top counting the days, hours, minutes and seconds since 12:01 a.m. Oct. 1, with the message: “Democrats Have Shut Down the Government.”

At the State Department, a message at the top of the home page says that “Due to the Democrat-led shutdown, website updates will be limited until full operations resume.”

An email inquiry to the State Department press office triggered an auto-response that read: “Please note that responses may be delayed due to the government shutdown caused by congressional Democrats.”

At the Small Business Administration, workers were instructed to set an email auto-response that said: “I am out of office for the foreseeable future because Senate Democrats voted to block a clean federal funding bill (H.R. 5371), leading to a government shutdown that is preventing the U.S. Small Business Administration (SBA) from serving America’s 36 million small businesses.”

On Friday, the American Federation of Government Employees union filed a lawsuit against the Department of Education, asserting that furloughed workers’ out-of-office email messages were changed – without their knowledge. The messages blame the shutdown on “Democrat Senators” for refusing to support a House GOP spending measure.

Public Citizen Litigation Group is representing AFGE in that lawsuit.

“Federal employees already are suffering financially by going without a salary due to this politically motivated government shutdown. Now the administration has directly and deliberately violated the First Amendment rights of furloughed workers,” AFGE national President Everett Kelley said in a statement.