Hatch Act permits issue advocacy by doctors of optometry

Fight for optometry’s present and future at AOA on Capitol Hill on June 21-24 at Optometry’s Meeting in Washington, D.C.   Find out how you can join the fight.

Although the federal government recognizes its employees have a right to engage in political activities, that participation comes with caveats.

The federal executive branch is the fifth highest employer of doctors of optometry, according to the Bureau of Labor Statistics. About 1,300 were employed in 2021, most by the Veterans Health Administration. AOA General Counsel Michael Stokes, J.D., explains what members who are federal employees ought to keep in mind as they approach advocating in their interests. Know the Hatch Act, Stokes says.

What is the Hatch Act?

The Hatch Act was enacted in 1939 and was most recently amended in 2012. It regulates the political activities of all civilian employees in the executive branch of the federal government, with the exception of the U.S. president and vice president.

How does the Hatch Act apply to federal employees?

Federal employees who engage in issue advocacy on legislative matters of importance to doctors of optometry are in compliance with the Hatch Act. At the same time, federal employees may not run for partisan political office, or engage in activity directed at the success or failure of a political party, a candidate for a partisan political office or a partisan political group.

Is engaging in AOA issue-based advocacy permitted by the Hatch Act?

Yes. AOA meetings and other activities are focused on issue advocacy and are not associated with a particular candidate, party or partisan political group. Consequently, federal employees who engage in issue advocacy on legislative matters by attending meetings, hearings, etc.—and who do not engage in activity directed toward the success or failure of a political party, a candidate for a partisan political office or a partisan political group—have not violated the Hatch Act. The voices of our doctors of optometry in the executive branch are extremely important, and AOA strongly encourages its members to join in AOA advocacy centered solely on priority issues for doctors of optometry and not on partisan politics.

Specifically, what activities can a federal employee engage or not engage in?

For a thorough accounting of those activities which are permissible and not permissible under the Hatch Act, doctors of optometry can consult these two posters published by the Office of Special Counsel—the first applicable to the majority of federal employees and the second applicable to “further restricted” employees. For example, a federal employee would be prohibited from doing any of the following while on duty or while using their job title or holding themselves out as representing the government: hosting a political fundraiser, distributing campaign items or materials, wearing or displaying partisan political buttons, T-shirts, signs or other items or serving as a candidate for public office in a partisan political election. A federal employee also cannot invite subordinate employees to political events or otherwise suggest they engage in political activity. They also can’t knowingly solicit or discourage the political activity of any person with business before the agency.

However, regardless of whether they’re less restricted, further restricted, or a political appointee, all employees are prohibited from soliciting or receiving political contributions, including to a political action committee (PAC). That applies both on and off the job. However, they may contribute money to a PAC. 

Federal employees also are permitted to make campaign contributions, whether to a political party or to a campaign.

What is a “further restricted employee”?

Further restricted employees are identified by the agencies for which they work or hold particular positions within the executive branch. That includes employees who work for any of the following agencies: the Federal Election Commission; the Election Assistance Commission; the Federal Bureau of Investigation; the Secret Service; the Central Intelligence Agency; the National Security Council; the National Security Agency; the Defense Intelligence Agency; the Merit Systems Protection Board; the Office of Special Counsel; the Office of Criminal Investigation of the Internal Revenue Service; the Office of Investigative Programs of the Customs and Border Protection; the Office of Law Enforcement of the Bureau of Alcohol, Tobacco, and Firearms; the National Geospatial Intelligence Agency; the Office of the Director of National Intelligence; the Criminal Division of the Department of Justice; and the National Security Division of the Department of Justice. 

The designation also applies to employees holding certain positions, no matter what the department. This list includes career appointees in a senior executive service position; administrative law judges; contract appeals board members; and administrative appeals judges.

All other employees are considered “less restricted.” This designation applies to the majority of federal employees. The restrictions for both categories are generally the same, except that further restricted employees face additional restrictions on partisan political activity engaged in while off duty.

What about state and local government employees?

State and local government employees would be subject to the laws and regulations of their state, county or municipality regarding political activity. Typically, these rules can be expected to be similar to federal rules, except for jobs that are explicitly political patronage positions, which is no longer common. To the extent their work is funded by the federal government, state/local employees would also be subject to Hatch Act restrictions.