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The Hatch Act Decisions
Published online by Cambridge University Press: 01 August 2014
Extract
The principal provisions of Sections 9 and 12 of the Hatch Act, designed to limit the political activities of federal employees and of certain state employees, were challenged in two cases decided by the Supreme Court in February, 1947, and held constitutional in both instances by a divided court.
Section 9 of the Hatch Act forbids most officers and employees in the executive branch of the federal government to take “any active part in political management or in political campaigns.” At the same time, all such persons are to “retain the right to vote as they may choose and to express their opinions on all political subjects and candidates.” The penalty for violation of the act is dismissal from the office or position held. A similar prohibition against taking part in political management or political campaigns is imposed by Section 12 of the act on any state or local employees whose principal employment is in connection with any activity financed in whole or in part by federal loans or grants. The activities prohibited are declared by Section 15 to be the same as those previously determined by the United States Civil Service Commission to be prohibited to employees in the classified civil service of the United States.
A whole barrage of charges was brought to bear against the constitutionality of this legislation. As applied to federal employees, the attack was centered on the second sentence of Section 9 of the act, which reads: “No officer or employee in the executive branch of the Federal Government … shall take any active part in political management or in political campaigns.”
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- American Government and Politics
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- Copyright © American Political Science Association 1947
References
1 United Public Workers v. Mitchell, 91 L. Ed. 509, 67 S. Ct. 556 (1947); Oklahoma v. United States Civil Service Commission, 91 L. Ed. 537, 67 S. Ct. 544 (1947).
2 18 USCA Sec. 61 h, 7 FCA title 18, Sec. 61 h.
3 18 USCA Sec. 61 l(a), 7 FCA title 18, Sec. 61 l(a).
4 18 USCA Sec. 61 o, 7 FCA title 18, Sec. 61 o.
5 United Federal Workers of America v. Mitchell, 56 F Supp. 621, 624 (1944).
6 28 USCA Sec. 380 a, 8 FCA title 28, Sec. 380 a.
7 The government suggested a lack of jurisdiction in the Supreme Court because of failure of appellants to docket the appeal within sixty days from the time appeal was allowed. Only Justice Frankfurter considered this a valid objection.
8 “The threat against them is real not fanciful, immediate not remote. The case is therefore an actual not a hypothetical one. And the present case seems to me a good example of a situation where uncertainty, peril, and insecurity result from imminent and immediate threats to asserted rights.” 91 L. Ed. 509, 533–534.
9 Thomas v. Collins, 323 U.S. 516, 530, 89 L. Ed. 430, 440 (1945). The Court went on to say in this case: “The rational connection between the remedy provided and the evil to be curbed, which in other contexts might support legislation against attack on due process grounds, will not suffice. These rights rest on firmer foundation. Accordingly, whatever occasion would restrain orderly discussion and persuasion, at appropriate time and place, must have clear support in public danger, actual or impending. Only the gravest abuses, endangering paramount interests, give occasion for permissible limitation.” For similar statements, see Cantwell v. Connecticut, 310 U.S. 296, 84 L. Ed. 1213, 60 S. Ct. 900 (1939); Thornhill v. Alabama, 310 U.S. 88, 84 L. Ed. 1093, 60 S. Ct. 736 (1939); and Murdock v. Pennsylvania, 319 U.S. 105, 87 L. Ed. 1292, 63 S. Ct. 870 (1942).
10 “The determination of the extent to which political activities of governmental employees shall be regulated lies primarily with Congress. Courts will interfere only when such regulation passes beyond the general existing conception of governmental power.” 91 L. Ed. 509, 524.
11 91 L. Ed. 509, 536.
12 91 L. Ed. 509, 528.
13 91 L. Ed. 509, 531.
14 “They may vote in silence; they may carefully and quietly express a political view at their peril; and they may become ‘spectators’ (this is the Commission's word) at campaign gatherings, though it may be highly dangerous for them to ‘second a motion’ or let it be known that they agree or disagree with a speaker.” 91 L. Ed. 509, 528.
15 91 L. Ed. 509, 536.
16 91 L. Ed. 509, 531.
17 Ex parte Curtis, 106 U.S. 371, 27 L. Ed. 232, 1 S. Ct. 381 (1882); see also United States v. Wurzbach, 280 U. S. 396, 74 L. Ed. 508, 50 S. Ct. 167 (1930).
18 91 L. Ed. 509, 523.
19 91 L. Ed. 509, 535.
20 Among the appellants whose complaints were not considered by the Court were an economic statistician, a financial analyst, a labor economist, a procedural assistant, and other employees who probably would be placed by Justice Douglas in the administrative category. He states that a discussion of the constitutionality of their claims would be premature, since the Court did not reach that issue. 91 L. Ed. 509, 534.
21 91 L. Ed. 509, 535.
22 91 L. Ed. 537, 67 S. Ct. 544 (1947)
23 91 L. Ed. 537, 546.
24 For example, Massachusetts v. Mellon, 262 U.S. 447, 67 L. Ed. 1078, 43 S. Ct. 597 (1923), and Steward Machine Co. v. Davis, 301 U.S. 548, 81 L. Ed. 1279, 57 S. Ct. 883 (1937).
25 A further indication of the tendency to give Congress and the Civil Service Commission a free hand in using the dismissal power is the recent case in which the Court refused to review the dismissal of a classified civil service employee for membership in a Communist front organization. Friedman v. Schwellenbach, Memoranda Case No. 990, petition for writ of certiorari denied, March 17, 1947, 91 L. Ed. 790. See New York Times, Mar. 17, 1947, p. 1.
26 For comments by Senator Hatch on these Supreme Court decisions, see Cong. Record, Vol. 93, No. 30, pp. 1092–1093 (Feb. 14, 1947)Google Scholar.
27 91 L. Ed. 509, 523.
28 The famous epigram of Justice Holmes in the Massachusetts case of McAuliffe v. New Bedford, 155 Mass. 216, 220, 29 NE 517 (1891) is quoted approvingly by the Court. In a proceeding where a policeman had been removed for political activity, Justice (then Judge) Holmes wrote: “The petitioner may have a constitutional right to talk politics, but he has no constitutional-right to be a policeman.” 91 L. Ed. 509, 522, fn. 34.
29 On this point, Justice Douglas quoted from Marx, Fritz Morstein, Public Management in the New Democracy (1940), pp. 205, 206Google Scholar.
30 A bill has been introduced in the Senate by Senator Ellender to repeal the Corrupt Practices Act of 1925 and the Hatch Act, and substitute new legislation to be known as the Federal Corrupt Practices and Pernicious Activities Act of 1947. This proposal would not, however, change materially any of the provisions of the Hatch Act dealt with in this article. See Cong. Record, Vol. 93, No. 79, pp. 4251–4254 (April 28, 1947)Google Scholar.
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