Do the Hatch Act's Restrictions on Kellyanne Conway's Commentary Violate Her First Amendment Rights?

The president's spokeswoman is doing what she has always done on TV, unencumbered by the legal distinction between partisan pundit and executive branch employee.

Kellyanne Conway was a Republican pollster and TV pundit for decades before joining Donald Trump's campaign in July 2016. Conway, who had initially supported Ted Cruz for the Republican nomination while criticizing Trump as "extreme" and "not a conservative," quickly switched gears. But after Trump was elected and Conway moved from the campaign to the new administration as counselor to the president, she carried on pretty much as before, offering her opinions on election races and candidates for federal office in addition to defending Trump's policy agenda. According to Special Counsel Henry Kerner, those partisan comments are not only unseemly but illegal, and Conway's disregard for that fact is so frequent, blatant, and unrepentant that she should lose her job.

Kerner heads the Office of Special Counsel (not to be confused with the office of former Special Counsel Robert Mueller), an independent agency charged with enforcing the Hatch Act. Among other things, that law prohibits executive branch employees (except for the president and vice president) from using their "official authority or influence" for "the purpose of interfering with or affecting the result of an election." The OSC's recommendation that Trump fire Conway for repeatedly violating that rule will go nowhere, since Conway is doing exactly what Trump wants her to do. But Kerner's case against Conway provides a good opportunity to reflect on the tension between the Hatch Act's noble goals and the First Amendment right to freedom of speech.

"While the Hatch Act allows federal employees to express their views about candidates
and political issues as private citizens, it restricts employees from using their official government positions for partisan political purposes, including by trying to influence partisan elections," Kerner observes in his first report on Conway, issued in March 2018. "In passing this law, Congress intended to promote public confidence in the Executive branch by ensuring the federal government is working for all Americans without regard to their political views." Another way of putting it is that taxpayers have good cause to object when their money is used to pay executive branch officials who engage in partisan political activity on the job.

In Kerner's view, that means Conway, while appearing on TV as the president's spokeswoman, should show some discretion, which is not her strong suit. According to Kerner (a Trump appointee), it's fine for Conway to explain and defend Trump's policies, which is part of her job. It is even OK for her to explain why Trump favors one candidate over another in a particular election—Republican Roy Moore rather than Democrat Doug Jones in Alabama's 2017 special Senate election, for example. But when she ventures beyond communicating Trump's positions to offer her own views on people running for office (something she was long accustomed to doing in her prior occupations), she runs afoul of the Hatch Act.

White House Counsel Pat Cipillone, in his response to the report on Conway that Kerner issued yesterday, tries to minimize the extent to which Conway has done that. But it seems clear that Conway feels no compunction about crossing the line drawn by Kerner. Here is what she said about Doug Jones during a November 2017 appearance on Fox & Friends:

Folks, don't be fooled. He'll be a vote against tax cuts. He's weak on crime, weak on borders. He's strong on raising your taxes. He's terrible for property owners.…And Doug Jones is a doctrinaire liberal, which is why he's not saying anything and why the media are trying to boost him.

Conway likewise has not been shy about criticizing the numerous Democrats vying for their party's 2020 presidential nomination. During a February 1, 2019, appearance on Fox & Friends, she questioned presidential contender Cory Booker's accomplishments and suggested that if he were a Republican he would be deemed "sexist" for jumping into a race that already included several of his female Senate colleagues.

On the same show later that month, Conway remarked on the growing field of Democratic presidential contenders: "Great. Keep it coming. Just remember anything times zero still equals zero." She added, "I'[ve] yet to see presidential timber. I just see a bunch of presidential wood chips." Conway has used variations on those lines in several other TV appearances. She also has criticized Sen. Amy Klobuchar (D-Minn.) for mistreating her staff, Sen. Elizabeth Warren (D-Mass.) for "appropriating somebody else's heritage and ethnicity," and Sen. Kirsten Gillibrand (D-N.Y.) for making a big deal out of eating fried chicken (or something).

Toward the end of a March 13 appearance on The Ingraham Angle, Conway brought up Warren again: "Elizabeth Warren is running for President. She tried to appropriate somebody else's ethnicity. She lied about that." In another Fox News interview the following month, Conway commented (accurately) that "Bernie Sanders' ideas are terrible for America." She has repeatedly criticized former Vice President Joe Biden for invoking the 2017 white supremacist rally in Charlottesville, Virginia, when he launched his presidential campaign, saying that choice showed "he doesn't want to be held to account for his record or lack thereof."

There are more examples, but you get the idea. This is all standard stuff for a Trump-supporting TV talking head. But Kerner thinks the Hatch Act demands more circumspection, and Conway, who has been repeatedly warned about such partisan commentary, plainly does not care what Kerner thinks, although it is consistent with the way the Hatch Act has been applied to other officials. According to the OSC, for example, Dan Scavino, the current White House director of social media; Kathleen Sebelius, Barack Obama's secretary of health and human services; and Julian Castro, Obama's secretary of housing and urban development, violated the Hatch Act by, respectively, urging Trump supporters to oust Rep. Justin Amash (R-Mich.), calling for Obama's re-election, and endorsing Hillary Clinton. Those one-off violations look pretty minor next to Conway's long list of transgressions.

In practical terms, the Hatch Act requires that Conway watch what she says when she goes on TV, where she is routinely identified as counselor to the president and frequently speaks from the White House itself. That sacrifice of what would otherwise be her First Amendment right does not seem like an unreasonable burden to impose on someone who has chosen to take a high-profile job in the executive branch. It is analogous to speech restrictions a business might impose on an employee when he is acting as the company's spokesman. In this case, Conway works for the American public, whose elected representatives have decided she should not use her position to elect or defeat political candidates. If Conway wants to say whatever pops into her head during TV interviews, she can always resume her career as a private-sector pundit.

While there are credible arguments that the Hatch Act sweeps too broadly to be consistent with the First Amendment, Cippilone does not argue that the law is unconstitutional. He just thinks it should not stop Conway from continuing to comment on political candidates, even when she is acting in her official capacity.

Conway herself takes the same position, arguing that she has not violated the Hatch Act. "Blah, blah, blah," she said when a reporter described the findings of Kerner's 2018 report. "If you're trying to silence me through the Hatch Act, it's not going to work." But if Conway's habitual criticism of Democratic candidates does not count as trying to influence an election, what would?

Conway is on firmer ground when she objects to the restrictions Kerner wants to impose on her personal Twitter account, which she created in 2012. Kerner argues that Conway may not talk about politics there either, because "most" of her tweets are "directly related to her role in the Administration." The OSC says executive branch employees "may not engage in political activity on official social media accounts or on a personal social media account if they are using that account for official purposes or posting in their official capacity."

Cipillone argues that Kerner does not have the legal authority to impose that rule, since neither the Hatch Act nor the regulations implementing it address social media. He also maintains that Kerner has mischaracterized Conway's Twitter feed, noting that it includes personal tweets as well as political commentary and references to Trump administration initiatives.

"OSC's overbroad and unsupported interpretation of the Hatch Act risks violating Ms. Conway's First Amendment rights and chills the free speech of all government employees," Cipillone writes. "Such a broad interpretation of the law would impermissibly prohibit Ms. Conway from continuing to make comments in her personal capacity through a personal media distribution channel she had established long before entering public service….Ms. Conway does not surrender her First Amendment right to comment on these same topics in her personal capacity, using her personal social media account, simply because she answered the call to serve in our federal government."