D.C. Circuit Debates Restrictions on Federal Employees’ Political Activity

At oral argument this week, a seemingly divided D.C. Circuit panel appeared poised to uphold a District Court injunction against the enforcement of certain Judicial Branch restrictions on the political speech of many of its employees.

The case is Guffey et al. v. Mauskopf, 20-5183 & 20-5208 (D.C. Cir.), and the oral argument is a good listen:  The judges seemed particularly invested, perhaps not surprisingly given that the case provides a rare constitutional issue as to the employees of their own branch of government.  There was even a question posed directly from one judge to another, discussion of informal conversations between judges about the underlying restrictions, reference to the “pollut[ion]” of social media, an apparent complaint about the judicial nominations process, and an ominous reference to coming attacks on the judiciary’s impartiality.

The case stems from a directive, effective March 1, 2018, issued by the Administrative Office (“AO”).  The AO handles various administrative functions for the Judicial Branch.  Here, it imposed on about 1,100 AO employees certain additional restrictions on their political activity.  Those additional restrictions were designed to more closely match the restrictions imposed on other Judicial Branch employees (generally, employees assigned to particular federal courthouses around the country).  The new restrictions exceeded those presently imposed on most government employees (Executive Branch employees) via the Hatch Act.

As I discussed during a recent D.C. Bar CLE program, the Supreme Court repeatedly has upheld the Hatch Act restrictions, notwithstanding that, on their face, they restrict core political activity.  This is an area where the Court has embraced a deference to Congress in determining the appropriate level of restrictions, and where the Court has noted a long historical tradition of imposing such restrictions on government employees.

In United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75 (1947), for example, the Supreme Court emphasized:  “T[o] declare that the present supposed evils of political activity are beyond the power of Congress to redress would leave the nation impotent to deal with what many sincere men believe is a material threat to the democratic system.”  The Court then referenced a sliding scale as to the restrictions that will pass muster (based at least in part on “practice, history, and changing educational, social and economic conditions”), ultimately upholding the Hatch Act restrictions in full.

Twenty-five years later, the Supreme Court reaffirmed this position, again upholding the Hatch Act restrictions in full.  In United States Civil Service Commission v. National Association of Letter Carriers AFL-CIO, 413 U.S. 548 (1973), the Court provided a lengthy historical recitation, beginning with this summary:  “[Our decision does] no more than confirm the judgment of history, a judgment made by this country over the last century that it is in the best interest of the country, indeed essential that federal service should depend upon meritorious performance rather than political service, and that the political influence of federal employees on others and on the electoral process should be limited. . . .  Perhaps Congress at some point will come to a different view of the realities of political life and Government service; but that is its current view of the matter, and we are not now in any position to dispute it.  Nor, in our view, does the Constitution forbid it.”

At the district court level in the current dispute, Judge Cooper seemed substantially guided by the Hatch Act and its history of acceptance by the Supreme Court.  More particularly, Judge Cooper upheld two AO restrictions that seemed to bar conduct also barred under the Hatch Act (driving voters to the polls on behalf of a party or partisan candidate, and organizing events for a partisan candidate).  Otherwise, however, Judge Cooper was not nearly as deferential; he enjoined the AO from enforcement of seven other restrictions, each of which seemed to reach beyond what the Hatch Act generally prohibits.

The D.C. Circuit panel appears poised to affirm Judge Cooper’s decision, at least insofar as it struck down most of the new AO restrictions.  (There was substantially less discussion, and virtually no commentary from the judges, about the plaintiff-employees’ effort on cross-appeal to also enjoin enforcement of the driving / organizing restrictions).

Judges Edwards and Walker suggested their considerable skepticism of the AO’s restrictions.

Judge Edwards, for example, repeatedly interjected that, in his many decades on the bench, the politicization, or perceived politicization, of AO employees “never [has] been an issue”:  “It’s bogus”; “it seems to me a bogus issue.”

Judge Walker in turn wondered whether, if these restrictions passed muster, the AO next might bar its employees from any expression of religious preference, given that some have wondered whether particular religious preferences may interject bias into judicial decision-making.  (Here, Judge Walker referenced now-Justice Barrett’s nomination to the Seventh Circuit; he described that as a “most famous[]” example of a judge being “unfairly” accused of allowing her religion to influence her decision making—here is the New York Times’ take on the incident that Judge Walker seemed to reference).

(Judge Walker did raise, during rebuttal, the prospect that the District Court’s injunction should be limited to the named plaintiffs, rather than all rank-and-file AO employees.  The AO agreed, though conceded that it had not pursued this argument on appeal).

Judge Henderson sounded a strikingly different tone.  She worried repeatedly about the perceived politicization of the Judiciary, including by noting that several Supreme Court Justices recently have stressed the importance of the Judiciary not being, or being perceived to be, partisan.  She noted the “toxic” nature of any such politicization, or perceived politicization.  And she discussed her recent conversations with other, non-panel, judges about the underlying AO restrictions.  In that context, she directly asked Judge Edwards about his likely reaction if he learned that AO employees with whom he was working had engaged in sharply partisan social media commentary.  Judge Edwards’ response:  “If it’s outside of their work context, my feeling is that’s not my business.”

Finally, when counsel for the plaintiff employees closed by pointing to the absence of record evidence demonstrating that the judiciary in particular has been attacked as partisan on the basis of the political postings of AO employees, Judge Henderson responded, forebodingly:  “Just wait. . . .  [W]e have all seen how social media has polluted this entire country.”