Does agency messaging blaming Democrats for government shutdown violate the Hatch Act?

The Housing and Urban Development Department’s website currently displays a red banner that says “The Radical Left in Congress shut down the government,” while some furloughed Education Department employees report that their out-of-office messages have been modified to blame Senate Democrats for voting against a GOP measure to continue government funding. 

And there have been multiple media reports about federal employees across agencies receiving emails emphasizing that President Donald Trump is not responsible for the shutdown. 

Democratic lawmakers and good government groups have argued that these communications violate the Hatch Act, a law that restricts the political activities of civil servants. While legal experts that Government Executive spoke to were divided on that assertion, they did contend that these messages nonetheless represent ethical issues for agencies that are supposed to operate without regard to politics. 

Rep. Robert Garcia, D-Calif., the ranking member of the House Oversight and Government Reform Committee, on Thursday requested that the Office of Special Counsel, which enforces the Hatch Act, launch an investigation into these messages. 

“We believe that violations of the Hatch Act fit a pattern of abuse and politicization of executive branch agencies, which we will investigate fully,” Garcia wrote. “Violations of the law must be held accountable.”

Under the Hatch Act, federal employees are not permitted, while on duty, to engage in “[political] activity directed at the success or failure of a political party, candidate for partisan political office or partisan political group.” 

The nonprofit Public Citizen also has so far filed nine Hatch Act complaints against HUD and other governmental entities that similarly have banners on their websites blaming the shutdown on congressional Democrats. 

“The Trump administration is violating the Hatch Act with reckless abandon — using taxpayer dollars to plaster partisan screeds on every government homepage that they can get their hands on,” said Craig Holman, the Public Citizen official who filed the complaints, in a statement. “Even for an administration that flouts ethics guidelines regularly, these messages are a particularly egregious and clear-cut sign that Trump and his cabinet see themselves as above the law.”

During former President Joe Biden’s administration, OSC investigated Education Secretary Miguel Cardona over a letter he sent to federal student loan borrowers that blamed “Republican elected officials” for bringing lawsuits that temporarily blocked certain student debt foreignness plans. 

OSC in 2024 determined, however, that the letter did not violate the Hatch Act because it did not appear that Cardona intended to interfere with or affect election results. Agency attorneys added that OSC historically has not considered references to a political party in discussions of pending legislation or government policy to constitute political activity under the law. 

Kevin Owen, a partner at Gilbert Employment Law focused on government workers, argued that this past determination does not have significant bearing on the current shutdown messaging from agencies due to the heterogeneous scopes. 

“The student loan letters were targeted to recipients of student loans, explaining to them why the debt relief was not going forward. This is just a national broadcast on anyone who goes to these government websites,” he said. “It's much more of a coordinated political campaign than what we saw in that Cardona incident.”

Dan Meyer, a partner at Tully Rinckey who specializes in federal employment law, contended that OSC likely wouldn’t investigate the shutdown messages for Hatch Act violations partly because of ambiguity in how the law applies to senior political appointees. 

“If you're a Schedule C appointee or above, which includes a lot of people who are presidentially appointed, Senate-confirmed, the OSC has a really tough time with those cases,” he said. “And the reason why is because there is political speech, which is different than partisan speech, and there is this understanding that there's going to be some give and take at some level below the president and above the Senior Executive Service.” 

Donald Sherman, the executive director and chief counsel of the nonprofit Citizens for Responsibility and Ethics in Washington, said that, based on past decisions, OSC would not consider agencies’ shutdown messages to violate the Hatch Act. Still, he argued that the communications could break other rules and contravene the spirit of impartiality that civil servants are supposed to uphold. 

“What this administration has done is effectively put a sign up that says the radical left or Democrats or people that do not subscribe to their ideology are unwelcome. That is a problem,” he said. “It's a particular problem in a crisis, which we are in. And it's especially galling conduct in this moment where so many Americans are concerned about political violence.” 

OSC was not able to respond to a request for comment because, according to an automatic reply, its interim communications director is “out of the office due to a lapse in federal appropriations and will respond upon return.” 

Penalties for breaking the Hatch Act can include removal from federal service, grade reduction, ban from government employment for up to five years, suspension, reprimand or a civil penalty up to $1,000. 

The ongoing government shutdown began on Wednesday after Senate Democrats did not provide the necessary votes to clear a House-passed measure extending current government spending levels through Nov. 21. They’ve demanded that any continuing resolution includes subsidies to prevent Affordable Care Act premium hikes. The White House has warned that the shutdown will lead to mass agency layoffs. 

U.S. Trade Representative Jamieson Greer is also leading the OSC on an acting basis after Trump fired Special Counsel Hampton Dellinger in March, prior to the end of his five-year term, following a legal battle. 

As a replacement, Trump nominated Paul Ingrassia, a former podcast host who graduated from law school in 2022 and has a history of making inflammatory comments. His confirmation hearing in July was canceled at the last minute, however, and there appears to have been no action on his nomination since then. 

Eric Katz and Frank Konkel contributed to this report