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Hatch Act (1939) - formally known as the "Act to Prevent Pernicious Political Activities," called the "Hatch Act" after Senator Carl Hatch of New Mexico, who was its major sponsor. The purpose of the law was to calm fears that federal civil service employees might be able to wield extraordinary influence on the election of the President and members of Congress. As a result of the Hatch Act, federal employees may vote, but may not take an active part in partisan politics
In 1887 Congress passed the Hatch Act, which provided for necessary basic and applied agricultural research to be conducted by the state colleges of agriculture in cooperation with the U.S. Department of Agriculture (USDA). Agricultural experiment stations were established in 16 states between 1875 and 1885, and they now exist…
…his prodding, Congress passed the Hatch Act, providing funds for agricultural experiment stations in all states. He was the first director of the Office of Experiment Stations (1888–91).
…was instrumental in authoring the Hatch Act of 1887, which allowed government support of the experimental station program. President Grover Cleveland named him secretary of agriculture in 1889, when the Department of Agriculture became a cabinet office, but he served only briefly because of a change of presidential administrations in…
…was a precursor of the Hatch Act of 1887, which provided for the dissemination of practical and scientific agricultural information and allocated money to each state to establish agricultural experimental stations.
In 1940 Congress amended the act to include state and local employees whose salaries included federal funds. The amendment created campaign expenditure limits on political parties and contribution limits on individuals. In 1993 Congress again amended the Hatch Act to allow most federal employees to engage actively in partisan political management and political campaigns. The amendment allowed employees to express opinions on political subjects more openly. Specific exceptions to this general policy, as well as general prohibitions, are included in the Office of Personnel Management Regulations.
The Supreme Court has twice considered challenges to the Hatch Act and has twice upheld its constitutionality. The Court applied a balancing test between the presumptively valid interests of the government in regulating its employees with the individual&rsquos interests in free speech.
In United Public Workers of America v. Mitchell (1947), the Court balanced the rights of individuals to free speech with the &ldquoelemental need for order.&rdquo In upholding the enforcement of the law, the Court deferred to Congress&rsquos judgment regarding the amount of political neutrality necessary for federal employees. It explained that Congress was not unconcerned about its employees and that it had left &ldquountouched full participation by employees in political decisions at the ballot box and forbids only the partisan activity of federal personnel deemed offensive to efficiency.&rdquo In dissent, Justice Hugo L. Black argued that the rights to vote and privately express political opinions were part of the broader freedoms protected by the Constitution, and he saw no reason to limit the range of freedoms for federal employees.
The Hatch Act, introduced by Senator Carl Hatch (pictured here in 1939), was amended many times to allow federal employees more political expression. (Image via Library of Congress, public domain)
The Court again reviewed the Hatch Act as amended in United States Civil Service Commission v. National Association of Letter Carriers (1973). In this case the Court overturned a lower appellate court decision and upheld the constitutionality of the Hatch Act&rsquos ban on federal employees&rsquo ability to take an active part in certain political activity. The Court believed that Congress had enacted a constitutional balance between the interests of an individual employee and the government-employer&rsquos interests in maintaining limitations on partisan political activities.
The Court found that Congress used the act to avoid &ldquopracticing political justice&rdquo and also to avoid the appearance of currying federal government favor through political activity. Further, the Court explained that by limiting the political activities of federal employees, Congress protected the employees&rsquo interests to be free from tacit coercion to become politically active. The 1993 amendments superseded this opinion, at least with respect to most federal employees.
The Hatch Act
The Hatch Act is the 1939 law that regulates the political activities of federal employees and some state and local government workers. The legislation originally prohibited nearly all partisan activity by federal employees, banning them from endorsing candidates, distributing campaign literature, organizing political activities and holding posts in partisan organizations.
On October 6, 1993, former President Clinton signed the Hatch Act Reform Amendments (P.L. 103-94) modifying the 1939 law to allow federal workers to participate in partisan political activities during off-duty hours. Former FMA National President Michael B. Styles was proud to represent FMA at the White House ceremony for the signing of this landmark legislation. These reforms allow federal employees to participate in political activity. You are able to contact your elected officials, petition them to vote on bills, and donate to election campaigns.
You are prohibited, however, from doing these things on federal time and with federal resources. This means, petitions cannot be sent while you are at work, with your government issued computer, or using your government e-mail address. But once you know these restrictions, it is easy to work around them and ensure your voice is heard. Additionally, FMA worked with Members of Congress to enact further reforms that amend the penalties of violation. Now, the Office of Special Counsel reviews infractions and judges appropriate repercussions, instead of outright termination of an employee.
Despite these revisions, you are still limited in your political actions. Here is a list of Dos and Don?ts:
- be candidates for public office in nonpartisan elections
- use official authority or influence to interfere with an election
- register and vote as they choose
- assist in voter registration drives
- solicit or discourage political activity of anyone with business before their agency
- campaign for or against referendum questions, constitutional amendments, municipal ordinances
- solicit or receive political contributions (may be done in certain limited situations by federal labor or other employee organizations
- express opinions about candidates and issues
- be candidates for public office in partisan elections
- wear partisan political buttons on duty
- hold office in political clubs or parties
- engage in political activity while:
- attend political fundraising functions
- attend and be active at political rallies and meetings
- sign nominating petitions
- join and be an active member of a political party or club
- campaign for or against candidates in partisan elections
- make campaign speeches for candidates in partisan elections
- distribute campaign literature in partisan elections
- contribute money to political organizations
Employees of the following agencies (or agency components), or in the following categories, are prohibited from engaging in partisan political activity:
Administrative Law Judges (positions described at 5 U.S.C. ? 5372)
Central Imagery Office
Central Intelligence Agency
Contract Appeals Boards (positions described at 5 U.S.C. ? 5372a)
Criminal Division (Department of Justice)
Defense Intelligence Agency
Federal Bureau of Investigation
Federal Elections Commission
Merit Systems Protection Board
National Security Agency
National Security Council
Office of Criminal Investigation (Internal Revenue Service)
Office of Investigative Programs (Customs Service)
Office of Law Enforcement (Bureau of Alcohol, Tobacco and Firearms)
Office of Special Counsel
Senior Executive Service (career positions described at 5 U.S.C. ? 3132(a)(4))
Federal employees desiring further clarification or legal opinions on permissible and prohibited political activities should visit the Hatch Act: Political Activity page of the U.S. Office of Special Council.
FMA?s lobbyists are working hard in D.C. to present the Association?s viewpoint to lawmakers, but your grassroots efforts are critical to our success. Many of FMA?s chapters have great working relationships with their Representatives and Senators, benefiting the Association?s legislative agenda and ensuring they fully understand how you and your colleagues serve the country on a daily basis.
Advocating Excellence in Public Service
Why Join FMA?
The Association’s considerable political influence stems from a team approach to advocacy. When lawmakers or agency decision-makers consider proposals that could adversely affect the management of the federal workforce, they quickly realize that TEAM FMA stands together to protect the interests of all its members.
There are two types of reporting requirements for these funds:
1) Plan of Work. Each 1862 and 1890 land-grant institution is required to submit every five years a plan of work for their agricultural research and extension formula grants authorized under the Hatch Act, Smith-Lever Act, and Sections 1444 and 1445 of the National Agricultural Research, Extension, and Teaching Policy Act. For more information on this reporting requirement please visit the Plan of Work page.
History of the Hatch Act of 1887
A strong desire to apply science for the improvement of agriculture was present even before the official beginning of this nation. This interest came to America with the British and European immigrants who settled this land. The first settlers quickly learned they had to adapt or starve. With a great variety of crops and soils, Americans began, through trial and error, to answer agricultural production questions early-on.
Many leaders of the American Revolution were farmers, including George Washington and Thomas Jefferson. Both these men were interested in experimenting with agriculture on their own farms, and both helped organize societies for improving agriculture, which were pioneers in agricultural science and education.
In a 1796 presidential address, Washington called for a federally funded national board of agriculture that would act as a center for encouraging experimentation. Unfortunately, the proposal died in Congress. Nevertheless, agriculture societies continued to hold meetings to exchange information into the 19th century. The desire for a national agency to address the needs and interests of farmers became a persistent idea.
In the 1840s, the movement to apply science to farming gained new life because of European discoveries in soil analysis. John P. Norton of Connecticut traveled to Scotland to study under James F.W. Johnston, a famous agricultural chemist, and learned the value of scientific investigation. Upon his return to the United States, Norton began to advocate fervently for a system to combine education and research, although he never saw his desires fulfilled.
One of Norton’s students, Samuel W. Johnson, took up the crusade. After observing a government-sponsored German experiment station, which included experimental plots, Johnson began to seriously campaign for an American system of agricultural experiment stations.
The Civil War interrupted the progress toward public support for agricultural experimentation. Before the war, however, there had been a concurrent growing sentiment for government sponsorship of vocational higher education to serve the common man in the American agrarian society. In 1857, Rep. Justin Morrill of Vermont introduced a proposal to give each state federal land for each member of Congress. With money obtained from the sale of this “land grant,” each state would be required to fund a college “to teach such branches of learning as are related to agriculture and the mechanical acts.” Though the bill never made it out of committee, it was reintroduced several times in subsequent years. Ultimately, an amended version of the bill, the Morrill Land-Grant College Act, was signed into law by President Abraham Lincoln in 1862.
In the ensuing years, farmers began to demand tangible evidence of the new land-grant colleges’ commitment to their well-being. Also, agricultural professors soon exhausted their small supply of science-based knowledge. Therefore, demonstration and model farms became early additions to the facilities at land-grant colleges. These farms evolved into rudimentary research facilities at which experiments began to be conducted.
The first state agricultural experiment station was established in 1875 in Middletown, Conn. Wilbur O. Atwater, a student of Samuel Johnson’s, became the Connecticut station’s first director. Two years later the state legislature moved the station to New Haven and made Johnson director.
Thirteen other states followed Connecticut in the decade before the Hatch Act by providing funds to support experiment stations. These included, in order, California, North Carolina, Massachusetts, New York, New Jersey, Ohio, Tennessee, Alabama, Wisconsin, Louisiana, Maine, Kentucky and Vermont. In Louisiana, the Legislature authorized a state experiment station as part of LSU at Baton Rouge in 1884, but did not actually put the facility in operation until 1886. A group of sugar farmers established their own private Sugar Station in 1885 on a plantation near Kenner. The chemist they employed, William Carter Stubbs, became the director of the state station in 1886. Thus, by 1887, fourteen states had established state agricultural experiments.
Another factor promoting the establishment of state agricultural experiment stations at each land-grant college was the desire by the faculty at these schools to meet for the sharing of experiences and to work for common goals. The first of these meetings occurred in 1871, and conferees discussed and adopted a proposal authored by Willard C. Flagg to encourage the founding of an experiment station at each land-grant school. Unfortunately, there were no precedents for funding such and nothing further happened for a decade.
By the early 1880s, enough states were struggling with the need for institutionalizing agricultural research that sentiment for a concerted national approach was revived. It was Seaman A. Knapp, a professor at Iowa State College, who authored a proposal that was first introduced to Congress. This bill called for an agricultural experiment station in each state to be funded out of the national treasury. During the next five years, this bill was revised a number of times until 1886 when the concept found favorability in the House agriculture committee then chaired by Rep. William H. Hatch of Missouri. The Hatch Act was signed into law by President Grover Cleveland on March 2, 1887. Each land-grant college was initially given $15,000 annually to support its experiment station.
By establishing an agricultural experiment station in each state in conjunction with the land-grant colleges, the Hatch Act provided continuing investment in agricultural science and technology. It authorized federal funds to the states to be used to conduct research “to promote scientific investigation and experiments respecting the principles and applications of agricultural science…bearing directly on the agricultural industry of the U.S.” It also stated that the research should have “due regard to the varying conditions and needs of the respective states…”
Americans and people of the world have benefited tremendously from the agricultural research provided by our national system of state agricultural experiment stations. In celebrating the 125th anniversary of the Hatch Act, we recognize the achievements of past and present agricultural researchers.
David G. Morrison, Assistant Director, Louisiana Agricultural Experiment Station (now retired)
The Hatch Act: Political Activity and the Federal Employee
The Hatch Act restricts federal employee participation in certain partisan political activities. The political activity restrictions apply during the entire time of an employee’s federal service. Certain rules prohibit both on-duty and off-duty conduct.
Partisan political activities are those activities directed at the success or failure of a political party, candidate for partisan political office, or partisan political group. While most Federal employees are permitted to take an active part in partisan political management and partisan political campaigns, the Hatch Act does prohibit certain participation by all Federal employees. Federal employees may not seek public office in partisan elections, use their official title or authority when engaging in political activity, solicit or receive contributions for partisan political candidates or groups, and engage in political activity while on duty.
FDA employees are categorized into “less restricted” and “further restricted” employees.
Further Restricted Employees
Public Health Service Commissioned Corps (PHSCC) officers, Administrative Law Judges (ALJs), and Career Senior Executive Service (SES) employees are subject to further restrictive rules and cannot engage in partisan political activities even during off-duty hours or while away from work. These employees are largely limited to exercising the most basic rights of civic participation, such as voting, making political contributions, and expressing individual opinions.
Less Restricted Employees
All other civilian FDA employees are considered “less restricted’ employees.
Although the Federal Food, Drug, and Cosmetic Act made it possible for generic companies to get regulatory approval for drugs by filing an Abbreviated New Drug Application (ANDA), in the early 1980s it became clear that very few generics were coming to market. Congress studied the issue and realized that under patent and regulatory law, it was easy for innovator companies to make it difficult for generic companies to successfully file ANDAs and that the regulatory pathway to get ANDAs approved was irregular and uncertain. In response, the Hatch-Waxman Act was negotiated and enacted. 
Hatch-Waxman amended the Federal Food, Drug, and Cosmetic Act. Section 505(j) of the Act, codified as 21 U.S.C. § 355(j), outlines the process for pharmaceutical manufacturers to file an Abbreviated New Drug Application (ANDA) for approval of a generic drug by the Food and Drug Administration (FDA). 
The Act gives drug innovators some protection while facilitating and providing incentives for companies to file ANDAs. 
Drug innovators were given protections in two ways. First, a new kind of market exclusivity was introduced, by means of a new five-year period of data exclusivity awarded when the FDA approves marketing of a drug that is a new chemical entity during that period the FDA cannot approve a generic version of the drug.  This provides market exclusivity for the drug innovator outside of any patent rights.  Second, the Act allows the life of patents covering a drug to be extended by a portion of the time the drug is under regulatory review by the FDA, ensuring that regulatory review will not unduly consume patent life.  The Act also requires the drug innovator to give the FDA the numbers of patents it believes cover its drug the FDA does not evaluate whether the patents cover the drug, but publicly lists them in the Orange Book, and these are the patents the life of which is extended if there are regulatory delays. 
The Act facilitates the filing of ANDAs by generic companies, by preventing the FDA from asking a generic company to provide anything other than information on how it is going to manufacture the drug, quality assurance, and a study showing that the drug acts the same in a human as the innovator drug this is called bioequivalence. This part of the Act is one of few pieces of legislation that restricts the powers and reach of a federal agency.  The Act also gives generic companies safe harbor from patent infringement lawsuits during the time when the generic company is preparing its ANDA during that time the generic company needs to learn how to manufacture the drug, manufacture a test batch, and run bioequivalence studies, all activities for which it could be sued for infringement. This protection is called the research exemption.  
When a company is ready to file its ANDA, the Act requires it to declare how its activities when it begins to market the drug will relate to patents listed in the Orange Book there are four options, or "certifications": it can state that there never were patents listed, that listed patents have expired, that it will not market the drug until the all the patents listed in the Orange Book have expired, or that it believes the patents in the Orange Book are not relevant or are invalid. These four alternatives are called the Paragraph I, II, III, and IV certifications (named after Section 505(j)(2)(A)(vii)(IV)).  The Act incentivizes companies to file paragraph IV certifications by rewarding the first company to file an ANDA with such a certification with 180 days of administrative exclusivity if their ANDA is approved during that period the FDA cannot approve another generic.  Because the Act also makes clear that filing an ANDA with a paragraph IV certification is an act of patent infringement, the law actually promotes litigation between private parties the innovator is prompted to commence patent enforcement litigation against the generic infringer, and the generic company is incentivized to file a countersuit to have the patents listed in the Orange Book declared invalid.  
Passage of the law prompted a gold rush into the generic industry and a crush of applications, which the FDA was not prepared to handle.  A series of scandals soon arose that shook public confidence in generic drugs there were several instances in which companies obtained bioequivalence data fraudulently, by using the branded drug in their tests instead of their own product, and a congressional investigation found corruption at the FDA, where employees were accepting bribes to approve some generic companies' applications and delaying or denying others.    
With time the law became successful in promoting the introduction of generics in 1983 only 35% of top-selling branded drugs with expired patents had generic competition, and only 13% of prescriptions were for generics but in 2012, 84% of prescriptions in the US were filled with generic drugs. 
There have been issues with litigation incentivized by the Act. Once the parties are in litigation, they can choose to fight the litigation to the end, or they may choose to settle the litigation. Some of these settlements have been found to be invalid reverse payment patent settlement agreements and have been struck down in court.  
The FDA has been slow to adopt regulations for the introduction of generic versions of biopharmaceutical drugs (known as "biosimilars") because the manufacturing of biopharmaceuticals is so much more complicated than small molecule drugs. Innovator companies have emphasized those complications while generic companies, insurance companies, and consumers have advocated for the FDA to finalize their process.   
Violation of the Act can result in disciplinary action such as demotions, suspension, duty restrictions, and fines. In most severe cases, it can also lead to termination. However, no matter how serious the situation is, violators won’t be sentenced to imprisonment. It is not a criminal law it is just an administrative constraint on employees working for the government.
The Office of Special Counsel, a special independent federal agency, enforces the Hatch Act. The primary function of this department is to investigate complaints that anyone can file. Since James Comey was appointed by Barack Obama, the Office of Special Counsel is entitled to submit a report with their findings, along with the employee’s explanation to the President. It is up to the President to decide whether strict action should be taken against the violator.
In the latest episode of legacy media behaving as if history began after January 2017, mainstream news outlets began raising hysteria this week, accusing President Donald Trump of violating the Hatch Act by using the White House as a backdrop for videos featured at Republicans’ virtual convention.
The Hatch Act is a 1939 law widely regarded as unenforceable that prohibits federal employees from engaging in political activities on government time. Events this week caught the attention of media activists unearthing new ways to discredit the Republican president’s convention by charging the White House of violating the early-mid 20th century law.
Several episodes in particular catching scrutiny include Trump’s participation in a citizen naturalization ceremony broadcast at the convention and the signing of an official presidential pardon for a born-again ex-prisoner who launched a non-profit to help former inmates.
Secretary of State Mike Pompeo also caught criticism from Democrats and media figures for giving his speech while on a trip to Israel, despite the State Department affirming that no government time or resources were dedicated to either preparing or delivering the prime-time address.
“Did President Trump Violate The Hatch Act at the R.N.C.?” inquired a headline in The New York Times, which the paper essentially answered in the affirmative.
Opinion: The RNC is on a Hatch Act crime spree https://t.co/TTqYqHdqoK
&mdash The Washington Post (@washingtonpost) August 26, 2020
“Trump and Pompeo’s disregard for the Hatch Act is business as usual. That’s the problem,” read another “Hot Take” headline in NBC Think.
“Trump’s RNC naturalization ceremony at White House: Tasteless, hollow and probably illegal,” blasted another hostile op-ed in USA Today authored by none other than NeverTrumper Lincoln Project senior adviser Tom Nichols.
Perhaps the richest headline, however, comes from The New Yorker. It reads, “Why Republicans Can Get Away With Violating Laws Democrats Have To Obey.” Never mind that both Kathleen Sebelius and Julian Castro were both found guilty of Hatch Act violations under the Obama administration and the president did nothing about it.
House Democrats have even demanded a federal investigation into the Department of Homeland Security’s (DHS) role in this week’s naturalization ceremony for potential Hatch Act infractions. Another investigation has been launched this week into Pompeo specifically from none other than Castro’s congressman brother from Texas.
Yet while Democrats and their allies in the media continue to embark on a round of Hatch Act charges against the Trump administration, a dig into the past reveals Democrats employed the same use of the White House as a convention prop in their 2012 montage videos when President Barack Obama was facing re-election.