DHS Secretary Kristi Noem faces accusations of violating the Hatch Act after directing a video blaming Democrats for the government shutdown to be played in airports, highlighting critical questions about political messaging and the use of federal resources.
In a recent development that has reignited debates over federal ethics, a video featuring Department of Homeland Security (DHS) Secretary Kristi Noem has drawn sharp criticism and accusations of violating the Hatch Act. The roughly 30-second video, requested by Secretary Noem to be played across U.S. airports, explicitly blamed “Democrats in Congress” for an ongoing government shutdown, sparking immediate outrage from a group of Democratic senators who demanded its removal.
This incident brings into focus the crucial role of the Hatch Act in maintaining a non-partisan federal workforce and raises important questions about the appropriate use of government resources for political messaging, particularly during contentious periods like a government shutdown.
The Heart of the Controversy: Noem’s Video and the Shutdown Blame Game
The controversial video features Secretary Noem stating, “It is TSA’s top priority to make sure you have the most pleasant and efficient airport experience as possible while we keep you safe. However, Democrats in Congress refuse to fund the government. And because of this, many of our operations are impacted and most of our TSA employees are working without pay. We will continue to do all that we can to avoid delays that will impact your travel. And our hope is that Democrats will soon recognize the importance of opening the government.”
This message was released amidst a government shutdown that began on October 1, leaving many federal employees furloughed or working without pay. The video directly mirrored the narrative put forth by President Donald Trump’s Administration and Republican Party leaders, who consistently blamed Democrats for the shutdown’s impacts.
The explicitly partisan nature of the video led many major airports across the country to refuse to display it. Airports like Hartsfield-Jackson Atlanta International Airport and Chicago’s O’Hare International Airport cited policies prohibiting political content, emphasizing their commitment to maintaining a neutral and welcoming environment for travelers. However, some airports, including Detroit Metropolitan Airport and Bismarck Airport, did show the video.
What Exactly is the Hatch Act?
The Hatch Act of 1939 is a federal law named after its sponsor, Democratic Senator Carl Hatch of New Mexico. Its primary purpose is to limit the political activities of federal civilian employees in the executive branch, as well as some state, District of Columbia, and local government employees involved in federally funded programs. The law aims to ensure a nonpartisan federal workforce, free from political influence, coercion, and the use of official authority to affect election outcomes.
All federal civilian executive branch employees, including part-time and furloughed staff, are covered by the Act, with the exceptions of the President and Vice President. The application of its restrictions is generally broken down into two groups:
Less Restricted Employees
Most career employees fall into this category. While they can actively participate in political management or partisan political campaigns, they must do so off-duty, outside federal facilities, and without using federal property. Key permitted activities include:
- Registering and voting as they choose.
- Contributing money to political campaigns or parties.
- Attending political rallies and fundraising functions.
- Joining political clubs or parties.
- Campaigning for or against candidates in partisan elections while off-duty.
- Displaying signs on personal property.
- Expressing personal opinions about candidates and issues (not while on duty or using federal resources for partisan political activity).
However, less restricted employees are prohibited from:
- Using official authority or influence to interfere with an election (e.g., using official title while campaigning, inviting subordinates to political events).
- Soliciting, accepting, or receiving political contributions.
- Being candidates for public office in partisan political elections (with limited exceptions in designated communities).
- Engaging in political activity while on duty, in a federal facility, wearing a uniform or official insignia, or using a federally-owned or leased vehicle (e.g., wearing political buttons, posting political comments on government social media).
Further Restricted Employees
This group includes employees in sensitive law enforcement and security positions, as well as all political appointees and career Senior Executive Service (SES) employees. They are subject to stricter rules that preclude active participation in political management or partisan political campaigns, even off-duty. This category includes employees from the Criminal Division, Federal Bureau of Investigation (FBI), National Security Division, and criminal investigators/explosives enforcement officers in ATF.
Permitted activities for further restricted employees are limited to:
- Registering and voting.
- Assisting in non-partisan voter registration drives.
- Contributing money to political campaigns or parties.
- Attending political fundraising functions and rallies (with exceptions for non-career appointees).
- Joining political clubs or parties (but not holding office).
Prohibited activities for further restricted employees include:
- Volunteering in connection with a partisan candidate or election.
- Running as a candidate in a partisan election.
- Campaigning for or against a partisan candidate.
- Hosting political fundraisers or making campaign speeches.
- Distributing campaign material from a partisan political organization.
- Using official authority or influence to interfere with an election.
- Engaging in partisan political activity while on duty or using federal resources (e.g., displaying partisan political items, posting partisan comments on social media).
Violations of the Hatch Act carry serious penalties, including removal from federal service, reduction in grade, suspension, or a civil penalty not exceeding $1,000, according to the Office of Special Counsel (OSC) pamphlet for federal employees.
Why Noem’s Actions Sparked Scrutiny
The video’s direct accusation against “Democrats in Congress” for the shutdown is precisely what critics argue constitutes prohibited partisan political activity. As a DHS Secretary, Noem is considered a “further restricted” employee, and all political appointees, as a matter of department policy, are held to these stricter rules to avoid the appearance of political influence in day-to-day operations.
Legal experts have largely concurred with the senators’ concerns. Stanley Brand, a professor at Penn State Dickinson Law, told NPR that Noem’s video “seems like a blatant use of political messaging in a forum and by somebody who probably shouldn’t be doing it.” Similarly, John Berry, a lawyer specializing in Hatch Act cases, explained to CNN that Noem, in her official capacity, is covered by the Act, especially if the video was filmed using government resources. The presence of the American flag and official DHS insignia in the video, as noted by Senator Maria Cantwell (D-Wash.) to the U.S. Office of Special Counsel, further strengthens this argument.
Democratic senators, led by individuals such as Senator Richard Blumenthal of Connecticut, penned a “scathing letter” to Noem, demanding the immediate removal of the videos. They warned of monitoring compliance with federal law and requested a detailed breakdown of the video’s production and dissemination costs, as well as information on who was consulted in its creation.
A Pattern of Alleged Violations: Broader Context of the Hatch Act
The controversy surrounding Secretary Noem’s video is not an isolated incident; the Hatch Act has been allegedly violated numerous times across various presidencies. This pattern highlights the ongoing challenge of enforcing strict non-partisanship among federal officials, particularly in a highly polarized political environment.
Notable examples from recent administrations include:
- Kellyanne Conway: In 2019, the OSC recommended that President Trump fire his former senior counselor, Kellyanne Conway, for repeated Hatch Act violations. However, the White House rejected these claims, and no disciplinary action was taken.
- Peter Navarro: The OSC also reported to President Trump in 2020 that Peter Navarro, then Assistant to the President, violated the Act through partisan comments on his official social media and during media appearances. Again, no public action followed the report.
- Neera Tanden: During the Biden administration, former advisor Neera Tanden faced a complaint from the OSC for repeatedly posting on social media to solicit donations for Democratic candidates, even after being warned against such actions.
- Xavier Becerra: Health and Human Services Secretary Xavier Becerra was also reported by the OSC for endorsing Senator Alex Padilla (D-CA) for reelection while speaking in his official capacity, a clear deviation from prepared remarks.
These instances underscore a recurring tension: while the Hatch Act aims to be a robust safeguard against political influence, its enforcement, particularly for high-level appointees, can become intertwined with political dynamics. The perception that invoking the Hatch Act can sometimes be a “magic talisman” used by political opponents, as Article 2 suggests, reflects this complex reality.
Enforcement and Implications for Appointees
The Office of Special Counsel (OSC), an independent federal watchdog, is responsible for investigating and prosecuting alleged Hatch Act violations. If the OSC finds sufficient evidence, it can bring a case before the Merit Systems Protection Board (MSPB), another independent agency that determines penalties. However, for White House-commissioned officers and Senate-approved presidential appointees like Secretary Noem, the process is different. In such cases, the OSC may submit a report to the President with a recommendation for disciplinary action. The final decision on sanctions rests with the President.
This mechanism means that for presidential appointees, the ultimate disciplinary authority is the President himself. As seen in past administrations, a President may choose not to act on the OSC’s recommendations, especially when the accused official is part of their own administration and shares their political objectives. This aspect of enforcement can pose a significant challenge to the Act’s integrity, particularly when the President is perceived to be politically aligned with the alleged violator.
The controversy surrounding Secretary Noem’s video serves as a stark reminder of the delicate balance required to maintain a non-partisan federal government. As the debate continues, it highlights the ongoing need for clear ethical guidelines and consistent enforcement to ensure that federal employees, regardless of their position, uphold the principles of public service without engaging in partisan political activity while on duty or using government resources.
