Public Confidence Laws Gone Awry: A Modern Circuit Split Reveals that Some Federal Courts Manipulate Standing Rules to Promulgate Severe First Amendment Restrictions on the Spouses and Children of Public Employees
Federal courts in the United States have consistently upheld the constitutional doctrine that "[t]he essential rights of the First Amendment in some instances are subject to the elemental need for order without which the guarantees of civil rights to others would be a mockery." Given the central role of government workers in maintaining that order, the First Amendment rights of public employees have been particularly susceptible to restriction. For example, in 1940, Congress enacted the Hatch Act, which declared unlawful certain political activities of federal employees. Specifically, section nine of the Act prohibited officers and employees in the executive branch from taking "any active part in political management or in political campaigns." The theory behind restrictions such as those found in the Hatch Act relied on the state's compelling interest in encouraging government impartiality and the public perception of impartiality in government. These restrictions, labeled "public confidence laws," prohibit not only financial political contributions, but also contributions of time and energy in an effort to influence an election.
The idea that a politically active government staff threatens effective administration has filtered down to the state and local level since the passage of the Hatch Act. Currently, not only are federal employees subject to public confidence laws, but many state and even local employees have been prohibited from participating in politics. While the principles justifying public confidence laws may indeed have deep judicial and constitutional roots, these laws have expanded at an alarming rate. The level of restriction they currently impose cannot be supported by any constitutional theory.
Nicholas R. Farrell,
Public Confidence Laws Gone Awry: A Modern Circuit Split Reveals that Some Federal Courts Manipulate Standing Rules to Promulgate Severe First Amendment Restrictions on the Spouses and Children of Public Employees,
57 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol57/iss1/5