Senator EAGLETON. The National Federation of Federal Employees is supporting the Hatch Act provision before the committee, and, in the testimony last week, said that the general counsel of the Civil Service Commission, as the enforcing authority, should be a Presidential appointment confirmed by the Senate. The NFFE said this would keep the general counsel removed from politics.

Do you have any comment on that suggestion?

Representative SOLARZ. I think so long as the confirmation hearings are thorough, and the background of the appointee is considered in advance, that that seems to be a sensible deduction.

Senator EAGLETON. There were several amendments to the committee version of H.R. 10 on the floor of the House. Could you explain for our committee how these amendments affected H.R. 10, and whether you think the bill should be suported as is, or should we reject the motion contained in one or more of these floor amendments?

Representative SOLARZ. One of the amendments that was adopted was the amendment which restricted certain categories of Federal employees from participating in any way, shape, manner or form whatsoever in the political process. Those were, as I recall correctly, individuals who worked for the FBI, Central Intelligence Agency, I think probably for the IRS, as well, and I would submit that that really was gratuitous, an unnecessary addition to the bill in light of the amendment which had been previously adopted in the committee to which I referred to in my testimony because if, in fact, employees of the FBI, CIA, or the IRS are already prohibited from soliciting support from individuals over whom their agencies have a regulatory responsibility, who have a direct interest in a pending matter before the agency, then there is no reason why a typist, or a secretary, or for that matter, even an FBI agent should not be entitled to participate actively in the political process so long as they are not soliciting support from individuals whom they are engaged in investigating, engaged in making the determinations that affect their vital interest.

Another amendment was adopted on the floor, whch I happen to recall, because I offered it, was entitled "State and Local Employees," who were in federally funded positions, to run for political office. Under legislation that was adopted a few years ago, these individuals were permitted to participate in the process, but they were not permitted to run for office, and that was the kind of lingering prohibition that did not seem to make sense, and which we repealed on the grounds that if as a result of the bill Federal employees themselves were entitled to run for political office, would have made no sense, to have prohibited State and local employees in federally funded positions to run for office as well.

They would be the only ones in the entire country, other than inmates of prisons although even in some jurisdictions I think they are entitled to run for political office.

Senator EAGLETON. Thank you very much, Congressman. We appreciate it.

Representative SOLARZ. Thank you.

[The prepared statement of Congressman Solarz follows:]

PREPARED STATEMENT OF HON. STEPHEN J. SOLARZ, REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK

Mr. Chairman and members of the Committee, thank you for the opportunity to testify on the issue of the political rights of Federal employees. As you may know, I was one of the initial sponsors of H.R. 10, and as a member of both the subcommittee and committee which reported out that bill, I had a hand in shaping the legislation which finally passed the House on June 10th of this year. Mr. Chairman, I would like to begin by stating an obvious fact which seems to have been forgotten by the opponents of H.R. 10 and Hatch Act reform: H.R. 10 is not a labor or trade union bill; it is a civil liberties bill. The Hatch Act does not regulate the political activities of labor unions. Those activities are regulated by the Federal Election Campaign Act.

The Hatch Act does regulate the political activities of individual Federal employees, and it is the First Amendment rights of these citizens, and not the rights of their unions, which are infringed upon by the restrictions contained in the Act. I state these obvious facts because I believe that the real issues involved in Hatch Act reform are the preservation of the First Amendment rights of freedom of speech and association. If there is anyone here who doubts that the restrictions contained in the Hatch Act severely restrict the democratic rights of Federal employees, I suggest that they imagine what this counry would be like if those restrictions were not only applied to 2.8 million Federal employees, but were extended to the rest of the population. Imagine, if you will, a United States in which no one is allowed to actively engage in a political campaign or organize for a political party. I submit to you that with such restrictions on political activity universally applied to our population the United States would no longer be a democracy, let alone the type of democracy which has been an example for the rest of the world.

I do not raise the issue of the First Amendment in order to argue that the Hatch Act is unconstitutional. The Supreme Court has spoken on that issue in the case of the U.S. Civil Service Commission vs. National Association of Letter Carriers and I am willing to accept that decision even though I understand that yesterday's dissent can sometimes become tomorrow's majority opinion.

I raise the First Amendment issue here because I believe in dealing with the issue of free speech and political activity, the Congress should proceed with grave caution and extreme prudence and not only be guided by constitutional limitations. I believe that even when the Congress justifiably concludes that some regulation is demanded in this area by overriding public interests-as it should in this case-respect for the First Amendment and our democratic process requires the Congress to take the least restrictive approach to achieve that public interest and requires it to only restrict destructive and invidious activities and not to prohibit benign and legitimate activities. To put it another way, let me quote Justice Black who once worte "laws which restrict the liberties guaranteed by the First Amendment should be narrowly drawn to meet the evil aimed at and affect only the minimum number of people imperatively necessary to prevent a grave and imminent danger."

In the case of the political activity of Federal employees, these principles should lead us to a position that all such employees should be allowed to fully participate in the political process unless there are strong countervailing reasons for them not to engage in certain activities. At which point they should be barred from engaging in those activities which pose a threat to the integrity of government, but they should not be prohibited from engaging in activities which pose no such threat.

Judged by this standard, the existing Hatch Act should be found severely wanting, and the provision of H.R. 10 should be found right on target. This conclusion should be reached because H.R. 10 provides us with adequate protection against evils aimed by the Hatch Act, without creating the broad prohibitions that are contained in the existing statute. An examination of the two major arguments made by the critics of H.R. 10 against the bill, will bear out the contention that in actuality it provides with adequate protection against the development of a political bureaucracy and the partisan administration of government, so if I may I would like to examine these arguments.

Many of the critics of H.R. 10 have claimed that it would make possible the creation of a vast political machine composed of Federal employees which would give incumbent Federal office holders, particularly the President, the unfair advantage of having a large army of conscripted campaign workers.

The answer to this attack on the bill is that the fear that a substantial portion of the Federal work force will be coerced in to engaging in political activity for some political machine is simply not based in reality. The creation of such an involuntary, monolithic political machine is not possible for a variety of reasons. For one, unlike 1938, the year the Hatch Act was enacted, when only 32 percent of the Federal work force was under the merit system, 70 percent of the Federal work force is under the merit system and an even greater percentage of current Federal employees are covered by civil service protections. It is, therefore, unlikely that Federal employees can be intimidated en masse into engaging in any form of political activity. What is likely to happen if there is an attempt at such mass coercion is that many Federal employees, secure in the knowledge that they cannot be dismissed without cause, will publicly resist and expose those who attempted to coerce them. The resulting negative publicity would so severely hurt a candidate that I seriously doubt that any President would risk almost sure defeat to get the benefit of the work of any number of campaign workers. I, therefore, think that given the current job protections afforded to Federal employees it is safe to conclude that not only is it impossible to create a vast political machine of Federal employees, but that no President would be foolish enough to try to do so.

This, of course, does not mean that if H.R. 10 is passed there will not occasionally occur incidents in which Federal employees will be coerced into political activity. Even the strong provisions of H.R. 10 which make coercion for political purposes by a Federal employer punishable by dismissal will not always deter the overzealous supervisor from intimidating the timid or uninformed Federal employee. However, the occasional politicization of small segments of the bureaucracy is something that even the existing Hatch Act, with its broad prohibitions cannot prevent. One need only recall the political manipulation of the merit system that occurred during the Nixon Administration to realize that the existing statute is no real protection against a President who wants to use small parts of the bureaucracy for political purposes. Only a vigorous investigative press and an assertive Congress can stop such activities.

A second argument against H.R. 10 is that it will allow individual Federal employees to engage in political activities which would have an adverse effect on the fair administration of government. The answer to this argument is that the types of political activities which give rise to concern about their effect on the integrity of government are specifically prohibited by the bill. This bill makes it unlawful for a Federal employer to use government resources or his official position for any political purpose or to engage in any political activity while on duty, or in a Federal building or installation, or while in uniform.

In addition, H.R. 10 as amended by a provision I offered on the floor, prohibits a Federal employee from soliciting, or contributing to, certain persons whom they or their agencies do business with or regulate. My amendment which appears as subsection (c) of section 7324 of the bill would make it unlawful for any Federal employee to solicit, accept, or receive political contribution from or give a political contribution to a person who either

(1) has, or is seeking to obtain a contractual or other business or financial relations with the agency in which the employee is employed;

or

(2) conducts operations or activities which are regulated by such agency;

(3) has interests which may be substantially affected by the performance or non-performance of such employees official duties.

The effect of this amendment is to prohibit political transactions between Federal employees and the members of the public over whom they have inordinate power by virtue of their positions. It, thus, makes it illegal for the mine inspector to solicit the mine operator, but it does not make it illegal for him to ask his corner druggist for a political contribution. My amendment, thus, prohibits the transfer of political contributions between Federal employees and the members of the public whom they regulate when it might appear that the motivation for the contribution is either coercion or bribery. My amendment, however, does not bar political contributions between Federal employees and the

general public when it is clear that the motivation for these contributions has nothing to do with any power the Federal employee may exercise in his official capacity.

The adoption of my amendment on political solicitation not only fills a gap that previously existed in the bill, but also makes unnecessary the special provisions contained in the bill for employees in restricted positions. As you know, the House bill creates a separate category of restricted positions for those employees engaged in law enforcement, foreign intelligence, industry regulation or the awarding of contracts and bars these employees from soliciting or receiving political contributions or from participating in election campaigns. The bill, thus, in effect continues the existing Hatch Act restrictions for these employees.

The only reason I can see for distinguishing these employees in the restricted category from all the other Federal employees is that they occupy positions through which they can exercise a great degree of power over members of the public. As a result of this power, there is a legitimate fear on the part of many people that these employees could exercise improper influences on election campaigns by soliciting or intimidating members of the public. While I agree that the possible political activity of these employees creates a greater potential for abuse, I believe that my amendment on political solicitations adequately takes care of this problem. My amendment eliminates the potential for abuse by these employees by making it unlawful for them to engage in the type of activity which could give rise to those abuses.

After all, what is it that worries us about an FBI agent, or an IRS agent, or a contract officer engaging in politics? Is it not the possibility that that Federal employee will use the power of his position to coerce persons he audits, investigates or otherwise deals with in his official capacity to contribute to a political candidate or work in a political campaign? However, if that is our concernand I can see no other cause for alarm-we need not be worried at all because my amendment makes it unlawful for Federal employees to engage in such activities. Under the provisions of my amendment it would still be illegal for either an FBI agent to solicit the person he is auditing, or a loan officer at the Small Business Administration to solicit someone who is seeking a loan from that agency. Thus, my amendment effectively deals with the evil aimed at by the provisions on restricted positions. However, unlike those provisions, my amendment accomplishes that goal without barring numerous Federal employees from engaging in political activities which pose no threat to the integrity of the government and without unnecessarily infringing upon the First Amendment rights of tens of thousands of American citizens. I respectfully submit to this committee, therefore, that if the prohibitions on political solicitations contained in subsection 7324 (c) are kept in the bill there is no need to impose any additional restrictions on employees in restricted positions.

In the final analysis, it is clear to me that H.R. 10 is a vast improvement over the existing Hatch Act. Like the existing statute, H.R. 10 will prevent the creation of a political machine which could pollute our process. And, like the current law H.R. 10 prohibits Fderal employees from engaging in political activities which pose a threat to the fair, non-partisan administration of our government and enforcement of our laws. However, unlike the Hatch Act, H.R. 10 accomplishes its aims without creating broad and sweeping prohibitions against political activity by Federal employees and unnecessarily infringing upon the First Amendment rights of any American citizen. On this basis, I believe H.R. 10 is a bill worthy of the support of the Committee and I hope that you in your wisdom will report out favorably the bill passed by the House with the few changes I have recommended.

Senator EAGLETON. Mr. Michael Cole, legislative director, Common Cause.

Mr. Cole, we are pleased to have you with us this morning. You may proceed.

TESTIMONY OF MICHAEL COLE, LEGISLATIVE DIRECTOR,

COMMON CAUSE

Mr. COLE. Good morning, Mr. Chairman.

I am Michael Cole, legislative director of Common Cause. I would like to ask that my prepared statement be included in the record, and I will present an abridged version in my oral testimony.

Senator EAGLETON. The full statement will be printed in the record at the conclusion of your testimony.

Mr. COLE. Mr. Chairman, we at Common Cause recognize that this committee is faced with a very difficult task of balancing extremely important rights of Americans. The committee has to strike the appropriate balance between individuals' first amendment rights, their rights of free speech and association, and the public's right to just and impartial administration of government.

It is our view that the underlying question that the committee must address when considering any modification of the Hatch Act is whether any further extension of the already permissible areas of political activity by Federal employees, can be made without jeopardizing the fair administration of Federal programs or undercutting the right of Federal employees to work in an environment free from pressures regarding political activity.

The Hatch Act has been the subject of considerable interest and concern since its enactment nearly four decades ago. Opponents have centered their arguments against the Hatch Act on its alleged deprivation of the political rights of Federal workers. But the fundamental concern about protecting against a politicized bureaucracy predates the enactment of the Hatch Act by nearly 150 years.

Any review of the history of our Nation indicates since the days of Thomas Jefferson our country has a deep interest in protecting the rights of all Federal employees to impartial treatment through the ideal of the politically neutral civil servant.

Although the Hatch Act prohibits Federal and postal employees from engaging in certain partisan political activities, it does provide Federal employees with substantial opportunity to participate in political activities. For example, I have listed in the testimony a wide number of activities that Federal employees can engage in. They can register and vote; they can express their political views; they can wear buttons and have bumper stickers on their cars; they can participate in nonpartisan elections; they can serve as nonpartisan election officials, sign petitions, lobby Congress, et cetera. The point Congressman Solarz made about the low voter turnout in this country in our view does not relate to any problem with the Hatch Act. There is no prohibition against Federal officials registering or voting.

When you get down to it, what the act does is bar Federal employees from running for political office, from taking an active part in political campaigns, or engaging in the solicitation of campaign contributions.

We believe those restrictions are both reasonable and necessary in order to protect the public and the Federal work force alike, and the Supreme Court on two or three occasions has made clear that such restrictions are constitutional.

The issue is not whether Federal employees should be accorded political rights, but whether more visible and more influential levels of political activity should be added to those already permitted.