Legal questions dog administration officials on campaign trail

The campaign trail is getting pretty crowded.

President Obama, Vice President Joe Biden, and the first lady make frequent forays out of Washington to meet with supporters and ask for money. But they’re not alone: In the past year, Cabinet secretaries have visited Obama for America campaign offices, White House advisers have headlined fundraisers, and top officials have addressed groups that represent constituencies the president needs to back him in November.

Executive-branch officials aren’t barred from endorsing candidates; they just can’t do it in their official capacity. But the escalating deployment of top officials for campaign purposes presents an ethical problem, experts say—one thrown into sharp relief by Health and Human Services Secretary Kathleen Sebelius’s recent violation of the Hatch Act.

“I don’t think we’re going to solve it if we don’t get the high-ranking people, such as the Cabinet officials, out of this partisan politics,” University of Minnesota Law Professor Richard Painter said on Thursday.

Sebelius ran afoul of the Hatch act in February, when she endorsed a gubernatorial candidate while delivering official remarks at a Human Rights Campaign event. The remarks were made off the cuff, the White House says, and the Obama campaign and Democratic National Committee have since reimbursed the federal government for costs associated with the event.

“No taxpayer dollars were used,” White House press secretary Jay Carney said this week. The Office of General Counsel has not recommended any disciplinary action. From the White House perspective, end of discussion.

But the Sebelius episode brings up two issues: how the administration and the campaign divide up the costs when officials speak at political events, and whether it makes sense to dispatch executive-branch officials to such events in the first place, Painter said.  

Last week, Sebelius was in Waukesha, Wis., speaking at an Obama for America campaign office. "President Obama needs Wisconsin in order to be reelected president, no doubt about it," she told supporters, the Milwaukee Journal Sentinel reported. She didn’t speak in her official capacity, but she did defend the president’s health care policies.

Senior White House staff, like advisers Valerie Jarrett and David Plouffe, have also been dispatched to campaign events. In February, Jarrett spoke at a North Carolina student summit hosted by the campaign, and in May, she hosted a Chicago rooftop fundraiser. In June, Plouffe headlined an Obama fundraiser not far from the White House, at Capitol City Brewery.

Painter, who served as associate counsel to the president under President George W. Bush, said that since the Clinton administration senior executive-branch officials have increasingly spoken at political events.

Under the Hatch Act, executive-branch employees can engage in partisan political activity on their personal time, as long as the U.S. government doesn’t pay any associated costs.

But the line between official speech and political speech isn’t always easy to draw when an incumbent faces reelection. “How do you know whether someone’s on duty or not?” said Kathleen Clark, professor of law at Washington University in St. Louis. Even when a trip is classified as “unofficial,” Sebelius never stops being head of HHS.

The same goes for White House staff. “So much of what the White House does is try to achieve, frankly, partisan political priorities of the president,” Clark said. “There’s a little bit of a disconnect, or a tension,” between the technical standard of the law and reality, she said.

When top officials advocate for an incumbent’s policies in their official capacity, “I think all of that can indirectly help the president get reelected,” Painter said, even if an official doesn’t explicitly tell an audience whom to vote for.

In a letter to Office of the General Counsel head Carolyn Lerner, Sebelius argued that by reclassifying the event as political and reimbursing the U.S. Treasury with campaign funds, her violation was corrected.

She also spoke about the personal toll it takes on officials asked to advocate for a president’s agenda both in their official capacity and at campaign events.

“Keeping the roles straight can be a difficult task, particularly on mixed trips that involve both campaign and official stops on the same day,” Sebelius wrote.