FCC Member Violated Hatch Act, Special Counsel Finds

A Republican member of the Federal Communications Commission appointed by President Obama violated the Hatch Act while speaking at a conservative political gathering last February, the Office of Special Counsel determined.

Commissioner Michael O’Rielly “advocated for the reelection of President Trump in his official capacity as FCC commissioner,” wrote Erica Hamrick, deputy chief of the Hatch Act Unit at the Office of Special Counsel, in May 1 letters to two private watchdog groups that had complained.

O’Rielly appeared with other FCC members at a Feb. 23, 2018, Conservative Political Action Conference panel titled “To Infinity and Beyond: How the FCC is Paving the Way for Innovation.” At one point during the panel session, the OSC letter noted, a moderator asked what could be done to counter the electoral swings that alter FCC policy.

“I think what we can do is make sure as conservatives that we elect good people to both the House, the Senate, and make sure that President Trump gets reelected,” O’Rielly said. “But there’s another thing you can do. We’re going to have a fight over the Obama internet rules in the next couple months in the U.S. Senate. And that’s going to matter and that vote matters, and so making sure people take the right course on that really does affect what policies we’re able to keep in place moving forward.”

In their complaints, the nonprofit Project on Government Oversight and the group called America Oversight argued that the comments violated the act. “O’Rielly was clearly speaking in his official capacity rather than a personal one, even while advocating for President Trump’s reelection and promoting the election of 'good people’ to the House and Senate,” wrote POGO Executive Director Danielle Brian in February. “The situation involving O’Rielly is similar to one faced by President Obama’s Health and Human Services Secretary Kathleen Sebelius,” whom the OSC found to have violated the act.

“Despite his words, Commissioner O’Rielly explained to OSC that he was not advocating President Trump’s reelection but was attempting to answer the question asked, which he understood to be about preventing the next administration from reversing the FCC’s net neutrality decision,” the OSC letter said. “But Commissioner O’Rielly did in fact have an answer to the  moderator’s question that was not partisan–legislative action by the Senate–which he expressed only after suggesting the solution was to “make sure that President Trump gets reelected,” the OSC said in finding a Hatch Act violation.

The OSC issued a warning that a future violation would result in action.

“I appreciate that OSC recognized that the statement in question was part of an off-the-cuff, unrehearsed response to an impromptu question, and that they found this resolution to be the appropriate consequence,” O’Rielly said in a statement on Tuesday. “While I am disappointed and disagree that my offhand remark was determined to be a violation, I take their warning letter seriously.”

Austin Evers, executive director of American Oversight, said O'Rielly's violation “confirms our concern that O’Rielly is undermining the independence of the FCC. Public trust in the FCC won’t be restored until O’Rielly resigns.”

POGO, besides monitoring compliance with Hatch Act, also tracks possible violations of the ban on agency grassroots lobbying, under which Obama HHS Secretary Sebelius’s conduct was reviewed by the Government Accountability Office.

Last week, POGO filed a complaint with GAO saying that Mick Mulvaney, director of the Office of Management and Budget and acting head of the Consumer Financial Protection Bureau, encouraged banking industry executives to invest in lobbying efforts to urge Congress to take control of the CFPB by altering its funding source, which would reduce the CFPB’s independence and insulation from industry influence.

"We typically only act on congressional requests," a GAO spokesman said. "But we will certainly examine the information provided and consult with Congress if appropriate."