Senior White House official violated the Hatch Act, OSC says

Updated at 9:20 a.m. on Nov. 8 with a statement from the White House

The Office of Special Counsel in a complaint filed on Wednesday alleged that senior White House official Neera Tanden used social media to help raise money for political candidates, which would be a straightforward violation of the Hatch Act. 

“Congress created a rule banning all federal employees from fundraising for political candidates,” Special Counsel Hampton Dellinger said in a statement. “The Hatch Act contains no escape hatch for White House officials. Back in May, I made clear my office would enforce the law as written.”

Previously, OSC would refer Hatch Act violations by White House commissioned officers and other staffers to the president. But Dellinger in May announced that his agency would instead refer such cases to the Merit Systems Protection Board, which he was able to do because the quasi-judicial body regained a quorum in 2022. 

MSPB officials said they did not have any comment on the allegation or the timeline for how long it would take to adjudicate it. 

While Tanden will likely leave federal service by Jan. 20, 2025, at the latest, the White House domestic policy advisor still could be penalized. 

“When a Hatch Act complaint is filed against a federal employee and they subsequently leave federal service, the individual could still be subject to appropriate discipline through the Board,” said OSC spokesperson Zachary Kurz in a statement to Government Executive. 

Hatch Act penalties can include removal, being barred from federal employment for up to five years or a civil penalty of up to $1,000. 

In the filing, attorneys for OSC wrote that Tanden in late July and August on X reposted fundraising communications for Democratic candidates. After becoming aware of such a repost from Aug. 28, agency officials informed a White House Counsel’s Office attorney that Tanden was in violation of the Hatch Act. 

Shortly thereafter, she removed the Aug. 28 repost, but, according to the filing, went on to repost or post fundraising calls for Democratic candidates four times in September. 

Despite sending Tanden questions and inviting her to discuss the investigation, according to a press release, the senior White House official has not responded. But the White House Counsel’s Office has acknowledged to OSC in writing that Tanden made the posts. 

“The White House and Ms. Tanden take compliance with the Hatch Act seriously. As soon as these retweets, which primarily consisted of non-fundraising content, were brought her to attention, she appropriately deleted them," White House spokesperson Andrew Bates said in a statement. "The White House is reviewing the complaint. However, as recently as November 2021, the Office of Special Counsel stated that there are 'significant constitutional concerns' with the MSPB disciplining White House commissioned officers, and that it was 'legally required' to refer such matters to the President.”

OSC in September announced that two federal employees received multi-day unpaid suspensions for sharing messages on Facebook that encouraged donations to political candidates. 

​​“My office is asking the Merit Systems Protection Board to hold Ms. Tanden accountable just as we have in instances of similar violations by federal employees who do not work in the White House,” Dellinger said in a statement. 

Tanden is not the first Biden administration official to run afoul of the Hatch Act. OSC found that Navy Secretary Carlos Del Toro earlier this year violated the law when he made statements advocating for the re-election of President Joe Biden and critical of Republican presidential candidate Donald Trump during an official trip. 

In 2019, then-Special Counsel Henry J. Kerner recommended that Trump fire his counselor Kellyanne Conway, an action which he did not take, for violating the Hatch Act by repeatedly disparaging Democratic candidates in her official capacity during television interviews and on social media. 

At the start of his administration, Biden nominated Tanden to head the Office of Management and Budget. But she withdrew her nomination after several senators said they wouldn’t vote for her over past social media posts that were critical of lawmakers.