principal employment is in connection with any activity which is financed in whole or in part by loans or grants made by the United States or by any Federal agency shall (1) use his official authority or influence for the purpose of interfering with an election or a nomination for office, or affecting the result thereof, or (2) directly or indirectly coerce, attempt to coerce, command, or advise any other such officer or employee to pay, lend, or contribute any part of his salary or compensation or anything else of value to any party, committee, organization, agency, or person for political purposes. No such officer or employee shall take any active part in political management or in political campaigns. All such persons shall retain the right to vote as they may choose and to express their opinions on all political subjects and candidates.

The Civil Service Commission is empowered to administer the provisions of section 12 of the act and to hold hearings on charges of violations of the provisions of the section. Section 12 (b) provides in part:

** After such hearing, the Commission shall determine whether any violation of such subsection has occurred and whether such violation, if any, warrants the removal of the officer or employee by whom it was committed from his office or employment, and shall by registered mail notify such officer or employee and the appropriate State or local agency of such determination. If in any case the Commission finds that such officer or employee has not been removed from his office or employment within thirty days after notice of a determination by the Commission that such violation warrants his removal, or that he has been so removed and has subsequently (within a period of eighteen months) been appointed to any office or employment in any State or local agency in such State, the Commission shall make and certify to the appropriate Federal agency an order requiring it to withhold from its loans or grants to the State or local agency to which such notification was given an amount equal to two years' compensation at the rate such officer or employee was receiving at the time of such violation; except that in any case of such a subsequent appointment to a position in another State or local agency

which receives loans or grants from any Federal agency, such order shall require the withholding of such amount from such other State or local agency. * * *99

The statute requires the Commission to make two determinations:

(1) Whether any violation of section 12 (a) has occurred; and

(2) Whether such violation, if any, warrants the removal of the employee by whom it was committed.

It will be noted that the above provisions differ materially from those of section 9 which require removal of the employee.

In the case of violations of section 12 (a), the conclusion is inescapable that the Commission is vested with discretion not to require the removal of an employee if it determines that the violation does not justify or warrant his removal.

III

The third question is whether employees subject to the Hatch Act are restricted to private expression of opinions on all political subjects and candidates.

At the time the Hatch Act was adopted, and also when it was amended, civil service Rule I provided in part:

Persons who by the provisions of these rules are in the competitive classified service, while retaining the right to vote as they please and to express privately their opinions on all political subjects, shall take no active part in political management or in political campaigns." [Italics supplied.]

The word "privately" was omitted from the corresponding provision of the original Hatch Act, section 9 (a), which read:

66* * No officer or employee in the executive branch of the Federal Government, or any agency or department thereof, shall take any active part in political management or in political campaigns. All such persons shall retain the right to vote as they may choose and to express their opinions on all political subjects. * The history of the act shows that the omission of the word "privately" was not unintentional but deliberate. As the

bill (S. 1871) passed the Senate, the provision in section 9 (a) read:

66* * All persons shall retain the right to vote as they please and to express privately their opinions on all political subjects, but they shall take no active part in political management or in political campaigns." [Italics supplied.] (Cong. Rec. v. 84, pt. 9, 9596.)

In the House the word "privately" was stricken out by amendment. The discussion on the amendment demonstrated the purpose to be to "kill" the word "privately." (Cong. Rec. v. 84, pt. 9, 9622–9625, 9630, 9637-9640.) The Senate concurred in the House amendment, July 21, 1939. (id. 9671-9674.)

Section 9 (a) of the Hatch Act was amended by the act of July 19, 1940, by adding at the end of the sentence pertaining to expression of opinions the words "and candidates," so that the provision in question now reads:

66* * * No officer or employee in the executive branch of the Federal Government, or any agency or department thereof, shall take any active part in political management or in political campaigns. All such persons shall retain the right to vote as they may choose and to express their opinions on all political subjects and candidates.

* **"

A similar provision was also adopted in section 12 (a) of the amendatory act relating to State and local employees, and a new section, numbered 15, enacted reading:

"The provisions of this act which prohibit persons to whom such provisions apply from taking any active part in political management or in political campaigns shall be deemed to prohibit the same activities on the part of such persons as the United States Civil Service Commission has heretofore determined are at the time this section takes effect prohibited on the part of employees in the classified civil service of the United States by the provisions of the civil service rules prohibiting such employees from taking any active part in political management or in political campaigns."

Since section 15 purports to bring into the Hatch Act all of the provisions of the civil service rules regulating the political activities of civil service employees, the question

is whether the Congress intended to adopt that part of civil service Rule I which restricts employees to private expressions of opinions. As already demonstrated, the language and legislative history of the original act show that the Congress did not then intend the statutory prohibition against political activity to be as broad as Rule I with respect to expression of opinions. The amendatory act of July 19, 1940, carried forward the same language contained in the original act, and section 12 of the amendatory act adopted this language with respect to State and local employees. If, therefore, the word "privately" should come into the act by reference in section 15 to the civil service rules, this would be in conflict with the express provisions of sections 9 and 12 of the statute.

One of the problems confronting the Congress during the consideration of the amendatory act was that of defining the term "active part in political management or in political campaigns" as used in the original Hatch Act. An amendment (section 15) was proposed in the Senate which authorized the Civil Service Commission to define that term for the purposes of the act. The proposed amendment met with opposition, and Senator Hatch, who was in charge of the amendatory bill, introduced a substitute for section 15, supra, in practically the identical language in which that section now appears in the act.

Senator Hatch, in discussing the question of free speech, stated at one point:

"More than that, Mr. President, to make assurance double at the last session that no such right [of free speech] should be curtailed, in the bill we then passed we expressly provided that all persons should have the right to express their opinions on all political subjects, and the word 'privately,' which appears in the civil service rule, was deliberately stricken out, and the President of the United States, in commenting on that fact in his message, pointed out that there was involved in the legislation no curtailment or abridgement of the right of freedom of speech." (Cong. Rec. Mar. 11, 1940, 4027.)

On the following day Senator Hatch said that the heart of section 9 was the language:

"No officer or employee in the executive branch of the Federal Government, or any agency or department thereof, shall take any active part in political management or in political campaigns.' That is the effective part of section 9" (id. 4207).

Again, on March 14, the Senator said:

* *

66* * * I wrote into the original law this provision; and I ask Senators to listen to what the law says, and not to extreme, unwarranted interpretations: All such persons shall retain the right to vote as they may choose and to express their opinions on all political subjects. That language was written into the law, Mr. President. The language to which I refer differs from the rule of the Civil Service Commission in this respect: The rule of the Civil Service Commission says they may express their opinions privately. I did not like the word 'privately.' It did not sound good to me as an American citizen, and the word 'privately' was stricken out. The law stands today just as have read it. In the original bill which I introduced at this session the same words were included, as I intended them to be. Later, and for the first time after the bill reached the floor of the Senate, I observed that in the redraft of the committee amendment those words had been omitted. I have been waiting day after day for some hard-swinging Senators, hitting right and left, to pick that up and accuse me of some dire, mysterious, and deep-seated plot against the liberties of the citizens of this country because those words were omitted. It had been my intention all the time to do what I shall now do, Mr. President. I ask unanimous consent to insert, on page 4, line 22, following the word 'campaigns' and the period, the identical language which appeared in the bill as I introduced it, and which appears in the original act. * * * I ask unanimous consent to have inserted the words: 'All such persons shall retain the right to vote as they may choose and to express their opinions on all political subjects."" (Cong. Rec. Mar. 14, 1940, 4438.)

By unanimous consent the request of the Senator was granted and the words were inserted. It is clear the Senator in charge of the bill was adhering to the language and meaning of section 9 of the original act.

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