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. * * *19

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:

66* * **

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:

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:

(6* *

* 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 I 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.

798037-49- --4

The following also occurred:

"Mr. MINTON. The right to express political opinions has been defined by the Civil Service Commission to mean the private expression of such opinions.

"Mr. HATCH. Yes; the word 'privately' is in the rule of the Civil Service Commission. It is not in the law.

"Mr. MINTON. The Civil Service Commission has defined the right to express political opinions as the right to do so privately.

"Mr. HATCH. Mr. President, that is because the word 'privately' is included in the rule of the Civil Service Commission. The word 'privately' is written into the rule. That is the word which I dropped out. I did it deliberately, intentionally, and I want it to remain out. As to what it means, I refer the Senator from Indiana to the message of the President of the United States in approving the Hatch Act, in which he discussed this very subject, and said that the act does not infringe upon the liberties of the citizens" (id. 4439).

Here again is clear adherence to the original scope of section 9 on this question.

On March 15 Senator Hatch introduced the substitute for section 15, referred to above (id. 4527). With respect to the rules of the Civil Service Commission referred to in section 15, Senator Hatch placed in the Record material which he described as containing the substance of the rules, saying of this material (id. 4537–4539) :

"I think there is no question that they cover the entire substance of the rules. I mean it is not possible for anyone to be misled by them in any degree whatever."

Paragraph 19 of the outline thus inserted reads as follows: "19. Expression of opinions: Although section 9 (a) of the act of August 2, 1939, reserves to Federal officers and employees the right to express their opinions on all political subjects, officers and employees in the competitive classified service are subject also to section 1 of civil service rule I, under which such employees must confine themselves to a private expression of opinion. Nonclassified and excepted employees may not indulge in such public expression of opinion as constitutes taking part in an organized political campaign" (id. 4538).