The opinion of the court was delivered by: JACKSON
Former section 9(a) of the Hatch Act now found at 5 U.S.C. § 7324(a)(2) (1982), prohibits federal employees from taking "an active part in political management or political campaigns." Plaintiffs in these consolidated actions, two national labor unions of employees of the federal government, a union local, and the local's president, challenge the application of that prohibition to certain allegedly "non-partisan" voter registration and voter turnout campaigns they had planned to have their members conduct throughout this election year until they were warned by defendant that federal employees might be in violation of the Act by doing so. Defendant O'Connor is Special Counsel to the U.S. Merit Systems Protection Board ("MSPB"), charged with the investigation and prosecution of suspected violations of the Hatch Act before the MSPB, and the MSPB may suspend or dismiss federal employees found guilty of engaging in proscribed activities. 5 U.S.C. § 7325.
In early March, 1984, one of defendant's staff attorneys wrote an advisory opinion letter in response to an inquiry by another union not involved here regarding the legality of the voter registration drives it intended to hold at government worksites. The letter stated the writer's opinion that federal employees "may participate in voter registration drives that are not identified with a political party or a partisan candidate for public office," but the Hatch Act prohibits their taking part in union-sponsored voter registration drives if the union itself has endorsed a partisan candidate for public office. Such an endorsement "identifies" the union with the candidate's success, he said, and the union thus becomes a "partisan club for the duration of the campaign." The staff attorney's letter quickly acquired notoriety within the federal workforce and independently prompted these plaintiffs to file separate actions in this Court to vindicate their own impending voter registration activities.
The complaint of American Federation of Government Employees ("AFGE"), one of its affiliated locals, and the local's president, alleges that the union has endorsed a candidate for the Democratic nomination for President in 1984; that it also encourages its locals to conduct "non-partisan" voter registration drives; and that the March letter, emanating as it did from the Office of the Special Counsel, threatens its federal-employee members with the loss of their jobs if they participate. It sought an injunction prohibiting defendant "from enforcing or continuing in effect the holding of" the March letter.
The National Treasury Employees Union's ("NTEU") complaint alleges that it has endorsed partisan candidates for the presidency and the U.S. Senate and House of Representatives in 1984, and that it, too, desires to conduct "non-partisan" voter registration drives which the March letter inhibited by engendering fear on the part of members willing to help of "prosecution" for Hatch Act violations. NTEU asked for an injunction against defendant's "prosecuting plaintiff's members from [sic] engaging in nonpartisan voter registration and voter turnout activities."
Plaintiffs in both actions applied for temporary restraining orders. At hearing on March 30, 1984, the Court consolidated the actions with the consent of the parties but declined to issue a restraining order, because the staff attorney's letter did not purport to address, and, thus, did not raise a justiciable controversy with respect to, plaintiffs' own activities. See French v. Devine, 547 F. Supp. 443, 446-47 (D.D.C. 1982). On April 2, 1984, therefore, the unions joined to request their own advisory opinion from Special Counsel. They acknowledged endorsing partisan candidates for office in 1984, but gave assurance that, in their "non-partisan" voter registration activities, "no attempt is made to solicit registrants on the basis of political party or candidate preference."
Defendant issued his opinion on April 6th. After examining the history of the Hatch Act's prohibition of political activity by federal employees, he concluded that participation in a voter registration drive may constitute partisan activity within the meaning of the Act. Turning to the few facts before him with respect to plaintiffs' registration drives, and their representations that no partisan solicitation of prospective registrants would be made, the Special Counsel asserted that "the absence of such 'solicitation' at a voter registration booth does not necessarily mean that the drive is not partisan; it is only one factor to be considered." Op. at 4. As to the candidate endorsements he said:
By these endorsements the unions have become identified with the success of the endorsed candidates. If the voter registration drives are part of a campaign to enhance the electoral performance of your endorsed candidates, then employees may not participate because, under the Hatch Act, they "may not become prominently identified with any political movement, party or faction or with the success or failure of any candidate for election to public office." Joseph S. Crawford, 1 PAR 262, 263 (1946).
Some other relevant factors might include other political activities of the sponsoring organization, the degree to which that organization has become identified with the success or failure of a partisan political candidate, issue or party, the nexus, if any, between the decision to undertake a voter registration drive and the other political objectives of the sponsor, whether particular groups are targeted for registration on the basis of their perceived political preference and the nature of publicity circulated to targets of the drive immediately prior to or during the drive. This is, of course, only a partial list of factors we might consider in determining whether a voter registration drive is a partisan political activity and whether the participation of covered employees in such a drive would be in violation of the Hatch Act. Given the increasing use of voter registration as a tool in partisan political campaigns, we cannot accept at face value your assertion that the drive you plan is "nonpartisan."
The Special Counsel observed that statements by national and local union officers (which plaintiffs do not repudiate) had stressed the important part played by these "non-partisan" voter registration drives in the unions' political strategies to elect partisan candidates whom they favored.
The Special Counsel's opinion concluded:
Where, as here, the unions have endorsed partisan candidates, and where, as here, the unions have issued public statements and communications to their membership emphasizing the importance of voter registration in advancing the campaigns of candidates which the unions support, the ineluctable conclusion must be that those voter registration drives sponsored or conducted by the unions are, in fact, partisan. Accordingly, we must advise you that participation by federal employees in your unions' voter registration drives is prohibited political activity within the definition of the Hatch Act.
Of course, all federal employees, remain free to participate in truly nonpartisan ...