One of the few fresh governing concepts to emerge from the Trump White House was the realization that many rules are really just suggestions. If you don’t follow them, you might get tut-tutted, and a court might eventually force your hand, but a lot of the time you just get away with it. This is a powerful and dangerous insight, and unfortunately the Biden White House has not completely shunned it.
A perfect example of this dynamic involves the Hatch Act, which bans federal employees from being involved in electoral politics in certain circumstances. Usually, a federal employee who violates the law can be punished by the Office of Special Counsel, an agency whose job it is to enforce this particular law. But when it is White House officials who break the law, OSC’s only recourse is to recommend a consequence to the president. The Trump administration blithely flouted the law, refusing to follow OSC’s rulings. Now the Biden administration seems to be doing the same, reacting to one OSC opinion (a very silly one, but still) by simply refusing to heed it.
The path here was blazed by Kellyanne Conway, a top adviser to Donald Trump, who OSC determined had repeatedly and brazenly violated the Hatch Act by making comments directly aimed at boosting Trump’s and other Republicans’ campaigns. Trump refused to take action, so Conway kept it up. The OSC chief, Henry Kerner, a Trump appointee, was aghast, telling NPR he was “unaware of any multiple offenders on that level.” To call Conway unrepentant would be understatement. “If you’re trying to silence me through the Hatch Act, it’s not going to work,” she smirked. “Let me know when the jail sentence starts.”
Now Joe Biden’s press operation seems to be taking the same tack. Press Secretary Karine Jean-Pierre has often used MAGA as a pejorative term, and Protect the Public’s Trust, a watchdog group run by a Trump-administration appointee, complained to OSC last year, writing that her comments “appear to be political in nature, seeking the defeat of her political opponents in the Republican party.”
OSC replied this month, concluding that Jean-Pierre did in fact violate the Hatch Act: “The timing, frequency, and content of Ms. Jean‐Pierre’s references to ‘MAGA Republicans’ established that she made those references to generate opposition to Republican candidates. Accordingly, making the references constituted political activity.” But OSC recommended no discipline, noting that the White House Counsel’s Office had believed that the reference was acceptable. OSC also issued a memo on the term:
MAGA remains the campaign slogan of a current candidate for partisan political office, and therefore, its use constitutes political activity. This is true regardless of whether the slogan is used positively or negatively to describe—e.g., MAGA officials, MAGA Republicans, MAGA policies, or MAGA Members of Congress. Accordingly, federal employees should not use “MAGA” or “Make America Great Again” while on duty, in the workplace, or when acting in their official capacity, including communicating through social media, email, or on government websites.
This ruling should appear absurd to anyone who has a glancing familiarity with contemporary politics. Although OSC is correct that “MAGA” is an active slogan, it has long since become a more nebulous descriptor that applies to a movement or strain in conservatism—one that government officials could easily have non-electoral reasons to refer to. Candidates who are not Donald Trump refer to themselves as “MAGA”; in casual discourse and in straightforward news articles, the term is a simple and easily understood shorthand for an ideology.
In one study of southern voters, political scientists asked participants to group themselves as “Traditional Republican,” “America First Republican,” or “MAGA,” labels that respondents had no trouble grasping. “People don’t put on the MAGA label like a pair of pants—it’s an identity that some people have more of and some people have less of,” one of the authors, the Western Carolina University professor Chris Cooper, told Poynter last year. As Jean-Pierre noted at a briefing, “Congressional Republicans have also used ‘MAGA’ to refer to policies and official agenda frequently, for years now—even, clearly, before we entered the administration.” OSC also assented to officials’ use of “MAGAnomics” during the Trump administration.
Regardless of its merits, OSC’s ruling is inconvenient for the White House, which has made a strategic decision to define itself against the MAGA movement and thus wants to be able to refer to it. And so the administration has apparently just decided to disregard it. As Axios reports, the press office continues to use “MAGA” even after the ruling. (The White House did not respond to a request for comment.)
Progressives sometimes complain that the Democratic Party is unwilling to engage in what I’ve called “total politics”—the practice of stretching the law as far as it will go—leaving it as a wimpy counterpart to a Republican Party that is eager to charge through guardrails. In some situations, a muscular approach may be beneficial and even justified. But this is not one of those instances. Democrats by and large understood why ignoring Hatch Act rulings was bad during the Trump administration, when they lined up to criticize Conway’s lawlessness. Now that we have a Democratic president, the caucus has been muted. I asked Representative Dan Goldman, a New York Democrat who earlier this year sponsored an unsuccessful “Kellyanne Conway Amendment” to make violations of the Hatch Act a felony, for his view on the White House’s decision, but his office didn’t reply.
The impulse to just ignore the ruling is understandable—the ruling is, after all, nonsensical—but the proper functioning of government requires that the White House follow OSC’s opinions whether they’re sensible or not. You don’t need a lot of imagination to see why it’s dangerous for an administration to decide whether it agrees with a conclusion before it decides whether to abide by it, or how such a precedent could expand beyond the marshy and unenforceable realm of Hatch Act violations. That’s the kind of lawlessness that voters rejected in 2020. If nothing else, the Biden administration’s thumbing its nose does inadvertently prove its own point: Trump doesn’t have exclusive dominion over MAGA tactics.