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5 USC PART III, Subpart F, CHAPTER 73, SUBCHAPTER III: POLITICAL ACTIVITIES
From Title 5 – GOVERNMENT ORGANIZATION AND EMPLOYEES
PART III—EMPLOYEES
Subpart F—Labor-Management and Employee Relations
CHAPTER 73—SUITABILITY, SECURITY, AND CONDUCT
SUBCHAPTER III—POLITICAL ACTIVITIES
Amendments
1993—Pub. L. 103–94, §2(a), Oct. 6, 1993, 107 Stat. 1001, reenacted subchapter heading without change.
§7321. Political participation
It is the policy of the Congress that employees should be encouraged to exercise fully, freely, and without fear of penalty or reprisal, and to the extent not expressly prohibited by law, their right to participate or to refrain from participating in the political processes of the Nation.
(Added Pub. L. 103–94, §2(a), Oct. 6, 1993, 107 Stat. 1001.)
Prior Provisions
A prior section 7321, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 525, related to political contributions and services of employees in Executive agencies or competitive service, prior to the general revision of this subchapter by Pub. L. 103–94.
Effective Date; Savings Provision
Pub. L. 103–94, §12, Oct. 6, 1993, 107 Stat. 1011, provided that:
“(a) The amendments made by this Act [enacting sections 5520a and 7321 to 7326 of this title and section 610 of Title 18, Crimes and Criminal Procedure, amending sections 1216, 2302, 3302 and 3303 of this title, sections 602 and 603 of Title 18, section 410 of Title 39, Postal Service, and sections 1973d and 9904 of Title 42, The Public Health and Welfare, and omitting former sections 7321 to 7328 of this title] shall take effect 120 days after the date of the enactment of this Act [Oct. 6, 1993], except that the authority to prescribe regulations granted under section 7325 of title 5, United States Code (as added by section 2 of this Act), shall take effect on the date of the enactment of this Act.
“(b) Any repeal or amendment made by this Act of any provision of law shall not release or extinguish any penalty, forfeiture, or liability incurred under that provision, and that provision shall be treated as remaining in force for the purpose of sustaining any proper proceeding or action for the enforcement of that penalty, forfeiture, or liability.
“(c) No provision of this Act shall affect any proceedings with respect to which the charges were filed on or before the effective date of the amendments made by this Act. Orders shall be issued in such proceedings and appeals shall be taken therefrom as if this Act had not been enacted.”
Delegation of Authority
Memorandum of President of the United States, Oct. 27, 1994, 59 F.R. 54515, provided:
Memorandum for the Secretary of Defense
Pursuant to authority vested in me as the Chief Executive Officer of the United States, and consistent with the provisions of the Hatch Act Reform Amendment regulations, 5 CFR 734.104, and section 301 of title 3, United States Code, I delegate to you the authority to limit the political activities of political appointees of the Department of Defense, including Presidential appointees, Presidential appointees with Senate confirmation, noncareer SES appointees, and Schedule C appointees.
You are authorized and directed to publish this memorandum in the Federal Register.
William J. Clinton.
Memorandum of President of the United States, Oct. 24, 1994, 59 F.R. 54121, provided:
Memorandum for the Secretary of State
Pursuant to authority vested in me as the Chief Executive Officer of the United States, and consistent with the provisions of the Hatch Act Reform Amendment regulations, 5 CFR 734.104, and section 301 of title 3, United States Code, I delegate to you the authority to limit the political activities of political appointees of the Department of State, including Presidential appointees, Presidential appointees with Senate confirmation, noncareer SES appointees, and Schedule C appointees.
You are authorized and directed to publish this memorandum in the Federal Register.
William J. Clinton.
Memorandum of President of the United States, Sept. 30, 1994, 59 F.R. 50809, provided:
Memorandum for the Attorney General
Pursuant to authority vested in me as the Chief Executive Officer of the United States, and consistent with the provisions of the Hatch Act Reform Amendment regulations, 5 CFR 734.104, and section 301 of title 3, United States Code, I delegate to you the authority to limit the political activities of political appointees of the Department of Justice, including Presidential appointees, Presidential appointees with Senate confirmation, noncareer SES appointees, and Schedule C appointees.
You are authorized and directed to publish this memorandum in the Federal Register.
William J. Clinton.
§7322. Definitions
For the purpose of this subchapter—
(1) “employee” means any individual, other than the President and the Vice President, employed or holding office in—
(A) an Executive agency other than the Government Accountability Office; or
(B) a position within the competitive service which is not in an Executive agency;
but does not include a member of the uniformed services or an individual employed or holding office in the government of the District of Columbia;
(2) “partisan political office” means any office for which any candidate is nominated or elected as representing a party any of whose candidates for Presidential elector received votes in the last preceding election at which Presidential electors were selected, but shall exclude any office or position within a political party or affiliated organization; and
(3) “political contribution”—
(A) means any gift, subscription, loan, advance, or deposit of money or anything of value, made for any political purpose;
(B) includes any contract, promise, or agreement, express or implied, whether or not legally enforceable, to make a contribution for any political purpose;
(C) includes any payment by any person, other than a candidate or a political party or affiliated organization, of compensation for the personal services of another person which are rendered to any candidate or political party or affiliated organization without charge for any political purpose; and
(D) includes the provision of personal services for any political purpose.
(Added Pub. L. 103–94, §2(a), Oct. 6, 1993, 107 Stat. 1001; amended Pub. L. 108–271, §8(b), July 7, 2004, 118 Stat. 814; Pub. L. 112–230, §3(e), Dec. 28, 2012, 126 Stat. 1617.)
Prior Provisions
A prior section 7322, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 525, prohibited employees in Executive agencies or competitive service from using official authority or influence to coerce political actions of persons or bodies, prior to the general revision of this subchapter by Pub. L. 103–94.
Amendments
2012—Par. (1). Pub. L. 112–230, §3(e)(4), substituted “services or an individual employed or holding office in the government of the District of Columbia;” for “services;” in concluding provisions.
Pub. L. 112–230, §3(e)(1)–(3), inserted “or” at end of subpar. (A), struck out “or” at end of subpar. (B), and struck out subpar. (C) which read as follows: “the government of the District of Columbia, other than the Mayor or a member of the City Council or the Recorder of Deeds;”.
2004—Par. (1)(A). Pub. L. 108–271 substituted “Government Accountability Office” for “General Accounting Office”.
Effective Date of 2012 Amendment
Amendment by Pub. L. 112–230 effective 30 days after Dec. 28, 2012, see section 5(a) of Pub. L. 112–230, set out as a note under section 1501 of this title.
§7323. Political activity authorized; prohibitions
(a) Subject to the provisions of subsection (b), an employee may take an active part in political management or in political campaigns, except an employee may not—
(1) use his official authority or influence for the purpose of interfering with or affecting the result of an election;
(2) knowingly solicit, accept, or receive a political contribution from any person, unless such person is—
(A) a member of the same Federal labor organization as defined under section 7103(4) of this title or a Federal employee organization which as of the date of enactment of the Hatch Act Reform Amendments of 1993 had a multicandidate political committee (as defined under section 315(a)(4) of the Federal Election Campaign Act of 1971 (2 U.S.C. 441a(a)(4))); 1
(B) not a subordinate employee; and
(C) the solicitation is for a contribution to the multicandidate political committee (as defined under section 315(a)(4) of the Federal Election Campaign Act of 1971 (2 U.S.C. 441a(a)(4))) 1 of such Federal labor organization as defined under section 7103(4) of this title or a Federal employee organization which as of the date of the enactment of the Hatch Act Reform Amendments of 1993 had a multicandidate political committee (as defined under section 315(a)(4) of the Federal Election Campaign Act of 1971 (2 U.S.C. 441a(a)(4))); 1 or
(3) run for the nomination or as a candidate for election to a partisan political office; or
(4) knowingly solicit or discourage the participation in any political activity of any person who—
(A) has an application for any compensation, grant, contract, ruling, license, permit, or certificate pending before the employing office of such employee; or
(B) is the subject of or a participant in an ongoing audit, investigation, or enforcement action being carried out by the employing office of such employee.
(b)(1) An employee of the Federal Election Commission (except one appointed by the President, by and with the advice and consent of the Senate), may not request or receive from, or give to, an employee, a Member of Congress, or an officer of a uniformed service a political contribution.
(2)(A) No employee described under subparagraph (B) (except one appointed by the President, by and with the advice and consent of the Senate), may take an active part in political management or political campaigns.
(B) The provisions of subparagraph (A) shall apply to—
(i) an employee of—
(I) the Federal Election Commission or the Election Assistance Commission;
(II) the Federal Bureau of Investigation;
(III) the Secret Service;
(IV) the Central Intelligence Agency;
(V) the National Security Council;
(VI) the National Security Agency;
(VII) the Defense Intelligence Agency;
(VIII) the Merit Systems Protection Board;
(IX) the Office of Special Counsel;
(X) the Office of Criminal Investigation of the Internal Revenue Service;
(XI) the Office of Investigative Programs of the United States Customs Service;
(XII) the Office of Law Enforcement of the Bureau of Alcohol, Tobacco, and Firearms;
(XIII) the National Geospatial-Intelligence Agency; or
(XIV) the Office of the Director of National Intelligence; or
(ii) a person employed in a position described under section 3132(a)(4), 5372, 5372a, or 5372b of title 5, United States Code.
(3) No employee of the Criminal Division or National Security Division of the Department of Justice (except one appointed by the President, by and with the advice and consent of the Senate), may take an active part in political management or political campaigns.
(4) For purposes of this subsection, the term “active part in political management or in a political campaign” means those acts of political management or political campaigning which were prohibited for employees of the competitive service before July 19, 1940, by determinations of the Civil Service Commission under the rules prescribed by the President.
(c) An employee retains the right to vote as he chooses and to express his opinion on political subjects and candidates.
(Added Pub. L. 103–94, §2(a), Oct. 6, 1993, 107 Stat. 1002; amended Pub. L. 103–359, title V, §501(k), Oct. 14, 1994, 108 Stat. 3430; Pub. L. 104–201, div. A, title XI, §1122(a)(1), Sept. 23, 1996, 110 Stat. 2687; Pub. L. 106–554, §1(a)(3) [title VI, §645(a)(2)], Dec. 21, 2000, 114 Stat. 2763, 2763A-170; Pub. L. 107–252, title VIII, §811(a), Oct. 29, 2002, 116 Stat. 1727; Pub. L. 108–458, title I, §1079(a), Dec. 17, 2004, 118 Stat. 3695; Pub. L. 109–177, title V, §506(b)(2), Mar. 9, 2006, 120 Stat. 249; Pub. L. 110–417, [div. A], title IX, §931(a)(1), Oct. 14, 2008, 122 Stat. 4575.)
References in Text
The date of enactment of the Hatch Act Reform Amendments of 1993, referred to in subsec. (a)(2)(A), (C), is the date of enactment of Pub. L. 103–94, which was approved Oct. 6, 1993.
The Federal Election Campaign Act of 1971, referred to in subsec. (a)(2)(A), (C), is Pub. L. 92–225, Feb. 7, 1972, 86 Stat. 3, which was formerly classified principally to chapter 14 (§431 et seq.) of Title 2, The Congress, prior to editorial reclassification and renumbering in Title 52, Voting and Elections, and is now classified principally to chapter 301 (§30101 et seq.) of Title 52. Section 315 of this Act is now classified to section 30116 of Title 52. For complete classification of this Act to the Code, see Tables.
Prior Provisions
A prior section 7323, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 525, prohibited employee in Executive agency from requesting, receiving from, or giving to, an employee, a Member of Congress, or an officer of a uniformed service, a thing of value for political purposes and provided for removal from service of employee for violation, prior to the general revision of this subchapter by Pub. L. 103–94.
Amendments
2008—Subsec. (b)(2)(B)(i)(XIII). Pub. L. 110–417 substituted “National Geospatial-Intelligence Agency” for “National Imagery and Mapping Agency”.
2006—Subsec. (b)(3). Pub. L. 109–177 inserted “or National Security Division” after “Criminal Division”.
2004—Subsec. (b)(2)(B)(i)(XIV). Pub. L. 108–458 added subcl. (XIV).
2002—Subsec. (b)(2)(B)(i)(I). Pub. L. 107–252 inserted “or the Election Assistance Commission” after “Commission”.
2000—Subsec. (b)(2)(B)(ii). Pub. L. 106–554 substituted “5372a, or 5372b” for “or 5372a”.
1996—Subsec. (b)(2)(B)(i)(XIII). Pub. L. 104–201 substituted “National Imagery and Mapping Agency” for “Central Imagery Office”.
1994—Subsec. (b)(2)(B)(i)(XIII). Pub. L. 103–359 added subcl. (XIII).
Effective Date of 2004 Amendment
For Determination by President that amendment by Pub. L. 108–458 take effect on Apr. 21, 2005, see Memorandum of President of the United States, Apr. 21, 2005, 70 F.R. 23925, set out as a note under section 3001 of Title 50, War and National Defense.
Amendment by Pub. L. 108–458 effective not later than six months after Dec. 17, 2004, except as otherwise expressly provided, see section 1097(a) of Pub. L. 108–458, set out as an Effective Date of 2004 Amendment; Transition Provisions note under section 3001 of Title 50, War and National Defense.
Effective Date of 2002 Amendment
Amendment by Pub. L. 107–252 effective upon appointment of all members of the Election Assistance Commission under section 20923 of Title 52, Voting and Elections, see section 21134(a) of Title 52.
Effective Date of 1996 Amendment
Amendment by Pub. L. 104–201 effective Oct. 1, 1996, see section 1124 of Pub. L. 104–201, set out as a note under section 193 of Title 10, Armed Forces.
Transfer of Functions
For transfer of the functions, personnel, assets, and obligations of the United States Secret Service, including the functions of the Secretary of the Treasury relating thereto, to the Secretary of Homeland Security, and for treatment of related references, see sections 381, 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.
For transfer of functions, personnel, assets, and liabilities of the United States Customs Service of the Department of the Treasury, including functions of the Secretary of the Treasury relating thereto, to the Secretary of Homeland Security, and for treatment of related references, see sections 203(1), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6. For establishment of U.S. Customs and Border Protection in the Department of Homeland Security, treated as if included in Pub. L. 107–296 as of Nov. 25, 2002, see section 211 of Title 6, as amended generally by Pub. L. 114–125, and section 802(b) of Pub. L. 114–125, set out as a note under section 211 of Title 6.
For transfer of authorities, functions, personnel, and assets of the Bureau of Alcohol, Tobacco and Firearms, including the related functions of the Secretary of the Treasury, to the Department of Justice, see section 531(c) of Title 6, Domestic Security and section 599A(c)(1) of Title 28, Judiciary and Judicial Procedure.
1 See References in Text note below.
§7324. Political activities on duty; prohibition
(a) An employee may not engage in political activity—
(1) while the employee is on duty;
(2) in any room or building occupied in the discharge of official duties by an individual employed or holding office in the Government of the United States or any agency or instrumentality thereof;
(3) while wearing a uniform or official insignia identifying the office or position of the employee; or
(4) using any vehicle owned or leased by the Government of the United States or any agency or instrumentality thereof.
(b)(1) An employee described in paragraph (2) of this subsection may engage in political activity otherwise prohibited by subsection (a) if the costs associated with that political activity are not paid for by money derived from the Treasury of the United States.
(2) Paragraph (1) applies to an employee—
(A) the duties and responsibilities of whose position continue outside normal duty hours and while away from the normal duty post; and
(B) who is—
(i) an employee paid from an appropriation for the Executive Office of the President; or
(ii) an employee appointed by the President, by and with the advice and consent of the Senate, whose position is located within the United States, who determines policies to be pursued by the United States in relations with foreign powers or in the nationwide administration of Federal laws.
(Added Pub. L. 103–94, §2(a), Oct. 6, 1993, 107 Stat. 1003.)
Prior Provisions
A prior section 7324, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 525; Pub. L. 93–268, §4(a), Apr. 17, 1974, 88 Stat. 87, prohibited Executive agency employees and employees of the District of Columbia from influencing elections or taking part in political campaigns, prior to the general revision of this subchapter by Pub. L. 103–94.
§7325. Political activity permitted; employees residing in certain municipalities
The Office of Personnel Management may prescribe regulations permitting employees, without regard to the prohibitions in paragraphs (2) and (3) of section 7323(a) and paragraph (2) of section 7323(b) of this title, to take an active part in political management and political campaigns involving the municipality or other political subdivision in which they reside, to the extent the Office considers it to be in their domestic interest, when—
(1) the municipality or political subdivision is—
(A) the District of Columbia;
(B) in Maryland or Virginia and in the immediate vicinity of the District of Columbia; or
(C) a municipality in which the majority of voters are employed by the Government of the United States; and
(2) the Office determines that because of special or unusual circumstances which exist in the municipality or political subdivision it is in the domestic interest of the employees and individuals to permit that political participation.
(Added Pub. L. 103–94, §2(a), Oct. 6, 1993, 107 Stat. 1004; amended Pub. L. 104–93, title III, §308, Jan. 6, 1996, 109 Stat. 966; Pub. L. 112–230, §3(f), Dec. 28, 2012, 126 Stat. 1617.)
Prior Provisions
A prior section 7325, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 526; Pub. L. 96–54, §2(a)(44), Aug. 14, 1979, 93 Stat. 384, related to penalties, prior to the general revision of this subchapter by Pub. L. 103–94.
Amendments
2012—Par. (1). Pub. L. 112–230 amended par. (1) generally. Prior to amendment, par. (1) read as follows: “the municipality or political subdivision is in Maryland or Virginia and in the immediate vicinity of the District of Columbia, or is a municipality in which the majority of voters are employed by the Government of the United States; and”.
1996—Pub. L. 104–93 inserted “and paragraph (2) of section 7323(b)” after “section 7323(a)”.
Effective Date of 2012 Amendment
Amendment by Pub. L. 112–230 effective 30 days after Dec. 28, 2012, see section 5(a) of Pub. L. 112–230, set out as a note under section 1501 of this title.
§7326. Penalties
An employee or individual who violates section 7323 or 7324 shall be subject to—
(1) disciplinary action consisting of removal, reduction in grade, debarment from Federal employment for a period not to exceed 5 years, suspension, or reprimand;
(2) an assessment of a civil penalty not to exceed $1,000; or
(3) any combination of the penalties described in paragraph (1) or (2).
(Added Pub. L. 112–230, §4, Dec. 28, 2012, 126 Stat. 1617; amended Pub. L. 115–91, div. A, title X, §1097(k)(1), Dec. 12, 2017, 131 Stat. 1626.)
Prior Provisions
A prior section 7326, added Pub. L. 103–94, §2(a), Oct. 6, 1993, 107 Stat. 1004, related to penalties, prior to repeal by Pub. L. 112–230, §4, Dec. 28, 2012, 126 Stat. 1617.
Another prior section 7326, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 526, authorized nonpartisan political activities, prior to the general revision of this subchapter by Pub. L. 103–94.
A prior section 7327, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 526; Pub. L. 96–54, §2(a)(14), (15), Aug. 14, 1979, 93 Stat. 382; Pub. L. 97–468, title VI, §615(b)(1)(E), Jan. 14, 1983, 96 Stat. 2578, related to permitted political activity in certain municipalities where employees reside, prior to the general revision of this subchapter by Pub. L. 103–94.
A prior section 7328, added Pub. L. 96–191, §8(e)(1), Feb. 15, 1980, 94 Stat. 33, exempted employees of the General Accounting Office from provisions of this subchapter, prior to the general revision of this subchapter by Pub. L. 103–94.
Amendments
2017—Pub. L. 115–91 amended section generally. Prior to amendment, text read as follows: “An employee or individual who violates section 7323 or 7324 shall be subject to removal, reduction in grade, debarment from Federal employment for a period not to exceed 5 years, suspension, reprimand, or an assessment of a civil penalty not to exceed $1,000.”
Effective Date of 2017 Amendment; Applicability
Pub. L. 115–91, div. A, title X, §1097(k)(2), Dec. 12, 2017, 131 Stat. 1626, provided that: “The amendment made by paragraph (1) [amending this section] shall apply to any violation of section 7323 or 7324 of title 5, United States Code, occurring after the date of enactment of this Act [Dec. 12, 2017].”
Effective Date; Applicability
Section effective 30 days after Dec. 28, 2012, see section 5(a) of Pub. L. 112–230, set out as an Effective Date of 2012 Amendment note under section 1501 of this title.
Pub. L. 112–230, §5(b), Dec. 28, 2012, 126 Stat. 1617, provided that:
“(1) In general.—Except as provided in paragraph (2), the amendment made by section 4 [enacting this section and repealing former section 7326 of this title] shall apply with respect to any violation occurring before, on, or after the effective date of this Act [see above].
“(2) Exception.—The amendment made by section 4 shall not apply with respect to an alleged violation if, before the effective date of this Act—
“(A) the Special Counsel has presented a complaint for disciplinary action, under section 1215 of title 5, United States Code, with respect to the alleged violation; or
“(B) the employee alleged to have committed the violation has entered into a signed settlement agreement with the Special Counsel with respect to the alleged violation.”
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