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Investigation of Political Activities by White House and Federal Agency Officials During the 2006 Midterm Elections

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Investigation of Political Activities by White House and Federal Agency Officials During the 2006 Midterm Elections INVESTIGATION OF POLITICAL ACTIVITIES BY WHITE HOUSE AND FEDERAL AGENCY OFFICIALS DURING THE 2006 MIDTERM ELECTIONS U.S. OFFICE OF SPECIAL COUNSEL JANUARY 2011 Table of Contents INDEX OF CHARTS ................................................................................................................................... v INTRODUCTION ........................................................................................................................................ 1 I. Overview .......................................................................................................................................... 1 II. Background ...................................................................................................................................... 1 III. Methodology .................................................................................................................................... 2 IV. Organization of the Report ............................................................................................................... 3 CHAPTER ONE: APPLICABLE PROVISIONS OF THE HATCH ACT .................................................. 4 I. Overview .......................................................................................................................................... 4 II. Historical Background ..................................................................................................................... 4 III. Current Law ..................................................................................................................................... 6 CHAPTER TWO: THE WHITE HOUSE OFFICE OF POLITICAL AFFAIRS ........................................ 9 I. Overview .......................................................................................................................................... 9 II. Establishment of OPA...................................................................................................................... 9 III. OPA’s Organizational Structure and Functions During the Bush II Administration ..................... 10 A. OPA Director and Deputy Director.......................................................................................... 11 B. OPA Associate Directors ......................................................................................................... 12 C. OPA’s Relationship With the White House Office of Scheduling and Appointments ............ 14 CHAPTER THREE: POLITICAL BRIEFINGS ........................................................................................ 15 I. Overview ........................................................................................................................................ 15 II. Factual Findings ............................................................................................................................. 15 A. Purpose of Political Briefings .................................................................................................. 15 B. Location and Scheduling of Political Briefings ....................................................................... 16 C. Political Appointees Were Expected to Attend Political Briefings .......................................... 18 D. PowerPoint Presentations Used During Political Briefings ..................................................... 20 E. Political Appointees’ Impressions of Political Briefings.......................................................... 27 III. Legal Analysis ............................................................................................................................... 29 A. 5 U.S.C. § 7324(a)–(b) – Prohibitions on Political Activity and Exemptions Thereto ............ 29 1. OPA’s Political Briefings ................................................................................................... 31 a. OPA Employees Engaged in Political Activity When They Gave Political Briefings .. 31 b. Political Briefings Occurred in a Federal Workplace or While Employees Were on Duty ............................................................................................................................... 32 i | Page 2. Some OPA Staff Were Exempt From the § 7324(a) Political Activity Restrictions When They Gave Political Briefings ............................................................................................ 33 a. Only Certain EOP Employees Are Exempt From the § 7324(a) Political Activity Restrictions .................................................................................................................... 33 i. OPA Director ........................................................................................................... 35 ii. OPA Deputy Director .............................................................................................. 36 iii. OPA Associate Directors and the Surrogate Scheduler ......................................... 36 b. OPA Director and Deputy Director Were Exempt From § 7324(a) When They Gave Political Briefings .......................................................................................................... 37 c. Other OPA Staff May Have Violated § 7324(a) by Giving Political Briefings ............ 37 3. Agency Political Appointees May Have Violated § 7324(a) When They Attended Political Briefings Presented by OPA Employees ............................................................................ 37 B. 5 U.S.C. § 7323(a)(1) – Prohibition Against the Use of Official Authority or Influence for the Purpose of Interfering With or Affecting the Result of an Election ........................................ 39 1. OPA Employees Violated § 7323(a)(1) by Giving Briefings That Constituted Political Activity ............................................................................................................................... 40 2. Some White House Liaisons at Federal Agencies Violated § 7323(a)(1) .......................... 41 IV. Recommendations .......................................................................................................................... 42 CHAPTER FOUR: AS THE 2006 ELECTIONS DREW NEARER, OPA BECAME A PARTISAN POLITICAL ORGANIZATION................................................................................................................. 44 I. Overview ........................................................................................................................................ 44 II. Factual Findings ............................................................................................................................. 45 A. OPA and the RNC Worked Together on a Routine Basis........................................................ 45 1. OPA Served as a Link Between the RNC and Agency Political Appointees ..................... 46 2. OPA Tracked the Success of Republican Fundraising Efforts ........................................... 47 3. During the 2006 Midterm Elections, OPA Received Assistance From Several RNC Desk Coordinators ....................................................................................................................... 48 B. OPA Deployed Administration Officials to Help the Republican Party and Its Candidates by Appearing at Events ................................................................................................................ 48 1. During the Bush II Administration, OPA Arranged for High-Level Agency Political Appointees to Speak Before National, State, and Local Republican Groups and at Republican Campaign Events ............................................................................................. 49 2. OPA and Republican Groups Created the “Target List” to Prioritize the Travel of High- Level Agency Political Appointees .................................................................................... 51 3. Earning Media for Targeted Candidates ............................................................................. 52 ii | Page 4. OPA Tracked the Travel of High-Level Agency Political Appointees to Events with Targeted Republicans ......................................................................................................... 55 5. Travel of High-Level Agency Political Appointees Tracked by OPA Dramatically Increased in 2006 ................................................................................................................ 57 a. In the Months Before the 2006 Midterm Elections, OPA Engaged in “Final Push Efforts” to Assist Republican Candidates ...................................................................... 61 b. OPA’s Partisan Political Activity Related to the 2006 Midterm Elections Declined After November 7, 2006 ......................................................................................................... 64 III. Legal Analysis ............................................................................................................................... 65 A. OPA Staff and the Surrogate Scheduler Engaged in Political Activity for Purposes of the Hatch Act ................................................................................................................................. 65 B. OPA Staff and the Surrogate Scheduler Violated the Hatch Act When They Engaged in Political Activity While on Duty or in a Federal Workplace .................................................. 68 1. Non-Exempt Employees – OPA Associate Directors and the Surrogate
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