No Trespassing

by Amanda Griscom

The Statue of Liberty, Mount Rushmore, NASA headquarters, and the Washington Monument are among the many federal properties that may be off-limits to presidential and congressional candidates for campaign photo ops this election season, thanks to a guidance recently released by the Bush administration's U.S. Office of Special Counsel.

The OSC is an independent federal agency that investigates and prosecutes issues ranging from whistleblower complaints to concerns that federal employees are participating in campaign activities prohibited by the Hatch Act, which defines election-related political no-no's for people on the government payroll.

Kerry advisers and some environmentalists are royally peeved about the advisory, calling it at best deliberately ambiguous and misleading, at worst a deliberate maneuver to gain advantage over John Kerry's presidential campaign.

The guidance is "an extraordinary reinterpretation of the Hatch Act," said David Hayes, who oversaw national parks as deputy secretary of the interior under Clinton, and who now serves as a senior adviser to the Kerry campaign. "It is a patently ridiculous and extreme measure that the Bush administration is taking to cover up its appalling record on funding and protecting national parks after promising in the 2000 campaign to make it a priority."

But OSC spokesperson Cathy Deeds told Grist Magazine that her agency is merely "restating the Hatch Act" in response to repeated queries over the last several months from federal employees at various agencies about which campaign activities they can participate in and what federal property is fair game. On Aug. 9, the office issued a government-wide guidance in an effort "to clear up the confusion." That just happened to be the very day that John Kerry made a campaign stop at the Grand Canyon and delivered a speech criticizing the shortfall of funding for national parks under the Bush administration.

Critics scoff at the notion that the OSC simply intended to clarify existing law. "If they were trying to clear things up, they failed miserably," said Jeff Ruch, executive director of Public Employees for Environmental Responsibility. "We're getting repeated calls from confused employees who have no idea what to make of these restrictions. The Hatch Act restrictions have been restated in a way that's at once sweeping and obscurely detailed with Dr. Seuss-style contingencies -- in a box, on a rock, with a clock. They wanted to sow confusion and they are making it so convoluted that nobody knows what to do."

The act does not prohibit the actions of candidates directly; rather, it is directed to the federal employees who would authorize the use of federal property. "The burden is on the federal agency or federal employees knowing what they can or cannot allow," Deeds said.

Last week, when the agency made the guidance public, Special Counsel Scott Bloch cautioned, "During this busy campaign season, we want federal employees to be scrupulous about the restrictions concerning the use of their official position or federal property for campaign-related events or activities, under the Hatch Act."

While the guidance gets very specific about the types of campaign activities that cannot be authorized by federal employees to take place on federal property -- "town hall meetings, rallies, parades, speeches, fundraisers, press conferences, 'photo ops,' or meet-and-greets" -- it is perplexingly vague about exactly what kind of "federal facilities" are off-limits. Given that the federal government owns roughly half a million buildings nationwide and approximately one-third of all the land in America, ranging from national parks to military bases, there's plenty of room for confusion.

"You can't take three steps in downtown D.C. without walking on federal land or onto the steps of a federal building," said Hayes. "The National Mall is federal property, never mind the Grand Canyon. Does this mean we can't have political speeches on the Mall?"

According to Ruch, PEER has gotten calls from employees at the Grand Canyon, New York Harbor, and elsewhere who can't make sense of what's off-limits. Last weekend, for instance, an employee at New York Harbor asked what he should do when Arnold Schwarzenegger arrived to give a speech at Ellis Island -- federally owned property -- in the lead-up to the Republican National Convention. Should he tell the Governator to keep mum about anything related to the presidential campaign?

In the case of Kerry's Grand Canyon visit, OSC received complaints that some employees had taken time to guide the candidate around the park during a campaign event, the implication being that those efforts aided the Kerry campaign, according to Ruch. The OSC is also investigating Kerry's campaign visit in July to a NASA facility in Cape Canaveral, Fla.

OSC spokesperson Deeds told Grist Magazine that critics' concerns were overblown. "We made no specific mention of national parks in our guidance. We are not interpreting this so broadly as to include parks. The focus is on covered property -- federal buildings."

But when pressed Deeds to clarify the specifics -- Does that mean federal employees can allow a candidate to go to the Grand Canyon but not enter the ranger hut or the gift shop? Can they allow a candidate to stand in front of the Statue of Liberty but not walk up the stairs? What about activities on military bases? -- she couldn't give a clear answer. "I don't have those specifics ... Everything is a fact-specific case," she said. "I don't know about the Statue of Liberty ... I'm not sure about the military issue." (She later called to clarify that military bases are outside of OSC jurisdiction, but according to Ruch this too is misleading: Civilian employees on military bases are required to observe the Hatch Act, even if military employees are not.)

Deeds did sound confident on one point: "There is a difference between an official visit and a campaign visit under the Hatch Act," she said. "If the campaign contacts the agency to set up an event, then that's a campaign visit, and that's not allowed." And yet "official" visits by officeholders to federal facilities are permissible.

Kerry strategists think the Bush camp is using this distinction to unfairly disadvantage the Democratic candidate. After all, Bush administration officials can easily contrive excuses to conduct "official business" on federal property -- business which incidentally includes the recitation of campaign talking points. "We constantly see Gale Norton and Steven Griles tripping around to national parks, puffing up the Bush record and advocating Bush policies -- which in an election year is clearly a campaign advantage," said Hayes. "And yet OSC is hardly blinking at this. It's hypocritical in the extreme."