Defending his measure, Hatch said he would draw the line between coercive and voluntary expression if he could. But he didn’t think it was possible. If government workers engaged in any kind of political activity while at work, the people around them might feel compelled to go along. The only solution was to ban it altogether.
I think he was wrong. So did Justice William Douglas, who dissented in a 1947 case upholding the Hatch Act. The only reasonable justification for limiting workers’ First Amendment rights was to protect “the larger requirements of modern democratic government,” Douglas wrote. To prohibit any political speech, then, the state should have to demonstrate “a clear and present danger to the operations of government.”
How has Conway’s politicking endangered anyone? The Office of Special Counsel (no relation to Robert Mueller’s Russia investigation) said she violated the Hatch Act by disparaging Democratic presidential candidates. And last year, the same office said she broke the law when she advocated for Roy Moore, the failed GOP candidate in a special Senate election in Alabama.