McEntee v. Merit Systems Protection Board

United States Court of Appeals for the Federal Circuit

04-3066

MIKE MCENTEE,

Petitioner,

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent.

Patrick J. Rogers, Modrall, Sperling, Roehl, Harris & Sisk, P.A., of Albuquerque,
New Mexico, argued for petitioner.

Joyce G. Friedman, Attorney, Office of the General Counsel, United States Merit
Systems Protection Board, of Washington, DC, argued for respondent. With her on the
brief were Martha B. Schneider, General Counsel and Stephanie M. Conley, Reviewing
Attorney.

Appealed from: United States Merit Systems Protection Board
 United States Court of Appeals for the Federal Circuit

04-3066

MIKE MCENTEE,

Petitioner,

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent.

_______________________

DECIDED: April 15, 2005
_______________________

Before GAJARSA, Circuit Judge, PLAGER, Senior Circuit Judge, and LINN, Circuit
Judge.

GAJARSA, Circuit Judge.

Mike McEntee appeals from a decision by the Merit Systems Protection Board

(the "Board" or "MSPB") granting summary judgment that he had committed violations

of the Hatch Act in the conduct of his campaign for Mayor of Albuquerque, New Mexico.

Special Counsel v. McEntee, CB-1216-02-0007-T-1 (MSPB Sept. 8, 2003). The Hatch

Act1 is the colloquial designation for the federal statute that prohibits covered

government employees from engaging in certain partisan political activities. See

1
The name "Hatch Act" initially referred to Senate Bill 1871 introduced by
Senator Carl Hatch, enacted as chapter 410, 53 Stat. 1147 (1939) and originally
codified as 18 U.S.C. § 61. As used here, the terms "Hatch Act" or "Act" refer not to a
particular bill, but to the body of federal statutes and regulations restricting the political
activities of federal employees.
generally 5 U.S.C. §§ 7321-7326 (2000). Because we discern no legal error in the

Board’s decision and it was supported by substantial evidence, we affirm.

I. BACKGROUND

In August 2001, McEntee declared himself a candidate for Mayor of

Albuquerque, New Mexico. According to city ordinances, the mayoral race is intended

to be nonpartisan and the names of the candidates are listed on the ballot without party

or other designation. At the time he became a candidate, McEntee was employed as

an air traffic control specialist with the Federal Aviation Administration ("FAA"), a

position he obtained in 1982. Prior to declaring his candidacy, McEntee consulted with

the Albuquerque FAA Ethics Counselor regarding restrictions imposed by the Hatch Act.

When asked prior to the onset of the campaign, both the Albuquerque FAA Ethics

Counselor and FAA’s regional counsel determined that the Hatch Act did not prevent

McEntee from being a candidate.

In support of McEntee’s quest for the mayoral seat, his campaign distributed a

variety of leaflets and other literature. A campaign checking account was established

under the name "Friends for Mike McEntee," which paid for the printing and distribution

costs of those materials. McEntee approved for distribution all of the campaign

literature at issue.

The McEntee campaign distributed leaflets stating "Mike McEntee – the ONLY

CONSERVATIVE REPUBLICAN in the race for Mayor."2 The same leaflet included the

statement "[f]inally, Republicans have a chance to elect a Conservative to lead our

2
All of the emphasis that appears in the cited quotations from McEntee’s
campaign literature is original.

04-3066 2
city" and the following quote from "Former Republican State Representative Frank

Bird:"

For years Republicans have been forced to hold their nose and accept the
policies that city government forced on them by Jim Baca, Marty Chavez
and the rest of the liberal Democrats. Now, for the first time in years we
have a chance to elect one of us, a conservative Republican to clean up
the mess in City Hall.

Two additional leaflets also described McEntee as "The ONLY Conservative

Republican!"

The campaign also distributed a "Dear Friend" letter from Jack Stahl, "Former

Republican Lieutenant Governor," which included the following statements:

In two months, we can FINALLY elect a REPUBLICAN MAYOR to lead
this city!

As Republicans, we know that this is the first time in years – and probably
the last time in even more years – that we have a chance to elect a
Republican Mayor to bring conservative values and principles to City Hall.

IF REPUBLICANS UNITE BEHIND THE ONLY CONSERVATIVE
REPUBLICAN, MIKE McENTEE . . . . . . . . . WE WIN!

We Republicans can turn Albuquerque into a great city, but we need your
help twice. First; WE NEED YOUR VOTE, Second; We need your
financial support now so Mike McEntee can put his Conservative
Republican message in the mail, on TV and on radio.

Our city is crying out for new REPUBLICAN leadership.

WE REPUBLICANS CAN MAKE A DIFFERENCE!

The letter further listed McEntee’s opponents, all identified as "Democrat."

McEntee’s campaign also disseminated a "Dear Republican Friend" letter that

stated:

One reason I am writing you is because you are a registered Republican.
. . . This is not supposed to be a "partisan" election, but we all know
Mayor Baca and former Mayor Marty Chavez are cut from the same mold!

04-3066 3
 As Republicans, we are outnumbered in Albuquerque. Our only hope of
defeating the Democrat machine is to stick together behind one candidate.
At last count there were at least 10 candidates saying they were running
for Mayor, most of them Democrats like Baca and Chavez.

Another leaflet invited Albuquerque’s kids to "[t]ake a shot at wasted spending at our

Dunk the Dems tank," as part of an event sponsored by the McEntee campaign.

The McEntee campaign also issued press advisories, one of which announced

that "Former Congressman Bill Redmond joined with 10 Republican legislators and

grassroots Republican leaders to announce their endorsement of Republican candidate

for Mayor, Mike McEntee, at a press conference on Wednesday, August 22, 2001."

McEntee was present at the referenced press conference. The same press advisory

included this quote from Senator Mark Boitano: "Republicans need to stand behind the

candidate who will stand for the values that Republicans hold dear."

In addition to the endorsements of individual Republicans, McEntee also

received endorsements from the Executive Committee of the Bernalillo County

Republican Party, the Republican Assembly and the Republican Lincoln Caucus.

McEntee trumpeted these endorsements in the press advisory discussed above.

The McEntee campaign solicited campaign contributions in a variety of ways.

The "Dear Friend" letter from "Former Republican Lieutenant Governor" Jack Stahl

included the statements "I’VE JUST SENT MY CHECK TO MIKE MCENTEE. WON’T

YOU PLEASE SEND YOUR CHECK TODAY? . . . You [sic] contribution of $25, $50,

$100 or even $1000 is vital. Please let us know in the next 10 days if you can help elect

the only conservative candidate." Similarly, the Dear Republican Friend told recipients

that "[i]f you can afford a small contribution to help us offset the cost of this mailing and

to help us build a warchest for the battle with Baca and Chavez down the road, we

04-3066 4
would appreciate it." Other campaign literature also included solicitations as did the

campaign website. At least two fundraising events were held in support of the McEntee

campaign, one on June 21, 2001, and another on September 14, 2001.

The local press reported on the Republican partisanship of the McEntee

campaign. An article in the Albuquerque Journal chronicled McEntee’s endorsement by

the Bernalillo County Republican Executive Committee under the headline "County

GOP Back McEntee for Mayor." A similar article in the Albuquerque Tribune, dated

August 23, 2001, was entitled "Party Time? Open Republican endorsement stirs up

supposedly nonpartisan election." The "Party Time" article included statements from

the State Republican Party Chairman indicating that "the county GOP’s actions take the

‘cloak off’ claims that party politics don’t control city government." The article included

the observation that "McEntee, whose campaign has struggled to catch fire, is eagerly

wrapping himself in the Republican flag." Finally, another article in the Albuquerque

Journal, entitled "GOP Radar Focuses on McEntee," stated that "[a]s the sun set on his

fundraiser, McEntee stepped to the microphone and stayed true to form. His message

was simple: We need a Republican on the 11th floor." The McEntee campaign

responded to the press coverage in part by circulating an editorial under McEntee’s

name stating that "[t]he Journal is irate because I believe in the conservative values

embraced by Republicans and am open and honest enough to proudly call myself a

Republican." At no time during the campaign did McEntee disavow his Republican

identity or refute or refuse the assistance, financial or otherwise, of the Republican Party

structure.

04-3066 5
 On August 30, 2001, Amber Bell, an attorney with the Office of Special Counsel

("OSC"), informed McEntee that the OSC believed that his candidacy for Mayor violated

the Hatch Act. Bell offered McEntee the option of resigning his candidacy or resigning

his federal position. McEntee answered that he did not believe his candidacy was

unlawful. In a letter dated August 31, 2001, William Reukauf, Associate Special

Counsel with the OSC, reiterated the message of Bell’s conversation and notified

McEntee that partisan politics had entered his campaign and therefore his candidacy for

Mayor of Albuquerque violated the Hatch Act. Specifically, Reukauf determined that the

presumption that the Albuquerque Mayoral election is nonpartisan was rebutted by

McEntee’s endorsement by the "Bernalillo County Republican Party" and his

advertisement of that endorsement. Reukauf’s letter permitted McEntee to correct his

violation by either publicly withdrawing from the election or resigning his federal position

by September 7, 2001.

McEntee, through counsel, responded in writing to Reukauf’s letter. McEntee’s

response challenged Reukauf’s statement that McEntee had been endorsed by the

Bernalillo County Republican Party on the grounds that McEntee was endorsed only by

a small committee of Republicans, which did not have the authority to issue an

endorsement on behalf of the entire party. McEntee asserted that because he had not

received the endorsement of a state or national political party the election had not been

transformed into a partisan political race. McEntee chose not to withdraw from the race

and did not resign his position with the FAA. The election was held October 2, 2001

and McEntee was not elected.

04-3066 6
 On November 20, 2001, OSC filed a complaint with the Merit Systems Protection

Board charging McEntee with being a candidate for election to partisan political office in

violation of § 7323(a)(3) of the Hatch Act and its implementing regulations. See 5

U.S.C. § 7323(a)(3) (2000); 5 C.F.R. § 734.304 (2004). The OSC also charged

McEntee with knowingly soliciting, accepting, or receiving political contributions in

violation of § 7323(a)(2) of the Hatch Act and its implementing regulations. See 5

U.S.C. § 7323(a)(2) (2000); 5 C.F.R. § 734.303 (2004). As a penalty for his violations,

OSC asked that McEntee be removed from his position with the FAA.

The parties agreed to bifurcate the proceedings into liability and penalty

determinations. In its Order Granting Summary Judgment, the Board determined that

party politics had entered the presumptively nonpartisan election for Mayor of

Albuquerque and that McEntee’s activities in that election violated the Hatch Act as

alleged. In a separate Recommended Decision, the Board determined that the

appropriate penalty for McEntee’s violations was that he be suspended from his position

with the FAA for a period of 120 days.

McEntee filed a timely appeal challenging only the Board’s decision that he had

committed violations of the Hatch Act. This court has jurisdiction pursuant to 28 U.S.C.

§ 1295(a)(9).

II. DISCUSSION

The scope of our review in an appeal from a decision of the Board is limited. The

Board's decision must be affirmed unless it was: "(1) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law; (2) obtained without procedures

required by law, rule, or regulation having been followed; or (3) unsupported by

04-3066 7
substantial evidence." 5 U.S.C. § 7703(c) (2000); Briggs v. Merit Sys. Prot. Bd., 331

F.3d 1307, 1311 (Fed. Cir. 2003). McEntee alleges that the Board’s decision is not in

accordance with law because it does not comport with the current provisions of the

Hatch Act. He also alleges that the decision is not supported by substantial evidence.

We review the Board’s determinations of law for correctness without deference to the

Board’s decision. King v. Dep’t of Navy, 130 F.3d 1031, 1033 (Fed. Cir. 1997).

Substantial evidence is "such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion." Consol. Edison Co. v. NLRB, 305 U.S. 197, 229

(1938).

The Board found that McEntee had engaged in two forms of conduct prohibited

by the Hatch Act: 1) running as a candidate for election to a partisan political office in

violation of 5 U.S.C. § 7323(a)(3); and 2) knowingly soliciting and receiving a political

contribution in violation of 5 U.S.C. § 7323(a)(2). The Board grounded its findings for

both violations in its determination that the McEntee campaign introduced partisan

politics to the 2001 Albuquerque Mayoral election, effectively rebutting the presumption

that the race was not an election for partisan political office.

The longstanding policy of the administrative agencies tasked with enforcing the

Hatch Act has been to presume that participation in an election for which state law

provides for a nonpartisan ballot is not a prohibited activity. In re Broering, 1 P.A.R.

778, 779 (CSC 1955); see also Special Counsel v. Mahnke, 54 M.S.P.R. 13 (1992);

Special Counsel v. Seastrunk, 28 M.S.P.R. 51 (1985); Special Counsel v. Yoho, 15

M.S.P.R. 409 (1983). Under the precedent of the MSPB, the presumption that an

election is nonpartisan could be rebutted by evidence showing that partisan politics

04-3066 8
actually entered the campaigns of the candidates. Broering, 1 P.A.R. at 779

(presumption that election was nonpartisan rebutted by evidence that respondent

readily accepted partisan political support, knew that he was being supported by a

partisan political party, and passed out literature indicating that he had the support of a

partisan political party); Mahnke, 54 M.S.P.R. at 13 (presumption of nonpartisanship

was rebutted by appearance of opponent’s party designation on the ballot); Seastrunk,

28 M.S.P.R. at 51 (presumption of nonpartisanship was rebutted because two

candidates opposing respondent appeared as Democrats on the ballot); Yoho, 15

M.S.P.R. at 409 (although Democratic and Republican parties remained neutral as to all

of the candidates, presumption of nonpartisanship was rebutted when two of the

candidates appeared on the ballot with party designations).

In its initial charges against McEntee, the OSC described this process of

rebutting the presumption of nonpartisanship as "transforming" the presumptively

nonpartisan election into a prohibited contest. McEntee has seized on the OSC’s use of

the word "transform" and characterizes the rationale articulated by Broering as a

"transformation theory," whereby an election in which federal employees are

guaranteed the right to participate is changed into a partisan political race. We address

below McEntee’s assertions regarding the rights afforded federal employees under the

Hatch Act, but we note at the outset that "transformation theory" does not accurately

describe the way in which the Hatch Act is enforced. The rationale articulated in

Broering and its progeny does not operate to "transform" a protected activity into a

prohibited activity, but rather it allows for the presumption of nonpartisanship created by

state and local election laws to be rebutted by the actual conduct of an election. Here,

04-3066 9
Albuquerque city ordinances provide that candidates for mayor shall be listed on the

ballot without party or other designation. Accordingly, the Board presumed that the

2001 mayoral election qualified as a nonpartisan election in which McEntee could

participate without violating the Hatch Act. The Board determined that the presumption

of nonpartisanship was rebutted by overwhelming evidence showing that McEntee’s

campaign had injected partisan politics into the race.

McEntee alleges that the Board’s reliance on evidence of the actual conduct of

the election to rebut the presumption of nonpartisanship was improper in light of the

passage of the Hatch Act Reform Amendments of 1993, Pub. L. No. 103-94, 107 Stat.

1001 (the "1993 Amendments"). He also charges that the so-called "transformation

theory" is unconstitutional because it violates the First Amendment. Finally, McEntee

asserts that the Board’s determination that the 2001 Albuquerque mayoral race

constituted a partisan election was not supported by substantial evidence.

A. The Statutory Language

In order to understand the effect of the 1993 Amendments, it is necessary to first

understand the context in which they were adopted. The Hatch Act was initially enacted

in 1939 in response to concerns about the harmful effects of political activities by

government workers. The Act drew on rules promulgated by the Civil Service

Commission that were designed to prevent merit system employees from "using [their]

official authority or influence either to coerce the political action of any person or body or

to interfere with any election." S. Rep. 103-57 at 2, reprinted in 1993 U.S.C.C.A.N.

1802, 1803 (1993); see also United States Civil Serv. Comm’n v. Nat’l Ass’n of Letter

Carriers, 413 U.S. 548, 560 (1973).

04-3066 10
 The pre-1993 Hatch Act broadly limited the ability of federal employees to

engage in certain political activities by prohibiting employees subject to the structure of

the Act from taking "an active part in political management or in political campaigns." 5

U.S.C. § 7324(a)(2) (1988). The term "an active part in political management or in

political campaigns" was defined in the statute as "those acts of political management or

political campaigning which were prohibited on the part of employees in the competitive

service before July 19, 1940, by determinations of the Civil Service Commission under

the rules prescribed by the President." Id.

In the process of upholding the constitutionality of the pre-1993 statute, the

Supreme Court limited its reach to the specific prohibitions set out in the regulations

promulgated by the Civil Service Commission in 1970. Letter Carriers, 413 U.S. at 576.

At the time Letter Carriers was decided and until the passage of the 1993 statutory

amendments, the pertinent regulations provided that:

(a) An employee may not take an active part in political management
or in a political campaign, except as permitted by this subpart.
(b) Activities prohibited by paragraph (a) of this section include but are
not limited to . . . [b]ecoming a partisan candidate for, or
campaigning for, an elective public office.

5 C.F.R. § 733.122 (1970). Thus, the interplay of the statute, regulations, and case law

established a broad prohibition against covered employees playing an active role in

political campaigns, which included a ban on becoming a partisan candidate for public

office.

The primary text of the Act remained in its original form until the passage of the

1993 Amendments. The post-1993 Hatch Act expressly prohibits covered employees

from running "for the nomination or as a candidate for election to a partisan political

04-3066 11
office." 5 U.S.C. § 7323(a)(3). Furthermore, covered employees may not "knowingly

solicit, accept or receive a political contribution from any person," subject to certain

exceptions not applicable here. Id. § 7323(a)(2). The statutory definition of a "political

contribution" includes "any gift subscription, loan advance or deposit of money or

anything of value, made for any political purpose." Id. § 7322(3)(A). The relevant

regulations define a "political purpose" as "an objective of promoting or opposing a

political party, candidate for partisan political office, or partisan political group." 5 C.F.R.

§ 734.101 (2004).

The key language in the current statutory structure, as applied by the Board, is

the term "partisan political office." The statute defines a "partisan political office" as

"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." 5 U.S.C. § 7322(2) (2000).3

In addition to changing the language and substance of the prohibition effected by

the Act, the 1993 Amendments added a policy statement to the statute. Section 7321 of

the current Hatch Act reads: "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." 5 U.S.C. § 7321 (2000).

The legislative history provides further guidance on the purpose of the 1993

Amendments. The Senate Report issued in conjunction with Senate Bill 185, the bill

3
For ease of reference, in the remainder of the opinion we use the
shorthand term "major political party" in place of the statutory language "a party any of
whose candidates for Presidential elector received votes in the last preceding election
at which Presidential electors were selected."

04-3066 12
introducing the 1993 Amendments, questioned the efficacy of the original Act’s broad

ban on employee partisan political activity and identified two remediable concerns: (1)

"the neutrality requirement . . . inhibits Federal employees from exercising their

constitutional rights;" and (2) the statute and enforcement scheme are vague "resulting

in an inability to ascertain the precise extent of prohibited and protected activities or the

penalties involved." S. Rep. No. 103-57 at 5, reprinted in 1993 U.S.C.C.A.N. at 1806

(1993).

In order to address the concerns identified, the 1993 Amendments relaxed the

prohibitions of the Hatch Act "to provide for Federal civilian employees to participate

voluntarily, as private citizens, in the political processes of the Nation and to protect

such employees and the General citizenry from improper political solicitations." S. Rep.

No. 103-57 at 1, reprinted in 1993 U.S.C.C.A.N. at 1802. As expressly stated in the

Senate Report to Senate Bill 185, the amendments were designed to restore to most

federal employees the right, while off-the-job, to "take an active part in political

management or in political campaigns," while maintaining and strengthening

prohibitions on "political activity" while at work. Id. at 1803. The amendments also

continued "current law prohibitions against running for partisan elective office and

against solicitation of potential contributions from the general public." Id. In responding

to Minority Views issued by opponents to Senate Bill 185, the bill’s sponsor, Senator

John Glenn, reiterated that, contrary to prior attempts to reform the Hatch Act, his bill

did not relax the law prohibiting federal employees from running for partisan elective

office. Id. at 1838. The explicitly identified purpose of Senate Bill 185 and the

statements of the bill’s drafter and chief proponent indicate that the changes wrought by

04-3066 13
the 1993 Amendments were not intended to alter the original Act’s restrictions on the

ability of employees to serve as candidates in partisan elections. See Ernst & Ernst v.

Hochfelder, 425 U.S. 185, 203 (1976) (giving weight to the explanatory statements

made by a spokesman for the drafters of a statute).

B. The Viability of the Rebuttable Presumption Analysis

McEntee argues that the application of a rebuttable presumption of

nonpartisanship is no longer a viable construct because: (1) the definition of "partisan

political office" excludes elections designated as nonpartisan under state or local law;

and (2) the policy statement of § 7321 protects the right of federal employees to

participate in such elections. McEntee’s interpretation of the statute is without merit.

McEntee asserts that elections designated as nonpartisan under state or local

law cannot meet the statutory requirements to be considered a "partisan political office."

To reach this conclusion, McEntee reads the language of § 7322(2) as requiring that a

candidate be elected or nominated to represent a major political party. Under this

theory, because elections designated as nonpartisan do not provide a mechanism for

parties to choose or identify their representative candidates, participation in such

elections cannot constitute running for a "partisan political office."

We reject McEntee’s reading of § 7322(2) on the ground that it is contrary to the

plain meaning of the statutory language. Statutory interpretation begins with the

language of the statute, the plain meaning of which we derive from its text and its

structure. Norfolk Dredging Co., Inc. v. United States, 375 F.3d 1106, 1110 (Fed. Cir.

2004). Here, McEntee presumes that the term "nominated or elected" modifies the

phrase "as representing a party" thereby creating a requirement that the candidates

04-3066 14
represent a party by nomination or election. A careful reading of the statute, however,

reveals that the phrase "as representing a party" actually modifies the term "nominated

or elected" and the entire clause "any candidate is nominated or elected as representing

a party" identifies the office sought. Accordingly, the definition of a "partisan political

office" expressly encompasses offices for which candidates are either nominated as

representing a party or elected as representing a party.

While the term "nominated . . . as representing" a party suggests a formal party

endorsement or selection process, the term "elected as representing a party" is broader

and imposes no such implication. In order to give meaning to all the words of the

statute, as we must, we do not read the term "elected as representing a party" to require

formal endorsement or selection by a major political party. TRW Inc. v. Andrews, 534

U.S. 19, 31 (2001) (stating that cardinal principles of statutory construction require that

statutes be construed so that "no clause, sentence or word shall be superfluous, void, or

insignificant" (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001))); United States v.

Menasche, 348 U.S. 528, 538-39 (1955) ("It is our duty to give effect if possible, to

every clause and word of a statute." (internal cites omitted)); Shoshone Indian Tribe of

the Wind River Reservation v. United States, 364 F.3d 1339, 1349 (Fed. Cir. 2004)

("Accepted rules of statutory construction suggest that we should attribute meaning to

all of the words in the Act if possible."); James v. Santella, 328 F.3d 1374, 1381 (Fed.

Cir. 2003) (stating that as a general rule a statute should not be construed in such a

way that renders one of its parts inoperative). Thus, the terms of § 7322(2) do not

preclude an election designated as nonpartisan under state law from constituting an

election for a "partisan political office."

04-3066 15
 McEntee also asserts that the demise of the rebuttability of the presumption of

nonpartisanship is mandated by § 7321. He reads the policy statement articulated in

that section to prevent OSC from challenging the participation of federal employees in

elections designated as nonpartisan under state or local law. He also contends that the

section requires that all activities encompassed by the prohibitions of the Hatch Act be

directly addressed in the statute thereby disallowing the application of the judicially-

constructed rebuttable presumption analysis.

McEntee’s interpretation of § 7321 does not accurately reflect the changes in the

statutory scheme effected by the 1993 Amendments. Section 7321 states 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." 5 U.S.C. § 7321

(2000). The 1993 addition of § 7321 simply raised what had previously been the

articulated policy of the Office of Personnel Management to the level of statute.

Prior to the 1993 Amendments, the regulations implementing the Hatch Act

included the statement that "[a]ll employees are free to engage in political activity to the

widest extent consistent with the restrictions imposed by law and this subpart." 5 C.F.R.

§ 733.111(a) (1992). The regulations went on to identify the activities expressly

permitted by the Act to include taking "an active part, as a candidate or in support of a

candidate, in a nonpartisan election." Id. § 733.111(a)(10). According to the pre-

amendment statutory definition of "nonpartisan political activity," employees were not

prohibited from engaging in "political activity in connection with . . . an election and the

preceding campaign if none of the candidates is to be nominated or elected at that

04-3066 16
election as representing a party any of whose candidates for presidential elector

received votes in the last preceding election at which presidential electors were

selected." 5 U.S.C. § 7326(1) (1988). It is worth noting that the earlier definition of

"nonpartisan political activity," where no candidate could be nominated or elected as

representing a major political party, is simply the converse of the definition in the current

statute for "partisan political office," which includes elections where any candidate is

nominated or elected as representing a major political party. Furthermore, the current

regulations continue to define "nonpartisan election" in the exact terms used in the pre-

1993 statute. See 5 C.F.R. § 734.101 (2004).

Placing the 1993 Amendments in their full legislative context, it is clear that,

contrary to McEntee’s assertion, the incorporation of § 7321 did not enhance the

protection afforded an employee’s right to participate in a presumptively nonpartisan

election. Such rights were expressly protected under the pre-1993 regulatory scheme

and the policy language of § 7321 simply reinforces that employees retain all political

rights not expressly prohibited.

McEntee also argues that the phrase "not expressly prohibited by law" found in §

7321 requires that all limitations imposed on employees’ political rights be promulgated

in the statute. In support of this theory, McEntee attempts to rely on the legislative

history of the amended statute and the regulations implementing it.

The Senate Report issued in conjunction with the reporting of Senate Bill 185

included additional views from four senators opposing the bill as written. As cited by

McEntee, those senators stated that they read the language of what is now § 7321 "to

state clearly and unequivocally that without an express prohibition stated in statute, the

04-3066 17
President or agency will lack the necessary authority to provide for additional

prohibitions beyond S. 185." S. Rep. No. 103-57 at 41, reprinted in 1993 U.S.C.C.A.N.

at 1842. This statement was specifically made not out of concern over the scope of the

activities prohibited, but in an effort to exempt certain "sensitive" employees, such as

"career senior executive service employees, federal supervisors and managers, and

employees of comparable rank and status, from coverage under the bill." Id. The

amendment that was proposed to address the concerns expressed in the additional

views was disapproved by voice vote. S. Rep. No. 103-57 at 9, reprinted in 1993

U.S.C.C.A.N. at 1810. McEntee provides no rationale as to why we should give weight

to an interpretation of the statute offered by senators opposing the bill adopted. As the

Supreme Court has stated, "the fears and doubts of the opposition are no authoritative

guide to the construction of legislation," Schwegmann Bros. v. Calvert Distillers Corp.,

341 U.S. 384, 394 (1951), because often "[i]n their zeal to defeat a bill, they

understandably tend to overstate its reach." NLRB v. Fruit Packers, 377 U.S. 58, 66

(1964); see also Bryan v. United States, 524 U.S. 184, 196 (1998). The relevance of

the interpretation cited here is further diminished by the recognition that it was offered in

response to concerns other than those identified by McEntee and the amendment

proposed to address those concerns was rejected. We do not find the cited legislative

history persuasive authority for interpreting § 7321 to prohibit application of the

rebuttable presumption analysis.

McEntee’s reliance on 5 C.F.R. § 734.104 is equally unavailing. The cited

regulation provides that "[n]o further proscriptions or restrictions may be imposed upon

employees covered under this regulation" with certain exceptions not relevant here.

04-3066 18
5 C.F.R. § 734.104. The rebuttable presumption analysis, however, does not impose

an additional proscription or restriction on federal employees. To the contrary, it simply

permits enforcing officials to consider the actual conduct of a presumptively nonpartisan

election in determining whether any federal employee candidate stood for election in

that race "as representing a party."4 Such an inquiry does not conflict with the

provisions of 5 C.F.R. § 734.104, which restricts the government’s ability to make illegal

activities deemed lawful under the statute and regulations, but does not limit the

government’s inquiry into determining what constitutes an unlawful activity.

McEntee correctly asserts that the 1993 Amendments relaxed the scope of

certain Hatch Act prohibitions and that the current implementing regulations expressly

permit an employee to "[r]un as a candidate in a nonpartisan election." Id. § 734.207(b).

McEntee’s argument founders, however, when he attempts to rely on these precepts to

insulate from scrutiny his conduct as a candidate for public office. Reduced to its base,

McEntee’s challenge to the post-1993 vitality of the rebuttable presumption analysis is

nothing more than an attempt to limit the definition of "nonpartisan election" to the

standards provided by state and local election law. We have previously rejected such

invitations to define federal statutory and regulatory terms solely by reference to state

law. Campbell v. Merit Sys. Prot. Bd., 27 F.3d 1560 (Fed. Cir. 1994).

In Campbell, a case decided under the pre-1993 Hatch Act, we interpreted the

regulations that permit certain employees to participate in partisan elections as

"independent candidates," provided that they reside in municipalities with a majority of

4
Nothing in this opinion should be read as addressing the question of
whether the conduct of another candidate in a nonpartisan election could affect the
entitlement of a federal employee candidate to participate. That question is not before
us.

04-3066 19
the voters employed by the federal government. Id. at 1568. In that case, we wisely

refused to limit the definition of an "independent candidate" to the strictures of state law,

primarily out of concern that "reducing the factual inquiry into ‘independence’ to an

examination of a person’s registration card and ballot billing would exalt form over

substance and permit circumvention of the substantive congressional policy of keeping

partisan politics out of the routine administration of the laws and the running of the

bureaucracy." Id. Accordingly, we resolved Campbell by considering the facts

presented to determine whether the employee’s conduct in associating himself with the

Democratic Party comported with the common meaning of the word "independent." Id.

at 1568-69.

McEntee’s invitation to define the regulatory term "nonpartisan election" by

reference solely to local election laws presents the identical risk of exalting form over

substance that we identified and avoided in Campbell. We follow Campbell’s well-

reasoned approach in rejecting that invitation in favor of a consideration of all the

relevant facts at hand.5 The First Circuit reached the same conclusion when presented

with a similar invitation to define the limits of the Hatch Act. Magill v. Lynch, 560 F.2d

22, 29 (1st. Cir. 1977) (holding that "the government may constitutionally restrict its

employees’ participation in nominally nonpartisan elections if political parties play a

large role in the campaigns"). Accordingly, we affirm the Board’s application of the

rebuttable presumption analysis to determine whether McEntee’s participation in a

presumptively nonpartisan election constituted a violation of the Hatch Act.

5
Although Campbell interpreted the statutory scheme of the pre-1993
Hatch Act, the merit of its reasoning is not diminished by subsequent changes in the
statutory language.

04-3066 20
 C. The Constitutionality of the Hatch Act as Amended

McEntee argues that even if the rebuttable presumption analysis is not precluded

by the terms of the current Hatch Act, its application violates the First Amendment. His

constitutional arguments are premised on the concept that the analysis makes unlawful

activities which are otherwise legal and therefore protected under the Hatch Act.

Specifically, McEntee believes that the rebuttable presumption analysis unjustifiably

burdens employees’ constitutional rights to engage in political speech and that it is void

for vagueness.6

As discussed above, McEntee’s understanding of the effect of the analysis he

refers to as the "transformation theory" is inaccurate. It is not a transformation as

posited by McEntee that occurs, but rather a rebuttable presumption that is created.

The rebuttable presumption analysis does not impose burdens on the political rights of

employees beyond those provided for in the statute. Accordingly, McEntee’s

constitutional challenges are properly directed at the Hatch Act as amended.

Placed in the proper context, McEntee’s constitutional arguments fail to

acknowledge the clear precedent of the Supreme Court. The Court twice upheld the

constitutionality of the pre-1993 Act against charges that it was vague, overbroad and

placed an excessive burden on the free speech rights of federal employees. Letter

Carriers, 413 U.S. at 556; United Pub. Workers of Am. v. Mitchell, 330 U.S. 75, 93

(1947). Despite prior case law conclusively determining that the sweeping prohibitions

of the pre-1993 Hatch Act did not excessively burden the protected rights of federal

6
McEntee also asserts that the statute is overbroad, but his argument
supporting that claim is indistinguishable from his assertion that the statute is void for
vagueness. Accordingly, there is no need for us to separately address the overbreadth
claim.

04-3066 21
employees, McEntee attempts to argue that the more limited restrictions of the current

statute impermissibly upset the balance of interests previously approved. McEntee’s

efforts are undermined by dicta from Letter Carriers in which the Court stated that the

government has the power to prevent employees from engaging in precisely the

activities with which McEntee is charged, namely "actively participating in fund-raising

activities for a partisan candidate or political party" and "becoming a partisan candidate

for, or campaigning for, an elective public office." Letter Carriers, 413 U.S. at 556. As

we stated in our most recent prior case involving the Hatch Act, "precedent clearly

precludes" an attack on the Act as an improper restraint on government employee

speech.7 Briggs, 331 F.3d at 1315.

McEntee asserts that while the Hatch Act itself may be constitutional, the

application of the rebuttable presumption analysis is not because it blurs the dividing

line between permitted and prohibited activities. This vagueness argument again fails

to recognize that it is the statute, not the analysis, that creates this distinction. The

appropriate inquiry, then, is not into the vagueness of the rebuttable presumption

analysis, but rather whether the amended statute and its implementing regulations are

sufficiently definite so as to give "fair warning . . . in language that the common world

7
The recent Supreme Court decision of Republican Party of Minnesota v.
White, 536 U.S. 765 (2002), does not change that analysis. White involved a state
canon of judicial conduct that prohibited candidates for judicial office from announcing
their views on disputed legal or political issues. Id. at 768. Because the canon
prohibited speech based on its content and burdened a core category of protected
speech, the Court applied strict scrutiny to assess its constitutionality. Id. at 774. The
Court struck down the canon on the ground that it was not narrowly tailored to achieve
the allegedly compelling state interest of ensuring the impartiality of the state judiciary.
Id. at 780. Nothing in White, however, suggests that a statute, such as the Hatch Act,
which is not targeted at restricting protected speech is subject to a heightened degree of
scrutiny.

04-3066 22
will understand, of what the law intends to do if a certain line is passed." United States

v. Lanier, 520 U.S. 259, 265 (1997) (citation omitted). A statute will be found to be void

for vagueness if it "either forbids or requires the doing of an act in terms so vague that

men of common intelligence must necessarily guess at its meaning and differ as to its

application." Id.; see also Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972)

(stating that vague statutes offend the principle that laws must "give the person of

ordinary intelligence a reasonable opportunity to know what is prohibited, so that he

may act accordingly"); Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971) (holding a

statute to be unconstitutionally vague because it subjected First Amendment rights to

"an unascertainable standard"). In applying the void for vagueness doctrine in the First

Amendment context, we have determined that the alleged vagueness must pose a real

and substantial threat to protected expression such that a substantial amount of

legitimate speech will be chilled. Griffin v. Sec’y of Veterans Affairs, 288 F.3d 1309,

1329-30 (Fed. Cir. 2002).

The only speech at issue here is that of federal employees serving as candidates

for elective office.8 McEntee argues that the statute does not clearly indicate that an

employee-candidate’s assertion of affiliation with a major political party could run afoul

of the provisions of the Hatch Act. But the statute does not prohibit the bare speech

with which McEntee is concerned. An employee-candidate is not barred from

identifying his political philosophy, "I stand for the principles of the Republican Party," or

8
The amended Hatch Act no longer restricts off-duty employees from
engaging in other forms of expression connected with partisan political campaigns. See
5 C.F.R. § 734.205 (permitting off-duty employees to: "display pictures, signs, stickers,
badges or buttons associated with political parties;" "initiate and circulate a nominating
petition for a candidate for partisan political office;" "endorse or oppose partisan political
candidates;" and "address a convention . . . or similar gathering of a political party").

04-3066 23
stating his party status, "I am a Republican." The statute and regulations clearly

indicate, however, that federal employees are not to participate as candidates in

elections in which any candidate "represents" a major political party.

Although the term "represents" is not defined by the statute or the regulations, its

ordinarily understood meaning includes more than the formal endorsement process

advocated by McEntee. See Best Power Tech. Sales Corp. v. Austin, 984 F.2d 1172,

1177 (Fed. Cir. 1993) ("It is a basic principle of statutory interpretation . . . that

undefined terms in a statute are deemed to have their ordinarily understood meaning.").

While the definition of "represent" certainly includes "to be an accredited deputy or

substitute for (a number of persons) in a legislative or deliberative assembly," it also

encompasses "to describe as having a specified character or quality; to give out assert

or declare to be of a certain kind" and "to symbolize, to serve as a visible or concrete

embodiment." Oxford English Dictionary 657-58 (2d ed. 1989). Thus, the term

"represent" as used in the Hatch Act refers not only to candidates who have received

the formal endorsement of a major political party, but also to candidates who act in

concert with a major political party. We hold that while an employee-candidate in a

presumptively nonpartisan election may independently assert a party affiliation, once

the candidate and the party act in concert with each other, a representative relationship

may be established sufficient to rebut the presumption of nonpartisanship. Interpreted

in this manner, the amended statute sufficiently puts an employee on notice that, when

serving as a candidate for nonpartisan public office, he is prohibited from engaging in

speech and conduct that indicate he is acting in concert with a major political party.

04-3066 24
 McEntee further complains that the statute does not indicate the level of partisan

speech and conduct required to rebut the presumption that an election deemed to be

nonpartisan under state law was, in fact, a partisan race from which federal employees

are banned. Admittedly, the statute does not give employees an absolute right to

participate in elections deemed to be nonpartisan under state law, but rather it gives

employees the right to participate in elections in which no candidate represents a major

political party. Admittedly the statute identifies no bright line rule for the level of political

speech and conduct, on the part of either the candidate or the party, that is necessary to

establish representation of a major political party. Although the standard for what

constitutes representation of a major political party is certainly flexible, "perfect clarity

and precise guidance have never been required even of regulations that restrict

expressive activity." Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989).

McEntee has not established that the amended Hatch Act fails to "provide persons of

ordinary intelligence a reasonable opportunity to know what is prohibited." Griffin, 288

F.3d at 1330. We do not believe that the statute is unconstitutionally vague.

D. Evidentiary Support for the Board’s Determination

McEntee’s final challenge to the Board’s decision is that it is not supported by

substantial evidence. McEntee bases this claim on the assertion that in order for an

election designated as nonpartisan under state law to be considered a prohibited race,

a candidate must receive a formal endorsement by a national, state, or local body of a

major political party. Because McEntee received no such endorsement, he believes

that the 2001 Albuquerque mayoral race did not constitute an election for a partisan

04-3066 25
political office. The error of this assertion has been fully addressed above and does not

need belaboring.

Although we do not attempt to establish the minimum level of partisan politics

necessary to rebut the presumption that an election designated as nonpartisan under

state and local law is, in fact, a prohibited political race, there is no question that the

record here amply supports the conclusion that the presumption of nonpartisanship

afforded the 2001 Albuquerque Mayoral race was so rebutted. Here, McEntee openly

solicited members of the Republican Party for campaign contributions and made it clear

that he was requesting donations on the basis of party affiliation in order to further the

party’s agenda. He trumpeted his endorsement by the Executive Committee of the

Bernalillo County Republican Party and individual Republican Party figures and

appeared at press conferences with his endorsers.9 Furthermore, leaders of the local

and state Republican Party actively supported McEntee by publicly associating

themselves with his campaign, advocating his election, and helping to raise funds in

support of his candidacy. While we leave open the possibility that less blatant

invocation of party status may not justify rebutting the presumption of nonpartisanship,

there can be no doubt that the combination of McEntee’s conduct as a candidate and

the Republican Party’s acquiescence in that conduct constitutes representing a major

9
McEntee contests the Board’s decision to admit as evidence newspaper
articles describing his campaign as partisan. There is ample evidence in the record
supporting the Board’s determination that the presumption of nonpartisanship was
rebutted without relying on the challenged newspaper articles; therefore we need not
address the merits of McEntee’s objection.

04-3066 26
political party such that the race in which he participated constituted an election for

partisan political office.10 The Board had substantial evidence to support its findings.

III. CONCLUSION

For the foregoing reasons, we affirm the Board’s determination that McEntee

violated the Hatch Act by running as a candidate for election to a partisan political office

and by knowingly soliciting and receiving political contributions.

IV. COSTS

No costs.

AFFIRMED

10
McEntee also asserts that the precise point at which the election was
established as partisan was not clear to him and therefore his fundraising efforts could
not be described as the knowing solicitation or receipt of banned political contributions.
The record does not support this assertion. It shows that he held a fundraising event on
September 14, 2001, two weeks after he was formally notified that the OSC believed
that his activities violated the Hatch Act and one week after the deadline by which he
needed to withdraw his candidacy or resign his federal employment.

04-3066 27