State Department

Pompeo’s Right About One Thing: Diplomats Deserve First Amendment Rights

By Scott R. Anderson
Friday, September 4, 2020, 8:01 AM

Last week, Secretary of State Mike Pompeo kicked off a firestorm of controversy by giving a speech at the Republican National Convention, making him the first sitting secretary of state to engage in such an unmistakably partisan political act in recent memory. Some officials have claimed that, because Pompeo appeared in his personal capacity and at no cost to the State Department, he did not violate relevant ethics laws. But the message Pompeo delivered was prerecorded while he was on an official trip in Jerusalem, in seeming contravention of long-standing State Department policies that severely limit the political activities that U.S. citizen employees and their families can engage in while overseas—a policy that Pompeo himself had reiterated in a department-wide message just weeks earlier.

Pompeo’s actions are undeniably hypocritical, and his willingness to mix his official duties with partisan politics is without a doubt alarming. But if there is a silver lining to this story, it’s that he’s unwittingly brought attention to the problematic restrictions that the State Department puts on the political activities of its overseas personnel. However well intentioned, these restrictions are at best overbroad and at worst unconstitutional, as they infringe on an important set of political rights protected by the First Amendment. Diplomats who spend much of their careers overseas deserve to be able to engage in political activities as much as any other government employee. It’s time for the department to recognize this and change its policies accordingly.

The policy at issue has been on the books since 2003, though it reflects norms that have been in operation for much longer. In its current form, the policy categorically prohibits both U.S. citizen employees and their family members who are assigned overseas from “engag[ing] in partisan political activities abroad, other than authorized activities pertaining to U.S. elections”—a category largely limited to nonpartisan voter registration drives. As a December 2019 legal memorandum secured by congressional investigators makes clear, this means that neither overseas employees nor their family members can attend political events and meetings or so much as display a pin or sign supporting their preferred candidate, even when at home and in their off hours. When it comes to partisan elections, overseas department employees and their families may donate money and vote, but that’s about it—everything else is prohibited. (A separate policy that Pompeo also ignored puts similar restrictions on the speech of Senate-confirmed State Department political appointees but doesn’t raise comparable concerns.)

The State Department’s policy toward overseas employees and their families goes well beyond the limits usually imposed on federal employees’ political speech. The federal Hatch Act—which also applies to State Department personnel—only prohibits federal employees from running for partisan office or using any government resources in relation to partisan political activity. Some federal employees—including many who work on national security matters—are “further restricted” under the law, meaning that they are also prohibited from volunteering for or coordinating with any partisan political campaigns or organizations. But even these employees can still attend political events and express their political views in their private time—and their family members aren’t subject to any restrictions whatsoever. Members of the armed forces aren’t covered by the Hatch Act, but a separate policy makes them subject to the same basic restrictions as other federal employees. The State Department stands alone in imposing such draconian restrictions on its employees.

And these restrictions come with real costs, as I’ve witnessed firsthand. During the 2012 presidential election cycle, I was the legal adviser for the U.S. Embassy in Baghdad, Iraq, where part of my job was to remind my colleagues about the limits that department policies put on their political activities. Many had strong feelings about the election and wanted to find ways to express their views and engage in the political process. A good number were understandably disappointed and even angered to find out that State Department policies basically require that they not do so while overseas. After all, we were the ones living and working on the front lines of American foreign policy—the idea that we would have less say in who guides that policy than those back at home seemed fundamentally unfair.

More than that, it may also be unconstitutional—something that should give department officials serious pause. The Supreme Court has made clear that Congress and the executive branch can impose substantial restrictions on employees’ political activities in order to promote a fair and effective civil service (or, presumably, foreign service), but this authority is far from absolute. Federal employees still have First Amendment rights to engage in political speech and activities, meaning that the government’s interest in “promoting the efficiency of the public services it performs through its employees” has to be balanced against the “interests of the [employee], as a citizen, in commenting upon matters of public concern[.]” The department may find it hard to argue that its current policies strike such a balance, given that Congress has adopted a less restrictive stance even for federal employees working in the most sensitive of positions elsewhere in government. Nor is it clear what legal authority the State Department has to impose equal restrictions on the constitutionally protected political speech of department employees’ family members, who do not even work for or represent the U.S. government. And the fact that many professional diplomats spend most of their careers overseas means that the current policy can result in lost decades of political participation for State Department employees and their families—a deprivation that the courts will take seriously, even if the department does not.

This does not, of course, mean that the State Department should impose no restrictions whatsoever. As Pompeo’s own department-wide message ably described, “[t]he Department works to advance the national interest abroad on behalf of all Americans in a non-partisan fashion[,]” and restrictions on the political activities of overseas employees can help “to avoid any confusion or misperception in this regard[.]” This is why individuals representing the United States abroad need to be exceptionally diligent about keeping a sharp divide between their political views and their official duties—a lesson that Pompeo himself appears to have lost sight of this past week.

But the Hatch Act does this quite effectively for the rest of the federal government, including for those “further restricted” employees who work on foreign relations and national security at other agencies. So why should overseas State Department employees and their family members be subject to restrictions that are so much more onerous? There’s no basis for believing that allowing overseas diplomats and their families to attend political events and express political views in their private time will be any more damaging to U.S. foreign relations than when these other employees do the same. And the fact that American diplomats can hold divergent political views in their private lives yet still work together to advance the national interest is a strength of American democracy that should be celebrated, not hidden behind a sanitized, apolitical veneer.

Fortunately, the department’s policies are not written in stone. Pompeo has the authority to change them, as will his successor. Judging from his behavior this past week, Pompeo seems to have decided that the rule as it currently stands is too onerous to apply to him. Now he need only extend the same courtesy to the thousands of diplomats working beneath him.

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