Vital Law – HOUSE NEWS—Rep. Garcia expresses disappointment after the U.S. Office of Special Counsel declines discipline over agencies’ partisan shutdown messaging

Going forward, OSC said it will examine the totality of circumstances surrounding a communication, including whether it serves a legitimate, contemporaneous governmental purpose, its timing relative to elections, its tone, and the scale and context of its dissemination.

U.S. Rep. Robert Garcia, Ranking Member of the House Committee on Oversight and Government Reform, expressed disappointment late last week following the response offered by the U.S. Office of Special Council (OSC), nearly one year after the fact, to allegations of repeated Hatch Act violations stemming from posts on federal agency websites blaming Democrats for the 2025 federal government shutdown, both from the committee and elsewhere.

OSC determined that further investigation or disciplinary action was not warranted on the complaints it received.

OSC’s response. In its assessment and advisory, OSC said it received more than 1,000 complaints alleging that employees at 37 federal agencies and the White House improperly used government resources to blame Democrats for the October to November 2025 lapse in appropriations. The complaints focused on official website banners, press releases, emails, social media posts, newsletters, out-of-office messages, and other communications that attributed the shutdown to Democrats or “Democrat-led” actors.

Reliance on 2024 advisory opinion. Although the watchdog concluded that some of the communications raised significant Hatch Act concerns, it declined to pursue disciplinary action, finding that agencies had relied on a September 2024 OSC advisory opinion that many interpreted as permitting references to political parties in official communications discussing policy disputes.

According to OSC, that 2024 advisory provided one of the most detailed examinations in recent years of how the Hatch Act applies to official government messaging and highlights the tension between informing the public about government operations and using government resources in ways that could influence partisan political outcomes.

OMB’s directive. The complaints received by OSC stemmed from communications issued during the 2025 federal government shutdown, after Congress failed to enact appropriations legislation for fiscal year 2026. Before the funding lapse, the Office of Management and Budget directed agencies to distribute a message to employees stating that President Donald Trump supported a continuing resolution and that Democrats were blocking it in the Senate.

Consistent message. Once the shutdown began, agencies and White House officials issued a wide range of public statements criticizing Democrats. OSC cited examples including website banners declaring that “Democrats have shut down the government,” press releases blaming Democratic lawmakers for service disruptions, social media posts accusing Democrats of prioritizing a “radical agenda,” and public communications describing Democratic policy demands as “insane.”

The White House also posted shutdown-related content that included a “shutdown clock,” social media messages criticizing Democrats, a voicemail message on the White House comment line, and a satirical online profile targeting congressional Democrats. OSC said the messaging varied in language but conveyed a consistent “message,” i.e., “they attributed blame for the 2025 government shutdown to the Democratic Party.”

Defense offered by agencies. In reviewing the complaints, OSC found that agencies largely defended their communications on two grounds. Some argued that the statements were permissible under the agency’s 2024 advisory because they discussed a contemporaneous policy dispute and did not reference elections, voting, or candidates. Others said they merely forwarded language supplied by OMB.

“Reasonable” basis. OSC ultimately concluded that agencies had a “reasonable” basis for believing their communications complied with the Hatch Act because of ambiguity in the 2024 advisory and because federal shutdown furloughs left OSC unable to provide contemporaneous guidance. The agency said many employees interpreted its prior advice to mean that references to political parties were permissible so long as they appeared in discussions of legislation or government policy and avoided explicit electoral advocacy.

The office acknowledged that this interpretation was not what it had intended but said it was understandable under the circumstances. OSC also noted that federal employees who act in conformity with OSC guidance generally receive a form of “safe harbor” protection, making disciplinary action inappropriate where reliance on agency advice was reasonable.

Even so, the OSC’s new advisory makes clear that references to political parties in official communications are not automatically protected from Hatch Act scrutiny. Going forward, it said it will examine the totality of circumstances surrounding a communication, including whether it serves a legitimate, contemporaneous governmental purpose, its timing relative to elections, its tone, and the scale and context of its dissemination.

Distinctions. The office drew a distinction between neutrally framed references that are incidental to explaining a legislative dispute or government operation and messages that use inflammatory language to attack a political party. References that are temporally distant from elections, tied to genuine operational concerns, and communicated in a measured tone are less likely to constitute political activity, OSC said.

By contrast, communications that gratuitously criticize a political party, employ derogatory language, or are broadly disseminated to the public may be viewed as efforts to influence future elections and therefore raise Hatch Act concerns. OSC pointed specifically to examples accusing Democrats of withholding services from Americans or jeopardizing national security, as well as the White House’s satirical “mysafespace” content, as communications that could weigh in favor of finding a violation.

It identified, for example, banners placed on agency websites reading, “Senate Democrats are withholding services to the American people in exchange for healthcare for illegals, gender mutilation, and other unknown ‘leverage’ points,” and “By shutting down the government, Congressional Democrats are jeopardizing America’s national security and the safety of our fellow citizens.”

No determinations regarding particular communications. Still, OSC stopped short of determining whether any particular communication violated the law. The agency said further investigation would consume limited resources without changing its conclusion that discipline was unwarranted because of agencies’ reliance on the 2024 guidance.

Moving forward. Ultimately, while OSC acknowledged that some shutdown-related communications raised potential Hatch Act concerns, it concluded that agencies acted under a reasonable interpretation of the office's 2024 guidance and should not face discipline. Instead, it focused on clarifying the legal boundaries for future government communications, outlining the factors it would consider when official messages reference political parties, and encouraging agencies to seek advisory guidance in advance. It emphasized that government resources must not be used to advance partisan political objectives and that future communications naming political parties will be evaluated under the clarified framework outlined in the new advisory.

Garcia’s response. “The government works for the American people, period, not to weaponize agencies for partisan propaganda campaigns. OSC’s response is not satisfactory and the Committee will continue to perform vigilant oversight over OSC, push for answers, and ensure the Hatch Act is followed and enforced,” said Garcia.