February 23, 2018 The Honorable Henry Kerner Special Counsel Office of Special Counsel 1730 M Street NW Suite 218 Washington, DC 20036-4505 Dear Mr. Kerner: American Oversight respectfully requests that the Office of Special Counsel (“OSC”) immediately open an investigation into whether Michael O’Rielly, Commissioner on the Federal Communications Commission (FCC), violated the Hatch Act during an appearance at the Conservative Political Action Conference today, February 23, 2018. We do not believe this presents a hard question. Appearing in his capacity as a commissioner of the FCC, Commissioner O’Rielly improperly engaged in partisan political activity by expressly advocating for the re-election of Donald Trump and exhorting the crowd to “elect good people to the House [and] the Senate.” Specifically, during the panel discussion, Commissioner O’Reilly delivered the following remarks: I think what we can do is make sure as conservatives that we elect good people to both the House, the Senate, and make sure that President Trump gets re-elected. But there’s another thing you can do. We’re going to have a fight over the Obama internet rules in the next couple months in the U.S. Senate. And that’s going to matter and that vote matters, and so making sure people take the right course on that, really does affect what policies we’re able to keep in place moving forward. So we can certainly use everyone’s help along those lines.1 These remarks, made in Commissioner O’Rielly’s capacity as a commissioner at the FCC, constitute prohibited partisan political activity under the Hatch Act. As you know, the Hatch Act generally prohibits federal officials from engaging in partisan political activity while on duty. Advocating for the election of a candidate in a partisan election is the classic example of such prohibited activity.2 Last year, OSC published guidelines on how federal employees should Video of Commissioner O’Rielly’s remarks is currently available at https://www.youtube.com/watch?v=BZ6H1qxzaDg&feature=youtu.be&t=10m55s. The quote is an informal transcription of this video of his remarks. 2 The Hatch Act explicitly bars executive branch employees from using their “official authority or influence for the purpose of interfering with or affecting the result of an election.” 5 U.S.C. § 7323(a). Under this prohibition, an official may not “us[e] his or her official title while participating in political activity,” 5 C.F.R. § 734.302(b)(1), which is defined as “activity directed 1 1030 15th Street NW, Suite B255, Washington, DC 20005 AmericanOversight.org navigate the fact that President Trump has already begun campaigning for his reelection in 2020. OSC was clear: the Hatch Act prohibits them, “while on duty or in the workplace, from expressly advocating for or against [Donald Trump’s] reelection in 2020.” Office of Special Counsel, Guidance on President Trump’s Status as a Candidate and Its Effect on Activity in the Federal Workplace, Feb. 7, 2017 (https://osc.gov/Resources/2017-President-Candidate-Guidance.pdf). Moreover, viewed in context, there is little doubt that Commissioner O’Rielly’s exhortation to “elect good people” to the House and the Senate also constitutes improper partisan political activity, insofar as it can only be understood to advocate for the election of Republican candidates to the House of Representatives and the Senate. Nor can there be any doubt that Commissioner O’Rielly was appearing in his capacity as a federal official. In the conference agenda, he is introduced as “Commissioner Mike O’Rielly, Federal Communications Commission.” See Exhibit A (description of the panel entitled “To Infinity and Beyond: How the FCC is Paving the Way for Innovation”). His introduction on stage followed the introduction of Ajit Pai as the Chairman of the FCC, and Commissioner O’Rielly was introduced as one of the two other “Republican commissioners.” The panel itself began with a discussion of the FCC’s responsibilities and authorities, and the topic of the panel makes clear that the panel is intended to expressly address the FCC’s role. Commissioner O’Rielly clearly violated the Hatch Act. We hope you will fully investigate this conduct — although we do not believe it to present a difficult question. We further urge you to impose or recommend a sanction that takes account of this administration’s repeated transgressions of the Hatch Act, as well as Commissioner O’Rielly’s clear violation of black-andwhite guidance from OSC. American Oversight is a non-partisan organization dedicated to accountability and ethics in government. No doubt we share that commitment with you. Consistent with OSC’s authority to investigate allegations of wrongdoing by government actors, including “[v]iolation[s] of a law, rule, or regulation,” “gross wastes of funds,” and “abuse[s] of authority,” as well as enforcement of the Hatch Act,3 we urge you to investigate Commissioner O’Rielly’s partisan political activity. Respectfully submitted, Austin R. Evers Executive Director American Oversight toward the success or failure of a political party, candidate for partisan political office, or partisan political group,” 5 C.F.R. § 734.101. 3 Disclosure of Wrongdoing, OFFICE OF SPECIAL COUNSEL, https://osc.gov/Pages/DOW.aspx (last visited July 24, 2017). 2 Exhibit A Friday, February 23 Registration: 6:00 AM - 6:00 PM Shuttle Busses: 7:00 AM - 11:00 PM General Session: 8:30 AM - 4:00 PM CPAC Hub: 12:00 PM - 6:00 PM Activism Boot Camp: 11:00 AM - 3:00 PM Breakout Sessions: 4:00 PM - 6:00 PM Ronald Reagan Dinner: 7:00 PM - 9:30 PM GENERAL SESSION - POTOMAC BALLROOM 5:45 AM Doors Open: Premium Attendees 6:00 AM Doors Open: General Attendees 8:25 AM Welcome 8:30 AM The Pledge of Allegiance/Prayer 8:35 AM A Conversation with Secretary of Energy Rick Perry and The Honorable Ryan Zinke Interviewed by Rep. Bob Beauprez, former Congressman (CO) 8:55 AM Laura Ingraham, Fox News 9:10 AM Dale Bellis, Liberty HealthShare 9:25 AM Conscience of the Conservatives: Leading the Republican Wing of the Republican Party Moderator: Sarah Westwood, Washington Examiner Rep. Jim Jordan (OH - 4) Rep. Mark Meadows (NC-11) 10:05 AM President Donald J. Trump 11:15 AM We Refuse to Be Suckers: The New Trump Doctrine - a set of 4 curated speeches Emcee: Sander Gerber, Hudson Bay Capital ADDITIONAL PROGRAMMING Sponsored Event: The Washington Times Lounge hosts #WashTimesFTW Photo Contest Sponsored Event: Career Counseling, Leadership Institute Activism Boot Camp, Engage to Win Ending Taxpayer Funded Terrorism Stuart Force Making America Trade Again Bill Walton, Rappahannock Ventures A Tale of Two (Sanctuary) Cities Attorney General Leslie Rutledge (AR) Law and Border Sheriff David Clarke 11:55 AM A Conversation with Kellyanne Conway and Linda McMahon The Honorable Kellyanne Conway, The White House The Honorable Linda McMahon, U.S. Small Business Administration Interviewed by Chris Dolan, The Washington Times 12:15 PM #Activism Brad Blakeman, 1600 Group Charlie Kirk, Turning Point USA 12:30 PM American Pai: The Courageous Chairman of the FCC Chairman Ajit Pai, Federal Communications Commission 12:40 PM To Infinity and Beyond: How the FCC is Paving the Way for Innovation Moderator: Michelle Connolly, Duke University Chairman Ajit Pai, Federal Communications Commission Commissioner Brendon Carr, Federal Communications Commission Commissioner Mike O'Rielly, Federal Communications Commission Book Signing: James O'Keefe