The United States Supreme Court has addressed the constitutionality of the Hatch Act’s restrictions on federal employees’ political activities, and has concluded that the Act’s prohibitions are constitutional. In Molina-Crespo v. United States MSPB, 547 F.3d 651, 657 (6th Cir. 2008) the Court held that “there is no fundamental right to be a candidate for political office and a public employee may be terminated because of the fact of that employee’s candidacy.” Moreover, if a statutory classification “neither proceeds along suspect lines nor infringes fundamental constitutional rights,” the classification “must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. Further, the government “may make reasonable classifications . . . provided the classification is not unreasonable, arbitrary or capricious.” Since the right of candidacy is not a fundamental right, the Act does not invade fundamental rights. Further, the Hatch Act does not create a suspect classification, such as a classification based on race, gender, or national origin. Moreover, in United States Civ. Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548 (U.S. 1973) the Court held that the right to associate and the right to participate in political activities is not absolute. Further, the management, financing and conduct of political campaign are not free from governmental regulation.
In Briggs v. MSPB, 331 F.3d 1307 (Fed. Cir. 2003), the court held that the Hatch Act’s prohibition against running for public office does not impinge upon a fundamental right to free speech. The freedom of speech enjoyed by a government employee is not as extensive as that enjoyed by a non-employee because the state has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizens in general. One of those interests is the establishment and maintenance of a separation between political activity, on one hand, and the performance of government functions by the government workforce, on the other. The United States Supreme Court has set forth a balancing test between two competing factors: the problem in any case is to arrive at a balance between the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees. The Court has refused to lay down a bright line rule, opting instead for the flexible balancing test.