FCC Commissioner Michael O’Rielly violated a federal ethics law when he publicly called for the re-election of President Trump, the US Office of Special Counsel (OSC) said yesterday.
O’Rielly has called his public statement an “off-the-cuff” remark, but the OSC said it was a violation of the Hatch Act, a federal law that limits the political activities of federal employees “to protect federal employees from political coercion in the workplace.
“Regardless of his explanation, Commissioner O’Rielly advocated for the reelection of President Trump in his official capacity as FCC Commissioner,” the OSC wrote in a letter to American Oversight, the advocacy group that filed a complaint against O’Rielly. “Therefore, he violated the Hatch Act’s prohibition against using his official authority or influence to affect an election.”
The OSC said it issued a warning letter to O’Rielly. He wasn’t punished but could be if he violates the law again. As an FCC commissioner, “O’Rielly is covered by the Hatch Act and prohibited from using his official authority or influence for the purpose of interfering with or affecting the result of an election,” the letter said.
“OSC has advised Commissioner O’Rielly that if in the future he engages in prohibited political activity while employed in a position covered by the Hatch Act, we will consider such activity to be a willful and knowing violation of the law, which could result in further action pursuant to 5 U.S.C. § 1215,” the letter to American Oversight said.
Violations of the Hatch Act can be penalized with “removal from federal service, reduction in grade, debarment from federal service for a period not to exceed 5 years, suspension, letter of reprimand, or a civil penalty not to exceed $1,000,” the OSC says.
O’Rielly’s violation occurred when he participated in a panel discussion with fellow FCC Republicans Ajit Pai and Brendan Carr at the Conservative Political Action Conference (CPAC) on February 23. O’Rielly was asked how conservatives can prevent the “regulatory ping-pong” that happens at the FCC when the balance of power shifts between Democrats and Republicans. “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,” O’Rielly responded.
In addition to calling for Trump’s re-election, O’Rielly said that the US Senate can ensure that the FCC’s decision to repeal net neutrality rules remains in place. O’Rielly referred to the FCC’s 2015 net neutrality decision as the “Obama Internet rules.”
“I take their warning letter seriously”
When the complaint was filed, O’Rielly denied that he was trying to advocate for Trump’s re-election. “He tried to respond in a factual way without engaging in advocacy,” an O’Rielly spokesperson told Ars at the time.
O’Rielly said yesterday that he takes the warning letter seriously.
“I appreciate that OSC recognized that the statement in question was part of an off-the-cuff, unrehearsed response to an impromptu question, and that they found this resolution to be the appropriate consequence,” O’Rielly said in a statement provided to Ars. “While I am disappointed and disagree that my offhand remark was determined to be a violation, I take their warning letter seriously.”
The OSC letter to American Oversight further explained how it concluded that O’Rielly violated the Hatch Act:
Despite his words, Commissioner O’Rielly explained to OSC that he was not advocating President Trump’s reelection but was attempting to answer the question asked, which he understood to be about preventing the next Administration from reversing the FCC’s net neutrality decision. Commissioner O’Rielly explained that his “answer was meant to relay the point that the only way to retain that current outcome was to maintain the current leaders in government. In other words, retaining the current Administration is the only sure way to prevent regulatory ping-ponging.” But Commissioner O’Rielly did in fact have an answer to the moderator’s question that was not partisan—legislative action by the Senate—which he expressed only after suggesting the solution was to “make sure that President Trump gets reelected.”
Trump administration ethics follies
O’Rielly’s Hatch Act violation wasn’t the only controversy involving an FCC Republican at CPAC. The National Rifle Association (NRA) gave its Charlton Heston Courage Under Fire Award to Pai, the FCC chairman, for “saving the Internet” by repealing net neutrality rules.
The NRA award was described as a “Kentucky handmade long gun.” Pai thanked NRA board member Carolyn Meadows for the award during the ceremony and did not decline the honor at the time. But he later told the NRA that he would have to decline the award based on advice from “the FCC’s career ethics attorneys.”