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By Ben Penn
Aug. 11 — Labor Secretary Thomas Perez will be pulled in different directions through November, as he puts the final touches on Labor Department business while stumping for Hillary Clinton.
Perez's tenure at the DOL has been defined by a busy travel schedule and speeches touting worker-friendly policies. The Clinton campaign is now leveraging his talents as it tries to capture the White House.
Perez was reportedly on Clinton’s short list of running mates before she tapped Sen. Tim Kaine (D-Va.) and will now head to swing states to advocate for her presidency.
The labor secretary's rising status in the Democratic Party creates a challenge: Perez must still find time to oversee the DOL without violating the federal law that limits the political activities of government employees.
The Hatch Act prohibits federal employees from engaging in political activities during working hours. The ban is less stringent for presidentially appointed, Senate-confirmed officials, including cabinet members.
Other agency employees can engage in politics only outside of the office and only after work on weekdays or on weekends. Cabinet members are permitted to support a candidate during the day and on federal property, provided that the government doesn't foot the bill.
“I know that he’ll be very careful and follow the Hatch Act to the letter, but he will want to be very involved with both roles—both seeing through all of the accomplishments at the Department of Labor, but also trying to do as much as he can under the rules to help elect Hillary Clinton as president,” Holly Fechner, a visiting lecturer on labor and employment policy at Harvard's Kennedy School of Government, told Bloomberg BNA.
Perez and other senior officials are on call for their job 24 hours per day, seven days a week, so without the daytime and federal-property exemptions, they could be precluded from the political process entirely.
The Clinton team hopes Perez will make up for any lack of presidential campaigning experience by capitalizing on his widespread approval within the labor movement, observers said.
“I think Tom has proven that he is very popular with progressive audiences, particularly with Latinos and unions,” said Fechner, who was chief labor and pensions counsel for Democrats on the Senate Health, Education, Labor and Pensions Committee in the 2000s and is now a lobbyist and attorney at Covington & Burling LLP. “So I know both the campaign and he would be interested in taking advantage of that popularity and trying to reach as many people as he can.”
As the presidential race heats up, Perez could be called upon more frequently. Although the Clinton campaign, the Democratic Party or Perez himself would be permitted to reimburse the government for the political portion of travel costs, he could still violate the Hatch Act.
Questions may arise about Perez if, for example, he were to fly to Columbus, Ohio, for a DOL event before heading to Cincinnati to deliver a speech for Clinton in the key swing state.
The Office of Special Counsel explained in a 2011 advisory opinion how it determines whether the official aspect of an event is bona fide. The government employee could be in violation if an event is created after the public official agrees to make a political appearance, to justify the government-paid travel portion of the trip, for instance.
Ever since Perez endorsed Clinton in 2015, he has been cautious to avoid even the perception that personal and official travel is blended. The secretary has yet to attend a Clinton event while concurrently on official travel, a DOL staffer said. Perez once went to New York for the DOL, returned to Washington the same night and then traveled back to New York the next day for a political function.
The labor secretary has been in regular consultation with ethics attorneys before taking any campaign action, several sources said.
Perez is not the first labor secretary who has walked the election-year tightrope.
“I don’t think that Secretary Perez in particular is doing anything right now that any other secretary of labor hasn’t done in the past,” Mark Wilson, who held a range of positions in the DOL under the four presidents who preceded Barack Obama, told Bloomberg BNA.
“It may be a little bit more high profile only because he was reported to be on the list of potential vice presidential picks, and labor secretaries in Democratic administrations have closer ties to unions, which are politically important to the party,” Wilson said.
Elaine Chao, labor secretary in the George W. Bush administration, campaigned for GOP lawmakers alongside her husband, Senate Majority Leader Mitch McConnell (R-Ky.), and Alexis Herman assisted the Al Gore presidential campaign in 2000 while finishing out her term as Bill Clinton's labor secretary.
The DOL may be particularly sensitive to Hatch Act concerns this election cycle. Perez's predecessor, Hilda Solis, resigned amid an Office of Special Counsel probe into whether she violated the law by fund raising for Obama's 2012 re-election, according to statements issued in 2014 by the House Oversight and Government Reform Committee. She resigned in January 2013, and the office never concluded the investigation.
The OSC determined in July that another Obama cabinet member and Clinton supporter—Housing and Urban Development Secretary Julian Castro—violated the Hatch Act during an April interview with Yahoo News.
According to the OSC’s report, Castro’s statements during the interview impermissibly mixed his personal political views with official agency business despite his efforts to clarify that some answers were being given in his personal capacity.
Even if Perez follows Hatch Act guidance to a T, he could still fall out of compliance because of the actions of others at campaign rallies, Scott Bloch, head of the OSC under President George W. Bush, told Bloomberg BNA.
“If you are a high-ranking official who is endorsing a new candidate for office, inevitably you run up against difficult choices in terms of your plan to do it all ethically,” Bloch said. “You have a lot of people out there” at campaign events “who are enthusiastic and they don’t know anything about the Hatch Act, and you can't really control those people.”
For instance, if he were to be introduced at a Clinton rally as Labor Secretary Tom Perez, “the only way you can purge that is to say, ‘I’m only here in my personal capacity as a citizen, and I want to tell you Hillary is the greatest,' ” Bloch said.
Presidential campaigns unfold during a time when cabinet members are traditionally aiming to cement their agency's initiatives before the change in administration.
“The primary focus at this point at the end of the second term is, given the uncertainty of the election coming up, just to get your agenda done and to get as much of your policy positions solidified and on the books as you possibly can,” said Wilson, who is now vice president of health and employment policy at the HR Policy Association.
In this administration, the DOL's policy focus includes encouraging support for state and local legislation on issues not being taken up in Congress. That means Perez will continue his national tour in support of state and local minimum wage and paid-leave policies.
The labor secretary will travel to states with ballot initiatives on minimum wage hikes and paid family and medical leave mandates and try to sway voters.
One observer sees problems with cabinet members engaging in those sorts of efforts.
“It's a misuse of his time to go around campaigning on state and local issues rather than doing the job that he was appointed to do, which is to oversee the operations of the Labor Department,” Trey Kovacs, a labor policy analyst at the conservative think tank Competitive Enterprise Institute, told Bloomberg BNA.
Perez's personal role as Clinton surrogate will also take him on the road.
“Tom Perez will continue to travel across the country in his personal capacity, as he did in the primary,” a Clinton aide told Bloomberg BNA via e-mail. “Perez will talk directly to voters about the issues that matter most to them whether it's access to a good-paying job or keeping families together through comprehensive immigration reform.”
Perez “will participate in events in battleground states like Florida, Ohio, Colorado and Nevada, as well as local and Spanish interviews to discuss why he supports Hillary Clinton,” the aide said.
Back in Washington, DOL “policy is still being crafted, regulations are still being proposed, enforcement is still being ramped up,” Seth Harris, who served as acting labor secretary before Perez took the helm in 2013, told Bloomberg BNA.
“For some reason, Tom Perez gets 25 hours in his day while the rest of us get 24, and he is able to focus on a long list of priorities, often simultaneously, while others might be forced to focus on only one or two,” said Harris, who now practices law at Dentons in Washington and teaches at Cornell University.
Perez's personal and official roles may be separate, but they could still carry out parallel objectives. Clinton would be more likely to preserve DOL policies than Republican nominee Donald Trump, who has vowed to undo this administration's regulations.
Asked how Perez could most effectively serve Obama these next few months, a former White House attorney told Bloomberg BNA that there’s no easy answer.
“My sense from having worked in this administration has always been that the president is focused first and foremost on governing, with the belief that if you do a good job of doing that, the electoral stuff will follow,” said the attorney, who spoke on condition of anonymity. “But I would imagine that he’s also thinking about his legacy at this point and the importance of electing Hillary Clinton. It’s a tough call.”
To contact the reporter on this story: Ben Penn in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Susan J. McGolrick at email@example.com
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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