I want to write about the issues that might be presented by having laptops and cell phones and wi fi in government offices. But before we do, we need to consider what might be considered political activity and the difficulties in extracting it from government work for certain types of government employees, i.e., political appointees at relatively high levels.
The point has made been made in the comments to an earlier post by George Mitchell. George's views can't be easily dismissed. He has been a significant player, serving as a journalist, high level aide and (with his wife Susan) a wildly successful advocate for school choice in Wisconsin. He knows what he's talking about. He also whips up a nice tailgate.
But let's use some hypotheticals.
Let's say that you are Senator Huffanpuff, a Democrat who opposes Governor Walker's proposed collective bargaining reform. You begin to receive and send e-mails about fleeing the state in order to defeat the quorum required to pass the fiscal provisions of the proposed legislation.
Political? On the one hand, you could say that you are attempting to defeat legislation. On the the other hand, it may be hard to argue that not doing your job is conducting government business. But let's assume, we are on the nonpolitical side of the line.
Now you begin to communicate with people about raising money to support your departure from the state. Political? You start to discuss, in e-mails, over the phone and in your office, how to frame messages about fleeing from the state. This discussion focuses not only on the merits of the proposed legislation but about criticisms of the Governor in general as overly pro-business, anti-union, yadda, yadda. It turns to how you are going to defend not coming to work. Political?
As you discuss these topics, the conversation turns to how you can convince other Democrats to join you. Before too long, the conversation turns to how some of your colleagues may be reluctant to do so because it will harm them politically and how you and others can help them to avoid that harm or to place countervailing political pressure on them, say, encourage a primary challenge or withdraw union support from those who refuse to flee. How do we let our wavering colleagues know what will happen if they choose to stay? Let's say you begin to reach out to people who can bring this pressure to bear. Political?
As you formulate a message, you begin to communicate with others about how to get that message out. You talk about consultants and funding to run issue ads attacking both the legislation and the Governor generally. Political?
You wonder about how you can place pressure on the Governor or, more realistically, wavering Republicans. Can their seats be targeted? Is recall a possibility? How can these threats be communicated to their intended targets. If everything before us was OK, have we now passed into political territory?
But let's keep going. Your sojourn at the Rockford Best Western doesn't work and collective bargaining reform is passed. It turns out that you are subject to recall. You start to work on position papers, speeches and ads that defend your actions explaining why you thought that the reform bill should not pass and criticizing Governor Walker and the Republicans? Are we political yet?
At the same time, you begin to work on selecting Republicans to be targeted for recall and recruiting candidates to run against them. We must be political now but what if this is done with an eye toward advancing the legislative agenda? The Court of Appeals in Chvala rejected that as a rationale for doing otherwise political work on the state dime - but is that clearly the right outcome?
Keep in mind that many of these topics are often likely to be interwoven into the same conversation
The point is not that there is no line over which activity becomes clearly political. As I said, campaign fundraising would seem to be on one side of the line. There could be others, perhaps candidate recruitment or campaign scheduling, etc. It may be OK to post a self serving message on Senator Huffanpuff's "official" site but not to post the same message on his campaign site.
But that there are many things that are not clearly on one side and the other. Additionally, even activity that might be clearly political is interwoven with policy and legislative activity and activity on both sides of the line is often interconnected. Many things can be said to have both political and legislative or policy implications.
It is easy enough to say that there should never ever be political cooties in a public office but not so easy - and maybe both inefficient and undesirable - to keep them out in the real world.
Even where the line is clear, the things on one side of the line may not be sufficiently different from those on the other side to warrant the conclusion that crossing it threatens the Republic. How much better is the world if Senator Huffanpuff can plan and execute messages and activities with political ends in mind, but just can't engage in formal campaign activities?
I can certainly think of reasons to maintain that line but I don't know that doing so is a major bulwark against corruption or distortion of the political process. This is why I argue that a felony for Rindfleisch - even for something that she is accused of doing before - seems like overkill. This is why, I think, "everyone does it." The law always struggles when it attempts to prohibit things that people both have strong incentives to do and don't believe to be intrinsically wrong.
The matter is further complicated by the fact that we allow these state employees to be involved in their bosses campaign. For key staffers who are essentially always on call, the idea that they stop doing part of what they see as their job between 9 and 5 may seem a quaint and formal restriction.
In fact for certain activity, it may not seem like something that the law requires. More on that to follow.