Unfair Advantage: The Abuse of State Resources in Elections Nearly all states in the U.S. prohibit the use of an official government position for a private purpose or for political gain. Most jurisdictions then supplement this broad and vague prohibition with a more specific admonition to government personnel to avoid election campaign activity while on duty and/or during government office hours.74 State laws typically also prohibit government personnel from declaring or suggesting that an official act or a constituent service will be taken or withheld based on election-related considerations, including a person’s decision to provide a political contribution or other donation.75 The U.S. legal framework also makes certain off-the-job restrictions to prevent the abuse of state resources. Federal personnel are prohibited at all times from using an official title or position while engaging in partisan election activity;76 or soliciting, accepting, collecting, or receiving political contributions.77 However, while off-the-job, there are no regulations prohibiting voting in elections;78 assisting in registration drives or get-out-the vote efforts;79 contributing financially to a campaign;80 attending or actively participating in political campaigns or events;81 acting as a poll worker;82 or expressing opinions about political candidates and issues.83 As with on-the-job restrictions, certain federal personnel are subject to more strict restrictions, prohibiting them from engaging in any political activity on behalf of a party, partisan group or candidate in a partisan election.84 Legislative personnel are generally permitted to engage in election activity when away from their government jobs. Members of Congress are obviously free to campaign for their own reelections while off-the-job and congressional staffers are able to use personal time to support political campaigns,85 subject to certain caveats. For example, a congressional staffer who engages in election activity must do so voluntarily without any compulsion from any congressional Member or employee. Congressional offices are instructed to keep detailed time records and to distribute written employment policies that set forth official work hours to ensure staffers are not engaging in election activity during these periods.86 See, e.g., Ark. Code § 7-1-103(a)(2); Cal. Gov’t Code §§ 3207, 8314; Colo. Stat. § 24-50-132; Conn. Gen. Stat. § 5-266a(b); 29 Del Code. § 5954(b); D.C. Code § 1-1171.03(a); Fla Stat. §§ 104.31(2), 110.233(4)-(5); Ill. Comp. Stat. § 430/5-15(a). 75 See, e.g., Miss. Code. § 23-15-873; Mo. Stat. § 105.452(1); N.Y. Elec. L. § 17-154(2)-(3); N.D. Cen. Code § 44-0819(1); 65 Penn. Comp. Stat. § 1103; R.I. Gen. L. § 36-14-5(a)(i); Tenn. Code §§ 2-19-204, 2-19-205; Utah Code § 6719-19(2)(b); Wisc. Stat. § 12.08. 76 5 C.F.R. § 734.302(a). 77 5 C.F.R. § 734.303; see also Special Counsel v. Casey, No. CB-1216-10-0011-T-1, 2011 WL 12506611, at *2 (M.S.P.B. May 31, 2011) (applying prohibition on hosting a fundraiser). 78 5 C.F.R. § 734.206(a). 79 5 C.F.R. § 734.206(d). 80 5 C.F.R. § 734.208(a). 81 5 C.F.R. § 734.204(b)-(f). 82 5 C.F.R. § 734.206(b)-(c). 83 5 C.F.R. § 734.203(a). 84 Hatch Act FAQs, Office of Special Counsel, https://osc.gov/Pages/HatchAct-FAQs.aspx# (last visited Jul. 1, 2016); see also 5 C.F.R. § 734.408 (“[a]n employee covered under this subpart may not take an active part in political management or in a political campaign. . .”). 85 See House Ethics Manual, supra note 62, at 135; see also Senate Ethics Manual, supra note 62, at 139. 86 See, e.g., House Ethics Manual, supra note 62, at 136-37; U.S. House of Reps. Comm. on Ethics, 113th Cong., Campaign Activity Guidance 8 (2014) [hereinafter House Campaign Activity Guidance], available at http://ethics. house.gov/sites/ethics.house.gov/files/20140815%20Pink%20Sheet.pdf. Because official work hours are designated by each office’s personnel policies, what constitutes as official work hours will vary. Any time that is designated as personal time by these policies (e.g., lunch hours, annual leave, time after the end of the business day or weekends are not official work hours, and may be used for campaign activity that is in compliance with other restrictions. Moreover, while these time records are not mandatory, the ethics committees strongly encourage employees to keep them in order to use as evidence in defense of a challenge or investigation by an employer or the ethics committee for violating these restrictions. Id. 74 11