Political complaint against Seema Verma dropped for 'insufficient evidence'

Harris Meyer  December 10, 2019

The U.S. Office of Special Counsel said it found insufficient evidence to conclude that CMS Administrator Seema Verma violated the law barring federal employees from engaging in political activities while on the job.

The nonpartisan Center for Responsibility and Ethics in Washington filed a complaint in November 2018 alleging that Verma used her official Twitter account and blog post to advocate against Democratic Medicare for All proposals, in violation of the Hatch Act. The group claimed Verma did so as part of a White House-coordinated effort to defeat Democratic party candidates in the 2018 midterm elections.

But in an Oct. 29, 2019 letter, the OSC, a quasi-judicial independent agency, said Verma "was not prohibited from sharing her position on Medicare for All or discussing downsides to the policy." Similarly, "merely retweeting an article that noted Medicare for All's association with the Democratic Party … did not violate the law," wrote Ana Galindo-Marrone, the agency's Hatch Act unit chief.

The letter also said that after completing its investigation, OSC "has insufficient evidence to conclude that Ms. Verma violated the law by working with the White House to influence the 2018 midterm elections, and we are closing our file without further action."

Besides her politically charged speeches, Verma also has touched off controversies and an investigation over her agency's hiring of Republican political communications firms, her office's expensive campaign to boost her visibility, and her personal feuds with HHS Secretary Alex Azar. In the last few days, Politico reported she asked the government to reimburse her for a claim of nearly $50,000 in stolen jewelry and other personal property, with Democratic Rep. Joe Kennedy calling for her resignation.

On Monday, the CMS defended Verma's frequent public speechmaking blasting Medicare for All and public option proposals, saying all her speeches and writings related to those issues have gone through the appropriate legal and ethics review.

"It should come as no surprise that the administrator of Medicare, Medicaid and the Obamacare exchanges is discussing the issues and policy implications that directly impact these programs and the entire healthcare system," the CMS said in a statement.

Kathleen Clark, a law professor at Washington University who is an expert on the Hatch Act, said that Verma has a First Amendment right to express her opinion. But it's unclear from the OSC letter whether the agency was able to gather information to determine whether Verma participated in a coordinated White House election effort to use Medicare for All against Democratic candidates, she added.

"They don't tell us anything about the scope of the investigation or how successful they were in ferreting out information," Clark said. "I can't tell whether this was a real investigation or a whitewash."

An OSC spokesman said the agency does not comment on its Hatch Act investigations.

The complaint against Verma was one of many Hatch Act complaints against Trump administration officials. In June, Special Counsel Henry Kerner recommended the removal of White House counselor Kellyanne Conway for violating the Hatch Act, based on her frequent comments in her official capacity disparaging Democratic presidential candidates. The White House rebuffed that recommendation.

Other senior Trump administration officials who received reprimands from OSC for violating the Hatch Act include former UN Ambassador Nikki Haley, White House spokeswoman Stephanie Grisham, and Assistant to the President Dan Scavino Jr.

Over the last two years, Verma has given a series of speeches to healthcare groups ripping Medicare for All, public option proposals and the Affordable Care Act, though generally without identifying them as Democratic programs. She also wrote a Washington Post op-ed in July attacking the public option concept.

Her frequent public comments have raised concerns among both Republican and Democratic healthcare experts that she has gone further than previous CMS chiefs in serving as a political spokesperson for the presidential administration she represents.

In its complaint, the Center for Responsibility and Ethics in Washington cited a Twitter post by Verma last fall saying, "This year's scariest Halloween costume goes to…" with an image of a man wearing a T-shirt bearing the words "Medicare for All." That was similar to the message of GOP campaign ads.

The group also pointed to Verma's blog postings and a retweet echoing messages from Republican campaign officials. In one, she tweeted that "Medicare for All isn't a joke. It's a multi-trillion dollar drain on the American economy that will bankrupt future generations."

Delaney Marsco, ethics counsel at the nonpartisan Campaign Legal Center, said that while Verma's conduct "is approaching the line" for a Hatch Act violation, it likely does not violate the law because she has not explicitly named the political party or candidates who favor the proposals she has criticized.

But on its website, the OSC notes that it considers circumstances such as the content, timing and context of the discussion in investigating allegations of Hatch Act violations, and that merely avoiding the explicit naming of a party or candidate doesn't necessarily mean no violation took place.

Clark said the OSC's letter closing its investigation doesn't address that larger context of Verma's and the administration's behavior.

"They have a record of thumbing their nose at the Hatch Act," she said. "I don't know whether they did that here. But we have evidence of their attitude."

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