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Military Folks and Politics -- What You Can and Cannot Do

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Military Folks and Politics -- What You Can and Cannot Do

During the last Presidential Elections, I received an email from a person (presumably on active duty) which read, "Help to Make Sure Al Gore Does Not Sign my Retirement Certificate." The email included a link to George W. Bush's campaign Site, and included a "signature" with a military rank and last name.

I wonder if this person knows that he/she may have violated the law by sending this email out?

As we enter a new presidential race, I've been receiving more and more questions about what military members are allowed and not allowed to do when it comes to politics.

Federal Law (Titles 10, 2, and 18, United States Code), Department of Defense (DOD) Directives, and specific military regulations strictly limit a military active duty person's participation in partisan political activities.

DOD defines "partisan political activity" as "activity supporting or relating to candidates representing, or issues specifically identified with, national or State political parties and associated or ancillary organizations."

A "Nonpartisan political activity is defined as "activity supporting or relating to candidates not representing, or issues not specifically identified with, national or State political parties and associated or ancillary organizations.

Issues relating to constitutional amendments, referendums, approval of municipal ordinances, and others of similar character are not considered under this Directive as specifically being identified with national or State political parties."

The military wants its personnel to participate in our democratic process -- within limits. DOD encourages active duty military members to vote, and has established several programs to help active duty personnel to register and cast absentee ballots. What career military officer or senior NCO has never had to pull a stint as unit "voting officer," or "voting NCO?" But, when it comes to actively campaigning for a specific political candidate or partisan objective, the military draws the line.

Do's and Don'ts

Here's what an active duty military person can/cannot do:

Can: Register, vote, and express a personal opinion on political candidates and issues, but not as a representative of the Armed Forces. Military members who reside outside of their state of legal residence (whether assigned to a different state, or overseas) may vote by absentee ballot. See the Federal Voting Assistance Program Web site for complete details.

Cannot: Use contemptuous words against the officeholders described in 10 U.S.C. 888 (10 U.S.C. 888 lists the following officeholders: President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Transportation, or the Governor or legislature of any State, Territory, Commonwealth, or possession in which the military member is on duty).

It's interesting to note at this point that Article 88 of the Uniform Code of Military Justice (UCMJ) makes it a crime for commissioned officers to use contemptuous words against the above officeholders. Commissioned officers who violate this provision can be court-martialed for a direct violation of Article 88. But, what about enlisted members and warrant officers?

DOD Directive 1344.10 - POLITICAL ACTIVITIES BY MEMBERS OF THE ARMED FORCES ON ACTIVE DUTY, extend these same requirements to all individuals on active duty. Active duty enlisted members and warrant officers who violate these provisions can be charged under Article 92 of the UCMJ, Failure to Obey an Order or Regulation.

So, what about retired members? Well, DOD Directive 1344.10 only applies to active duty, so retired enlisted and warrant officers can pretty much say anything they want concerning the above office-holders. However, Article 2 of the UCMJ specifically states that retired members are subject to the provisions of the UCMJ. Does that mean that retired commissioned officers are prohibited from using contemptious words against the above officeholders? Technically, yes. A retired commissioned officer who utters contemptuous words against the President or other designated officeholders is technically in violation of Article 88. However, DOD Directive 1352.1 - MANAGEMENT AND MOBILIZATION OF REGULAR AND RESERVE RETIRED MILITARY MEMBERS, prohibits recalling a retired military member to actively duty solely for the purpose of subjecting them to court-martial jurisdiction. Therefore, unless that retired commissioned officer was recalled to active duty for other purposes, it would not be possible to subject them to court-martial for a violation of Article 88.

Can: Promote and encourage other military members to exercise their voting franchise, if such promotion does not constitute an attempt to influence or interfere with the outcome of an election.

Cannot: Use official authority or influence to interfere with an election, affect the course or outcome of an election, solicit votes for a particular candidate or issue, or require or solicit political contributions from others.

Can: Make monetary contributions to a political organization, party, or committee favoring a particular candidate or slate of candidates, subject to monetary limitations under federal law.

Cannot: Make campaign contributions to another member of the Armed Forces or an employee of the Federal Government.

Cannot: Make campaign contributions to a partisan political candidate.

Cannot: Solicit or receive a campaign contribution from another member of the Armed Forces or from a civilian officer or employee of the United States for promoting a political objective or cause.

Cannot: Solicit or otherwise engage in fundraising activities in Federal offices or facilities, including military reservations, for a partisan political cause or candidate.

Can: Sign a petition for specific legislative action or a petition to place a candidate's name on an official election ballot, if the signing does not obligate the member to engage in partisan political activity and is done as a private citizen and not as a representative of the Armed Forces.

Can: Write a letter to the editor of a newspaper expressing the member's personal views on public issues or political candidates, if such action is not part of an organized letter-writing campaign or concerted solicitation of votes for or against a political party or partisan political cause or candidate.

Cannot: Allow or cause to be published partisan political articles signed or written by the member that solicits votes for or against a partisan political party or candidate.

Can: Join a political club and attend its meetings when not in uniform.

Cannot: Serve in any official capacity or be listed as a sponsor of a partisan political club.

Cannot: Speak before a partisan political gathering of any kind for promoting a partisan political party or candidate.

Cannot: Participate in any radio, television, or other program or group discussion as an advocate of a partisan political party or candidate.

Cannot: Conduct a political opinion survey under the auspices of a partisan political group or distribute partisan political literature.

Cannot: Sell tickets for, or otherwise actively promote, political dinners and other such fund-raising events.

Can: Attend political meetings or rallies as a spectator when not in uniform.

Cannot: Attend partisan political events as an official representative of the Armed Forces.

Cannot: March or ride in a partisan political parade.

Can: Serve as an election official, if such service is not as a representative of a partisan political party, does not interfere with military duties, is performed while out of uniform, and has the prior approval of the Secretary concerned or the Secretary's designee.

Cannot: Participate in partisan political management or campaigns, or make public speeches in the course thereof. Cannot: Perform clerical or other duties for a partisan political committee during a campaign or on an Election Day.

Cannot: Participate in any organized effort to provide voters with transportation to the polls if the effort is organized by, or associated with, a partisan political party or candidate.

Can: Display a political sticker on the member's private vehicle.

Cannot: Display a large political sign, banner, or poster (as distinguished from a bumper sticker) on the top or side of a private vehicle.

Cannot: Campaign as a nominee, or as a candidate for nomination, for civil office, except as authorized directly below.

Can: As long as they are not serving on EAD (Extended Active Duty, which equals 270 days) , enlisted members and Reserve officers may hold partisan or nonpartisan civil office if such office is held in a private capacity and does not interfere with the performance of military duties. Additionally, enlisted members on EAD may seek and hold nonpartisan civil office as a notary public or member of a school board, neighborhood planning commission, or similar local agency, as long as such office is held in a private capacity and does not interfere with the performance of military duties. Officers on active duty may seek and hold nonpartisan civil office on an independent school board that is located exclusively on a military reservation.

Note: A member elected or appointed to a prohibited civil office may request retirement and shall be retired if eligible for retirement. If such member does not request or is not eligible for retirement, the member shall be discharged or released from AD, as determined by the Secretary concerned.
Andrew Kohut, director of the Pew Research Center
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