The “Preventing a Patronage System Act” Can Preserve a Merit-Based Civil Service

Congress is considering bills that would preserve the merit-based civil service as part of the 2023 National Defense Authorization Act, There are at least two approaches being considered – one that originated in the House, and another that originated in the Senate.

The House bill is bipartisan, and was sponsored by Rep. Gerry Connolly (D-VA). It prevents a future President from reimposing the destructive “Schedule F” that could move tens of thousands of career federal jobs into what amounts to a new form of political appointment. A version of the same bill has been introduced in the Senate by Sen. Tim Kaine (D-VA), Sen. Diane Feinstein (D-CA), and Sen. Chris Van Hollen (D-MD). The key language says:

No position in the competitive service (as defined under section 2102 of title 5, United States Code) may be excepted from the competitive service unless such position is placed—(1) in any of the schedules A through E as described in section 6.2 of title 5, Code of Federal Regulations, as in effect on September 30, 2020; and(2) under the terms and conditions under part 6 of such title as in effect on such date. 

Sen. Van Hollen also included language in the Financial Services and General Government (FSGG) appropriations bill that would address a future attempt to implement Schedule F. That language says:

Section 3302 of title 5, United States Code, is amended—  (1) by inserting ‘‘(a)’’ before ‘‘The President’’;  (2) by striking ‘‘Each officer’’ and inserting the  following:  ‘‘(b) Each officer’’; and (3) by adding at the end the following: ‘‘(c)(1) The authority of the President to prescribe rules governing the competitive service under this section shall not include the authority to except from the competitive service positions of a confidential, policy-determining, policy-making, or policy-advocating character that are not positions normally subject to change as a result of a Presidential transition.  ‘‘(2) In this subsection, the term ‘positions normally subject to change as a result of a Presidential transition’  means— 21 ‘‘(A) any position that is a political position, as defined under section 4(a) of the Edward ‘Ted’ Kaufman and Michael Leavitt Presidential Transitions Improvements Act of 2015 (5 U.S.C. 3101 25 note); or ‘‘(B) any position in which the incumbent  serves at the pleasure of the President or the head of an agency.  ‘‘(d) The Office of Personnel Management shall prescribe regulations for the exercise of any authority under  this section.

It is great to see that there is serious attention being paid to this critical issue, and that, at least in the House, there is bipartisan support for it, That is encouraging. So – which approach is best? The House bill is direct and uncomplicated. It prevents Schedule F from rearing its ugly head by removing the authority to create new excepted service schedules beyond the 5 currently in place, The FSGG language is more complicated, but seeks to solve the problem by prohibiting placement of jobs that are currently not political appointments into the excepted service. 

I see several problems with the FSGG language, which is unnecessarily complicated and may have unintended consequences. It lumps all excepted service determinations into the “bad” category, when they traditionally have not been considered to be bad. There is nothing wrong with the existing excepted service schedules and they serve useful purposes. For example, if an agency is having difficulty hiring for a policy-related position and wants OPM to agree to Schedule A authority for them, I think this language would not allow that.  Schedule A is the workhorse schedule that is used for about 65,000 jobs, 25,000 of which are at grade GS-13, 14 and 15. Many of those are likely to be policy-advocating or have other policy related duties that would prohibit them from being placed in the excepted service. But they already are. Would the FSGG language require they be taken out of Schedule A? What if there is conflicting statutory language that made them Schedule A to begin with? 

Proponents of the House approach argue that a simple fix is by far the best approach. Proponents of the FSGG approach argue that removing the President’s authority to create new excepted service schedules is an unnecessary restriction on the President’s flexibility in managing the Executive Branch. I believe the House approach is the correct one.
The existing schedules A, B, C, D and E serve useful purposes and are flexible enough to cover almost all newly arising legitimate needs. A total of about 90,000 permanent jobs are in the excepted service today. The existing schedules address excepted service determinations that are made due to difficulties in hiring and for unique circumstances. In the event a court decision or unforeseen circumstance requires a new excepted service schedule to be created, Congress could pass legislation to specifically authorize it. New excepted service schedules are traditionally so rare that this would not create a burden for the Executive Branch. In fact, our experience with Schedule F proves that the Executive Branch has so much authority that it can use it to dismantle a portion of the merit-based civil service. Restricting that authority is not a mistake – it is the objective, and it would place a much-needed guardrail in place to prohibit future abuse of excepted service designations. 
I urge the Senate to join their colleagues in the House and include the Preventing a Patronage System Act language in the 2023 NDAA. It is a direct and effective means of eliminating the possibility of a new Schedule F and preserving merit, rather than political patronage, as the means of filling critical jobs in the civil service. 

Dedicated Civil Servants? or an Out of Control “Deep State?”

Proposals to eviscerate the civil service via “Schedule F” and the “Public Service Reform Act” are just the latest from the people who believe civil servants are, at best, out of control bureaucrats, or even worse, a devious “deep state” that undermines the policies of the President of the United States.

Is what they argue supported by facts? Or is their argument more about being able to carry out ill-conceived and possibly illegal actions that undermine the effectiveness of the government of the United States? Much of this type of argument seems to say that the President can do whatever he wants, and the “bureaucrats” or “deep state” get in the way. One recent article highlighted the belief of some appointees who had served in both the Trump and Bush administrations that career civil servants had been far less cooperative with the Trump administration, and the idea that civil servants are more liberal than the country as a whole. They attribute perceived unwillingness to move Trump administration priorities quickly to this alleged liberal bias. Was the reason that they are a “deep state” or that there were significant differences in how the Bush and Trump administrations operated with respect to policy? President George W. Bush was a conservative and pursued conservative policies, but he did not ignore the legal and regulatory requirements for carrying out those policies. Perhaps that is the reason for the differences in how the two administrations experienced the civil service.

It is most likely true that government workers tend to be more progressive in their politics. This leftward tilt is more a factor of levels of education than anything else. Data from Pew Research shows that more educated people tend to be more liberal in their beliefs. Government workers are generally on the higher end of the education spectrum. The reality is that many factors come into play when looking at how the civil service responds to political leaders. Let’s take a look at a few of those.

First, the civil service is not a monolith. There are two million civil servants and some are very liberal and others are very conservative. Most are probably somewhere in the middle. They do have a different perspective on government, simply because they work in it every day. They know what government can and cannot do, because they live it and they understand the law, rules and regulations that govern their work.

Complaints about the civil service come from appointees of both parties. I have heard complaints from both republican and democratic appointees who thought the career workforce did not move quickly enough to implement their programs. Given the short tenure of most political appointees, it is not unusual that they have a sense of urgency about getting their agenda completed. Appointees from both parties typically come to the decision that the career staff were helpful and regret they did not embrace them and rely on them sooner. The Trump administration was more of an outlier in this regard.

Second, there are many reasons that programs do not move as fast as the political appointees want them to move. Many times it is simply the need to ensure that proposals are legal, that statutory and regulatory requirements (such as the Administrative Procedures Act) are met, and that the complex interagency work that often needs to be done is completed. Those things take time, and sometimes the answer is that what the appointee wants done cannot happen. A good example is the Trump administration’s move to rescind the Deferred Action for Childhood Arrivals (DACA) program implemented by the Obama administration. When the Supreme Court ruled that the decision did not pass the “arbitrary-and-capricious” test in Administrative Procedures Act, Chief Justice Roberts wrote ““The Executive Branch explained its decision to rescind DACA in two sequential memorandums by successive Secretaries of Homeland Security: the 2017 Duke Memorandum and the 2018 Nielsen Memorandum. The Duke Memorandum focused on DACA’s perceived legal flaws. The Court today finds the Duke Memorandum insufficient under the APA’s arbitrary-and-capricious standard.” The decision also said “The rule requiring a new decision before considering new reasons is not merely a formality. It serves important administrative law values by promoting agency accountability to the public, instilling confidence that the reasons given are not simply convenient litigating positions, and facilitating orderly review. Each of these values would be markedly undermined if this Court allowed DHS to rely on reasons offered nine months after the rescission and after three different courts had identified flaws in the original explanation.” Those words came from a conservative republican Chief Justice. Many observers noted that the Trump administration was not particularly adept at administrative law.  In this case and multiple others, courts decided that the administration cited inaccurate or misleading reasons for policies, or simply did not follow the rules. Had they followed the rules, they could have done far more of what they wanted.

A third issue is that neither presidents nor their appointees are Kings and Queens. They do not own the government. The President takes an oath of office specified in the Constitution. Appointees take an oath of office where they swear “I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.” Civil servants do not swear that they will do anything the President or a political appointee wants them to do. Their first obligation is to the Constitution. Presidents and political appointees are temporary custodians of the government. It was there before they arrived and it has to be there when they leave. When an appointee wants to undermine the mission that is established in the enabling legislation for an agency, civil servants often resist doing that, and work to convince the political leaders that other courses of action would be more consistent with the mission and with the governing law and regulations. Is that being a bureaucrat? Or a “deep state operative?” No. it is carrying out their oath of office. Those oaths are not meaningless words that are a mere formality to getting the job. They are far more than a ministerial detail. They are exactly what they say they are – an oath before God to protect and defend the Constitution of this great nation. I have taken that oath multiple times, and every time I have been struck by the words and their profound meaning.

The bottom line is that our government is large and complex. It is a government of laws, charged with delivering vital services to the American people, who rely on civil servants to support our military, defend our borders, pay Social Security, Veteran’s health care, and other benefits for recipients. They provide impartial numbers regarding the health of our economy, the number of people in the country, and other vital data that decide where billions of dollars of taxpayer money are spent. Countries around the world have learned that a professional civil service is essential for an effective government. A politicized civil service where every new administration throws out thousands of people just because they are not from their party is the opposite of a qualified, professional civil service.

The credibility of government agencies is the product of decades of work by millions of dedicated civil servants. Their professional expertise is vital to accomplishing the mission of every federal agency. It may have taken years to build that credibility, but rash and politically motivated decisions can kill it quickly. No President, whether republican or democrat, has the right to trash the government. Certainly no temporary political appointee has the right to do that. They are there as stewards of the people’s government, just as civil servants are stewards.

I have been both a career employee and a political appointee. I have supported republicans and democrats in carrying out their policies. I have advised both when they were about to do something stupid, and when they wanted to do something that we simply could not do because of the law. As a political appointee I listened and followed his advice when a career executive told me was about to do something that was not an appropriate action for a political appointee to take. Like many other appointees, I appreciated that advice and the perspective from which it came.

The “deep state” is a sinister sounding concept that is intended to create fear or rage, or both. It also does not exist. The “unaccountable bureaucrat” also does not exist. Every civil servant is accountable for their work and conduct. I have been in multiple situations where civil servants were not doing their jobs. They were fired or moved to jobs that suited their qualifications. It does not take years to deal with poor performance, but it does take some backbone. It also takes some backbone to tell your political boss that s/he is about to violate the law and that you will not help them do it.

The vast majority of the two million federal workers do their jobs. They are not extreme partisans, and they are good at what they do. Even if they have strong political beliefs, they carry out the lawful orders of their political bosses. The more we see these attacks on their skills, their work, their integrity, and even their patriotism, the more likely it is that they will not stay and that it will be even harder to find qualified replacements. Those who favor a smaller government may think that is a great idea, but imagine what happens when they cannot staff the Departments of Defense and Homeland Security and Veterans Affairs? Do they think millions of Veterans will be happy when they cannot get the benefits they earned? Do they think a warfighter who does not have the supplies s/he needs because the Defense Logistics Agency could not hire qualified people gives a damn about their political concerns? Most of what the government does is not political and is not something the American people want to see broken. These proposals to break the career civil service are driven by political objectives and not by the needs of the government and the people it serves.

Rather than gutting the career civil service and returning to a spoils system, we should focus on improving the civil service through simplified hiring and pay practices. We can also improve accountability and make it more clear that performance and conduct issues can be solved. That type of change will serve the American people and it is what we need today.