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?