It’s difficult to think how maintaining the status quo of an entrenched, unaccountable bureaucracy that could routinely shun and obstruct the goals of a democratically-elected government is good for democracy.
But politicians in the Democratic Party, who recently proclaimed themselves defenders of small-d democracy they claim is under assault by “MAGA Republicans,” are also pushing legislation to further protect the permanent bureaucracy from being fired.
Months before leaving office, President Donald Trump signed what was a very level-headed executive order to establish a new Schedule F employment category, reclassifying career civil service employees with influence over policy as political employees who could be fired for cause.
In theory, this change should have bipartisan appeal. But in our current world, anything attached to Trump gets a hysterical reaction from each side. President Joe Biden rescinded the order shortly after taking office.
Before the FBI raid on Mar-a-Lago was all the rage, an Axios story in late July generated buzz about Trump’s plan to impose the Schedule F executive order if he is president again in 2025. Perhaps not surprisingly, other potential Republican candidates vowed to also implement the same policy if elected.
It’s not impossible to fire a bureaucrat with civil service protections but it’s extremely difficult.
Importantly, like so much that creates weeping, wailing, gnashing of teeth, and crocodile tears in tribalized Washington, this wouldn’t make a big structural difference.
Another Schedule F order would apply to a maximum of 50,000 federal employees. That might seem like a lot. But there are 2.2 million employees in the federal bureaucracy. There are only about 4,000 political appointees in the government.
That’s not to say we want to make the federal workforce more politicized. This is to say it is already politicized.
Moreover, a change affecting about 2 percent of career employees would not thrust the nation back to the days of the patronage system where the new president and his cabinet hired every federal bureaucrat in the executive branch. This often led to an inept and crony workforce, and little consistency or experience.
The intent of the 1883 Pendleton Act and civil service reformers was never to create a de facto fourth branch of government.
Nevertheless, Rep. Gerald Connolly (D-VA), whose affluent Northern Virginia district is made up largely of federal employees, has sponsored the misnamed Preventing a Patronage System Act, to prevent protected federal jobs from being reclassified without the consent of Congress. Sen. Tim Kaine (D-VA) and six other Democrats sponsored a similar bill in the Senate.
The mouthpiece of the Beltway establishment, the Washington Post editorial board, engaged in a good bit of hand-wringing, proclaiming another Schedule F executive order “would give the president vast powers to reshape the federal government at will—and could politicize positions long treated as nonpartisan and merit-based.”
But the problem is that too many partisans have filled jobs that have nonpartisan protections. Political appointees frequently burrow into career civil service jobs. While most of the people who work for even the worst federal agencies, such as the IRS and the EPA, are good people, many think they know better than elected leaders and, by extension, the people.
“If potential employees feel like they could be fired with little cause or recourse, fewer capable people will seek out these positions,” the Post editorial continued. “That would only harm the wide range of government services on which Americans rely.”
This assumes that the best and the brightest go to work for the federal government.
Some House Republicans have sponsored opposing legislation to make all federal employees at will. This is perhaps not the answer but it at least shows an awareness of the problem. If Congress acts, it would be better to do so in a way to bring civil service reform for our time. An executive order would only be a temporary remedy with limited scope that could be overturned by another president.
Former Domestic Policy Council official James Sherk, who helped craft Trump’s Schedule F order, wrote in a Wall Street Journal op-ed that career staff frequently delayed producing new rules during the Trump administration.
“As a result, many major regulations—such as the Education Department’s Title IX due-process protections—had to be drafted primarily by political appointees,” Sherk explained. “Career lawyers at the Environmental Protection Agency, for example, failed to brief political appointees about major lawsuits. Political appointees had to read public filings to learn what cases the agency was litigating and what arguments were being made in those cases.”
In another example, he added that “Career staff at the Justice Department’s Civil Rights Division often wouldn’t work on cases they opposed for ideological reasons. They refused to enforce protections that say nurses can’t be forced to assist in abortions. And they refused to sue Yale for racially discriminating against Asian-American applicants.”
It would be wrong if Republican-minded bureaucrats tried to undermine the Biden agenda. Though that rarely happens because the federal workforce is almost overwhelmingly Democratic. You would likely have to go back to President John F. Kennedy’s clashes with the Central Intelligence Agency to find occasions where the bureaucracy truly tried to undermine a Democrat in the White House.
At the same time, it was Kennedy who is largely responsible for the current mess. In 1962, he signed an executive order to provide for an appeals process before removals. The 1883 Pendleton Act that reformed civil service stopped patronage but still kept civil service bureaucrats as at-will employees.
As historian Larry Schwiekart, author of Dragonslayers: Six Presidents and Their War With the Swamp noted, the spoils system—or patronage—used to be the Washington swamp. Now the swamp is largely the bureaucracy that undermines democracy.
“Victories over the swamp are not really long-lived,” Schweikart said. “As I say, it keeps changing and evolving into different beasts that have to be put down at different times.”
The bureaucratic swamp won’t go quietly but civil service reform is long overdue.
Fred Lucas is chief news correspondent and manager of the Investigative Reporting Project for The Daily Signal.