By James Sherk for RealClearPolicy
Washington policymakers often pontificate about protecting democracy. But in typical fashion, congressional leaders miss the real problem. Photo ID laws and bans on ballot harvesting do not threaten democracy. Laws that make it hard to fire federal bureaucrats do.
They empower the bureaucracy to pursue its own agenda, no matter who the voters elect. This happened widely during the Trump administration.
While the American people elect the president, career employees perform almost all the regular work of government. These career employees enjoy incredible job protections. The process of removing a tenured federal employee takes six months to year. Afterward, they can appeal (and are frequently reinstated).
Surveys show only quarter of federal supervisors believe they could remove a demonstrably poor performer. Career employees are not untouchable, but they are not far from it, either.
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Career bureaucrats know this. To their credit, many faithfully serve their agencies, taking direction from political appointees. But a significant number take advantage of their job protections to pursue their own agenda. Because agencies house few political appointees, hostile career staff hold significant power to obstruct policies they oppose – no matter who the voters elect.
Political appointees in the Trump administration reported widespread policy resistance from career staff. This resistance took many forms. In some cases, career employees simply refused to implement policies they personally opposed. For example, a bipartisan federal law prohibits hospitals from forcing nurses to perform abortions.
Career staff in the Department of Justice Civil Rights Division refused to enforce these conscience protections. In another example, the Civil Rights Act outlaws racial discrimination in higher education. Civil Rights Division career staff refused to sue Yale University for discriminating against Asian American applicants.
Similarly, some HR staff at the Department of Health and Human Services ignored the hiring freeze President Trump issued soon after taking office. Using sharpies, they retroactively edited new hires’ starting dates to the day before Trump’s inauguration.
In other cases, career staff would technically comply, but they slow-walked or underperformed on projects they opposed. For example, under a Democrat administration, the Agriculture Department took less than a year to issue regulations prohibiting road construction on U.S. Forest Service land.
These regulations prevented otherwise legal mining and logging and devastated Alaska’s economy. President Trump ordered the Agriculture Department to exempt Alaska from this “roadless rule.” Career staff opposed the change and dragged their feet. It ultimately took over two years to issue the much smaller exemption.
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Political appointees are meant to supervise career staff, not do their work. But career staff hostility widely forced Trump administration political appointees to draft sensitive regulations on their own. They could not rely on career staff to produce quality drafts that would pass legal muster.
For example, the Education Department wanted to issue regulations requiring colleges and universities to provide due process protections when investigating allegations of sexual assault. Those regulations had to be primarily drafted by political appointees.
Other career employees sought to shape policy by withholding information. Many career lawyers at the National Labor Relations Board, for example, only presented legal precedents that supported the union’s position. They would not brief political appointees on legal arguments that suggested the employer should win.
Such career employee intransigence changes policy. The government has very few political appointees – less than 4,000 out of 2.2 million civilian federal workers. Political appointees cannot take over all the tasks career employees refuse or perform badly. During the Trump administration, career staff hostility caused agencies to issue many regulations late – or never issue them at all.
Empowering federal bureaucrats to veto public policy decisions made by or on behalf of the leader duly elected by the public undermines democracy. No one votes for career staff, and voters cannot remove them via the ballot box. Career staff have no democratic mandate to pursue their personal policy agenda.
The Biden administration apparently disagrees. President Biden rescinded several Trump executive orders that made removals easier. Now his Office of Personnel Management is issuing regulations to strengthen career employee removal protections.
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The creators of the civil service system never dreamed of anything like this. The Pendleton Act of 1883 regulated federal hiring to prevent patronage – rewarding campaign supporters with government jobs. But civil service reformers also feared removal protections would “seal up incompetency, negligence [and] insubordination.” So the Pendleton Act kept federal workers as at-will employees.
Federal employees did not get the right to appeal removals until the 1940s, and the change was initially limited to veterans. Not until the 1960s did the broader federal workforce get removal protections. The reformers who ended the spoils system did not contemplate empowering career employees to shift policy.
If Congress really wants to protect democracy, it should make the federal bureaucracy at-will once again. Elections only matter if the government is accountable to the voters’ representatives.
James Sherk is the Director for the Center for American Freedom at the America First Policy Institute. He previously served as President Trump’s top civil service reform advisor on the White House Domestic Policy Council.
Syndicated with permission from Real Clear Wire.
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