Congress Must Pass the Preventing a Patronage System Act To Protect Federal Civil Servants’ Impartiality
Donald Trump, shortly before the end of his term as president, attempted to implement a much-delayed plan to dramatically expand the group of federal civil service employees exempt from the regular hiring, disciplinary, and firing procedures for federal workers. Although President Joe Biden rescinded this policy upon taking office, in the months since, prominent conservative voices have signaled their intent to pursue the same objective. This policy presents enormous risk not only to the competence of and public trust in the U.S. government but also to national security. To prevent future implementation of such plans, Congress must work immediately to pass the Preventing a Patronage System Act (PPSA).
Background on the PPSA and Schedule F
On October 21, 2020, Trump issued executive order 13957, directing the heads of all federal agencies to compile lists of positions to propose for reclassification into a new category: Schedule F. Jobs subject to this reclassification included executive agency positions “of a confidential, policy-determining, policy-making, or policy-advocating character and that are not normally subject to change as a result of a Presidential transition.” As set forth in guidance issued by the U.S. Office of Personnel Management (OPM), employees in these positions could include: those who participate substantively in drafting regulations or guidance, those who act as supervising attorneys, those with substantial discretion to perform supervising agency functions prescribed by law, those who work with proposals covered by the deliberative process privilege, and those who conduct collective bargaining on behalf of an agency.
The Trump administration used heretofore unnoticed authority for this unprecedented civil service restructuring scheme found in Title 5, Section 7511 of the U.S. Code. This statute specifically exempts from civil service job protections employees “whose position has been determined to be of a confidential, policy-determining, policy-making or policy-advocating character by … the President for a position that the President has excepted from the competitive service.”
A brief history of federal civil service protections
Under the so-called spoils system in place throughout much of the 19th century, American elected officials commonly rewarded friends and supporters with government jobs. This changed in 1883, after President James A. Garfield was assassinated by an unsuccessful job seeker. In response, Congress passed the Pendleton Civil Service Act, which replaced the patronage system with a nonpartisan, professional civil service. The act requires federal government jobs to be awarded on the basis of merit and performance on competitive exams, and it prohibits firing or demoting covered employees for political reasons as well as requiring employees to participate in political activities or to make political contributions.
With these guardrails in place, career civil servants have been able to develop significant expertise and critical institutional knowledge helpful to presidents of both political parties. The Hatch Act, which was passed in 1939, further bolstered the protection of federal employees from political coercion in the workplace, ensuring merit-based advancement for federal employees and the nonpartisan administration of federal programs. Finally, the Civil Service Reform Act of 1978, created new rules and procedures for federal employee management, as well as new agencies to administer and oversee them: the Office of Personnel Management (OPM), the U.S. Merit Systems Protection Board (MSPB), and the U.S. Federal Labor Regulations Authority (FLRA).
There are already five groups of civil servants—schedules A, B, C, D, and E—who are exempt from the civil service rules because it is not feasible or practical to use traditional competitive hiring procedures for these positions. Schedule C employees, for example, work in positions of a confidential or policy-determining character “normally subject to change as a result of a Presidential transition.” Approximately 4,000 such Schedule C positions turn over upon a new presidential administration. Schedule F could have added as many as 50,000 policy-related jobs to that list; however, only two agencies compiled lists of positions for potential reclassifications before the end of the Trump administration, and no reclassifications were implemented before President Biden rescinded the order.
The PPSA would prohibit any future president from reestablishing Schedule F, as well as the creation of any new categories of exempt federal employees. The House of Representatives passed the PPSA on September 19, 2022, and the language of the PPSA is included in the House-passed H.R.7900—the National Defense Authorization Act for Fiscal Year 2023.
How Schedule F threatens U.S. democracy and national security
Although the stated purpose of executive order 13957 was to hold federal employees more accountable for poor performance, many saw it as a pretext for extreme housecleaning in the executive branch. Within days of the order’s issuance, Federal Salary Council Chair Ronald Sanders resigned. In a letter to Presidential Personnel Office Director John D. McEntee, Sanders noted that he was a lifelong Republican who had served three Democratic and three Republican presidents and described Schedule F as “a smokescreen for what is clearly an attempt to require the political loyalty of those who advise the President, or failing that, to enable their removal with little if any due process.” Refusing to serve an administration that seeks “to replace apolitical expertise with political obeisance,” Sanders emphasized, “Career Federal employees are legally and duty- bound to be nonpartisan; they take an oath to preserve and protect our Constitution and the rule of law…not to be loyal to a particular President or Administration.” Subsequent statements from some prominent Republican members of Congress, as well as conservative groups, have confirmed Sanders’ assessment—and their intent to support implementation of Schedule F or a similar measure again.
Rep. Jim Jordan (R-OH), one of the Trump administration’s closest allies in Congress, described his conversation with another ally on his recommended strategy for an incoming administration: “‘Fire everyone you’re allowed to fire. And [then] fire a few people you’re not supposed to, so that they have to sue you and you send the message.’ That’s the way to do it.” And Rep. Jody Hice, (R-GA) sought to amend the PPSA in the House by deleting the entire text and replacing it with language codifying Schedule F as federal law.
The Center for Renewing America, led by Russell Vought, reportedly is preparing policy papers outlining a plan to dismantle the administrative state. Notably, Vought led one of the two agencies that compiled a Trump administration-requested list of positions to be reclassified under Schedule F. This list, as if intended to highlight the scope of the executive order, proposed reclassification of 68 percent of the U.S. Office of Management and Budget workforce.
How the PPSA would allow civil service employees to do their jobs with impartiality
In a September 6, 2022, open letter, eight former defense secretaries and five former joint chiefs of staff warned of the national security implications of extreme executive branch politicization. They described the “extreme strain” on civil-military relations, explaining that military leaders face “an extremely adverse environment characterized by the divisiveness of affective polarization.” The letter urges a return to core principles of civilian-military relations, including “trust upward that civilian leaders will rigorously explore alternatives that are best for the country regardless of the implications for partisan politics and trust downward that the military will faithfully implement directives that run counter to their professional military preference.”
More than 70 percent of the 2 million career civil servants work in national security-related agencies, including the U.S. departments of Defense, State, Energy, and Treasury. They work in complex policy areas that often involve significant national risk. The current civil service rules protect these employees from political reprisal, enabling them to offer advice that may be unwelcome; to implement difficult or controversial policies; and to report illegal or unethical activity and misconduct, in fulfillment of their oaths to protect and defend the Constitution. Passage of the PPSA would help ensure that such protections remain law.
Without strong civil service protections, the national security establishment—including the intelligence community and State Department—faces a major threat. Some of the most sensitive positions include Russian defense strategy, Iranian nuclear programs, and Chinese regional security capabilities. The potential for such policy roles to be reclassified as Schedule F, leaving them exposed to the political whims of a future administration, poses a danger to national security by “removing and replacing civil servants—whose work … requires expertise, relationships, and clear understanding of risk—with individuals with no required qualification except loyalty to a single individual.” A small sampling of the thousands of positions that could be in the crosshairs of any implementation of Schedule F reclassification include the directorships of: the Office of Multilateral and Nuclear Affairs; the U.S. National and Nuclear Risk Reduction Center; the Office of Analysis for Terrorism, Narcotics, and Crime; the Office of Missile, Biological, and Chemical Nonproliferation; the Office of International Health and Biodefense; and the Office of Countering Violent Extremism. Politicizing even one of these positions could seriously jeopardize U.S. national security.
At a minimum, stripping civil service protections from these employees would complicate their decision-making in instances requiring candor, integrity, and principle. Although the performance-related impacts of civil service politicization are impossible to predict, research by Vanderbilt University professor David E. Lewis “shows that appointees are associated with lower federal government performance and less responsiveness to the public. There simply is no body of evidence that suggests that allowing partisans to fire career officials in highly politicized settings improves performance. Indeed, what evidence we have suggests the opposite.”
Other fallout is easier to anticipate. Mass terminations of policy-adjacent civil servants would leave a vacuum of experience, networks, and institutional knowledge that could not be easily replaced with employees whose main qualification is their loyalty to an administration. In the foreign policy arena, the lack of continuity could be downright destabilizing. Domestic government programs and operations upon which almost every American relies could grind to a halt. Moreover, resignations could go hand in hand with terminations. According to the OPM, as of 2020, approximately one-third of the federal workforce would be eligible for retirement within five years. Faced with the possibility of political termination, reclassification could push many employees to retire and others to find new jobs. Although it is unclear if employees lost as a result of the implementation of Schedule F reclassifications would be replaced, recruiting qualified replacements to the desired extent could be difficult.
In recent years, the United States has seen a resurgence in partisan attacks on the integrity of federal civil servants and the existing merit-based civil service system. Passage of the PPSA is critical to protect the government’s stability, reliability, and authority in domestic functions and international relations.
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