The Threat Hiding in Plain Sight

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Democracy is facing threats on so many fronts that it can be hard to keep track.

Headlines about armed, masked individuals menacing voter drop boxes, voter suppression, and election denialism understandably seize the public’s attention. But one plot to erode democracy is hiding in plain sight, with its proponents hoping to avoid public notice until the damage is already done. Their goal is to arm the president with nearly unfettered power to use the might of the federal government itself as a political weapon against democracy.

They want to make the federal workforce become loyal to politicians instead of being loyal to the Constitution. To achieve this transformation, they propose to strip federal officials of due process protections that enable them to challenge adverse personnel actions and firings, including those that are politically motivated or rooted in retaliation for blowing the whistle on corruption.

In this edition:

• The archaic spoils system...
• … makes a comeback in Schedule F
• Just how bad things can get
• And how we can make sure it doesn’t go there

To the victor go the spoils

The plot I’m talking about is an effort to send America back to the dark days of the nineteenth century by politicizing the civil service. Back then, new presidents cleaned house, firing most of the workforce and replacing it with partisan loyalists. Critics dubbed this practice of political patronage the “spoils system,” citing the adage about the spoils of war going to the victor.

Since the nineteenth century, we have gradually replaced the spoils system with an objective process of hiring candidates for federal jobs based on merit instead of party loyalty. This shift has insulated day-to-day operations of government from partisan politics. Federal employees can now refuse unlawful orders, and employment laws grant some needed protection to those who blow the whistle on corruption. Federal employees can also appeal politically motivated firings to an independent board, which has the power to reinstate them. As a result, the public can access government services on an equal footing, without having to fear that government officials will discriminate based on their political affiliations.

That could all change if those behind this plot succeed.

Too close a call

A workforce loyal to the Constitution and the law is a threat to a president with authoritarian ambitions. As I’ve written before, when all else fails, an apolitical civil service is the “last line of defense” against authoritarianism. A civil service loyal to the rule of law can stifle the worst excesses of a rogue president. That’s why former President Donald Trump railed against what he dubbed the “deep state.”

After nearly four years in office, Trump may have cracked the code for dismantling the protections that keep the federal workforce loyal to the American people instead of a lone politician. In late October 2020, he issued an executive order that would have created a new type of federal employment. The plan was to transfer career employees into an employment category called “Schedule F,” in which they would lack the right to appeal firings or other adverse personnel actions. But Trump lost the election a few weeks later, and the clock ran out on his term before he could implement the plan. President Joe Biden promptly rescinded Trump’s executive order.

The lawless and the incompetent

The consequences of stripping due process protections for career federal officials would be catastrophic. It’s not far-fetched to imagine a future in which partisan appointees consider the political affiliations of applicants for social security or veteran benefits. Political masters could pressure air traffic controllers to leave commercial airline passengers stranded, circling an airport for hours in retaliation for the head of the airline speaking out against the president. Federal agencies might illegally syphon money slated for states that voted against an incumbent president to bolster the fortunes of states that voted for the president. The White House could direct federal law enforcement agencies to protect allies of the president and investigate perceived political enemies.

Even if the government tried to do the right thing, it might fail if its workforce were to consist of incompetent bureaucrats hired based on their demonstrated political loyalty rather than their expertise in a field. As one commentator, Donald Moynihan, put it, “Schedule F would burn down the civil service system. It would be a government of the lawless leading the incompetent.”

As bad as that sounds, these consequences are exactly what those behind the effort hope to achieve. They want to ensure loyalty to the president and, ultimately, achieve the “deconstruction of the administrative state.”

Unfortunately, Congress has not yet closed the legal loophole that made Schedule F possible, and a future president could resume the effort. News reports indicate that groups supportive of this authoritarian transformation of the government are working hard to refine their plan and enlist members of Congress in their cause. Some members of Congress have openly opposed plans to close the loophole.

Last line of defense

But two members of Congress from Virginia, Representative Gerry Connolly (D-VA) and Senator Tim Kaine (D-VA), have been working to amend federal employment laws and close the loophole. They have introduced companion bills in the House of Representatives and the Senate. In September, the House passed Connolly’s bill, which has three Republican cosponsors. The bill is unlikely to pass in the Senate, where passage requires a supermajority of 60 senators to overcome a filibuster.

There is still hope, however. The House included language from these bills in the annual defense policy bill, the National Defense Authorization Act (NDAA), which it passed in July. The NDAA is a bill that must pass each year because it authorizes our national defense, so members of Congress often add amendments to use it as a vehicle to pass provisions that could not succeed as standalone bills.

The Senate has yet to pass the NDAA, but it will likely do so in the lame duck session before the end of the year. It’s urgent that senators pass a version of the NDAA that contains language protecting the nation against an authoritarian capture of the massive federal workforce. The danger of a politicized civil service full of presidential loyalists should alarm every American. The rule of law itself is at stake.