Walt Shaub: This
podcast is sponsored by the Project On Government Oversight, a nonpartisan
independent government watchdog.
Virginia Heffernan: Welcome
to The Continuous Action. I’m Virginia Heffernan.
Walt Shaub: And I’m
Walt Shaub. Today we’re talking about the mythical deep state, sort of.
Virginia Heffernan: Donald
Trump’s phantasmagorical boogeyman, the deep state, the same bureaucracy that
he claims is so incompetent, is also the flawlessly executed conspiracy of
millions.
I don’t understand it.
Walt Shaub: To be
honest, we’re not really talking about the deep state. Not exactly, but we are
talking about an attempt to politicize the civil service by people who like to
pretend there’s a deep state.
Virginia Heffernan: All
right, well, let’s back up and explain what you mean when you say
“politicize.”
Walt Shaub: For
context, we need to go all the way back to the 19th century. Back then,
presidents would come in and fire everyone in the government so they can
install party loyalists at every level of the government.
Virginia Heffernan: I
remember some multiple choice tests when I was, I think in seventh grade, all I
remember is the answer was, “C. party hacks.” and I think it was something
about the spoils and the political patronage system. It actually was really
called the spoils system, after the old saw about the spoils of war going to
the victor.
Walt Shaub: Right?
And the problem is that when you prioritize party loyalty as the chief
qualification for hiring federal officials, you don’t get the best and the
brightest. Under the spoils system, you get entitled political operatives who
put party over country.
Virginia Heffernan: That
started to change after the shooting of President James Garfield, as we both
remember clearly when it was on the news.
Walt Shaub: Reformers
were already trying to change things by then, but that shock to the system was
the impetus for a law that began the shift away from the spoils system to the
merit system. Two years after Garfield’s shooting, Congress passed the
Pendleton Act, which reserved about 10% of federal positions for merit-based
hiring, meaning people were hired based on their qualifications, their
experience, their skills, rather than their party loyalty. The government now
had to hire the most qualified candidates for those jobs, and over the next
hundred-plus years, that system expanded.
Virginia Heffernan: Can you
imagine? Qualified candidates? It seems deranged to me that anyone would’ve
wanted a government full of political operatives instead of people with
knowledge, skills, and abilities to serve their country. This is where you and
I get into real Jimmy Stewart territory, like, “Why would they ever want party
hacks?” You’re not going to get effective government services that way, and if
you’re going to pay taxes or give people power over your lives, don’t you want
people who know what they’re doing? You want public servants who serve the
public, not politicians, right?
Walt Shaub: That’s
right. When I said the merit system continued to spread over the next century,
we now have a government with about 2.1 million civilian federal employees, and
only about 4,000 of them are political appointees. Only 4,000 are chosen based
on their political loyalty, and the other 2.1 million have to be hired,
promoted, fired, based on their knowledge, skills, and abilities — their
merit.
Virginia Heffernan: It’s not
just that they’re chosen by merit. They’re protected by laws designed to keep
them loyal to us, the public, instead of to political masters and overlords.
There’s a legally protected right to refuse unlawful orders, and most of them
can file an appeal with an independent board if they get fired, which prevents
political bosses from retaliating against them for blowing the whistle on
corruption.
Walt Shaub: It was, after all, a civil servant who blew the whistle when the
last president tried to extort Ukraine into investigating his political rival
and interfering in our elections by withholding military aid that Ukraine
needed to defend against a Russian invasion. Now that Russian forces have
invaded and are murdering Ukrainians, the danger of that extortion is painfully
clear.
Virginia Heffernan: Well,
that’s an interesting example. I mean, do you think that has anything to do
with efforts to politicize the civil service?
Walt Shaub: I think
that has everything to do with it. I have a sound clip for you, Virginia. This
clip was found by one of my colleagues in the government watchdog community,
Brendan Fischer, at a group called Documented. This audio’s from February,
2020, and the voice you’re about to hear is Rachel Bovard, who at the time
worked for one of the think tanks pushing the politicization of the civil
service, called the Conservative Partnership Institute.
Rachel Bovard: A huge
area for a lot of movement conservatives in D.C. is the staffing in President
Trump’s administration. We have a ton of conservatives serving there, but we
need more, and we work very closely, CAP does, and then we at CPI also with the
Office of Presidential Personnel at the White House, to try and get good
conservatives in these positions because we see what happens when we don’t vet
these people. That’s how we got Lieutenant Colonel Vindman. Okay? That’s how we
got Marie Yovanovitch. All these people that led the impeachment against
President Trump shouldn’t have been there in the first place. We want to
prevent that from happening.
Virginia Heffernan: All
right, she says they shouldn’t have been there in the first place, about
Alexander Vindman and Marie Yovanovitch. He was a lieutenant colonel, and she
was a State Department official, an extremely experienced area expert. They
were career federal employees, not Trump political appointees, and their
offense here is that they complied with a lawful congressional subpoena and
told the truth.
Walt Shaub: That’s
the thing she says she wants to prevent. She’s essentially saying she wants to
base hiring decisions on political beliefs. That’s the spoils system, and if
you think about it, Vindman was a career military officer, so she’s talking
about rooting in deeply enough into the uniformed ranks of the military
services to predict people’s political allegiances.
Virginia Heffernan: Trump
must have grasped this intuitively, and if he didn’t, maybe his first
impeachment, based on this illegal withholding of aid to Ukraine that you
mentioned, taught him that lesson. I want to play another audio clip of Trump
railing against what he dubbed the “deep state” at a political rally in 2020.
[Audio from campaign rally in Gastonia, North
Carolina] President Donald Trump: And on top of everything else, we’ve
had a soundly defeat; we’re in the process of doing it; it’s much deeper than I
thought. The deep staters, right? We have to beat ’em; it’s much deeper. The
swamp and the swamp creatures are much deeper and much worse than we ever
thought, and there is such a thing as the deep state, who went there?
Virginia Heffernan: There’s
something interesting about the audio clip we just played, if you can bear to
listen to it. We chose it for a reason: The clip is from a Trump rally on the
21st of October in 2020. That was the same day that Trump signed an executive
order that could have politicized the civil service. Tell listeners what the
executive order did.
Walt Shaub: It
created a new category of federal employee called Schedule F.
Virginia Heffernan: As I
understand it, federal employees who got moved into Schedule F would’ve lost
the right to appeal their firing to an independent board, and they would’ve
lost some protections like coverage by a law that explicitly says they can’t be
fired for refusing unlawful orders and can’t be fired, believe it or not, based
on their political affiliation.
Walt Shaub: It
would’ve left them vulnerable to political masters who could take away their livelihood
if they didn’t shut up and go along with any corruption or illegal thing the
administration cooked up. The real beneficiary of civil service laws is the
American people, because those laws protect us against a massive federal
workforce becoming loyal to a rogue politician instead of the rule of law.
Virginia Heffernan: Explain
how an executive order could overrule civil service laws. Between an executive
order and a law, the law should win in most cases. It’s the higher authority,
right?
Walt Shaub: In this
case, there’s an argument that the executive order wasn’t actually inconsistent
with the law. It would definitely have been challenged in court, and depending
on how the government implemented the executive order, the employees might have
won. But the administration’s argument would’ve been that a loophole in the law
says that the president can pull any number of positions out of the coverage of
the civil service laws, and there is such a loophole.
Virginia Heffernan: I feel
like we all should have this kind of emblazoned on our bathroom mirrors. Why
have laws, if you’re just going to say the president can ignore them?
Walt Shaub: This was
another case of norms and expectations falling apart when they met Trump. In
the past, presidents were always restrained in their use of this loophole. I
did some research and was only able to find about 1,500 positions in the Obama
administration that President Obama had exempted from the civil service laws;
these were typically confidential assistants to political appointees. But the
way Trump set up the new Schedule F category of employment, he could have tried
to exempt tens of thousands, or hundreds of thousands, of positions. This could
be a matter of turning a 2.1 million federal employee workforce into a fist of
an authoritarian-leaning president.
Virginia Heffernan: As it
happened, he ran out of time. He lost the 2020 election, and the next president
rescinded the executive order that created Schedule F, so that was a close
call.
Walt Shaub: Close is
right, but we’re not out of the woods, because the loophole still exists.
Virginia Heffernan: I saw the
report in Axios by Jonathan Swan, who said, there’s a whole movement
afoot to bring Schedule Effed — I mean Schedule F — back next time someone who
is hostile to the merit system is in the White House.
Walt Shaub: The
threat is real, and it’s operating right out there in the open. I honestly
think this is one of the biggest threats democracy faces in the United States
right now.
Virginia Heffernan: It has a
lot of competition, but I’m beginning to think you’re right. If a future
president can politicize the civil service, there might be no one left to stop
the government from engaging in all kinds of nefarious illegality.
We’ve brought in an expert to talk more about this today. Rudy
Mehrbani is a senior director for governance at the Democracy Fund. He’s a
former director of the White House Office of Presidential Personnel, so he was
personally involved in political appointments. Here’s the interview.
Rudy Mehrbani: There is
a legitimate case to be made that the president deserves to have their own
team, they deserve to field their own team, so to speak, and that in order for
them to successfully achieve the agenda that they’ve laid out, that they need
to make sure that they have people whose priorities and policies align with
their vision, with their agenda. Recognizing that, however, there are a host of
jobs where we, as Americans, don’t really care about the president’s agenda. Or
at least we shouldn’t, and we don’t really care about their political
priorities when we think about these jobs. We really want people who are going
to give the leaders of the agencies the best advice, and whose advice will
dictate the direction of a program. When you think about, “How do we keep our
air and water clean?” Or, “How we administer our social security system?” Or,
“How do we conduct the census process? Or prepare for a future pandemic?”
These are all complicated, tough jobs where we want the best
people hired for them. And the people who do those jobs, they really need to
have specific backgrounds and expertise. That is actually the basis for how our
federal government first moved away from the spoils system under which we had
grown accustomed to in the mid-19th century, when government became more
complicated as the country was industrializing.
Walt Shaub: It’s
interesting, because I think one of the key concerns about politicizing the
career positions, as you’ve emphasized, is that you really need the highest
quality people. You need a merit-based system to make sure that the people
preparing for a pandemic, or responding to a hurricane, or a nuclear power
plant meltdown, have the capabilities to do what they need to do. I think
there’s also a second concern, and that’s that there are some functions of
government that really need to be carried out objectively. It would seem
ludicrous to think of a Democratic air traffic controller or a Republican air
traffic controller: This is somebody who should be guiding planes down safely,
not giving priority to the airline company whose CEO supported the current
president. Or it chills my bones to think about a Republican or Democratic
criminal investigator. We want our criminal investigations carried out
objectively. Do you think that idea of a neutral federal workforce could seem
threatening to a president with authoritarian leanings or political appointees
who want to misbehave?
Rudy Mehrbani: Yeah, the
short answer is absolutely. But before I expand on that, I just want to agree
with your point that most of what the government does is not at all influenced
by which political party is sitting in the White House — or at least it
shouldn’t be, if government is operating the right way. When you talk to
average folks about those different functions in government, whether it’s
making sure that planes are taking off and flying across the country and
landing safely, or that your drinking water is safe for you, or that your
Social Security check goes out in time, or that Medicare is handling your
claims responsibly and appropriately, almost everyone agrees those are good
things and that government should be supported to do all of those things
effectively. It’s only when you focus on these divisive issues where you have
political appointees getting themselves involved in them, where you get some of
the polarization and the division that our media spends most of the time
talking about, unfortunately.
But you’re absolutely right. A federal workforce, they serve to
effectuate government policy and implement programs, but they also serve as a
guardrail against abuse. Now, I think to you and me that seems obvious, because
we’ve been inside federal agencies, we’ve worked with career officials, we
understand what their incentives are. And the president’s own team, they don’t
have the same incentives to hold the president, or their fellow political
appointees, accountable. That’s why you need these quasi-independent actors to
provide a check against abuse.
Now that could be the career officials, it could be ethics
attorneys, it could be inspectors general. Those internal checks provide
certain accountability that I think the American people expect and want. They exist,
similarly, if you’re running a public company, you bring in accountants to make
sure that things are operating appropriately, you don’t just count on the
leaders of those organizations to rubber stamp what it is that they’re doing.
Now, we saw the significant role that career officials can play as a check on
executive branch abuses during the Trump administration. President Trump’s
first impeachment would not have happened had it not been for career officials
blowing the whistle and then willingly testifying before Congress about the
wrongdoing they witnessed.
Walt Shaub: There
were at least some people in the Trump administration who wanted to unfetter
the president, and they came up with something called Schedule F. Can you tell
us what that was and what it was intended to do?
Rudy Mehrbani: Sure.
This was an executive order that President Trump signed in the closing months
of his administration. Now, the overarching goal was to exempt policy-oriented
roles from the competitive hiring rules and protections that we previously
talked about. It was intended, essentially, the way it was billed publicly, it
was for the president to root out these deep state actors, quote-unquote “deep
state actors,” who are working to thwart his agenda and his policy priorities.
Now, the way the executive order was written, it referred to positions of a
policy determining and policymaking character that were not subject to change
as a result of presidential transitions, and it essentially excepted those
positions from any sort of adverse action procedures, meaning that there would
be no due process for disciplinary actions, making all of those employees
essentially at-will. Under the executive order, agencies had a certain amount
of time to determine which employees would fall under this new designation, and
then the Office of Personnel Management would review that and approve it.
Now, we only got a glimpse of what this could look like. There was
some reporting that the Office of Management and Budget, which is the agency
within the Executive Office of the President that is designated with doing all
of the analysis around the president’s policies and making recommendations
about the most effective ways to implement those policies and providing advice
and guidance to the other Executive Branch agencies, so it’s just incredibly
important agency, the Office of Management and Budget. Under their analysis,
they determined that 88% of their workforce would fall under this new schedule,
which is just mind-boggling to think that, though — 88% of the folks who are
experts in budget and management and implementation, would be subject to
termination at the will of the president or his political appointees. It was
very concerning. Thankfully, the clock expired on President Trump’s ability to
implement the executive order, and one of the first things that President Biden
wisely did once he was sworn in was to revoke it.
Walt Shaub: One of
the other groups that we know, only from reporting, that they were targeting
was attorneys in various federal agencies. The scary thing about that is the
attorneys are the ones who are supposed to tell management officials when
something’s illegal — “You can do this;” “Oh, the law prohibits you from
doing that.” If you pull all the referees out, then the game becomes just a
free-for-all, and it’s an important constraint that’s lifted off the
agency.
It was also sort of gallows humor, grimly amused at this sense of
the White House that they had to replace these career officials at OMB, because
the Office of Management and Budget, as you say, runs this unbelievably complex
budgeting system, and I can’t even imagine how hapless a bunch of political
appointees who’d never done this before would be. Their brains would melt.
Rudy Mehrbani: Yeah,
you’re highlighting one of the ironies about this approach, which is that, if a
president were to implement it, it would actually make it harder for them to
achieve their objectives.
You’re more likely to get bad policy, you are less likely to
successfully get things through the regulatory legislative process. If you are
able to do that, you’re likely to stumble and to have your regulation enjoined
or rolled back by the courts, because if you haven’t checked all the right
boxes, if you haven’t gone through the right process, and you’ve removed all
the attorneys who are telling you how to satisfy the requirements of the
Administrative Procedure Act, and to make sure that you’re satisfying all the
notice and comment requirements, you’re not going to get these rules finalized.
It makes no sense for a slew of reasons, but that is one of them.
The other thing about it is that, you’re absolutely right: If
officials are operating with this threat hanging over their shoulders, it’s going to create a chilling effect.
They’re going to be less prone to give honest and unbiased advice if they are
fearing the retaliation for their doing so. That will have a lot of downstream
effects too, not just on the way the current employees operate, but also on a
government’s ability to recruit and hire the best people. I don’t know many
people, lawyers or otherwise, who are going to be willing to work under those
circumstances, where they will always have to filter their advice through a
political lens. You increase the likelihood of corruption when you have a
system that allows the president to essentially give out spoils to their
supporters.
I think that that is significantly concerning. You’re talking
about real world consequences both to the country’s national security, but also
to the public health and the lives of Americans across the board, in a number
of different scenarios. You’re also going to further erode the trust that I
think Americans have in our political system generally. We already know that
Americans believe there is too much corruption in our politics. At the end of
the day, I would argue that really, we need to have fewer political positions,
not more, and I think Schedule F really is the opposite of what we need right
now in our federal government and in the Executive Branch.
Virginia Heffernan: I’m glad
we got to talk to Rudy Mehrbani about this issue. The bureaucratic sounding
name, Schedule F, belies the magnitude of this threat.
Walt Shaub: Honestly,
I think that’s why so many people outside of Washington don’t know about it.
The whole thing sounds so arcane, but it’s incredibly dangerous stuff. Its
supporters have a marketing advantage too, because they package it up as an
effort to make the government more effective and more accountable. In reality,
it’s the opposite. This is about unleashing political operatives, giving them a
free hand to ignore legal constraints and attack the very foundations of the
Republic.
Virginia Heffernan: People
need to be aware of what’s really going on here. I hope we’ve illuminated some
of it for you in this episode.
Well, we’ve come to the end; we’ve got to leave it there. The
Continuous Action is hosted by me, Virginia Heffernan and Walter Shaub.
It’s produced by Myron Kaplan and as always, sponsored by the Project on
Government Oversight. See you next week.
