The Honorable Kiran Ahuja Director, U.S. Office of Personnel Management 1900 E. Street, NW Washington, DC 20415
Via electronic submission: www.regulations.gov
Subject: Docket ID: OPM-2023-0013; RIN: 3206-AO56
Dear Director Ahuja:
The Project On Government Oversight submits the following in response to the solicitation for public comments by the Office of Personnel Management regarding updates to regulations to reinforce civil service protections and merit system principles, published in the Federal Register on September 18, 2023.1 We appreciate this opportunity to weigh in on these important matters by responding to the proposed changes. POGO supports OPM’s proposed updates to protect the American public from a partisan politicized overhaul of the federal civil service.
Our country is at a precipice right now, as factions battle between two competing visions of government: freedom or authoritarianism. Nearly three years ago, loyalists to then-President Donald Trump attempted to subvert the results of a free and fair election, first through procedural and judicial mechanisms, and then by unleashing a violent mob to seize control of government by force, preventing a peaceful transfer of power. As tragic as that day and its aftermath were, we now face a greater danger: the dismantling of the civil service and a takeover of independent institutions of governance that risk creating a truly lawless federal government.
Our government and civil service belong to the American people, not the president. Powerful actors, who are threatened by their inability to assert control through legitimate means, would prefer to tear down our democratic mechanisms of government and keep this country divided, so long as they can rule over what remains. We must ensure the American people retain the full benefit of the rights, privileges, and freedoms that come with living in this country, lest we allow these freedoms to erode and see them stripped away.
Merit-Based Civil Service
The growth and evolution of our modern merit-based civil service — a system centuries in the making — has never been inevitable. For 140 years, Congress has legislated to end the spoils system of the 19th century, passing the Pendleton Act to begin establishing a merit-based federal workforce, the Lloyd-La Follette Act to provide initial due process protections, the Hatch Act to better prevent partisan influence in the civil service, and the Civil Service Reform Act to further protect federal civil servants.2 These reforms have been slow and deliberate, and we recognize the need to go further to protect against corruption and ensure our civil service remains accountable to the people.
However, we adamantly oppose stripping federal employees of due process protections, not only for the workers themselves but in recognition of the vital role they play in keeping our federal government accountable to the people, to speak out and expose waste, fraud, corruption, and wrongdoing, and to keep our communities safe.
Whistleblowers play a critical role in the oversight process, regardless of which political party controls the White House. During previous administrations, we learned about wrongdoing and illegality within our government thanks to individuals who refused to obey unlawful orders or blew the whistle, and thereafter had their careers ended or curtailed.3 No president wants to be embarrassed by public scandal, and presidents often take an adversarial approach to whistleblowers in their administrations, but policies initiated by the last administration would go far beyond precedent to punish any civil servant for any reason.4
Trump’s executive order to create “Schedule F” would allow the president or a political appointee to fire a career employee who refuses to violate the law, and to replace them with someone who would obey. It would greatly expand executive power to purge the civil service through mass firings and pack the government with staffers loyal to the president’s political agenda, without regard to the law or the well-being of the people.
Schedule F could have impacted tens of thousands or even hundreds of thousands of employees across the country and potentially gutted federal agencies.5 It could have shattered the civil service and risked undoing centuries of progress, returning us to the spoils system of the 1800s.
The Founders knew the dangers of living under autocracy, and thus believed in merit principles: that government jobs should go to officials selected for their honesty, capability, and faithfulness to the law.6 Where they established systems that may sometimes be burdensome or inconvenient, they negotiated these processes to provide for necessary checks and balances.7
However, early presidents deviated from this framework, and under President Andrew Jackson, the spoils system came to full force. It was clear early on what a disastrous system this was, and where it could lead. As Senator Henry Clay wrote in 1832:
It is a detestable system, drawn from the worst period of the Roman Republic. And if it were to be perpetuated — if the offices, honors, and dignities of the people were to be put up to public scramble, to be decided by the result of every presidential election — our Government and institutions, becoming intolerable, would finally end in despotism as inexorable as that at Constantinople.8
Clay’s prognostication later proved correct, as George William Curtis, a founder of the professional civil service, reflected in 1870:
Every four years, the whole machinery of the Government is pulled to pieces. The country presents a most ridiculous, revolting, and disheartening spectacle. The business of the nation and the legislation of Congress are subordinated to the distribution of plunder among eager partisans. Presidents, secretaries [of departments], senators, representatives are dogged, hunted, besieged, besought, denounced, and they become mere office brokers. The country seethes with intrigue and corruption. Economy, patriotism, honesty, honor, seem to have become words of no meaning.9
The Pendleton Act of 1883 established merit-based service, and after serving as Civil Service Commissioner, Theodore Roosevelt made clear that the law was not the end goal, but instead a set of initial reforms to facilitate a larger movement. In 1895, he explained that “civil service reform is not merely a movement to better the public service. It achieves this end too, but its main purpose is to raise the tone of public life, and it is in this direction that its efforts have been incalculable good to the whole community.”10 It is this movement’s dedicated progress, to better both the public service and tone of public life, that opponents of a merit-based system are threatening to undo.
While some claim in front of more bipartisan audiences these retrogressive reforms would promote more “accountability,” and “an executive branch that is responsive to the public,” architects of these plans are open about wanting to return to the spoils system.11 They have made it clear that their goal is a government staffed not by people of any particular merit or integrity, or interest in serving the public, but rather by partisan loyalists who will keep quiet instead of holding those in power accountable. That may also include deliberately appointing to leadership positions people opposed to the agencies in which they serve, who will work to undermine their agencies’ missions and make the government less effective.
“We need to flood the zone with conservatives,” said Paul Dans, former chief of staff for the Office of Personnel Management, and director of the 2025 Presidential Transition Project.12
“The president Day One will be a wrecking ball for the administrative state,” said Russ Vought, former director of the Office of Management and Budget. (In 2020, Vought classified 88% of OMB employees as Schedule F, where they could have been fired at will.)13
“I think the first thing you need to hire for is loyalty…[Y]ou can learn policy. You can’t learn loyalty,” said Andrew Kloster, former associate director for the White House Office of Presidential Personnel.14
“We are failing unless we are disrupting, discrediting, and destroying these people. Until we adopt the Jacksonian approach … which is to throw the bastards out, all of them, we will still be living in the progressive folk tale,” said Theo Wold, former deputy assistant to the president for domestic policy, referring to civil servants.15
Let the record be clear: Those who support dismantling a merit-based civil service do not seem to be concerned about being accountable or responsive to the public. And that lack of concern leads them to make arbitrary decisions on major issues with little regard for results.
When the Department of Agriculture’s Economic Research Service was abruptly relocated to Kansas City — after declining to follow USDA’s own evidence-based process for determining whether to relocate — it lost half its staff, and decreased its productivity, setting back its important work.16 USDA’s Economic Research Service’s critical mission is to research and analyze trends and issues impacting the agricultural and rural economy, including farm households’ well-being and investments in rural communities, to inform and enhance public and private decision-making. In years of drought, extreme heat, and other exacerbating climate impacts, the people most hurt by those who play politics with federal agencies aren’t government employees. They’re farmers, families, and rural communities.
Staffing Government by Ideology Increases Chaos
Experts and journalists have highlighted the catastrophic results that follow when government staffing is based on ideology rather than merit. After the Iraq invasion, the Heritage Foundation was tasked with staffing the U.S.-led provisional government in that country, an experiment with disastrous results.
Rajiv Chandrasekaran, former Baghdad bureau chief for the Washington Post who covered the postwar period, explains:
It was a bunch of young kids — had no experience managing finances — who were given the task of running Iraq’s budget. … They finally discovered that what had tied them together was that they had all applied for jobs at the Heritage Foundation. … Instead of casting out widely for people with knowledge of Arabic, knowledge of the Middle East, knowledge of post-conflict reconstruction, they were after the political loyalists … people who would be unfailingly loyal to the president. … The hiring process involved questions that would have landed a private-sector employer in jail. They asked people what their views on Roe v. Wade were, whether they believed in capital punishment. A man of Middle Eastern descent was asked whether he was Muslim or Christian. People were asked who they voted for president.17
Opponents of the civil service who plan to “flood the zone” and take a “wrecking ball approach,” echo the Iraq occupation, according to writer and historian Geoffrey Kabaservice: “21-year-old kids who just came out of Patrick Henry College running a country into the ground … That sounds like their vision for America.”18
They may not have had any relevant experience or expertise, but they could pass an ideological loyalty test. This is the level of incompetence that people running the government would have under a patronage system. The Heritage Foundation is already compiling lists of names to be installed in place of experienced civil servants. Except only this time, instead of trying to prop up government institutions, they are explicitly trying to tear them down.19
People who work for the federal government live in every state across the country.20 They play a critical role in protecting the public: They provide emergency care, research infectious diseases, monitor food safety, develop new technologies, deliver disaster aid, extinguish wildfires, investigate crimes and unsafe workplaces, enforce our laws, deliver our mail, fight the flow of illicit drugs, fund infrastructure projects, build roads, bridges, and highways, protect our national security, and ensure that federal taxpayer dollars get distributed to communities in need.
Merit-based hiring ensures that the people who serve in these important positions have not been hired for ideological reasons or only for their personal gain. Merit principles lead to better transparency, policy expertise, and agency management.21 They let us trust that those who do these critical jobs are qualified to do them, and they help ensure those jobs are done well. Every day, we entrust to government employees hundreds of serious responsibilities, including the responsibility to sound the alarm if they witness corruption or malfeasance within the administrations they serve.
Due process protections are a vital safeguard against retaliation. They allow employees to come forward without fear of losing their jobs. Even with civil service protections, it is already difficult for people to resist pressure from the White House or a presidential appointee and speak out about unlawful or corrupt activity. Stripping those protections would have a further chilling effect, as people would be far less willing to risk their careers by calling out corruption. Over time, it could eliminate whistleblowing altogether, as civil servants whose loyalty is to the American people are gradually replaced by those who pledge their allegiance to a party or an individual.
These changes would even further consolidate power in the executive branch. If employees fear being punished for speaking out within their agency, testifying in Congress or responding to Congressional inquiries, or speaking the truth to the public, it would harm legislative and oversight capabilities, and government transparency, accountability, and public trust would erode even further. By dismantling civil service protections, a future administration could turn the federal government from a tool of the public good to a weapon against political opponents. After it dismissed all those who disagreed, nobody would be left to stop an authoritarian takeover.22
Dismantling Protections Harms Communities
While these threats to our democratic system cannot be ignored, there are also everyday concerns directly impacting families and communities. The bottom line is that people need their government to work.
Communities recovering from natural disasters need relief to arrive swiftly.23 Small business owners applying for federal grants need to know they are receiving fair consideration for contracts and business opportunities.24 Families need their mail to arrive on time, especially if they are waiting for social security checks, veterans’ benefits, lifesaving medications, and to exercise their right to vote.25 Parents need to know that federal TANF funding is not rerouted to fund a university’s $5 million volleyball arena, and that taxpayer funds aren’t wasted on luxurious conferences.26 Americans need to be able to trust that the information the government provides us about job reports, deadly pandemics, the census, and natural disasters is accurate.27
If we dismantle our professional civil service, disaster relief funding could be determined by electoral maps. Government contracts and grants could be awarded based on the bidder’s relationship with an official, not the quality of the service they provide. Federal benefits could balloon to reward recipients for their loyalty or wither as punishment for lack thereof. What happens when unqualified cronies are rewarded with leadership positions atop FEMA, the Social Security Administration, the U.S. Postal Service, or the Department of Veterans Affairs?
Those who advocate for curtailing merit-based protections may believe that attacking civil servants means punishing far-off government bureaucrats, but it is the American public — our neighbors, our cities, towns, communities, and families — who will suffer the most under a partisan civil service.
Federal aid that is delayed or denied will have the greatest impact on states that rely most on federal assistance — states that are already disproportionately poorer and more rural.28 It is the people in these communities who will suffer under a patronage system that risks upending federal funding and programs. Author Sara Robinson illustrates this impact in her reflection on traveling through small, rural towns:
Every last town with the lights still on is doing it with large amounts of either state or federal money. They’re the county seat — so they have the courts, the jail, the hospital, and the community college. There’s a military base, a dam, national lab, prison, or some other large piece of infrastructure. Or a state or national park nearby that draws in tourists and employees. They’re the port town on this part of the river or coast, built long ago and still maintained on ample public investment; or they’re fortuitously sited near the intersection of two interstates or railroads that funnel in traffic and money to support private business. … Apart from a scant handful of places where the old factory or mine hasn’t yet been closed up and shipped abroad, we have yet to find a surviving small town that isn’t standing on an economic foundation of some kind of government investment.29
It may be convenient to score political points by criticizing the federal government as a whole, but all lawmakers, including those most opposed to the federal government, are quick to take credit for the services government provides.30 They oppose student loan forgiveness, but are eager to accept forgivable government loans themselves.31 They oppose disaster relief for other states, but come back when tragedy hits their state.32 That is because there is no replacing the services the government delivers to their communities, especially in times of need.
Recommendations
To ensure our merit-based civil service can continue serving the American people for years to come, POGO suggests the following changes to the proposed rule:
Limit the total number of employees who may be transferred during any four-year presidential term from the competitive service to the excepted service or from one excepted service schedule to another;
Provide a list of the types of positions that do not meet the definition of “confidential, policy-determining, policy-making, or policy-advocating,” especially positions requiring delivery of services to the public and positions involved with national security, public health, emergency management, whistleblower protection, government ethics, audits, investigations, budget development and execution, medical and scientific research, legal and regulatory interpretation, data collection and analysis, and other positions expected to be performed without political interference; and
Clarify that under proposed § 302.602(b)(6), OPM publishing any such authorizations in the Federal Register should require a solicitation for public comment.
Conclusion
Reactionary demagogues have long been threatened by democracy, if real democracy means the people hold them accountable to serve the public good. We cannot allow those openly clamoring for a completely politicized government to advance the ridiculous lie that they stand for the people. While our democracy may be flawed and complex, it is far preferable to the alternative. The solution is a genuine democracy where government agencies are staffed by a true representation of our population, those committed to serving with integrity, upholding our laws and ensuring the safety and dignity of all people.
President James Garfield described partisan office-seekers as “vultures lying in wait for a wounded bison.”33 Many of those pushing to restore the spoils system have spent their careers attacking civil servants and building distrust in government. And outsourcing work ordinarily done by federal employees to private contractors has not produced the results or savings expected.34 They may now be on the verge of wounding our government to the point where, like vultures, they can swoop in and feast on what remains. After all, as journalist Nathan J. Robinson wrote, “the people least qualified for power are those who are most convinced that they should have it.”35
Thank you for your consideration of this comment and OPM’s efforts to strengthen merit-based principles and protect the public from a partisan politicized civil service.
See, for example, the letters of John Adams about President George Washington judging applicants for public office “more independently than any man I ever knew” and hoping to “never see the time that any man will have influence with him beyond the powers of reason and argument.” John Adams, Vice President, to Sylvanus Bourne, August 30, 1789, https://csac.history.wisc.edu/wp-content/uploads/sites/281/2020/10/JA-to-Sylvanus-Bourne.pdf.
7
See Immigration & Naturalization Service v. Chadha, 462 U.S. 919, 959A (1983). (“[I]t is crystal clear from the records of the Convention, contemporaneous writings and debates, that the Framers ranked other values higher than efficiency. … The choices we discern as having been made in the Constitutional Convention impose burdens on governmental processes that often seem clumsy, inefficient, even unworkable, but those hard choices were consciously made by men who had lived under a form of government that permitted arbitrary governmental acts to go unchecked.”), https://www.courtlistener.com/opinion/110985/ins-v-chadha/; Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 629 (“The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.”) (citing Justice Brandeis, dissent, Myers v. United States, 272 U.S. 52, 293), https://www.courtlistener.com/opinion/105018/youngstown-sheet-tube-co-v-sawyer/.
Emily Wagster Pettus, “’It’s shameful and disgusting’: Mississippi cuts welfare to the poor nearly 90% while sending it to Brett Favre and other connected players,” Fortune, January 3, 2023, https://fortune.com/2023/01/03/mississippi-welfare-scandal-brett-favre-aid-to-poor-cut-nearly-90-percent/; Mark Knoller, “GSA head resigns after scathing IG report,” CBS News, April 2, 2012, https://www.cbsnews.com/news/gsa-head-resigns-after-scathing-ig-report/.
Quoted in Linda J. Bilmes and W. Scott Gould, The People Factor: Strengthening America by Investing in Public Service (Washington DC: Brookings Institution Press, 2009), 15.
