POGO to Congress: Protect Our National Security from Schedule F

Testimony of Joe Spielberger, Policy Counsel 
Project On Government Oversight 
before the Senate Committee on Homeland Security and Governmental Affairs 
“Ensuring a Trustworthy Government: Examining the National Security Risks of Replacing Nonpartisan Civil Servants with Political Appointees”

Chairman Peters, Ranking Member Paul, and committee members, thank you for the opportunity to submit for the record this testimony about the importance of our nonpartisan merit-based civil service, especially in the context of national security.

I am a policy counsel at the Project On Government Oversight (POGO), a nonpartisan independent watchdog organization that investigates and exposes waste, corruption, abuse of power, and when the government fails to serve the public or silences those who report wrongdoing. We champion reforms to achieve a more effective, ethical, and accountable federal government that safeguards constitutional principles.

Congress needs to strengthen its oversight of the executive branch to root out corruption and achieve the type of government the people deserve. Much of the corruption and abuse of power that Congress hears about — in both Democratic and Republican administrations — is thanks only to whistleblowers, who take grave risks in speaking out. Presidents of both political parties have taken adversarial stances toward whistleblowers and dissenters.¹ However, targeting whistleblowers’ jobs and reputations only ensures that corruption can continue unaddressed. Unfortunately, some in our country would rather exploit legitimate concerns about corruption and accountability for their own partisan means, and they are seeking to reimplement a policy called Schedule F, or one like it, to aid in that agenda. This policy not only would undermine whistleblowing and make corruption more likely to occur, but it also risks dismantling our entire civil service, turning it into a political arm of the president rather than making it more accountable to the people.

Importance of Merit-Based Civil Service

A nonpartisan merit-based civil service is one of the hallmarks of a free nation — in which our government belongs to the people, not an individual president or whichever political party happens to be in power. The development and advancement of our civil service was neither inevitable nor straightforward, but it has steadily progressed for more than 140 years through slow and thoughtful deliberations by policymakers determined to avoid returning us to the spoils system that plagued our government during the nineteenth century.

George William Curtis, who was an early leader of the Republican Party and chaired the commission on reforming the civil service under President Ulysses S. Grant, described that system in this way:

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.²

It was a disgruntled partisan office-seeker who felt entitled to a government job simply because of party membership who assassinated President James Garfield in 1881. This act catalyzed the start of the civil service reform movement; Congress passed the Pendleton Act two years later, signaling that civil service jobs should be filled based on merit, not political affiliation or ideological beliefs. In the nearly century and a half since, Congress has continued to reform and modernize the civil service by, for example, providing “just cause” protections through the Lloyd-La Follette Act, protecting against increased politicization of the executive branch via the Hatch Act, and further protecting federal employees from discrimination and retaliation by passing the Civil Service Reform Act shortly after the Watergate scandal.³

Congress needs to prioritize legislation to ensure better oversight of and accountability within executive branch agencies. Schedule F, however, not only runs counter to our traditional merit system principles but also risks undoing centuries of progress by returning government to the spoils system and the festering corruption it enabled.

Schedule F

Then-President Donald Trump signed an executive order in October 2020 creating Schedule F in the excepted service and authorizing federal agencies to reclassify their employees into these new positions with fewer protections.⁴ This effectively would have made those employees at-will employees, meaning it would be much easier for an administration to fire them for almost any reason. The Schedule F policy exploited a loophole in the Civil Service Reform Act, which exempts from most civil service rules employees in “confidential, policy-determining, policy-making or policy-advocating” positions.⁵ People serving in these positions have historically been understood to mean political appointees who usually leave after a change in administration, not career civil servants who generally serve continuously across administrations, and who the public relies on for institutional knowledge, expertise, and continuity of government services and interagency coordination.

Most of these federal employees have certain due process protections that help ensure they can perform their jobs free from political pressure and that protect them from retaliation when they blow the whistle on abuse of power, corruption, or illegality. They can still be fired for poor performance or other for-cause reasons.

Schedule F would reclassify large numbers of federal employees into political positions: It is estimated that the number of employees impacted by Schedule F would likely range in the tens of thousands, up to fifty thousand or more.⁶ While this may not seem significant given the approximately 2.2 million civil servants,⁷ it would exponentially increase the amount of politicization in the civil service and greatly expand executive power to remake the federal government in a president’s own image. At best, it would usher in a system that prioritizes partisan goals over the Constitution, rule of law, and serving in the public’s best interest. At worst, it would enable an administration to punish employees who refuse to pledge their loyalty to an individual president or political party, and weaponize the tools and resources of the federal government to be used in retribution against perceived political enemies and their supporters, whoever they might be.

Any administration could purge agencies of nonpartisan experts, gut some key agencies or departments altogether, and pack others with partisan loyalists whose allegiance lies first with a president’s political agenda rather than with the Constitution, rule of law, and public good.

In fact, many Schedule F proponents are quite clear that their aims are not for accountability but are indeed to engage in mass firings of nonpartisan federal employees and to hire based primarily on ideological beliefs.⁸

Schedule F had only begun to be implemented before then-President Trump left office and President Joe Biden rescinded the policy. However, what occurred during that short window was disturbing. One of the two agencies that completed their initial reclassification analysis was the Office of Management and Budget (OMB); the administration had reportedly wanted that agency to set an example for other agencies to follow.⁹ OMB, which is responsible for implementing the federal budget, coordinating and allocating resources, and ensuring the performance and effectiveness of other agencies, attempted to reclassify 88% of its entire workforce as Schedule F.¹⁰ Far from what many might assume to be policy-related positions, reclassifications included economists, IT specialists, Freedom of Information Act (FOIA) officers, office managers, human resources specialists, and administrative assistants, greatly expanding the definition of “confidential, policy-determining, policy-making or policy-advocating” to apply to the vast majority of OMB’s workforce.¹¹

Widespread politicization throughout OMB would lead to decisions being made based primarily on partisan aims rather than on delivering the best services to the public or ensuring taxpayer funds are appropriated as Congress intends. Ensuring OMB employees are protected so they can follow the law protects Congress’s Article I powers, especially power of the purse, and particularly with regard to national security appropriations.

Perhaps the most dangerous consequence of Schedule F is that it would likely instill a climate of fear and distrust across the federal government, chilling whistleblowing and dissent and allowing corruption to fester unaddressed behind closed doors. Whistleblowers already take huge risks in speaking out: They put their careers, wellbeing, and sometimes even their lives on the line simply to do the right thing. Who would take such a risk if any hint of disagreement with a particular partisan agenda is likely to put them under a microscope of suspicion, if not cost them their job? How much corruption will occur without our knowledge if we systematically drive out or threaten into silence the people of good conscience serving in government?

National Security Whistleblowers Are Essential to Congress and the Public

Congress is ill-equipped to conduct diligent oversight of the national security apparatus, and historically has needed to rely on whistleblowers to learn of wrongdoing.Whistleblowers are the best positioned to root out and expose waste, fraud, abuse, and other corruption in the executive branch when they witness it, and to act as an essential check on executive branch power and overreach. Whistleblowers have played a vital role in both Democratic and Republican administrations to expose abuse of power and corruption, and they have better enabled Congress to fully exercise its legislative and oversight authorities. National security whistleblowers in particular make some of the most important disclosures because of the safety, security, and civil liberty implications of the corruption they expose. Despite the invaluable role they play in protecting our safety and security, national security whistleblowers are uniquely vulnerable, with fewer opportunities to safely disclose through proper channels and with limited protections from retaliation when they do. 

POGO has been sounding the alarm to Congress for decades about inadequate protections for national security whistleblowers.¹² For example, without more independent appeals processes or access to jury trials in federal court, national security whistleblowers are often forced to appeal for protection from the agencies they are alleging retaliated against them. Additionally, abuse of the security clearance adjudication process is a pernicious form of retaliation impacting national security whistleblowers’ careers, which Congress has not addressed since Navy v. Egan.¹³

Congress’s failure to adequately protect national security whistleblowers steers some of them to leak classified information to attempt to fix problems, and discourages potential whistleblowers from speaking out in the future. In addition, agencies’ abuse of security clearance adjudications can subject employees to undue scrutiny, discrimination, or retaliation — potentially ending their careers — without any real means of redress.

Implementing Schedule F would only exacerbate whistleblowers’ vulnerability and the fundamental threat to national security. There are numerous contexts in which having federal employees with robust protections helps the U.S. government avoid bad decision-making in national security and identify problems after the fact.

Schedule F would also allow an administration that has an underlying goal of creating ideological conformity to install political operatives in important positions, enabling them to manipulate intelligence, suppress unfavorable analysis, and influence decision-makers by parroting only information they want to hear. To ensure the integrity of intelligence and to keep our nation safe, we need people who are committed to speaking the truth. Under Schedule F, we would risk losing those committed public servants who serve with conscience and good character and replacing them with partisan lapdogs willing to obey any order regardless of the consequences. The answer to ensuring robust congressional oversight is to better protect whistleblowers, not further silence them by stripping their protections and instilling this culture of retribution and fear.

Improving Our Civil Service

Since our founding, POGO has held deep concerns about accountability in national security agencies. For more than four decades, we have provided Congress with specific legislative reforms to ensure better accountability, combat corruption and abuse of power, and protect whistleblowers in the military, federal law enforcement, and intelligence agencies. We appreciate the bipartisan interest in making the executive branch more accountable to Congress and the American public. However, Schedule F is an unserious answer to a complicated problem, and it is not what the people want or need.

Recent polling shows that wide majorities favor maintaining a nonpartisan merit-based civil service. Of the 800 adults polled nationwide:

• 87% of Republicans and 88% of Democrats believe that a nonpartisan civil service is important for having a strong American democracy
• 95% of Republicans and 96% of Democrats believe civil servants should be hired and promoted based on their merit rather than their political beliefs
• 90% of Republicans and 91% of Democrats believe civil servants should serve the people more than any individual president
• A majority of respondents, including majorities of both Republicans and Democrats, believe the federal government is less effective when decisions are driven by politics¹⁴

Research also shows that politicizing a civil service leads to worse outcomes: Installing political appointees to manage federal programs — especially employees chosen because of campaign or party experience — is associated with lower governmental performance.¹⁵ On the other hand, recruiting and hiring by merit, protecting career civil servants, and promoting impartiality and professionalism is strongly associated with less corruption and higher government performance.¹⁶ Agencies already have the necessary authority to discipline and fire poor performers; what they actually need is the willingness to hold corrupt officials accountable, especially at higher levels, and to hold managers more accountable for dealing with the poor performers.

Congress needs to legislate to protect the public and our national security from a more politicized civil service. POGO recommends legislation to

1. prevent a president from unilaterally converting employees and positions on a massive scale to strip them of due process protections, including codifying into law the Office of Personnel Management’s new rule strengthening civil service protections;¹⁷
2. strengthen protections for national security whistleblowers, including allowing them to bring retaliation claims to federal court; and
3. overturn Navy v. Egan to end the almost-total carte blanche deference to agency security clearance decision-making.

These reforms would help ensure that employees with critical national security responsibilities are in those positions based on their expertise, and not on ideological beliefs or to pursue a partisan agenda; are able to perform their jobs without political pressure; put their loyalty first to our Constitution and rule of law, and to protecting the American people; and can more safely blow the whistle on abuse of power and corruption without fear of retaliation or further risk to their careers.

Thank you again for inviting POGO to submit this testimony for the record. We are pleased to see this committee engaging on Schedule F and the deleterious impact it would have on oversight, accountability, whistleblowing, and our national security. We encourage Congress to legislate in support of these recommended reforms. POGO is committed to working closely with this committee on such legislation, and we look forward to further engaging with you on these important issues.