The Spoils System has been around as long as politics – to the victor goes the spoils – political appointments. President George Washington attempted to push back on this effect during his two terms as President. He utilized “fitness of character” as the primary litmus test for government employees. Washington’s efforts were noble in practice, but under subsequent Presidencies many desired positions in government were simply being paid for through bribes. The election of Andrew Jackson brought about a reversal, as Jackson employed a completely partisan approach to staffing. The stated motivation was to ensure a more representative cross section of government employees – not just the rich and powerful. And so the Spoils System became the official staffing policy in our government. And the level of corruption was exactly the same as before – and perhaps even intensified.
After the end of the Civil War in 1865, to a nation weary of strife and conflict, corruption and outright theft at the federal level of government had became more obvious, leading to calls for reform. It was not until the assassination of President Garfield by Charles Guiteau in 1881, that reform measures gathered national strength. Guiteau supposedly shot Garfield because he believed the President owed him a governmental position for assistance provided during the election. The acting vice-president, Chester Arthur – himself a beneficiary of the Spoils System – apparently took notice of the national temperament and helped push through new civil service reform legislation after he assumed the Presidency. On January 16, 1883, the Pendleton Act – named after George Pendleton – one of the law’s primary sponsors and the losing vice-presidential candidate running against Lincoln/Jackson – became law.
The assassination of President Garfield and the public’s desire to reduce graft certainly played a role in the Act’s creation but there were other equally powerful elements at work. Democrats had begun to advocate against the Spoils System as a means to loosen the stranglehold Republicans had on government at the time. They were so successful in their efforts – and helped by events of the period – that they suddenly and surprisingly found themselves holding both the Congress and the Presidency. Democrats desire for reform waned sharply now that they found themselves in political power but Republicans, in turn, picked up the reform banner – and subsequent events led to the law’s passage.
The Pendleton Act led to the creation of the Civil Service Commission which created a series of examinations – civil service exams – to ensure that political favoritism was removed from the system. It also prohibited mandatory political campaign contributions from federal employees known as “Political Assessments” – which amounted to 75% of all campaign contributions. Protection that had earlier been applied to a very small slice of government employees, was now applied to all federal civil service workers. An early attempt at campaign reform.
The Pendleton Act covered the hiring of federal employees – but not their firing. In 1897, President McKinley issued an executive order that federal employees could only be fired for “just cause”. The executive order was strengthened in 1912 by the Lloyd-LaFollette Act which prevented interference by future presidents. Procedural protections were also strengthened and the Civil Service Commission created an administrative review system. And thus, a new bureaucracy was born.
In 1978, in response to increased union presence and allegations of improper handling of racial and sexual discrimination, Congress enacted the Civil Service Reform Act. This act provided for a Merit System of hiring. It also created a bureaucratic monstrosity.
The Civil Service Commission was divided into the Office of Personnel Management – a new Executive Level Agency – and the Merit Systems Protection Board which handles employee appeals. Additionally, the Federal Labor Relations Authority was created to oversee unionized federal employees. The Equal Employment Opportunity Commission, founded in 1965, was given jurisdiction over implementation and enforcement of antidiscrimination law. A large bureaucracy was now rendered monolithic.
Initially, only 10% of federal positions were covered by the Pendleton Act. By 1919, 70% of positions were covered. Today, more than 90% of federal employees are covered under the Pendleton Act.
You can probably see where this is going.
According to a USA Today 2011 study, “the federal government fired 0.55% of its workers in the budget year that ended Sept. 30 2011 — 11,668 employees in its 2.1 million workforce. The job security rate for all federal workers was 99.43% last year and nearly 100% for those on the job more than a few years.” That’s about one-sixth the rate that applies to private sector workers – and the real comparison is actually worse given that the large majority of federal employee firings happen during their probationary first year. As noted in the article, “rates below 1% in the firing and layoff components would indicate a serious management problem”. The problem lies with the difficulty in firing federal employees. The process can take 18 months or longer. And even then, employees can file an appeal with the Merit Systems Protection Board – the Agency created by the Civil Service Reform Act. Employees are allowed two appeals – the first takes about three months – the second appeal takes nine months or more. So, in order to fire a federal employee, a supervisor must be willing to take action that seems to be politically frowned upon, wait as long as 2 1/2 years – and open himself up to review from the Merit Systems Protection Board.
As noted by a 2015 General Accounting Office study; “The process for dismissing an employee after the probationary period ends can be complex and lengthy… The probationary period for individuals entering the federal service is the ideal time to remove those who cannot do the work required of the position… Effectively addressing poor performance has been a long-standing government-wide challenge.” The employee statistics cited in this report back up those in the USA Today study.
The net effect is that federal workers are almost never fired for poor performance – virtually all of the actual firings come from real misconduct – or from federal employees in their probationary first year. Once a federal employee makes it past their initial probationary year they are far more likely to die in their job then they are to get fired or laid off. In the case of a problem employee the better answer seems to be ignore, transfer or promote.
If you want to raise your blood pressure take a quick look at this list compiled by Daily Caller News Foundation. They highlight 11 of the more egregious employee violations at the EPA that went either unpunished or generated what can generously be described as nominal repercussions. Here’s one such instance from the list:
“An SESer [Senior Executive Service level employee] intervened on a Canadian environmental review process for the Trans Mountain Pipeline Expansion Project while owning over $30,000 worth of stock in the company. The “EPA had provided the senior executive with a letter of caution in September 2013” about the potential conflict of interest. The punishment? Verbal counseling.”
In another recent example, the embattled VA acknowledged that it will take almost a year to fire a VA nurse who operated on a patient while drunk. Seriously. A VA official described the process thusly:
“The minimum amount of time that it takes is 270 days from the date of issuance of the proposed major adverse action, but it takes time to gather the evidence and write the proposal notice prior to its issuance. Extensions of these timelines are often granted during the reply period to the proposal notice and during the appeal process, at the appellant’s request, in order to ensure the appellant’s due process is not violated so as to cause a 3rd party to overturn the decision in federal court.”
Honestly, I’m not entirely sure what he said.
Jason Chaffetz, the chairman of the House Oversight and Government Reform Committee, has said his committee is exploring a broad agenda that includes “measures to fire federal employees faster, increase pay for some, change retirement plans for new workers, and to move some government operations out of Washington, D.C.” Chaffetz wants to do away with federal workers’ defined benefit pensions and replace them with 401(k) plans which is sparking predictable outrage amongst federal unions.
President Trump has enacted a hiring freeze on federal workers but so much more remains to be done and the process will not be easy.
Rep. Elijah Cummings, the top Democrat on the oversight committee, has already stated that he would “fight any effort to roll back civil service protections”.
The Obama Administration stalled any and all efforts at federal employee reform, now Chaffetz’ committee has new life under a Trump Administration.
But it’s likely to be a long road.
The Pendleton Act is illustrative of all that is wrong with Washington. Start with an initial idea that has some actual merit – de-politicize hiring and introduce measures of fairness – and then allow the political bureaucratic process to completely subsume, distort and transform the original intent – creating a problem that is far worse than than the original problem was – one we cannot rid ourselves of.
Congress has never touched anything that they have not made worse.
Trump came to drain the swamp. He found an ocean.
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