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Fix Our Partisan Civil Service

irsAs most U.S. history textbooks teach, Congress passed the Pendleton Civil Service Act not long after a disgruntled office-seeker shot and killed President Garfield in 1881. The goal was to create a competent and politically neutral civil service. I wonder if, over a century and a quarter after America went down that road, the old problem is returning in a new guise, as we now have a highly partisan civil service, albeit one that has civil service protections.[1] 

In this context, it might be worth recollecting the rise of civil service reform. The Pendleton Act gave civil service protections to many federal employees and stipulated that hiring should be on the basis of merit, based upon competitive exams, rather than the preference of the President (or his party). The goal was to ensure as much as possible that laws were interpreted and enforced intelligently, and in a disinterested manner. American judges swear: “I will administer justice without respect to persons, and do equal right to the poor and to the rich.” Similarly, our civil servants should not care if the person under scrutiny is a Democrat or a Republican, is white or black, is Muslim or Christian, when applying the law.[2]

Civil service reform had been on the wish list of the Mugwump reformers of the post-bellum era for quite some time. The fear was that political parties were filling the government with party hacks who were often incompetent and were anything but unbiased in their interpretation and enforcement. They were, presumably, often subject to party pressure.

The crisis, such as it was, of Garfield’s death (his deranged assassin had been seeking a consular appointment) helped them to get the bill through Congress. At first, the reform applied to only a few officers, but in time, more and more government employees gained civil service protections.

Among the leaders of the campaign for civil service reform was Henry Adams, who argued that it had gradually become custom for Presidents to appoint men who pleased their party leaders. As party leaders tended to dominate the Senate, the result was that Senators tended to dominate the executive branch, subverting the separation of powers. Only a formal, legal change could stop this practice and restore the independence of the executive, Adams said. That was not an unreasonable argument. I wonder if today, given the change in the nature of parties, party politics, and, perhaps of the Senate, the same concern is still valid.

One example Adams used was the effort to create a trained and established consular service in America’s offices abroad. Adams belittled the concern, expressed by Congressman James Brooks (D-NY), that:

I should look upon it as a great calamity, a great misfortune to this country, if we should be represented abroad in high places by consular pupils, by men who have been twenty or thirty years from their country. It is necessary for every young man to come home within five or ten years and free himself of the courtly associations and despotic modes of European thinking, to breathe once more the spirit of our free institutions.

Adams’ retort: “This argument was probably suited to a certain class of congressmen.” He even asserted that Congressman Brooks didn’t really believe what he was saying, and was only engaging in the 19th century equivalent of “boob bait for the bubbas.”

Adams was discussing a small corps of officers stationed abroad, whose job it was to issue U.S. visas to foreigners. And the danger of consular officials’ going native was not great. (The problem might, however, apply to policy analysts.) The same, we might say, is also true of clerks at the DMV, mailmen, and other such workers. But is the same true across today’s civil service? Can they “go native,” in a sense, to the government?

There is good reason worry. Nowadays, tenured civil servants do more than carry out basic tasks and provide basic counsel. In many ways, across many governmental departments, they, in effect, write the law, interpret it, execute it, and issue judgments. That being the case, it is ever more imperative that our civil service be unbiased.

Is it? Unlikely. Today’s civil service is staffed overwhelmingly by members of the Democratic Party. At the Internal Revenue Service, for example, donations to political candidates tilt heavily to Democrats. According to the Center for Public Integrity:

Overall, rank-and-file IRS employees donated more than $840,000 to federal candidates and committees from 1989 to 2012, according to the Center’s analysis. Democrats and liberal-leaning organizations received about two-thirds of this sum.

Recall, in this context, that President Nixon tried to get the IRS to go after his enemies but the IRS refused. By contrast, just last week, the IRS had to pay $50,000 to the National Organization for Marriage, after having improperly leaked the group’s donor list to its chief political rival.

The same bias pervades the government as a whole. It is common to refer to the Democrats as the “party of government”—and if the vast majority of one’s friends and coworkers are Democrats, it becomes natural to see the world from a center-Left perspective. Any other perspective seems to be “extreme” and “ideological.” This is merely a predictable result of human nature in action. They are partisans, with a postmodern twist: Their partisanship is, they think, entirely rational, in defense of the goals, values, and beliefs of all reasonable, right-thinking people. In a sense, it’s not partisanship at all.

There are two further complications. For nearly 100 years, Legal Realists have been arguing that law is, fundamentally, a tool by which the well-connected exploit others. More recently, the devotees of Critical Legal Studies have taken that logic still further. To the degree that these notions have shaped the minds of the lawyers who work for the government, it prejudices them against the idea that there is, or can be, such a thing as disinterested interpretation or enforcement of rules. (Perfectly neutral interpretation and execution is, almost certainly, impossible. But that does not mean it’s impossible to come close to that goal.)

Moreover, if the natural bias of a system were to favor some, then bureaucrats, to be “neutral,” might think their job was to tilt in the other direction. Hence a legal interpretation, or a new rule written in the unelected fourth branch, that is in the interest of government workers and supports their ideology is regarded as reasonable. Thus it seemed reasonable to go after Tea Party-friendly 501c(4) organizations. After all, every reasonable person they knew thought Citizens United was wrongly decided. And Tea Party folks were the enemy—trying to subvert all the good things government does.

In addition, the self-esteem of government workers inclines them to the belief that more government is, necessarily, a good. It would be surprising were it otherwise.

Finally, we have the problem that Harvey Silverglate highlights in his Three Felonies a Day (2009): that our legal code is so big, and so steep, and so tall, that most individuals and businesses are quite likely guilty of something. That opens the door to selective prosecution or enforcement.

Beyond that, modern theories further collapse the distinction between making rules and interpreting the law—a distinction that is under serious pressure nowadays, when so much of our legal code is not written by Congress. Recall that Obamacare is 2,000 pages long but yields many times that in legal code. (The recent Hobby Lobby case was about a rule made by the bureaucrats at the Department of Health and Human Services, not a law written by Congress.) That means that we have, in effect, a group of unelected, partisan bureaucrats, with life-tenure in their jobs, writing most of our legal code.

One could call this a postmodern form of robe nobility. Whatever one calls it, it is subversive of the rule of law to take law-writing away from Congress and legal interpretation away from the courts to such a great degree. Add in partisanship, and the problem is still worse.

If we wish to have a government of laws, and not of men, it is therefore crucial that we have a nonpartisan civil service. To do that, we need to have a civil service that does not react instinctively against people with different values than those prevailing among our tenured civil servants. Perhaps it’s time to restore the logic of ruling and being ruled in turn.

Several years ago, the late Senator and Democratic presidential candidate George McGovern was involved in running a hotel. He was surprised by how difficult it was to comply with the regulations involved. More recently, former Democratic Congressman David Bonior complained about the same problem. One suspects that countless men and women in our civil service would, if they entered the private sector, have the same experience. So long as they remain insulated from living under the rules that they write, interpret, and enforce, we will have a partisan and tenured civil service.

[1] Interestingly, a constitutional history textbook, like Michael Les Benedict’s The Blessings of Liberty (2006) skips over civil service reform. At least it’s not considered important enough to be in the index. I have assigned the book in my Constitutional History class, and I don’t recall if the topic is mentioned in passing. Perhaps the bias in “mainstream” constitutional history is against presenting the creation of the unelected fourth branch as a major constitutional revision?

[2] I have noted before that this language probably comes, ultimately, from Leviticus.

Reader Discussion

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on July 10, 2014 at 11:10:59 am

Civil-Service Survey

Here we have an excellent survey of the symptoms reflected In the Civil-Service operations of what has now been established as the Federal Administrative State. While it touches upon some indicators, it does not, however, identify the principal and subsidiary sources of this critical infection in what was to have been the nature of representation necessary for a particular form of republican government.

The principal source of that critical infection has been the failure of the members of the legislative branch in the performance of the trust vested in them.

“There is good reason worry. Nowadays, tenured civil servants do more than carry out basic tasks and provide basic counsel. In many ways, across many governmental departments, **they,** in effect,

**write the law, interpret it, execute it, and issue judgments. That being the case, it is ever more imperative that our civil service be unbiased.**”

How has this come to be? The simplest answer: those entrusted with the powers of the legislative branch have abandoned their responsibilities and thereby devolved those powers to others. It appears they have abandoned those responsibilities in order to focus upon their individual personal interests in electoral matters. Over time the legislative branch has established unelected and non-representative professionals staffs that now carry out most of the basic duties of legislators.

A subsidiary source of this infection is that most legislation produced and given the force of “law,” consists of Rules of Policy which attempt to describe, define, and delineate a **desired** social order and the relationships necessary for it. As the “creation” by professionals staffs, for implementation by “managers,” legislation becomes largely no more than “frameworks” for construction by other managers (of varying capabilities and inclinations) of their operating the effects; shaped in large measure by the amorphous qualities of what is “desired” and why it is “desired.”

In many, many cases “Government Failure,” which is really administrative failure, and administrative overreach result entirely from the breach of legislative trust, not from the quality or inclinations of the minions of bureaucracy who daily struggle to please or mollify their superiors (ultimately, the appropriators).

We should not expect any great change to occur from attempts to examine and correct “deficiencies” in the structure and manning of the Civil-Service – UNLESS – there is a coherent effort to reestablish the performance of legislative trust and acceptance, in full, of legislative responsibility.

To continue as we are, with this form of legislative processes:

“. . .we [shall continue to] have the problem that Harvey Silverglate highlights in his Three Felonies a Day (2009): that our legal code is so big, and so steep, and so tall, that most individuals and businesses are quite likely guilty of something. That opens the door to selective prosecution or enforcement”

which is part and parcel of these attempts to construct a “desired” social order and to control the relationships necessary to it.

There have been the beginnings of movements to extract from the administrative processes parts of the creation and extensions of rules and regulations without specific legislative authority. This is currently “well-stalled,” by reason of the burdens, responsibilities and time demands it will impose on legislators.

In turn, all of this rests upon what the electorate will require of persons who propose to be representatives; whether the electorate will be clients seeking the representation of particular interest or citizens determined on preservation of principles.

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Image of R Richard Schweitzer
R Richard Schweitzer
on July 10, 2014 at 11:19:58 am

"Bureaucracy is the shadow of autocracy". I don't recall who said that but quite true.
As the law and regulations continue to expand the civil service becomes increasingly partisan. It behooves them to engage in expansive regulations, therefore becoming a self feeding and supporting entity. Iron clad job security, benefits galore, seminars in Las Vegas, and naturally politically inspired harassment sure as night follows day, corruption as we see ensues. I think that's called a vicious cycle. The power at the top doesn't help either.
At times the Jacksonian spoils system causes a certain nostalgia, turn the rascals out had it's appeal. It never hurts t0 change rascals and reminds them of constituencies.
It couldn't be any worse.

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johnt
on July 10, 2014 at 12:20:09 pm

In the public’s mind, cancer is a problem whereas gravity is a circumstance -- because we aspire to eventually triumph over the former, but we’re largely reconciled to the latter.

By this token, is Samuelson describing a problem, or merely a circumstance? That is, is there a remedy that would help us reduce the bias inherent in the system? Or is Samuelson merely describing a circumstance to which we should reconcile ourselves?

Legal Realists have been arguing that law is, fundamentally, a tool by which the well-connected exploit others. More recently, the devotees of Critical Legal Studies have taken that logic still further.

Yup, these are quite critical, unromantic schools of thought – not so different than the critical perspective advanced by Samuelson here.

True, Samuelson then distances himself from these schools with a brief foray into romanticism when he suggests that it should be possible to come close to “perfectly neutral interpretations and execution.” By what standard could we judge how well bureaucrats achieve this goal? And in the absence of a standard, what sense does Samuelson’s claim make? Out of the crooked timber of humanity no straight thing was ever made; let he who is without bias cast the first stone.

Several years ago, the late Senator and Democratic presidential candidate George McGovern was involved in running a hotel. He was surprised by how difficult it was to comply with the regulations involved. More recently, former Democratic Congressman David Bonior complained about the same problem. One suspects that countless men and women in our civil service would, if they entered the private sector, have the same experience. So long as they remain insulated from living under the rules that they write, interpret, and enforce, we will have a partisan and tenured civil service.

Yup, and I’m probably less knowledgeable about your field of endeavor than you are, and you’re probably less knowledgeable about my field of endeavor than I am. People who must implement safety laws governing our water, food, nuclear waste storage, etc., are probably more knowledgeable about the practical consequences of the relevant rules than are the people who draft the rules. Long-term criminals may well be more knowledgeable about the practical consequences of criminal statutes than are legislators. Long-term polluters are probably more knowledgeable about the practical workings of pollution control policies than are the people who draft the policies. Long-term tax evaders are probably more knowledgeable about the practical consequences of tax laws than are the people who draft them. Etc., etc. And this insight should lead us to conclude…?

Moreover, was McGovern burdened by regulations – or by law? Would McGovern have been better served to try to run a hotel confronted by ambiguous statutes, only to learn at the end of a lawsuit that he had been operating contrary to law for decades because he had relied on his own good-faith, but ultimately mistaken, reading? And if bureaucrats suffer from being unelected and unaccountable, do we really expect to remedy that situation by shifting the locus of problem-solving to the courts?

Finally, let’s look to evidence to judge the burdensomeness of hotel regulation. At what point in history has the US had more travel accommodations? At what point has the hotel business been more profitable? At what point have the members of the public had a broader range of housing options? I suspect evidence would show that the travel accommodation industry (and most other industries) is actually in a golden age, regulatory burdens notwithstanding.

In sum, I suspect Samuelson is merely cataloging the circumstances with which we live – not the problems.

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nobody.really
on July 10, 2014 at 15:33:40 pm

People who must implement safety laws governing our water, food, nuclear waste storage, etc., are probably more knowledgeable about the practical consequences of the relevant rules than are the people who draft the rules."

It appears that much of your current harangue is predicated upon the preceding sentence. This is another example of an assertion having a seeming validity yet lacking empirical weight.

Having just come from a county Hearing on a proposed plat development, I can assure you that what I observed is far more typical of the behavior of "implementers" than you assert. It is quite apparent that there analyses are "formulaic" at best AND, worse still, based upon a static methodology rather than a dynamic one. (I'll not bore you with the details). "Now, let's see, OK, Code #12345, Check; #54635, Check. Look it up in the book and heaven help anyone who begs to differ with us!!!!" Additionally, there is also the tendency to present a "prescriptive" regulation as a "proscriptive" one in which the public may not question the decision of the local "implementer.
Would you say that this is having a better understanding of the implications of a policy rule or is this simply another case of "clerks gone wild" - for surely so much of what they (and many lawyers so engaged) do is "clerical in function / execution.

Goodness, Bob Cratchett is running the enterprise!!!!

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gabe
on July 10, 2014 at 17:38:24 pm

Well, Mr. Nobody, it's important to distinguish realities that must be dealt with, like gravity, from problems that can be solves--like a broken door.
To be sure, this piece mostly describes a situation, but that situation is, to a great degree, a problem. We can do much better in this area. And yes, Richard, forcing legislators to legislate would be a good first step.

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Richard S
on July 10, 2014 at 17:40:23 pm

Update. That last sentence should probably be, to be clear, forcing legislators to legislate, rather than delegating that power, would be a good first step. There are, of course, many places were we should simply be free to do as we choose. But where there needs to be a law, it should, much more than is the case now, be made by the people that we the people elect, rather than given to tenured partisans.

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Richard S
on July 10, 2014 at 20:22:49 pm

Richard S:

"tenured partisans - perfect - doesn't this also describe the " educrat" establishment? - that is in many respects equally dangerous.
Heck, the "clerks" who have gone wild have been the "beneficiaries" of the educarats.

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gabe
on July 11, 2014 at 10:52:56 am

"Richard, forcing legislators to legislate would be a good first step."

That was not the point. Ending the devolution of the power to legislate was the point.

Even that, as noted, is but a step. If legislation is purposed to "design" our society and the relationships within it, getting representatives to "legislate" for the sake of "action" will lead back to an administrative structure. If legislation continues to be purposed for the advancements of particular interests, to provide privileges and immunities, and amelioration of "burdens," we will accelerate the movement into oligarchy and a "managed society.

No. LESS "legislation." The time of the garbage disposal of "legislation" has come; rescind, repeal and revise.

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Image of R Richard Schweitzer
R Richard Schweitzer
on July 13, 2014 at 15:03:29 pm

This article is an excellent analysis, ending with an excellent suggestion.

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David Frisk
on July 21, 2014 at 12:06:03 pm

The author did an excellent job of identifying the problem, but the solution goes begging.

As a career federal government employee for 36 years (retired) , I can vouch for the premise that the majority of government employees lean left politically. Why is that? To me, it is quite obvious. The Democrats are the party of Big Government, ergo most government employees have a vested interest in supporting the Democrats rather than a party that supports smaller, limited government. The Republicans are seen as the enemy.

The Democrats and public employees at all levels of government have a symbiotic relationship. The Democrats support increased benefits for public employees in return for political support including campaign contributions. Public employee unions endorse and fund Democrat politicians who, in turn, provide and protect public employee benefits. Unless we change that relationship I see little hope in fixing a very real problem.

The real danger is a partisan administrative state that has enormous control over the lives of the citizens and will manipulate data to achieve political objectives. Even if the Republicans were able to seize the reins of government, they would be faced with a partisan bureaucracy that will resist change and undermine their efforts thru delay and damning leaks to the media.

The Pendleton Act was supposed to eliminate political patronage in filling government jobs and to go to a merit based system. The Act did not foresee the rise of public employee unions, which have become a substitute for patronage. The first step in addressing a partisan civil service is to eliminate public employee unions.

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Michael

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