Sunday May 31

EXCERPT FROM In Defense of Public Service: The Fourth Branch is Not the Deep State

In short, the only branch of the federal government that remains very substantially nonpartisan is the Fourth Branch. Thanks to the civil service system, most of this unelected government is populated by merit-based appointees who are beholden to no president or other elected official. This increases the odds that laws, policies, and programs endorsed or created by the Article I and Article II branches will be implemented objectively, without regard to partisan affiliation.

Objective implementation of law is crucially important, but the three constitutional branches rely on unelected public servants to do even more than implement their decisions. The three constitutionally enumerated branches formulate policy, legislation, and even some judicial decisions based on research, data, and analysis produced by nonenumerated Fourth Branch subject matter experts, whose allegiance is to fact, to science, to data, and not to party or special-interest agendas.

As it exists today, the federal civil service—the body of nonelected, nonmilitary employees of the federal public sector—was born out of a spirit of reform, a spirit opposite that of the corrupt intent often ascribed to the “Deep State” and also very different from the increasingly partisan spirit of the elected branches of government. More government workers are employed outside the federal system—at the state and local levels—than within the national government. But the US federal civil service, as created in 1871 and reformed in 1883 by the Pendleton Act and subsequent legislation, has served as a model for most aspects of public sector employment in states, counties, and municipalities. Let’s look even more closely at the federal system. What follows is hardly groundbreaking material, but it is a collection of facts concerning a subject about which most Americans know very little, and for all the mythology, demonizing, and trolling that has plagued public sector employees in our recent history, it is useful to take a few moments to look objectively at the system in which they work.

In addition to nonpermanent contract employees—who were among the victims of the 2018–2019 federal shutdown—the federal government hires workers in three broad classifications:

1. Most civil service jobs are in the “competitive service,” which means that these employees are hired on the basis of merit as determined by a competitive hiring process (which often includes diagnostic and subject area tests) that is open to all applicants.

2. Another classification of nonelected federal employees is the Senior Executive Service (SES). These employees fill senior departmental leadership positions. The hiring process is noncompetitive. Some positions are filled by career employees who began their public sector careers in the competitive service, but others, such as ambassadors and cabinet officers, are political appointees. Although overwhelmingly nonpartisan, the Fourth Branch is not entirely segregated from the elected government.

3. The “unclassified service” (also called the “excepted service”) is a label applied to that category of employees who are hired through noncompetitive processes by agencies that perform intelligence and security functions (CIA, NSA, FBI, Department of State, and so on). Such agencies, which have unique needs, are authorized by law to establish their own recruitment and hiring policies. Like the competitive service, the excepted service is nonpartisan, but its employees are not subject to most of the rules that govern the pay and classification in the competitive service.

Most of the agencies that hire in the competitive service operate under the aegis of the Executive Branch, but others operate under the Legislative and Judicial branches or are independent agencies, which operate outside the federal executive departments and the other branches, but are nevertheless all established by acts of Congress. From the perspective of the employee, the most important power any agency must have is the authority to hire and to pay. That is, the agency must be a “hiring authority” or operate under one. Hiring authorities may be created directly by federal statute, by an executive order of the president, or by an agency regulation. The authority of an agency to create regulations (including regulations authorizing hiring and payment) is granted by congressional legislation. Even though the regulations themselves are not direct acts of Congress, they carry the force of law. At present there are more than a hundred hiring authorities in use in the federal government, though more than 90 percent of the hiring is done by just a few of the hiring authorities, the most active of which is Competitive Examining, the authority that handles the federal vacancies open to the public. Fairly close second behind Competitive Examining is an authority called Department of Veterans Affairs, Title 38, which noncompetitively hires personnel in the medical profession for the mammoth Department of Veterans Affairs.

Those who attempt to demonize the civil service portray it as a kind of permanent gold rush, the mother of all government boondoggles. It is, in fact, highly regulated and subject to complex but strict pay schedules. The most familiar is the General Schedule (GS), which has fifteen pay grades for white-collar workers, who do most of the technical, administrative, clerical, and professional jobs in the civil service system. GS-1, the lowest grade, ranges between $18,785 and $23,502 as of 2018; and the highest grade, GS-15, pays between $105,123 and $136,659. Bluecollar workers are subject to the Federal Wage System, with wages, often hourly, dependent on a variety of factors. The SES, in which positions are appointed, can pay as high as $189,600 annually.

The federal workforce is widely unionized, which has often been a bone of contention between Congress and the White House. Most recently, President Trump issued executive orders aimed at reducing the collective bargaining authority of federal unions and empowering “every Cabinet secretary with the authority to reward good workers—and to remove federal employees who undermine the public trust or fail the American people.” J. David Cox, president of the American Federation of Government Employees, countered that the executive orders were “an attempt to make federal employees at-will employees, so you can make them political employees, so you can hire anyone who had a bumper sticker for you in the last election.” Four unions sued, arguing that the president was attempting unilaterally to dictate new terms to labor contracts already negotiated and in force. A federal judge agreed, striking down the executive orders on August 25, 2018. Whatever this decision does to uphold the power of unions in the federal government, it also tends to uphold and protect the nonpartisan nature of the unelected government.

The president’s failed executive orders were only the latest symptom of the distrust, suspicion, and even contempt some in the elected branches harbor toward the Fourth Branch. These attitudes drive efforts to reduce the federal workforce and to politicize as much of the remainder as possible. Some in the Executive and Legislative branches have asserted that the civil service is already highly politicized, arguing that most of the workers are Democrats. This is simply not the case nationally. Red states, not blue, are home to the highest concentrations of public employees. Moreover, the Hatch Act of 1939 expressly bars civil servants from engaging in political activities while in performance of their duties. For SES positions, which are political appointments, some outgoing presidents near the end of their term have been known to engineer the transfer of appointees, who serve at the current president’s pleasure, from the SES to positions protected by civil service law, thereby preventing the incoming administration from dismissing them. Called “burrowing,” this practice is intended to continue at least some of the policies of the outgoing administration under the new one.

Nothing is perfect. Politics does seep into the unelected government. Yet, by and large, this area of government manages to remain remarkably free from partisan politics. Some argue, however, that its removal from the political sphere is not a virtue at all but creates an air of entitlement and aloofness that amounts to arrogant disregard of the will of the people. Perhaps the unelected government is not a Deep State, this argument runs, but an Administrative State, incorrigibly unaccountable and unresponsive. Although frequently heard today, this charge dates back at least to 1948, when the phrase Administrative State was used in the title of a book by political scientist Dwight Waldo: The Administrative State: A Study of the Political Theory of American Public Administration. Scholars who study the nature of modern government consider this book groundbreaking even today, because Waldo, who was highly sympathetic to the federal workforce, nevertheless wrestled with what he acknowledged as an inherent ideological conflict between “public administration”—the unelected government—and the elected government of our constitutional participatory democracy.

Writing just three years after the Allied victories against Germany and Japan, Waldo was among those many Americans who had seen, close up, just what the Fourth Branch could accomplish. In a brief speech delivered on November 10, 1944, President Franklin D. Roosevelt thanked “the Government workers . . . for all that you are doing to win this war.” The president understood and appreciated that the unelected government, civilian as well as military, was making the Allied victory in World War II a reality. By the time Waldo wrote the first edition of The Administrative State, that same group was already going about the business of rebuilding the parts of a world shattered by the war.

But Waldo also stood witness to a growing movement to make the Administrative State more cost-efficient by modeling itself on principles of modern business administration. The first step in this process, critics said, was to make the bureaucracy scientifically efficient. Indeed, this goal sounded like too obviously good a thing to plausibly argue against. Waldo, however, saw a flaw in an apparently self-evident argument. He wrote that the goal of the Administrative State could not be the goal of private enterprise—that is, scientific efficiency—because the purposes and priorities of democratic government were not the same as those of business. The purposes and priorities of the US government were derived not from the principles of profit but from the Constitution. Waldo believed that the Administrative State, although unelected, was obliged to adhere to the same principles as the elected government, including those either enumerated or implied in the Constitution. The conundrum in this position was that such adherence did not always promote or even permit scientific efficiency in a strict business sense.

Waldo defined a key distinction between those who work in the Administrative State and those who work in the private sector. As Robert Peel’s London police differed from the general public only in that the police were “paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence,” so Waldo’s workers in the Administrative State were ordinary citizens who were paid to give full-time allegiance to constitutional values that are incumbent on every citizen. As Waldo saw it, a clerical worker in an industrial plant owed the nation fidelity to the Constitution, but to his employer, he owed nothing more or less than efficiency. By contrast, a clerical worker in the federal government above all owed his nation and his employer (they were, after all, one and the same) fidelity to the Constitution as the first priority of how he did his job.

Waldo was well aware that government could be more efficient. Of all the European dictators in the run-up to World War II, Italy’s Benito Mussolini lasted the longest, from 1922 to 1945. Before the outbreak of the war, he was widely admired, including by US presidents, legislators, and ambassadors. His brand of totalitarian government, called fascism, produced unprecedented efficiency in a nation that had long been a punch line for institutionalized inefficiency. When some objected to fascism’s brutally autocratic tactics, others reminded them that “Mussolini made the trains run on time.” It became a catchphrase of the 1920s and 1930s. The dysfunctional Italian railroad system was an icon of Italy as a failing state. Mussolini’s rehabilitation of the nation’s rail system was a symbol for what many believed was his overall rehabilitation of disordered Italy and its wayward economy. By 1948, the United States had triumphed over Mussolini, Hitler, Japan’s Tojo, and other totalitarian dictators. America was now engaged in a Cold War against another totalitarian state, the Soviet Union. Dwight Waldo was unwilling to sacrifice constitutional democracy to mere efficiency. He wanted to explain how the Administrative State and those employed by it resolved the tension between the elected and unelected government by serving first and foremost the values of the Constitution.

Waldo’s argument was this: On the one hand, to the degree that the Administrative State put scientific efficiency ahead of the Constitution, it would create an unelected government incompatible with democracy, a bureaucracy verging on fascism. On the other hand, to the degree that the Administrative State put the values and mandates of the Constitution ahead of efficiency, it could, Waldo admitted, end up creating certain bureaucratic processes that, in a strictly business sense, were somewhat inefficient. So, he conceded, critics of the Administrative State had a point. The unelected government does not run strictly like a business, and, measured by profit and loss, it is far from fully efficient. But measured by the values of our constitutional republican democracy (which do not include making a profit), the Administrative State was necessary not only to executing and implementing the decisions of the elected government but also to ensuring that the execution and implementation uphold the Constitution and thereby avoid descending into autocracy or totalitarianism.

Today, Dwight Waldo’s reasoning is something of a hard sell, but he was born in 1913 and was of a generation that had passed their young adulthood not only during the Great Depression but during the era of the first American “big government,” the government of Franklin D. Roosevelt’s New Deal. Squeezed in the economic vise of a failing national and international economy, the majority of Americans were willing to believe that big government—with a large Administrative State—was both benevolent and capable of restoring and promoting the general welfare of the United States. As a public servant who has led public servants, I can tell you that most of them would have no trouble buying what Dwight Waldo was selling. Like him, they believe that, as government employees, they do more than a job. They have a public mission. Although their “branch” of government is not mentioned by name in the Constitution, they understand that it is a pillar of that document as well as of the government that document supports.

CEDRIC L. ALEXANDER has over forty years of experience in public safety at all levels. He was chief of police in two major American cities, former deputy mayor of Rochester, New York, and a professor of clinical psychology at the University of Rochester Medical Center.

This is an excerpt from In Defense of Public Service, available from Berrett-Koehler Publishers, www.bkconnection.com

 

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