Pendleton Act: Too Many Assaults, Too Little Time

It isn’t possible to keep up with this administration’s assaults on American government (not to mention decency, healthcare, the poor…).

A regular reader sent me a link to an article that highlighted an overlooked passage from Trump’s State of the Union speech.

Standing in front of a divided Congress, with possible obstruction charges looming over him and facing governance struggles produced by his ineffective leadership, the president sought to undermine a 135-year-old law protecting federal civil servants from the whims of tyrants and hacks. “I call on the Congress to empower 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,” he said.

Now, as the author of the article readily concedes, this sounds perfectly reasonable. We’ve  been regaled for years with stories–some true, most not–about all the red tape that prevents public officials from firing incompetent or insubordinate workers. Of course, as the old saying goes, one person’s red tape is the next person’s accountability…and that, of course, is the issue.

In this case, it’s important to understand just how and why the law Trump wants to repeal was passed in the first place.

“To the winner goes the spoils” applies to politics as much as war. Political patronage persisted far longer at the local level, so most of us don’t realize that until the late 1800s, when a new President took office, he  (it was always he) could fire everyone who worked for the federal government and install his own people. If his victory ushered in a change of parties, that was pretty much what happened. (Federal service wasn’t what you’d call a stable job.)

But in the 1870s, consistency and competence in the federal bureaucracy became more important as the nation’s political and commercial life grew more complex. Americans became increasingly aware of political corruption (see: the Grant administration) and its drag on government and commercial efficiency. When, in July 1881, President James A. Garfield was assassinated by disgruntled office seeker Charles Guiteau, the push for reform gained enough momentum to force Congress to rein in the patronage system.

The Pendleton Civil Service Reform Act of 1883 cost its namesake, Sen. George H. Pendleton (Ohio), his job in a political backlash against the new anti-spoils system. Nevertheless, the Pendleton Act was a major step forward for good government, and over the next quarter-century the majority of ordinary and largely essential civil service positions became disconnected from political machinations, filled instead through a standard set of hiring practices and exams, and protected from arbitrary firing.

Today, most state and local governments have implemented similar reforms. A new chief executive–Governor, Mayor– is entitled to policymaking folks who agree with his or her agenda, but not entitled to replace the guy who gives drivers’ tests at the BMV, or the clerk in planning and zoning.

The result is a more stable and experienced government workforce, a Congress that gets accurate reports from its research bureaus and federal departments that provide a certain level of regulatory consistency for citizens and businesses at home and around the world.

Because civil service incorporated mechanisms that prioritized merit-based hiring and firing, rather than finding a spot for your donor’s brother-in-law, the bureaucracy became attractive to minorities; today, African Americans are 30 percent more likely to work in civil service than white Americans. Which brings us back to the danger Trump poses.

Over the past 30 years, conservative valorization of “market solutions” has been accompanied by deeply racialized notions of government inefficiency that aim to undermine these civil rights achievements by invoking the image of a wasteful, corrupt public workforce — one viewed by many Americans as dominated by African Americans.

Trump’s assault on the Pendleton Act isn’t simply part of his desire to dole out jobs to his favored sycophants and toadies. It is another effort to pander to his base, much of which shares this profoundly racist worldview.

Despite the widespread belief that civil service employees can’t be fired, they can be. They simply have to be accorded reasonable due process.

Most of us want government managers to be able to dismiss incompetent people, or people who aren’t doing their jobs. What we don’t want–and what current law prohibits–is permission to hire and fire based upon race, gender, sexual orientation or other identities that offend bigots’ sensibilities but have absolutely nothing to do with competence.

For that matter, I wouldn’t trust Trump or his “best people” to recognize competence if they fell over it.

 

[Originally published at SheilaKennedy.net on February 10, 2018]

Sheila Kennedy is a former high school English teacher, former lawyer, former Republican, former Executive Director of Indiana’s ACLU, former columnist for the Indianapolis Star, and former young person. She is currently an (increasingly cranky) old person, a Professor of Law and Public Policy at Indiana University Purdue University in Indianapolis, and Director of IUPUI’s Center for Civic Literacy. She writes for the Indianapolis Business Journal, PA Times, and the Indiana Word, and blogs at www.sheilakennedy.net. For those who are interested in more detail, links to an abbreviated CV and academic publications can be found on her blog, along with links to her books..

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