Businesslike Government, Presidential Power, and the Erosion of the Civil Service

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Immediately after the election, I wrote about the administrative separation of powers, specifically about how the rivalrous and contentious interplay of politically appointed agency leaders, career civil servants, and members of civil society could (and do) shape and constrain administrative governance.

Today, I want to discuss how the civil service is under siege—and has been for some time – as part of the push to run government more like a business. This is a critical moment to think about businesslike government, and also an opportune one. We’re confronted today with a true CEO-style President who many of us strongly distrust—and who has now set his sights on dismantling the civil service. For those inclined to rally behind the civil service as a check on Donald Trump, the first task may well be to safeguard that venerable but much beleaguered institution. For without the civil servants, opportunities to push back on administrative excesses—think immigration, climate change, etc.—will be few and far between.

The Call

For decades, politicians of every stripe have railed against the administrative state, calling instead for government to be run more like a business. Parsing those (admittedly often slippery and sometimes rambling) calls, we find an implicit attack on the administrative separation of powers. Why, you might ask, should we care? We should care because the administrative separation of powers is, again, the institutional architecture that (1) tethers the administrative state to our underlying constitutional commitment to separating and checking State power and (2) helps promote inclusive, deliberative governance, deter and counteract abuse, and harmonize the pluralistic but conflicting values—efficiency, political accountability, expertise, civic republicanism, and the rule of law—central to our modern liberal republic. Without this intra-agency checking and balancing, administrative power would be highly concentrated, likely monopolized by presidential appointees.  

For these immediate purposes, we can drill in on two prominent elements of the businesslike government reform strategy: to privatize/outsource as much as possible and to reconfigure along businesslike lines those responsibilities and personnel groupings that cannot be formally privatized.

Privatization/Outsourcing Service Responsibilities

By now, the privatization story is old hat. It is pervasive in domestic regulatory and benefitsadministering contexts. And it is pervasive in the national and homeland security sectors. The arguments in favor of privatization are no doubt familiar as well. We should privatize or outsource those responsibilities that the market can carry out more efficiently or cost effectively. The market is more efficient, we are told, because firms may pursue profits, are disciplined by industry competition, and enjoy a more nimble, responsive labor force than what we find within the federal bureaucracy.

A firm’s “make or buy” decision really does turn on these economic considerations. But the translation may not be perfect as we introduce “make or buy” calculations into the highly politicized government sphere. This is because efficiency is only one value among many. Because agency heads have to advance a President’s ambitious programmatic agenda—and do so expeditiously—they may find themselves valuing political loyalty and political expediency above and beyond any promise of cost savings. Thus what was thought of—and championed—as a neutral, technocratic management decision starts to look like a tool of political power-concentration and aggrandization.

Let me explain. The politically independent civil service can be a thorn in the side of any presidential administration. It is legally and culturally well-positioned to challenge unprincipled or hyperpartisan policy proposals. In my previous post, I pitched that as a good thing—suggesting that the civil service, to quote Dean Harold Bruff, is a “bulwark to the rule of law.”

For many, however, civil service resistance and pushback is an affront to the President’s mandate, as well as to their constitutional understanding of a unitary executive. Frustrated by such bureaucratic pushback and recognizing the challenges associated with tearing down the civil service (a political nonstarter for much of the time in question), privatization can be seen as the next best thing—a purportedly technocratic undertaking that has a very strong political valence. Outsourcing enables agency leaders to sideline formidable, tenured civil servants with eager-to-please, compliant contractors. The latter are, of course, eager to please if only because they want their contracts renewed! Such eagerness is music to agency leaders’ ears.

Marketization of the Bureaucracy

Contracting isn’t easy. It is costly to draft proposals, screen bidders, and oversee the outsourced work. (And some contractors, far from eager to please, are frauds and hucksters.) Still, contracting is a tried-and-true way around an independent civil service. Over time, however, overhauling the once-sacrosanct civil service has become a less daunting proposition. Distrust and dislike of America’s career government workforce continues to rise. As the Washington Post reported a few years ago, today’s “politicians talk about government employees … with the kind of umbrage ordinarily aimed at Wall Street financiers and convenience store bandits.” Not surprisingly, then, we are starting to see efforts to reclassify civil servants as at-will employees. These reclassification efforts are already underway across many states. And similar moves are afoot at the federal level. Trump, along with confidante Newt Gingrich, are now seeking to slash even further—and terminate most federal civil service protections.

Elsewhere, I have called this pattern the “marketization of the bureaucracy.” It is essentially privatization without the hassles of contracting. Rather than pushed aside, the government labor force is reconfigured to look (and act) very much like its private sector counterparts, where at-will employment is the norm. But remember government hiring and firing are not pure business decisions. In a typical industry, the availability of an at-will labor force is used principally if not exclusively to encourage diligence and deter torpor.   There is, after all, no liberal or conservative way to flip burgers. By contrast, in a government agency, performance and politics are often hard to disentangle. Thus marketized workers, at risk of summary termination, are far less likely to push back than are effectively tenured civil servants. And, as a result, we run the risk of administrative power being concentrated in the hands of agency leaders presiding over what may come to look like a neo-Spoils System in which important bureaucratic posts are staffed by party loyalists or those cagey enough to play the part.

Where Do We Go From Here

I’ll leave it for another occasion to unpack businesslike government, its charms, inconsistencies, and pathologies. What’s of immediate relevance is businesslike government’s effect on the civil service. After years marked by a combination of benign neglect and outright hostility, the civil service today is a shell of what it once was. Privatization and marketization have sidelined, defanged, and demoralized many of our best and brightest government workers—the very folks we’re now pleading with to stay the course.

Believe it or not, there was a time when “good enough for government work” was meant as a compliment—a mark of distinction and pride, not jest and ridicule. That time has seemingly past.

For the moment, we may be stuck playing defense, preventing further erosion. But going forward, we should prioritize civil service reform with an eye to reconstruction rather than annihilation: investing heavily to recruit, retain, and support a strong, competent, and professional workforce befitting a nation of our ambition, talent, and republican commitments.   Though the laundry list of policy priorities for Democrats and, presumably, Never Trumps is long and rangy—and includes far sexier aims—we might consider taking a cue from Gingrich, et al. and recognize the extent to which the civil service holds the keys to the presidential castle.

Image: Daniel Mennerich – Flickr

 

About the Author(s)

Jon Michaels

Professor of Law at UCLA School of Law. His book, Constitutional Coup: Privatization’s Threat to the American Republic, was published this October by Harvard University Press. You can follow him on Twitter (@JonDMichaels).