Something has gone wrong in our civil service. Consider some recent developments. The IRS was forced to pay the National Organization for Marriage $50,000 for leaking the group’s donor list. Tea-party organizations and donors were much more likely than others to be audited by the IRS. This misbehavior was not the work of a few rogue employees in Cincinnati. In general, the IRS stalled tea-party applications for status as 501(c)(4) groups.
Meanwhile, April Sands, an employee of the FEC, recently pleaded guilty to violating the Hatch Act, which prohibits federal employees from campaigning at the office. Ms. Sands, who worked in the office charged with enforcing our election laws, recently said, “I just don’t understand how anyone but straight white men can vote Republican.” What business does such a person have in that office in the first place? Somehow the FEC managed to wipe her computer clean, weakening the case against her. Perhaps that answers our question. These cases reflect a larger pattern. Our civil service is putting a thumb on the scale of justice.
Thomas Jefferson described the ideal this way in 1776: “Let mercy be the character of the lawgiver, but let the judge be a mere machine.” Justice is blind. The law applies equally to all, regardless of their religious or political beliefs, their wealth or poverty, or their race. Moreover, it applies to government and the governed equally. Judges make this clear in their oath to “administer justice without respect to persons, and do equal right to the poor and to the rich.” That principle applies across government. Jefferson continued: “The mercies of the law will be dispensed equally & impartially to every description of men; those of the judge, or of the executive power, will be the eccentric impulses of whimsical, capricious designing man.” The law can hardly be said to rule when it is applied or enforced in a biased manner, or when government employees exempt themselves from its reach.
How did we get here? With the rise of the Second Party System in 19th-century America came the spoils system, replacing the quasi-aristocratic republican old-boys’ network that had upheld the ideal of the gentleman as public servant. After a deranged office seeker assassinated President Garfield, the United States began to embrace the ideal of a non-partisan and professional civil service. Government employees began to be hired for their professional competence, determined by tests, rather than for party connections. Once hired, these government workers would be given civil-service protections — tenure as a security against partisan pressure. The goal was also to ensure that citizens voted for a candidate because he would pursue good policies, not because their idiot brother-in-law would get a job if their guy won.
Today we have the worst of both worlds: a tenured and partisan civil service. Government employees have civil-service protection and are seldom fired, only for the most egregious of crimes. Yet they lean to one party. From 1989 to 2012, two-thirds of donations from IRS employees, for example, went to Democrats. Even so, our civil servants seem to think that they are politically neutral. Hence the employees at the VA think it is reasonable to spy on (presumptively partisan) congressional investigators, and hard drives mysteriously get destroyed in the IRS scandal. Laws are for the little people, as Glenn Reynolds likes to say.
The rise of the “fourth branch” of government — the administrative bureaucracy — complicates things further. Obamacare was roughly 2,000 pages long when Congress passed it. Bureaucrats have added thousands more. The Hobby Lobby case was about a rule written by bureaucrats, not by Congress. In fact, Congress probably would never have passed such a law. Worse, our tenured partisans sometimes delegate their jobs to activists. Who drafted the EPA’s new greenhouse regulations? The National Resources Defense Council.
Nowadays, in other words, laws are, in effect, written, interpreted, and enforced by the bureaucratic equivalent of made men who are quite well paid. So much for checks and balances. Moreover, our legal code is so complicated that, as Harvey Silverglate notes, most businesses or individuals are probably guilty of breaking some law somewhere. That puts each of us at the mercy of the government.
In the 19th century, the social-science Ph.D. was new. Perhaps it was reasonable then to believe that science could provide neutral guidance on most issues, and to provide a professional ethic for the bureaucracy. Today that belief looks hopelessly naïve. Yet the hope is still alive on the left. One may even say that that hope has become the Left’s religion. From the time that the Temple of Reason was consecrated, through Marx’s science of history, up to today, the belief that all reasonable people are on the same side has been an essential support to the Left’s self-image. Only in the abstract do they allow that reasonable people may disagree. As William F. Buckley noted, “Liberals claim to want to give a hearing to other views, but then are shocked and offended to discover that there are other views.”
To recognize that tea-party groups have a plausible claim to reason and justice is to challenge the pragmatic-progressive worldview, according to which progressive ideas are not partisan but simply common sense. (It would also, not coincidentally, take policy in a direction that would make bureaucrats less important.) To question that point of view is to question the religious premises of the Progressive faith and return us to the world of the Founders, in which our legal code is written in the context of the give-and-take of legislative compromise rather than by scientifically trained experts.
Granting tenure to clerical workers, mailmen, and others at that level of service is probably reasonable (although it might make sense to make it easier to fire people for misconduct or incompetence). But that does not apply to the higher levels of government, where our laws are written, interpreted, and enforced.
Trust, once lost, is hard to regain. For the good of the republic, therefore, we must fix our partisan civil service.
— Richard Samuelson is associate professor of history at California State University, San Bernardino. Parts of this essay are adapted from “Fix Our Partisan Civil Service,” which was published at the Liberty Law Blog.