Is it time to un-reform the civil service?
What if I were to tell you that the IRS tea-party-targeting scandal all started with the great 19th-century railroads? Or with the conscience of a largely inconsequential, ornately mustachioed Gilded Age president? Or with a deranged petty thief from Illinois who thought he ought to be the consul to France?
Let me explain. In 1883, President Chester A. Arthur signed the Pendleton Act, doing away with the “spoils system” of political patronage for government jobs that had been in place since Andrew Jackson had perfected it, and replacing it with a nominally merit-based civil service resembling the one we have today. Arthur had previously been a “Stalwart” — a defender of the Republican party’s patronage system against the moderate “Half-Breeds,” who advocated reform — and was himself a past beneficiary of the machine, having secured in 1871 what the New York Times some years later called “the prize plum of Federal patronage” jobs as collector for the Port of New York. But shortly after Arthur saw his predecessor, James Garfield, die of complications from the .44-caliber bullet lodged in him by the mentally deformed would-be consul, Charles Guiteau, he had a change of heart.
Arthur may have thought the act, which over time came to cover 90 percent of federal employees, would save him from a similar fate. But it also meant he would have to work without a net. Having angered the very machine politicians who had affixed him to the Garfield ticket in 1880, Arthur failed to secure the Republican nomination in 1884, and he and his muttonchops faded into obscurity. By contrast, the Pendleton Act and its successor, the Civil Service Reform Act of 1978, remain the law of the land. But “civil service” “reform” did not succeed in getting politics out of government employment. It merely coated their nexus with a patina of plausible deniability and rigged the game forever in favor of Big Government.
Why? Because the end of the patronage era basically coincided with the invention of the modern regulatory state and the beginning of a century-long ratcheting up of the federal government’s powers. Conservatives plausibly peg the New Deal, or perhaps the passage of the Sixteenth Amendment (which established the legality of the income tax), as the watershed moment for Big Government. But one can make a compelling argument that Leviathan was born way back in 1887, just four years after Pendleton, when Congress moved to implement price controls on the railroad industry via the passage of the Interstate Commerce Act and the creation of the Interstate Commerce Commission. The ICC was the first major “independent” federal regulatory body, and its ambit would grow over the next century even as it became the avatar of the arbitrary and amorphous power of the “fourth branch.”
The ICC was just the beginning, of course, and the regulatory state wouldn’t go into high gear until the fecund years of FDR’s “alphabet soup” regime. But the near simultaneity of civil-service reform and the Interstate Commerce Act is nonetheless striking: At the same time as the government created a new class of bureaucratic administrators who were by design largely beyond the checks of democratic politics, it began investing this class with great power.
Over time the relationship between the elected and bureaucratic Washingtons started to look like old-fashioned patronage. The bureaucrats — as both a newly formed voting bloc and, after they organized, a major source of campaign contributions — helped elect politicians friendly to the regulatory state, and those politicians protected and entrenched the bureaucracy.
The bureaucrats’ political power has waxed and waned over the years, of course. FDR, for instance, used the Depression as an excuse to get around merit-hiring requirements and saw the number of government employees hired outside Pendleton more than double, from 110,000 in 1932 to 230,000 by the end of his first term. This cut out the middleman in the patronage process (FDR and his fixers often simply parceled out jobs, along with fistfuls of relief money, to the districts he needed to carry in 1936) and upset civil servants. Likewise, the deregulatory fugue of the 1980s saw the bureaucratic state lose ground. But in the long run, the arc of post–Gilded Age history has bent toward a federal bureaucracy that is ever bigger and more powerful, and toward civil servants who are better paid, and much harder to fire, than their private-sector counterparts.
Thank Providence, we still live in a country where it is roughly as easy for a politician to get elected for vowing to shrink the government as for vowing to expand it. But the bureaucracy can’t tolerate a similar diversity of opinions and survive. To the bureaucracy, support for smaller government, deregulation, consolidation, and budget cuts portends death. Under the current American political configuration, electing Democrats is the surest way to avoid all that. And so most bureaucrats lean Democratic (40 percent of unionized federal employees, as opposed to just 27 percent who lean Republican, according to Gallup), and the bureaucracy, through its unions and PACs, spends vast sums to get Democrats elected.
This includes the IRS, and even the low-level IRS agents we are assured were responsible for the tea-party targeting. Tim Carney of the Washington Examiner followed the money:
In the past three election cycles, the Center for Responsive Politics’ database shows about $474,000 in political donations by individuals listing “IRS” or “Internal Revenue Service” as their employer. . . .
The Cincinnati office where the political targeting took place is much more partisan, judging by FEC filings. More than 75 percent of the campaign contributions from that office in the past three elections went to Democrats. In 2012, every donation traceable to employees at that office went to either President Obama or liberal Democratic Sen. Sherrod Brown of Ohio.
Zoom out a bit more and you see that, as National Review’s Andrew Stiles has reported, the National Treasury Employees Union, which represents 150,000 federal employees across 31 agencies (including the Internal Revenue Service), spent millions through its PACs — more than 96 percent of it to help elect Democrats. Zoom out further still and you find that the American Federation of Government Employees, with 650,000 members the largest civilian federal-employee union, spent 93 percent of its money last cycle on Democrats.
This — and not some connection to the White House that may or may not exist — is why the IRS targeting of conservative groups is such a big deal. Presidents have term limits, and their appointees can be fired, or pressured to resign, or impeached, in the regular course of contentious politics. But try getting rid of Lois Lerner, the IRS middle manager who oversaw the targeting, and who has a history of going after conservatives that dates back decades, to her years at the FCC. Lerner is protected by civil-service laws, and is currently on paid leave while her superiors contemplate the potentially years-long process of firing her.
The phrase is now well worn, but the “real scandal” of Lois Lerner, the real scandal of the IRS, is that we are in large part governed by a politically insulated fourth branch of government peopled by expansionary statists in war and peace, boom and recession, no matter who controls the Congress, the Courts, or the White House.
So what’s the answer? Some conservatives have talked about abolishing the IRS and starting from scratch. But that won’t solve the problem; as long as there is a Sixteenth Amendment and a government hungry enough to use it, there will need to be a massive, and intrusive, tax-collecting apparatus staffed according to the existing civil-service rules. That’s why the real solution might be repealing the Pendleton Act altogether.
But won’t that bring back the bad old days of nepotism, cronyism, and rascalism in federal hiring? Won’t it give presidents the power to dole out every Podunk clerkship and entry-level analyst job as in-kind payment? The short answer is that the same inter-branch gotcha-ism that animates the Darrell Issas of the world — motivated by a healthy mix of official duty and partisan opportunism — would no doubt check executives from the worst abuses. And the sheer, awesome size of the federal bureaucracy, along with the need to fill many jobs with technically proficient specialists (such as lawyers and accountants), would disincentivize executives from micromanaging where there is little hope for political return. Nor would undoing Pendleton expose government employees to some Hobbesian state of nature, for the just-stated reasons, and because they would still be protected by the employment-largely-at-will laws that Americans working in the private sector currently enjoy.
On the other hand, the upside is real. In a world without Pendleton, Lois Lerner’s cubicle would be cleared. There would be actual turnover, and perhaps even a little dynamism, in the federal work force, instead of the kind of job security that means you’re more likely to die than get fired in some cabinet departments. And, not least, the effective one-party rule that has prevailed in the bureaucracy for decades — even centuries — would be ended at last.