We Must Address the Crisis in the Merit System

Never in its 137-year history has the federal government’s merit system for hiring and promoting federal employees been in such trouble. It simply doesn’t work—it’s neither a system nor does it promote merit. What’s worse, it’s hindering the work Americans want and expect their government to perform.

Critics on the right claim that the left is working single-mindedly to protect the jobs of federal employees and the powers of unions that represent them. They believe many employees fail to do their jobs well and should be more easily fired, and more ominously, that they are part of a “deep state” focused on undermining the results of the 2016 election. Of course, there’s a paradox here: It’s hard to believe that employees too weak to perform well are strong enough to block policy. But the right wants to slash the number of federal employees, make them at-will workers who could be dismissed for any reason, and increase the number of political appointees who can carry out the will of the electorate.

Critics on the left claim that the right is trying to politicize the federal workforce and uproot long traditions of competence. Federal workers, they say, aren’t so much a deep state but a fountainhead of expertise. Efforts to slash the number of career workers would make the government even more dependent on private contractors and less capable of managing them. And that would increase the risk that the government would sway with the political winds.

This is about as important a debate as we can have about how the federal government ought to work. But it’s also the most important thing we’re not talking about, in the president campaign or almost anywhere else. If we don’t talk more, we’re very likely to end up at a place we don’t want to be.

Toward that end, it’s worth remembering how we got to where we are. We created the merit system back in 1883, following the assassination of President James Garfield. It’s obligatory in writing about this national tragedy and the reform that followed to remind everyone that the president was shot by a “disappointed office seeker,” Charles Guiteau, who somehow imagined that he had been central to Garfield’s electoral victory and believed he deserved a plum diplomatic assignment in Europe. 

In those days, federal political appointees often found themselves overwhelmed by the demands of supporters for jobs. At the state and local levels, that led to the creation of political machines whose gears were oiled by patronage. These pressures not only fed corruption. They made it hard to get skilled workers into government, just as government was facing vastly more complex challenges.

So, in a feat of remarkable bipartisanship, Democratic Senator George Pendleton of Ohio maneuvered a new civil service reform act through Congress, which Republican President Chester Arthur signed into law. It committed the federal government to hiring federal employees based on merit and protected employees from political interference. 

Reformers hailed the Pendleton Act as pathbreaking, and indeed it was. But it also set up the recurring battles we see today. Do the protections against political interference create an independent power center, unaccountable to the policies of elected officials? Do political pressures swamp the nonpartisan expertise we expect from federal employees? And do the rules created to maneuver through this dilemma create a procedural morass that ties the system in knots, thereby undermining its ability to work effectively on behalf of citizens?

Depending on who you listen to in Washington, the answer to each question is a thundering “yes.” Academics and partisans alike can debate whether the charges are true. But two conclusions are inescapable. There’s enough merit in each of these charges to create a plausible indictment. And the battles over the indictment are getting in the way of vital work. 

The merit system today is on life support. The Office of Personnel Management has struggled for years to work effectively and credibly. OPM is high on almost everyone’s list of federal agencies that need to be reorganized in part or rebuilt in whole. The Merit Systems Protection Board is moribund, stumbling to protect the merit rights of federal employees without a quorum for four years and without a single member for 18 months.

And then, on all fronts, there’s the growing obsession with following rules at the expense of outcomes. In a conversation I had with a senior federal official, I asked about the state of merit in the government. The reply was solely in terms of veterans’ preference and the technical challenges of satisfying the rules, not in how to bring the best and brightest into the agency. The preference, of course, is an enormously important policy to give those who have served their country a privileged place in the line for federal jobs, but it’s now come to overwhelm everything else about federal hiring and promotion, including making sure we have a good match between the people government needs and the job that has to be done.

The merit system has become a non-system. Any agency with enough political juice to break out of the existing rules tries to do so, while agencies without the juice remain snared in its web. And

The Trump administration has issued a series of executive orders trying to break down the existing rules on federal hiring. The public employee unions have fired back with lawsuits. The merit system has become a battleground where no one is winning, especially the American people.

A foundation of the merit system was tenure for government employees so they couldn’t be removed at the whim of elected officials to make room for loyalists. But some have become so tied up in the fight for tenure that they’ve lost focus on the value and outcomes of government programs.

In a time of raucous disunity and polarization in Washington, about the only thing everyone can agree on is that the merit system is broken. This break has severe consequences for the government's ability to get its work done. Along with the National Academy of Public Administration, the U.S. Government Accountability Office has been one of the few voices to sound the alarm. Strategic human capital planning has been on GAO’s “high-risk” list since 2001—and it’s impossible to make progress on any of the other 34 items on GAO’s list of programs prone to fraud, waste, abuse, and mismanagement without first getting the people side of the business right.

This is a big deal—indeed, it’s the issue in Washington that’s most important but getting the least attention. The consequences are huge. In his last years, following his monumentally important tenure as Federal Reserve Board chair, Paul Volcker wrote, “Our ability to maintain healthy democratic practices is at risk.”

There are recurring calls for a new national commission to address the problem, but such commissions have generated bright sparks but no fire for at least a generation. There are important but little-seen efforts underway to reengineer the hiring process in the same way the federal government—eventually—reengineered the Affordable Care Act website. The former risks being too big a bite to take; the latter too small to move fast enough. So we end up increasingly paralyzed and polarized. The debate about the size of the bite is an important strategic and tactical question. 

We need a fundamental rethinking—a back-to-basics reconceptualization of the role that we want the federal government's 2 million employees to play in making American democracy work. The system’s fundamental problem is that it’s hamstrung by process. Its fundamental goal ought to be delivering results. We have a merit system that isn’t a system; it’s a non-system that doesn’t advance merit; and it’s a merit-less non-system that doesn’t advance the government’s capacity to produce strong outcomes in the public interest. 

There’s a huge crisis afoot—and, make no mistake, the merit system is in deep and profound crisis. It’s a conversation we desperately need to have. 

Donald F. Kettl is the Sid Richardson Professor at the LBJ School of Public Affairs at the University of Texas at Austin. He is the author of The Divided States of America: Why Federalism Doesn’t Work (Princeton University Press). He can be reached at kettl@austin.utexas.edu.