Say No to Politicizing the Civil Service, But Yes to More Flexibility

Sen. Tim Kaine, D-Va. and more than a dozen of his Democratic colleagues have introduced legislation that would ban presidents from unilaterally establishing federal positions in the “excepted service,” outside the protections of the competitive (that is, “regular”) civil service, codified in Title 5 of the U.S. Code. 

In other words, the legislation would ban anything resembling the Trump administration’s infamous Schedule F. All federal employees  should appreciate Sen. Kaine’s leadership in this area, as well as what he and his colleagues in the House and Senate tried to do in the last session of Congress. I know I do; after all, I resigned as chair of the Federal Salary Council over Trump’s Schedule F executive order. 

However, as laudable as efforts to prevent another Schedule F may be, they could also inadvertently close a backdoor that agencies (and their committees on Capitol Hill) have long used to get relief from the inflexibilities of the current civil service system. We need to acknowledge that exceptions have become the rule, that they do not necessarily mean politicization of the civil service, and that they should be guided, not banned. Kaine and his colleagues should be careful not to throw the baby out with the bathwater. 

Unintended Consequences 

The practical effect of the Kaine bill would be to bar a president from placing certain positions or entire agencies outside the competitive civil service by declaring them to be excepted from the standard rules. It would create some very high procedural barriers that would make it almost impossible to do so.

Yet getting exceptions is precisely how many agencies have managed to gain relief from the arcane, archaic rules that are also included in Title 5, much of which dates back to the last century. They’re the product of an era when the federal government was a one- size-fits-all monolith. However, that’s no longer the case, and anything that makes getting agency- or occupation-specific relief from obsolete rules and regulations harder should be reconsidered.

Indeed, the list of agencies whose personnel regulations are legitimate exceptions to regular competitive civil service rules includes the CIA, the FBI, the Defense Intelligence Agency, the Drug Enforcement Administration; specialized elements of the Defense, Homeland Security and Veterans Affairs departments; and banking and financial regulators like the Securities and Exchange Commission and the Consumer Financial Protection Bureau. Governmentwide, some critical groups of federal employees, such as members of the Senior Executive Service and presidential management fellows, are also appointed under excepted’authorities. 

Thus, for much of government, exceptions have become the rule, in part because the regular civil service system is woefully obsolete. And these exceptions have been implemented in a way that has steadfastly avoided the politicization inherent in Schedule F. I know this from firsthand experience. Most of the 100,000 civil servants I worked with in the intelligence community were in the excepted service, and for the most part, we knew how to keep partisan politics from influencing decisions about who earned these positions. 

Agency-specific efforts are the new vector of civil service reform, and an outright ban on them could inadvertently set such reforms back by years. 

Missions Matter

Recently, Jeffrey Neal of the National Academy of Public Administration, writing on behalf of a working group of NAPA fellows, argued that “virtually nothing has been done” to modernize the federal civil service for years. But while it’s true that few governmentwide reforms have been implemented, lots of agency-specific ones—all under the heading of exceptions to regular civil service rules—have occurred. I would argue that’s a good thing, as long as they are properly managed.

Federal agencies and the people who work in them have different missions. They need to be governed by different civil service rules, in whole or in part. They’re all part of a more federated, less monolithic model, and legislation needs to acknowledge legitimate alternatives to guide them, rather than ignore or try to suppress them. 

Two recent examples, both involving cybersecurity, offer a possible way ahead. 

In 2013, DHS received congressional authority to create a cybersecurity personnel system outside of Title 5, but subject to Office of Personnel Management coordination and, of course, congressional oversight. Its regulations took way too long to issue (that’s another story), but the point is the system was specifically designed to take advantage of the flexibilities inherent in the excepted service. 

Congress gave mirror-image authorities to DoD to except its cybersecurity experts a year later. DoD was far more expeditious in exercising that authority and it chose a much more descriptive title: the Cybersecurity Excepted Service.

Note that in both cases, the agencies were statutorily bound to respect merit principles and protections, but there was no attempt to ban flexibilities outright. In fact, excepted flexibilities were specifically acknowledged and enabled by law, with OPM and congressional authorizing committees serving as a check on their implementation. 

Beyond the Monolithic Model

The one size fits all monolith just isn’t reality anymore in government. So, in my view, legislation needs to recognize and acknowledge the flexibilities inherent in exceptions to the competitive civil service and guide them, rather than trying to ban them (and in the process, perhaps increase its chances of passing).

Agency- and occupation-specific exceptions to the standard civil service system—whether they’re partial (as in excepted appointing authorities) or full-blown excepted services like CIA or SEC—don’t necessarily lead to politicization. But they should be guided and managed as part of a broader statutory plan that provides modern, more targeted flexibilities without politicization. 

That’s what NAPA’s No Time to Wait report concluded in 2017, but it hasn’t happened. Indeed, no one has even proposed it.

Exceptions to regular civil service rules are not inherently evil, the underlying political motivations of Schedule F notwithstanding. But they do need to be recognized in law and managed in practice. So, let’s not make agency- and occupation-specific exceptions harder. Instead, Congress should create a process that acknowledges and enables those flexibilities while prohibiting any attempt to use them to politicize the civil service.

Ron Sanders is a fellow of the National Academy of Public Administration and a retired career member of the Senior Executive Service. He served as director of civilian personnel at the Defense Department, the IRS’s chief human resources officer, associate director of the Office of Personnel Management, chief human capital officer for the intelligence community, and chairman of the Federal Salary Council.