New Firing Process Could Make Things Worse at VA

When Mark Twain collaborated with his neighbor Charles Dudley Warner in 1873 to write the novel The Gilded Age, it received mixed reviews—but it became a classic, in large part because of its title, which has come to define an era of thorough and deep corruption in public affairs and governance.

Not the least of the corrupting and shocking dynamics of that era was the spoils system—the distribution of government jobs not based on competence, experience, or expertise, but for political patronage, to curry favor and extract in return money to remain in office or to attain office.

Despite public unhappiness, the spoils system remained in place—its Republican supporters, including Chester Arthur, were called "the Stalwarts"—until a massive public uprising upon the assassination of President Garfield by a disappointed office seeker. Charles Guiteau shouted after shooting Garfield, "I am a Stalwart.... Arthur is president!" Guiteau was hanged, and Arthur, who was Garfield's vice president, ascended to the presidency.

But horrified by the assassination, Arthur abandoned his support for the spoils system and championed reform. The result was the Pendleton Act of 1883, which established the principle that government jobs should be awarded on the basis of merit, not patronage, creating the Civil Service Commission to implement merit exams and making it illegal to fire, demote, or harass civil servants for political reasons. (In an interesting bit of trivia, George Pendleton, the Ohio Democrat who was author of the act, was showcased in Steven Spielberg's movie Lincoln as a prime opponent of the 13th Amendment.)

The Pendleton Act started with a small share of federal jobs, but the proportions grew substantially over time, ultimately encompassing the vast majority of federal employees. Another reform, 1939's Hatch Act, enacted after a series of scandals involving the Works Progress Administration for involving employees in the 1938 congressional elections, provided additional protections against the involvement of most government employees in partisan political activities, as much to protect employees from undue pressure from their political superiors as to curtail political influence by government employees with power over citizens.

Why this basic history? I write it in part as reform of the Veterans Affairs Department moves through Congress, with as great a chance of successful enactment this year as any piece of legislation (of course, given the pathetic record of this Congress, that makes it no sure thing). The reform, which will likely resemble the Senate bill cosponsored by Bernie Sanders and John McCain, does some important, urgent, and necessary things, especially making sure that veterans who have waited for months or longer to see a VA doctor will have other immediate options in the private sector.

The reform also addresses what is clearly a pattern of gross mismanagement at the VA, both on the health-delivery side and on the side of processing disability claims. Therein lies the rub. The House bill, written by Veterans' Affairs Committee Chairman Jeff Miller, did so by wiping out entirely any protection from firing or demotion for VA employees, instead treating them like congressional employees, who have political jobs and no civil-service protection. The Sanders/McCain bill is better, but not by much. It would give a fired employee seven days to file an appeal after getting a termination notice and having his or her pay stopped, and give an appeals board a deadline of three weeks after that to render a decision. The bill allows VA executives to stop paying employees they want to fire before the employees can find out what the reasons are or file an appeal.

In almost all cases, an appeal would be complex enough to require the employee to hire a lawyer, who would then have to talk to the client, get evidence together, write an appeal, and appear before the board. Lawyers who know anything about this field are in short supply—simply getting one within a week would be tough. Getting one who would drop everything to focus on a case would be nearly impossible (not to mention very expensive for the canned employee whose paychecks have already stopped.) And if the appeals board had to deal with large numbers of cases, it would be overtaxed and overwhelmed, and the appeals would not be heard in anything resembling a fair and thorough fashion.

At the same time, what we know of VA mismanagement is that higher-level executives devised the system of concealing long wait times, and prodded underlings to go along and abet the corruption or face retribution. There is a chance that this new streamlined firing process would actually give more power to miscreants over their inferiors, making the problem worse.

To be fair, Sanders, Miller, and McCain had to move quickly to deal with the backlog, and respond to public outrage over the malfeasance, misfeasance, and nonfeasance. The need to streamline the process of accountability here, to tilt a system that makes it extraordinarily difficult to fire or discipline civil servants back to something more responsive, is clear. But the rush to do so puts in place a dangerous system and precedent—one which we can be sure would become the template for removing protection from employees in other agencies (no doubt, the IRS will be the next target) any time there is a scandal or alleged scandal, and begin to inch us back toward a patronage system.

That is not the only problem. We are about to have a serious crisis in government management, as the top career federal managers in the Senior Executive Service, mostly baby boomers, reach retirement age. Getting competent managers to replace them will not be easy—and this makes it harder. We are having problems as well attracting top-flight professional people into government, including engineers and computer scientists to deal with cybersecurity, tech professionals to manage outdated computer systems, and physicians—one of the core problems at the VA has been the inability to attract doctors. Federal employees face vilification, pay freezes, shutdowns, and no budget certainty from year to year. Add to that the ability to fire them without much recourse to appeal, and the problem gets much worse.

The fact is that we have already been moving in this direction in the states, which were not covered under the Pendleton Act but all followed in succeeding decades with their own protections for state civil servants. But in recent years, a majority of states have moved to expand at-will hiring and firing, to erode civil-service protections, and to give more leverage to governors' political appointees.

Activist governors, Democratic and Republican, pushed for more control over the past decade-plus, and the trend has accelerated in the past few years in states such as Arizona, Colorado, Indiana, Kansas, North Carolina, and Tennessee. Throw in the assault on public-employee unions in Indiana, Ohio, Wisconsin, and other states, and the pattern is clear: a move away from a merit-based civil-service system to one with substantial additional political control.

Reform has clearly been needed, at both the federal and state levels. There have to be means to fire or demote incompetent or corrupted employees, while preserving basic due process. But reform needs to be done with extreme caution and care. When I have written about the state of campaign finance in the country, I have frequently referred to this as the New Gilded Age. In a highly partisan and tribal environment, with heightened hostility between the parties and their partisans and a huge gulf between the priorities, issue positions, and agendas of the parties, the erosion of a system built on independent civil servants carrying out their responsibilities impartially, hired on the basis of merit, and protected from purely political pressure, is not to be taken lightly. This country does not need a new spoils system to add to its already corrupted campaign finance regimen.