onald Trump’s election sparked concern in many quarters about how America’s political institutions would respond to a populist insurgency. The first real test is under way between the new administration and the federal bureaucracy—and the battle has the potential to be among the more productive of the Trump presidency. It could result in a long-delayed overhaul of the federal civil service, which has become an obstacle to sound governance. Paradoxically, such an outcome might be more the by-product of anti-Trump agitation than a sign of Trump’s political skill.
Only days after Trump’s inauguration, many bureaucrats joined “the resistance.” The interim head of the Department of Justice, Sally Yates, refused to implement the president’s executive order regarding refugees and was promptly fired. (The honorable thing to do if she felt she could not in good conscience implement the order would have been to resign.) News stories circulated that federal civil servants were considering ways to defy the president. The Washington Post reported that career government employees were seeking advice from Obama appointees still on the job on how to push back against the new administration without jeopardizing their posts. Some employees created social-media accounts as vehicles for future leaks. Others attended forums and workshops on how to oppose Trump.
At the Justice Department and the Environmental Protection Agency, workers discussed how to use internal grievance procedures to gum up the works and coordinate slowdowns on the job—called “working to code” in labor relations, which if done en masse can amount to an informal strike. Hundreds of EPA employees protested Trump’s nominee, Scott Pruitt, to head the agency in Chicago, and 450 former employees signed a letter to the U.S. Senate opposing Pruitt’s confirmation. At the State Department, several hundred employees used a formal dissent channel to send a cable protesting Trump’s executive order on refugees. The cable was immediately leaked to the press.
So far leaks have been the primary way that bureaucrats, especially in the intelligence community, have sought to undermine the new administration. For instance, the leaks that led to the eventual firing of National Security Adviser Michael Flynn revealed that parts of the U.S. intelligence community are knee-deep in political activity that should be off-limits to them.
The recent Kulturkampf is partly a result of the fact that permanent government bureaucracies fit awkwardly with democracy. In the simple version of democratic theory, candidates compete for office in competitive elections based on different practical and ideological programs. Whoever wins the election then seeks to implement their program through the bureaucracy. As Barack Obama once put it, “elections have consequences.” In this theory, the president, as the only official elected by the entire nation, is the “principal” and the bureaucracy is the “agent,” and the former tells the latter what to do. The bureaucracy “belongs” to the executive branch, but the president is supposed to control the bureaucracy through his political appointees.
For much of the 19th and early-20th centuries, the problem of the bureaucracy was that it was too responsive to its political masters.
While most civil servants tend to be loyal to political superiors, aggrieved bureaucrats do have formidable powers to resist their political masters. Today’s federal bureaucracy comprises roughly 2.7 million civilian employees and 1.5 million military personnel. Nearly 5,000 employees are appointed by the president. Almost all full-time, nonpolitical federal employees are hired under the civil-service system, which gives them substantial job protections. It can be nearly impossible to fire, demote, or suspend a career civil servant.
Such job security effectively gives bureaucrats a troubling degree of independence from their political superiors. They have at their disposal a variety of techniques to sabotage actions ordered by elected officials with whom they disagree. These can include slowing down the pace of work on the job, mobilizing interest groups against an agency’s agenda, or leaking sensitive information to Congress or the news media. The Whistle Blower Protection Act protects some of these powers of obstruction. In sum, whatever the will of the people as expressed through elections, the bureaucracy retains a good deal of autonomy.
Things did not always work the way they do today. For much of the 19th and early-20th centuries, the problem of the bureaucracy was that it was too responsive to its political masters. The downside of that responsiveness was that the bureaucracy was also often incompetent, corrupt, or some combination thereof. Government jobs were the political prizes of electoral victory—and as New York State Senator William Marcy famously put it in 1828, “To the victor belong the spoils.” The spoils system, as it came to be known, was one in which party machines controlled who got government jobs on the basis of partisan loyalty rather than job qualifications. After every election, the parties (or factions within the parties) would dismiss thousands of workers from government jobs and replace them with loyalists. For example, when Democrat Grover Cleveland assumed the presidency in 1885, he fired some 40,000 Republican employees appointed by his predecessor, Republican Chester Arthur, and replaced them with Democrats (in a period when the federal government employed only a little more than 100,000 civilians). Constant turnover prevented any sense of professionalism from taking hold.
Because presidents had to make so many appointments, any newly installed administration was largely dedicated to staffing the bureaucracy. President James Garfield complained to his wife that he “had hardly arrived [in Washington] before the doorbell began to ring and the old stream of office-seekers began to pour in. They had scented my coming and were lying in wait like vultures for a wounded bison.” Garfield was later assassinated by a deranged office-seeker claiming loyalty to another faction of his party. It was this horrendous event that prompted Congress to pass the Civil Service Reform Act (better known as the Pendelton Act) in 1883.
From a system in which politicians exercised too much control through patronage, we have moved to one in which politicians exercise too little.
The creation and establishment of the civil service in the United States was designed to shield the federal government and its employees from the vicissitudes of politics. The civil-service system would deliver the state from the hands of corrupt party bosses to the educated and enlightened technocrats. The underlying idea was that more and more areas of public policy could be taken out of political contestation and quietly handled by experts. Only then, it was held, could government make and carry out comprehensive and consistent plans in the public interest.
The upside of the civil service is supposed to be that the expertise of the bureaucracy allows it to become in some sense the caretaker of the nation’s long-run interests. The downside is that such autonomy poses the danger that the bureaucracy becomes untethered from democratic direction. From a system in which politicians exercised too much control through patronage, we have gradually moved to one in which politicians exercise too little. This “administrative state” can make decisions with little direction from appointed officials. It also protects incompetence and drives up the cost of government.
Federal employees have been able to entrench themselves through political advocacy—even though in theory, the civil service should be beyond and above such things. While they lack a right to strike and their collective bargaining rights are more limited than those in many state and local governments, they still constitute a potent political force. Federal workers are spread across the country. In congressional districts with major federal facilities, employees, retirees, and their families often constitute powerful voting blocs legislators can ill afford to ignore. It’s not surprising that representatives from Northern Virginia districts, which include thousands of federal workers, are among their champions. Furthermore, some 33 percent of the federal workforce is represented by labor unions, which gives them added heft.
Federal workers and their unions are unquestioned allies of the Democratic Party. According to an analysis by the newspaper the Hill, federal workers from 14 agencies gave 95 percent of their campaign contributions to Hillary Clinton. About 15 percent of federal employees live in the greater Washington, D.C., area, so a look at the voting patterns of that region is revealing. Washington, D.C., voted 91 percent for Hillary Clinton. In D.C.’s Virginia suburbs, Clinton won 77 percent of the vote in Arlington County and 65 percent of the vote in Fairfax County. In Montgomery and Prince George’s County, Maryland, 76 percent and 89 percent of the vote, respectively, went for Clinton.
With or without civil-service rules, bureaucrats have always played politics. And how to deal with that fact has ever been a knotty question. Under the spoils system, since bureaucrats were indebted to elected officials for their jobs, they often spent more time on political activity than on their nominal work duties. At other times, bureaucrats engaged in politics to advance their own self-interest to secure better pay, better benefits, and better working conditions, with great success. (As early as 1901, Congress had to pass a law to limit lobbying by the postal-workers’ union). Today the average wage in the federal government is substantially higher than that in the private sector. Economists Andrew Biggs and Jason Richwine found that compared with similar private-sector workers, federal workers’ salaries are 14 percent higher and their benefits are 63 percent higher. The benefits of government employ are especially pronounced for those with less education and fewer skills. The result is more expensive public services.
The civil-service problem has a different cast today. Constant resistance and stalemate in the implementation of policy threaten the proper functioning of government. Assuming that what Trump wants to do is inside the bounds of the law and morality, some federal workers are even now defying the constitutional prerogatives of the elected president of the United States and using their institutional power to set one branch of government against another. Dissent and resistance on political grounds is now apparently considered legitimate. The oath civil servants take that they will “well and faithfully discharge” their official duties appears to be little more than a fig leaf.
Trump and his supporters are unlikely to allow themselves to be pushed into a corner by conniving bureaucrats who can’t be fired. They will argue, as one critic of the civil-service system once put it, that “no matter how wise the chief, he has to have the right Indians to transform his ideas into action.” (Those were the words of Supreme Court Justice Lewis Powell.) And they will be right that civil-service protections and lifetime employment will no longer be defensible in a democracy if bureaucrats are going to interfere directly and without apology in politics. Nakedly partisan activities undercut the rationale of the civil-service system, which is that the administrative state is to be run by highly trained but politically neutral experts. If bureaucrats are really just cosseted partisans, the grounds for their protections melt into air.
In addition, there is a widespread view that the civil-service system is not performing well, and that there should be changes to the way federal workers are hired, promoted, and disciplined. As things currently stand, almost no federal employees are fired for performance-based reasons. Employees accused of wrongdoing—such as watching pornography on the job or threatening a fellow employee—can be suspended and under investigation for years, all the while collecting full pay and benefits. Performance evaluations are considered basically useless, since nearly all employees are rated as doing excellent work. As New York University professor Paul Light, the leading expert on the federal bureaucracy, puts it: “The civil-service system fails at almost everything it was designed to do. It’s very slow at hiring, negligent in disciplining, permissive in promoting.”
Bureaucratic obstruction of the new president thus plays right into the hands of those who want to reform the civil service. There is simply no way a populist insurgency like Trump’s will take the continual defiance of government employees lying down. And relatively affluent, well-educated federal employees are not exactly a sympathetic group in a country skeptical of government. House Oversight and Government Reform Committee chairman Jason Chaffetz has proposed legislation that would make it easier to dismiss federal employees. Speaker of the House Paul Ryan has endorsed overhauling civil-service rules. The result may be that a civil-service reform is facilitated rather than thwarted by hysterical anti-Trump activism.
Ultimately, liberal civil servants opposed to Trump offer the spectacle of a new variation on the themes of Julien Brenda’s famous book La trahison des clercs. In the original version, Brenda excoriated the French intelligentsia for betraying their vocation as intellectuals by selling out the search for truth in exchange for ideological expediency and political victory. In today’s version, civil servants betray their vocation by exploiting their positions for political ends.