June 20 2013

Why Lois Lerner Can't Be Fired: Good Intentions Gone Awry

Charlotte Hays

QUOTE OF THE DAY

Like reforming the spoils system of the 19th century, dealing with today’s incompetent, lazy, and corrupt public employees is a good deal easier said than done. As always with human affairs, self-interest rules.

 --John Steel Gordon, The American

Bureaucrats have been with us since the beginning. But in 1789 there were 40 federal bureaucrats, while in 2011 there were 2,756,000 employees in the executive branch.

Then, of course, there are state and local bureaucrats. Alas, they were everywhere. And they seem to have established that character we have come to associate with them some time ago. Indeed Gordon quotes from a reporter visiting New York’s City Hall in 1886:

“We pass many open doors ... through which we see idle men with their feet upon tables smoking cigars. There are few buildings in the world, probably, wherein the consumption of tobacco in all its forms goes on more vigorously during business hours than the City Hall of New York. Smoke comes in clouds from many rooms, and the vessel which Mr. Thackeray used to call the ‘expectoratoon’ is everywhere seen.”

Well, they'd not be smoking today--perish the thought! But the laziness is instantly recognizable.

Still, these bureaucrats, unlike their modern counterparts didn’t have permanent perches. They were political hacks and they were given jobs when their party was in power. When their party lost, they were booted out. This tradition went back to when Thomas Jefferson wanted to rid himself of the public servants left behind by George Washington and John Adams, members of the Federalist opposition.

The famous Supreme Court decision Marbury vs. Madison was the result of federal employee William  Marbury’s attempt to hang onto an appointment despite Jefferson’s sweep. Unlike the well-ensconced modern bureaucrat Lois Lerner, however, Marbury was sent packing (and the right of judicial review was established—but that’s another story). Thus the spoils system was established.

But, as Gordon writes, good government types began to see the spoils system as the cause of government inefficiency. Several presidents tried to reform the spoils system, which protected people who hardly worked at all.  When reform came, however, the reform contained the seeds of something worse, a permanent, self-interested bureaucracy lazier than its predecessor:

In 1883, Arthur managed to get Congress to pass the Pendleton Act, named for its principal Senate champion, George H. Pendleton, Democrat of Ohio. It outlawed assessments and required filling some federal positions through competitive examinations. It also forbade the firing or demotion of federal employees for political reasons and revived the U.S. Civil Service Commission, defunct since 1874. The three civil service commissioners were appointed for fixed terms to give them independence.

The Pendleton Act also allowed the president to enlarge the scope of the act, to cover more and more of the federal workforce. As the White House changed parties frequently in the late 19th century (in 1884, 1888, 1892, and 1896), departing presidents had an incentive to lock in the previously unprotected employees whom they had appointed, and so the spoils system gradually faded away.

The Civil Service Commission was abolished in 1978 and replaced with a number of often-overlapping successor agencies, such as the Federal Labor Relations Authority, the United States Merit Systems Protection Board, and the Office of Personnel Management.

But by taking away from politicians the power to hire and fire federal employees and giving it to a commission, a different set of self-interests — those of federal employees — began to cause new problems.

It was, after all, the employees of that Civil Service Commission who had to write the specific rules and regulations regarding hiring and firing. Being themselves bureaucrats, they naturally protected the interests of bureaucrats with ever-more elaborate procedures for termination. Under President Kennedy, many federal employees were allowed to unionize, adding still another layer of protection against being fired.

So now you know why Lois Lerner still has a job (though, of course, I hear she’s taking it easy on the public dime these days).  

Our current system makes the spoils system look efficient. At least we got to throw the bums out and bring in new bums once in awhile. It is also interesting that the federal bureaucracy has become a one-party institution that regards itself as being above normal financial constraints and thus throws lavish parties for itself.

Reforming the bureaucracy is perhaps one of the three top concerns of the next presidency: along with reforming the tax system and restoring freedom by abolishing red tape and restoring religious liberty.

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