BUREAUCRACY FIX BEYOND TRUMP
Readers who are thrilled by the back and forth of federal rulemaking — and surely there must be some — might be aware that the Office of Personnel Management recently issued a scorcher, modestly headlined “Final Rule to Reinforce and Clarify Protections for Nonpartisan Career Civil Service.” For those who inexplicably missed it, let me explain the importance of this dull-sounding rule: It is the federal bureaucracy’s self-defense against a future Trump administration firing uncooperative civil servants.
And it is undoubtedly a blessed relief for career civil servants. For the rest of us, well, I’m not thrilled either at the prospect of Donald Trump firing federal employees who oppose his harebrained schemes — even though I do think it would be better if our often dysfunctional civil service had more democratic accountability.
A more important point is that this ought to be a wake-up call for Republicans: Trumpism is a dead end. What’s wrong with our government cannot be fixed through executive orders or social media trolling. Republicans who want a better bureaucracy, or even just a smaller one, need to get more interested in governance.
Trump’s first term as president is a case in point. Bored by policy and process and frustrated by legislative horse-trading, he was unable to make good on his promise to drain the swamp. His administration ended up increasing the government’s size, adding, when you count contractors and grant recipients, more than 2 million government-backed jobs. And Trump’s attempts to cut back the regulatory state were repeatedly thwarted, not because there was a conspiracy against him but because his team was too often sloppy in execution and too rarely strategic.
Poorly drafted or overambitious executive orders and regulations were frequently challenged in court, usually with success. Of 258 Trump administration deregulatory actions that faced court challenge, only 58 survived intact. And even those were vulnerable when President Biden took office and began rolling back much of what Trump had achieved through administrative fiat.
Which brings us back to OPM’s new rule. In October 2020, Trump issued an executive order creating a new “Schedule F” class of civil service, including “employees in confidential, policy-determining, policy-making, or policy-advocating positions.” This would have reclassified a large number of federal workers as at-will employees who could be fired more easily than is currently possible. This was, of course, the point: It gave the president more control over the bureaucracy.
Whatever you think of this idea, the executive order was a major strategic blunder.
Schedule F wasn’t some base-pleaser that had to be put in place before the 2020 election. (Trump’s base does not, mostly, spend its days reading the Federal Register.) And if he lost, it was guaranteed to be rolled back, as it was as soon as Biden took office. Rushing to get this done before the election only put the bureaucracy on notice, and when Trump lost in November 2020, it had four years to respond. The OPM’s new rule is that response; it effectively blocks the president from involuntarily reclassifying career civil servants or stripping their job protections.
Unforced errors like these will keep happening to Republicans unless they get serious about reform. This means more focus on the patient work of laying the legislative and bureaucratic groundwork for lasting change and less focus on showboating executive orders or sweeping denunciations of government on Fox News or social media. Republicans need to remember that they are the government and that they need to take some responsibility for fixing it.
Kevin Kosar, a senior fellow at the American Enterprise Institute who studies Congress and the administrative state, said that too many Republican legislators “won’t play small ball that can eventually turn into big ball wins.”
Kosar’s most recent report paper for AEI outlines just the sort of small ball proposal Republicans should pursue: a Congressional Regulation Office that would analyze regulations in a consistent, nonpartisan and transparent manner, akin to the way the Congressional Budget Office assesses the fiscal impact of legislation. This is a proposal that both Democrats and Republicans should love: Democrats, because it gives legislators a dedicated service devoted to optimal regulatory design, and Republicans, because it gives them an office keeping permanent tabs on the often opaque operations of the bureaucracy.
“In this hyperpartisan era, wouldn’t it be nice to have a unified set of numbers?” Kosar asked when we talked.
Numbers alone will not be enough to make our administrative state more effective and accountable, but they are a necessary first step. A good second step would be to get more conservatives into government jobs — not by stuffing them with political appointees but by creating a school-to-government pipeline — akin to what the Federalist Society did for the judiciary — to counter the leftward skew of the civil service.
Unfortunately, this would require Republicans to concede that good government matters, even if you think there should be less of it, and certainly if you want to take on big, ambitious projects such as industrial policy. They would also need to concede that this will take more than an exercise of Donald Trump’s steely will. So, more likely, a second Trump term would simply repeat the follies of the first, perhaps more obstreperously, but to no greater effect.