Bar­ring fed­eral em­ploy­ees from overtly po­lit­i­cal ac­tiv­ity

Why civil ser­vants should not be al­lowed to lead the #re­sis­tance

The Washington Times Weekly - - Commentary - By John W. York

The largest fed­eral em­ployee union in the coun­try is su­ing the Of­fice of Spe­cial Coun­sel (OSC) over a seem­ingly mild ex­hor­ta­tion to ca­reer bu­reau­crats: Please do not pro­mote the #re­sis­tance or im­peach­ment move­ments dur­ing your work­ing hours. The Amer­i­can Fed­er­a­tion of Gov­ern­ment Em­ploy­ees (AFGE), the largest and most power fed­eral em­ploy­ees’ union in the coun­try, has chal­lenged this di­rec­tive. They claim that the OSC’s guid­ance memo vi­o­lates its mem­bers’ right to free speech. If the AFGE wins its le­gal chal­lenge, the ca­reer bu­reau­cracy will be­come even more in­tractable and in­su­lated

from ac­count­abil­ity.

In its Novem­ber 2018 guid­ance to fed­eral em­ploy­ees, the OSC points out that fed­eral em­ploy­ees are barred from en­gag­ing in overtly po­lit­i­cal ac­tiv­ity un­der the Hatch Act, at least while they are at work. This lim­i­ta­tion has or­di­nar­ily been ap­plied only to elec­tion­eer­ing ac­tiv­i­ties, not is­sue ad­vo­cacy. In con­crete terms, while bu­reau­crats can­not tack up cam­paign fly­ers in their cu­bi­cle, they are free to dis­play a “Save the Whales” poster.

While AFGE con­tends that pro­mot­ing the #re­sis­tance or im­peach­ment is more like the lat­ter than the for­mer, the OSC dis­agrees. In its guid­ance memo, the OSC ar­gues that terms like “re­sis­tance” are “in­ex­tri­ca­bly linked with the elec­toral suc­cess (or fail­ure) of the pres­i­dent.” In­so­far as im­peach­ment “would bar an in­di­vid­ual from serv­ing as pres­i­dent,” such state­ments are also “clearly di­rected at the fail­ure of that can­di­date’s cam­paign for fed­eral of­fice,” ac­cord­ing to the OSC.

Whether the OSC has cor­rectly in­ter­preted the Hatch Act is, in a sense, be­side the point. The fact that our laws, on any plau­si­ble in­ter­pre­ta­tion, would al­low ca­reer bu­reau­crats to openly pro­mote re­sis­tance to the pres­i­dent and re­main at their post, is trou­bling. Un­elected bu­reau­crats who vo­cally sup­port im­peach­ment of and re­sis­tance to a sit­ting pres­i­dent can­not be trusted to faith­fully ex­e­cute the law un­der that pres­i­dent’s di­rec­tion.

AFGE’s lawsuit is just the tip of the ice­berg. Other re­cent in­ci­dents il­lus­trate just how in­su­lated ca­reer bu­reau­crats are from po­lit­i­cal lead­er­ship and, as a con­se­quence, how free they are to stymie elected of­fi­cials.

Last month, the State De­part­ment in­spec­tor gen­eral chas­tised two po­lit­i­cal ap­pointees in that de­part­ment for “re­tal­i­at­ing” against ca­reer bu­reau­crats that they judged to be un­der­min­ing the pres­i­dent’s agenda. What dra­co­nian reprisals did th­ese po­lit­i­cal ap­pointees mete out? Ac­cord­ing to the IG, the ca­reer bu­reau­crats in ques­tion were ex­cluded from “sen­si­tive dis­cus­sions” and re­lieved of some job responsibi­lities. They even had the nerve to “be­rate em­ploy­ees with raised voices.”

Know­ing how far the scales are tipped in fa­vor of ca­reerists, even Pe­ter Str­zok has de­cided to con­test his re­moval from the civil ser­vice. As a re­minder: Mr. Str­zok was fired from the FBI for us­ing a gov­ern­ment cell­phone to text his then-girl­friend in­cen­di­ary crit­i­cism of Pres­i­dent Trump (whom he was ac­tively in­ves­ti­gat­ing as a mem­ber of Robert Mueller’s team) and seem­ingly al­lud­ing to a con­spir­acy to stop his as­cen­sion to the White House.

Con­sider what all of this means when taken as a whole. A fed­eral em­ployee could pin up a poster an­nounc­ing his re­sis­tance to Pres­i­dent Trump and his agenda. Then, that em­ployee could spend his work­ing hours ma­lign­ing the pres­i­dent and slow-rolling and sub­vert­ing di­rec­tives from his po­lit­i­cal ap­pointees. But if a po­lit­i­cal ap­pointee bars that em­ployee from sen­si­tive, high-level meet­ings or shifts that em­ployee’s work­load to some­one who has not vowed to #re­sist, it is the po­lit­i­cal ap­pointee who is in the wrong.

One need not be a devo­tee of the uni­tary ex­ec­u­tive the­ory to see the prob­lem here. Since the pres­i­dent and his ap­pointees can­not dis­ci­pline, nor even side-step, ac­tively op­po­si­tional ca­reer bu­reau­crats, there is very lit­tle rea­son for those bu­reau­crats to make a good-faith ef­fort to ful­fill an agenda they dis­agree with. A res­i­dent who does not mean­ing­fully con­trol ex­ec­u­tive branch per­son­nel does not truly di­rect the ex­e­cu­tion of the law.

Com­pletely di­vorc­ing those who ex­e­cute the

The fact that our laws, on any plau­si­ble in­ter­pre­ta­tion, would al­low ca­reer bu­reau­crats to openly pro­mote re­sis­tance to the pres­i­dent and re­main at their post, is trou­bling.

law from the pres­i­dent and, by extension, the Amer­i­can peo­ple was never the in­tent of the Pro­gres­sive re­form­ers who re­placed the spoils sys­tem with a ca­reer bu­reau­cracy. They wanted to elim­i­nate pay-to-play ar­range­ments and par­ti­san bias in the en­force­ment of the law. They did not aim to cre­ate a clois­tered, per­ma­nent and un­elected cadre of pol­i­cy­mak­ers free to act on bi­ases of their own.

Nonethe­less, many of the merit-sys­tem pro­tec­tions they ini­ti­ated have had ex­actly this ef­fect. While no one wants to re­turn to the spoils sys­tem of the 19th cen­tury, a pres­i­den­tial ad­min­is­tra­tion — whether Repub­li­can or Demo­cratic — should be able to count on the good-faith ef­forts of civil ser­vants. John W. York is a pol­icy an­a­lyst for the B. Ken­neth Si­mon Cen­ter for Prin­ci­ples and Pol­i­tics at The Her­itage Foun­da­tion (her­itage.org).

IL­LUS­TRA­TION BY

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