Expert: Despite polarizing politics, civil service protections endure—for now

As Congress opens hearings on the Jan. 6, 2021 insurrection at the U.S. Capitol, Nathan Abse interviews political scientist Kenneth Warren about the dangers the country's ongoing partisan polarization poses to the functioning of our political system—and, longer term, federal agencies and the civil service.

Two years after election 2020—the most contested and violent presidential transition in over a century—we’re on the eve of congressional hearings on those events. Still, pundits, academics and everyday Americans of all persuasions say our democracy remains deeply challenged. Democrats and independents judge the polarization and dysfunction as caused by the last president’s actions and by law enforcement’s slow progress in moving on leaders of the attack on the elections process, especially the Jan. 6, 2021 insurrection at the U.S. Capitol. But others—mostly Republicans—downplay those events and even justify them as reactions to elections fraud, despite investigations and recounts (by officials and the judicial branch) repeatedly finding no significant election irregularities. This unresolved, fundamental disagreement about an election throws acid on the legitimacy of our electoral system. But does it also threaten the nuts-and-bolts functioning of agencies? According to many experts, for feds and public users of government services—in short, all of us in the U.S.—the historically sharp partisan split indeed does threaten future peace and prosperity. For civil servants, especially, the ongoing standoff—and posturing over the “Big Lie”—continues to slow confirmations of agency leaders. In the years 2017-2021, the previous White House’s attempts to shatter bureaucratic laws and norms also had implications for the functionality of agencies. Calling it “the Swamp” and hitting it with aggressive executive orders to serve political ends by superseding standing policy and law. One empirical measure of the damaged morale at agencies in all this was a downward drift in employee engagement, in OPM’s annual surveys. To elucidate these tough trends—polarization in our political government and damaged morale and recruitment in the federal workforce—Nathan Abse this week interviews Prof. Kenneth Warren, an expert in fields useful to evaluating ideological pressures and downstream problems for civil servants. Warren teaches courses covering political science, history and well as administrative law at Saint Louis University in St. Louis, Mo.

Q&A with Kenneth Warren

The political polarization of 2020 burns just as strong in campaigns for midterm elections this November.  For our civil service: Does the political strain end in damaged functionality?

Warren: I'm currently writing an article on this subject. In it, I highlight that—despite heated rhetoric and political strain you identify—[President] Trump was largely unable to implement extreme changes through his Executive Orders, specifically those designed to undermine the existing legal and regulation framework protecting our civil service from political interference. Cut to the chase, many headlines sensationalized he succeeded in deregulating the administrative state as we know it, when the reality is he did not. The courts resisted and usually ruled against his changes. The civil servants themselves also resisted. In short, the last president proved unsuccessful in his efforts to directly disrupt the administrative state and the civil service.

Why did he fail, and in what ways—and what do you mean by a non-political “administrative state” and its strength to resist political overreach? Can you frame all this in history and law?

Warren: Sure. So in the U.S., through most of the 1800s, the patronage system prevailed. Government jobs and appointments were politicized. Presidents handed out favors and the like. The Civil Service Act of 1883, also called the Pendleton Act, was a reaction against this system. It and subsequent acts that strengthened it were very powerful. After the Pendleton Act, presidents—especially Teddy Roosevelt and FDR—hugely increased the number of federal workers covered under this law de-politicizing civil service to over 90% of the federal workforce. That was a huge change—and it got a lot of party politics out and created an administrative state. Do not underestimate the power of this law and what it did. And studies continue to show that civil servants remain very mission-oriented, not oriented around politics.

You imply that the public misunderstands the difference between political officials’ limited reach and our administrative state with its career civil servants. Can you clarify?

Warren: Yes. Most people I encounter underestimate entirely the way the civil service system was built, historically and legally—actually along the lines of [political theorist] Max Weber’s model of bureaucracy. Our civil servants are career civil servants. They're hired for their expertise, not their politics. They are protected from our politics. This was a direction that began during the Progressive Movement—and intensified further under President Woodrow Wilson in the early 20th century. After that, there really is an administrative state—there's still debate over this, somehow—as in: Is there really an American administrative state, one not about politics but serving the public? In fact there is one, and generally the Republicans hate it. Sometimes so do Democrats. Because, whichever party is elected to power, it means that unelected career civil servants exercise enormous discretionary power to make public policies. Fact: Over 90% of our public policies are actually made by career civil servants. A lot of people—educated people—are shocked by this. But it’s true, and it’s so because Congress purposely delegated vast lawmaking powers to agencies. We call it “rulemaking,” but it carries the force of law. It’s been this way a long time now and it’s backed by Supreme Court decisions: agency rules carry the force of law.

Okay, so agencies are focused on following enabling law, serving the public—and most feds are safe from firing. But circling back to feds’ morale, it’s down in OPM and other surveys, right?

Warren: Right. That’s true in surveys. But as to your question about how well our federal civil service system is really, let’s say, “surviving” our recent troubled political times? From my point of view, I’d say really quite well. And in terms of the dangers of lowered morale? Again, civil service servants still really can't be fired or fired without a lot of difficulty—and that can help protect morale, for many feds, in a time when the civil service is being attacked. It is true that many federal employees got discouraged and retired or even quit over politicizing efforts—especially during the Trump administration, over his attacks and put-downs on the civil service.

Does the civil service have a political bias?

Warren: In one sense, no. The bias is mostly about being dedicated to each agency’s mission. Having said that, in another sense the civil service—to put it bluntly—does have a Democratic liberal bias, historically speaking—say, since the New Deal (much of the government’s work was built up by “New Deal Democrats,” after all.) Even today, that’s the way civil servants lean in their voting behavior. In studies I recently consulted the civil service remains at around 50% identifying as Democrats. That might not seem like a tilt—after all, it’s just half, right? But not really. Because the same surveys indicate only twenty-something percent identify Republican. The remainder identify as “independents” or “undetermined.” So, that’s basically more Democratic, more liberal—in their own voting behavior. But—this is important—in the case of those who lean Republican or independent, they emphasize they identify as “mission-oriented,” about their work, right? So in the end, the net effect can be read that civil servants are not apt to be “political” in their work.

You’re saying whether Democrat or Republican, being “mission-oriented” feds don’t bring party politics to bear—in a mostly on-the-job depoliticized “administrative state”?

Warren: Right. It’s still like that. So, let’s say you get a president who wants to disrupt, for example, the established mission of the EPA, largely through executive orders and pressure on the civil service. We saw that in the last president. Whether Republican or Democrat, the EPA’s environmental scientists, they clearly didn't like it. So, they resist and drag their feet on any interference in the mission. That’s literally the term for it: bureaucratic foot-dragging, or bureaucratic resistance, or bureaucratic inertia—there are all sorts of names for it. Point is, in addition to legal protection from any White House push to go off course from an agency’s legal mission, there’s also ground-level foot-dragging. And in a third level of protection, a president through his political appointees, cannot fire the civil servants, except for good cause. In practice that means it’s nearly impossible to fire people. In my upcoming article, I cover how some presidents tried but mostly failed. (A focus is on Trump and his efforts to undermine agencies including EPA, the Department of Education, the Postal Service, etc. In the end, though motivated he was not very successful.)

You’ve listed laws protecting agency missions, law protecting employees from firing, and informal foot-dragging resisting political interference—any other factors in his failure?  

Warren: Yes. Yet another big reason for Trump’s failure—and that of other presidents and party political types to get around laws and rules to disrupt agencies—is because political appointees rarely know or care to learn about the details of government agencies and bureaucracies. So they don't know what's going on. To even try to twist or get past laws and rules, you must know details of how things work, to throw an agency off its mission—or even try to dismantle it.

Can you discuss some specific agencies and recent efforts to disrupt them—an example?

Warren: Trump installed Scott Pruitt at EPA. He tried to disable or dismantle the agency. But when the dust cleared, little dismantling had occurred—of key mandates like the Clean Water Act or the Clean Air Act—and so forth. Very little. Now, Trump did make headway against a few minor regulations. Very few. But most of his orders and Pruitt’s moves, and other administrative efforts to derail EPA, had little long-term effect.

In your recent work, did you see data on the general failure of EOs as a disruptive tool?

Warren: I consulted some data, for instance some kept by [experts at] NYU, about attempts to use executive orders—EOs—and White House-only attempts at profound regulatory changes. Fact is, Trump failed about 80% of the time in his use of EOs to implement such changes. Since he’s left, there have been additional court rulings—some for and some against him. But still the numbers are at nearly 80% failures, overall.

It’s not just President Trump’s efforts to change agency function through EOs, but other presidents’ efforts, that have failed too—right?

Warren: That’s correct. Most EOs carry almost no clout, and have little effect on the ground. One study I consulted covered 10 executive departments, over the longer haul, and just over 2% of them re those 10 departments were implemented in a way to have the desired effect.

So, why do presidents try to effect agency change with EOs? And you said you noted some have effect?  

Warren: Most executive orders are symbolic—they have symbolic importance. For example, Trump on his first day in office signing an order to do away with the Affordable Care Act (ACA). There is a long list of executive orders that presidents have given, in this sort of symbolic or populist way. In Trump’s case, to placate and please his base, to message that he's fulfilling his promises. Democrats do it as well, of course. Point is, it’s often disingenuous—you issue an executive order, you act like you’re getting something accomplished, but usually you are not. Many journalists don't understand this. They'll say to me, “Well, what about this EO?” as if it accomplished a lot in practice. But if they had followed up properly, they would see many EOs weren’t implemented in any meaningful way. Even when they start to do so, courts often come in afterward and stop further action. Having said that, about the things you at FEND report on most—the federal civil service—EOs can and do sometimes “apply,” get some traction and give a president like Trump something he can tweet about.

Indeed, we’ve seen EOs that affect the civil service more, right?

Warren: That’s true. EOs have been used to push federal agency reorganizations and tweaking them—and that kind of EO can have that effect, at least for a while. And I would add that Trump got away with more of this, by successfully characterizing the need for them as an “emergency.” Most important, in my view, the courts just did not act as they normally would. They did not do their job about some of Trump’s EOs. I mean not just EOs aimed at the civil service. The courts also let him get away with raising tariffs on the Chinese, for example. That was very unusual. Congress normally is empowered to impose tariffs, not a president. Still, the vast majority of EOs go nowhere fast, after the newspaper headlines fade.

So, you fault the courts here—and the media—for sloppy analysis of EOs?

Warren: Yes, to some degree. Unfortunately the media wrote frequent stories on Trump EOs on this and that, but what they did not do as frequently was to follow up properly and expose that these EOs were rarely implemented to have any effect. Presidents have very limited powers with EOs, particularly in domestic matters. Beyond the EOs aimed at the civil service, he didn’t get far with them on hobbling the ACA or building his border wall.

Again, why do presidents try to use such an ill-fated tool as EOs to alter agencies where processes and missions are often imbedded in law?

Warren: Because—at least infrequently, they work to some degree. And for political gain. EOs can be useful for rallying your political allies, for clarifying friends and enemies, for adding energy to rallies and so on. They have political value. Especially in a demagogic sense. A demagogue usually knows better, right? The facts about their limits. But he uses the public in order to move them in a certain way. And all presidents have done that, as well as governors—the infamous [Louisiana Governor] Huey Long was great at it. I’m writing on that in my article. Where Trump was unsuccessful in deconstructing the administrative state. But also where he was successful, in using the bully pulpit, in places—some of them demoralizing to the civil servants even when it wouldn’t affect them or their jobs directly as they wouldn't be fired as a result. Perhaps most importantly here, he moved the public—many in his base—to turn against several agencies they had not been against before, according to public opinion surveys. His words and actions dramatically lowered the image of the FBI, for example. By around 10 percentage points—from about 65% approval in some polls and it dropped down to 55% approval right after Trump’s attacks. And Trump attacked federal civil servants in general. In that sense, between his bully pulpit words and some of his EOs he was successful, in that he tarnished the image of the civil service system somewhat.

You—and political observers like Richard Pildes, Ezra Klein and Bill Bishop—see “safe seats” and gerrymandering causing much demagoguery and extremism in our politics?

Warren:  Absolutely. Many factors go into our polarization. But Congress hasn’t been willing to do anything, for example, about mass shootings or other pressing issues largely because of the “safe seat” problem. The U.S. Senate is now at about 85% safe seats—who win reelection as incumbents easily. With self-sorting of people into like-minded areas, we have evolved into very red versus very blue states—and not many “purple” states, contestable between the parties. The same factors plus sophisticated gerrymandering hit the House, where we’re seeing well over 90%—more like 94%—re-election rates. It feeds extremism, a lack of compromise, starting with the primaries where the candidates are selected. And beyond politics, safe seats and extreme elected officials can facilitate attempts to disrupt or dismantle agencies and their legitimate missions. But, thankfully, those efforts have not been very successful—so far.

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