Specter of Gilded Age Tarnishes VA Reforms

McCain: Balks at "baked in" overruns.
National Journal
Norm Ornstein
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Norm Ornstein
July 9, 2014, 5:42 p.m.

When Mark Twain col­lab­or­ated with his neigh­bor Charles Dud­ley Warner in 1873 to write the nov­el The Gil­ded Age, it re­ceived mixed re­views—but it be­came a clas­sic, in large part be­cause of its title, which has come to define an era of thor­ough and deep cor­rup­tion in pub­lic af­fairs and gov­ernance.

Not the least of the cor­rupt­ing and shock­ing dy­nam­ics of that era was the spoils sys­tem—the dis­tri­bu­tion of gov­ern­ment jobs not based on com­pet­ence, ex­per­i­ence, or ex­pert­ise, but for polit­ic­al pat­ron­age, to curry fa­vor and ex­tract in re­turn money to re­main in of­fice or to at­tain of­fice.

Des­pite pub­lic un­hap­pi­ness, the spoils sys­tem re­mained in place—its Re­pub­lic­an sup­port­ers, in­clud­ing Chester Ar­thur, were called “the Stal­warts”—un­til a massive pub­lic up­ris­ing upon the as­sas­sin­a­tion of Pres­id­ent Gar­field by a dis­ap­poin­ted of­fice seeker. Charles Guiteau shouted after shoot­ing Gar­field, “I am a Stal­wart…. Ar­thur is pres­id­ent!” Guiteau was hanged, and Ar­thur, who was Gar­field’s vice pres­id­ent, as­cen­ded to the pres­id­ency.

But hor­ri­fied by the as­sas­sin­a­tion, Ar­thur aban­doned his sup­port for the spoils sys­tem and cham­pioned re­form. The res­ult was the Pendleton Act of 1883, which es­tab­lished the prin­ciple that gov­ern­ment jobs should be awar­ded on the basis of mer­it, not pat­ron­age, cre­at­ing the Civil Ser­vice Com­mis­sion to im­ple­ment mer­it ex­ams and mak­ing it il­leg­al to fire, de­mote, or har­ass civil ser­vants for polit­ic­al reas­ons. (In an in­ter­est­ing bit of trivia, George Pendleton, the Ohio Demo­crat who was au­thor of the act, was show­cased in Steven Spiel­berg’s movie Lin­coln as a prime op­pon­ent of the 13th Amend­ment.)

The Pendleton Act star­ted with a small share of fed­er­al jobs, but the pro­por­tions grew sub­stan­tially over time, ul­ti­mately en­com­passing the vast ma­jor­ity of fed­er­al em­ploy­ees. An­oth­er re­form, 1939’s Hatch Act, en­acted after a series of scan­dals in­volving the Works Pro­gress Ad­min­is­tra­tion for in­volving em­ploy­ees in the 1938 con­gres­sion­al elec­tions, provided ad­di­tion­al pro­tec­tions against the in­volve­ment of most gov­ern­ment em­ploy­ees in par­tis­an polit­ic­al activ­it­ies, as much to pro­tect em­ploy­ees from un­due pres­sure from their polit­ic­al su­per­i­ors as to cur­tail polit­ic­al in­flu­ence by gov­ern­ment em­ploy­ees with power over cit­izens.

Why this ba­sic his­tory? I write it in part as re­form of the Vet­er­ans Af­fairs De­part­ment moves through Con­gress, with as great a chance of suc­cess­ful en­act­ment this year as any piece of le­gis­la­tion (of course, giv­en the pathet­ic re­cord of this Con­gress, that makes it no sure thing). The re­form, which will likely re­semble the Sen­ate bill co­sponsored by Bernie Sanders and John Mc­Cain, does some im­port­ant, ur­gent, and ne­ces­sary things, es­pe­cially mak­ing sure that vet­er­ans who have waited for months or longer to see a VA doc­tor will have oth­er im­me­di­ate op­tions in the private sec­tor.

The re­form also ad­dresses what is clearly a pat­tern of gross mis­man­age­ment at the VA, both on the health-de­liv­ery side and on the side of pro­cessing dis­ab­il­ity claims. Therein lies the rub. The House bill, writ­ten by Vet­er­ans’ Af­fairs Com­mit­tee Chair­man Jeff Miller, did so by wip­ing out en­tirely any pro­tec­tion from fir­ing or de­mo­tion for VA em­ploy­ees, in­stead treat­ing them like con­gres­sion­al em­ploy­ees, who have polit­ic­al jobs and no civil-ser­vice pro­tec­tion. The Sanders/Mc­Cain bill is bet­ter, but not by much. It would give a fired em­ploy­ee sev­en days to file an ap­peal after get­ting a ter­min­a­tion no­tice and hav­ing his or her pay stopped, and give an ap­peals board a dead­line of three weeks after that to render a de­cision. The bill al­lows VA ex­ec­ut­ives to stop pay­ing em­ploy­ees they want to fire be­fore the em­ploy­ees can find out what the reas­ons are or file an ap­peal.

In al­most all cases, an ap­peal would be com­plex enough to re­quire the em­ploy­ee to hire a law­yer, who would then have to talk to the cli­ent, get evid­ence to­geth­er, write an ap­peal, and ap­pear be­fore the board. Law­yers who know any­thing about this field are in short sup­ply—simply get­ting one with­in a week would be tough. Get­ting one who would drop everything to fo­cus on a case would be nearly im­possible (not to men­tion very ex­pens­ive for the canned em­ploy­ee whose paychecks have already stopped.) And if the ap­peals board had to deal with large num­bers of cases, it would be over­taxed and over­whelmed, and the ap­peals would not be heard in any­thing re­sem­bling a fair and thor­ough fash­ion.

At the same time, what we know of VA mis­man­age­ment is that high­er-level ex­ec­ut­ives de­vised the sys­tem of con­ceal­ing long wait times, and prod­ded un­der­lings to go along and abet the cor­rup­tion or face re­tri­bu­tion. There is a chance that this new stream­lined fir­ing pro­cess would ac­tu­ally give more power to miscre­ants over their in­feri­ors, mak­ing the prob­lem worse.

To be fair, Sanders, Miller, and Mc­Cain had to move quickly to deal with the back­log, and re­spond to pub­lic out­rage over the mal­feas­ance, mis­feas­ance, and non­feas­ance. The need to stream­line the pro­cess of ac­count­ab­il­ity here, to tilt a sys­tem that makes it ex­traordin­ar­ily dif­fi­cult to fire or dis­cip­line civil ser­vants back to something more re­spons­ive, is clear. But the rush to do so puts in place a dan­ger­ous sys­tem and pre­ced­ent—one which we can be sure would be­come the tem­plate for re­mov­ing pro­tec­tion from em­ploy­ees in oth­er agen­cies (no doubt, the IRS will be the next tar­get) any time there is a scan­dal or al­leged scan­dal, and be­gin to inch us back to­ward a pat­ron­age sys­tem.

That is not the only prob­lem. We are about to have a ser­i­ous crisis in gov­ern­ment man­age­ment, as the top ca­reer fed­er­al man­agers in the Seni­or Ex­ec­ut­ive Ser­vice, mostly baby boomers, reach re­tire­ment age. Get­ting com­pet­ent man­agers to re­place them will not be easy—and this makes it harder. We are hav­ing prob­lems as well at­tract­ing top-flight pro­fes­sion­al people in­to gov­ern­ment, in­clud­ing en­gin­eers and com­puter sci­ent­ists to deal with cy­ber­se­cur­ity, tech pro­fes­sion­als to man­age out­dated com­puter sys­tems, and phys­i­cians—one of the core prob­lems at the VA has been the in­ab­il­ity to at­tract doc­tors. Fed­er­al em­ploy­ees face vili­fic­a­tion, pay freezes, shut­downs, and no budget cer­tainty from year to year. Add to that the abil­ity to fire them without much re­course to ap­peal, and the prob­lem gets much worse.

The fact is that we have already been mov­ing in this dir­ec­tion in the states, which were not covered un­der the Pendleton Act but all fol­lowed in suc­ceed­ing dec­ades with their own pro­tec­tions for state civil ser­vants. But in re­cent years, a ma­jor­ity of states have moved to ex­pand at-will hir­ing and fir­ing, to erode civil-ser­vice pro­tec­tions, and to give more lever­age to gov­ernors’ polit­ic­al ap­pointees.

Act­iv­ist gov­ernors, Demo­crat­ic and Re­pub­lic­an, pushed for more con­trol over the past dec­ade-plus, and the trend has ac­cel­er­ated in the past few years in states such as Ari­zona, Col­or­ado, In­di­ana, Kan­sas, North Car­o­lina, and Ten­ness­ee. Throw in the as­sault on pub­lic-em­ploy­ee uni­ons in In­di­ana, Ohio, Wis­con­sin, and oth­er states, and the pat­tern is clear: a move away from a mer­it-based civil-ser­vice sys­tem to one with sub­stan­tial ad­di­tion­al polit­ic­al con­trol.

Re­form has clearly been needed, at both the fed­er­al and state levels. There have to be means to fire or de­mote in­com­pet­ent or cor­rup­ted em­ploy­ees, while pre­serving ba­sic due pro­cess. But re­form needs to be done with ex­treme cau­tion and care. When I have writ­ten about the state of cam­paign fin­ance in the coun­try, I have fre­quently re­ferred to this as the New Gil­ded Age. In a highly par­tis­an and tri­bal en­vir­on­ment, with heightened hos­til­ity between the parties and their par­tis­ans and a huge gulf between the pri­or­it­ies, is­sue po­s­i­tions, and agen­das of the parties, the erosion of a sys­tem built on in­de­pend­ent civil ser­vants car­ry­ing out their re­spons­ib­il­it­ies im­par­tially, hired on the basis of mer­it, and pro­tec­ted from purely polit­ic­al pres­sure, is not to be taken lightly. This coun­try does not need a new spoils sys­tem to add to its already cor­rup­ted cam­paign fin­ance re­gi­men.

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