By GAP Homeland Security Director Jesselyn Radack.
It’s one of the nasty little secrets of Washington that everybody claims to dislike but nobody does anything about. It’s called burrowing–the insidious phenomenon of political appointees, who should leave with the outgoing president or be forced to compete for positions to stay, instead frantically converting to career posts at the end of a presidential administration.
In nature, animals burrow into the ground to protect themselves from predators and harsh weather. In the government workplace, people burrow into the bureaucracy to protect themselves from the proper outcome of the democratic process. And that’s outrageous.
Burrowing provides job security for candidates of dubious qualification, creates a back-door way for the outgoing administration to leave a lasting footprint, and embeds the ousted party’s most loyal foot soldiers in the federal bureaucracy. Most egregiously, it lowers morale and forces out talented, experienced, and meritorious public servants.
According to the federal Office of Personnel Management, between March 1 and Nov. 3 of last year, the Bush administration allowed 20 political appointees–people chosen for their ideology–to transform themselves into career civil servants–people who are supposed to rise through professional merit alone. Six of the burrowers snuggled into the Senior Executive Service, the government’s most prestigious and highly-paid echelon.
In the very last week of the Bush administration, the beleaguered Federal Emergency Management Agency posted several plum, six-figure career slots that were open for less than a week and expired before Inauguration Day. Was FEMA looking for the best public servants or Republican loyalists who needed new jobs?
None of this should come as a surprise from an administration whose Justice Department had allowed political appointees to hijack the Honors Program, one of the main ports of entry to the career civil service, and seed it with young ideologues whose influence may last for decades.
But not being surprised by political wrongs should not translate into not acting against them. Burrowing is one Washington secret that should be forced to wither in the light of day and the law
Recent commentators have argued that while burrowing may be distasteful, it is not inappropriate because it is bipartisan mischief of long standing. The Clinton administration, for instance, was not blameless: It approved 47 political-to-career moves in its last 12 months.
Burrowing, however, is not only inappropriate. It is illegal.
In the early 19th century, presidents awarded government jobs through the spoils system (“to the victor go the spoils”), an informal practice in which a successful candidate gave jobs to his supporters as a reward for campaigning and as an incentive to keep them working for his political party. Government posts were held at the pleasure of the president, and a person could be fired at will. Over time, disgust at the uncivil servants produced by the spoils system led to reform.
In the 1880s, Presidents Chester Arthur and Grover Cleveland first pressed for adoption of a civil service merit system, in which the most able candidates for government service would be chosen through fair, competitive examinations. In slow and incremental stages, reformers created a merit-based system that largely ended the spoils system at the federal level, eventually culminating in the law that now governs federal employment, the Civil Service Reform Act of 1978.
Today, civil service rules state that a government employer cannot discriminate for or against an employee or job applicant on the basis of “political affiliation.” The employer cannot impede a “person’s right to compete” for a job, grant an unauthorized “preference or advantage,” or favor “a relative.” Fair hiring practices include job announcements that are advertised widely for a reasonable period of time so that any qualified applicant can compete. Burrowing violates both the letter and the spirit of these rules.
Other modern-day examples of illegal hiring and firing practices have been recognized as such. As exposed in the Senate Watergate Report, President Richard Nixon attempted to turn illegal employment practices into an art form with his infamous “Malek Manual,” which described techniques “to remove undesirable employees from their positions” by skirting around the procedures normally required to expel civil servants.
The just-departed Bush administration engaged in prohibited personnel practices at the hiring and firing ends, and heads into history notorious for its hiring of unqualified neocons and firing of perceived dissenters. The most egregious examples are Attorney General John Ashcroft’s stacking of the once-prestigious and apolitical Honors Program with committed conservatives and Attorney General Alberto Gonzales’ firing of nine U.S. attorneys in 2006 for deviating from the party line.
In both cases, the system ultimately recognized the problem. Nixon resigned in the face of impeachment, and the Office of Inspector General and Office of Professional Responsibility issued scathing reports about politicization at Justice. Attorney General Michael Mukasey even urged Honors Program applicants who were rejected because of improper political considerations to re-apply for open positions. (He stopped short of agreeing to weed out those who had won their jobs based on faulty criteria and failed to pursue accountability by suggesting that the violations were only of civil service law, not criminal.)
Now the system needs to turn against the long-bemoaned practice of burrowing. The logical step is for someone on the inside to blow the whistle on illegal hiring practices. But an undeserving beneficiary will not do so, and career public servants are often reticent to complain about the burrower, who, more often than not, has been placed in a position of power above them.
There is another potential way to challenge the practice. An employee who has been affected by a burrowing decision can file a complaint with the U.S. Office of Special Counsel against the employer–i.e., the government agency–that obstructed the employee’s right to compete or gave an unauthorized preference in hiring to someone else. Better yet, the OSC on its own initiative can launch an investigation into a pattern and practice of such prohibited personnel practices as burrowing. While the OSC has rarely exercised that independent right to investigate, the next special counsel could decide, finally, to enforce merit system rights against burrowing.
The latest leaps of political appointees into permanent civil service posts were entirely predictable. Burrowing is as timeless a practice as patronage itself. But make no mistake, the essence of burrowing is its circumvention of the law.
Over a century ago, William “Boss” Tweed ran New York City through nepotism and cronyism. He awarded jobs and contracts to his loyalists, while punishing enemies, and his corruption had crippling consequences for New York long after he died.
For the past eight years, George W. Bush labored with disheartening success to federalize machine politics. But the executive branch is not Tammany Hall. Just because “everybody does it,” does not make it legal.