Intro

Today I'm talking to economic historian Judge Glock, Director of Research at the Manhattan Institute. Judge works on a lot of topics: if you enjoy this episode, I'd encourage you to read some of his work on housing markets and the Environmental Protection Agency. But I cornered him today to talk about civil service reform.

Since the 1990s, over 20 red and blue states have made radical changes to how they hire and fire government employees — changes that would be completely outside the Overton window at the federal level. A paper by Judge and Renu Mukherjee lists four reforms made by states like Texas, Florida, and Georgia:

* At-will employment for state workers

* The elimination of collective bargaining agreements

* Giving managers much more discretion to hire

* Giving managers much more discretion in how they pay employees

Judge finds decent evidence that the reforms have improved the effectiveness of state governments, and little evidence of the politicization that federal reformers fear. Meanwhile, in Washington, managers can’t see applicants’ resumes, keyword searches determine who gets hired, and firing a bad performer can take years. But almost none of these ideas are on the table in Washington.

Thanks to Harry Fletcher-Wood for his judicious transcript edits and fact-checking, and to Katerina Barton for audio edits.

Judge, you have a paper out about lessons for civil service reform from the states. Since the ‘90s, red and blue states have made big changes to how they hire and fire people. Walk through those changes for me.

I was born and grew up in Washington DC, heard a lot about civil service throughout my childhood, and began to research it as an adult. But I knew almost nothing about the state civil service systems. When I began working in the states — mainly across the Sunbelt, including in Texas, Kansas, Arizona — I was surprised to learn that their civil service systems were reformed to an absolutely radical extent relative to anything proposed at the federal level, let alone implemented.

Starting in the 1990s, several states went to complete at-will employment. That means there were no official civil service protections for any state employees. Some managers were authorized to hire people off the street, just like you could in the private sector. A manager meets someone in a coffee shop, they say, "I'm looking for exactly your role. Why don't you come on board?" At the federal level, with its stultified hiring process, it seemed absurd to even suggest something like that.

You had states that got rid of any collective bargaining agreements with their public employee unions. You also had states that did a lot more broadbanding [creating wider pay bands] for employee pay: a lot more discretion for managers to reward or penalize their employees depending on their performance.

These major reforms in these states were, from the perspective of DC, incredibly radical. Literally nobody at the federal level proposes anything approximating what has been in place for decades in the states. That should be more commonly known, and should infiltrate the debate on civil service reform in DC.

Even though the evidence is not absolutely airtight, on the whole these reforms have been positive. A lot of the evidence is surveys asking managers and operators in these states how they think it works. They've generally been positive. We know these states operate pretty well: Places like Texas, Florida, and Arizona rank well on state capacity metrics in terms of cost of government, time for permitting, and other issues.

Finally, to me the most surprising thing is the dog that didn't bark. The argument in the federal government against civil service reform is, “If you do this, we will open up the gates of hell and return to the 19th-century patronage system, where spoilsmen come and go depending on elected officials, and the government is overrun with political appointees who don't care about the civil service.” That has simply not happened. We have very few reports of any concrete examples of politicization at the state level. In surveys, state employees and managers can almost never remember any example of political preferences influencing hiring or firing.

One of the surveys you cited asked, “Can you think of a time someone said that they thought that the political preferences were a factor in civil service hiring?” and it was something like 5%.

It was in that 5-10% range. I don't think you'd find a dissimilar number of people who would say that even in an official civil service system. Politics is not completely excluded even from a formal civil service system.

A few weeks ago, you and I talked to our mutual friend, Don Moynihan, who's a scholar of public administration. He's more skeptical about the evidence that civil service reform would be positive at the federal level.

One of your points is, “We don't have strong negative evidence from the states. Productivity didn’t crater in states that moved to an at-will employment system.” We do have strong evidence that collective bargaining in the public sector is bad for productivity.

What I think you and Don would agree on is that we could use more evidence on the hiring and firing side than the surveys that we have. Is that a fair assessment?

Yes, I think that's correct. As you mentioned, the evidence on collective bargaining is pretty close to universal: it raises costs, reduces the efficiency of government, and has few to no positive upsides.

On hiring and firing, I mentioned a few studies. There's a 2013 study that looks at HR managers in six states and finds very little evidence of politicization, and managers generally prefer the new system. There was a dissertation that surveyed several employees and managers in civil service reform and non-reform states. Across the board, the at-will employment states said they had better hiring retention, productivity, and so forth. And there's a 2002 study that looked specifically at Texas, Florida, and Georgia after their reforms, and found almost universal approbation inside the civil service itself for these reforms.

These are not randomized control trials. But I think that generally positive evidence should point us directionally where we should go on civil service reform. If we loosen restrictions on discipline and firing, decentralize hiring and so forth — we probably get some productivity benefits from it. We can also know, with some amount of confidence, that the sky is not going to fall, which I think is a very important baseline assumption. The civil service system will continue on and probably be fairly close to what it is today, in terms of its political influence, if you have decentralized hiring and at-will employment.

As you point out, a lot of these reforms that have happened in 20-odd states since the ‘90s would be totally outside the Overton window at the federal level. Why is it so easy for Georgia to make a bipartisan move in the ‘90s to at-will employment, when you couldn't raise the topic at the federal level?

It's a good question. I think in the 1990s, a lot of people thought a combination of the 1978 Civil Service Reform Act — which was the Carter-era act that somewhat attempted to do what these states hoped to do in the 1990s — and the Clinton-era Reinventing Government Initiative, would accomplish the same ends. That didn't happen.

That was an era when civil service reform was much more bipartisan. In Georgia, it was a Democratic governor, Zell Miller, who pushed it. In a lot of these other states, they got buy-in from both sides. The recent era of state reform took place after the 2010 Republican wave in the states. Since that wave, the reform impetus for civil service has been much more Republican. That has meant it's been a lot harder to get buy-in from both sides at the federal level, which will be necessary to overcome a filibuster.

I think people know it has to be very bipartisan. We're just past the point, at least at the moment, where it can be bipartisan at the federal level. But there are areas where there's a fair amount of overlap between the two sides on what needs to happen, at least in the upper reaches of the civil service.

It was interesting to me just how bipartisan civil service reform has been at various times. You talked about the Civil Service Reform Act, which passed Congress in 1978. President Carter tells Congress that the civil service system:

“Has become a bureaucratic maze which neglects merit, tolerates poor performance, permits abuse of legitimate employee rights, and mires every personnel action in red tape, delay, and confusion.”

That's a Democratic president saying that. It’s striking to me that the civil service was not the polarized topic that it is today.

Absolutely. Carter was a big civil service reformer in Georgia before those even larger 1990s reforms. He campaigned on civil service reform and thought it was essential to the success of his presidency. But I think you are seeing little sprouts of potential bipartisanship today, like the Chance to Compete Act at the end of 2024, and some of the reforms Obama did to the hiring process. There's options for bipartisanship at the federal level, even if it can’t approach what the states have done.

I want to walk through the federal hiring process. Let's say you're looking to hire in some federal agency — you pick the agency — and I graduated college recently, and I want to go into the civil service. Tell me about trying to hire somebody like me. What's your first step?

It's interesting you bring up the college graduate, because that is one recent reform: President Trump put out an executive order trying to counsel agencies to remove the college degree requirement for job postings. This happened in a lot of states first, like Maryland, and that's also been bipartisan. This requirement for a college degree — which was used as a very unfortunate proxy for ability at a lot of these jobs — is now being removed. It's not across the whole federal government. There's still job postings that require higher education degrees, but that's something that's changed.

To your question, let’s say the Department of Transportation. That's one of the more bipartisan ones, when you look at surveys of federal civil servants. Department of Defense, Veterans Affairs, they tend to be a little more Republican. Health and Human Services and some other agencies tend to be pretty Democrat. Transportation is somewhere in the middle.

As a manager, you try to craft a job description and posting to go up on the USA Jobs website, which is where all federal job postings go. When they created it back in 1996, that was supposedly a massive reform to federal hiring: this website where people could submit their resumes. Then, people submit their resumes and answer questions about their qualifications for the job.

One of the slightly different aspects from the private sector is that those applications usually go to an HR specialist first. The specialist reviews everything and starts to rank people into different categories, based on a lot of weird things. It's supposed to be “knowledge, skills, and abilities” — your KSAs, or competencies. To some extent, this is a big step up from historical practice. You had, frankly, an absurd civil service exam, where people had to fill out questions about, say, General Grant or about US Code Title 42, or whatever it was, and then submit it. Someone rated the civil service exam, and then the top three test-takers were eligible for the job.

We have this newer, better system, where we rank on knowledge, skills, and abilities, and HR puts put people into different categories. One of the awkward ways they do this is by merely scanning the resumes and applications for keywords. If it's a computer job, make sure you say the word “computer” somewhere in your resume. Make sure you say “manager” if it's a managerial job.

Just to be clear, this is entirely literal. There's a keyword search, and folks who don’t pass that search are dinged.

Yes. I've always wondered, how common is this? It's sometimes hard to know what happens in the black box in these federal HR departments. I saw an HR official recently say, "If I'm not allowed to do keyword searches, I'm going to take 15 years to overlook all the applications, so I’ve got to do keyword searches." If they don't have the keywords, into the circular file it goes, as they used to say: into the garbage can.

Then they start ranking people on their abilities into, often, three different categories. That is also very literal. If you put in the little word bubble, "I am an exceptional manager," you get pushed on into the next level of the competition. If you say, "I'm pretty good, but I'm not the best," into the circular file you go.

I’ve gotten jaded about this, but it really is shocking. We ask candidates for a self-assessment, and if they just rank themselves 10/10 on everything, no matter how ludicrous, that improves their odds of being hired.

That's going to immensely improve your odds. Similar to the keyword search, there's been pushback on this in recent years, and I'm definitely not going to say it's universal anymore. It's rarer than it used to be. But it’s still a very common process.

The historical civil service system used to operate on a rule of three. In places like New York, it still operates like that. The top three candidates on the evaluation system get presented to the manager, and the manager has to approve one of them for the position.

Thanks partially to reforms by the Obama administration in 2010, they have this category rating system where the best qualified or the very qualified get put into a big bucket together [instead of only including the top three]. Those are the people that the person doing the hiring gets to see, evaluate, and decide who he wants to hire.

There are some restrictions on that. If a veteran outranks everybody else, you’ve got to pick the veteran [typically known as Veterans’ Preference]. That was an issue in some of the state civil service reforms, too. The states said, “We're just going to encourage a veterans’ preference. We don't need a formalized system to say they get X number of points and have to be in Y category. We're just going to say, ‘Try to hire veterans.’” That’s possible without the formal system, despite what some opponents of reform may claim.

One of the particular problems here is just the nature of the people doing the hiring. Sometimes you just need good managers to encourage HR departments to look at a broader set of qualifications. But one of the bigger problems is that they keep the HR evaluation system divorced from the manager who is doing the hiring. David Shulkin, who was the head of the Department of Veterans Affairs (VA), wrote a great book, It Shouldn’t Be This Hard to Serve Your Country. He was a healthcare exec, and the VA is mainly a healthcare agency. He would tell people, "You should work for me," they would send their applications into the HR void, and he'd never see them again. They would get blocked at some point in this HR evaluation process, and he'd be sent people with no healthcare experience, because for whatever reason they did well in the ranking.

One of the very base-level reforms should be, “How can we more clearly integrate the hiring manager with the evaluation process?” To some extent, the bipartisan Chance to Compete Act tries to do this. They said, “You should have subject matter experts who are part of crafting the description of the job, are part of evaluating, and so forth.” But there’s still a long road to go.

Does that firewall — where the person who wants to hire doesn't get to look at the process until the end — exist originally because of concerns about cronyism?

One of the interesting things about the civil service is its raison d’être — its reason for being — was supposedly a single, clear purpose: to prevent politicized hiring and patronage. That goes back to the Pendleton Civil Service Act of 1883. But it's always been a little strange that you have all of these very complex rules about every step of the process — from hiring to firing to promotion, and everything in between — to prevent political influence. We could just focus on preventing political influence, and not regulate every step of the process on the off-chance that without a clear regulation, political influence could creep in. This division [between hiring manager and applicants] is part of that general concern. There are areas where I've heard HR specialists say, "We declare that a manager is a subject matter expert, and we bring them into the process early on, we can do that." But still the division is pretty stark, and it's based on this excessive concern about patronage.

One point you flag is that the Office of Personnel Management (OPM), which is the body that thinks about personnel in the federal government, has a 300-page regulatory document for agencies on how you have to hire. There’s a remarkable amount of process.

Yes, but even that is a big change from the Federal Personnel Manual, which was the 10,000-page document that we shredded in the 1990s. In the ‘90s, OPM gave the agencies what's called “delegated examining authorities.” This says, “You, agency, have power to decide who to hire, we're not going to do the central supervision anymore. But, but, but: here's the 300-page document that dictates exactly how you have to carry out that hiring.”

So we have some decentralization, allowing managers more authority to control their own departments. But this two-level oversight — a local HR department that's ultimately being overseen by the OPM — also leads to a lot of slip ‘twixt cup and lip, in terms of how something gets implemented. If you're in the agency and you're concerned about the OPM overseeing your process, you're likely to be much more careful than you would like to be. “Yes, it's delegated to me, but ultimately, I know I have to answer to OPM about this process. I'm just going to color within the lines.”

I often cite Texas, which has no central HR office. Each agency decides how it wants to hire. In a lot of these reform states, if there is a central personnel office, it's an information clearinghouse or reservoir of models. “You can use us, the central HR office, as a resource if you want us to help you post the job, evaluate it, or help manage your processes, but you don't have to.” That's the goal we should be striving for in a lot of the federal reforms. Just make OPM a resource for the managers in the individual departments to do their thing or go independent.

Let's say I somehow get through the hiring process. You offer me a job at the Department of Transportation. What are you paying me?

This is one of the more stultified aspects of the federal civil service system. OPM has another multi-hundred-page handbook called the Handbook of Occupational Groups and Families. Inside that, you’ve got 49 different “groups and families,” like “Clerical occupations.” Inside those 49 groups are a series of jobs, sometimes dozens, like “Computer Operator.” Inside those, they have independent documents — often themselves dozens of pages long — detailing classes of positions. Then you as a manager have to evaluate these nine factors, which can each give points to each position, which decides how you get slotted into this weird Government Schedule (GS) system [the federal payscale].

Again, this is actually an improvement. Before, you used to have the Civil Service Commission, which went around staring very closely at someone over their typewriter and saying, "No, I think you should be a GS-12, not a GS-11, because someone over in the Department of Defense who does your same job is a GS-12." Now this is delegated to agencies, but again, the agencies have to listen to the OPM on how to classify and set their jobs into this 15-stage GS-classification system, each stage of which has 10 steps which determine your pay, and those steps are determined mainly by your seniority. It's a formalized step-by-step system, overwhelmingly based on just how long you've sat at your desk.

Let's be optimistic about my performance as a civil servant. Say that over my first three years, I'm just hitting it out of the park. Can you give me a raise? What can you do to keep me in my role?

Not too much. For most people, the within-step increases — those 10 steps inside each GS-level — is just set by seniority. Now there are all these quality step increases you can get, but they're very rare and they have to be documented. So you could hypothetically pay someone more, but it's going to be tough. In general, the managers just prefer to stick to seniority, because not sticking to it garners a lot of complaints. Like so much else, the goal is, "We don't want someone rewarding an official because they happen to share their political preferences." The result of that concern is basically nobody can get rewarded at all, which is very unfortunate.

We do have examples in state and federal government of what's known as broadbanding, where you have very broad pay scales, and the manager can decide where to slot someone. Say you're a computer operator, which can mean someone who knows what an Excel spreadsheet is, or someone who's programming the most advanced AI systems. As a manager in South Carolina or Florida, you have a lot of discretion to say, "I can set you 50% above the market rate of what this job technically would go for, if I think you're doing a great job."

That's very rare at the federal level. They've done broadbanding at the Government Accountability Office, the National Institute of Standards and Technology. The China Lake Experiment out in California gave managers a lot more discretion to reward scientists. But that's definitely the exception. In general, it's a step-wise, seniority-based system.

What if you want to bring me into the Senior Executive Service (SES)? Theoretically, that sits at the top of the General Service scale. Can't you bump me up in there and pay me what you owe me?

I could hypothetically bring you in as a senior executive servant. The SES was created in the 1978 Civil Service Reform Act. The idea was, “We're going to have this elite cadre of about 8,000 individuals at the top of the federal government, whose employment will be higher-risk and higher-reward. They might be fired, and we're going to give them higher pay to compensate for that.”

Almost immediately, that did not work out. Congress was outraged at the higher pay given to the top officials and capped it. Ever since, how much the SES can get paid has been tightly controlled. As in most of the rest of the federal government, where they establish these performance pay incentives or bonuses — which do exist — they spread them like peanut butter over the whole service. To forestall complaints, everyone gets a little bit every two or three years.

That's basically what happened to the SES. Their annual pay is capped at the vice president’s salary, which is a cap for a lot of people in the federal government. For most of your GS and other executive scales, the cap is Congress's salary. [NB: This is no longer exactly true, since Congress froze its own salaries in 2009. The cap for GS (currently about $195k) is now above congressional salaries ($174k).]

One of the big problems with pay in the federal government is pay compression. Across civil service systems, the highest-skilled people tend to be paid much less than the private sector, and the lowest-skilled people tend to get paid much more. The political science reason for that is pretty simple: the median voter in America still decides what seems reasonable. To the median voter, the average salary of a janitor looks low, and the average salary of a scientist looks way too high. Hence this tendency to pay compression. Your average federal employee is probably overpaid relative to the private sector, because the lowest-skilled employees are paid up to 40% higher than the private sector equivalent. The highest-paid employees, the post-graduate skilled professionals, are paid less. That makes it hard to recruit the top performers, but it also swells the wage budget in a way that makes it difficult to talk about reform.

There's a lot of interest in this administration in making it easier to recruit talent and get rid of under-performers. There have been aggressive pushes to limit collective bargaining in the public sector. That should theoretically make it easier to recruit, but it also increases the precariousness of civil service roles. We've seen huge firings in the civil service over the last six months.

Classically, the explicit trade-off of working in the federal government was, “Your pay is going to be capped, but you have this job for life. It's impossible to get rid of you.” You trade some lifetime earnings for stability. In a world where the stability is gone, but pay is still capped, isn't the net effect to drive talent away from the civil service?

I think it's a concern now. On one level it should be ameliorated, because those who are most concerned with stability of employment do tend to be lower performers. If you have people who are leaving the federal service because all they want is stability, and they're not getting that anymore, that may not be a net loss. As someone who came out of academia and knows the wonder of effective lifetime annuities, there can be very high performers who like that stability who therefore take a lower salary. Without the ability to bump that pay up more, it's going to be an issue.

I do know that, internally, the Trump administration has made some signs they're open to reforms in the top tiers of the SES and other parts of the federal government. They would be willing to have people get paid more at that level to compensate for the increased risks since the Trump administration came in. But when you look at the reductions in force (RIFs) that have happened under Trump, they are overwhelmingly among probationary employees, the lower-level employees.

With some exceptions. If you've been promoted recently, you can get reclassified as probationary, so some high-performers got lumped in.

Absolutely. The issue has been exacerbated precisely because the RIF regulations that are in place have made the firings particularly damaging. If you had a more streamlined RIF system — which they do have in many states, where seniority is not the main determinant of who gets laid off — these RIFs could be removing the lower-performing civil servants and keeping the higher-performing ones, and giving them some amount of confidence in their tenure.

Unfortunately, the combination of large-scale removals with the existing RIF regs, which are very stringent, has demoralized some of the upper levels of the federal government. I share that concern. But I might add, it is interesting, if you look at the federal government's own figures on the total civil service workforce, they have gone down significantly since Trump came in office, but I think less than 100,000 still, in the most recent numbers that I've seen. I'm not sure how much to trust those, versus some of these other numbers where people have said 150,000, 200,000.

Whether the Trump administration or a future administration can remove large numbers of people from the civil service should be somewhat divorced from the general conversation on civil service reform. The main debate about whether or not Trump can do this centers around how much power the appropriators in Congress have to determine the total amount of spending in particular agencies on their workforce. It does not depend necessarily on, "If we're going to remove people — whether for general layoffs, or reductions in force, or because of particular performance issues — how can we go about doing that?"

My last-ditch hope to maintain a bipartisan possibility of civil service reform is to bracket, “How much power does the president have to remove or limit the workforce in general?” from “How can he go about hiring and firing, et cetera?”

I think making it easier for the president to identify and remove poor performers is a tool that any future administration would like to have.

We had this conversation sparked again with the firing of the Bureau of Labor Statistics commissioner. But that was a position Congress set up to be appointed by the President, confirmed by the Senate, and removable by the President. It’s a separate issue from civil service at large. Everyone said, “We want the president to be able to hire and fire the commissioner.” Maybe firing the commissioner was a bad decision, but that's the situation today.

Attentive listeners to Statecraft know I’m pretty critical, like you are, of the regulations that say you have to go in order of seniority. In mass layoffs, you’re required to fire a lot of the young, talented people.

But let's talk about individual firings. I've been a terrible civil servant, a nightmarish employee from day one. You want to discipline, remove, suspend, or fire me. What are your options?

Anybody who has worked in the civil service knows it's hard to fire bad performers. Whatever their political valence, whatever they feel about the civil service system, they have horror stories about a person who just couldn't be removed.

In the early 2010s, a spate of stories came out about air traffic controllers sleeping on the job. Then-transportation secretary, Ray LaHood, made a big public announcement: "I'm going to fire these three guys." After these big announcements, it turned out he was only able to remove one of them. One retired, and another had their firing reduced to a suspension.

You had another horrific story where a man was joking on the phone with friends when a plane crashed into a helicopter and killed nine people over the Hudson River. National outcry. They said, "We're going to fire this guy." In the end, after going through the process, he only got a suspension. Everyone agrees it's too hard.

The basic story is, you have two ways to fire someone. Chapter 75, the old way, is often considered the realm of misconduct: You've stolen something from the office, punched your colleague in the face during a dispute about the coffee, something illegal or just straight-out wrong. We get you under Chapter 75.

The 1978 Civil Service Reform Act added Chapter 43, which is supposed to be the performance-based system to remove someone. As with so much of that Civil Service Reform Act, the people who passed it thought this might be the beginning of an entirely different system.

In the end, lots of federal managers say there's not a huge difference between the two. Some use 75, some use 43. If you use 43, you have to document very clearly what the person did wrong. You have to put them on a performance improvement plan. If they failed a performance improvement plan after a certain amount of time, they can respond to any claims about what they did wrong. Then, they can take that process up to the Merit Systems Protection Board (MSPB) and claim that they were incorrectly fired, or that the processes weren't carried out appropriately. Then, if they want to, they can say, “Nah, I don’t like the order I got,” and take it up to federal courts and complain there. Right now, the MSPB doesn't have a full quorum, which is complicating some of the recent removal disputes.

You have this incredibly difficult process, unlike the private sector, where your boss looks at you and says, "I don't like how you're giving me the stink-eye today. Out you go." One could say that's good or bad, but, on the whole, I think the model should be closer to the private sector. We should trust managers to do their job without excessive oversight and process. That's clearly about as far from the realm of possibility as the current system, under which the estimate is 6-12 months to fire a very bad performer. The number of people who win at the Merit Systems Protection Board is still 20-30%.

This goes into another issue, which is unionization. If you're part of a collective bargaining agreement — most of the regular federal civil service is — first, you have to go with this independent, union-based arbitration and grievance procedure. You're about 50/50 to win on those if your boss tries to remove you.

So if I’m in the union, we go through that arbitration grievance system. If you win and I’m fired, I can take it to the Merit Systems Protection Board. If you win again, I can still take it to the federal courts.

You can file different sorts of claims at each part. On Chapter 43, the MSPB is supposed to be about the process, not the evidence, and you just have to show it was followed. On 75, the manager has to show by preponderance of the evidence that the employee is harming the agency. Then there are different standards for what you take to the courts, and different standards according to each collective bargaining agreement for the grievance procedure when someone is disciplined. It’s a very complicated, abstruse, and procedure-heavy process that makes it very difficult to remove people, which is why the involuntary separation rate at the federal government and most state governments is many multiples lower than the private sector.

So, you would love to get me off your team because I'm abysmal. But you have no stomach for going through this whole process and I'm going to fight it. I'm ornery and contrarian and will drag this fight out. In practice, what do managers in the federal government do with their poor performers?

I always heard about this growing up. There's the windowless office in the basement without a phone, or now an internet connection. You place someone down there, hope they get the message, and sooner or later they leave. But for plenty of people in America, that's the dream job. You just get to sit and nobody bothers you for eight hours. You punch in at 9 and punch out at 5, and that's your day. "Great. I'll collect that salary for another 10 years." But generally you just try to make life unpleasant for that person.

Public sector collective bargaining in the US is new. I tend to think of it as just how the civil service works. But until about 50 years ago, there was no collective bargaining in the public sector.

At the state level, it started with Wisconsin at the end of the 1950s. There were famous local government reforms beginning with the Little Wagner Act [signed in 1958] in New York City. Senator Robert Wagner had created the National Labor Relations Board. His son Robert F. Wagner Jr., mayor of New York, created the first US collective bargaining system at the local level in the ‘60s. In ‘62, John F. Kennedy issued an executive order which said, "We're going to deal officially with public sector unions,” but it was all informal and non-statutory.

It wasn't until Title VII of the 1978 Civil Service Reform Act that unions had a formal, statutory role in our federal service system. This is shockingly new. To some extent, that was the great loss to many civil service reformers in ‘78. They wanted to get through a lot of these other big reforms about hiring and firing, but they gave up on the unions to try to get those. Some people think that exception swallowed the rest of the rules. The union power that was garnered in ‘78 overcame the other reforms people hoped to accomplish. Soon, you had the majority of the federal workforce subject to collective bargaining.

But that's changing now too. Part of that Civil Service Reform Act said, “If your position is in a national security-related position, the president can determine it's not subject to collective bargaining.” Trump and the OPM have basically said, “Most positions in the federal government are national security-related, and therefore we're going to declare them off-limits to collective bargaining.” Some people say that sounds absurd. But 60% of the civilian civil service workforce is the Department of Defense, Veterans Affairs, and the Department of Homeland Security. I am not someone who tries to go too easy on this crowd. I think there's a heck of a lot that needs to be reformed. But it's also worth remembering that the majority of the civil service workforce are in these three agencies that Republicans tend to like a lot.

Now, whether people like Veterans Affairs is more of an open question. We have some particular laws there about opening up processes after the scandals in the 2010s about waiting lists and hospitals. You had veterans hospitals saying, "We're meeting these standards for getting veterans in the door for these waiting lists." But they were straight-up lying about those standards. Many people who were on these lists waiting for months to see a doctor died in the interim, some from causes that could have been treated had they seen a VA doctor. That led to Congress doing big reforms in the VA in 2014 and 2017, precisely because everyone realized this is a problem.

So, Trump has put out these executive orders stopping collective bargaining in all of these agencies that touch national security. Some of those, like the Environmental Protection Agency (EPA), seem like a tough sell. I guess that, if you want to dig a mine and the Chinese are trying to dig their own mine and we want the mine to go quickly without the EPA pettifogging it, maybe. But the core ones are pretty solid. So far the courts have upheld the executive order to go in place. So collective bargaining there could be reformed.

But in the rest of the government, there are these very extreme, long collective bargaining agreements between agencies and their unions. I've hit on the Transportation Security Administration (TSA) as one that's had pretty extensive bargaining with its union. When we created the TSA to supervise airport security, a lot of people said, "We need a crème de la crème to supervise airports after 9/11. We want to keep this out of union hands, because we know unions are going to make it difficult to move people around." The Obama administration said, "Nope, we're going to negotiate with the union." Now you have these huge negotiations with the unions about parking spots, hours of employment, uniforms, and everything under the sun. That makes it hard for managers in the TSA to decide when people should go where or what they should do.

One thing we've talked about on Statecraft in past episodes — for instance, with John Kamensky, who was a pivotal figure in the Clinton-Gore reforms — was this relationship between government employees and “Beltway Bandits”: the contractors who do jobs you might think of as civil service jobs.

One critique of that ‘90s Clinton-Gore push, “Reinventing Government,” was that although they shrank the size of the civil service on paper, the number of contractors employed by the federal government ballooned to fill that void. They did not meaningfully reduce the total number of people being paid by the federal government. Talk to me about the relationship between the civil service reform that you'd like to see and this army of folks who are not formally employees.

Every government service is a combination of public employees and inputs, and private employees and inputs. There's never a single thing the government does — federal, state, or local — that doesn't involve inputs from the private sector. That could be as simple as the uniforms for the janitors. Even if you have a publicly employed janitor, who buys the mop? You're not manufacturing the mops.

I understand the critique that the excessive focus on full-time employees in the 1990s led to contracting out some positions that could be done directly by the government. But I think that misses how much of the government can and should be contracted out. The basic Office of Management and Budget (OMB) statute [OMB Circular No. A-76] defining what is an essential government duty should still be the dividing line. What does the government have to do, because that is the public overseeing a process? Versus, what can the private sector just do itself?

I always cite Stephen Goldsmith, the old mayor of Indianapolis. He proposed what he called the Yellow Pages test. If you open the Yellow Pages [phone directory] and three businesses do that business, the government should not be in that business. There's three garbage haulers out there. Instead of having a formal government garbage-hauling department, just contract out the garbage.

With the internet, you should have a lot more opportunities to contract stuff out. I think that is generally good, and we should not have the federal government going about a lot of the day-to-day procedural things that don't require public input. What a lot of people didn't recognize is how much pressure that's going to put on government contracting officers at the federal level. Last time I checked there were 40,000 contracting officers. They have a lot of power. In the most recent year for which we have data, there were $750 billion in federal contracts. This is a substantial part of our economy. If you total state and local, we're talking almost 10% of our whole economy goes through government contracts. This is mind-boggling. In the public policy world, we should all be spending about 10% of our time thinking about contracting.

One of the things I think everyone recognized is that contractors should have more authority. Some of the reform that happened with people like [Steven] Kelman — who was the Office of Federal Procurement Policy head in the ‘90s under Clinton — was, "We need to give these people more authority to just take a credit card and go buy a sheaf of paper if that's what they need. And we need more authority to get contract bids out appropriately.”

The same message that animates civil service reform should animate these contracting discussions. The goal should be setting clear goals that you want — for either a civil servant or a contractor — and then giving that person the discretion to meet them. If you make the civil service more stultified, or make pay compression more extreme, you're going to have to contract more stuff out.

People talk about the General Schedule [pay scale], but we haven't talked about the Federal Wage Schedule system at all, which is the blue-collar system that encompasses about 200,000 federal employees. Pay compression means those guys get paid really well. That means some managers rightfully think, "I'd like to have full-time supervision over some role, but I would rather contract it out, because I can get it a heck of a lot cheaper."

There's a continuous relationship: If we make the civil service more stultified, we're going to push contracting out into more areas where maybe it wouldn't be appropriate. But a lot of things are always going to be appropriate to contract out. That means we need to give contracting officers and the people overseeing contracts a lot of discretion to carry out their missions, and not a lot of oversight from the Government Accountability Office or the courts about their bids, just like we shouldn't give OPM excess input into the civil service hiring process.

This is a theme I keep harping on, on Statecraft. It’s counterintuitive from a reformer's perspective, but it’s true: if you want these processes to function better, you're going to have to stop nitpicking. You're going to have to ease up on the throttle and let people make their own decisions, even when sometimes you're not going to agree with them.

This is a tension that's obviously happening in this administration. You've seen some clear interest in decentralization, and you've seen some centralization. In both the contract and the civil service sphere, the goal for the central agencies should be giving as many options as possible to the local managers, making sure they don't go extremely off the rails, but then giving those local managers and contracting officials the ability to make their own choices. The General Services Administration (GSA) under this administration is doing a lot of government-wide acquisition contracts. “We establish a contract for the whole government in the GSA. Usually you, the local manager, are not required to use that contract if you want computer services or whatever, but it's an option for you.”

OPM should take a similar role. "Here's the system we have set up. You can take that and use it as you want. It's here for you, but it doesn't have to be used, because you might have some very particular hiring decisions to make.” Just like there shouldn't be one contracting decision that decides how we buy both a sheaf of computer paper and an aircraft carrier, there shouldn't be one hiring and firing process for a janitor and a nuclear physicist. That can't be a centralized process, because the very nature of human life is that there's an infinitude of possibilities that you need to allow for, and that means some amount of decentralization.

I had an argument online recently about New York City’s “buy local” requirement for certain procurement contracts. When they want to build these big public toilets in New York City, they have to source all the toilet parts from within the state, even if they’re $200,000 cheaper in Portland, Oregon.

I think it's crazy to ask procurement and contracting to solve all your policy problems. Procurement can’t be about keeping a healthy local toilet parts industry. You just need to procure the toilet.

This is another area where you see similar overlap in some of the civil service and contracting issues. A lot of cities have residency requirements for many of their positions. If you work for the city, you have to live inside the city. In New York, that means you've got a lot of police officers living on Staten Island, or right on the line of the north side of the Bronx, where they're inches away from Westchester. That drives up costs, and limits your population of potential employees.

One of the most amazing things to me about the Biden Bipartisan Infrastructure Law was that it encouraged contracting officers to use residency requirements: “You should try to localize your hiring and contracting into certain areas.” On a national level, that cancels out. If both Wyoming and Wisconsin use residency requirements, the net effect is not more people hired from one of those states! So often, people expect the civil service and contracting to solve all of our ills and to point the way forward for the rest of the economy on discrimination, hiring, pay, et cetera. That just leads to, by definition, government being a lot more expensive than the private sector.

Over the next three and a half years, what would you like to see the administration do on civil service reform that they haven't already taken up?

I think some of the broad-scale layoffs, which seem to be slowing down, were counterproductive. I do think that their ability to achieve their ends was limited by the nature of the reduction-in-force regulations, which made them more counterproductive than they had to be. That's the situation they inherited. But that didn't mean you had to lay off a lot of people without considering the particular jobs they were doing now.

And hiring quite a few of them back.

Yeah. There are also debates obviously, within the administration, between DOGE and Russ Vought [director of the OMB] and some others on this. Some things, like the Schedule Policy/Career — which is the revival of Schedule F in the first Trump administration — are largely a step in the right direction. Counter to some of the critics, it says, “You can remove someone if they're in a policymaking position, just like if they were completely at-will. But you still have to hire from the typical civil service system.” So, for those concerned about politicization, that doesn't undermine that, because they can't just pick someone from the party system to put in there. I think that's good.

They recently had a suitability requirement rule that I think moved in the right direction. That says, “If someone's not suitable for the workforce, there are other ways to remove them besides the typical procedures.” The ideal system is going to require some congressional input: it’s to have a decentralization of hiring authority to individual managers. Which means the OPM — now under Scott Kupor, who has finally been confirmed — saying, "The OPM is here to assist you, federal managers. Make sure you stay within the broad lanes of what the administration's trying to accomplish. But once we give you your general goals, we're going to trust you to do that, including hiring.”

I've mentioned it a few times, but part of the Chance to Compete Act — which was mentioned in one of Trump's Day One executive orders, people forget about this — was saying, “Implement the Chance to Compete Act to the maximum extent of the law.” Bring more subject-matter expertise into the hiring process, allow more discretion for managers and input into the hiring process. I think carrying that bipartisan reform out is going to be a big step, but it's going to take a lot more work.

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