The federal government requires structural reform. Because it is very expensive and time-consuming to fire anyone, bad behavior is not just tolerated but propagated. Civil Service protections originally intended to guard against a politicized bureaucracy have now become guarantors of the high-handedness and lack of accountability we saw with Lois Lerner, now retired with a six-figure pension after pleading the Fifth Amendment.
Government employee unions have become a mainstay of the Democratic Party, with employee dues, harvested from taxpayers via salaries, laundered into the party’s coffers. So the Democrats will fight like hell, up to and including a filibuster, mass demonstrations, and possible violence. Donald Trump will need to persuade the public, and mobilize public opinion against those Democrat senators who resist the reform movement. There are 23 Democrat senators up for re-election in 2018, and some of them must be made to get very nervous.
I would suggest beginning with a bill to fire any federal employee who takes the Fifth Amendment with regard to behavior related to duties in office. The Democrats will cry that the Fifth Amendment is a constitutionally guaranteed right, so no retaliation is possible, of course. But there is a well-known precedent to the contrary: breath or blood tests for drivers suspected of driving under the influence. They retain their right to not incriminate themselves, but in most states they lose their drivers license. That license is not a right. And neither is a federal job.
Lois Lerner is the ideal object lesson to close the argument. She persecuted ordinary Americans and got away with it.
Donald Trump has pledged not to fire people, but rather rely on attrition with the federal workforce, but that does not mean tolerating misbehavior. Firing for cause is always an option. And Trump’s most famous catchphrase used to be “You’re fired” before it morphed into “Make America Great Again.”
Real change in the behavior of federal employees will require what organizational change experts call “unfreezing.” This means that old habits and assumptions must be broken. Nothing works better than fear.
The Inspectors General of the various federal bureaucracies are a huge asset, one that Barack Obama has tried to neutralize. The IG corps ought to be beefed up, and they need to be given the resources to go after corruption and incompetence. Armed with the power to fire people, after a few prominent malefactor bureaucrats lose their sinecures, behavior will start changing.
But negative incentives like firing are only half the story. They are very useful for getting people’s attention and willingness to change, but positive incentives have a large role to play. This will require further re-design of civil service laws.
While government bureaucracies don’t have a profit or loss bottom line, they do have goals to which they can be held accountable. Costs are the obvious place to start, with incentives for bureaucrats who save money for the taxpayers. How about cash bonuses for identifying and eliminating waste?
There are many other sorts of factors that can be quantified and rewarded. But it is a complicated and risky matter, something not to be enacted without long and careful thought. As a consultant, I worked with some very large corporations on the issue of incentives. A direct link between reward and a certain numerical goal usually means that people will be very creative in getting to that number, often confounding the intentions of the designer of the rewards. “Be careful what you measure and reward, because you may not like what you get,” is a message I have repeated many times.
So, the initial focus has to be on cost saving. Legislation should be introduced to authorize cash rewards to federal employees who save money. This would put Democrats in the position of opposing rewards to those who save taxpayers’ money if they want to fight reform.
Then there is the nuclear option: de-unionize federal employees.
The supreme irony of President Obama’s “I’ve got a pen, I’ve got a phone” exultation of executive orders is that President Trump could ban federal employees from union membership with an executive order.
No less than the Federal Labor Relations Authority reminds us:
…on January 17, 1962, Federal employees first obtained the right to engage in collective bargaining through labor organizations when President John F. Kennedy issued Executive Order 10988, "Employee-Management Cooperation in the Federal Sector." Executive Order 10988 issued as result of the findings of the Task Force on Employee-Management Relations in the Federal Service, which was created by a memorandum issued to all executive department and agency heads by President Kennedy on June 22, 1961. In this memorandum the President noted that, "The participation of employees in the formation and implementation of employee policy and procedures affecting them contributes to the effective conduct of public business," and that this participation should be extended to representatives of employees and employee organizations.
Executive orders giveth, and executive orders taketh away.
Scott Walker and the GOP-led legislature in Wisconsin enacted limits on collective bargaining by government employees, survived recalls, and helped Trump take Wisconsin last night. Civil service reform is popular.
Sure the Democrats and unions will scream bloody murder, but they can be reminded that FDR, the founder of the modern Democratic Party, argued against collective bargaining for government employees. When Scott Walker enacted limits in Wisconsin, he cited FDR. Politifact examined his claims and supported them:
The president’s Aug. 16, 1937 correspondence with Luther C. Steward, the president of the National Federation of Federal Employees, is bluntly worded -- to say the least.
Roosevelt was responding to an invitation to attend the organization’s 20th jubilee convention.
In the letter, FDR says groups such as NFFE naturally organize to present their views to supervisors. Government workers, he observed, want fair pay, safe working conditions and review of grievances just like private-industry workers.
Organizations of government employees "have a logical place in Government affairs," he wrote.
But Roosevelt then shifted gears, emphasizing that "meticulous attention should be paid to the special relationships and obligations of public servants to the public itself and to the Government."
Then, the most-famous line and the one directly on point to Walker’s comment:
"All Government employees should realize that the process of collective bargaining, as usually understood, cannot be transplanted into the public service," he wrote. "It has its distinct and insurmountable limitations when applied to public personnel management."
Roosevelt didn’t stop there.
"The very nature and purposes of Government make it impossible for administrative officials to represent fully or to bind the employer in mutual discussions with Government employee organizations," he wrote.
When Walker claimed FDR said "the government is the people," he had Roosevelt’s next line in mind.
"The employer," Roosevelt’s letter added, "is the whole people, who speak by means of laws enacted by their representatives in Congress. Accordingly, administrative officials and employees alike are governed and guided, and in many instances restricted, by laws which establish policies, procedures, or rules in personnel matters."
Roosevelt concluded with a strong stance against strikes by unions representing government workers, noting that NFFE’s bylaws rejected strikes.
The letter, the FDR Presidential Library site points out, was released publicly by the Roosevelt White House and became the administration's "official position" on collective bargaining and federal government employees.
Roosevelt had previously laid out his views on public-sector unions at a July 9, 1937 news conference.
His statements there add more weight to Walker’s claim.
A reporter directly asked Roosevelt "whether he favored government employees joining unions to the extent of collective bargaining with the government."
Roosevelt’s response made clear he thought managers should listen to worker concerns, whether raised by union representatives or not. Federal workers are free to join "any union they want," he said.
But he recalled that in 1913, when he was Navy assistant secretary, he told a union official the Navy would not enter into a contract with the union because it had no discretion under federal law.
"The pay is fixed by Congress and the workmen are represented by the members of Congress in the fixing of Government pay," Roosevelt said.
His thinking then still applied, Roosevelt told the reporters in 1937.
At the end of news conference, Roosevelt was asked, after making the point that Congress sets compensation: "In other words, you would not have the representatives of the majority as the sole bargaining agents?"
Roosevelt: "Not in the government, because there is no collective contract. It is a very different case. There isn’t any bargaining, in other words, with the government, therefore the question does not arise."
Taken together, the letter and news conference remarks positioned Roosevelt as deeply skeptical of the need and wisdom of collective bargaining power for unions in the federal system.
When he wrote that the unique circumstances would make it "impossible" for government officials to make a binding deal on behalf of the government, that didn’t leave a lot of ambiguity.
This is a fight worth waging and winning. The public does not like federal bureaucrats. With thw White House and Congress in GOP hands, now is the time to make lasting reforms that will, coincidentally, weaken the Demcorats financially.