Kausfiles breaks the "Homeland Security" deadlock!

Kausfiles breaks the "Homeland Security" deadlock!

Kausfiles breaks the "Homeland Security" deadlock!

Political commentary and more.
Sept. 25 2002 5:53 AM

The 50/50 Solution

Kausfiles breaks the "Homeland Security" impasse!

The Bush administration says it's too difficult to fire and redeploy federal workers under the existing civil service system -- so the GOP bill creating the big new "Department of Homeland Security" would make it easier.

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The Democrats -- serving their government-employee constituency (for whom preserving civil service protection is Job One) -- counter that making it easier to fire employees would open the door to politicization. As WaPo reports:

Senate Majority Leader Thomas A. Daschle (D-S.D.) warned that too much flexibility would take the federal workforce back to an era when people were hired and fired based on party affiliation and other arbitrary reasons. ….

"I don't want to see someone fired because they're a Republican or a Democrat."

The problem is that both sides are right. The solution to the problem -- the solution that might break the World-War-I-like stalemate now holding up the "Homeland Security" reorganization -- is highly sophisticated, yet Solomonic in its evenhanded wisdom: Make it easier to fire half the workers.

I'm not joking here, not even half-joking. The plan I'm suggesting -- the "50/50 Plan" long proposed by civil-service reformer and Washington Monthly founder Charles Peters -- isn't a glib, superficial, getting-to-"Yes" compromise. It is, I claim, a profound, radical non-compromise. I realized this only after several years of writing earnest, worthy articles on civil service reform -- particularly the problem of firing incompetents -- during the Carter and Reagan years.

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Initially, my notion (like the notion of most of the official civil service reformers) was Bushian -- it's too hard to fire incompetent government workers. Make it easier! Why is it too hard? The basic requirements of civil service due process -- notices, hearings, appeals -- may not sound onerous on paper, but to government managers they translate into the knowledge that firing someone means building a paper record and then enduring what can easily be a year of litigation. That means it's usually easier to try to work around an incompetent than to fire him. The resulting cost to citizens isn't that their government agencies are filled with outright slackers and dolts; it's that their government agencies are filled with ordinary people of ordinary talent -- and spouses, children, and hobbies -- who know they only have to try hard enough not to get fired. I didn't believe this until I worked in the federal bureaucracy briefly, in 1977, and then left for a small, private business where employees could be hired and fired at will and results actually mattered.

The Bushies are surely right to seek better than the usual performance from their new anti-terror department. But what should the rules be? If all federal employees could be hired and fired at will, that really might turn all government into a patronage system. (The accepted term for those few federal employees who can be fired "at will" is "political appointees.") The costs of a full-bore patronage system are familiar too: loss of institutional memory (as the losing party's workers get fired), employees who are too scared of being sacked to blow the whistle (the way protected civil servants famously blew the whistle on Nixon).

OK, you say (as I used to say) -- let's find the level of due process that makes it difficult to fire an employee for bad reasons (e.g., because of his party affiliation) but still makes it easy enough to fire him for mediocre performance. Then we can mandate that level across the board. Why not?

Because there is no such level, that's why not.

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If you make it easy enough to fire workers for mediocrity, you also make it easy to fire workers for all the other reasons bosses might want to fire workers, including purely political reasons (e.g., because they are Democrats). Trying to distinguish between the reasons for a firing -- declaring, for example, that managers can fire workers instantly for poor performance but only after notices and hearings if ideology is involved -- isn't a solution to this dilemma. Just determining which rule should apply -- i.e., whether the firing is for performance or ideology -- will take so many notices and hearings that you might as well have required them in the first place.

Peters' alternative: Pick one from Column A and one from Column B. Let half the workers in the agency be patronage employees who can be fired on the spot if the boss doesn't think they're doing the job (or doesn't like their attitude or trust their political views). Let half the workers retain civil service protections. The Column A workers can be the gung-ho troops who work 18-hour days and fly off to distant cities on a moment's notice because they believe in the mission the president has given them. (As patronage employees, they'll be chosen in part because they agree with the president's views.) Let the Column B employees act as cautionary voices and whistle-blowers.

The result could be an agency that performs far better than either agencies composed entirely of civil servants (i.e., most of the current federal government) and agencies composed entirely of patronage employees (i.e., what Daschle called the "bad old days"). Think of the government as a football team. Which sort of team will do better: One made up entirely of huge, beefy 300-pounders? One made up entirely of small, speedy runners? A team made up entirely of players who are what the coaches decide is some sort of perfect Archimedean compromise of bulk and speed? Or a team that has half beefy 300-pounders and half small, speedy runners? I'd bet on the last outfit, the one that eschews a single, unitary standard in favor of a bipolar solution.

It would be hard to apply this 50/50 solution to the "Homeland" (yecch!) agency's existing workforce. (Who gets the cushy civil-service slot and who gets the hair-trigger ass-busting slot?) But you could apply it to new hires, of which there will probably be a lot. Half of them could be risk-taking, get-the-job-done types motivated by hatred of al-Qaida and the knowledge that they'll get the boot if they screw up -- and half could be professionals who will call the Post if Tom Ridge decides, say, to hassle President Bush's political opponents in Pennsylvania.

I can see only two problems with this 50/50 solution. First, it's probably unconstitutional, under an idiotic set of Supreme Court rulings declaring that the Fifth Amendment bans at-will employment because federal employees have a "property" right to their jobs (an idea that even imaginative liberal theorist Laurence Tribe has mocked). There's also another wacky line of cases implying that only a handful of "policy-making" employees can be fired for their political views (as if the point of elections wasn't precisely to fire government workers because of their political views). But the way to get the Supreme Court to abandon silly doctrines is to challenge them.

Second, it's not really such a compromise. The unions, and their Democratic cat's paws, won't like the 50/50 solution. For them, it may be worse than the Bush bill, which simply lets the president exempt Homeland Security from the civil service laws at his discretion. Why? With Bush's bill the damage to the union position can be restricted to Homeland Security and other agencies where a "national security" rationale justifies presidential discretion. But the 50/50 plan is a solution that could easily be applied across the board, to the entire government. Why would it work in the Immigration and Naturalization Service (part of the Homeland leviathan) but not in the Agriculture Department?

Good question!