Published in James P. Pfiffner and Douglas A. Brook, eds. The Future of Merit: Twenty Years after the Civil Service Reform Act (Woodrow Wilson Center Press and Johns Hopkins University Press, 2000).

Government Legitimacy and the Role of the Civil Service

James P. Pfiffner

George Mason University

             As the scope and roles of the U.S. government changed in the 20^th century, so did the role and legitimacy of the public service.  This essay examines the changing relationship between government and the public service from the Progressive Era to the end of the century with an emphasis on the decline of the legitimacy of the state in recent decades.  It then looks at the effects of that change in legitimacy on the role of the public service, specifically contracting out, privitization, and the fragmenting of the civil service.  Finally, it takes up the implications of the disintegration of the national civil service system for the future of merit, the public service ethic, and accountability in the opening years of the 21^st century.

I.  Governmental Legitimacy and the Role of the Civil Service

            The civil service has always been caught between U.S. citizens’ skeptical attitudes toward government and the role of the national government.  In the early 20^th century, the civil service was just emerging from the era of the spoils system.  From the presidency of Andrew Jackson until the Pendleton Act of 1883 the staffing of the federal government was largely conducted by presidential administrations on the basis of political loyalty.  Based on the premises that government work was basically simple, the political parties needed government jobs as incentives for their membership, and that politically loyal implementors were needed for faithful execution of the laws; the spoils system flourished.  Governmental reform groups sprang up to criticize the inefficiencies of the constant turnover of government workers and the corruption the system spawned in the quadrennial fight over government jobs.

            The 1883 Pendleton Act initiated the replacement of spoils with merit, but only at a gradual pace.  Initially, the intent of the merit system was that recruitment and promotion would be based on ability rather than partisan affiliation and that there would no partisan interference with merit system personnel decisions.  These protections for civil service workers were premised on the assumption that the civil service would work with equal enthusiasm for whichever political party was in power.  That is, government workers would be neutral with respect to party and competent with respect to their jobs.  This ideal of neutral competence would become the hallmark of the civil service.  In the 1980s, however, it would be attacked as leading to insufficient enthusiasm for the policies of the administration currently in power, and in the 1990s it would be criticized as not sufficiently flexible for the information age.

A.  From the Progressive Era to the “Golden Age” of Merit

            In the early 20^th century the Progressives sought a new, more active role for the government in the U.S. economy.  President Theodore Roosevelt led the national government to a more active role in conservation of natural resources and curbing the excesses of big business.  Independent regulatory commissions were created to monitor and regulate business activity.  World War I brought further governmental interventions in the economy, and the expansion of the merit system.  By 1933, eighty percent of federal government workers were within the classified civil service.^[i]

            The experience with the Great Depression and the coming of the New Deal brought drastic changes in attitudes toward government.  Panic over the state of the economy led to experimentation with government policy toward the economy and the profusion of government agencies to deal with various aspects of the Depression.  Despite conservative opposition to government growth and intervention in the economy, public programs were welcomed by many, and the government was seen as an engine of change.  With unemployment approaching 25 percent, welfare programs were accepted by many as legitimate assistance for those who could not find work.  Leading scholars and business leaders came to Washington to help lead the nation out of the Depression, some as “dollar-a-year” executives who were rich enough not to need a salary but who wanted to contribute to the common good. 

             World War II brought increased legitimacy to big government.  The whole economy was harnessed and guided by the national government so that the United States became the “arsenal of democracy” that contributed as much as American soldiers to the defeat of the Axis powers.  Most of society was involved, in one way or another, in the national government’s fight for victory over Germany and Japan.  The patriotism that marked World War II carried over to the following Cold War era.  As the Soviet Union came to be seen as the major threat to world peace and the Korean War was slowly brought to a truce, the role of a large federal government was further legitimized.  The 1950s saw the broad college education of veterans through the GI Bill, the creation of the interstate highway system, the support for science to counter the Sputnik threat, and the National Defense Education Act.  All brought the federal government further into areas of society than it had been before.

             The huge growth of the civil service between the 1930s and the 1960s, from 800,000 in 1938 to 2.6 million in 1952, reflected the much larger role of the federal government.  With this growth, the merit system was also expanded, covering 66 percent of the civil service in 1938 and 86 percent in 1952.^[ii]  The national government became much more professionalized and much more institutionalized.  The Brownlow Committee Report in 1937 recommended the expansion of the civil service, and the Hoover Commission Report in 1949 led to its increased regularization and professionalization.

            The 1950s Cold War consensus on a large military establishment and a temporary consensus on a relatively small social welfare establishment, brought with it a “golden era” of the civil service.^[iii]  Agreement on the relative size of the government and its purposes was accompanied by an acceptance of the legitimacy of the civil service, with its professionalism and competence.  But the legitimacy enjoyed by the civil service and its increased size also led to the rigidification of processes and procedures.  The Civil Service Commission became the central policy maker for personnel administration and the central clearing house for recruitment for government workers.  Thus the consensus on the role of the government and success of the CSC in institutionalizing the public service contained the seeds of disintegration as the role of government was expanded in the 1960s and questioned in the 1970s. 

            The surface consensus and relative calm of the 1950s hid the simmering racial inequality that was slowly undermined after Brown vs. Board of Education in 1954 and exploded in racial strife in the 1960s.  The response of the political system to racism, inequality, and environmental,  degradation was a flurry of activist public policy innovation and social legislation.  A booming economy and an activist optimism engendered a plethora of governmental programs to attack areas of neglect and to pioneer new initiatives, from literacy, to health, to environmental clean-up, to social welfare.  The burst of governmental optimism and activism led to legislative activism by Lyndon Johnson that rivaled the famous “100 Days” of Franklin Roosevelt in 1933. But the flurry of activity also included some poorly thought out programs that would lead to a backlash in the future.  The civil servants who helped design the programs would later be blamed when the programs were not as successful as promised.

             President Johnson’s political skills and the optimism or hubris of the 1960s also led to the increasing involvement of the U.S. military in Vietnam and the secret escalation of the war in 1965.  The 1960s were years of upheaval, with racial unrest in the South and large cities of the North and growing opposition to the War in Vietnam.  The public service was in the middle of both and embodied both the idealism of programs that attacked injustice and the military effort that wanted to save South Vietnam from Communism.  But the large governmental activism also mirrored the idealism of America’s domestic and foreign policies with the arrogance of imposing  solutions on Vietnam and thinking that all of society’s ills could be cured by large governmental programs.  The seeds of the 1970s reaction to the optimism and arrogance of governmental activism were planted in the 1960s.

B.  The 1970s and 1980s: Deficit Politics and Delegitimizing Government

            The narrow victory of Richard Nixon over Hubert Humphrey in 1968 accurately reflected the changing attitude toward government in the American public.  Nixon presided over a portion of the liberal legislation at the end of the 1960s era, but his political instincts were leading him toward a reining in of the activist impulse and toward a conservative reaction against governmental activism in social policy.  Nixon’s landslide victory in 1972 reflected public rejection of further liberal experiments in public policy, but the Watergate “horrors” engendered further public cynicism about big government.  In addition, the economy suffered from “stagflation” — simultaneous inflation and stagnation.  The inflation was set off by Lyndon Johnson’s policies of guns and butter and the creation of OPEC which led to the drastic increase in oil prices in 1973.  Inflation and a stagnant economy further eroded public confidence in governmental policy.  

            These far-reaching changes were reflected in attitudes toward the public service.  Kennedy and Johnson saw the public service they inherited from the 1950s to be too stodgy and bureaucratic to create bold, new policy options.  Richard Nixon, however, held a deep distrust toward the career services, seeing them as “dug-in establishmentarians fighting for the status quo.”^[iv]  Nixon also came to distrust his own political appointees and felt that they had been coopted by the career bureaucracy.  The civil service came to be identified with the policies of the federal government and thus blamed for them in a parallel to the way some anti-war activists blamed soldiers for U.S. policies in Vietnam.  Thus, the reaction of the public to the domestic, political,  and foreign policy excesses of the 1960s led to a distrust of the federal government.  The opportunism  of politicians then led to gradual delegitimization of government and political attacks on the public service.  

            In his quest for the presidency, Jimmy Carter ran against Watergate and the excesses of Richard Nixon, but he combined his partisan attack with an assault on the federal government (“Our government in Washington now is a horrible bureaucratic mess....”^[v]) and its employees (“There is no merit in the merit system.”^[vi]).  Reflecting the changing political landscape, Carter was not a traditional Democrat but was a fiscal conservative.  He was also skeptical of federal government intervention in state policy.  Carter’s skeptical approach to government provided a transition to the much more conservative and anti-government administration of Ronald Reagan.  Carter’s Civil Service Reform Act gave future administrations tools to elicit greater responsiveness from the career bureaucracies.  

            Reagan’s anti-government rhetoric was honed over decades of political activity and his governorship of California.  Reagan was able to capitalize on public disillusionment with the optimism of the 1960s and the cynicism born of Vietnam and Watergate.  He argued that government was the problem, not the solution to social ills.  His anti-government conservativism was rationalized by public choice economics that argued that government workers were primarily self interested and would protect their programs, thus melding disagreement with past public policy with hostility toward the government and its workers.^[vii]  The political appeal of this approach was attractive to conservative politicians, and Republicans made significant gains in the 1980s with this anti-government theme.   

            Despite Reagan’s campaign promises to balance the budget, his unwillingness to sacrifice his priorities in defense spending and tax cuts along with a severe recession combined to produce historically huge deficits in his early years in office.  The failure of the government to reduce defense or entitlement spending or to increase taxes to reduce enormous deficits resulted in continued shortfalls of  hundreds of billions dollars.  The national debt increased from about 1 trillion dollars in 1981 to 2 trillion in 1984 to three trillion in 1988.  The trend continued, with the total debt reaching 4 trillion during the Bush administration and passing five trillion in the Clinton administration.  This fiscal overhang increased pressure on governmental programs, particularly on the “controllable” part of spending (excluding entitlements, contracts, and interest on the debt).  Budget agreements to reduce the deficit, particularly in 1990 and 1993, restricted spending on programs and contributed to a balanced budget in FY 1998.  

C.  The Clinton Administration, the NPR, and the 104^th Congress  

            The Clinton administration had two major effects on the state of government management and the civil service.  The National Performance Review was the broadest attempt to change federal management in U.S. history, but perhaps more far reaching were the policy battles that Clinton fought with the Republican 104^th Congress.   

            1. The NPR

            Vice President Gore took leadership of the administration’s push to reform the way the government does business.  The NPR leadership argued that the prevailing paradigm of government management was formed during the progressive era and was designed to counter the evils of the spoils system and corruption.  In trying to prevent corruption and political interference with administration, the merit system became gradually encrusted with a plethora of rules and regulations to prevent government managers from using their discretion.  The system was designed during the industrial revolution and modeled on large-scale bureaucracy with hierarchical control from the top to ensure responsiveness to law and adherence to policy.   But this system was now cumbersome and outmoded and should be replaced with a management structure appropriate for the information age.  

            The information age at the end of the 20^th century, argued the NPR, needs more flexible organizations with flatter structures that can respond creatively to the challenges of changing technology and global competition.  The proponents of the NPR argued that government should  “steer rather than row.”  That is, government should not produce goods and services directly, but rather set up incentive systems that encourage citizens to do things themselves, use contracting to take advantages of market incentives, and encourage competition between government agencies and with the private sector.  The approach envisions government as catalyzing, enterprising, decentralized, community owned, competitive, mission driven, customer friendly, market oriented, and results oriented.  The further implication was that government employment could be much smaller than it was.^[viii]  

            The NPR encompassed a wide range of management reforms and had broad effects on the public service.  While the intention was to change the culture of government organizations and transform them into entrepreneurial, creative, and customer driven organizations, the success of moving in these directions was mitigated by the budget-driven mandate to reduce significantly the number of employees of the federal government.  The Clinton administration cuts of more than 300,000 positions brought the size of the civilian component of the federal government down to the smallest it had been since the Kennedy administration.  

            2.  President Clinton and the 104^th Congress

            Perhaps more far reaching than the management changes brought on by the National Performance Review were the battles between the Clinton administration and the Republican 104^th Congress over the role of the national government.  President Clinton came to office as a “new Democrat” who supported fiscal discipline and a limited, though positive role for the federal government.  He had absorbed the political lessons of the 1980s and promised to “end welfare as we know it” and to produce an efficient federal government.  But the policy centerpiece of his first year in office, his health care reform proposal, seemed to belie his “new Democrat” intentions.  His health care reform plan, while based on private sector insurance and care provision, was premised on complex and far reaching government regulation of the industry.  The Republicans’ defeat of health care reform in 1994 was one of the major factors in their recapture of control of Congress for the first time since 1954. 

             The House Republicans, led by Newt Gingrich, set out to accomplish what Ronald Reagan had failed to finish: to move the country much further in a conservative direction by dismantling many of the programs of the welfare state that had been enacted during the Roosevelt and Johnson administrations.  The Republicans had run on a “Contract with America,” a list of mostly conservative policy initiatives that included balancing the budget, welfare reform, tax cuts, tort reform, congressional reform, and several other issues.^[ix]   Some of the Contract items were enacted, but most foundered in the Senate which, though Republican, was not as conservative as the House.

             But the most controversial policy changes sought by the House Republicans were not in the Contract but were put into appropriations measures and included in a massive reconciliation bill that they passed in the fall of 1995.  The proposed policy changes included severe cuts in Medicare, Medicaid, welfare, environmental programs, and other domestic programs.  They also proposed abolishing of several cabinet departments (Education, Energy, and Commerce) and severe cuts in the Environmental Protection Agency.  When President Clinton vetoed the bills, including these cuts, the Republicans refused to modify their proposals, and much of the government was shut down for lack of appropriated funds.  After two prolonged shutdowns it became clear that the public was blaming the Republicans in Congress for disruptions, and GOP leaders reached an agreement with President Clinton on a plan to balance the budget.  Though the Republicans lost the political battle over blame for the shutdowns and Clinton was on the way to reelection, the Republicans won many cutbacks in domestic programs and agreement on a plan to move the budget toward balance. 

             The significance of this pitched political battle in 1995 was that the irresistable force of the Republicans in Congress had met the immovable object of Clinton in the White House, and they had fought each other to a forced accommodation.  Clinton, a moderate Democrat much closer to Carter than Johnson in policy terms, had been forced to move his policy preferences significantly to the right.  He also had to accept a plan to balance the budget that precluded many policy initiatives (in workforce retraining, education, and environmental policy) that he favored.  The congressional Republicans, on the other hand, had to accept the fact that most Americans had come to expect the benefits provided by the major programs of the New Deal and the Great Society and would support Medicaid, Medicare, Social Security, environmental protection and other domestic governmental programs. 

             Emblematic of the new “consensus” on the role of government was the statement by President Clinton in his 1996 State of the Union Message that “The era of big government is over.”  While this rhetoric appealed to the symbolic preferences of most Americans, it assumed that most of the programs of the federal government, over which there had just been a major pitched battle, would remain basically the same.  In saying this, Clinton clearly did not embrace the attitude toward government of Ronald Reagan in 1981 or of Newt Gingrich and the freshmen Republicans of the 104^th  Congress.^[x]  What Clinton did accept was the political reality that the public was not ready for further large scale-government programs.

             This major battle over budget, policies, and programs may very well signify a broad agreement (but not consensus) in the American electorate on the role of the national government and may define the range within which future policy battles may take place.  To be sure, significant battles will continue over particular programs (e.g. how to limit Medicare and Medicaid spending, how to pay for Social Security, how to administer welfare programs, etc.), but the broad boundaries of political agreement over the scope of government may have been established for the time being.  This agreement may be on the part of the public rather than politicians in Congress, but the political reality of what the electorate will support may lead to a standoff in Congress.  This possible agreement bodes well for the public service.  It may allow a focus on how best to manage the provision of goods and services rather than the blaming of government workers for the existence of the programs they implement (bureaucrat bashing).

             General agreement on the role of government may narrow the scope of conflict, but it does not mean that the public service will not be subject to disagreements about how to organize public programs or who should carry them out.

II. The Illusion of Smaller Government and its Effects on the Public Service

            Despite the delegitimizing of the federal government from the 1970s to the 1990s, the reality is that the American public wants and demands the benefits of big government at the same time that it rewards politicians for railing against it.  But the consensus among Americans in favor of the benefits of big government and the rhetoric of small government has had important effects.  Politicians want to limit government without having to cut programs that have popular support.  The solution is to deliver the appearance of a shrinking government but at the same time maintain the ability to provide the goods and services that the public demands.  This solution has, in turn, led to the fragmenting of the public service.  

A.  The Tools of Contracting, Grants, and Mandates  

            Since the most visible and easily understandable sign of big government is the number of public employees, the easiest way to reduce the visibility of big government and to claim credit for shrinking the government is to reduce the number of public employees.  There are a number of ways to accomplish this.  The federal government (as well as state and local governments) can accomplish public purposes and deliver services through a number of different “tools” that minimize the number of government employees.  Tax breaks can be provided to encourage certain activities; mandates can compel businesses or governments to take certain actions; grants can be provided for the accomplishment of certain tasks; and contracts can be made for the provision of goods and services.  The delegitimizing of government over the past few decades has made these options for the provision of government services much more attractive and has increased their use. 

            To put the activities of the federal government into perspective, only about four percent of the federal outlays is spent on public workers directly providing goods and services.  The majority of spending goes to payments to individuals (58 percent), interest on the debt (15 percent), , contracts with private companies for goods and services (13 percent), grants to state and local governments (5 percent), and the armed forces (5 percent).^[xi]  

            Many reasons exist for contracting out for goods and services, but in the past several decades other incentives have been added to use contracting.^[xii]  One is the assumption, encouraged by the business sector and many politicians, that businesses are inherently more efficient and better managed than governments, and that money is much better spent if it goes to the private sector.^[xiii]  Another driving force in the move to contract out is the delegitimizing of the government; it is much easier for politicians to say that money is being spent efficiently in the private sector.  A third driver is the political need to make the government look smaller.  These three factors have been constants in the Republican Party, particularly with the conservative turn of the country since the 1970s.  But the political appeal of such moves also affected the Democrats, especially the “New Democrats” of the Clinton administration.   

            The NPR under Gore and Clinton argued for a government that is smaller and costs less.  They “delivered” on their promise by cutting the size of the federal civil service by more than 330,000 between 1993 and 1998.  This reduction in the federal civilian workforce (excluding the Postal Service) of 15.4 percent brought the number of federal government employees to the lowest level since the Kennedy administration.^[xiv]  But the reality may be that these cuts have contributed to a government that appears smaller but continues to deliver the level of services that Americans demand.   

            Paul Light has challenged the claim that the government is smaller in the 1990s than it has been since the 1960s by calculating what he calls the “shadow government” of those whose jobs are based on grants, contracts, and mandates.  He calculates that the $200 billion that the federal government spends on contracts each year creates 5.6 million jobs and that the $55 billion in grants creates 2.4 million jobs.  He also argues that federal mandates entail another 4.7 million jobs in state and local governments.  Whether or not his methods for counting workers is airtight, his main point stands.   Millions of workers not on the federal government payroll are needed to deliver the goods and services that the federal government provides.   

            The cuts in numbers of employees without significant cuts in the programs of the government imply that the contracting out trend has increased during the Clinton administration (in line with NPR objectives and administration policy).  Light’s data also make the interesting point that the purposes of contracting have been shifting from the production of goods and products to the provision of services.  According to Light, in 1984 one half of contract jobs produced products, whereas in 1996 only one fifth of them were for goods and 80 percent were for services.^[xv]  

B.  The Fragmentation of the Civil Service

            At the same time that the government has been contracting out more of its functions, the traditional civil service has been fragmenting.  The traditional standard for the merit system in the federal government has been the inclusion of employees in the “competitive service” who are subject to appointment under chapter 33 of Title 5 of the U.S. Code.^[xvi]  After the passage of the Pendleton Act of 1883 only 10 percent of federal employees were included in the competitive service, and the law provided that more could be added by presidents “blanketing in” through executive order those not covered.  Thus the coverage of the merit system increased to more than 40 percent by 1900 and to 80 percent by 1933 (cut to 66 percent during the New Deal).  The high point of the merit system was reached during the 1950s when more than 86 percent of employees were covered.^[xvii]

            Since the 1950s the traditional merit system, (i.e. the competitive service) has been increasingly fragmented, with coverage dropping to 52 percent in 1996.^[xviii]  The rest of federal government employees are in “excepted service,” excepted meaning not covered by the hiring authority of Title 5.  For instance, the U.S. Postal Service has established its own personnel system since it left the competitive service in 1970.  The Foreign Service has its own system, as do the intelligence gathering agencies.  In all, 123 organizations of the federal government employ people in excepted services.^[xix]  The fragmenting trend is continuing with the Federal Aviation Administration receiving authority to set up its own system in 1995 and the proposals of the Clinton administration to create separate performance-based organizations (PBOs) with their own hiring authorities outside of Title 5.   

            In 1977 the President’s Personnel Management Project (which laid the groundwork for the CSRA) described the excepted service as “a tangled, confusing web of laws, regulations, authorities, and exceptions.”^[xx]  The thrust of the CSRA was not to consolidate personnel practice into one plan, however, but to delegate personnel authority to agencies and reserve for OPM oversight and advisory capacity.  In recent years, many new members of the civil service entered through excepted authorities rather than through traditional, standardized examinations.^[xxi]  In the 1990s OPM has continued to delegate authority to agencies, and by 1998 virtually all hiring has been decentralized and the central registers of OPM no longer exist.^[xxii]  The recommendations of the NPR have favored this decentralization and have argued that the old model of centralized authority and uniform rules were based on the manufacturing age of large bureaucracies and no longer appropriate to the information age of small organizations and flat hierarchies.  

            In another manifestation of this fragmentation, the Department of Defense, which employs about half the government’s civilian workforce, was exploring in 1998 possible changes to rationalize its civilian workforce for the future.  The assumption was that the workload of the department would fluctuate in the future as it had in the past and that its workforce should be structured so as to be able to gear up for periods of high activity but also be able to gear down for slacker periods without going through disruptive reductions in force.  According to its planning proposals, the DOD would contain a core of permanent employees that would be sized to perform a minimum or constant workload that is not appropriate for outsourcing.  In the next concentric circle would be a tier of temporary employees who could be hired for periods up to five years.  Finally, the third circle would be a large pool of employees who could be hired under contract for specific periods of time.^[xxiii]  

            The National Academy of Public Administration has also made a number of proposals for consideration by the federal government as it adapts to the changing realities of the labor market.  The Academy proposes that not all federal government workers necessarily be “full-time permanent” employees but that differing relationships between government and employees may create a more flexible workforce.  NAPA proposes that the number of competitive federal hiring methods be reduced to three: permanent workers, temporary workers who could be hired without time limits and who would have full benefits, and temporary workers with limited benefits and limited time periods.^[xxiv]  NAPA argues that inherently governmental or “core” work would be done by employees who have an expectation of continuous work and that noncore work could be done by supplemental workers who do not have the expectation of continuous work.^[xxv]  

III.  Merit, the Public Service Ethic, and Accountability  

            The thrust of the above analysis is that recent decades have brought about profound changes in the nature of governance in the United States, the relationship between the role of government and the public service, and the relationship between people who do the public’s work and the government.  This section takes up three issues that demand consideration.  First, how can the ideals of merit be preserved in an environment in which the traditional merit system has been coming apart?  Second, how can a public service ethic be engendered when most people doing the government’s work do not work for the government?  Third, how can accountability for public programs be enforced when the workers managing programs are one or several times removed from those responsible for accomplishment of the mission?  

A.  Merit in Contracting and Political Appointments  

            Two issues of merit are basic: how to apply it in a new environment and how it relates to political appointees.

             1.  Merit in Contracting  

            The merit system, as established by the Pendleton Act of 1883, was based on the foundation of three principles: 1) entry to the system by way of competitive examination, 2) promotion and penalty based on performance, and 3) protection from actions based on partisan political pressure.^[xxvi] In the years since its establishment, many refinements and additions have been overlaid on the merit system.^[xxvii]

* Equal opportunity and affirmative action regulations have been included to ensure that entry and promotion are based on merit rather than prejudice.

* Hatch Act (1939 and 1993) regulations have been added to ensure that partisan political activity cannot be coerced.

* Classification systems have been added to facilitate equal pay for similar work across the government.

* Veterans preferences have been added by law as reward for previous service. 

* Agreements have been made with unions in collective bargaining agreements.  

The carrying out of merit principles has also come to mean that, after a worker has passed successfully the probationary period, that the employee has in effect a guarantee of career-long employment with the government during reasonable performance.  The only exceptions are a difficult separation action or a reduction in force.  

            But the essence of merit is the evaluation of individuals based on their qualifications and performance and the protection from partisan political abuse, that is non-partisan (or neutral) competence.^[xxviii]  

            In protecting the principle of non-partisan competence in the traditional merit system the civil service developed a host of rules, regulations, and laws that did a good, though imperfect, job of protecting merit.  But the complex system of regulations also tended to bog down the system in procedural detail that impeded managers from managing.  It is these negative effects that have led in part to the reaction against the system and to its fragmentation.  Managers could not hire or promote without heavy-handed oversight and second guessing from agency personnel shops or the central personnel authority.  Neither could managers discipline or fire poor workers without burdensome and elaborate record-keeping and the threat of long, drawn out legal proceedings.^[xxix] 

            Given the new reality of administrative arrangements (in part created to get around the barnacles of the merit system), how can law assure that the essence of merit — non-partisan competence — will be preserved?  Many public purposes are now being accomplished through indirect administrative linkages in which the government does not have the personnel authority to enforce the traditional trappings of merit.  Of course it might try to ensure merit by imposing requirements in contracts that private and non-profit organizations comply with all of the traditional requirements of the merit system.  But that would defeat the purpose of the creation of many of these arrangements in the first place.

            What is really needed is the accomplishment of governmental goals, that is, the faithful execution of the law, in an economical, efficient, and effective manner.  New institutional arrangements, such as contracts written with private or non profit organizations, do not alter these basic goals.  What is needed as the minimum, but sufficient, requirement is that these goals be accomplished without discrimination or partisanship.  Thus private contracting organizations need to comply with the broadly accepted non-discrimination principles with which all businesses in the country must comply. 

            But what should be the concerns with competence beyond non-discrimination?  If a business fulfills the requirements of the contract, should the government care about the internal determination of who is hired or how they are promoted?  Imposing intrusive procedural requirements on internal hiring and promotion decisions on private sector contractors would be unduly intrusive and self defeating.  It would bureaucratize and governmentalize the private sector contractor.  Thus, beyond the ensuring of non-discriminatory policies, it does not make sense for the government to impose the requirements of the traditional merit system on governmental contractors. 

            On the other hand, this does not imply that contractors should feel free to make hiring and promotional decisions based on nepotism, cronyism, or arbitrary managerial decisions.  These practices, apart from their ethical improprieties, impose heavy costs on any organization.  Employees are acutely sensitive to these types of maladministration, and any company or non-profit organization that practices them may suffer negative consequences.  But this hands-off approach implies that a willingness to put up with some bad managerial judgments in order to provide the necessary flexibility for managers to exercise informed managerial decision making in contracting organizations.

            With respect to the merit principle of protection from partisan political interference, either to hire or fire, government workers, how can this principle be applied to contractors?  Partisan pressure on contractors with respect to personnel decisions, from the executive branch or Congress or political parties, is inappropriate and unlawful.  But vigilance is also needed that the awarding of contracts for goods and services not be made on partisan grounds.  Thus the oversight of inspectors general in the contract granting departments and agencies is essential to the integrity of the contract process.  At the same time, the new flexibilities in contracting achieved in the Clinton administration ought not to be nullified.^[xxx]

            In sum, in the enforcement of the principles of merit in the new world of contracting out much of the government’s business ought to focus on essentials and not reimpose all of the burdensome regulations of the traditional merit system.  Individuals must be protected from overt discrimination through normal legal processes, and personnel and contracting decisions must not be made on the basis of partisan politics.  Beyond that, care is needed that added requirements do not replicate the regulations of the traditional merit system that the new forms of administrative arrangements were designed to escape.

            2. Merit and Political Appointments

            The anti-government rhetoric that began in the 1970s and the bureaucrat bashing that it entailed led to a desire for more control by politicians to circumvent what some believed to be iron triangles of linkages among bureaucrats, interest groups, and congressional staffers.  One of the results of this felt need for more control was an increase in the number of political appointees in the executive branch.  While Germany, France, and Britain each have one or two hundred political appointees who change when partisan control of the government changes, the United States has significantly more.  The president can make about 5,000 political appointments upon taking office, and about 3,000 of these are full time members of the executive branch.^[xxxi]

            In 1989 the Volcker Commission recommended that the number of executive branch appointees had been increasing over the past several decades and that the total number of political appointees should be reduced from about 3,000 to about 2,000.^[xxxii]  According to Paul Light’s calculations, the total number of senior executives and presidential appointees increased from 451 in 1960 to 2,393 in 1992.^[xxxiii]  The reasoning behind the Volcker Commission’s recommendations was that the increasing numbers of appointees, rather than giving the president more control, actually attenuated responsiveness to the president.  That is, appointees often come with political loyalties to sponsors (patrons) other than the president, and the increasing numbers necessarily leads to increasing layers of authority, distancing the appointee responsible for mission accomplishment from the career civil servants actually doing the job. 

            Light calculates that in 1960 there were up to 17 layers of management at the top of the federal government, and by 1992 there were up to 32.^[xxxiv]   In addition to the management problems brought on by layering and the frequent turnover of appointees,  the deeper penetration of the bureaucracy cuts short the careers of the most able civil service executives.  Thus a cut in the number of political appointees would lead to an increase of expertise and professionalism near the top of agencies while still allowing for appropriate control of administration policy by presidential appointees.^[xxxv]  In addition, the large numbers of appointees and their control by the White House has led to a significant slowing of the ability of a new administration to get its appointees in place.^[xxxvi]

            The conditions that led to the recommendations of the Volcker Commission in 1989 have not changed in the ensuing years of the 20^th century.  In fact, two of the major changes in the federal civil service reinforce the argument the government has more political appointees than needed.  First, the federal civilian workforce has been cut by 330,000, though the reductions were only in the career ranks; the number of political appointees was not reduced.  Second, since much of the work of the government has shifted from actually producing goods and services to the oversight of contracts of those who provide the services, the need for political direction of government management should be less.  What is needed in the negotiation and oversight of contracts is expertise; the government does not need more political influence in the awarding of contracts.

            As Chester Newland has argued (in this volume), merit in the career ranks must be accompanied by merit in the political and executive ranks.  Without dedicated and competent political appointees, it will be very difficult to ensure merit and commitment at lower levels.  The thrust of the Volcker Commission recommendations was that, with increasing numbers of political appointees, it becomes more difficult to ensure merit throughout the top of the executive leadership system.

B.  The Public Service Ethic

            The principles of merit as described above are negative in the sense that they are protections from bad management, that is personnel decisions based on factors other than merit are prohibited.  But we really expect more than protections from abuse in the public service; citizens also expect a can-do spirit and a serious commitment to the public interest.  Mission accomplishment needs to take precedence over minor inconvenience or monetary concerns.  With the admission that the federal government (as in all large organizations) has its share of slackers and those retired in place, citizens expect the kind of dedication to duty that characterizes the best of the postal service, the armed services, the FBI, and the National Institutes of Health. 

            Many of the most talented and dedicated public employees join the public service in order to contribute to the public good.  The most talented career executives have lucrative options in the private sector where they can make more money but many choose the public service because of the challenge, the nature of the work, and the chance to make a difference in the lives of others.  How can Americans preserve the best of this public service ethic — a commitment to the public interest and a willingness to sacrifice in order to accomplish the mission — when much of the public’s work is being carried out by non-governmental organizations? 

            Incentive systems in the private sector are oriented to the bottom line.  Business managers have commitments to stockholders and the future profitability of the company, and there may be times when these commitments override serving the public.  But these times should concern business decisions about what business to pursue and which products to produce, not whether to fulfil the requirements of a contract or how well to do a job.

            First of all, citizens have the right to expect the spirit of public service to prevail in private sector organizations that carry out public purposes.  That is, contractors who collect refuse ought to be as concerned about public health as are government employees.  Private manufacturers of jet fighters ought to be just as careful about quality control as the military maintenance mechanics who service them.  Drug manufacturers ought to be just as committed to public health and quality control as the Food and Drug Administration is about ensuring that they are safe and effective. One already sees much of this commitment in the private sector companies that carry out public programs.  The engineers at Morton Thiacol were just as much concerned with the safety of the shuttle as the decision makers at NASA. 

            Realistically, most people have mixed motives, and the public service ethic is not universal in government employees, just as maximizing profit is not present in all employees of the private sector.  But the commitment of workers ought to be determined by the mission to be accomplished, not who signs their pay check.  The challenge is how to engender the public service ethic and commitment to mission accomplishment in organizations that carry out public purposes, regardless of the legal arrangements of their organization (public, business, non-profit).  The answer is the instillation of public service values through effective leadership, informed management, and good recruitment — i.e. merit.^[xxxvii]

            In seeking to instill these values in workers who carry out governmental policy, it is essential to take a broad, inclusive view of public administration. George Frederickson argues that “...governance comprehends the full range of public activity — governmental, quasi-governmental, and nongovernmental.”   This fits with his definition of public administration: “Public administration includes the state; indeed, it is rooted in the state.  But it is — and should be — more broadly defined to include the administration or implementation aspects of all forms and manifestations of collective public activity.”^[xxxviii]

            Frederickson further argues that there is a danger in focusing too heavily on merely the efficient delivery of goods and services by private contractors to the neglect of the broader public service dimensions of doing the public’s business.  “The most destructive effect of [the] equating public service with commerce has been the devaluation of public service to just another area in which individuals can achieve essentially private ambitions....This tendency is particularly destructive in public administration, for it attacks the assumption that a special relationship should exist between public servants and citizens in a democracy....The public expects something more from the bureaucracy, and rightly so.”^[xxxix]

            What is needed as the nature of governance changes in the United States is to ensure that the “spirit of public administration,” or the “public service ethic” infuses all who do the people’s work, regardless of who signs their paycheck.

3.C.   Accountability

            A major challenge that has not been fully thought out by the government or the public administration community is the question of accountability.  Political accountability is ensuring that the government is doing what the people want it to do and is ensured (more or less) through regular elections.  Managerial accountability is achieved through supervision of the work done to assure that policy directives are being faithfully carried out.  Traditional accountability has been achieved through the processes of bureaucracy and hierarchy, but as has been pointed out above, the way that the government does business has been changing toward more contracting out.  Thus accountability through hierarchy is being replaced by accountability through contract.^[xl] 

            In terms of efficiency, contracting out may save the taxpayers’ money and may relieve the government of maintaining the personnel necessary to do many jobs itself.  On the other hand, contracting for work attenuates the level of control that the government has over the provision of goods and services.  If quality and quantity of what is contracted for is easy to specify in a contract, the management problem is relatively simple.  But much of what the government acquires through contract is not simple to specify in a contract.  If changes in the work are necessary, government leaders cannot give orders; they must renegotiate the contract.  As Don Kettl argues, these new arrangements call for a new type of government manager.^[xli]

            In addition to the problematic relationship between government managers and contractors in the era of contracting, there are real dangers of fraud and corruption.  The history of U.S. governments at all levels demonstrates that fraud in contracting is a common problem.  While most private sector contractors are honest and competent, some will do their best to defraud the taxpayers.^[xlii]  Thus the government needs a new type of manager who can skillfully write contracts and oversee them for quality and to detect fraud.  The dangers of fraud and the government programs at potential risk for abuse are specified in Don Kettl in his book on government contracting, Sharing Power.^[xliii]

            In his analysis of the implications of the new wave of contracting, George Frederickson argues that fraud will again become a major problem.  “Hollowing out bureaucracy and eliminating regulations will make the seedbed for corruption and scandal....contracts have always made a tempting environment for kickbacks and fraud.”^[xliv]  He goes on to predict another wave of reforms.  “The reforms that are being adopted may, at the margins, make government more productive, but they will almost certainly result in less ethical government.  This being the case, in the years ahead we will eventually see another reform movement emphasizing administrative expertise, a merit-based civil service insulated from political meddling, and the use of regulations to control corruption.”^[xlv]

Conclusion

            As America enters the 21^st century, those concerned with the quality and integrity of the public service have reason to be optimistic, but there are also reasons to be concerned.  The trend of contracting out has created a strain in the federal public service because it has increased uncertainty and was based in part of the premise that government workers are inefficient.  But the more we learn about contracting the more we transcend this simplistic premise and the more we know about when contracting pays off and when it is inappropriate.

            The great battles over the role of the national government in the last three decades of the 20^th century have been bruising to the public service.  On the other hand, the pulling and hauling may have brought the political system to an equilibrium in which the general scope of governmental action will be accepted across the mainstream political spectrum despite disagreements at the margins.  If this is the case, the public service can return to its mission of faithfully executing the laws.

            Government still faces the continuing challenges of ensuring the status of merit within the public service and demanding non-partisan efficiency in the contracting community.  Accountability to the will of the people expressed in public law is essential.  Finally, the public service ethic must be engendered in all those who do the people’s work, regardless of who signs the paycheck.  

ENDNOTES