The New York Times in 2007 called for the impeachment of Bush administration attorney general Alberto Gonzales to “defend the Constitutional order.” They wrote, “The real question is whether Republicans and Democrats are prepared to defend the constitutional authority of Congress against the implicit claim of an administration that it can do what it pleases and, when called to account, send an attorney general of the United States to Capitol Hill to commit amnesia on its behalf.”
For once, I find myself in agreement with the New York Times. The difference is, this should be true all the time, not just when Republicans are in power.
Power of the Purse
The power given to the U.S. House of Representatives to initiate the budget process purportedly also gives us grand powers to use budgetary authority as a means of gaining compliance.
While this sounds good in theory, it doesn’t work in practice because the federal budget process broke down many years ago.
We did try to assert this authority in response to the IRS targeting scandal. After John Koskinen lied to Congress and allowed the destruction of evidence, we voted to cut the budget of the IRS by hundreds of millions of dollars.
But Congress doesn’t have a scalpel—only an ax. We could cut the overall budget, but we couldn’t decide for them who would feel the cuts. Instead of giving up their bonuses or finding efficiencies, they instead chose to cut customer service. That way they could pass the pain on to the voting public in the hope that the resulting outcry would put pressure on Congress to restore the funds. This wasn’t fair to the millions of people who faced hours-long waits for service from the IRS.
If Congress could summon the will to fix its dysfunctional budget process, perhaps a powerful check and balance could be restored. All that is missing is the will.
Rescind De Facto Lawmaking Authority
A little-known but insidious usurpation of congressional power is the Office of Legal Counsel (OLC). This executive branch agency writes legal opinions that direct the prosecutorial priorities of the entire DOJ.
If they write a memo indicating marijuana prosecutions are no longer a priority, those prosecutions stop. They may still be the law of the land, but the executive branch has indicated an unwillingness to enforce them. This practice of looking the other way on specific categories of crimes is a de facto lawmaking authority that enables the Deep State to override the will of Congress and undermine the separation of powers.
Imagine this fact: fewer than twenty people hold the keys to steering the enforcement apparatus of the entire federal government. In this role, they can virtually create new laws overnight by simply reinterpreting existing law. This authority has become far too broad. Congress must act to rein it in.
The Obama administration used this power to unilaterally rewrite the long-standing 1961 Interstate Wire Act in December 2011. Virtually overnight, the restrictions against online gaming disappeared—without any public debate, public hearings, legislation, or semblance of a democratic process.
One day the Wire Act precluded online gaming. The next day the same words were interpreted to mean exactly the opposite. This was a radical public policy departure imposed on every state in America whether it wanted it or not. Whether you support online gaming is not the issue. It is unequivocally giving a career lawyer in the Justice Department the authority to make laws. That goes against every structural protection erected by our Founding Fathers to impose separation of powers.
More important, Congress should set strict boundaries on OLC authority.
Addressing Rewards and Incentives in the Federal Workforce
We must restore the accountability that has been lost through a series of disastrous decisions. With the federal workforce, as with federal immigration policy, we get more of what we reward and less of what we punish. The inability to get rid of the bad apples, utilize appropriate incentives, and minimize corruption has created a monster that can no longer be contained without significant reforms.
Federal employees in general are very well taken care of. A 2017 CBO report studied compensation for the 2.2 million–strong federal workforce and determined that the federal government, on average, pays 17 percent more in total compensation than the private sector pays for similar positions. That disparity is higher the less educated a person is, but federal employees are almost impossible to fire. Once fired, they are often reinstated by the Merit Systems Protection Board. Unlike most Americans, they enjoy both a 401(k) plan and a federal pension in addition to Social Security and Medicare. They are represented by powerful tax-exempt unions whose representatives are often on the federal payroll while they work on behalf of the union.
On top of all of those advantages, they also enjoy the full support of the Democratic Party, to whom their unions donate lavishly and almost exclusively.
Make no mistake, federal workforce reforms are the heaviest lift. Not only is the federal workforce itself change resistant, but its powerful union, political, and media allies will align against even the most benign efforts to restore accountability. That said, Congress has shown a willingness to address these issues. Furthermore, there are many within the federal workforce who recognize the damage being done by the failure to hold people accountable. The most promising recent development is President Trump’s May 2018 signing of three executive orders designed to make firing federal employees easier. The Heritage Foundation reported in a June 13, 2018, report that the reforms are surprisingly popular with rank-and-file government employees. In a Government Business Council flash poll, a slim majority of federal workers—51 percent—said they support the Trump policy.
Get Rid of the Bad Apples and Empower Managers to Fire People
This seems like a no-brainer, but I encountered a shocking amount of resistance to the idea of actually firing people who do things wrong. Even more baffling was the resistance to rewarding merit. They were all for bonuses and pay increases, but the culture in the federal workforce—particularly among government employee unions—finds it “unfair” to reward people based on merit.
Firing federal employees is so laborious that Congress had to actually pass legislation to enable the Department of Veterans Affairs to fire people after a 2014 Phoenix, Arizona, scandal in which patients died waiting for VA care. (President Trump signed that bill in 2017). With the advent of collective bargaining and more complex protocols for due process in the 1960s, individual managers lost their autonomy to impose consequences on recalcitrant employees. The personnel decisions of managers can be appealed by the employee to an outside board. Although most cases ultimately favor the agency, the hassle of going through the process is a deterrent to taking action against bad apples in the federal workforce.
This can be approached any number of ways. A good start would be passing legislation to make permanent the solutions in President Trump’s executive orders. Those changes include:
Shorter performance improvement periods. President Trump has imposed a standardized improvement period of thirty days before an employee can be fired. It shouldn’t take six months to know whether an employee is able to improve.
Reining in official time. Although the executive order does not end the practice of paying employees their full-time wage to act on behalf of the union, the practice is now limited to 25 percent of an employee’s work day.
Limiting union grievances. This order removed the option for federal employees to have a union arbitrator hear their appeal for major disciplinary action—a path that has long been seen as favoring the employee in disputes. Now grievances must be heard by the Merit Systems Protection Board or a federal court.
Ending expungements. Finally, the executive order puts an end to the practice of deleting records of disciplinary actions to resolve complaints.
Some other possible solutions remain:
Expedite the removal process for those guilty of certain categories of crimes, which may include tax delinquency, sexual harassment, and committing perjury.
Empower manage
rs to adjudicate conflicts within the agency, not through the Merit Systems Protection Board.
Make federal employees at-will employees, as some states have done.
Spell out circumstances when criminal referrals are appropriate.
Honestly, I have been open to any and all creative proposals for expediting the removal of recalcitrant employees. But the forces working against such efforts are formidable.
What We Are Up Against
To understand what we’re up against, my experience with federal employee tax delinquency is instructive.
When I was a freshman, I realized Democrats owned all the levers of power at that time. I was elected in 2008—the same time as President Barack Obama. That was a wave election for Democrats. So, in an effort to find common ground, I went back and looked through the pieces of legislation Obama had sponsored during the very brief time he was a U.S. senator. Guess what? I found one that I actually really liked. His S. 2519 was the Contracting and Tax Accountability Act. The bill prohibited the awarding of contracts or grants to entities with seriously delinquent tax debt.
I thought it was a good idea. But I tweaked it before I introduced a similar bill in the House. I took the same idea Democrats loved when Senator Obama introduced it and I applied it to the federal workforce.
Each year, there is a report that comes out from the IRS. It highlights the nearly 100,000 federal workers who owe nearly $1 billion ($962 million in 2008) in taxes. When retirees and military are included, there are more than 276,000 people who owe $3 billion. The IRS was able to fire federal employees who didn’t pay their taxes, but no one else could. The IRS was embarrassed when statistics indicated the high number of IRS employees who did not pay their taxes. Congress altered the law so IRS employees could be fired for not paying their taxes. A few years later, they became the most compliant agency. Imagine that . . . change the consequences and the compliance changed dramatically.
On March 3, 2010, I introduced HR 4735, which would terminate the employment of current federal employees and prohibit the hiring of future federal employees who have a “seriously delinquent tax debt.” That bill did not address contractors, as Senator Obama’s had.
Federal employees are treated quite well by taxpayers:
Job Security: Federal employees enjoy tremendous job security. Since 2000, executive branch civilian full-time equivalent (FTE) employment, excluding the U.S. Postal Service, has increased from 1.89 million to 2.18 million, or 15 percent. Private sector employment decreased 3 percent, from 110.2 million to 107.1 million. Source: Bureau of Labor Statistics establishment data, table B-1, seasonally adjusted
Wages: From December 2007 to June 2009, the number of federal employees earning more than $100,000 increased 46 percent while the number of federal employees making more than $150,000 more than doubled. During the same time period, federal salaries increased 6.6 percent while private sector and state-local government employee salaries increased only 3.9 percent. Source: USA Today based on data from Bureau of Labor Statistics and Office of Personnel Management, December 11, 2009
Turnover Rate: Federal employee turnover rate—including layoffs, discharges, and quits—is 60 percent lower than the private sector average. Source: Bureau of Labor Statistics Job Openings and Labor Turnover Survey (JOLTS) data from 2000 to 2009
If at First You Don’t Succeed . . .
I tried again in the 112th Congress. I submitted an op-ed to the Daily Caller in an attempt to build support for the federal employee bill. A few months later, in January 2012, the IRS released a new Federal Employee/Retiree Delinquency Initiative (FERDI) report showing even higher rates of tax delinquency among federal employees. Now there were 98,000 federal employees who owed more than $1.034 billion in unpaid taxes from 2010—a 3 percent increase. And while the number of tax delinquent federal employees remained fairly constant, the amount owed increased 72 percent.
This time I introduced two bills—one for federal employees and a second that would apply to government contractors as Senator Obama’s bill had. These bills were introduced simultaneously (numbered HR 828 and HR 829 that year). I was actually able to get a Democrat to cosponsor the contractor bill, my House Oversight colleague Representative Jackie Speier of California.
A GAO report showed federal contractors owed $5 billion in unpaid federal taxes. If you’re a company competing for a government grant or contract and you don’t pay taxes, guess what? You’re probably going to be able to undercut your competition. It’s not a fair fight!
There are a lot of ways to make a business profitable when you engage in fraud. But why should government grants and contracts go to companies that aren’t paying taxes? If you have a history of doing this, then you should not be eligible to win a contract.
This time both bills were marked up in committee. The contractor bill passed unanimously. Not so for the federal employee bill. In markup, Democrats argued the federal employee bill was purely symbolic and unnecessary.
Firing federal employees is difficult, but I tried to craft the legislation to allow management to fire those who were tax delinquent. The bill said if you were working with the IRS and had a plan to repay the past-due taxes, you were not in jeopardy of losing your job. If you were contesting the obligations that the IRS thought you had, then again you weren’t going to be subject to discipline and departure. This was narrowly tailored to those who just don’t pay.
In response, Democrats argued that people need a job if they’re going to pay taxes. I would respond, “But they’re not paying their taxes!” In circles we went, around and around, time and time again, with Representative Steve Lynch of Massachusetts and Representative Lacy Clay of Missouri doing all they could to make the argument in favor of federal employees who were tax delinquents.
The final report from the committee markup on the bill concluded with a minority note from ranking member Cummings that read: “All federal workers should pay their taxes. The Committee’s efforts and energy would be better spent, however, by focusing on measures to strengthen the federal civil service and improve the efficiency and effectiveness of the federal government rather than by making symbolic gestures intended to perpetuate a negative image of the federal workforce.”
A month later, the bill was brought to the House floor, where it passed, 263–114. As often happened during Senate Majority Leader Harry Reid’s tenure, the Senate refused to consider the bill and it never became law.
A New Strategy
As I prepared to introduce the federal employee tax delinquency bill for the third time, I prepared a new strategy and separated the discussion on the two bills. They would be considered separately this time.
The Democrats loved it. Everybody saw the wisdom. Everybody thought that was the smart vote. Of course! Why should we give contractors money if they aren’t paying their taxes? It made great sense and flew through committee.
Then I took the exact same principles—bent over backward even more to help them out. No way, no how, were the Democrats going to support anything that would dismantle the Deep State. It was an incredible, vivid double standard.
Democrats supported the contractor bill (renumbered for the 113th Congress as HR 882) but objected to the federal employee bill (now HR 249).
Of course, with Republicans’ pathetic messaging machine, nobody ever heard anything about it. It was such a classic example of a missed opportunity. There are too many Republicans who don’t want to rock the boat with federal employees.
Put the Merit Back in the Merit System
The second part of restoring accountability is rewarding merit.
A 2016 GAO report found 99 percent of federal employees are rated “fully successful” or better. The ratings are meaningless when everyone is supposedly above average.
In business, you get rewarded for not only taking risks, but also producing. You have to actually produce—do things. There will be all these tired arguments that government is different than business. But there are still metrics you
can put in place for good customer service.
At a minimum, we should ensure that those accused of serious wrongdoing are ineligible for bonuses. Again, this should be a no-brainer. But it doesn’t work that way. The IRS’s Lois Lerner was getting 25 percent of her salary in bonuses each year, including the years she was under investigation. She received $129,000 in bonuses between 2010 and 2013, according to the Washington Free Beacon. For what merit was she being rewarded? Showing up to work? Undermining conservative political groups?
The Heritage Foundation indicates that “[m]anagers must currently develop extensive Performance Improvement Plans (PIPs) for the employees to whom they do not award step increases. These PIPs are very time-consuming. Employees can also appeal managers’ decisions to deny them a step increase through union grievances or the Merit Systems Protection Board, and ultimately through the court system. These prospects strongly encourage federal managers to give everyone a scheduled WIGI (within grade increase), irrespective of performance. Congress should not make giving everyone a raise the only sensible option for federal managers.”
According to the Office of Personnel Management (OPM), in 2014 seven out of every ten federal employees got a cash bonus! It cost taxpayers $1.2 billion. Your government is working that well!
A Better Model
The opposite is true on Capitol Hill, where a younger workforce spends a few years on the Hill and then departs for the real world.
I once read a management book called It’s Not the Big That Eat the Small . . . It’s the Fast That Eat the Slow. One of its basic premises is that you get in, serve, and then move on. I believe in that. I have lived that. It is one of the reasons I left Congress after eight and a half years.
The Deep State Page 18
