The Crusade Against Expertise Part II
How "bureausclerosis" set the stage for a conservative counter-revolution.
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As we saw in Part I, the political right has fought an enduring crusade aimed squarely at weakening the role of experts in the executive branch. In part, it’s an anti-elitist campaign based on the firm conviction that government’s experts ideologically lean to the left. Since the direct crusade to eliminate government programs has been profoundly unsuccessful, the right aims to kneecap government’s ability to carry out programs with which it disagrees. This is a huge shift from the days of Reaganism and the joke that wasn’t a joke: “The nine most terrifying words in the English language are ‘I’m from the Government, and I’m here to help.’”
The crusade from the right has been intentional and it’s picking up speed. But from the left has come a different campaign, one that is implicit and perhaps unintentional but nevertheless constitutes a crusade that’s weakened government’s pursuit of expertise. It takes the form of a gradual accretion of constraints that, since the end of World War II, has made the personnel system more rule-bound, to the point that obsession with process has crowded out the original goal of building an expert system.
The growing dominance of proceduralism in government has hardened the bureaucratic arteries into a raging case of bureauclerosis, which respected management guru Adrian Wooldridge says results in “managerial idiocy.” Philip Howard contends that the problem leads to “trained helplessness,” in which administrators might know how to solve problems but don’t take the chance because the system makes them more worried about getting clobbered for mistakes than about solving problems.
So we have a twin-edged problem: a movement from the right aimed at shrinking the power of experts and cutting the size and power of government; and a movement from the left aimed at directing how government builds its expertise but which has led, instead, to rampant proceduralism. After exploring the first edge of the sword in Part I, let me turn now to the second edge.
The bureausclerosis grew out of two very sensible laws enacted just after World War II. In 1946, Congress passed the Administrative Procedure Act as it took on the constitutional tangles that had nearly tripped up the New Deal. The law required agencies to provide the public with information about proposed rules and give it the chance to comment on them. It set up a standard process for issuing new rules, as well as trial-like hearings for adjudicating pending issues and penalizing those accused of violating the rules. Congress established judicial review for both rulemaking and adjudication, with the courts given the power to overrule regulatory actions that didn’t fit with the law or that were “arbitrary” or “capricious.” The APA thus expanded federal agencies’ power through legislative delegation and created a clear accountability process through judicial review. It was a clever tripartite process. (It was also the focus of the Supreme Court’s two big 2024 decisions, Loper Bright and Jarkesy, aimed at unwinding administrators’ power. In issuing rules, the Court held, regulators had to stick with the strict language of legislation. In reviewing violations, penalty-setting had to be left to the courts and the Seventh Amendment’s trial-by-jury.)
Then, in 1949, Congress passed the Classification Act, which standardized the government’s personnel system and expanded its reach. Personnel specialists assigned each government position a classification, including the skills required to perform its tasks. It then created a testing process to assess who best met those skill requirements. For example, the personnel process would define what an “accountant” was, what skills an accountant needed, and how applicants could demonstrate those skills, often through written tests. All “accountants” throughout the government would receive the same salary and benefits. The agency that was recruiting for an accountant position could hire from among the best applicants, typically by choosing from among the three top-scoring applicants (the “rule of three”). Employees received protection against political pressure in doing their jobs.
Thus, salary was based on position, not on the person. The system advanced the principles of equal pay for equal work; the protection of employees from dismissal; and hiring based on merit (which is why, of course, it’s more broadly known as the “merit system.”)
The APA gave administrators vast power. It told them how they had to regulate, but it did not tell them on what issues to promulgate rules and it certainly did not tell them how intrusive or costly their regulations ought to be. Their power came from the law, but Congress fell into an easy pattern of delegating the hard decisions to administrators, because legislators could not or would not resolve them on their own. During the “war on poverty” in the 1960s, for example, the law required local officials to offer those affected by the programs “maximum feasible participation” in decisions. Each of those words became the subject of enormous dispute, to the point that Daniel Patrick Moynihan contended that they led to “maximum feasible misunderstanding.”
In later years, the Clean Air Act granted EPA discretion to set air quality standards at a level “requisite” to protect public health. That inevitably led to endless court cases—and to the 1984 Chevron decision. In public health, meanwhile, Congress gave the FDA the responsibility for determining which medical devices and drugs were “safe” and “effective.” Congress, of course, was in no position to decide itself, drug by drug, but its broad delegation of power to the FDA led to more court battles and fierce political push-back by companies who believed that the agency had treated their inventions unfairly. Not only could Congress not resolve these questions on its own; delegation of big decisions to regulators allowed members of Congress to plant their flags on important puzzles without having to define clearly how they wanted them solved.
This power also generated enormous political heat on regulators. Federal judges got lots of extra work, and attorneys representing the competing sides generated vast piles of billable hours. (How else to explain the tremendous improvement of downtown Washington restaurants since the early 1970s?) One senior EPA administrator once told me, “We just assume that every regulation will be litigated, so we begin preparing for that in advance.” That led, in turn, to lots of defensive rulemaking, with more extensive explanations and requirements to minimize the legal target on new rules.
The broader the legislative agenda, the more big questions remained unanswered in law by members of Congress. They took a hit-and-run stance: legislate on broad goals and run away from the details. That led, in turn, to more rules attempting to answer them, more defensive rulemaking by agencies trying to reduce their exposure in anticipated court actions, and more interest groups seeking to shape federal policy in the courts. The resulting procedural chaos tended to constrain the power of government’s experts and increase the sclerosis of the rulemaking process. This fed the argument of critics like Philip Hamburger who contended that administrative law itself was unlawful, and it set the stage for the 2024 conservative counter-revolution against regulation.
Meanwhile, the federal personnel system developed its own sclerosis. The relatively straightforward hiring process detailed in the Classification Act became vastly more complicated. Public employee unions waded in to protect their members and to boost the case for feds to pay dues to protect them. While only about one-fourth of all federal employees belong to unions, these unions represent about half of all federal employees (because only half of employees whose offices are represented by unions are actually union members.) These unions tend to support Democratic candidates, which only fuels the ongoing Republican efforts to weaken unions, which in turn fuels the unions’ counter-attack. Union membership among all public sector workers is five times higher than in the private sector. For unions struggling to retain their political leverage, public sector unions have become far more important, because private sector union membership has dropped from 33 percent in the middle of the last century to just 6 percent today. The fight to retain the unions’ role in the federal government is thus embedded in a far larger battle.
The unions worked especially hard to protect the total number of jobs in the federal workforce and to prevent employees from being fired. Protections against dismissal were part of the Classification Act, but over time those protections grew into the lore that “it’s impossible to fire a federal employee,” an argument that the right uses when they compare government workers with the considerably less secure positions of private sector employees.
Research by David Lewis found that only about one-fourth of top federal managers surveyed in 2020 believed that their agency deals effectively with poor performers. Critics use numbers like these to make their point about impossible-to-remove feds. (Private sector managers believe that they do better at dealing with poor performers—but more than half of them report problems, too. It turns out that managing hard things is hard no matter where managers are managing.)
Comparing how many employees are dismissed for cause in the public versus the private sectors is impossible because no one keeps the numbers. The number of “separations”—exits from an organization because of retirement, layoffs, and firings—was 1.1 percent in the federal government in August 2024. The rates were not wildly different in roughly similar private sector industries, like finance (2.1 percent), health care and social assistance (2.7 percent), and IT (2.7 percent), especially after accounting for changes in the size and mission of private sector companies.
Moreover, the federal government’s own data shows that about 10,000-12,000 feds are terminated for reasons of discipline or performance each year. In a workforce of 2.2 million persons, that certainly isn’t a large number—just 0.005 percent. So removing poor performers isn’t impossible; but it is very hard.
Making sense of the federal merit system is complicated as well by the existence of so many hiring authorities. Federal agencies have more than 100 different hiring authorities at their disposal. They use only about 20. That means there is not just one merit system but scores of them. It’s hard for an outsider focused on accountability to understand exactly what’s happening.
This has fed the constant refrain from the right that we ought to run government more like the private sector, even though private sector managers often shy away from the tough decisions of managing their own poor performers. But the central argument is clear: it’s difficult to deal with poor performers in government; supervisors remove relatively few poor performers; rules in the system make it hard for managers to do so; and, over time, the defenses against removal have gotten thicker. Right-leaning reformers blame this squarely on the left, and they have a point.
Moreover, advocates, mainly from the left, have promoted a growing number of social policy goals in the selection of federal employees. These goals are universally admirable, but they share a common characteristic: they are unrelated to building the competence of the federal workforce. Indeed, they might actually erode it in important respects. Consider:
1. Veterans’ preference. In 1944, Congress voted to give returning veterans a special preference in federal hiring. There was widespread concern that the post-war economy wouldn’t be able to generate enough jobs to employ the vets, and no one wanted the vets to suffer a penalty for serving in the military. The act provided bonus points to vets, which in turn would nudge their applications for federal jobs ahead of other applicants with similar qualifications.
Veterans’ preference was a practice stretching back to the Revolutionary War, but the 1944 law both formalized and greatly expanded it. The law has generated enormous political support in the decades since, to the point that it is perhaps the most untouchable part of the federal civil service. It has proven remarkably effective in bringing vets into the federal government. Vets account for about 30 percent of all federal employees, even though they represent only about 6 percent of the U.S. population.
Veterans’ preference means that other qualified applicants often have no shot at federal jobs. Moreover, veterans tend to leave government sooner than non-veterans with similar qualifications: they are both less satisfied with their positions and resign at 1.6 times the rate of non-vets. Higher rates of turnover make it that much harder for agencies to build the expertise they need, while the preference system makes it that much harder to convince non-vets to apply for federal jobs. Still, despite the problems and many proposals for reform, there’s no sign that veterans’ preference is about to disappear.
2. Diversity. The 1978 Civil Service Reform Act made diversity an important criterion in federal hiring. About 40 percent of the federal workforce identifies as an ethnic or racial minority, far higher than the 24 percent of the total labor force. However, women remain overrepresented in the civil service, especially at the upper levels. Hispanics in the federal workforce hold only about 9 percent of federal jobs, compared with their share of 19 percent in the U.S. population.
The Trump administration in 2020 issued an executive order designed to undermine the campaign to increase diversity of the federal workforce. A few months later, the Biden administration reversed it. The battle continues.
Critics from the right complain that the rise of these social goals, coupled with the protections provided by civil service laws, have created a separate power center focused on undermining the goals of an elected conservative government. For people like the Heritage Foundation’s Kevin Roberts, it’s just one more example of the “weaponization of the federal government.”
The most fundamental point is that the straightforward proposition of old Progressives—that the federal government’s civil service system ought to focus squarely on finding the best and the brightest to work for the government—is thus under assault from multiple sides.
Apart from these important symbolic and political arguments, the cumulative changes in the personnel system and point-counterpoint ideological battles paper over the single most important issue with the civil service system: Proceduralism—an obsession with the system’s entry points—has become more important than its goals—bringing experts into government. This is certainly not to say that helping veterans or pursuing diversity doesn’t matter. It surely does. But when those goals undermine the system’s truly fundamental purpose—ensuring that government has the capacity to do what the people and their elected representatives want done—that is a genuine crisis.
The crusade advancing proceduralism comes mainly from the left. From the right, as I showed in Part I, comes the crusade to upset the pursuit of expertise and substitute the goal of political responsiveness. Is there any hope of shifting the debate back to basics?
The right has identified a genuine problem: the sclerotic processes inside the civil service system. The left has identified a genuine issue: the risks of political pressure on government’s experts. The left has its answer: defend the status quo against what it views as the dangers of Schedule F. The right has its four-pronged attack on the civil service. They don’t tend to agree on much of anything.
Let me be clear about my position in this debate. I am a raging moderate, which is a pretty lonely place. In my view, the right has identified the correct problem—the sclerotic processes that hogtie the current system. The left is battling against the proposals that the right has made, especially about Schedule F, but then it drifts back into a defense of an indefensible status quo. Meanwhile, government’s capacity to do what the people want done ebbs away, and that undermines the people’s trust in government. Things will only get worse as the demands of 21st century governance continue to mount—and as both sides drift farther from the system’s historic goals.
We need, therefore, a thoughtful strategy for creating a government that has the expertise to do what needs to be done while remaining accountable while it’s doing it. Government administrators need to be able to exercise discretion in applying their expertise—they know much more about the details of urgent problems than most of us do—but they also need to do so in sync with the officials elected to represent us, otherwise elections would have no meaning.
Performing this balancing act has always been a core function of the civil service. Here’s a strategy for doing it better in the 21st century:
Push the hierarchical system of accountability aside. It was great a hundred years ago, but it no longer describes either how government works or how we can hold it accountable. As Bill Eggers and I point out in Bridgebuilders, every real problem spills over organizational boundaries. There’s nothing that matters that any one organization, public or private, can control—it’s the Depression tale of building the Hoover Dam, on steroids. Government’s work increasingly happens through partnerships with its proxies and that just doesn’t fit the command-and-control approach.
Government desperately needs expertise—of two kinds. First, it needs substantive expertise, so policymakers can get enough information to steer the ship and to hold accountable the proxies who so often are on the oars. Second, it needs procedural expertise, so that government can build its capacity to serve as an orchestra conductor, ensuring that everyone who contributes to public policy plays in harmony.
Experts need the discretion to be experts. An old joke among government folks is that there are two ways to undermine a new government—to do nothing of what’s asked, and to do everything of what’s asked. Experts know the difference; most new policymakers don’t. Policymakers need to trust the experts enough to get what they need; experts need to trust policymakers enough to give them the unvarnished advice they need to keep out of trouble—and get things done. Otherwise, frictions and fissures develop, and the people aren’t served.
Results are what really matter. The people don’t much trust any part of government. They don’t think they get value for the hard-earned dollars they spend. They just want their problems to be solved. Both the right and the left tend to miss this message, and that’s only feeding distrust. Results are what matter.
We need to reform civil service by blending all (not just some) of these first four steps. Fundamental reform couldn’t be more urgent, but the basic solutions are pretty simple. Take the first four principles. Mix well. Serve.
This recipe needs a new lexicon. IT and AI offer enormous new potential for value added. AI, for example, can help government agencies zero-in on the skills they need in their workers, and then find them in a large pool of applicants. IT, in turn, can provide the basic language for connecting results with policy goals.
As Philip Howard has persuasively argued, the fear of administrative discretion has produced more rules that constrain the experts, as well as red tape that spools out by the mile. He recognizes that central government’s imperative is getting the people’s work done; that doing the people’s work requires expertise; and that tying experts in miles of red tape will only frustrate everyone. It also continues to distract everyone—the president, members of Congress, reporters, and the people—so that they lose sight of the need to produce results.
Originalism ought to guide everyone’s thinking, at least to this extent. In drafting the preamble to the Constitution, Gouverneur Morris wrote that our goal is “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” Those are pretty good objectives—they aim at results, not processes. They’re the kind of things we ought to seek if we want to be true to the government our Founders worked so hard to create.
Donald F. Kettl is Professor Emeritus and Former Dean of the University of Maryland School of Public Policy. He is the author, with William D. Eggers, of Bridgebuilders: How Government Can Transcend Boundaries to Solve Big Problems.
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