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Op-Ed | The Hill | November 18, 2020

GSA head's transition refusal a predictable consequence of too many political appointees

2020 Election/TransitionGovernment Capacity

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General Services Administration (GSA) Administrator Emily Murphy is often introduced as “obscure” or “little known.” Her new-found notoriety stems from her refusal to declare Joe Biden as the president-elect. This inaction blocks his team from meeting with senior agency personnel, even as Murphy herself looks for her next job. Murphy has drawn bipartisan condemnation for playing along with Trump’s assault on democracy. The condemnation should extend to the system that prioritizes rewarding political operatives like Murphy over any principles of merit, efficiency or meaningful accountability.

As someone who got her start in Republican politics during the Clinton impeachment, it’s unsurprising that Murphy is throwing in with party over country. What should be more surprising is that political loyalty is the main criterion to pick the leader of an agency that handles government contracts, office space and real estate.

This fact doesn’t draw attention because D.C. reporters are used to political appointees holding all the power in the executive branch. It’s a fact of D.C. life. Murphy’s intransigence is just the crowning example of the Trump administration’s reductio ad absurdem case for why this is an awful way to run the government. Like the Electoral College, this only in America institution has outlived its usefulness.

Once the Biden administration has settled into its executive offices, it shouldn’t just keep playing this game. Unlike the Electoral College, a less political civil service can be a fruitful source of bipartisan compromise without betraying any of the constituencies that helped get Biden elected. The ironically inclined can dub the reforms Murphy’s Law, as the GSA administrator embodies everything that’s wrong with the current system.

Political appointments don’t promote accountability

The presidency comes with about 4,000 political appointees. Their roles range from the top levels of agency leadership, to a cadre of program managers, to recently graduated special assistants and press shop staffers fresh off the campaign. The breadth of roles filled by appointees damages agency effectiveness, creates ample opportunity for corruption and maladministration, and serves as a stumbling block for a new administration.

Experts have long sounded the alarm about underqualified political appointees leading the government. While senior officials may have experience in their agency’s field, the main qualification for many political positions is a campaign or Hill connection. Murphy became the GSA’s Chief Acquisition’s Officer, a senior management position, after three years of law practice. A more important qualification appears to have been her service on Republican Sen. Jim Talent’s staff.

Even appointees with expertise are often new to government. This creates a steep learning curve as they learn the interplay of policy with personnel, acquisitions, ethics and agency norms. With most appointees averaging about two years on the job, the whole process often starts over just as they are getting comfortable. This churn does real harm to effective government. Academic research shows that programs led by political appointees perform worse than those led by career managers.

This assumes, of course, that political appointees want the government to work for the people. Murphy’s time as the GSA Administrator provides ample evidence of how much damage appointees who want to subvert or corrupt the government can do. Her last turn in the public spotlight came when she held up the relocation of the FBI’s headquarters out of its decrepit downtown D.C. location. Despite denials, her evident motive was to protect the nearby Trump hotel from a potential competitor acquiring a site down the street. The GSA has also stonewalled both public and congressional inquiries about visitors using stays at the hotel, which sits on land the GSA manages, to curry favor with Trump.

Political appointees have opened the door to this kind of corruption and mismanagement across government. Appointees have manipulated COVID findings, subverted prosecution and delayed the mail, all to benefit Trump and his cronies. There’s no pretense about it. Trump’s Presidential Personnel Office has made it clear that their top criterion for appointees is loyalty. Dissatisfied with continued resistance, Trump recently issued an executive order creating a new class of political appointee. This Schedule F appointment would let him replace meddlesome civil servants like Anthony Fauci with loyalists. Instead of fostering responsiveness to the electorate, Trump’s political appointees are a clique accountable only to his greed.

Even as Biden draws his appointees from a population that (mostly) excludes the cartoonishly corrupt, political appointments will still slow their agenda. It will take months, if not years, to fill these positions, and many will not be filled at all. There are over 1,200 appointments that require Senate confirmation. Even if Democrats do flip the Senate in January, confirming each of these appointees will require thousands of hours of hearings and floor time. Despite working at the GSA since the spring and a friendly Senate, Murphy was not confirmed until December 2017. All of this will be even slower in a Senate potentially controlled by Mitch McConnell (R-Ky.). McConnell’s rejection of Senate norms further damages the idea that political appointments yield some sort of responsive control over the civil service.

Every Senate confirmation delay cascades through an agency. Since presidents typically give agency heads some latitude to pick their staff, many won’t start until after confirmation is assured. Political control norms have embedded these Schedule C appointees in many key agency decision points. Without them, the administration may stumble in the first few months, delaying Biden’s 100 day plan.

The civil service option

The Biden administration will need to tape Humpty Dumpty back together again, but it won’t stop future Trump’s from exploiting the same weaknesses. Even with a hostile Senate, protecting the civil service and the government can draw bipartisan support. Since most of the measures will immediately limit Biden’s power, Republicans may be amenable to accepting the cap.

First, Biden should ask Congress to put explicit limits on the president’s ability to create political appointee positions. No cap exists on the number of appointees or the roles they can fill. Trump’s Schedule F executive order shows just how dangerous this gap is. Biden should push for this number to be capped at the number of confirmed Senate appointees and tie their role to those appointees. This will give each agency leader an assistant or advisor, and protect the civil service from further political encroachment.

Second, Biden should push for the Senate to significantly reduce the number of Senate confirmed appointments. In many cases, the fourth or even fifth levels of an agency’s leadership are subject to Senate confirmation. The law should limit confirmation requirements to no deeper than a portion of an agency’s third echelon of leaders. Instead, all other leadership roles should be filled by civil servants.

It may seem unlikely that a Republican-held Senate would agree to give up their power to obstruct. But McConnell has agreed to reduce the number of confirmations in the past. And Biden is also giving up his power too. Indeed, if McConnell engages in maximalist obstruction, this can become the compromise approach, pitting McConnell against the civil service. As Biden’s team uncovers further evidence of malfeasance by Trump appointees, they can continue to bring pressure to cut out the rot by eliminating these political roles.

Biden can also use the Federal Vacancy Reform Act to appoint senior career leaders into vacancies left open by the Senate. Installing career leaders who have demonstrated their commitment to an agency’s mission will let the agency keep operating, thwarting attempts to shut it down.

Ideally, the heads of agencies with limited political salience like the GSA would also become career civil servants. The risk of agency capture is highest in such “obscure” agencies, and the benefits of increased presidential control are limited. Unfortunately, the Supreme Court’s overzealous appointments and removals case law creates uncertainty on which restrictions for appointing or removing an agency head are constitutional. If Biden’s legal team concludes the GSA head must be a presidential appointee, they can propose ways to incentivize appointing a civil servant, like expediting confirmation of senior civil servants and reinstating civil service status upon removal. Protections like this will help encourage apolitical appointments to these positions.

Although this approach looks like the kind of unilateral disarmament that has cost Democrats dearly in the past, it’s actually the opposite. The president can still move or remove the senior civil servants who would replace appointees. He just can’t do it based solely on personal loyalty. Meanwhile, the Trump administration has shown how effectively political appointees can be turned into a wrecking ball. It’s going to take a lot more effort for Biden’s appointees to clear the debris and rebuild. Murphy’s recalcitrance to start the transition may be designed to hide the extent of the administration’s incompetence on pandemic response, slowing down the process further. Cutting off this destructive cycle will stabilize the civil service and make government work better in the long run. That’s a policy win that will benefit both Democrats and the country.

2020 Election/TransitionGovernment Capacity

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