Holding Civil Servants Accountable: Merit, Fealty and the U.S. Civil Service at a Crossroads

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Jos Raadschelders & Ronald Sanders    
August 12, 2024     

In our uniquely American democracy, career public servants at every level of government are hired, retained, paid and promoted based on their merit; that is, their qualifications, experience and expertise, typically described in both general and job-specific terms. That principle may be under fire, and ironically, those in its crosshairs may be its only hope.

Merit has governed the U.S. civil service for almost 150 years. The career civil servants appointed under that principle are accountable first to the rule of law (the laws that authorize, fund and govern their actions) and second—and more immediately—their elected or appointed political superiors. The latter is a function of a hierarchical organizational structure and is by no means unique to public agencies, but it is there that we want to focus this piece because in a democracy, those two things can be (and of late, too often are) in conflict.

Because of this dual accountability, civil servants in a democracy ultimately are held accountable to both the citizens they serve—largely but not exclusively via the laws passed by a duly elected legislature—and the lawful orders given by their hierarchical (typically democratically elected or politically appointed) superiors. To be sure, there is an inherent tension between public administrators and the politicians who oversee their actions, but on balance, that tension is healthy. When it works, it leads to accountability for both career bureaucrats and their democratically elected hierarchy.

When that tension is out of balance—overweighted to one side or the other—bad things can happen. Thus, an overtly politicized bureaucracy may be too responsive to a leader, or an overprotected, insulated bureaucracy may not be responsive enough. And career public servants are squarely in the middle…in the crosshairs!

Current Events and an Historical Context

This tension is playing out as we speak, with at least one candidate for the U.S. presidency ready to resurrect what can only be described as the “old” spoils system, potentially substituting political fealty for merit as the basis for hiring, retaining, paying and promoting many civil servants, especially those at senior, policymaking or policy-shaping levels. That populist bent is not unique to Washington, DC. It also has been playing out at every level of American government for some time, between mayors and city managers and staffs; county administrators and elected commissions; governors and officials in state bureaucracies; and the like.

Because of this, U.S. public administration practitioners feel this tension every day and do everything they can to resist it—and, while theirs is by no means an easy position to be in, it could be worse. In past, and even in many contemporary systems—that is, less democratic, more authoritarian and political ones—those in power are supported by bureaucrats hired and retained based on their political fealty, with those bureaucrats expected to be unquestioningly loyal to the leader, no matter what that leader says or does. If or when they cannot (or will not) do the leader’s bidding, they simply can be let go, or in some extreme cases—even in the 21^st century—killed.

Unfortunately, other than the “killing” part, this sounds all too familiar to U.S. public administrators. They face an increasingly populist American political landscape and an apathetic citizenry that takes much of what they do for granted—not to mention a spate of recent ultraconservative U.S. Supreme Court decisions that dramatically diminish the power of career public administrators. One has to wonder whether America is heading down a more authoritarian path. Indeed, that path is typified by the Heritage Foundation’s Project 2025, which (among other things) would resurrect the Trump administration’s efforts to politicize the federal bureaucracy by substituting partisan fealty for merit, all in the name of greater policy accountability.

At least that is the theory. But while an election is still to be held this November—one that implicitly includes a referendum on “unelected bureaucrats” and their allegedly unfettered power—it creates a current dilemma for public administration practitioners. For in a merit-based bureaucracy established by and in support of a democratically elected government, it is clearly more challenging to hold career civil servants accountable, especially since they are deliberately insulated from overt political manipulation in the name of keeping them impartial.

Deep State or the Public Good?

But in a democracy, popularly elected and politically appointed officeholders must also be able to expect that civil servants will serve their administration faithfully—after all, it is the people that gave them power over those bureaucrats in the first place. Thus, the inherent tension we spoke of earlier. Not the classic (and largely discredited) Wilsonian dichotomy of old, but a healthy and natural tension between democratic politics and apolitical administration, with their respective, largely congruent interests in the balance. And at a tactical level, it has given rise to questions about how to best hold career civil servants accountable on a day-to-day basis, especially in senior ranks, where top bureaucrats must deal with political appointees and policies every day.

The tension (and the challenge) of which we speak is by no means unique to the federal civil service. But as in all things, a federal “solution” will likely trickle down to lower levels of the U.S. government, influencing them with potentially detrimental effect. Add to that the confusion and chaos engendered by the U.S. Supreme Court in recently overturning the long-held Chevron deference doctrine, as well as its ruling on presidential immunity, and public administrators are left with resignation and puzzled looks.

The Ultimate Accountability.

So, how are civil servants to be held accountable? Should they be hired and fired on the basis of merit or should it hinge on their political loyalty? Or a bit of both? And what happens when the two are in conflict. Or, at a more practical level, what happens when a political superior tells a civil servant to do something that, while lawful, may be at odds with the latter’s expertise or conscience?

Hierarchy always has served as the “escape valve” in that system, allowing for a rough parity between the ballot box and the superior-subordinate chain of command. A political superior can always give a career civil servant a lawful, direct order to implement a particular policy, assuming, of course, that the policy itself is also otherwise lawful. That order should come only after the civil servant has been asked for and provided his or her best policy and practical advice. If the order and its underlying policy are lawful, the civil servant must comply or leave. That is how civil servants are held accountable in our democracy.

If a policy fails to live up to its political expectations, the politician also is held accountable in the voting booth. That is how the inherent tension in our system is resolved: with a politician giving a civil servant a direct, unambiguous order and suffering the political consequences of that order later. At least, that is the theory.

If only it were so simple! In today’s world, the “chain of accountability” can be clouded by all kinds of mitigating and exaggerating factors, both external and internal—everything from disinformation and “fake news” promulgated via AI-fueled, unregulated social media to arcane complexities in procedural due process that frustrate, delay and obfuscate workplace justice.

Accountability in Theory and Practice

In our albeit-biased view, merit-based accountability always should prevail as an integral component of a politically neutral, impartial civil service. After all, that is what civil servants were hired to do, at least before the Chevron deference doctrine became moot. But we also argue that today (at least at the federal level), that accountability has become too diluted in an overly complex, mystifying accountability system that protects even the most intransigent of civil servants; a system in which underperforming career civil servants can use otherwise legitimate (and well-intentioned) protections to shield themselves from accountability.

Indeed, large-scale bureaucracy as we have come to know it (especially the kind found in the public sector) is, historically speaking, a very recent phenomenon. It was not until the second part of the nineteenth century that bureaucracies started to grow in terms of personnel size and scope and range of services, typically in response to the complexities of modern society. Even then, around the turn of the last century, some pundits worried about this unprecedented bureaucratic growth, even as the world around them grew more complex. Would that complexity be a threat to, perhaps even overshadow, democracy, as scholar Max Weber feared? Would it be paralyzed by its own unfathomable rules and red tape, as novelist Frans Kafka pictured? Would bureaucrats be more interested in their own careers and the size of their staff than serving the public at large, as composer Erik Satie’s Sonatine Bureaucratique suggested?

While none of these fears or expectations have come true, it is only because at a day-to-day, operational level, public administrators have remained individually and institutionally vigilant to the excesses and evils of the bureaucracies they lead. Indeed, if anything, bureaucracy—absent its most pejorative connotations—has proven in the 20th and 21^st centuries to serve as a safeguard of democracy, as foreseen by Georg Hegel in his 1820 Philosophy of Right.

It All Comes Down to Individual Conscience

Thus, studies have shown that the vast majority of career civil servants at the local, state and federal level are intrinsically motivated, there to serve the “public good” (as manifested by both laws and the lawful orders of their superiors) and not their own ends.

Clearly, there are bad apples. There are in any public, nonprofit or private bureaucracy of any size and complexity. But while the statistics are ambiguous in that regard, they also make it clear that as far as the U.S. public sector is concerned, the bulk of career civil servants are motivated by a selfless public service ethos and do an admirable job managing the dynamics between citizens, laws and regulations, elected legislatures, and hierarchical political superiors. It is as John Dewey wrote in The Public and Its Problems: “The state is as its officials are.” (1927, 69), and in the case of the United States, the state and those who lead it are, on balance, “good.”

While it is all well and good to agree with Dewey, unfortunately, we do not have an elaborate set of institutional arrangements to safeguard the system. The American civil service, especially at the federal level, is not really described in the U.S. Constitution and has come into existence largely in response to the complexities of modern (that is, post-19^th century) government. Given that, is it really the case that the character and conduct of individual public servants—elected, appointed and employed—will determine a state’s legitimacy, rather than that institutional framework? Is it the case that given those relatively vague institutional arrangements, the efforts of some individuals to behave outside the customs and norms of the democratic polity can subvert our experiment in large-scale democracy?

The answer to both questions is yes, which means public administrators must first, last and always depend on their conscience—their core values—to do the right thing.

In light of the emergence of electoral victories of right-wing parties in many democracies—and the potential for a similar outcome in the United States this fall—it seems that the vacuum left by institutional arrangements like the U.S. Constitution are problematic. After all, it turns out that they can be changed too easily, at least according to the U.S. Supreme Court. But they also present a responsibility and an opportunity for individual public administration practitioners at all levels.

A Cloudy Past and Uncertain Future

That is certainly the case in the American civil service, which has come under conservative attack based mainly on anecdotal (but no less real) evidence. According to conservatives and populists, the power of unelected bureaucrats has become suspect, perhaps much more so in the United States than in other Western democracies, given our American traditions. But it is only since the 1950s that American federal civil servants have become overtly and publicly distrusted by many elected officeholders.

What started with Senator Joseph McCarthy’s efforts to reveal alleged Communist infiltration among senior civil servants in the Eisenhower administration was continued in the infamous Malek Manual of the Nixon administration, not to mention a growing “credibility gap” between public (that is, official government) pronouncements and reality. When you add the Carter Civil Service Reform Act (1978) and Reagan’s “government is the problem, not the solution,” it is no wonder that distrust of public officials continues to rise.

This culminated in Trump’s executive order on October 23, 2020, which established a new Schedule F for the federal civil service that would allow career civil servants to be reassigned or fired much more easily for arbitrary, non-merit reasons. Through that order, Trump hoped to replace as many as 50,000 career civil servants with people loyal to him and his policies. It was rescinded promptly by President Biden shortly after taking office. Democratic legislation introduced in Congress in 2022 and 2023 to permanently bar such attempts failed to pass and become law, which means Schedule F stands to be resurrected if Trump wins a second term, as part of the Heritage Foundation’s Project 2025.

At least, that is the premise of it. As a practical matter, it would be an impossible task to replace a merit-based, apolitical career civil service (particularly at senior levels) with political loyalists, but the effort itself will cause considerable chaos.

That’s the bad news: Absent a permanent statutory bar, there is nothing in America’s Constitutional framework that would prevent a president of either political party from replacing all or part of a merit-based civil service with one characterized by political fealty to ensure his or her interests were protected. Frankly, it is astonishing to contemplate an American president with the kind of authority and (perhaps) reverence that Europeans once had for their monarchs.

However, we believe—and we hope and assume our readers do as well—that the United States needs a politically impartial, merit-based career civil service as an implicit part of the “checks and balances” that underly our Constitutional system. Apolitical civil servants employed on the basis of their merit—that is, their knowledge and expertise—and, further, mandated by law to be politically neutral and non-partisan, can best interpret and implement the increasingly complex and often ambiguous policies enacted on behalf of the American people by legislatures at every level of government. That is something the judiciary will learn painfully in the aftermath of the Supreme Court’s recent reversal of the Chevron deference doctrine in Relentless v. Department of Commerce and its companion opinions.

Perhaps to the nostalgic chagrin of many, the world continues to become more and more complex, as do the responses to that complexity from government institutions. As smart as they may be, judges will not be able to make sense of proposed solutions to that complexity in litigation. It will be up to individual public administrators to do so, largely because they spend their professional lives immersed in that complexity, issue by issue by issue.

Thus, there is no substitute for the “merit” found in the consciences of individual public administrators, which enables them to focus on the needs of the people (again, through their laws, even those that cede authority to public administrators to interpret and apply them). A loyalist civil service, based on political fealty, means there is a good chance actions will be taken that will please the sometimes-venal political leadership, whether it benefits the public good or not. But given the absence of any sort of explicit Constitutional sanction for a merit-based civil service, its accountability ultimately comes down to the actions (and the consciences) of individual public servants, both elected and appointed. In other words, us.

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Author: Jos C. N. Raadschelders is professor and faculty director of professional development at the John Glenn College of Public Affairs in the Ohio State University. He is a fellow of the National Academy of Public Administration. He is co-editor in chief of Public Administration Review. His research interests include the position and role of government and democracy in society, comparative civil service systems and the history of government. He can be reached at [email protected].

Author: Ron Sanders, currently a member of the American Society for Public Administration’s National Council, is a fellow of the National Academy of Public Administration. He has spent more than 20 years as a career member of the U.S. government’s Senior Executive Service (SES) and served as the presidentially appointed chair of the Federal Salary Council; vice president/fellow at Booz Allen Hamilton; director of the University of South Florida’s School of Public Affairs; and staff director for the Florida Center for Cybersecurity. He can be reached at [email protected]                                          

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