TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Tuesday, January 2, 2018

The IRS Scandal, Day 1699: Lois Lerner And Civil Service Reform

IRS Logo 2Wall Street Journal op-ed:  A Big, Beautiful Trump 2018 Issue, by Kimberley A. Strassel:

President Trump is on the hunt for a 2018 issue—a strong follow-up to his tax-cut victory that will motivate voters and gain bipartisan support. Democrats are pushing for an infrastructure bill, inviting the president to spend with them. House GOP leaders are mulling entitlement reform—a noble goal, if unlikely in a midterm cycle.

Fortunately for the president, there’s a better idea out there that’s already a Trump theme. It’s also a sure winner with the public, so Republicans ought to be able to pressure Democrats to join.

Let 2018 be the year of civil-service reform—a root-and-branch overhaul of the government itself. Call it Operation Drain the Swamp. ...

We live in an administrative state, run by a left-leaning, self-interested governing class that is actively hostile to any president with a deregulatory or reform agenda.

It’s Lois Lerner, the IRS official who used her powers to silence conservative nonprofits. ...

More broadly, it is a federal workforce whose pay and benefits are completely out of whack with the private sector. ...

Civil-service reform’s bipartisan appeal means it has a shot in the Senate. The Chuck Schumers and Elizabeth Warrens will fight for their federal union buddies. But will Democrats like Jon Tester, Claire McCaskill, Joe Manchin and Joe Donnelly —who represent conservative or right-to-work states—go to bat for the likes of Lois Lerner?

https://taxprof.typepad.com/taxprof_blog/2018/01/the-irs-scandal-day-1699-lois-lerner-and-civil-service-reform.html

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Comments

The Dems will never support civil service reform. The swamp is too deep and there are too many GS-14s making way too much money to fix broken windows.

Posted by: Hox | Jan 2, 2018 8:13:58 AM

Trump has to realize that the only way to defeat the civil service is by vastly expanding the civil service budget. He has to do that to hire new, nonpolitical people, since he can't fire the old ones, and he can't rely on them to undo what they've done. It's like court-packing, but legit, to double the size of the IRS work force and then send the old half to North Dakota.

Posted by: Eric Rasmusen | Jan 2, 2018 8:19:46 AM

Step one, decertify all government employee unions and move on from there. You'll note, there wasn't one whistleblower in any government agency, during the Obama era, about all that we know was going on, not one. Why? Because they're union and they're Democrats, simple as that.

Posted by: bflat879 | Jan 2, 2018 11:11:33 AM

"Step one, decertify all government employee unions and move on from there."

I'd be content with just that single reform. You'll see a lot of turnover in just a few years. I recall a poll of federal workers before the election. Some giant number 1/4 or 1/3, said they'd quit if Trump was elected. Of course, nobody in the bureaucracy expected that to happen.

So, still waiting for the deadwood to get the heave-ho...

Posted by: MM | Jan 2, 2018 7:16:23 PM

1. Have nearly all federal civilian positions filled by TIMELY recruitment and promotion examinations. Strip the federal courts of the franchise to second-guess civil service commissions in pursuit of the law professorate's diversity shtick. Paper-and-pencil exam, and let the chips fall where they may.

2. Create a federal mediation service, a federal arbitration service, and a federal ombudsman to assess different sorts of complaints contra federal employees.

3. Grant supervisors a franchise to refer any of their staff to rapid-process disciplinary assessments conducted by a federal arbitrator or panel of arbitrators.

4. Extend to any three persons in a federal employee's chain of command a franchise to dismiss that employee at will. Three signatures and he's out. Permissible reason courtesy Martha Stewart: "you just don't fit here".

5. However, allow employees to file a grievance with an arbitrator or panel of arbitrators. Such a filing would neither delay nor reverse the employee's dismissal. The substance of any such grievance would be that the supervisors in question fired the employee for one of six or seven impermissible reasons. You'd have a two stage process where the dismissed employee could present evidence meeting some threshold and then an adjudicatory hearing where he must prove his claim by a preponderance of the evidence. If his claim is sustained, his legal expenses are paid according to a standard schedule of fees and he receives a generous indemnity.

6. Should such a claim be sustained, the matter is then referred to an ombudsman to bring charges contra the supervisors. If the arbitrators rule against the supervisors, they are terminated and debarred from federal employment for six years. Again, the burden of proof is on the party contending the dismissal was invalid.

7. Limit the role of public employee unions to that of voluntary mutual aid society: insurance brokerage, credit union, and labor lawyers on retainer.

8. Fix mean compensation per FTE at 110% of mean compensation per worker throughout the economy as a whole. Debar any single employee from receiving compensation in excess of the 96th percentile of the economy as a whole bar through a cumbersome procedure which requires a special 1 year contract and the vote of a federal commission after a public hearing and a period for public comment. Make it the law: there will be NO collective bargaining over compensation OR working conditions.

9. Switch to defined contribution retirement programs.

10. Finance fringes from a % assessment on all federal employees, with no 'employers contribution'. Cross subsidy would run from high-salaried to low salaried employees, not from the general public to public employees. Fringes would be maintained in actuarially sound condition by have a large deductible, adjusted annually.

11. Provide for certain categories of employee to earn early retirement credits: (1) military, (2) uniformed police and fire fighters, (3) construction workers. And that's it. Everyone else retires at 66 or retires when the Social Security Administration is satisfied they qualify as disabled.

12. Allow for a class of confidential employees not recruited from competitive civil service exams. Instead, they would be hired from a guild pool which they enter by earning a passing grade on an examination. Such confidential employees would be terminable at will, but might be able to sue their quondam employer for tortious activity on the job. (See Judge Kozinski).

13. Grant to the President a budget of patronage employees who have very spare qualifications (U.S. Citizen, pass background check), and allow him to allocate posts among departments and stand alone agencies per his discretion. These would be terminable at will, but, again, it would be possible for employees to sue for torts on the job.

14. Limit advice and consent to Presidential appointments outside the executive branch, to ambassadors as required by the Constitution, and to a select set of about 350 federal employees. Devolve the right of advice and consent for U.S. Attorneys and for federal district judges to the state legislatures. Have ad hoc committees of senators picked by lot hold confirmation hearings for ambassadors, federal circuit judges, specialty federal trial judges, and trustees (rather than having the Senate Judiciary Committee and the Senate Foreign Relations Committee acting as bottlenecks).

Posted by: Art Deco | Jan 3, 2018 2:42:06 PM