One would think we could all agree that foreign spies and domestic crooks are not good for government employment and that a universally accepted and fair methodology for keeping them out is essential to good administration.
Unfortunately, the Biden administration has just now proposed a major new regulation called “OPM Suitability and Fitness Vetting Proposal,” which could dramatically politicize the whole civil service employment vetting process.
Back in the 1950s, Americans were horrified to discover that the U.S. government had been infiltrated by its Cold War enemies. They were burrowed into all levels of its civil service bureaucracy, especially the top, first dramatically and politically exposed by Sen. Joseph McCarthy but later secretly roused by the efforts of the president himself, Harry S. Truman.
The new Biden changes would add political harm to administrative mischief.
Recognizing that effective testing and vetting for suitability and security of employees in critical government positions was essential to national defense and for interpreting and enforcing law, Truman surreptitiously ordered a review of the matter. Ultimately the lead personnel agency — now called the U.S. Office of Personnel Management (OPM) — was put in charge of devising and managing an independent employment application process, with initial and follow-up background investigations to ensure employee suitability for holding U.S. government employment.
Background investigations were placed within OPM’s predecessor agency for a sound reason. OPM had no programmatic relationship to line government responsibilities like military or legal operations, so it could look objectively at employees from the outside. Unfortunately, it did not always take such responsibilities seriously. They were expensive for agency budgets, and, in government, there is always the temptation to play politics — or worse.
The Biden administration’s recent proposal is not the first time that investigations have become a political and administrative football passed between a neutral but often weak enforcer OPM — against big agency self-interests and Office of Management and Budget (OMB) priorities — and congressional and White House politics. When I became President Ronald Reagan’s OPM director in 1981, one of my early discoveries was that the Department of Defense was not performing the required follow-up background reinvestigations. It took revelations of spying and my appealing to the secretary of defense himself to reverse the bureaucratic interests below him and restore reinvestigations.
Over the years, administrative errors have often led to a superficial political rearrangement of deck chairs. In the wake of a 2015 revelation that the Chinese had hacked secret personnel files, the Barack Obama White House responded by announcing the creation of a new National Background Investigations Bureau. It would report to the OPM director, who answered to the president, but added additional bureaucracy in the creation of the Department of Defense’s Chief Information Office, which would handle security product design, and the Defense Information Systems Agency, which would oversee actual investigative operations.
This was on top of earlier irregularities at Defense under President George W. Bush that led to investigations being wholly transferred from the DOD to the OPM. Indeed, Republicans and the DOD itself opposed the Obama plan, and the House Armed Services Committee later even attempted to turn investigations back to the OPM under President Donald Trump. But the OMB staff threatened a presidential veto (undoubtedly without his knowledge), and the committee proposal was withdrawn, today leaving the DOD responsible for the Investigations Bureau and security policy (other than that of intelligence agencies) and the OPM in charge of suitability policy.
The new Biden changes would add political harm to administrative mischief. They would properly limit any policy changes to competitive and some excepted civil service employees and contractors, and they would not cover political appointees in the executive, noncareer senior executive, or policymaking excepted services. But it would eliminate the mandatory five-year reinvestigation and substitute a “continuous review” for low/moderate- and high-level position designations. No reinvestigation intervals are set in the proposal, so “continuous” could mean that there might be no actual reinvestigation, relying on informal observation by superiors as at the old DOD rather than a set yearly requirement.
The most radical and controversial proposal, however, is that the OPM would replace political suitability’s Factor 7 with four new disqualifying political factors. There has long been a simple criterion for finding a person politically unsuitable for federal employment: “Knowing and willful engagement in acts or activities designed to overthrow the U.S. Government by force.” This single, straightforward, objective political principle would be replaced by:
- Knowing engagement in acts or activities with the purpose of overthrowing Federal, State, local, or tribal government.
- Acts of force, violence, intimidation, or coercion with the purpose of denying others the free exercise of their rights under the U.S. constitution or any state constitution.
- Attempting to indoctrinate others or to incite them to action in furtherance of illegal acts.
- Active membership or leadership in a group with knowledge of its unlawful aims, or participation in such a group with specific intent to further its unlawful aims.
And it adds a new violence factor:
[C]urrent … factors … do not convey the gravity of the risk posed by violent behavior, particularly for positions in, for example, law enforcement, patient care, childcare, and front-line customer service. For the purposes of this [new] regulation, the term “violent” means using or involving physical force intended to hurt, damage, or kill someone or something.
These are fundamental changes subject to all possible abuses. There is a reason why there has been only one political factor in the past — and why it was included first in the new proposal in a broader form. This one has long been an accepted disqualification for public service, limited to specific willful acts or activities with the clear criterion of overthrow by force. The new factors are subjective and vague: “intimidation,” “free exercise of their rights,” “furtherance,” “or leadership,” “knowledge of,” “participation,” “intent,” “aims,” “hurt,” “involving,” “something.”
The OPM has enough troubles without starting a woke civil war.
Indeed, the proposal itself suggests the difficulty of interpreting these vague terms by requiring that agencies must refer any possible actions on these matters to the OPM itself. This is better than multiple interpretations, but the OPM cannot convert subjective terms into objective factors either.
A former counsel for civil rights at the Department of Justice and senior fellow at the Heritage Foundation, Hans von Spakovsky responded to the OPM’s proposal in an article warning that “‘Conservatives Need Not Apply’ Under Biden Administration’s Proposed Hiring Rules.” He asks whether a government official might consider “opposition to liberal state abortion laws … an attempt to ‘indoctrinate others or to incite them to action in furtherance of illegal acts.’” Or could expressing opposition to “illegal immigration and illegal aliens in a sanctuary state” — or to “racial discrimination in admissions to state colleges and universities” — be viewed as “deny[ing] such illegal aliens or beneficiaries of discriminatory admissions policies ‘their rights’ under state law”?
The proposal specifically justifies the new factors by stating that they “better address risks” from “racially- or ethnically- motivated unlawful acts.” Why are more conservative police, nurses, parents, and clerks specifically targeted rather than bureaucrats, professionals, journalists, and lawyers? Might half of U.S. voters on the right be ineligible for government employment under these new rules?
The OPM has enough troubles without starting a woke civil war. It must back off from this monstrosity, and the public should tell it why.
Donald Devine is senior scholar at the Fund for American Studies. He is author of The Enduring Tension: Capitalism and the Moral Order, from Encounter Books; America’s Way Back: Reclaiming Freedom, Tradition, and Constitution; and Political Management of the Bureaucracy: A Guide to Reform and Control. He served as President Ronald Reagan’s director of the U.S. Office of Personnel Management during his first term and can be followed on Twitter @donalddevineco1.