How to institutionalize OPM reforms?

As readers know, I’ve argued that the Trump Office of Personnel Management, under the leadership of Director Scott Kupor, has been quietly (and not so quietly) reforming the federal civil service since it has been in office. Not all of those reforms have been good—one of the four mandatory essay questions that federal applicants now have to answer comes to mind—but most have been, and I worry that when a new president is elected (something that’s inevitable), we’ll throw out most of the “good” reforms along with the “bad and the ugly” stuff. 

And if we do, we’ll end up where we were in January of 2025...that is, with the same old, tired 1950’s era General Schedule. 

So, as a follow-up to my two-part Government Executive series on this (you can find Part 1 here and the second installment in the series here), I’d like to offer some ideas about preserving the good even as we get rid of the bad and the ugly.  

So far, this OPM has (mostly) done a lot of good

As much as many would deny it (especially in public), Kupor’s OPM has mostly done a lot of good in the few months it’s been in office. Improvements include a laser like focus on merit as a guiding principle of our civil service system, leveraging voluntary attrition (including incentives like the Deferred Resignation Program) to reduce the size and cost of the federal workforce, rationalizing the hiring and separation of probationary employees, streamlining the appellate and accountability system to curtail pro forma appeals that clog that system, and ensuring that political appointees are involved in the staffing of their federal agencies. 

There’s much more, everything from trying to cut the number of personnel data systems to having performance ratings that really matter in retention and Reduction in Force. I would even include abandoning the “old” Federal Employee Viewpoint Survey in favor of developing a more balanced, targeted instrument...even if that means a delay of a year or more (a couple of my colleagues have proposed an alternative that’s worth considering).  

Those are all good things, and they should be institutionalized regardless of who’s president. Indeed, one has to wonder why past OPMs didn’t take some of these issues head on, but that’s another matter.  

However, OPM has also proposed some bad (and some ugly) policies...

While Kupor’s OPM has been reforming our civil service system in a mostly positive way, in some cases it has also taken it two steps back...indeed, sometimes it has gone all the way back to our dark ages. 

For example, while the sad truth is that performance ratings of virtually all federal civil servants are grossly inflated and that needs to be addressed, forcing external quotas or limits on those ratings—something this OPM has proposed—is not the way to do so. 

Similarly, making sure that federal job applicants have to do some work—like writing essays about their personal experiences—is a good thing. But one of the essays that OPM now requires is way too partisan on its face. That’s bad, and it’s also ugly, and should just be eliminated.

Another example? This administration’s assault on federal unions and collective bargaining. It’s just unnecessary, not to mention inflammatory. I know firsthand that federal unions can be a pain, but if I ever thought that they or their proposals would impede national security, current law gave me mechanisms to contest them. And what this administration has done (or tried to do) to those civil servants who simply tried to implement the previous administration’s DEI efforts is not only ill-advised but also contrary to its own guidance. 

But it’s the overall attack on the civil service generally—the denigration of it and the disrespect of those who are part of it, most directly from the Oval Office—that has been really ugly. Indeed, it’s been over the top. Even worse, NONE of it has been necessary! But that’s for another commentary. 

Do we need a second 21st Century Civil Service Reform Act?   

So, there’s plenty to argue over, but as we do, I hope we are all willing to admit that this OPM has done some very good things that need to be preserved—and ironically, protected—from the vagaries of future politics. But how do we do so? In other words, how do we avoid throwing the baby out with the bathwater?  

One option is for OPM and the Trump Administration to propose a second, 21st Century Civil Service Reform Act this summer, almost five decades after the first one was enacted. At the very least, such legislation would force elected officials in the Executive Branch and the Congress, Republican and Democrat alike, to talk to one another, and at the risk of being pollyannish about it, they may even find their way to commit to a common core of civil service principles, ones that they know are necessary in their heart of hearts. 

Of course, there are all sorts of procedural questions antecedent to a vote on such legislation, but assuming willing White House and congressional leadership, they can be overcome. And I don’t care whether those leaders talk publicly or privately, so long as they talk. The alternative is more political rhetoric and political gridlock, and that’s just bad. 

Of course, that means that this White House may have to cede some control over this debate. Thus, if the Congress is asked to consider a 2.0 version of the Civil Service Reform Act, they’ll undoubtedly add all sorts of things—especially things advocated by their constituencies—so it will take some discipline to keep any final legislation on point. 

But as a practical matter, even with that loss of total control, this administration and its OPM will have more say over such legislation now than it will if (or more likely, when) one or both Houses of Congress flip, potentially as soon as 2026 midterm elections...so, my recommendation is to do it NOW, before then. Otherwise, all bets may be off. 

What about a comprehensive set of federal regulations as a fallback?     

To be sure, legislation is ideal, but it would take a lot of time that this administration may not have. So, if a legislative approach is too politically daunting, too time-consuming, and/or just plain unworkable, there’s always the regulatory route, something President Biden took when he repealed Schedule F and later, a few months before he left office, issued federal regulations that impeded its return—not stop it, but impede it. 

In other words, civil service regulations may act as a “speed bump” vs. a stop sign, but that may be better than nothing. 

So, short of bipartisan legislation, a regulatory package of reforms should be considered by OPM. That would take some time too, especially if done right, but given that virtually everything OPM has done to date—the good, the bad and the ugly—has been administrative in nature (that is, in the form of presidential memoranda, executive orders, letters, etc.), this too is an option. 

Thus, as a fallback to a bill, OPM could simply gather up all the “good” policy changes that it has promulgated, put them all together as a comprehensive regulatory package in the Federal Register, invite public comment and then just issue them as chapters in the Code of Federal Regulations.  

Indeed, I could argue that so long as those reforms deal with internal personnel matters (and they clearly do), OPM doesn’t even need to go the Federal Register route, but doing so doesn’t cost anything, other than time. Instead, it lets lots of different constituencies weigh in, and in this instance, that may be a good thing...venting doesn’t need to change the end result. 

But whether those regulations are substantive or instrumental, or some combination of both, they are options that could avoid “the baby and the bathwater” effect. And in my view, that makes them politically and practically viable. 

The politics of reform: reality vs. rhetoric

While I haven’t talked to that many legislators, especially on the Democratic side, I have discussed all this with their staffers, and among other things, we’ve all (Rs and Ds alike) commiserated over the fact that those few stalwarts in Congress who used to really care about the “health” of the nation’s civil service—legislators like Ted Stevens, Daniel Akaka and Daniel Inouye, John Glenn and George Voinovich in the Senate, and Frank Wolf, Tom Davis and others in the House—are no longer serving. 

The point is that we used to have a bipartisan group of elected officials—including those in the Executive Branch—who used to care about us. With all due respect, we don’t anymore, and I fear that those that could replace them are too cowed to do so, at least publicly.

What would it take to change that? I personally think asking the “traditional” civil service committees—the Senate’s Homeland Security and Governmental Affairs Committee and the Government Oversight and Reform Committee (or whatever it’s called these days) in the House—to focus on this is just too much. At the very least, it’s a distraction, NOT their primary concern. While it’s important (to me at least) it’s too mundane for them.