Federal Service and the Constitution: The Development of the Public Employment Relationship

233 Pages·2014·1.624 MB·English

by  David Rosenbloom

Federal Service and the Constitution
Public Management and Change Series
Beryl A. Radin, Series Editor
Editorial Board
Robert Agranoff, Michael Barzelay, Ann O’M. Bowman, H. George Frederickson,
William Gormley, Rosemary O’Leary, Norma Riccucci, and David H. Rosenbloom
Titles in the Series
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Accountability, Complexity, and Democratic Values Change in Environmental and Natural Resource
Beryl A. Radin Governance
Toddi A. Steelman
Charitable Choice at Work: Evaluating Faith-
Based Job Programs in the States Managing Disasters through Public–Private
Sheila Suess Kennedy and Wolfgang Bielefeld Partnerships
Ami J. Abou-bakr
China’s Sent-Down Generation: Public
Administration and the Legacies of Mao’s Managing within Networks: Adding Value to
Rustication Program
Public Organizations
Helena K. Rene
Robert Agranoff
Collaborating to Manage: A Primer for the Public
Measuring the Performance of the Hollow State
Sector
David G. Frederickson and H. George
Robert Agranoff
Frederickson
The Collaborative Public Manager: New Ideas for
Organizational Learning at NASA: The
the Twenty-first Century
Challenger and Columbia Accidents
Rosemary O’Leary and Lisa Blomgren
Julianne G. Mahler with Maureen Hogan
Bingham, Editors
Casamayou
The Dynamics of Performance Management:
Constructing Information and Reform Program Budgeting and the Performance
Donald P. Moynihan Movement: The Elusive Quest for Efficiency in
Government
Federal Management Reform in a World of William F. West
Contradictions
Beryl A. Radin Public Administration: Traditions of Inquiry and
Philosophies of Knowledge
The Future of Public Administration around the Norma M. Riccucci
World: The Minnowbrook Perspective
Rosemary O’Leary, David Van Slyke, and Public Values and Public Interest:
Soonhee Kim, Editors Counterbalancing Economic Individualism
Barry Bozeman
The Greening of the US Military: Environmental
Policy, National Security, and Organizational The Responsible Contract Manager:
Change Protecting the Public Interest in an
Robert F. Durant Outsourced World
Steven Cohen and William Eimicke
High-Stakes Reform: The Politics of Educational
Accountability Revisiting Waldo's Administrative State:
Kathryn A. McDermott Constancy and Change in Public
Administration
How Information Matters: Networks and Public David H. Rosenbloom and Howard E.
Policy Innovation McCurdy, Editors
Kathleen Hale
Work and the Welfare State: Street-Level
How Management Matters: Street-Level Organizations and Workfare Politics
Bureaucrats and Welfare Reform Evelyn Z. Brodkin and Gregory Marston,
Norma M. Riccucci Editors
Federal
Service and the
Constitution
The Development of the Public Employment
Relationship
Second Edition
David H. Rosenbloom
Georgetown University Press
Washington, DC
© 2014 Georgetown University Press. All rights
reserved. No part of this book may be reproduced or
utilized in any form or by any means, electronic or
mechanical, including photocopying and recording, or
by any information storage and retrieval system, without
permission in writing from the publisher.
Library of Congress Cataloging-in-Publication Data
Rosenbloom, David H., author .
Federal service and the constitution : the development
of the public employment relationship / David H.
Rosenbloom. — Second Edition.
pages cm. — (Public management and change
series)
Includes bibliographical references and index.
ISBN 978-1-62616-078-1 (pbk. : alk. paper)
1. Civil service—United States. 2. Constitutional
law—United States. I. Title.
KF5337.R65 2014
342.73'068—dc23
2013042534
Th is book is printed on acid-free paper meeting the
requirements of the American National Standard for
Permanence in Paper for Printed Library Materials.
20 19 18 17 16 15 14 9 8 7 6 5 4 3 2
First printing
Printed in the United States of America
Cover photo: Carol M. Highsmith’s America,
Library of Congress, Prints and Photographs Division
Map of Washington: Library of Congress, Prints &
Photographs Division, HABS DC, WASH, 612,
sheet 22 of 32
Cover design: Anne C. Kerns, Anne Likes Red, Inc.
Contents
Preface vii
Acknowledgments xi
1 The Public Employment Relationship 1
2 Development of the Public Employment Relationship,
1776–1829 25
3 The Spoils System and the Public Employment Relationship 43
4 Civil Service Reform and the Public Employment
Relationship 58
5 Political Neutrality 73
6 Equality of Access to Civil Service Positions 92
7 Loyalty and Security 111
8 Building the Public Service Model 129
9 The Public Employment Relationship Today: Toward Convergence
with the Private Sector? 158
Bibliography 189
Index 205
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Preface
This book is my first and, counting generously, my fortieth. There is some-
thing to tell about both. The first edition was mostly written in 1968 as a PhD dis-
sertation in political science at the University of Chicago. The nation’s culture war
was in full swing, and it was a turbulent time. The black liberation and women’s
liberation movements were challenging the status quo and calling for racial and
gender equality. The back-to-back assassinations of Martin Luther King Jr. and
Robert F. Kennedy in April and June, respectively, stunned the nation. The Demo-
cratic Party National Convention held in late August may be better remembered as
described in Norman Mailer’s Miami and the Siege of Chicago than for nominating
Hubert Humphrey and Edmund Muskie for president and vice president. Chaos
engulfed downtown Chicago as demonstrations by ten thousand hippies, yippies,
anti–Vietnam War protesters, and others were countered with brutal responses by
some twenty thousand police and National Guard troops. Some public employees,
often portrayed as faceless, passionless, mild-mannered bureaucrats, joined in the
national discord, as indicated by the title of Rollin B. Posey’s article on “The New
Militancy of Public Employees” in the March–April 1968 issue of Public Adminis-
tration Review.
“Rights talk” was everywhere. As a result of the three doctoral courses in con-
stitutional and administrative law I had taken, I wondered how the rights of federal
civil servants, which seemingly had been grossly violated during the not-so-distant
McCarthy era and were still truncated in terms of partisan political activity, had
become so differentiated from those of ordinary citizens. This curiosity led me to
research the constitutional history of “the relationship between the citizen and the
state in public employment in America,” as my dissertation was titled. More conve-
niently termed the “public employment relationship,” there was scant literature on
it, and I wanted to understand how it developed, why, and how to best analyze it.
The first edition, published by Cornell University Press in 1971, had an im-
plicit thesis: The political conception of what federal employees are or should be
has an impact on their constitutional rights and the legal doctrines that define
them. For instance, under the “spoils system” from the late 1820s into the early
1880s, federal employees were expected, on pain of dismissal, to engage in political
activity on behalf of the party that appointed them; following civil service reform
in the 1880s, by 1907 they were prohibited from engaging in such activity. Both
the coerced political activity of the spoils period and the prohibitions on it in the
postreform era were supported by the constitutional law of their times.
viii Preface
I was exceptionally fortunate that Cornell University Press asked Dwight Waldo
to read and evaluate the manuscript with an eye toward publication. Waldo, with
whom I was briefly a colleague at Syracuse University’s Maxwell School of Citizen-
ship and Public Affairs before he retired in the late 1970s, was the perfect choice.
Along with Herbert Simon, one of the two “greats” in the field of public adminis-
tration in the second half of the twentieth century, Waldo literally understood the
study better than I. Though it took me some time to understand this, thankfully, in
this second edition I am now able to make the connection between the conception
of what a federal servant is and how this impacts constitutional doctrines.
I was also fortunate in timing. During the New Deal of the 1930s, it be-
came clear that federal employees were often involved in policymaking. On the
academic side, Pendleton Herring’s Public Administration and the Public Interest
(1936), Waldo’s The Administrative State (1948), and Paul Appleby’s Policy and
Administration (1949) contributed strongly to the idea that politics, in the sense
of policymaking, value choices, and coalition building, is embedded in public
administration. On the governmental side, the Administrative Procedure Act of
1946 was premised on the realization that much of the nation’s lawmaking was—
and would continue to be—done by administrative rulemaking. No longer could
orthodox public administrative thinkers claim that administration should not be
guided by political values and policy concerns as well as managerial ones. For the
first time in its history, the US field of public administration entered a period of
“heterodoxy” or value pluralism.
Heterodoxy meant that there was no dominant vision of what a federal em-
ployee is or should be. Among the value sets in competition and tension with
one another were bureaucratic social and political representativeness; internal
employee participation in administrative decision making through collective
bargaining; social equity; organizing and responding to citizen participation;
improving policymaking through policy analysis; freedom of information and
whistle- blowing (the “Pentagon Papers” were released in 1971); and the tradi-
tional concerns with efficiency, economy, and effectiveness.
Heterodoxy coincided with the “rights revolution” led by the Supreme Court
from the mid-1950s through the 1960s. The first edition recognized that major
shifts in the constitutional law of the public employment relationship were af-
fording public employees greater rights and protections than they had previously
enjoyed. Older doctrines were crumbling in the face of newer interpretations of
the Constitution’s equal protection and due process clauses as well as more expan-
sive visions of First Amendment rights. The first edition figured somewhat in this
trend. Supreme Court justices’ opinions relied on it as authority in Elrod v. Burns
(1976) and Branti v. Finkel (1980), which held that patronage dismissals from most
public employee jobs constitute unconstitutional infringements on freedom of be-
lief and association.
Preface ix
Rewriting and revising the book in 2012–13 for this second edition presented
a stark contrast. In 1968, the IBM Selectric typewriter was state of the art, Xerox
machines were operated by trained personnel, legal research depended heavily
upon a large law library, and West’s Key Number System was the leading legal
information technology; I had spent countless hours in the university’s law library
and “Harper stacks”—the latter with its dark, dank, tightly packed underground
shelves and small tables lit by bulbs suspended from low ceilings and covered with
green metal cone-like shades. Today, one can do much of the historical and almost
all the legal research for a book like this on the internet. There are also many
changes in the book’s content.
The first edition included an analytic apparatus based on the concept of a range
of discrimination (differentiation in the constitutional rights of public employees
and other citizens) that was the product of the degree and domain of discrimina-
tion. I have seen no evidence that anyone ever subsequently used this framework,
and no trace of it remains in this new edition. Additionally, constitutional doc-
trines were in transition in the 1960s and had not yet crystallized into an overall
jurisprudence. The earlier edition referred to the emerging law as the “doctrine of
substantial interest,” a label that, like the range of discrimination, never caught on.
The second edition takes these limitations into account and consequently dif-
fers substantially from the first. The major changes include an entirely new intro-
ductory chapter explaining what the public employment relationship is and why it is
important as well as presenting an overview of the historical changes in the concept
of what a federal employee is or should be and their relationship to the development
of the constitutional law of the public employment relationship. The chapter brings
the discussion up to date by incorporating the “reinventing government” movement
of the 1990s and the more recently developing collaborative governance approach.
Chapters 2–4 are historical, dealing with the development of the public employment
relationship in the founding period, the spoils system, and nineteenth-century civil
service reform. Chapters 5–7 are topical and revise the first edition’s treatment of po-
litical neutrality, equal access to civil service positions, and loyalty-security. Serious
efforts to establish equal employment opportunity in the federal service were still
relatively fledgling and controversial in the 1960s; now they are well institutional-
ized. By contrast, the importance and controversies associated with loyalty-security
measures, developed in the 1940s and 1950s, were fading out in the 1960s. Federal
regulations for political neutrality, a significant issue in the mid- to late 1930s, were
subject to major reform and liberalization in the 1990s. A considerable amount of
new material has been added to these chapters. Instead of a doctrine of substantial
interest, what emerged is called the “public service vision” or “public service model”
for the public employment relationship. Chapter 8 explains how it incrementally re-
placed the dominant earlier constitutional doctrine, developed, and balanced the in-
terests of individual public employees, the government, the public, and the judiciary’s