the principal purposes of civil service reform were to prevent political corruption and to ensure the impartial administration of the laws. Reformers also were concerned about the strife that had developed between the legislature and the executive over the political uses of civil service positions. By regulating the appointing power and placing it in the hands of a bipartisan commission, Congress hoped to place patronage beyond both the executive and itself in order to remove a major source of discord. The conflict between the legislature and the executive developed initially from different interpretations of presidential and legislative powers under the Constitution. Article II states that the President: shall nominate, and by and with the Advice and Consent of the This clause fails, however, to specify who has the power to remove officials. Because removal could force the appointment of an official favorable to the President, and since these higher ranking officials usually controlled the appointment of inferior officials, the removal power carried considerable control over patronage. 151 As early as 1789, in establishing the Department of Foreign Affairs, Congress debated at length whether the President alone had the power to remove the Secretary of Foreign Affairs. James Madison, arguing on the basis of the theory of separation of powers, advanced the executive position that the Constitution grants the President “executive power" and that executive employees are appointed in order to aid the President in the exercise of this power. In order to fulfill his executive function, the President must be able to hold these employees accountable. The President could not effectively administer the laws if he could not remove superior officials quickly or if these officers could remain in office against the President's will. The resolution of the congressional debate was that the power to appoint included the power to remove, that the President had both of these powers, and that the Senate had a veto of appointments.152 Considerable power over personnel still resided within the Senate, for it retained the power to determine whether the President alone, the courts, or the heads of departments would appoint the various 150. U.S. CONST., art. II, § 2(2); see id. §§ 2(3), 3. The debate on these clauses at the Constitutional Convention is recounted in C. MORGANSTON, THE APPOINTING And Removal POWER OF THE PRESIDENT OF THE UNITED STATES 4-14 (1929). 151. "Inferior" means subordinated to one in whom the power of appointment may be vested. See Collins v. United States, 14 Ct. Cl. 568 (1878). See also Scully v. United States, 193 F. 185 (C.C.D. Nev. 1910). 152. C. MORGANSTON, supra note 150, at 15-30; P. VAN RIPER, supra note 140, at 14-16. The President also has the important power to fill, without Senate approval, vacancies that occurred during recess of the Senate. U.S. CONST., art. II, § 2 (3); see C. FISH, THE CIVIL SERVICE AND THE PATRONAGE 191-92 (1904). 536 [VOL. 44:516 Hatch Act Restrictions and Beyond THE GEORGE WASHINGTON LAW REVIEW 153 "inferior" officials." Congress could also specify qualifications for officers.154 Finally, the power to veto presidential appointments was aggrandized through the invention of "senatorial courtesy”– -a practice whereby senators would jointly approve an appointment only if it was approved by either senator of the state of appointment.155 The considerable powers of Congress resulted in political accommodation between the President and Congress. The President had the power to remove unwanted officials, usually those of a previous President, while Congress limited his power of appointment. The President often removed many officials upon his inauguration, but if his appointments rubbed against the political grain of Congress, it could refuse the appointment or employ the powerful weapon of appropriations against the offending department.156 For the accommodation to work smoothly, Presidential subservience to Congress was required. 157 The tenuous accord between the President and Congress lasted until President Lincoln sought to use the latent powers of the Presidency. Lincoln asserted the political supremacy of the Executive by using the patronage, as well as other executive powers, as a tool to balance the radical Republicans against the conservative elements of Congress.1 The political use of patronage and other executive powers to enhance Presidential authority heightened congressional distrust of the Executive.158 Andrew Johnson exacerbated this tension by declaring openly that he would use his power over patronage in his battles with Congress. Aware of the great number of jobs Johnson had to distribute and opposed to his reconstruction policies, Congress battled the President over patronage through the passage of the Tenure of Office Act in 1867.159 The Act attacked the President's power of removal and revoked the understanding of 1789 by providing that all appointing officers would retain their positions until their successor had been appointed by the President and approved by the Congress. Johnson's defiance of the Act led to his impeachment by the House and near conviction by the Senate.160 The battle between Congress and the Executive over control of personnel continued during subsequent administrations. Congress 153. U.S. CONST., art. II, § 2(2). Congressional control of the appointing process was based on this clause and the "necessary and proper" clause. See United States v. Perkins, 116 U.S. 483 (1886). 154. U.S. CONST., art. II, § 2(2). 155. C. FISH, supra note 152, at 100-01. 156. See id. at 247-252. 157. J. BURNS, THE DEADLOCK OF DEMOCRACY 72-73 (1963). 158. C. FISH, supra note 152, at 186-87. 159. Act of March 2, 1867, ch. 154, 14 Stat. 430. The Act also curbed the President's power to make recess appointments. Id. 160. C. FISH, supra note 152, at 198-200. 1976] 537 often rejected nominations or returned them for consideration of whether the appointment had been brought about through a removal. Of 58 cases tested during the Grant administration, nine were rejected. Against the less docile Hayes,161 Congress rejected 51 of 92 contested cases.1 162 One historian has called this congressional pressure, "the attempt of the Senators by combination to make the President a mere clerk to transmit to the Senate as a constitutional body nominations handed to him unofficially by the individual Senators."163 President Garfield brought the issue to a head by appointing as Collector of the Customs of New York Harbor a political enemy of the powerful Senator Roscoe Conkling of New York. Garfield summarized the issue thus, "shall the principal port of entry in which more than 90% of all our custom duties are collected be under the direct control of the Administration or under the local control of a factional Senator."164 Garfield persisted in his nomination despite the opposition of both New York senators and Vice President Arthur. Pratt and Conkling, the New York senators, resigned in order to attempt to enforce the doctrine of senatorial courtesy, that "the Senators shall severally control [appointments] for their respective states. . ."165 They were defeated for reelection and the Senate confirmed Garfield's appointee.166 Though Senate influence over Presidential appointments has always remained substantial, these events mark the end of any senatorial claim to govern executive discretion. The legislators themselves realized that the spoils system, which encouraged factional rivalries between the legislature and the executive department, was beginning to destroy rather than promote the party system.167 It was well recognized on the floor of Congress that the Republicans' crushing defeat in the 1882 interim elections was due to this state of affairs.168 It was also recognized that this conflict debilitated the constitutional standing of the legislature1o and that it 161. Hayes fought the Congressional practice to the extent that he could say, perhaps as an exaggeration, that "[a]ppointments are no longer regarded as belonging to Congressmen.' 3 DIARY AND LETTERS OF RUTHERFORD BIRCHARD HAYES 495 (C. Williams ed. 1924). " 162. C. FISH, supra note 152, at 203-04. 163. Id. at 205. 167. One member of Congress described the state of affairs as follows: The bestowal of office has been farmed out to political leaders for the purpose of enabling them to make war on their own rivals, and of crushing all independence in thought and action in even those who are adherents of the party in power. Servility to that faction of the Republican party to which a President belongs has been the exaction demanded of those who aspired either to receive office or influence its bestowal. 14 CONG. REC. 319 (1882) (remarks of Senator George). 168. See 14 CONG. REC. 204-06, 277, 279, 283, 317 (1882). 169. See id. at 317 (1882). The rivalry between the executive and the legislature over the appointing power was seen as destructive to a balanced government: The legislative must become syncophantic ... or it cannot have the patronage; or, on the other hand, legislative department will absolutely control the executive department in its actions and its appoint ments. 538 [VOL. 44:516 Hatch Act Restrictions and Beyond THE GEORGE WASHINGTON LAW REVIEW harmed the character of government by resulting in “many men being put into office who are unnecessary and who are unworthy."170 The legislative-executive conflict may have affected the content of the Pendleton Act more than its passage, but certainly the Act was designed to effect some sort of compromise between the branches. Because the Act mandated that positions were to be filled on the basis of merit,11 neither the President nor Congress could theoretically influence the selection of candidates for political purposes. In addition, the Act specifically prohibited such interference.172 The legislative-executive conflict also influenced what Congress omitted from the Act. In establishing the merit system, Congress strained not to interfere with the power of the Executive. Despite many calls for legislative control of the President's power of removal,173 proponents of the Act opposed such a limit as an unconstitutional intrusion on the executive branch.174 Rather, they suggested that appointment based on merit effectively removed any incentive of the executive to remove employees improperly. Supporters of the bill also rejected amendments that sought to ensure the independence of the Civil Service Commission by giving each commissioner a tenure of six years. These amendments, thought to be an intrusion upon the President's power of removal, were deemed to be unwise, if not unconstitutional.175 Public employees, of course, are not completely impartial because their backgrounds create perspectives that may affect the administration of programs. Civil service reform was concerned, however, with the greater risk that a politicized public service would administer programs according to political expediency rather than according to the law. Civil service reform was perceived not as an act of convenience, but as one of necessity. Senator Hoar wrote that the passage of the Pendleton Act was "necessary for free government-I am now better convinced than ever that our form of government is safe for another century." 19176 Almost a century later, the Watergate revelations and the documentation of the Nixon Administration's assault on the civil service have emphasized the importance of an impartial civil service. This There should never be any such conflict. Id. (remarks of Senator Miller). 170. Id. 171. The Civil Service Act of 1883, ch. 27, § 2, 22 Stat. 404 (codified at 5 U.S.C. § 7321 (1970)). 172. The Civil Service Act of 1883, ch. 27, § 10, 22 Stat. 406 (codified at 5 U.S.C. § 3303 (1970)). 173. See, e.g., 14 CONG. REC. 207 (1882) (remarks of Senator Pendleton). 174. See, e.g., id. at 277, 282, 322, 323. 175. See, e.g., id. at 248-49, 274, 277, 322, 323, 354. 176. Letter from A.S. Hewitt to James F. Colby, Jan. 8, 1883, Papers of the National Civil Service League, Box I, file A-2 on file in the Civil Service Commission Library. 1976] 539 recent experience also suggests the possible effects a removal of restrictions on the voluntary political activites of federal employees might have on the character of the civil service. Political Encroachment Upon the Civil Service System Attacks by the Nixon administration on the career service illustrate the potential for tyranny created by political control of the civil service. All administrations have sought jobs for political supporters and, in so doing, violated civil service provisions. The Nixon attack on the civil service, however, went beyond these “patronage raids" and threatened "free government" by seeking to exploit the vulnerability of the civil service to gain the ability to manipulate and violate the law. The success of the merit system depends upon the special relationship which develops between each President and the civil service. The President has ultimate authority over the administration of the civil service system,177 and he, by extensive use of patronage, can undermine the purposes of civil service reform. The dilemma of the modern civil service is that its dependence upon the Executive, which ensures its effectiveness, creates the potential for abuse. Presidential control of the civil service can undermine the purposes of civil service reform and acquire for the President extensive authority at the expense of the Congress. The history of the relationship between the presidency and the civil service illustrates this dilemma. Perhaps no President better knew how to use the civil service than Theodore Roosevelt. He freely delegated authority and responsibility because he recognized efficient government required it. He habitually turned to subordinates for advice and information.178 This practice not only restricted the President's own power by requiring reliance on those expert in a given field, but also restrained subordinates by the logic of their own information and experience. In addition, Theodore Roosevelt's approach enabled him to recruit and retain subordinates of stature because he offered them the satisfaction of achievement. 179 Franklin Roosevelt had many of the same abilities. He knew how to retain control over the decisionmaking process and he had the ability to use the bureaucracy to get the proper information to make decisions. As Arthur M. Schlesinger has suggested, he knew how to attract and utilize creative talent in the federal service.180 For FDR this meant circumventing the civil service system. Like Theodore Roosevelt and most other presidents, he undertook a number of appointments for political purposes. 181 More importantly, Roosevelt 177. 5 U.S.C. §§ 1301, 1302 (1970). 178. J. BLUM, THE REPUBLICAN ROOSEVELT 18-21 (1969). 179. Id. at 19. 180. See 2 A. SCHLESINGER, JR., THE AGE OF ROOSEVELT: THE COMING OF THE NEW DEAL 96-98 (1953). 181. D. HARVEY, THE CIVIL SERVICE COMMISSION 11-14 (1970); see G. MOWRY, THE ERA OF THEODORE ROOSEVELT 167 (1958). 540 [VOL. 44:516 |