As Swan tells the story, Sherk’s eureka moment occurred in January 2019, when he discovered Section 7511 of Title Five of the U.S. Code. (Title Five is the set of laws governing the civil service.) Section 7511 exempts from civil service job protections any person “whose position has been determined to be of a confidential, policy-determining, policy-making or policy-advocating character.” That gave Trump an opening to create a special category of civil servant that he called Schedule F. (The name’s rich expressiveness of hostile intent is entirely fortuitous; there already exist schedules A through E.) Agency officials were ordered to find civil servants to herd into a Schedule F classification, where they could be fired or terrorized into submission. The Office of Personnel Management, noting that the terms “confidential,” “policy-determining,” “policy-making,” and “policy-advocating” lacked clear statutory definition, encouraged agencies to interpret them broadly. A lot of the agency heads, according to Swan, blew this off after Trump lost the election. But Russ Vought, director of the Office of Management and Budget, proposed reclassifying no fewer than 88 percent of his employees as Schedule F.
When 88 percent of the civil servants at an agency are reclassified as at-will, you are effectively repealing the Pendleton Civil Service Reform Act of 1883 and its subsequent revisions by Congress. The Pendleton Act was passed two years after Charles Guiteau shot and killed President James Garfield because Garfield wouldn’t appoint him consul to Paris or Vienna. There was a general feeling that the spoils system of political appointments by the party in power (during the post–Civil War era, that was nearly always the Republicans) had gotten out of hand. Here’s how Mark Twain and Charles Dudley Warner described the state of affairs in 1873 (in their novel published that year, The Gilded Age):
If you are a member of Congress (no offense), and one of your constituents who doesn’t know anything, and does not want to go into the bother of learning something, and has no money, and no employment, and can’t earn a living, comes besieging you for help, do you say, “Come my friend, if your services were valuable you could get employment elsewhere—don’t want you here”? Oh, no. You take him to a Department and say, “Here, give this person something to pass away the time at—and a salary”—and the thing is done. You throw him on his country. He is his country’s child, let his country support him.
The Pendleton Act restored some balance by creating a class of career officials able to accumulate experience in governing who would work under political appointees. It was succeeded in 1978 by the Civil Service Reform Act, which reorganized various functions of the civil service but didn’t alter the basic principles underlying the Pendleton Act.