Protection versus Flexibility: The Civil Service Reform Act, Competing Administrative Doctrines, and the Roots of the Contemporary Public Management Debate

The year 2003 marks the twentieth-fifth anniversary of the Civil Service Reform Act (CSRA) of 1978, a late chapter in the development of the American administrative state and the most significant reform of the civil service system since its creation through the Pendleton Act of 1883. The Act made a number of enduring contributions to the personnel system of the federal government. Given the recursive nature of public management debate, there is considerable policy importance in trying to understand the original basis of decisions on legislation that have shaped the federal government over the last twenty-five years, and the CSRA has recently been the subject of renewed interest. ¹ More important, the CSRA was a rare and relatively important shift in the beliefs and attitudes—the administrative doctrine—that shape the evolution of the administrative state. ² Significantly, the debate during the CSRA saw the emergence of deep divisions within administrative doctrine, divisions that continue to shape public management policymaking.

Management experts battled with each other to establish a dominant model for the civil service. On one side, traditionalists defended the protection doctrine, arguing that neutral competence could only be maintained by a civil service system that protected employees from undue political influence. On the other side, reformers established the new flexibility doctrine, arguing to create incentives for performance and responsiveness to political leaders. The flexibility doctrine drew on private-sector models of management, which was far from unusual in public management debate. What was unusual was that the flexibility doctrine, by emphasizing managerial discretion and control as desirable management practices, offered the first serious and direct challenge to the protection doctrine and the idea that protection of employees was necessary to good management and competent performance. Further, and most troubling for protection advocates, flexibility advocates simultaneously relied on performance andpolitical responsiveness as equally valid and closely connected justifications for reform. Protection advocates feared increased politicization of the bureaucracy as the inevitable result.

These battle lines in administrative doctrine became more pronounced after 1978 and continue to shape the existing public-management policy debate. In the last quarter century, the flexibility doctrine has gained ground. Former Vice President Al Gore led the National Performance Review (NPR) for the duration of the Clinton administration, arguing for greater managerial flexibility, reduced red tape, and a focus on results. ³ President George W. Bush's management agenda is similarly performance-oriented. ⁴ His ultimately successful demands for management flexibility, particularly changes to specific provisions of the CSRA on bargaining rights, stalled legislation creating the massive Department of Homeland Security in months of acrimonious Senate debate. The contemporary public management debate sees presidents and reformers reargue the intentions, implementation, and limits of the CSRA. The basic concepts that decision-makers wrestled with in 1978—merit, performance, politicization, flexibility, and responsiveness—remain defining tensions. ⁵

In addition to mapping out the battle lines in administrative doctrine, the CSRA also established the pattern of engagement. In 1978 reformers failed to radically change the civil service system, but instead settled for incremental change. This pattern has recurred, as the rise of the flexibility doctrine has resulted only in partial reform of the civil service system. Over time, the civil service system became an institution difficult to change, effectively defended by public service unions. While flexibility proponents hope to dramatically change government-wide personnel rules, their rare attempts to do so have failed. Instead, reformers have chipped away at the system in piecemeal fashion, achieving a gradual shift toward flexibility through a combination of executive orders, personnel legislation for specific agencies, or provision of experimental flexibility for parts of government. ⁶ As a result, the different parts of the present federal public sector, to varying degrees, reflect both the continuing legacy of the protection doctrine and...