To the victor goes the spoils system?

Schedule G and the consequences of Trump’s “Fire and Fill” strategy

“This is not the New York Stock Exchange, it is the patronage exchange, called U.S. Senate.” A cartoon in Puck by J.A. Wales from 1881, featuring senators holding papers "patronage," "sold out," and "New York quotations," handing "orders of the boss" to Chester Arthur.

Dear Civil Servant,

Since January, it’s felt like Trump administration officials have been competing to see who could remove the most civil servants from their jobs. They’ve tried everything — paying Feds to leave, offering deferred and early retirement, transferring people to undesirable task forces, reductions in force (RIFs), and (of course) outright firing Feds.

Against that backdrop, enter Schedule G: President Trump issued an executive order creating Schedule G — a new tool that would let him hire an unlimited number of “policy-making or policy-advocating” political appointees with little transparency or oversight. Schedule G is not a tool for firing; these folks would be easier to hire.

Why is this such a big deal?

Schedule G lays bare what we’ve long known: the Trump administration’s strategy is not just to fire civil servants; it’s to fire them and then fill their roles with loyalists. The White House is now working on the other side of this Fire and Fill equation: preparing to fill roles long held by career civil servants with loyalists.

As Schedule G’s potential to expand hiring shows, the administration’s gutting of the workforce is not about “right-sizing” the federal bureaucracy — it’s about reshaping the civil service into a tool for unchecked control and removing safeguards that protect the public from the politicization of day-to-day government services. With Schedule G, the president now has a goody bag full of jobs he can hand out as favors like in the days of the Spoils System. And he has made no secret of expecting personal loyalty from his appointees over loyalty to the American people or the rule of law.

Read more: How civil service purges have played out around the world.

The Spoils System

You are forgiven if you can’t remember civics lessons on the Spoils System; it has been more than a century since that system of political patronage held our nation captive. In the 19th Century, particularly beginning in earnest under President Andrew Jackson and peaking after the Civil War, newly-elected presidents (often under pressure from senators with supporters to appease) would hand out federal jobs to campaign donors, volunteers, and operatives.

This system of hiring people for who they knew and not what they knew created predictable outcomes: corruption, self-dealing, incompetence, inefficiency, and a civil service with high levels of turnover and low levels of expertise. The inevitable scandals rocked presidential administrations. It also degraded the quality and reliability of public services, while increasing the cost of doing business in the United States.

Public outcry over this corrupt form of governance led to a bipartisan consensus that the Spoils System was rotten and had to go. Change began modestly in 1883 with the Pendleton Act, and Congress continued to strengthen the merit system over the next 142 years, most comprehensively with the Civil Service Reform Act of 1978. We had one hundred forty-two years of progress away from the Spoils System.

Sometimes when policies shift, predicting hypothetical future harms is mere speculation. But this is not speculation. Here, we are not hypothesizing; Americans already had to learn the hard lesson that a spoils system is bad for the country. It benefits the few — the president, senators, and their cronies — at the expense of the public.

But it gets worse. This would not just be a return to the Spoils System of yesteryear, with its incompetent government functionaries and petty self-dealing. A return to the Spoils System now — in the context of an autocratic president who seems set on using the government to quash dissent, erode democratic norms, and serve his own interests — is exponentially more dangerous. As you know better than most, our federal government touches nearly every aspect of life here — from healthcare, to education, to clean food and water, to air and road safety. That institution, captured entirely by an army of loyalists willing to do an autocratic president’s bidding, could do tremendous harm.

Schedule G, explained

Creating Schedule G is not the only step this administration has taken on the “fill” side of the Fire and Fill strategy. Take the OPM Merit Hiring memo, which inserted loyalty questions into federal hiring, for example. However, Schedule G is a uniquely powerful tool in shifting the makeup of the civil service away from merit hires and toward political hires.

Read more: The “patriot” in the cubicle next door.

If you’re wondering what a “schedule” is and why it matters that there’s a new one, here’s some background: Some of the government’s excepted service employees are divided into categories, or “schedules,” that broadly define what kind of employee they are and what civil service protections they do (or don’t) enjoy. Presidents have statutory authority to create these schedules for various types of positions. Schedules A and B are for certain career employees; Schedule D relates to student hiring; and Schedule E is for Administrative Law Judges. Schedule F doesn’t exist; it was originally the name for what is now called Schedule Policy/Career.¹

There is already a category for political hires: Schedule C was created in 1953 to distinguish political appointees from career employees; since then, the government has consistently filled only about 1,500 Schedule C political positions at a time, which already makes us a high outlier among similar countries.

This is where Trump’s new Schedule G comes in. Schedule C is subject to a handful of restrictions and transparency policies: Appointees are statutorily required to be identified publicly, and some agencies restrict the number of Schedule C appointees. Schedule G could provide a quick and easy way to flood the federal bureaucracy with more political loyalists. Recent OPM guidance doubles down on the political nature of these positions, requiring White House approval for any hire.

The administration has not yet given an indication as to its plans for Schedule G, including how many or what type of positions it intends to create. But the administration’s chaotic spree of layoffs and firings will leave the government understaffed in potentially critical areas. The administration may be hoping it can use Schedule G to backfill jobs formerly held by career employees with political loyalists. If the administration intends to use Schedule G appointees to do the government’s day-to-day functions, it will need worker bees, not executives — and a lot of them. In this scenario, Schedule G would further erode the merit system and the civil service’s ability to check abuses of executive power. A perverse revolving door of sorts would seek to usher career employees in Schedule Policy/Career out of the government and rotate in Schedule G political appointees.

Alternatively, the administration could use Schedule G to create “executive level” jobs with higher pay than is typical for civil servants. OPM has authority to classify positions like these above the GS-15 level, as well as authority to set their pay above the GS-15 level. In this scenario, in light of recent and planned RIFs and early-out incentives, Schedule G would create another wealth transfer: From rank-and-file civil servants on the general schedule to elites with sufficient connections to obtain a political appointment. Doling out plum positions with too-high salaries to politically-connected elites is the very definition of the “Spoils System” we abandoned long ago.

One more thing: Updates on civil service-related lawsuits

In focusing on the latter side of the Fire and Fill strategy, we do not mean to suggest that the illegal firings are a done deal. To the contrary, though the Supreme Court reached down to squash some early-stage relief that judges had rightfully given the civil service, those cases march forward.

The Supreme Court’s terse and unprecedented number of interventions in the early stages of lawsuits — including civil service suits — has sown confusion, even among lawyers and judges. In short, lower courts have been presented with actual evidence of the illegality of dismantling, firing, or reorganizations, and they have generally put a preliminary hold on the actions — temporarily pausing the destruction of agencies and removal of their employees. These pauses preserved the status quo while the cases could be litigated. In a number of civil service-related cases, the Supreme Court intervened early to lift these preliminary pauses — called preliminary injunctions.

One of these cases was AFGE v. Trump, a case Protect Democracy is helping to litigate, which challenged RIFs and reorganizations at over a dozen agencies. The Court has effectively paved the way for RIFs and reorganizations to continue while the cases continue to be litigated, and it has done so without real explanation or justification. And in the case concerning the dismantling of the Department of Education, it effectively did the same thing in no words at all.

Generally, these cases continue to be litigated — the Supreme Court did not end the RIF, reorganization, or dismantling cases. But the Supreme Court interference does unfortunately allow the government to move forward with its actions during the case, unless a judge again puts a stop to a specific act.

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Resources and readings:

• Civil Service Strong - You Are Not Alone: A Resource Guide for Civil Servants Affected by the Supreme Court’s RIF Decision.

• Civil Service Strong - Additional RIF Resources.

• Partnership for Public Service Webinar - Navigating Reductions in Force: Updated guidance for federal employees.

• Treasury Inspector General for Tax Administration - Snapshot Report showing that the IRS has lost 25,000 people, including 25% of its workforce. Warning lights are flashing red for next year’s filing season.

• FedsForward Needs Survey - Please fill out this survey to help create resources that support civil servants as they transition into the next stage of their careers.

• Don Moynihan - When you’re a star, the Supreme Court lets you do it.

• Walter M. Shaub Jr. - The Corruption Playbook.

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This publication should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information and educational purposes only, and should not be relied on as if it were advice about a particular fact situation. The distribution of this publication is not intended to create, and receipt of it does not constitute, an attorney-client relationship with Protect Democracy. This publication also contains hypertext links to information created and maintained by other entities. Protect Democracy does not control or guarantee the accuracy or completeness of this outside information, nor is the inclusion of a link to be intended as an endorsement of those outside sites.

1. In April, OPM issued a proposed regulation that would, if finalized, implement Schedule Policy/Career and begin the process of moving positions into it. As we’ve written before, this is meant to make many career civil servants easier to fire—and by extension, easier to control; we’ve sued to stop this.