Senator Tim Kaine (D-VA) is trying to use the National Defense Authorization Act (NDAA) as a vehicle for banning any future implementation of Schedule F.
As is often the case, the NDAA is being used to harbor unrelated bills so that lawmakers in Congress can get their preferred legislative priorities passed into law without having to do it through individual bills. The 2024 NDAA is starting to become a melting pot for these added bills, at least one of which may impact federal employees should it ultimately be passed as part of the final legislation.
Ban on Schedule F
Senator Tim Kaine (D-VA) said that he has filed eight amendments to the 2024 NDAA, one of which would ban future presidential administrations from reclassifying federal employees under Schedule F.
Kaine was the sponsor of the Saving the Civil Service Act (S. 399), legislation that would prohibit any federal employee’s position from being reclassified outside of merit system principles without the express consent of Congress. Congressman Gerry Connolly (D-VA) introduced companion legislation in the House (H.R. 1002).
What is Schedule F?
Schedule F does not exist, but it has continued to worry some Members of Congress since the concept was proposed towards the end of the Trump administration.
On October 21, 2020, former President Donald Trump signed an Executive Order called Creating Schedule F in the Excepted Service.
The Executive Order would have removed some federal positions from the competitive service. The positions impacted would have been those of a confidential, policy-determining, policy-making, or policy-advocating character. These jobs are often filled by people who are not normally replaced when a new president assumes office.
They would be exempt from both the competitive hiring rules and adverse action procedures under chapter 75 of title 5 of the United States Code.
The rationale behind the Executive Order was a lack of accountability in the federal workforce. As Trump wrote in the Executive Order:
…I find that conditions of good administration make necessary an exception to the competitive hiring rules and examinations for career positions in the Federal service of a confidential, policy-determining, policy-making, or policy-advocating character….Placing these positions in the excepted service will mitigate undue limitations on their selection. This action will also give agencies greater ability and discretion to assess critical qualities in applicants to fill these positions, such as work ethic, judgment, and ability to meet the particular needs of the agency….
Unfortunately, the Government’s current performance management is inadequate, as recognized by Federal workers themselves. For instance, the 2016 Merit Principles Survey reveals that less than a quarter of Federal employees believe their agency addresses poor performers effectively.
On January 21, 2021, the day after his inauguration, President Biden revoked this Executive Order along with some others that placed restrictions on federal employee unions. It was one of his first actions as president.
Some lawmakers are concerned that future presidential administrations would enact Schedule F, so they have been working to codify the end of it via legislation.
Why Do Unrelated Bills End Up in the National Defense Authorization Act?
The size and importance of the annual National Defense Authorization Act make it a prime target for lawmakers to use as a vehicle to implement their legislative priorities. Considered to be a “must pass” bill, it is less likely to be vetoed by a president or not pass in Congress, so it’s easier to stuff it with bills that might not pass on their own.
Roll Call described it this way: “The bill contains thousands of provisions, dozens of funding tables and attracts hundreds of amendments. And almost always, partially because of its size and partially because it is so likely to be enacted, unrelated legislation hitches a ride on it.”
All of these bills stuffed into it make it a massive bill, not just in the cost to taxpayers but in length. Last year’s bill was almost 1,800 pages for instance.
Whether or not the Schedule F ban successfully makes it into the final legislation this year remains to be seen. What is almost assured though is the 2024 bill will be another lengthy one.
