Updated: The House on Thursday passed a bill to prevent a future administration from moving competitive service federal employees involved with policy matters into a new excepted service “Schedule F,” where they could be more easily hired and fired.
Changing the law so that no such change could be made by an executive order – as then-President Trump did in late 2020, an action President Biden overturned by another executive order just after taking office early the following year – has become a priority for congressional Democrats in response to recent statements by Republicans that reimposing such an order would be a priority for them in a future GOP administration. (Just six Republican lawmakers voted for the bill, which passed 225-204.)
Sponsors of the bill, HR-302, say that moving into the excepted service career employees involved with advising, drafting or carrying out policy, as the Trump order had specified, would in effect turn them into political appointees because they would lose civil service protections and the positions could be filled without competition.
In the several months the order was in effect, agencies had begun identifying positions that could be affected, with the total potential number believed to be in the tens of thousands; a common estimate is 50,000, if not more. That would have included nearly all career positions at OMB.
The House measure had been pending since last year but Democrats recently moved it through the House Oversight and Reform Committee. Democrats have also attached similar language to a defense spending bill approved by the House, as well as to an appropriations bill pending in the Senate, in addition to the recent introduction there of a counterpart bill (S-4702).
Those actions show an intent by Democrats to change the law in this Congress, given the chances that Republicans will gain control of one or both chambers in the November elections. Congress plans to be in session only through the end of this month before recessing until after the elections, with a post-election session potentially extending through year’s end.
The House also has scheduled voting for as soon as this week on HR-2988, also approved earlier by the Oversight and Reform Committee, to create new protections for federal employees who report fraud or other improprieties, expand and clarify existing protections, and establish new procedures to ensure that employees receive timely relief if their claims of retaliation are affirmed.
The bill would: bar agencies from publicly disclosing the identity of a whistleblower as an act of retaliation; clarify that whistleblower protections apply for disclosures made to Congress, to an employee’s supervisor or others in the employee’s chain of command; and extend the protections to noncareer Senior Executive Service employees, Public Health Service officers or applicants, and the Commissioned Officer Corps of NOAA.
Also, it would: require timely consideration by the MSPB of employees’ requests for stays of personnel actions; lower the legal standard for granting such requests; and expand employees’ rights to challenge executive branch nondisclosure agreements; and make clear that an employee would be entitled to recover attorney fees if the employee prevails in judicial review of a decision by the MSPB.