Final for AJCL

Corruption and Accountability of the Civil Service in the United States

Peter W. Schroth

“Corruption” is a word whose many meanings, even if only law and government are
considered, range from simple bribery to arrangements with profound implications for
constitutional and even international law.1 Prevention or control of corruption, in several senses,
has always been at the center of controversies over separation of powers, freedom of speech and
other areas of constitutional law in the United States. Corruption, again in several senses, of civil
servants, politicians and other public employees has been prominent in those controversies from
the beginning of the Republic to the present, for what one side sees as corruption may be exactly
what the other sees as accountability. Despite the pronouncements and actions of several
Presidents, however, a politically neutral, merit-based, career federal civil service is not the
problem. It was, and could again be, a key part of the solution.
In the United States, democracy preceded bureaucracy and democratic or political control
over the bureaucracy preceded, and has never been supplanted by, the ideals of merit and
political neutrality. The extent to which appointments should be merit-based, rather than political,
has never been settled. Over the last three decades, and especially in the latest four years, both
the major reform legislation and most of the rhetoric have inclined strongly toward more political
responsiveness and consequently less neutrality of public servants, although recent events
suggest the pendulum may have reached an extreme in the first months of 2005.
The bulk of this essay relates the history of federal2 public-employment law, considered here
as concerned especially with control or advancement of corruption of several kinds. The second
section discusses the laws on financial disclosure, bribery, conflict of interest and prohibited
political activities in more detail. The final section offers perspectives on the place of concerns
about the civil service among the larger issues of corruption.

I. HISTORY OF CIVIL-SERVICE CORRUPTION LAW

From ancient times3 to the seventeenth century,4 the crime of bribery was usually limited to
payments to influence judges, juries, witnesses and the like. By 1787, however, the framers of

1
Some of these are discussed in Peter W. Schroth & Ana Daniela Bostan, International Constitutional Law and
Anti-Corruption Measures in the European Union’s Accession Negotiations: Romania in Comparative Perspective,
52 AM. J. COMP. L. 625 (2004) [hereinafter EU-Romania], and Peter W. Schroth, National and International
Constitutional Law Aspects of African Treaties and Laws Against Corruption, 13 TRANSNAT’L L. & CONTEMP.
PROBS. 83 (2003) [hereinafter Aspects of African].
2
Each state has its own complete legal system, governmental structure and civil service. In many respects, the
state systems are not subordinate to the federal system, but assertion of federal authority over state corruption has
increased greatly in recent decades. See Peter W. Schroth, The United States and the International Bribery
Conventions, 50 AM. J. COMP. L. (supp.) 593, 609-610 (2002) [hereinafter U.S. and Bribery]; JOHN T. NOONAN, JR.,
BRIBES 584-601 (1984) [hereinafter Noonan]; Peter J. Henning, Federalism and the Federal Prosecution of State
and Local Corruption, 92 KY. L. J. 75 (2003-2004); George D. Brown, Carte Blanche: Federal Prosecution of
State and Local Officials After Sabri, 54 CATH. U. L. REV. 403 (2005); Sabri v. United States, 124 S.Ct. 1941 (2004).
3
E.g., Exodus 23:8; Deuteronomy 16:18-20. See generally Noonan, supra note 2, at 3-30.
4
In 1600 only judges and witnesses could be criminally bribed, that is, found guilty of a crime for taking
money to be influenced. By the eighteenth century the impeachment of Warren Hastings at least
acknowledged that administrators fell within a class that could commit the crime. Legislators were a
 2

the Constitution of the United States applied the term to cases involving public employees. It
appears only once in the Constitution, at the end of the article on the executive branch:
The President, Vice President and all civil Officers of the United States, shall be
removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or
other high Crimes and Misdemeanors.5
An act of the first Congress under the new Constitution included the first federal law against
bribery, addressed to the then-largest part of the minuscule federal bureaucracy.6 Any customs
officer convicted of taking a bribe was to be fined $200 to $2000 “and be forever disabled from
holding any office of trust or profit under the United States,” while the payer of the bribe was
liable only for a fine in the same amount. This act made clear that punishment and removal of
civil officers was not by impeachment only. Although many believed for two more decades in a
federal common law of crimes,7 the first Congress also made statutory crimes of active and
passive bribery of federal judges, this time treating both equally. The payer and the judge
on conviction thereof shall be fined and imprisoned at the discretion of the court; and
shall forever be disqualified to hold any office of honour, trust or profit under the
United States. 8
Doubt remained whether acceptance of contributions or gifts by a member of Congress could be
questioned in court.9 In 1795, a majority of the members of each house of the Georgia legislature
accepted payment for their votes to enact the Yazoo fraud, by which 35 million acres 10 of
western land was sold by the state for only $500,000. The outraged voters replaced their
representatives and the next legislature repealed the law, but a friendly lawsuit between two
successors in title to the original bribe payers was appealed to the U.S. Supreme Court. Chief
Justice Marshall found the votes of purchased legislators as valid as any.11 Long before, Georgia
had repaid in full all purchasers who would accept the payment and ceded the land in question to
the United States. Good uses may later have been made of Fletcher v. Peck as a precedent, but its
immediate effect was to give the perpetrators of the fraud an argument for additional
compensation for their lost booty: in 1814, Congress authorized a further $5,000,000.12
James Madison and his colleagues, perhaps mindful of Charles I and the Long Parliament,
had designed a detailed constitutional structure of separated powers, checks and balances, to
control encroachments of one branch on the prerogatives of another. They mistakenly thought a

nineteenth-century addition. By the mid-twentieth century, the usual statute included all officials and
employees of government.
Id. at 579. Hastings was acquitted by the House of Lords in 1795.
5
U.S. CONST. art. II §4.
6
Ch. 5, §35, 31 July 1789, 1 Stat. 29, 46-47.
7
Until United States v. Hudson, 11 U.S. (7 Cranch) 32 (1812).
8
Ch. 9, §21, 30 April 1790, 1 Stat. 112, 117.
9
Given the ideology of the Revolution and the revolutionaries’ deep suspicion of such corruption, given
the accumulated experience of English and American politics of the Fathers of the Constitution, given the
unillusioned view of human nature of Hamilton and Madison, it must be inferred that the absence of
constitutional or statutory protection of legislative integrity was deliberate. Lawmakers were not to be
inhibited from bribery by law. The only sanction for legislative bribetakers was to be political.
Noonan, supra note 2, at 435. The harshest punishment for a member of Congress was usually expulsion from that
body. In 1872 and 1873, it was even asserted that a member of the Forty-First Congress involved deeply in the
Crédit Mobilier scandals could be punished only by expulsion from that Congress, not from a subsequent Congress:
that he was absolved by his reelection to the Forty-Second Congress in 1870. Id. at 482.
10
About 54,700 square miles or 141,600 square kilometers.
11
Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 130 (1810).
12
See generally Noonan, supra note 2, at 435-442.
 3

large, federal republic would be safe from capture by “factions”13 and included no provisions on
political parties, the basic organizing principle of later years. As the democratic concept that our
leaders were only public servants, rather than an aristocracy by divine right, gathered practical
force, the real, unwritten constitutional system of two-party duopoly gradually displaced
separation of powers as the primary organizing principle. As a single example, the Senate’s
advice and consent to nominations by the President is now only secondarily about satisfying a
co-equal branch of government. It is primarily about political positioning and voting that
proceeds almost entirely along party lines, although a Senate majority of the other party will not
necessarily oppose the President’s choices. Parties wrested control of government employment
from the aristocracy in the first half of the nineteenth century, abused that control and gradually
relinquished it in part later in that century and early in the twentieth, but have maintained much
of it to the present, even greatly increasing it in recent decades.14
As the real, unwritten constitutional structure continues to evolve, the issues of separation vs.
sharing of powers and neutrality vs. party control of government employees show no signs of
being resolved. This evolution often proceeds by seeming to many to go too far in one direction,
followed by a correction. After learning that John Quincy Adams,15 Joseph Story16 and several
other patrician idols had feet of Yazoo River clay,17 we are better prepared to understand Andrew
Jackson’s movement for reform, by democratization and rotation, of the public service:
Office is considered as a species of property, and government rather as a means of
promoting individual interests than as an instrument created for the services of the
people. Corruption in some and in others a perversion of correct feeling and principles
divert government from its legitimate ends and make it an engine for the support of the
few at the expense of the many…. The duties of all public officers are, or at least admit
of being made, so plain and simple that men of intelligence may readily qualify
themselves for their performance; and I can not but believe that more is lost by the long
continuance of men in office than is generally to be gained by their experience…. I
submit, therefore, to your consideration whether the efficiency of the Government
would not be promoted and official industry and integrity better secured by a general
extension of the law which limits appointments to four years.18
Despite his rhetoric, President Jackson (1829-1837) proceeded moderately, so that “the
domination of the civil service by the upper classes decreased only marginally during [his]
administration.” 19 His successors, however, especially Buchanan (1857-1861) and Lincoln

13
See THE FEDERALIST No. 10 (James Madison).
14
See infra at notes 56 ff.
15
Senator from Massachusetts, Secretary of State, sixth President (1825-1829); represented Peck, who asserted
the validity of the fraud-based titles.
16
Speaker of the Massachusetts House of Representatives, founder of Harvard Law School, author of most of the
leading nineteenth-century treatises on American law, Associate Justice of the Supreme Court for 33 years (1812-
1845); also represented Peck.
17
Justice Johnson’s dissent concludes with this remarkable statement (at 147-148):
I have been very unwilling to proceed to the decision of this cause at all. It appears to me to bear strong
evidence, upon the face of it, of being a mere feigned case. … My confidence, however, in the
respectable gentlemen who have been engaged for the parties, has induced me to abandon my scruples, in
the belief that they would never consent to impose a mere feigned case upon this court.
18
President Jackson’s opening message to Congress, 8 Dec. 1829, as quoted in Noonan, supra note 2, at 36, 37.
See also infra note 20.
19
Developments in the Law – Public Employment, 97 HARV. L. REV. 1611, 1625 (1984) [hereinafter Public
Employment].
 4

(1861-1865), developed the idea of regular replacement of office-holders into a pervasive “spoils
system”20 of partisan patronage.21
Entry to the civil service by merit and examination began in America, as in England, in the
1850s22 and bills for a merit system were introduced beginning in 1864.23 Congress studied the
civil-service systems of China, England, France and Prussia, 24 but, as so often, America’s law
reform projects built mainly on English models. This is not at all to say, however, that the system
adopted in the U.S. closely resembled the Northcote-Trevelyan model,25 which formed the basis
of the British system.26
General Lee surrendered on 9 April 1865. Five days later, Lincoln was assassinated. He was
succeeded by Andrew Johnson (1865-1869), a Southern conservative in a time of Northern
radicalism. The remaining Confederate forces surrendered over the next seven months.
Meanwhile, with Congress not in session, Johnson pardoned most rebels and allowed Southern
state governments dominated by former rebels to begin reasserting control. When Congress
returned in December 1865, however, Radical Republicans took control, enacting the Civil
Rights Act of 1866 over Johnson’s veto27 and proposing the fourteenth amendment,28 both in

20
The Senate refused Jackson’s request for an extension of the Four Years’ law to cover all positions in
the civil service. It also refused to confirm some of his appointments, notably that of [Martin] Van Buren
as minister to Great Britain. The debate upon this appointment gave the spoilsman an epigram. Clay with
directness pointed to Van Buren as the introducer “of the odious system of proscription for the exercise of
the elective franchise in the government of the United States.” He continued: “I understand it is the
system on which the party in his own State, of which he is the reputed head, constantly acts. He was
among the first of the secretaries to apply that system to the dismission of clerks of his department ...
known to me to be highly meritorious.... It is a detestable system.”
And [Daniel] Webster thundered: “I pronounce my rebuke as solemnly and as decisively as I can
upon this first instance in which an American minister has been sent abroad as the representative of his
party and not as the representative of his country.”
To these and other challenges, Senator [William L.] Marcy of New York made his well-remembered
retort that “the politicians of the United States are not so fastidious.... They see nothing wrong in the rule
that to the victor belong the spoils of the enemy.”
SAMUEL P. ORTH, THE BOSS AND THE MACHINE 182-183 (1921).
21
Under Abraham Lincoln the spoils system reached new heights. The most complete sweep of the offices
thus far was made. For instance, 1,457 out of a total of 1,639 presidential officers were replaced.
Subordinate employees suffered in proportion.
PAUL P. VAN RIPER, HISTORY OF THE UNITED STATES CIVIL SERVICE 43 (1958) [hereinafter Van Riper].
22
What we would now call pass/fail examinations, which set a minimum standard but were not used to rank
those who passed, began for some federal offices in 1853. See Van Riper, supra note 21, at 52-53. The short-lived
first Civil Service Commission under Grant (see infra note 35 and accompanying text) administered truly
competitive examinations in 1872 and 1873, which were the model for the later system; an example appears in Van
Riper at 72-73. A general principle of “open, competitive examinations for testing the fitness of applicants for the
public service” was established by the Pendleton Act, §2, infra note 42. Over several decades, this system was
extended to almost all positions in the federal government, except the highest, which are appointed by the President.
23
See Van Riper, supra note 21, at 65 ff.
24
Joint Select Committee on Retrenchment, Civil Service of the United States 110-202, H. Rep. 47, 40th Cong.,
2d Sess. (1868).
25
STAFFORD H. NORTHCOTE & C.E. TREVELYAN, REPORT ON THE ORGANISATION OF THE PERMANENT CIVIL
SERVICE TOGETHER WITH A LETTER FROM THE REVEREND B. JOWETT (1853).
26
For some differences, see infra at notes 42 ff.
27
14 Stat. 27.
28
In modern times, we tend to ignore all but the first and last sections of the fourteenth amendment. Its text as a
whole, however, eschewed reconciliation and required radical change in the South.
 5

sharp contrast to the “black codes”29 that Johnson tolerated. Eleven former Confederate states –
all but Johnson’s Tennessee and Missouri, which was admitted to the Confederacy despite never
having a majority vote of its legislature to succeed from the Union – rejected the amendment
from October 1866 through January 1867. From March through July 1867, Congress passed,
Johnson vetoed, and Congress passed over his veto three Reconstruction Acts,30 one effect of
which was to replace the governments of several Southern states with new governments willing
to ratify the amendment.31
In this atmosphere of bitter confrontation with the President, Congress enacted the Tenure of
Office Act, 32 overriding the President’s vetoes of this and the first Reconstruction Act on the
same day. Congress’s assertion of power could hardly have been more direct than section 1:
That every person holding any civil office to which he has been appointed by and with
the advice and consent of the Senate, and every person who shall hereafter be appointed
to any such office, and shall become duly qualified to act therein, is, and shall be
entitled to hold such office until a successor shall have been in like manner appointed
and duly qualified, … ; Provided, That the Secretaries of State, of the Treasury, of War,
of the Navy, and of the Interior, the Postmaster-General, and the Attorney-General,
shall hold their offices respectively for and during the term of the President by whom
they may have been appointed and for one month thereafter, subject to removal by and
with the advice and consent of the Senate.
To underline the point, several subsequent sections used the “high misdemeanor” language of the
impeachment clause 33 to describe such violations as removing such an officer without the
Senate’s consent. Johnson challenged the act by removing his Secretary of War, Edwin M.
Stanton, who supported the Radical Republicans, then removing him again after his purported
reinstatement by the Senate. The House of Representatives promptly voted to impeach the

29
See generally PAGE SMITH, TRIAL BY FIRE: A PEOPLE’S HISTORY OF THE CIVIL WAR AND RECONSTRUCTION
678-684 (1982); THEODORE B. WILSON, THE BLACK CODES OF THE SOUTH (1965).
30
An Act to provide for the more efficient Government of the Rebel States, 2 Mar. 1867, 14 Stat. 428; An Act
supplementary to “An Act to provide for the more efficient Government of the Rebel States,” passed March second,
eighteen hundred and sixty-seven, and to facilitate Restoration, 23 Mar. 1867, 15 Stat. 2; 15 Stat. 14.
31
Like the first election of George W. Bush, Bush v. Gore, 531 U.S. 98 (2000), the valid proposal and ratification
of the fourteenth amendment is a fact that cannot be questioned. See also Butchers’ Benevolent Ass’n v. Crescent
City Live-Stock Landing and Slaughter-House Co. (Slaughter-House Cases), 83 U.S. 36 (1872).
32
An Act regulating the Tenure of certain Civil Offices, 2 Mar. 1867, 14 Stat. 430. This act was repealed in 1887,
24 Stat. 500, and its constitutionality was not tested in the courts. A statute requiring the Senate’s consent to removal
of postmasters was held unconstitutional in Myers v. United States, in which the Court said, “the Tenure of Office
Act of 1867, in so far as it attempted to prevent the President from removing executive officers who had been
appointed by him by and with the advice and consent of the Senate, was invalid ….” 272 U.S. 52, 176 (1926). The
Court later drew back, however, from Chief Justice (and former President) Taft’s view that Congress had no power
to interfere with the President’s control of the executive branch. See Humphrey’s Executor v. United States, 295 U.S.
602 (1935). In 1952, when the Court held Truman’s seizure of the steel mills unconstitutional, Justice Jackson said,
The actual art of governing under our Constitution does not and cannot conform to judicial definitions of
the power of any of its branches based on isolated clauses or even single Articles torn from context.
While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will
integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but
interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending
upon their disjunction or conjunction with those of Congress.
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634, 635 (1952) (concurring opinion). See Aspects of
African, supra note 1, at 92; Steven G. Calabresi & Joan L. Larsen, One Person, One Office: Separation of Powers
or Separation of Personnel?, 79 CORNELL L. REV. 1045 (1994); Mistretta v. United States, 488 U.S. 361 (1989).
33
Supra at note 5.
 6

President. The Senate failed, by one vote, to convict him, but “[f]or the time being, Johnson was
ruined on the national political scene”34 and the balance of power had shifted further toward
Congress and away from the President than at any time since then.
Only three years later, however, at the request of President Grant (1869-1871), Congress
passed what Van Riper called “the first modern civil service legislation in American history”:
That the President of the United States be, and he is hereby, authorized to prescribe
such rules and regulations for the admission of persons into the civil service of the
United States as will best promote the efficiency thereof, and ascertain the fitness of
each candidate in respect to age, health, character, knowledge, and ability for the branch
of service into which he seeks to enter; and for this purpose the President is authorized
to employ suitable persons to conduct said inquiries, to prescribe their duties, and to
establish regulations for the conduct of persons who may receive appointments in the
civil service.35
On this basis, Grant established the first Civil Service Commission, whose extraordinary work
became the basis of much that followed over the next century, 36 but Congress denied it all
funding after 1873.
The passions surrounding the Civil War and Reconstruction led also to the rise of state civil
service reform associations in the late 1870s and the establishment of the National Civil Service
Reform League (NCSRL) in August 1881. In its early years, this movement was heavily
Northeastern and many of its members had been abolitionists.37 The NCSRL found extraordinary
leaders in George William Curtis and Carl Schurz and aligned itself effectively with Protestant
morality, but obtained its greatest early impetus from the coincidence that President Garfield had
been shot the previous month, on 2 July, and died in September. 38 His assassin was always
described as “a disappointed office-seeker,” who had hoped for a federal job in return for his
political work, pursuant to the spoils system. 39 In 1882, the Supreme Court encouraged the
reform movement by holding constitutional an 1876 law prohibiting federal officers and
employees from being the collectors of political contributions. 40 Perhaps most important,
however, was the Democratic victory in the Congressional elections of 1882: faced with the
likelihood that the Democrats would use the spoils system just as the Republicans had, the

34
Van Riper, supra note 21, at 67. Johnson was later reelected to the Senate.
35
An Act making appropriations …, §9, 16 Stat. 495, 514-515 (1871).
36
See Van Riper, supra note 21, at 69-71. See also supra note 22.
37
Most of the reformers, and the great bulk of their adherents, had sided with the abolitionists in the slavery
controversy. Their abiding devotion to freedom, absorbed for years in lifting the Negro from his position
of degradation, was easily transferred to an attack upon the kind of gross corruption which, under the
Grant administration, for example, seemed to be debauching the nation. To them, the emergence of the
spoils system represented only the insidious development of another kind of slavery, this time of the body
politic instead of the Negro. The spoilsman, often characterized by the reformers as representing a new
aristocracy of plunder and patronage, replaced the slaveowner as the jinni of evil. Neither, they said, had
any moral right to his superior position or to his ill-gotten gains. Their proper attack on both was an
appeal for elemental justice in the name of an ultimate freedom.
Van Riper, supra note 21, at 81.
38
Apparently of infection caused by his physicians, rather than of the bullet wounds.
39
The assassin, who independently campaigned for Garfield and gave himself much of the credit for the latter’s
election, had asked to be made an ambassador, preferably to France. When his request was denied, he claimed that
God ordered him to assassinate the President. He testified in verse at his trial. It is generally agreed that he was
mentally disturbed and not in any way typical of office-seekers.
40
Ex Parte Curtis, 106 U.S. 371 (1882). General Newton M. Curtis was both a Treasury Department employee
and treasurer of the Republican State Committee of New York. See Van Riper, supra note 21, at 90.
 7

Republicans supported Democratic Senator George H. Pendleton’s reform bill even more than
did the Democrats.41
The Pendleton Act42 varied the British model in several ways: competitive examinations
were to be “practical in character” (§2(2)(1)), not academic, as in Britain; entrance to the civil
service was to be permitted at any level, not merely the lowest, as there;43 and factors other than
examination scores were explicitly authorized. These included selection “from among those
graded highest” (§2(2)(2)), 44 apportionment among the states and territories on the basis of
population (§2(2)(3)), 45 a limit of two members of the same family (§9) and preference for
veterans (§7).46
The Pendleton Act was applied by President Arthur (1881-1885) to about 12% of federal
employees.47 Some of his successors added more, usually after losing elections to the other party,
but the largest percentage addition was made by President Cleveland (1885-1889, 1893-1897)
near the end of his second term, increasing inclusion to almost 50%. McKinley (1897-1901)
removed 10,000 positions from the classified service and saw thousands of new positions created
outside it. After his assassination, however, Theodore Roosevelt (1901-1909) quickly reversed
most of the removals, then increased inclusion to 60% by the end of his second term. Roosevelt’s
protégé, President Taft (1909-1913), disappointed him in several ways, including allowing a
resurgence of patronage appointments. Roosevelt opposed Taft’s renomination, but Taft defeated
him, in part by manipulation of Southern delegations consisting heavily of federal employees.
Roosevelt then ran as a third-party candidate, allowing Democrat Wilson (1913-1921) to be
elected with a minority of the popular vote. Wilson allowed his Secretary of State, the outspoken
spoilsman William Jennings Bryan, and his party to control most appointments.
Both nonpartisanship and morale declined in the civil service under Taft and Wilson, but
both were eclipsed by Republican efforts to reinstate the spoils system and the extraordinary
level of corruption in Harding’s brief administration (1921-1923), although the extent of the
Teapot Dome frauds became public only after his untimely death. Coolidge (1923-1929) and
Hoover (1929-1933) – Coolidge’s powerful Secretary of Commerce – restored a more typical
balance of merit and patronage, then steadily raised the classified service to 80%. This trend was
quickly reversed in the early years of Franklin D. Roosevelt (1933-1945): most of the new
agencies created to fight the depression were exempted, many appointments bypassed the
examination system (not only for political reasons, because FDR’s policy leaders tended to be
chosen by intellect rather than party) and the classified service soon fell below 60%. He used all
available patronage power in the effort to pass his “court-packing plan”48 in 1937. This failed,
after which the many pressures for restoring and enhancing the merit system, including a major
campaign by the nonpartisan League of Women Voters, led him to begin extending the classified

41
See generally Van Riper, supra note 21, at 94-98.
42
Civil Service Act (Pendleton Act), 22 Stat. 403 (1883).
43
Words limiting entry to “the lowest grade” were deleted on motion of Senator Pendleton.
44
My italics. Attorney General A.T. Akerman had advised that the Constitution required some discretion to be
left to the President. 13 Op. Att. Gen. 516 (31 Aug. 1871).
45
The ideal of apportionment has evolved to include representation of races and genders. A pessimistic empirical
report on progress from 1979 to 1996 is Katherine C. Naff & John Crum, The President and Representative
Bureaucracy: Rhetoric and Reality, 60 PUB. ADMIN. REV., No. 2, at 98 (2000).
46
Preferential treatment for veterans has been firmly established since the Civil War. The OPM provides detailed
information on the current rules at http://www.opm.gov/veterans/html/vetguide.asp.
47
A much fuller report on the matters in this and the next paragraph is Van Riper, supra note 21, at 113-362.
48
Announced in a radio “fireside chat,” 9 March 1937, available at http://www.hpol.org/fdr/chat/.
 8

service in 1938. The remaining years before World War II saw more sophisticated examinations
and efficiency ratings, improved personnel management, the Hatch Acts49 and the Ramspeck Act
of 1940,50 whose results soon included a huge increase in the covered percentage.51
After the war and demobilization, the organization and management of the merit system and
the civil service generally were improved greatly under Truman (1945-1953). The system began
to look more than ever like the British, with strong employee rights against discipline and
dismissal.52 All of this was overshadowed by loyalty programs and, eventually, the witch-hunts
and (figurative) book-burnings led by the malicious liar, Senator Joseph McCarthy, but his
power declined and ended during 1954. The remainder of Eisenhower’s terms (1953-1961) was
marked by further substantial improvements in the merit system and the status of federal
employees, based in large part on the work of a commission led by former President Hoover.53
President Kennedy (1961-1963) first approved limited collective bargaining for federal
employees. 54 President Johnson (1963-1969) led an effort to bring outstanding talent to top
government jobs, including establishment of the Federal Executive Institute in 1968. The
accumulated post-war improvements and the spirit of Kennedy’s “Ask not what your country can
do for you – ask what you can do for your country”55 and Johnson’s Great Society made the
1960s and early 1970s the highest point of the U.S. civil service. Career employees had effective
tenure of office, high morale and a strong tradition of professionalism. Perhaps many saw
themselves as balancing all of the values listed by Gilbert in his classic article on the framework
of administrative responsibility, namely responsiveness, flexibility, consistency, stability,
leadership, probity, candor, competence, efficacy, prudence, due process and accountability.56
Presidents Nixon57 (1969-1974) and58 Carter (1977-1981), however, found the civil service
deficient in responsiveness and began the process of weakening the bureaucracy and

49
See infra at notes 120 ff.
50
54 Stat. 1211 (1940).
51
By 1943 approximately 95 per cent of the nearly 2,000,000 federal employees occupied positions under
the “jurisdiction” of the Civil Service Commission. At least 85 per cent of all federal personnel were
within the permanent service, though only 72.9 per cent of the positions were subject to full competitive
requirements.
Van Riper, supra note 21, at 344-345.
52
But, as usual, there were calls for bringing new blood and accountability to the bureaucracy by a return to the
spoils system, e.g., John Fischer, Let’s Go Back to the Spoils System!, HARPER’S MAGAZINE, Oct. 1945, at 362.
53
Especially COMMISSION ON ORGANIZATION OF THE EXECUTIVE BRANCH OF THE GOVERNMENT, PERSONNEL
AND CIVIL SERVICE: A REPORT TO THE CONGRESS (1955).
54
Exec. Order No. 10,988, 17 Jan. 1962, 27 Fed. Reg. 551 (1962). These rights were strengthened by President
Nixon in Exec. Order No. 11,491, 34 Fed. Reg. 17,605 (1969),
55
Inaugural Address, 20 Jan. 1961.
56
Charles E. Gilbert, The Framework of Administrative Responsibility, 21 J. POLITICS 373, 375-378 (1959). See
also CHARLES S. HYNEMAN, BUREAUCRACY IN A DEMOCRACY (1950); Barbara S. Romzek, Accountability
Implications of Civil Service Reform, in JAMES P. PFIFFNER & DOUGLAS A. BROOK (eds.), THE FUTURE OF MERIT:
TWENTY YEARS AFTER THE CIVIL SERVICE REFORM ACT 146 (2000); ELLIOT L. RICHARDSON, REFLECTIONS OF A
RADICAL MODERATE (1966).
57
I regretted that during the first term we had done a very poor job in the most basic business of every new
administration of either party: we failed to fill all the key posts in the departments and agencies with
people who were loyal to the President and his programs. Without this kind of leadership in the appointee
positions, there is no way for a president to have any major impact on the bureaucracy…. I was
determined that we would not fail in this area again, and on the morning after my reelection I called for
the resignation of every non-career employee in the executive branch.
 9

strengthening political control that continues today. In the wake of Watergate, 59 and in the
moralistic atmosphere of Carter’s first years, Congress enacted several reform laws, among
which are the Foreign Corrupt Practices Act of 1977,60 the Civil Service Reform Act of 197861
and the Ethics in Government Act of 1978.62 The CSRA stakes out high moral ground, reciting
commitments to a merit-based and politically neutral civil service; elimination of discrimination
based on political affiliation, race, color, religion, national origin, sex, marital status, age or
handicap; efficiency; compensation comparable to the private sector, with financial incentives
for excellent performance; and protection of whistleblowers. It includes a sweeping “bill of
rights” protecting federal civil servants.63 At the same time, however, a major purpose and effect
of the CSRA was helping to move the federal civil service away from political neutrality and
toward greater responsiveness to the party in power. In particular, the Senior Executive Service
of 6,900 high level managers and professionals64 was established in a way that facilitated its
politicization:65
Accepting a position in the SES entails clear risks in the form of reduced legal
protections. Performance evaluations by the civil servant’s superiors – typically
political appointees – become the basis not only for compensation, but even for
continued tenure in office: the executive can be removed for “less than fully successful
executive performance.” Compared to those of the ordinary civil servant, the SES
official’s rights of appeal are virtually nonexistent…. To the extent that the relaxation of
constraints on discretion obliges senior civil servants to become more responsive to the
political predilections of the presidential appointees who are their superiors, the
effective range of political influence has been extended more deeply into the American
bureaucracy.66
In addition, the bipartisan Civil Service Commission was replaced by the Office of Personnel
Management, controlled by the President and his party. President Reagan (1981-1989), who
called himself antigovernment, used these and other powers to make the bureaucracy more

RICHARD M. NIXON, RN: THE MEMOIRS OF RICHARD NIXON 768 (1978).

58
The very positive development of inspectors general, independently searching out fraud, waste and other
abuses, began under President Ford (1974-1977) in the Department of Health, Education and Welfare and was
expanded to other departments under Carter.
59
See generally U.S. and Bribery, supra note 2, at 593-596.
60
Pub. L. No. 95-213, 91 Stat. 1494 (1977).
61
Pub. L. No. 95-454, 92 Stat. 1111 (1978). See generally PATRICIA W. INGRAHAM & CAROLYN BAN (eds.),
LEGISLATING BUREAUCRATIC CHANGE: THE CIVIL SERVICE REFORM ACT OF 1978 (1984). An account of the CSRA
by the director of President Carter’s Personnel Management Project is Dwight Ink, What Was Behind the 1978 Civil
Service Reform?, in Future of Merit, supra note 56, at 39.
62
Pub. L. No. 95-521, 92 Stat. 1824 (1978), as amended, 5 U.S.C. app. §§101-111, discussed infra at notes 92 ff.
63
5 U.S.C. §2302(b).
64
The latest figures I found are for 2003, when SES appointees totaled 6,736. The total rose to about 8,200 under
the first President Bush (1989-1993), then was reduced to about its current level under Clinton.
65
[T]he 1978 Civil Service Reform Act advocated by President Carter was designed to enhance the
responsiveness of the higher civil service by allowing individuals to be transferred to other jobs,
ostensibly to broaden their perspectives or to make better use of their talents. More likely, however, the
idea was to provide incentives for recalcitrant or difficult individuals to leave the civil service. Carter no
doubt figured that this would help his own administration, but in the end it proved to be a valuable tool
for his successor.
JOEL D. ABERBACH & BERT A. ROCKMAN, IN THE WEB OF POLITICS: THREE DECADES OF THE U.S. FEDERAL
EXECUTIVE 12 (2000) [hereinafter Web of Politics]. The point is developed id. at 32-39.
66
Public Employment, supra note 19, at 1648, 1650.
 10

responsive to his policies. He reduced the federal workforce, notably by closing military bases
and laying off their civilian employees, and reduced the benefits of federal employment.
The Clinton administration (1993-2001) joined the New Public Management movement,67
calling it first National Performance Review and later National Partnership for Reinventing
Government. The first NPR report defines its agenda as “cutting red tape,” “putting customers
first,” “empowering employees to get results” and “cutting back to basics.”68 It denies that bad
people – corrupt or incompetent civil servants – are the problem, insisting instead that the
problem is bad systems, especially excessive regulations, controls and paperwork. Even so, the
civilian federal workforce was reduced by hundreds of thousands, mainly at lower grades, by
executive orders and the Federal Workforce Restructuring Act of 1994,69 leaving it smaller than
at any time since the Hoover administration. Outsourcing to private firms shifted dramatically,
from equal parts of goods and services in 1984 to 80% services in 1996, and grew rapidly, so that,
by the late 1990s, the total enterprise of the federal government was much greater than ever
before, but three-quarters of it was privatized and outside direct government control.70
Some declared the death of the civil service71 as employee morale dropped in the 1990s,72
but “demolition politics”73 took hold with a vengeance under George W. Bush (2001-present)
after 11 September 2001. The Homeland Security Act of 200274 combined 22 agencies into a
single Department of Homeland Security, to “help prevent catastrophic attacks, mobilize national
resources for an enduring conflict, and assist in recovery efforts all the while protecting this
Nation’s values and liberties.”75 The act includes sweeping authority to exempt the 170,000 DHS
employees from large parts of civil-service law. In proposed regulations,76 the administration

67
See Web of Politics, supra note 65, at 134-140; DONALD F. KETTL, THE GLOBAL PUBLIC MANAGEMENT
REVOLUTION: A REPORT ON THE TRANSFORMATION OF GOVERNANCE (2000).
68
VICE PRESIDENT ALBERT GORE’S NATIONAL PERFORMANCE REVIEW, FROM RED TAPE TO RESULTS:
CREATING A GOVERNMENT THAT WORKS BETTER AND COSTS LESS (1993).
69
Pub. L. No. 103-226, 108 Stat. 115 (1994).
70
See Paul C. Light, The True Size of Government, GOVEXEC.COM, 1 Jan. 1999, available at
http://www.govexec.com/features/0199/0199s1.htm.
71
E.g., Frederick C. Thayer, The U.S. Civil Service 1883-1993 (R.I.P.), in ALI FARAZMAND (ed.), MODERN
SYSTEMS OF GOVERNMENT: EXPLORING THE ROLE OF BUREAUCRATS AND POLITICIANS 95 (1997).
72
See Alison Maxwell, Top Execs Say Government Not What It Used To Be, GOVEXEC.COM, 6 Nov. 1998,
available at http://www.govexec.com/dailyfed/1198/110698a1.htm.
73
A term used by Chester A. Newland to describe the period 1971-1996 in Professional Public Management,
Demolition Politics, & Trust in Government, 25 PUB. MANAGER, No. 1, at 3 (1996).
74
Pub. L. No. 107-296, 116 Stat. 2135 (2002), codified as amended at 6 U.S.C. §101 et seq.
75
H.R. Rep. No. 107-609, at 63-64 (2002). When Hurricane Katrina struck New Orleans on 29 August 2005,
many considered the response of the Federal Emergency Management Agency – now part of the DHS – too slow,
including President Bush, who said, on 2 September, “The results are not acceptable.”
Some current and former officials argued that as it worked to focus on counterterrorism, the
department has diminished the government’s ability to respond in a nuts-and-bolts way to disasters in
general, and failed to focus enough on threats posed by hurricanes and other natural disasters in particular.
From an independent Cabinet-level agency, FEMA has become an underfunded, isolated piece of the vast
DHS, yet it is still charged with leading the government's response to disaster.
“It’s such an irony I hate to say it, but we have less capability today than we did on September 11,”
said a veteran FEMA official involved in the hurricane response. “We are so much less than what we
were in 2000,” added another senior FEMA official. “We’ve lost a lot of what we were able to do then.”
Susan B. Glasser & Josh White, Storm Exposed Disarray at the Top, WASH. POST, 4 Sept. 2005, at A1.
76
Dept. Homeland Security & Office of Personnel Mgmt., Department of Homeland Security Human Resources
Management System: Final Rule, 70 Fed.Reg. 5272 (1 Feb. 2005) (to be codified at 5 C.F.R., Ch. 97 & Part 9701).
 11

seized the opportunity to subject DHS employees to even greater control. It also attacked the
employees’ unions, which, forbidden to strike, have never been especially powerful anyway.77 In
2003, generally similar authority was given to the much larger Department of Defense78 with
respect to its 750,000 civilian employees (28% of the federal civil service) and DoD’s proposed
regulations79 are similar to those of DHS in several respects. Well into 2005, officials said the
DHS reforms would serve as a model for changes throughout the federal civil service80 and other
agencies proposed legislation exempting their personnel management from the general régime.81
However, shortly after the DHS regulations were issued, unions representing DHS employees
filed suit against their implementation. By July 2005, the administration was emphasizing the
differences between its proposed government-wide reform legislation82 and that relating to the
DHS and the DoD, especially with respect to the roles of unions.83
In August 2005, implementation of the DHS regulations was enjoined by the U.S. District
Court for the District of Columbia, which found that three of their significant aspects failed to

77
The extent to which the DHS regulations assert control by the politically-appointed management is clear in the
first few subsection of 5 C.F.R. §8701.511, entitled “Management Rights”:
(a) (1) To determine the mission, budget, organization, number of employees, and internal security
practices of the Department;
(2) To hire, assign and direct employees in the Department; to assign work, make determinations with
respect to contracting out, and determine the personnel by which Department operations may be
conducted; to determine the numbers, types, grades or occupational clusters and bands of employees or
positions assigned to any organizational subdivision, work project or tour of duty, and the technology,
methods and means of performing work; to assign and deploy employees to meet any operational demand;
and to take whatever other actions may be necessary to carry out the Department’s mission; and
(3) To lay off and retain employees, or to suspend, remove, reduce in grade, band or pay, or take other
disciplinary action against such employees or, with respect to filling positions, to make selections for
appointments from properly ranked and certified candidates for promotion or from any other appropriate
source.
(b) Management is prohibited from bargaining over the exercise of any authority under paragraph (a) of
this section or the procedures that it will observe in exercising the authorities set forth in paragraphs (a)(1)
and (2) of this section.
78
National Defense Authorization Act for Fiscal Year 2004, §9902, Pub. L. No. 108-136, 117 Stat. 1392, 1621-
1622 (2003), codified at 5 U.S.C. §9902.
79
Dept. Defense & Office of Personnel Mgmt, National Security Personnel System: Proposed Rule, 70 Fed.Reg.
7551 (14 Feb. 2005) (to be codified at 5 C.F.R., Ch. 99 & Part 9901).
80
E.g., “DHS has developed and distributed for public comment proposed human resource regulations that will
dramatically affect DHS employees and could serve as a model for the whole federal government….” Dep’t of
Homeland Security, Office of Inspector General, Review of the Status of Department of Homeland Security Efforts
to Address Its Major Management Challenges 3 (2004), available at http://www.dhs.gov/interweb/assetlibrary/-
OIG_DHSManagementChallenges0304.pdf. “Kay Coles James, director of the Office of Personnel Management,
said the new rules ‘can truly serve as a model for the rest of the federal government.’” Stephen Barr, Unions
Strongly Disagree With Ridge on New Personnel Rules, WASH. POST, 27 Jan. 2005, at B2.
81
Among these are the Department of Education and the Securities and Exchange Commission.
82
In place of earlier drafts entitled Civil Service Modernization Act, the draft dated 14 July 2005 and released 19
July is entitled Working for America Act of 2005. At this writing, it has not yet been introduced in Congress, but is
available, along with various explanatory documents, at http://www.whitehouse.gov/results/agenda/working.html.
83
“It’s a much narrower set of reforms … because the mission of these agencies is very different,” [Clay]
Johnson [, Deputy Director, OMB,] said. “The business case that exists for the reforms at DoD and DHS
does not exist in the domestic agencies, so we haven’t sought the same level of reforms.”
Tim Kauffman, New Spin on Reform, FEDERALTIMES.COM., 25 July 2005, available at
http://www.federaltimes.com/index2.php?S=990343. The documents mentioned supra note 82 include extensive
tables of contrasts between the draft Working for America Act and the DHS and DoD regulations.
 12

conform to the requirements of the Homeland Security Act. 84 These are failure to ensure
collective bargaining rights; 85 the attempt to expand the jurisdiction of the Federal Labor
Relations Authority, a separate agency, by assigning it to review decisions of the DHS’s
Homeland Security Labor Relations Board;86 and limiting in a way that is not “fair” the power of
the Merit System Protection Board to mitigate penalties for employee misconduct. 87 At this
writing, implementation is “on hold” indefinitely.

II. A CLOSER LOOK AT KEY LAWS

A. Financial Disclosure

Unlike article IX of the Inter-American Convention Against Corruption,88 which the U.S.
and Canada rejected for themselves but endorsed for others, 89 and article 20 of the United
Nations Convention Against Corruption,90 a legal nullity that authorizes violation of the almost
universally recognized human right of a presumption of innocence by any country so lacking in
constitutional standards as to ignore it,91 the U.S. laws on financial disclosure do not give rise to
a presumption of guilt. The Ethics in Government Act of 1978 92 requires senior federal
employees to file detailed disclosures of their personal finances annually. Omitting a few details,

84
National Treasury Employees Union v. Chertoff, 2005 U.S. Dist. LEXIS 17216 (D.D.C. 12 Aug. 2005);
motion to narrow the injunction denied, 2005 U.S. Dist. LEXIS 22802 (7 Oct. 2005).
85
The statutory standard is that the system “ensure that employees may organize, bargain collectively, and
participate through labor organizations of their own choosing in decisions which affect them, subject to any
exclusion from coverage or limitation on negotiability established by law.” 5 U.S.C. §9701(b)(4). The court said, at
*60-*61, *73:
The sine qua non of good-faith collective bargaining is an enforceable contract once the parties reach
agreement. … The Regulations fail because any collective bargaining negotiations pursuant to its terms
are illusory: the Secretary retains numerous avenues by which s/he can unilaterally declare contract terms
null and void, without prior notice to the Unions or employees and without bargaining or recourse. Under
the Regulations, DHS would have the power to take any matter off the bargaining table simply by issuing
department-wide directives, policies, or other regulations. … HSLRB could issue binding Department-
wide opinions without regard to the terms of collectively bargained agreements. … DHS managers have
also reserved the right to “take whatever other actions may be necessary to carry out the Department’s
mission,” … without bargaining or prior notice, irrespective of the terms of collective bargaining
agreements. … [W]hile the Agencies might be entitled to deference in filling in the details of a collective
bargaining system, they were not permitted to create a system that is not “collective bargaining” at all.
86
Id. at *74-*80.
87
Id. at *80-*91. The regulations provided, for example:
Given the Department's need to maintain an exceptionally high degree of order and discipline in the
workplace, an arbitrator, adjudicating official, or MSPB may not modify the penalty imposed by the
Department unless such penalty is so disproportionate to the basis for the action as to be wholly without
justification …. When a penalty is mitigated, the maximum justifiable penalty must be applied.
5 C.F.R. §9701.706(k)(6). The statutory standard is that regulations may modify the usual civil-service rules in this
area “only insofar as such modifications are designed to further the fair, efficient, and expeditious resolution of
matters involving the employees of the Department.” 5 U.S.C. §9701(f)(2)(C).
88
OEA/Ser. K/XXXIV.1, cicor/DOC. 14/96 REV. 2, 29 March 1996, entered into force 6 March 1997.
89
See EU-Romania, supra note 1, at 688-689; U.S. and Bribery, supra note 2, at 615-619.
90
G.A. Res. A/RES/58/4, 31 Oct. 2003, opened for signature 9 Dec. 2003.
91
See EU-Romania, supra note 1, at 689-690; American Bar Association, Section of International Law, Report
and Recommendation Regarding the United Nations Convention Against Corruption 1, 27-28 (13-16 April 2005).
92
Supra note 62.
 13

those required to file include the President; the Vice President; each senior executive (i.e., above
GS-15) in the executive branch or the Postal Service; each military officer at the rank of
brigadier general, rear admiral, commodore or higher; the Director of the Office of Government
Ethics and designated agency ethics officials; any other civilian employee in the Executive
Office of the President who holds a commission of appointment from the President; each
member of Congress; each officer or employee of Congress; all Justices, judges and judicial
employees93 (§101). Failure to file or providing false information can lead to a civil penalty of up
to $10,000 (§104). With exceptions for employees of intelligence agencies and undisclosed
special counsels (§105(a)), the reports are available to the public. In addition, many employees at
lower levels are required to file confidential financial reports, not available to the public (§107).

B. Bribery and Conflict of Interest94

In 18 U.S.C.,95 §201(b) prohibits active or passive bribes to officials or witnesses; §201(c)

prohibits active or passive illegal gratuities to officials or witnesses; §203 prohibits unauthorized
compensation of officials for representing persons before the government; §205 prohibits
officials from representing persons prosecuting claims against the U.S. or before the government;
§207 limits activities of former employees of the executive branch and Congress; §208 prohibits
participation of executive-branch officials in matters affecting their financial interests; §209
prohibits executive-branch officials from receiving outside salaries; 96 and §216 provides
penalties for violations of §§203-205 and §§207-209. 97 Section 201 defines its terms broadly:98
(1) the term “public official” means Member of Congress, Delegate, or Resident
Commissioner, either before or after such official has qualified, or an officer or
employee or person acting for or on behalf of the United States, or any department,
agency or branch of Government thereof, including the District of Columbia, in any
official function, under or by authority of any such department, agency, or branch of
Government, or a juror;
(2) the term “person who has been selected to be a public official” means any person
who has been nominated or appointed to be a public official, or has been officially
informed that such person will be so nominated or appointed; and
(3) the term “official act” means any decision or action on any question, matter, cause,
suit, proceeding or controversy, which may at any time be pending, or which may by

93
Under the Identity Theft and Assumption Deterrence Act of 1998, Pub. L. No. 105-318, § 7, 112 Stat. 3007
(1998), judges can withhold some details from the public. See Sarah Goldstein, Current Development 2004-2005:
Reexamining Financial Disclosure Procedures for the Federal Judiciary, 18 GEO. J. LEGAL ETHICS 759 (2005).
94
See generally P. J. Meitl, Peter I. Minton & Beth Dyer, Public Corruption, 42 AM. CRIM. L. REV. 781 (2005)
[hereinafter Public Corruption]. This article is updated annually.
95
This arrangement and most of the current text was established by Pub. L. No. 87-849, 76 Stat. 1119 (1962). See
generally Roswell B. Perkins, The New Federal Conflict-of-Interest Law, 76 HARV. L. REV. 1113 (1963). There are
also many federal statutes dealing with active and passive bribery in specific circumstances, such as 18 U.S.C.
§212(a), covering bribery of a bank examiner by an officer, director or employee of a financial institution.
96
See Crandon v. United States, 494 U.S. 152 (1990).
97
The comments on sentencing in U.S. and Bribery, supra note 2, at 607-609, must now be qualified by United
States v. Booker, 125 S.Ct. 738 (2005), in which the Supreme Court held the federal sentencing guidelines to violate
the sixth amendment right to jury trial if mandatory, and therefore declared them advisory only. Sentencing is
discussed in much more detail in Public Corruption, supra note 94, at 794-800.
98
And the courts have read them broadly, e.g., Dixson v. United States, 465 U.S. 482, 496 (1984) (definition of
public official not to be given a “cramped reading”).
 14

law be brought before any public official, in such official’s official capacity, or in such
official’s place of trust or profit.99
There are four key differences between bribery and illegal gratuity. First, bribery requires intent
to influence or to induce (§201(b)(1)), or to be influenced or induced (§201(b)(2)), while illegal
gratuity requires only that the gratuity be “for or because of any official act performed or to be
performed” (§201(c)(1)(A), (B)), although “the Government must prove a link between a thing
of value conferred upon a public official and a specific ‘official act’ for or because of which it
was given.”100 Second, illegal gratuity applies to former officials, but bribery does not.101 Third,
an illegal gratuity can relate only to an official act, whereas bribery can relate to “any official
act,” “any fraud ... on the United States” or “any act in violation of the lawful duty” of the
official, nominee, etc. (§§201(b)(1) (A), (B) and (C), respectively ). Fourth, the penalties for
bribery are much more severe than those for illegal gratuity, notably imprisonment for up to
fifteen years (§201(b)), rather than up to two years (§201(c)). In addition, one convicted of
bribery, unlike one convicted only of illegal gratuity, “may be disqualified from holding any
office of honor, trust, or profit under the United States” (§201(b)). 102 Aside from the
prosecution’s failure to prove the statutory elements of the crime, the federal courts have usually
rejected all of the common defenses to bribery and illegal gratuity,103 such as entrapment,104 lack
of due process of law,105 duress or coercion106 and legislative privilege.107
Conflicts of interest are governed by a large and complicated mass of often conflicting
federal and state laws, regulations, ethical rules (such as those of bar associations) and decisions
of courts, agencies and others (such as bar committees),108 but this discussion is only of the
federal laws. Section 203 forbids paying to or receiving by almost109 any employee of any branch
of the federal government (or a person who expects to become such an employee, even if it never
happens110) of any compensation for representational services
in relation to any proceeding, application, request for a ruling or other determination,
contract, claim, controversy, charge, accusation, arrest, or other particular matter in
which the United States is a party or has a direct and substantial interest, before any
department, agency, court, court-martial, officer, or any civil, military, or naval
commission….

99
18 U.S.C. §201(a).
100
United States v. Sun-Diamond Growers, 526 U.S. 398, 414 (1999).
101
Id. See United States v. Hipkins, 756 F. Supp. 233 (D.Md. 1991).
102
Compare the early statutes set forth supra at notes 6 and 8.
103
See Public Corruption, supra note 94, at 792-794.
104
E.g., United States v. Thickstun, 110 F.3d 1394 (9th Cir. 1997); United States v. Lew, 980 F.2d 855 (2d Cir.
1992). But see United States v. Sandoval, 20 F.3d 134 (5th Cir. 1994).
105
E.g., United States v. Kelly, 707 F.2d 1460 (D.C. Cir. 1983) (the “Abscam” sting case). “No person shall . . .
be deprived of life, liberty, or property, without due process of law. . . .” U.S. CONST. amend. 5.
106
E.g., United States v. Liu, 960 F.2d 449 (5th Cir. 1992).
107
E.g., United States v. Brewster, 408 U.S. 501 (1972); United States v. Claiborne, 727 F.2d 842 (9th Cir. 1984).
See U.S. CONST. art. I §6.
108
See, e.g., Grant Dawson, Working Guidelines for Successive Conflicts of Interest Involving Government and
Private Employment, 11 GEO. J. LEGAL ETHICS 329 (1998).
109
There are a few exceptions, such as retired military officers not otherwise employed in government, §206, and
employees representing family members, §203(d).
110
See United States v. Wallach, 935 F.2d 445 (2d. Cir. 1991).
 15

The “particular” matter may be merely “a particular category of contracts.”111 Convictions have
been upheld even where the employee had no relevant authority or there was no relevant matter
pending, although the continuing force of those decisions is in doubt.112 Congress made clear in
1989 that “representational services” includes merely giving advice. 113 Still unresolved is
whether providing such services is prohibited only before a department, etc. or also in
unenumerated fora.114 As in the cases of bribery or illegal gratuity, the courts have usually
rejected most defenses, but they have recognized the defense of reasonable reliance on legal
advice or official misstatement of law 115 and the possibility of a defense of outrageous
government behavior.116 Although it largely overlaps §203, §205 prohibits a broader, perhaps
too broad, 117 range of representation, even without compensation, but with slightly larger
exceptions.
Section 207 is a long, complex “revolving door” statute. Among other things, it permanently
prohibits former executive-branch employees from representing anyone other than the U.S. or
the District of Columbia in any “particular matter”118 in which they participated as government
employees (§207(a)(1)) and prohibits such representation for two years to executive-branch
employees who knew or should have known the matter was pending under their official
responsibility during their last year (§207(a)(1)). Former executive-branch and Congressional
employees who worked 60 days or more and former members of Congress are forbidden for one
year to lobby about trade or treaty negotiations in which they participated (§207(b)). Senior
officers are forbidden for one year to represent others before the agency in which they worked in
their last year (§207(c)). Former Vice Presidents and other very senior officers are forbidden
such representation for one year before any part of the executive branch (§207(d)). Former
members of Congress and their staffs are forbidden to lobby in Congress for one year (§207(e)).
All of these rules are subject to qualifications and details too extensive for discussion here.119

111
United States v. Williams, 705 F.2d 603, 622 (2d Cir. 1983).
112
See United State v. Evans, 572 F.2d 455 (5th Cir. 1978); but see United State v. Sun-Diamond Growers, 138
F.3d 961 (D.C. Cir. 1998), aff’d, 526 U.S. 398 (1999) (see supra at note 100).
113
Ethics Reform Act of 1989, Pub. L. No. 101-194, §402, 103 Stat 1716 (1989). The contrary had been held in
United State v. Myers, 692 F.2d 823 (2d Cir. 1982).
114
See United States v. Freeman, 813 F.2d 303 (10th Cir. 1987) (not limited); United States v. Wallach, 979 F.2d
912 (2d Cir. 1992) (limited).
115
See United States v. Baird, 29 F.3d 647 (D.C. Cir. 1994).
116
See United States v. Sanchez, 138 F.3d 1410 (11th Cir. 1998).
117
See Carolyn Elefant, When Helping Others Is a Crime: Section 205’s Restriction on Pro Bono Representation
by Federal Attorneys, 3 GEO. J. LEGAL ETHICS 719 (1990). In United States v. Bailey, 498 F.2d 677 (D.C. Cir.
1974), law students who were also government employees were prohibited from participating in a law-school clinic
representing indigent criminal defendants.
118
See EEOC v. Exxon Corp., 202 F.3d 755 (5th Cir. 2000); C.A.C.I., Inc. v. United States, 719 F.2d 1567 (Fed.
Cir. 1983).
119
See generally Public Corruption, supra note 94, at 812-817; Michael H. Chang, Protecting the Appearance of
Propriety: The Policies Underlying the One-Year Ban on Post-Congressional Lobbying Employment, 5 KAN. J. L.
& PUB. POL’Y 121 (1996).
 16

C. The Hatch Act(s)

Shortly after his inauguration, President Jefferson (1801-1809) had his department heads
instruct their employees not to “attempt to influence the votes of others nor take any part in the
business of electioneering.”120 In 1883, the Pendleton Act provided
Fifth, that no person in the public service is for that reason under any obligations to
contribute to any political fund, or to render any political service, and that he will not be
removed or otherwise prejudiced for refusing to do so.
Sixth, that no person in said service has any right to use his official authority or
influence to coerce the political action of any person or body.121
Rule I of the Civil Service Commission created by the Pendleton Act, issued by President Arthur
(1881-1885), expanded slightly on paragraph Sixth:
No person in said service shall use his official authority or influence either to coerce the
political action of any person or body or to interfere with any election.
President Theodore Roosevelt, who was a member of the CSC from 1889 to 1895, amended Rule
I in 1907 to prohibit active participation in political management or campaigns.122 On the basis
of this rule, the CSC developed a body of decisions and, eventually, restatements of the political
activities prohibited to civil servants. 123 The original Hatch Act of 1939 124 extended the
prohibition to almost all federal employees, including most political appointees.125 Penalties,

120
The President of the United States has seen with dissatisfaction officers of the General Government
taking on various occasions active parts in elections of the public functionaries, whether of the General or
of the State Governments. Freedom of elections being essential to the mutual independence of
governments and of the different branches of the same government, so vitally cherished by most of our
constitutions, it is deemed improper for officers depending on the Executive of the Union to attempt to
control or influence the free exercise of the elective right. This I am instructed, therefore, to notify to all
officers within my Department holding their appointments under the authority of the President directly,
and to desire them to notify to all subordinate to them. The right of any officer to give his vote at
elections as a qualified citizen is not meant to be restrained, nor, however given, shall it have any effect to
his prejudice; but it is expected that he will not attempt to influence the votes of others nor take any part
in the business of electioneering, that being deemed inconsistent with the spirit of the Constitution and his
duties to it.
As quoted in CONG. GLOBE, 25th Cong., 3d Sess., app., at 409 (1839).
121
Pendleton Act, §2, supra note 42.
122
Exec. Order No. 642, 3 June 1907; amended without changing wording, Exec. Order No. 655, 15 June 1907.
The present form of Rule I, as last changed in 1963, is 5 C.F.R. §4.1, 28 Fed.Reg. 10024 (14 Sept. 1963).
123
See Henry Rose, A Critical Look at the Hatch Act, 75 HARV. L. REV. 510, 510-511 (1962) [hereinafter Critical
Look].
124
An Act to Prevent Pernicious Political Activities, 2 Aug. 1939, 53 Stat. 1147, codified at 5 U.S.C. §§1501-
1508, 7321-7326, held constitutional in United Public Workers v. Mitchell, 330 U.S. 75 (1947), and Civil Serv.
Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548 (1973). Firing a teacher for publicly criticizing the board of
education was held to violate the first-amendment guaranty of free speech in Pickering v. Board of Education, 391
U.S. 563 (1968), and the courts have protected political speech of government employees against Hatch-Act charges,
e.g., Blaylock v. Merit Sys. Prot. Bd., 851 F.2d 1348 (11th Cir. 1988); Biller v. Merit Sys. Prot. Bd., 863 F.2d 1079
(2d Cir. 1988). Both Bush’s new Ambassador to the United Nations and his Special Counsel responsible for
protecting the merit system, including the Hatch Act, have argued that protection of first-amendment freedoms is a
ground for the constitutionality of the Hatch Act, although neither Congress nor the Supreme Court appears to have
taken this position. See JOHN R. BOLTON, THE HATCH ACT: A CIVIL LIBERTARIAN DEFENSE (1976); Scott J. Bloch,
The Judgment of History: Faction, Political Machines, and the Hatch Act, 7 U. PA. J. LAB. & EMP. L. 225 (2005)
[hereinafter Judgment of History].
125
The Hatch Act now applies to all civilian executive-branch employees, career and politically appointed, except
the President and the Vice President, 5 U.S.C. §7322(1), but some are subject to more restrictions than others.
 17

including possible imprisonment, were added, enforcement was assigned to the Justice
Department and dismissal was made mandatory for those found guilty of violations.126 When
Congress revised the Hatch Act in 1940, it added, for the first time, coverage of state and local
employees “whose principal employment is in connection with any activity which is financed in
whole or in part by loans or grants made by the United States” (§15) and made clear that the
act’s restrictions applied to employees of the District of Columbia. The 1940 revision expanded
several details of the prohibitions on political activity and incorporated by reference (§15):
the same activities on the part of such persons as the United States Civil Service
Commission has heretofore determined are at the time of the passage of this act
prohibited on the part of employees in the classified civil service of the United States by
the provisions of the civil-service rules prohibiting such employees from taking any
active part in political management or in political campaigns.
Although some thought this enacted all the CSC case law, good and bad,127 the Supreme Court
eventually held that it meant only the Commission’s then-current restatement, which had been
referred to by Senator Hatch in the debates.128
The first major change129 in the Hatch Act after 1940 came in 1993, when most restrictions
on participation in political campaigns were removed for many federal employees.130 The law
now permits most federal employees to be active in political management and political
campaigns when off duty and to run for office in elections that are “non-partisan,” meaning the
candidates are not endorsed by parties “any of whose candidates for Presidential elector received
votes in the last preceding election” (§7322(2)). They may not run for office in a partisan
election, solicit political contributions, solicit or encourage political activity by persons having
business before the agency where they are employed or use their position to affect the outcome
of an election (§7323(a)),131 or engage in any political activity while on duty (§7324(a)).132 A
large category of federal employees, however, is “further restricted,” and continues to be
forbidden to take an active part in political management or political campaigns. 133

Political activities of members of the military services are excluded from the Hatch Act, 5 U.S.C. §7322(1), but
restricted by other laws, such as 10 U.S.C. §973(b).
126
In 1950, the Commission was authorized to reduce this penalty to not less than 90 days’ suspension without
pay if it found unanimously that dismissal was not warranted in a particular case. Act of 25 Aug. 1950, ch. 784, 64
Stat. 475. This was later reduced to 30 days. Act of 5 Oct. 1962, 76 Stat. 750.
127
E.g., Critical Look, supra note 123, at 525.
128
Letter Carriers, supra note 124, 413 U.S. at 572-573.
129
Presidents Ford and George H.W. Bush vetoed bills for major changes in 1976 and 1990, respectively.
130
Hatch Act Reform Amendments of 1993, Pub. L. No. 103-94, 107 Stat. 1001.
131
See generally Judgment of History, supra note 124, at 239-250.
132
See Burrus v. Vegliante, 336 F.3d 82 (2d Cir. 2003).
133
5 U.S.C. §7323(b)(2) defines the further restrictions as applying to any employee “except one appointed by the
President, by and with the advice and consent of the Senate,” of the Federal Election Commission or the Election
Assistance Commission; the FBI; the Secret Service; the CIA; the National Security Council; the National Security
Agency; the Defense Intelligence Agency; the Merit Systems Protection Board; the Office of Special Counsel; the
Office of Criminal Investigation of the Internal Revenue Service; the Office of Investigative Programs of the
Customs Service; the Office of Law Enforcement of the Bureau of Alcohol, Tobacco, and Firearms; the National
Imagery and Mapping Agency; career appointees in the Senior Executive Service; administrative law judges;
contract appeals board members; and administrative appeals judges. A complicating factor is that several of these
agencies have changed their names or been merged into other agencies since 1993, so it is sometimes unclear which
employees are “further restricted.” In addition, the Departments of State, Defense and Justice have limited the
political activities of their political appointees. See Judgment of History, supra note 124, at 247 n. 161.
 18

III. PERSPECTIVES

An honest politician is one who, when he is bought, will stay bought.

attributed to Simon Cameron134

In recent decades, the major reforms that have increased accountability to the party in power,
increased the cost of the government’s activities, decreased government oversight and increased
the opportunities for corruption at all levels have been initiated under Democratic Presidents,
then expanded under Republican Presidents. Politicization of the senior civil service and of
personnel management generally began under Carter, then was expanded by Reagan. Large-scale
privatization of government services and reduction of control over government functions began
under Clinton, then was expanded by George W. Bush. Meanwhile, although “the plural of
anecdote is not data,” 135 the accumulating mass of cases such as FEMA Director Michael
Brown 136 and Supreme Court nominee Harriet Miers suggests that party service and a
relationship with the President often weigh far more heavily than other qualifications.
Outright bribery of federal or state career137 civil servants is not a very interesting topic in
the United States in modern times. It occurs rarely, in comparison to the very large number of
civil servants 138 and its discovery is usually followed by dismissal and prosecution. The
conviction rate is high and sentences are often harsh. The larger problems of civil-service
corruption take other forms, such as paying for political work with salaries designated for

134
Secretary of War, 1861-1862; sometime Senator from Pennsylvania.
135
Attributed to Frank N. Kotsonis, although I haven’t found a source.
136
It appears that Mr. Brown, who resigned 12 September 2005, not only was appointed on political grounds but
resorted to false statements about his experience in order to appear a plausible candidate. Daren Fonda & Rita Healy,
How Reliable Is Brown's Resume?: A TIME Investigation Reveals Discrepancies in the FEMA Chief’s Official
Biographies, 8 Sept. 2005, available at http://www.time.com/time/nation/article/0,8599,1103003,00.html.
137
Over 3,000 executive-branch positions, apparently far more than in any other developed country, are political
appointments by the President. Only about 500 require Senate confirmation. In all, over 9,000 senior federal jobs are
not subject to competitive appointment. Many of these are distributed as the spoils of victory to supporters of the
winning party. Information about these positions, provided by the Office of Personnel Management, is published
every four years, just after the presidential elections, in the “Plum Book.” The latest edition, as of 30 September
2004, is H.R. COMM. ON GOV’T REFORM, UNITED STATES GOVERNMENT POLICY AND SUPPORTING POSITIONS, 108th
Cong., 2d Sess., 22 Nov. 2004, available at http://www.gpoaccess.gov/plumbook/2004/index.html.
138
In 2002, according to the Bureau of Labor Statistics, there were 2.7 million civilian federal employees (not
including intelligence agencies or the 845,000 Postal Service employees) and 7.9 million state and local government
employees (not including education and hospitals). http://www.bls.gov. According to the Bureau of Justice Statistics,
189 suspects were arrested on federal bribery charges from 1 October 2001 to 30 September 2002. COMPENDIUM OF
FEDERAL JUSTICE STATISTICS, 2002 at 21 (2004). Many of these were politicians or political appointees, not career
civil servants, and many were not government employees but active bribers. (Politicians, like good writers, prefer
short sentences.) The U.S. easily ranks first among the 25 countries surveyed in the Public Integrity Index of the
Center for Public Integrity; it would score even higher, but for a zero for the absence of a national ombudsman.
http://www.publicintegrity.org/ga/ii.aspx. Although many would describe as corruption the relationships between
the current administration and the oil industry, Halliburton (Kellogg, Brown & Root Services Inc.), Bechtel Corp.,
etc. (see, e.g., MINORITY STAFF OF HOUSE COMM. ON GOV’T REFORM & SENATE DEMOCRATIC POLICY COMM.,
109TH CONG., JOINT REPORT, HALLIBURTON’S QUESTIONED AND UNSUPPORTED COSTS IN IRAQ EXCEED $1.4
BILLION (27 June 2005) (detailing 8 examples of preferential treatment for Halliburton at 15-23); KEVIN PHILLIPS,
AMERICAN DYNASTY 149-177 (2004)), and too many cases of corrupt federal and state politicians or political
appointees come to light each year, it does not follow that that there is significant corruption among career civil
servants.
 19

government work or coercing government employees to make political contributions, or simply

hiring to the competitive service on the basis of political party.139
If we look beyond the civil service, however, first,
good estimates of the real levels of fraud, waste, and abuse in the federal government
simply are unavailable. The government’s enterprise is huge, the opportunities for
taking advantage of the system are legion, and the government’s investment in fraud
fighting has been modest….
Waste, fraud, and abuse have plagued many fast-growing federal programs,
especially entitlements. The GAO140 found, for example, that the Supplemental Security
Income (SSI) program has suffered overpayments of $1 billion in a program that spent
$22 billion in just 10 months in 1996. In medicare, estimates of fraud and abuse range
up to 14 percent of the program’s fee-for-service spending…. As the program has
increased rapidly in size, government resources to monitor it have grown far more
slowly. One GAO official reported that, while medicare claims rose 70 percent from
1989 to 1996, resources to review the claims increased only 11 percent. “More
individuals are being served,” said GAO’s William Scanlon, “but a lack of controls
means unscrupulous providers can submit claims and get paid.” The very factors that
make budgetary control of entitlements so difficult combine to complicate management
of the programs – and control of waste, fraud, and abuse – as well.
The fraud, waste, and abuse problem is complex, moreover, because the program’s
administration is complex. The federal government does not itself manage medicare.
Rather, the federal government funds the program but administers it through an intricate
web of contractors who actually provide medical services and supplies. Because the
“shop floor” of the medicare system is outside the government, in local hospitals,
clinics, and doctors’ offices, the federal government has a difficult time overseeing its
operations. As a result, investigators found that medicare paid $2.32 for a pad of gauze
available wholesale for just 19 cents. 141
Second, there are corporate-crony relationships that touch the center of the nation’s political,
legal and economic concerns and affect much of the world: downsizing of the career civil
service and the military, combined with massive, loosely supervised outsourcing or privatization
of formerly governmental and military functions, have led not only to corrupt transactions, but
perhaps even to atrocities, such as those at Abu Ghraib.142 Corruption of public employees at the
higher, and predominantly politically appointed, levels of some agencies143 is one of the smaller

139
In 1988 data, it was found that 31% of personnel specialists in the State Department, 39% in the Housing and
Urban Development Department and 47% in the Education Department said they had observed hiring into the
competitive service based on political party affiliation in the past 12 months. The entire federal government
averaged 7%. Military agencies had the best results, from 1% to 4%. Carolyn Ban & Harry C. Redd III, The State of
the Merit System: Perceptions of Abuse in the Federal Civil Service, 10 REV. PUB. PERSONNEL ADMIN. 3 (1990).
140
Then General Accounting Office, changed to General Accountability Office 7 July 2004. GAO Human Capital
Reform Act of 2004, Pub. L. 108-271, 118 Stat. 811 (2004). It is an arm of Congress, not of the executive branch.
141
DONALD F. KETTL, REINVENTING GOVERNMENT: A FIFTH-YEAR REPORT CARD 29, 30 (1998) (footnotes
omitted), available at http://www.brookings.edu/gs/cpm/Government.pdf.
142
See Steven L. Schooner, Contractor Atrocities at Abu Ghraib: Compromised Accountability in a Streamlined,
Outsourced Government, 16 STAN. L. & POL’Y REV. 549 (2005) [hereinafter Contractor Atrocities].
143
Most of this has to do with government purchases of goods and services, especially for the military. The cases
of Darleen Druyun and the Boeing Company, Robert Neal, Richard Moran and Kevin Marlowe are described in
Contractor Atrocities, supra note 142, at 550 n. 3. The Druyun matter is one of several involving Boeing. See
Jennifer S. Zucker, The Boeing Suspension: Has Increased Consolidation Tied the Department of Defense's Hands?,
 20

manifestations of this trend, which is prominent in the U.S. government’s activities in

Colombia144 and Iraq145 and appears to be becoming so in post-Katrina Louisiana.
A particularly troubling aspect is the deliberate reduction of controls. 146 The use of
“indefinite-delivery, indefinite-quantity” (ID/IQ) contracts147 has mushroomed, largely undoing
the Competition in Contracting Act of 1984 148 and offering Europe a dubious precedent for
“framework agreements.”149 At the micro level, the virtual elimination of rules for purchases up
to $2,500 with the “Governmentwide commercial purchase card” and radical simplification for
purchases up to $100,000150 has hugely expanded the opportunities for abuse. An indication of
the extent to which this way of thinking now predominates is the first reaction of Congress and
the President to the destruction of New Orleans by hurricane Katrina, which included instantly
awarding enormous ID/IQ contracts to a handful of companies associated with top officials, 151
and increasing the $2,500 charge-card authority of federal employees to $250,000.
Both major parties in the United States, like the parties in power in many other countries,
have asserted that government should be judged by its results. In the United States, the results of
our extended experiment in downsizing and outsourcing government have been very bad indeed,
so perhaps it is time to give it up and to allow a merit-based, career civil service to do its job.

2004 ARMY LAW. 14 (2004); Philip J. Sweitzer, The Boeing 767 Tanker Boondoggle: How the Corporate-Sales-
Pitch Procurement Regime Lost Its Parent and the U.S. Economy International Billions, 23 PENN. ST. INT’L L. REV.
383 (2004). At this writing, the latest cases – arising out of an ethics investigation of House of Representatives
Majority Leader Tom DeLay – involve Republican lobbyist Jack Abramoff and David H. Safavian, formerly also a
lobbyist but recently head of the powerful Office of Federal Procurement Policy, who abruptly resigned on 16
September 2005 and was arrested on 19 September for making false statements about his lobbying activities and
obstruction of the federal investigation of Abramoff. See R. Jeffrey Smith & Susan Schmidt, Bush Official Arrested
in Corruption Probe, WASH. POST, 20 Sept. 2005, at A1; Affidavit in Support of Criminal Complaint Charging
David Hossein Safavian, 16 Sept. 2005, available at http://pogoblog.typepad.com/pogo/files/safavianaffidavit.pdf
and http://rawprint.com/pdfs/safavianaffidavit.pdf, in which “Lobbyist A” is Abramoff.
144
See Kristen McCallion, War for Sale! Battlefield Contractors in Latin America & the ‘Corporatization’ of
America’s War on Drugs, 36 U. MIAMI INTER-AM. L. REV. 317 (2005); P.W. SINGER, CORPORATE WARRIORS: THE
RISE OF THE PRIVATIZED MILITARY INDUSTRY 206-209 (2003).
145
“In its procurement strategies, the US has been a poor role model in how to keep corrupt practices at bay.”
Reinoud Leenders & Justin Alexander, Case Study: Corrupting the New Iraq, in TRANSPARENCY INTERNATIONAL,
GLOBAL CORRUPTION REPORT 2005 at 82, 85 (2005).
146
Before the further staff reductions and increased outsourcing of the Bush administration, Professor Schooner
wrote, “In the last decade, Congress appears to have toiled mightily to ensure that procurement officials were
understaffed and overworked.” Steven L. Schooner, Fear of Oversight: The Fundamental Failure of Businesslike
Government, 50 AM. U. L. REV. 627, 686 (2001).
147
48 C.F.R. §16.500 et seq.
148
Pub. L. No. 98-369, 98 Stat. 494 (1984).
149
See Parliament & Council Directive No. 2004/18/EC of 31 March 2004 on the coordination of procedures for
the award of public works contracts, public supply contracts and public service contracts, 2004 O.J. (L 134) 114 (30
April 2004); Steven L. Schooner & Christopher R. Yukins, Emerging Policy and Practice Issues, West Government
Contracts Year in Review Conference 9-24 – 9-26 (2005), available at http://ssrn.com/abstract=663464.
150
48 C.F.R. §13.000 et seq.
151
See John M. Broder, In Storm’s Ruins, a Rush to Rebuild and Reopen for Business, N.Y. TIMES, 10 Sept. 2005,
at A1.