In 1978, Congress debated the Civil Service Reform Act extensively. It was a landmark, once-in-a-century effort. Naturally, there would be a lot of coverage. Deliberations in the Senate took 12 days, deliberations in the House took 13 days, and the House-Senate conference took place over at least 6 days, according to records recently discovered in the Library of Congress. Here are some of the mark-up sessions and other documents from those deliberations:
- Serial No. 95-65 (March-May 1978)
- Senate Hearings on S. 2640 (April-May 1978)
- Committee Print No. 95-13 (Apr. 6, 1978)
- Mark-Up Session on S. 2640 (May 22, 1978)
- Reorganization Plan No. 2 of 1978 (May 23, 1978)
- House Hearings on Reorganization Plan No. 2 (June 6, 13, 15, 1978)
- Mark-Up Session on S. 2640 (June 8, 1978)
- Mark-Up Session on S. 2640 (June 12, 1978)
- Mark-Up Session on S. 2640 (June 14, 1978) I
- Mark-Up Session on S. 2640 (June 14, 1978) II
- Senate Hearings on S. 2640 (June 1978) (Appendix)
- Senate Report No. 95-969 (July 10, 1978)
- House Report No. 95-1396 (July 26, 1978) (Report on Reorganization Plan No. 2 of 1978)
- Senate Report No. 95-1049 (July 28, 1978) (Report on Reorganization Plan No. 2 of 1978)
- House Report No. 95-1403 (July 31, 1978)
- Senate-House Conference on S. 2640 (Sept. 18, 1978)
- Senate-House Conference on S. 2640 (Sept. 25, 1978)
- Senate-House Conference on S. 2640 (Sept. 26, 1978)
- Senate-House Conference on S. 2640 (Sept. 27, 1978)
- Senate-House Conference on S. 2640 (Sept. 28, 1978)
- Senate-House Conference on S. 2640 (Oct. 3, 1978)
- Senate Conference Report No. 95-1272 (Oct. 4, 1978)
- House Conference Report No. 95-1717 (Oct. 5, 1978)
By contrast, research into the mark up of the Whistleblower Protection Act of 1989 revealed only one day’s worth of deliberations, and the Senate’s mark up of the Whistleblower Protection Enhancement Act of 2011/12 took only five minutes.
Contrast this give-and-take in 1978 over the role of the Special Counsel, as just one facet of law, versus the entirety of the discussion over the WPEA in the Senate, 33 years later.
Sen. Chiles offered that
My feeling is if you put a Special Counsel in and he is appointed by the President, you know, we are really having sort of two groups that are supposed to be doing the same thing, and that is protecting the workers. You have the Merit Board, and the Merit Board is a bipartisan board with staggered terms, and it is certainly supposed to be operating in the best interests and for the best results of protecting employees. And then you turn around and appoint a Special Counsel by the President, and then you get into the whole thing of how do you get rid of him. Is he for cause? Who can initiate?
He also raised the point that
If you have a Special Counsel, and I am concerned with what we did with the Special Prosecutor in this regard, we are starting to create individuals or posts with tremendous power but no accountability You let the President nominate him, but then he can’t be removed except for cause. He is really sort of accountable to no one once he gets in that job.
Senator Jacob Javits (R-N.Y.) responded to Sen. Chiles’ concerns and said that
[A] Special Counsel appointed by the commission would not have the standing that a Special Counsel appointed by the President would. . . . I would hope that we could take a Presidential appointee subject to Senate confirmation, give him the necessary stature and then give him the necessary protection so then he is really acting as the independent prosecutor. . . [unintelligible] making him a Special Counsel is that we don’t necessarily want them to work together. We are a little bit concerned that the Merit Systems Protection Board may, like so many other boards, get impregnated with the views and the attitudes, et cetera, of the agency which it serves. Therefore, as a check and balance, especially for whistleblowers, we want to have somebody out there who can initiate a prosecution.
Sen. Chiles responded that
Now what happens, every time that we decide we can’t trust one group and so we are going to add another check, I think really what we do is we remove a little further from the people the ability to judge and assess responsibilities and to pinpoint that responsibility, and we diffuse it. But we also make it where government can’t work because they start working at loggerheads.
So I would rather have the responsibility be on the appointments of the Merit Protection Board, that board be confirmed by the Senate, make that board of some stature, make them responsible and allow them to appoint the Special Prosecutor or the Special Counsel, and have that chain of responsibility. I think when you start deviating from that, before long we are going to need somebody to check on the Special Counsel. Then we will have to give some independence to that person because we are afraid the Special Counsel, by virtue of his term or the fact he is only removed for cause — that is just looking at it philosophically.