FIRST ON DAILY SIGNAL— The Biden administration is considering a regulation that would enable bureaucrats to screen out conservatives during the vetting process.
Forty-one people representing 35 organizations wrote a letter opposing the rule in a public comment exclusively provided first to The Daily Signal.
“This regulation twists proven hiring requirements into vague standards that easily slide into ideological capture and away from the actual task of vetting,” Heritage Foundation President Kevin Roberts, who led the effort, told The Daily Signal in an exclusive statement. (The Daily Signal is the news outlet of The Heritage Foundation).
“Are you critical of affirmative action? Have you tweeted something negative about the vice president? Then you, too, could be barred from civil service, regardless of qualifications,” Roberts added. “In the Biden regime, the new rule could more simply be written as ‘conservatives need not apply.’”
The comment responds to amendments that the Office of Personnel Management—the federal government’s human resources department—proposed on Jan. 31 in the Federal Register. As Heritage senior legal fellow Hans Von Spakovsky explained in The Daily Signal, OPM aims to amend the “personnel vetting investigative and adjudicative processes for determining suitability and fitness” for government employment (88 FR 6192).
The period for public comment on the “Suitability and Fitness Vetting” amendments ended this week.
The term “suitability and fitness” refers to an agency’s decision “that an individual does or does not have the required level of character and conduct necessary” to work in a federal agency. This assessment has more to do with a prospective employee’s character than any qualifications for the job.
The current regulation, 731.202(b)(7), disqualifies applicants for “knowing and willful engagement in acts or activities designed to overthrow the U.S. government,” a largely uncontested standard. The vast majority of Americans would agree that no one who seeks to overthrow the U.S. government should be allowed to work in that government.
Under Biden, however, the OPM aims to replace that standard with four more ambiguous standards. Under these rules, an applicant would be disqualified for:
- Knowing engagement in acts or activities with the purpose of overthrowing federal, state, local, or tribal government.
- Acts of force, violence, intimidation, or coercion with the purpose of denying others the free exercise of their rights under the U.S. Constitution or any state constitution.
- Attempting to indoctrinate others or to incite them to action in furtherance of illegal acts.
- Active membership or leadership in a group with knowledge of its unlawful aims, or participation in such a group with specific intent to further its unlawful aims.
“We are deeply concerned that this rule will encourage discriminatory hiring practices that have nothing to do with an applicant’s qualifications,” Roberts and the other signers write in the letter. “In addition, this rule would add unnecessary confusion and restrictions to the ability of agencies to hire.”
The signatories note that the first standard “is not dissimilar to the current standard,” but warn that “the other three proposed standards are so broad and vague that they would allow hiring managers to reject candidates solely on the grounds of being lawfully critical of government policy. This openly subjective factor in evaluating the ‘character’ and ‘fitness’ of job applicants risks abuse in any administration.”
“For example, opinions on abortion, the Second Amendment, or climate change, or membership in an association that actively works to change the law on such issues, whatever side of the political aisle they are, could be used by a hiring manager to unfairly reject an otherwise well-qualified, excellent employee for any number of federal agencies, even when their duties have no relevance to those issues,” the signatories warn.
“Likewise, agencies could reject anyone who questions the acts and behavior of government officials with no regard for individual competency,” they add. “Should a strong critique of the defense secretary threaten the eligibility of someone who wishes to serve in the Securities and Exchange Commission? In any administration, this sort of ideological discrimination is unwarranted and dangerous, and the terms used in the proposed change, ‘intimidate’ and ‘coerce,’ have become synonymous—wrongly so—in the eyes of some, with vigorous, active speech that seeks to change opinions and federal and state laws.”
Roberts and the other signers argue that “the nebulous nature of the proposed rule’s new standards is counterintuitive to an agency’s objective to evaluate the character and conduct of those seeking to enter civil service.”
Other signatories include: Heritage Action Executive Director Jessica Anderson; former Rep. Dave Brat, R-Va.; former OPM Director Donald J. Devine; 60 Plus Association President Saulius Anuzis; Dr. Ben Carson; American Principles Project Policy Director Jon Schweppe; Claremont Institute President Ryan P. Williams; Concerned Women for America CEO and President Penny Nance; Family Research Council Senior Director of Government Affairs Quena González; Gun Owners of America President Tim Macy; Leadership Institute President Morton Blackwell; Heartland Institute President James Taylor; and Wisconsin Family Action President Julaine Appling, among others.
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