March 06, 2020 | Jeff Davis
Yesterday, the House of Representatives passed a bill (H.R. 1140) that would bring Transportation Security Administration employees under the standard civil service work agreements and protections available to most federal employees.
Under current law, TSA’s organizing statute (49 U.S.C. §114) exempts TSA employees from the regular civil service system, instead giving the TSA Administrator the authority to set up the agency’s own “personnel management system.” Further clarification is found in 49 U.S.C. §44935.
Under the bill, which passed the House by a vote of 230 to 171, after a 180-day transition period when all existing rules and conditions are frozen in place, those laws mentioned above are repealed, and TSA employees “shall be subject to the provisions of title 5, United States Code” (the civil service statutes).
Section 6 of the bill is a gigantic savings clause:
Sec. 6. RIGHT TO STRIKE. Nothing in this Act shall be considered—
(1) to repeal or otherwise affect—
(A) section 1918 of title 18, United States Code (relating to disloyalty and asserting the right to strike against the Government); or
(B) section 7311 of title 5, United States Code (relating to loyalty and striking); or
(2) to otherwise authorize any activity which is not permitted under either provision of law cited in paragraph (1).
The House adopted several (mostly minor) amendments, including an odd Spanagerger (D-VA) amendment that provides that TSA employees “may not use or have installed on United States Government-issued mobile devices the social media video application known as ‘TikTok’ or any successor application.”
During their one guaranteed chance to offer a germane amendment to the bill without advance notice, Republicans proposed an amendment to ensure that, civil service law notwithstanding, “the Secretary shall ensure that the Transportation Security Administration continues to prevent the hiring of individuals who have been convicted of a sex crime, an offense involving a minor, a crime of violence, or terrorism.” Despite Democratic complaints that the provision was unnecessary, all Republicans and what looked like every Democrat from a swing district supported the amendment, which passed by a vote of 227 to 175.
The issue of civil service protections for TSA workers has been a thorny one. TSA was initially set up in a hurry, with the federal government taking over a sector previously occupied by private industry, so the initial avoidance of civil service protections was understandable. When Congress was debating creation of a Department of Homeland Security in 2002, the Senate version of the bill provided civil service protections for all DHS employees unless they had, “as their primary job, intelligence, counter-intelligence, or investigative work directly related to terrorism investigation.”
But the White House issued a statement that President Bush would veto the bill unless “the Secretary of Homeland Security is provided with the real personnel, budgetary, and reorganization flexibility that is needed to manage the new Department effectively, integrate its constituent parts, and provide the best security for the American people.” The Democratic-controlled Senate and the President were at an impasse, and Congress adjourned and took the issue to the electorate without enacting a DHS bill.
If the electorate took note of the issue, it didn’t go the way the Democrats wanted it, with the GOP picking up the net two seats they needed to (barely) seize control of the chamber from the Democrats, and the Democrats backed off their demand and allowed the DHS creation act to go through, without civil service protections, in the lame-duck session in late 2002.