The Biden White House just proposed a new rule that would allow deep state bureaucrats to discriminate against conservatives and bar them from serving in our government.
The Notice of Proposed Rulemaking (NPRM) was issued by the Office of Personnel Management (OPM) and seeks to amend 5 CFR § 731.202(b)(7), a long-standing clear and easily applied policy against hiring applicants who knowingly and willfully engage in “acts or activities designed to overthrow the U.S. Government by force.”
The proposed changes to existing regulation are so overly broad as to allow for, if not invite, viewpoint discrimination that would violate the First Amendment rights of patriotic Americans wishing to serve their country in the federal government.
Elements of the new criteria could easily be used to discriminate against applicants based on their personal politics. Without a stricter delineation of allowable or disqualifying conduct, this new regulation will be used to further entrench bureaucratic power in the hands of unelected officials. It will slowly eliminate the introduction of new divergent viewpoints that are crucial to the maintenance of responsive and effective governance.
The broad language in the proposed rule could easily be abused by hiring managers to disqualify otherwise qualified applicants for simply participating in legitimate political discourse or membership in organizations or movements that peacefully seek changes to our nation’s current laws and policies.
The rule seems to forget that, going back to the founding, there have been legitimate and peaceful means for overthrowing our government periodically: elections.
Furthermore, the FBI has classified parents as potential terrorists for protesting at school board meetings. Would all parents protesting on behalf of their children be deemed to have “sought to intimidate or coerce” in a disqualifying manner? Would the very act of counseling a pregnant woman regarding her options and encouraging her to not pursue an abortion disqualify applicants to the civil service? Would membership at a conservative Christian church lead to a negative suitability determination?
In the current political discourse, and as these ambiguous rules could be applied, the answer to these questions is undoubtedly “yes.”
The proposed rule does not include any rule of application stating that the proposed factors should not be applied in a way that circumscribes a person’s constitutional liberties. If OPM is certain in its assertion that the proposed factors “address conduct that is not protected by the First Amendment,” then there is no principled reason not to include language stating that explicitly in the regulation.
And yet, the proposed rule omits such explicit language, no doubt in the name of allowing for “nuance” in applying the new requirements. Unfortunately, here, “nuance” will undoubtedly come to be synonymous with “abuse” and “viewpoint discrimination.”
For the above reasons, OPM must reconsider its changes to its suitability of fitness vetting process via the proposed rule, and instead to maintain the existing requirements.
Please use our secure portal to challenge the proposed rule. The White House must review and address every comment, so please customize and submit your comment today.