Order Code RL32588
CRS Report for Congress
Received through the CRS Web
9/11 Commission Recommendations:
Changes to the Presidential Appointment
and Presidential Transition Processes
Updated October 19, 2004
Henry B. Hogue
Analyst in American National Government
Government and Finance Division
Congressional Research Service ˜
The Library of Congress
9/11 Commission Recommendations:
Changes to the Presidential Appointment and
Presidential Transition Processes
Summary
In its July 22, 2004, report, the National Commission on Terrorist Attacks Upon
the United States (9/11 Commission) identified what it perceived as shortcomings in
the appointment process during presidential transitions that could compromise
national security policymaking in the early months of a new Administration. The
commission reported, among other findings, that “the new [George W. Bush]
administration did not have its deputy cabinet officers in place until the spring of
2001, and the critical subcabinet officials were not confirmed until the summer —
if then. In other words, the new administration — like others before it — did not
have its team on the job until at least six months after it took office.” Other
observers of the presidential appointment process in recent years have similarly
asserted that, in general, appointments during presidential transitions take too long.
The presidential appointment process usually involves three stages: selection
and vetting; Senate consideration (as required); and formal appointment through
commissioning and swearing in. Empirical evidence suggests that for top national
security positions, on average, the first of these stages accounts for more than two-
thirds of the elapsed time between inauguration and confirmation. Although Senate
consideration of nominations sometimes takes many months, during the 2001
transition, most Secretaries, Deputy Secretaries, and Under Secretaries who might be
considered part of the President’s national security team were confirmed less than 30
days after nomination. In contrast, the length of time past Inauguration Day required
for the selection and vetting of candidates for these positions averaged about two
months. Critics of the length of this appointment stage fault the financial disclosure
and national security clearance processes.
The 9/11 Commission called for seven remedial changes under this
recommendation. Six concern presidential appointments and transitions: initiation
of the security clearance process for prospective appointees to national security
positions immediately after the presidential election; pre-election identification, by
each presidential candidate, of potential members of his transition team to allow for
timely security clearance; pre-inaugural submission, to the Senate, of nominations by
the President-elect to positions on the “national security team”; expedited Senate
consideration of these nominations; elimination of advice and consent requirements
for any “national security team” members below Level III of the Executive Schedule;
and prompt and thorough written national security information exchange between the
outgoing and incoming Administrations. One additional suggested change, central-
ization of the national security clearance process, is beyond the scope of this report.
Intelligence reform legislation with provisions related to these recommendations
has been introduced (S. 2774, H.R. 5024, H.R. 5040, S. 2845 and H.R. 10). As of
October 18, 2004, the Senate had passed S. 2845, the House had voted to amend S.
2845 with the text of H.R. 10, as passed, and the two chambers were preparing to go
to conference. This report provides background information on, and analysis of, the
changes proposed by the 9/11 Commission, and it will be updated as events warrant.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Legislative Activity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
S. 2845 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
H.R. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
S. 2774 and H.R. 5040 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
H.R. 5024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Presidential Transitions and Appointments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
The Appointment Process for PAS Positions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Selection and Vetting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Senate Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Temporary Staffing of PAS Positions During Presidential Transitions . . . . . . . . 11
The Length of the Appointment Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
9/11 Commission Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Early Security Clearance for Certain Prospective Appointees . . . . . . . . . . 19
Recommended Changes in Advice and Consent for Certain Positions . . . . 21
Early Nominations by the President-Elect . . . . . . . . . . . . . . . . . . . . . . 21
Time-Limited Senate Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Removing Advice and Consent Requirements Below Level III . . . . . 23
Information Exchange During Presidential Transitions . . . . . . . . . . . . . . . . 25
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
List of Tables
Table 1. Political Appointees by Department and Appointment Type as of
December 2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Table 2. Initial Appointments by President George W. Bush to Top Positions
at the Departments of Defense, Homeland Security, Justice, State,
and the Central Intelligence Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
9/11 Commission Recommendations:
Changes to the Presidential Appointment
and Presidential Transition Processes
Introduction
The 9/11 Commission Report: Final Report of the National Commission on
Terrorist Attacks Upon the United States, issued on July 22, 2004, included a
recommendation that appointments to key national security positions at the time of
presidential transitions occur more quickly. Intelligence reform legislation with
provisions related to this recommendation has been introduced (S. 2774, H.R. 5024,
H.R. 5040, S. 2845 and H.R. 10). As of October 18, 2004, the Senate had passed S.
2845, the House had voted to amend S. 2845 with the text of H.R. 10, as passed, and
the two chambers were preparing to go to conference.
The goal of the 9/11 Commission’s recommended changes would be to
“minimize as much as possible the disruption of national security policymaking” and
maintain national security continuity when a new President comes into office.1 The
recommendation addressed the commission’s concern about the length of time a new
Administration takes to install key national security personnel. The commission
noted, in particular, the abbreviated transition period resulting from the delayed
resolution of the 2000 presidential race. As the report stated, “Given that a
presidential election in the United States brings wholesale change in personnel, this
loss of time hampered the new administration in identifying, recruiting, clearing, and
obtaining Senate confirmation of key appointees.”2 As a result, the commission
reported, “the new administration did not have its deputy cabinet officers in place
until the spring of 2001, and the critical subcabinet officials were not confirmed until
the summer — if then. In other words, the new administration — like others before
it — did not have its team on the job until at least six months after it took office.”3
In line with its overall recommendation, the commission called for seven
specific changes, six of which are related to presidential appointments and
transitions. Two of these proposed changes are related to the national security
clearance process during transitions. First, the commission recommended starting the
security clearance process for prospective appointees to national security positions
1 U.S. National Commission on Terrorist Attacks Upon the United States,
The 9/11
Commission Report (Washington: GPO, 2004), hereafter referred to as
9/11 Commission
Report, p. 422.
2
9/11 Commission Report, p. 198.
3
9/11 Commission Report, p. 422.
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immediately after the presidential election. It also proposed that each presidential
candidate identify, prior to the election, potential members of his or her transition
team to facilitate quicker security clearances following the election.
Three additional recommendations would modify the nomination and Senate
consideration processes for certain national security positions. First, the report
proposed that nominations to positions on the “national security team”4 be submitted
to the Senate by the President-elect no later than the date of his or her inauguration.
Furthermore, the commission called for expedited Senate consideration of these
nominations. The final recommended change to the appointment process would be
the elimination of advice and consent requirements for any “national security team”
members below Level III of the Executive Schedule.
The commission also suggested that, beginning immediately after the election,
the transition include a prompt and thorough written national security information
exchange between the outgoing and incoming Administrations.
In addition to these six changes, the commission called for centralization of the
security clearance process in one agency, including providing and maintaining
security clearances and ensuring uniform standards.5 This suggested change is
outside the scope of this report.6
The next section of this CRS report provides summary information concerning
relevant legislative activity, as of October 18, 2004. The remainder of the report
provides background information on, and analysis of, the 9/11 Commission
recommendations. It provides background information related to the presidential
transition process, the process for filling positions to which the President makes
appointments with the advice and consent of the Senate (PAS positions), temporary
appointment options, and the length of appointment process during the 2000-2001
presidential transition. The report concludes with a more detailed discussion and
analysis of the changes proposed by the commission.
Legislative Activity
Intelligence reform legislation with provisions related to the presidential
appointment and presidential transition processes has been introduced in the Senate
and the House.
4 As discussed below, the phrase “national security team” was not defined in the report.
5
9/11 Commission Report, p. 422.
6 For further information on this recommendation, see “Security Clearance Modernization,”
by Frederick M. Kaiser, in CRS Report RL32635,
H.R. 10 (9/11 Recommendations
Implementation Act) and S. 2845 (National Intelligence Reform Act of 2004): A
Comparative Analysis.
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S. 2845. On September 23, 2004, Senator Susan M. Collins, with Senator
Joseph I. Lieberman, introduced S. 2845, the “National Intelligence Reform Act of
2004.” This legislation, as amended, was agreed to by the Senate on October 6. As
of October 18, the House and Senate were preparing to go to conference on their
respective versions of this bill.7 (See “H.R. 10,” below.)
Section 1081 of S. 28458 would amend the Presidential Transition Act of 19639
! to require that as soon as possible after the presidential election, the
President-elect be provided with “a detailed classified, compartmented
summary by the relevant outgoing executive branch officials of specific
operational threats to national security; major military or covert operations;
and pending decisions on possible uses of military force”;10
! to recommend submission by the President-elect to the agency with national
security clearance functions of “names of candidates for high level national
security positions through the level of undersecretary” as soon as possible
after the presidential election;11 and
! to require the responsible agency or agencies to carry out background
investigations of these candidates for high-level national security positions
“as expeditiously as possible ... before the date of the inauguration.”12
The bill would facilitate security clearances for transition team members in a
similar manner, allowing each major party13 presidential candidate to submit, before
the general election, security clearance requests for “prospective transition team
members who will have a need for access to classified information” in the course of
their work. The legislation would direct that resulting investigations and eligibility
7 Technically, the two chambers would be conferencing on differing versions of S. 2845.
To facilitate the discussion of the two bills in this report, however, the original designation
of the House bill as H.R. 10 is retained. For a comprehensive comparison of the two
versions of this legislation, see CRS Report RL32635,
H.R. 10 (9/11 Recommendations
Implementation Act) and S. 2845 (National Intelligence Reform Act of 2004): A
Comparative Analysis.
8 S. 2845, Section 1081 is similar to certain provisions of S. 2774 and H.R. 5040 related to
presidential transitions. These two bills were introduced before S. 2845, on Sept. 7 and
Sept. 9, 2004, respectively.
9 The Presidential Transition Act (P.L. 88-277, codified at 3 U.S.C.102 note) authorizes the
Administrator of General Services to provide, during a presidential transition, certain
logistical support to the incoming and outgoing Presidents and Vice Presidents.
10 S. 2845, Sec. 1081(a)(1).
11 S. 2845, Sec. 1081(a)(3).
12 Ibid.
13 For the purposes of this provision, the bill gives the term “major party” the meaning
provided in Section 9002(6) of the Internal Revenue Code of 1986.
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determinations would be completed, as much as possible, by the day after the general
election.14
The legislation contains an additional provision stating that it is “the sense of
the Senate” that the nominations to the positions discussed above should be
submitted by the President-elect to the Senate by Inauguration Day, and that Senate
consideration of all such nominations received by this time should, “to the fullest
extent possible,” be completed within 30 days of submission.15
S. 2845 would also
! require a report from the Office of Government Ethics (OGE) regarding
potential improvements to the financial disclosure process for executive
branch employees;
! direct the Office of Personnel Management (OPM) to transmit an electronic
record “on Presidentially appointed positions,” with specified content, to a
major party presidential candidate soon after his or her nomination, and to
make such a record available to any other presidential candidate after this;
! direct each agency head to submit a PAS position reduction plan, with
specified content, to the President, the Senate Committee on Governmental
Affairs, and the House Committee on Government Reform; and
! require the Director of OGE, in consultation with the Attorney General, to
“conduct a comprehensive review of conflict of interest laws relating to
Federal employment,” with specified content and recipients.16
H.R. 10. On September 24, 2004, Speaker of the House J. Dennis Hastert
introduced H.R. 10, the “9/11 Recommendations Implementation Act.” The
legislation would, among other things, change the presidential appointments process
for “national security positions,” change the presidential transition process, require
PAS position reduction plans from agencies heads, and reorganize the national
security clearance infrastructure.
On October 8, 2004, H.R. 10, as amended, was passed by the House. The rule
for consideration of H.R. 10 provided that, upon transmittal of S. 2845 to the House,
the House will have been considered to have stricken the content of S. 2845 and
inserted instead the content of H.R. 10, passed the amended Senate bill, insisted on
its amendment, and requested a conference on the bill with the Senate.17 As of
14 S. 2845, Sec. 1081(c).
15 S. 2845, Sec. 1081(b).
16 S. 2845, Sec. 1102.
17 H.Res. 827.
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October 18, the House and Senate were preparing to go to conference on the their
respective versions of this bill.18
With regard to the presidential appointment process, H.R. 10 would create a
category for “national security positions” that would be treated differently from other
high-level policymaking positions in that process. The category would include
those positions that involve activities of the United States Government that are
concerned with the protection of the Nation from foreign aggression, terrorism,
or espionage, including development of defense plans or policies, intelligence or
counterintelligence activities, and related activities concerned with the
preservation of military strength of the United States and protection of the
homeland; and positions that require regular use of, or access to, classified
information.19
A list of such national security positions to which appointments are made with the
advice and consent of the Senate would be developed and maintained by OPM.20
Appointments to any positions on this list that are compensated at Executive
Schedule Levels IV or V would no longer be subject to Senate confirmation and
would be appointed by the President alone. For listed positions at Executive
Schedule Levels II and III, Senate confirmation would still be required unless a
“confirmation vote” had not occurred within 30 legislative days of nomination. In
this case, the appointment would be made by the President alone. The bill would
define “legislative day,” in this context, as a day on which the Senate is in session.21
Section 5042 of H.R. 10 would rewrite the presidential inaugural transition
section (5 U.S.C. 3349a) of the “Federal Vacancies Reform Act of 1998” (Vacancies
Act).22 It would allow incumbent or newly elected Presidents, following an
inauguration, to make certain types of temporary appointments to certain advice and
consent positions without two restrictions in the Vacancies Act that would otherwise
apply.
18 Technically, the two chambers would be conferencing on differing versions of S. 2845.
To facilitate the discussion of the two bills in this report, however, the original designation
of the House bill as H.R. 10 is retained. For a comprehensive comparison of the two
versions of this legislation, see CRS Report RL32635,
H.R. 10 (9/11 Recommendations
Implementation Act) and S. 2845 (National Intelligence Reform Act of 2004): A
Comparative Analysis.
19 H.R. 10, Sec. 5041(a).
20 H.R. 10, Sec. 5041(b).
21 H.R. 10, Sec. 5041(c).
22 The Vacancies Act is codified at 5 U.S.C. 3345-3349d. The presidential inaugural
transition section is Sec. 3349a. For a brief description of Vacancies Act provisions, see
CRS Report RS21412,
Limited-Term Appointments to Presidentially Appointed, Senate-
Confirmed Positions , by Henry B. Hogue. For a more detailed discussion and analysis of
the Vacancies Act, see CRS Report 98-892,
The New Vacancies Act: Congress Acts to
Protect the Senate’s Confirmation Prerogative, by Morton Rosenberg.
CRS-6
The Vacancies Act allows the President to make temporary appointments,
without the advice and consent of the Senate, to positions that would otherwise
require such advice and consent (PAS positions). At present, the presidential
inaugural transition section of the act allows a newly inaugurated President to make
such appointments for longer terms than would otherwise be allowed by the act. The
rewritten presidential transition section would continue to permit this practice for
newly inaugurated Presidents.
The rewritten section would also add a provision that would apply to both
incumbent and newly inaugurated Presidents. It would remove, for “national security
positions” during inaugural periods, certain limitations related to one temporary
appointment method. The Vacancies Act presently provides three methods for
temporarily filling vacant PAS positions. One method allows the President to direct
an officer or employee of an agency where a PAS position vacancy exists to
temporarily perform the functions and duties of that office. The law requires that
such a person (1) must have been at the agency for not less than 90 of the preceding
365 days and (2) must have been paid at a rate equal to or greater than a position at
GS-15 of the General Schedule. Section 5042 would remove these two requirements
for “any vacancy in any specified national security position that exists during the 60-
day period beginning on inauguration day.” With regard to this provision, the
legislation would define “specified national security position[s]” as “not more than
20 positions requiring Senate confirmation, not to include more than three heads of
Executive Departments, which are designated by the President on or after an
inauguration day as positions for which the duties involve substantial responsibility
for national security.”23
H.R. 10 would direct agency heads to submit, to the President, the Senate
Governmental Affairs Committee, and the House Government Reform Committee,
plans for the reduction in the number and levels of presidentially appointed positions
requiring the advice and consent of the Senate.24
Section 5077 of H.R. 10 would make changes to the national security clearance
process during presidential transitions. It would require the President-elect to submit
to a proposed National Intelligence Director the names of “candidates for high-level
national security positions” at or above the under secretary level as soon as possible
after a general election. It would give the proposed National Intelligence Director
responsibility for the “expeditious completion” of background investigations for such
individuals before Inauguration Day. The legislation, if passed, would also direct
each major party presidential candidate, except an incumbent, to submit, before the
general election, “requests for security clearances for prospective transition team
members who will have a need for access to classified information.” It would require
that related background investigations and eligibility determinations be completed,
“to the fullest extent practicable,” by the day after the general election.25
23 H.R. 10, Sec. 5042.
24 H.R. 10, Sec. 5044.
25 H.R. 10, Sec. 5077.
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S. 2774 and H.R. 5040. On September 7, 2004, a bipartisan group of
Senators, led by Senators John McCain and Joseph I. Lieberman, introduced S. 2774,
the “9-11 Commission Report Implementation Act of 2004.” A companion bill, H.R.
5040, was introduced in the House by Representative Christopher Shays on
September 9. As of October 18, 2004, S. 2774 had been placed on the Senate
Legislative Calendar and was available for further Senate consideration. H.R. 5040
had been referred to 10 committees. As its title suggests, this legislation, if enacted,
would implement most of the commission’s recommended changes.
Presidential transition process provisions similar to those in Section 401 of each
of these bills were later incorporated by amendment into S. 2845.26 These include
provisions, described above in more detail, that would amend the Presidential
Transition Act of 1963,27 express a sense of the Senate regarding expedited
consideration of national security nominees, and facilitate security clearances for
transition team members.28
H.R. 5024. On September 8, 2004, Representative Nancy Pelosi introduced
H.R. 5024, the “9/11 Commission Recommendations Implementation Act of 2004.”
With regard to presidential transitions and appointments, the legislation would
provide that it is
the sense of Congress that the President and Congress should take steps to
minimize, to the extent possible, the disruption of national security policymaking
during a change of presidential administrations by accelerating the process for
national security appointments that require the advice and consent of the Senate
in order for transitions from one President to the next to proceed more effectively
and to allow new officials to assume their new responsibilities as quickly as
possible.29
As of October 18, 2004, H.R. 5024 had been referred to 11 committees of the
House.
Presidential Transitions and Appointments
As the 9/11 Commission pointed out, presidential transitions involve large-scale
changes in the political leadership of the executive branch.
Table 1 summarizes
Office of Personnel Management (OPM) data indicating that more than 2,300
political appointees occupied positions in the 15 departments alone as of December
2003. These officials included top-level policymaking presidential appointees,
political managers, and confidential support staff. Unlike career public service
26 S. 2845, Sec. 1081.
27 The Presidential Transition Act (P.L. 88-277, codified at 3 U.S.C.102 note) authorizes the
Administrator of General Services to provide, during a presidential transition, certain
logistical support to the incoming and outgoing Presidents and Vice Presidents.
28 S. 2774, Sec. 401.
29 H.R. 5024, Sec. 804.
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executives and employees, top political officials in the federal departments and
agencies nearly always serve at the pleasure of the President or agency head. These
officials typically resign when the Administration changes, especially if the incoming
President is from a different party. Not all political appointees change with a change
in Administration, however. Some presidential appointees, such as members of most
regulatory commissions, serve in fixed-term positions, and these appointees may
continue to serve out their terms when the President changes.
Table 1. Political Appointees by Department and Appointment Type
as of December 2003
Pres. Appt.
Pres. Appt.
Not
Non-Career
Requiring
Requiring
Senior
Senate
Senate
Executive
Department
Approval
Approval
Service
Schedule C
Other a
Total
Agriculture
13
—
43
166
—
222
Commerce
21
—
41
92
—
154
Defense
55
13
84
105
5
262
Education
11
26
17
125
—
179
Energy
17
2
34
63
2
118
Health and Human
6
3
42
47
6
104
Services
Homeland Security
15
5
40
82
1
143
Housing and Urban
11
1
18
66
—
96
Development
Interior
15
4
35
39
—
93
Justice
119
—
57
84
1
261
Labor
15
1
23
104
2
145
State
31
—
35
113
156
335
Transportation
15
—
24
39
2
80
Treasury
20
3
21
35
1
80
Veterans Affairs
6
1
10
12
2
31
Total
370
59
524
1172
178
2303
Source: U.S. Office of Personnel Management Central Personnel Data File. Specifications of data run are available from the
author.
a Includes ambassadors and other executive appointments not specified.
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The length of presidential transitions, particularly between those of different
political parties, has been of concern to observers for at least 19 years.30 The
appointment process is likely to develop a bottleneck during this time, even under the
best of circumstances, due to the large number of candidates who must be selected,
vetted, and, in the case of PAS positions, considered by the Senate. As noted in a
previous CRS report, nominees had been confirmed for only 6% of the vacant PAS
positions by the end of the first 100 days of the George W. Bush Administration.31
Delays in installing new leadership would not be welcome at any time, but they may
be particularly problematic during the transition period between Presidents. As noted
by the 9/11 Commission, a new President is likely to need his or her top advisers in
place to address contemporary security issues. Furthermore, the President has limited
time following his or her election to initiate an administrative and legislative agenda.
The Appointment Process for PAS Positions32
Under the Constitution, the power to appoint the top officers of the United
States is shared by the President and the Senate. The appointment process consists
of three stages — selection and vetting, Senate consideration, and appointment.
Selection and Vetting
The first stage of the process begins with the President’s selection of a candidate
for the position. Following this selection, the candidate needs to be cleared for
nomination. The Office of the Counsel to the President oversees this part of the
process, which usually includes background investigations conducted by the Federal
Bureau of Investigation (FBI), Internal Revenue Service (IRS), Office of Government
Ethics (OGE), and an ethics official for the agency to which the President wishes to
appoint the candidate. Once the Office of the Counsel has cleared the candidate, the
nomination is ready to be submitted to the Senate. The first stage is often the longest
part of the appointment process, so attention to this stage may be particularly
important if reducing the length of the process is desired. Candidates for higher-level
positions, such as Cabinet Secretaries, are often accorded priority in this process.
A nominee has no legal authority to assume the duties and responsibilities of the
position; the authority comes with Senate confirmation and presidential appointment
(the nominee’s receipt of his or her commission and swearing in). The President may
sometimes make a temporary appointment to a PAS position without Senate
confirmation. If circumstances permit and conditions are met, as described in detail
30 See, for example, National Academy of Public Administration,
Leadership in Jeopardy:
The Fraying of the Presidential Appointments System (Washington: National Academy of
Public Administration, 1985), pp. 9-10.
31 CRS Report RL31054,
Nominations and Confirmations to Policy Positions in the First
100 Days of the George W. Bush, William J. Clinton, and Ronald W. Reagan
Administrations, by Rogelio Garcia (archived CRS report available from the author).
32 For a more detailed discussion of the appointment process, see CRS Report RL32212,
The
Appropriate Number of Advice and Consent Positions: An Analysis of the Issue and
Proposals for Change, by Henry B. Hogue.
CRS-10
below, the President may give the nominee a temporary appointment under the
Vacancies Act33 or a recess appointment to the position.34 Both types of appointment
confer upon the appointee the legal authority to carry out the duties of the office. A
nominee who is hired as a consultant while awaiting confirmation may serve only in
an advisory capacity.
Senate Consideration
In the consideration stage, the Senate determines whether or not to confirm a
nomination.35 Each nomination is referred to the appropriate committee, where it
may receive a hearing. After the hearing, if there is one, the committee usually votes
to report the nomination back to the Senate, where it may be taken up and voted
upon. Most nominations proceed through the process in a routine, timely fashion.
During the 107th Congress, the Senate took a median36 of 36 days to confirm a
nomination to a full-time departmental position.37 Nominations to policymaking
positions can stall, however, or, in effect, die at any point. These outcomes are more
likely with controversial nominations. Sometimes, however, Senators may block
noncontroversial nominations through the use of holds38 to gain leverage as part of
a strategy to move unrelated legislation or nominations.
The Senate confirmation process is centered at the committee level. The rules
and procedures of the committees frequently include timetables specifying minimum
periods between steps in the process. Committee activity on nominations generally
includes investigation, hearing, and reporting stages. Action at the committee level
tends to be at the discretion of the chair. No Senate rule requires that a committee
act on any nomination.
Although the Senate confirms most nominations, some are not confirmed.
Rarely, however, is a nomination voted down on the Senate floor. Most rejections
occur in committee, either by committee vote or by committee inaction. Rejections
in committee occur for a variety of reasons, including opposition to the nomination,
inadequate amount of time for consideration of the nomination, or factors that may
have nothing to do with the merits of the nomination. If a nomination is not acted
33 5 U.S.C. 3345-3349d.
34 See CRS Report RS21412,
Limited-Term Appointments to Presidentially Appointed,
Senate-Confirmed Positions, by Henry B. Hogue.
35 For further information, see CRS Report RL31980,
Senate Consideration of Presidential
Nominations: Committee and Floor Procedure, by Elizabeth Rybicki; and CRS Report
RL31948,
Evolution of the Senate’s Role in the Nomination and Confirmation Process, A
Brief History, by Betsy Palmer.
36 The median is the middle value in a numerical distribution. In this case, half the
confirmations took less time, and half took more time.
37 CRS Report RL31346,
Presidential Appointments to Full-Time Positions in Executive
Departments During the 107th Congress, 2001-2002, by Henry B. Hogue.
38 A “hold” is an informal Senate practice in which a Senator requests that his or her party
leader delay floor action on a particular matter, in this case a nomination. See CRS Report
98-712,
“Holds” in the Senate, by Walter Oleszek.
CRS-11
upon by the Senate by the end of a Congress, it is returned to the President. Pending
nominations also may be returned automatically to the President at the beginning of
a recess of 30 days or longer, but the Senate rule providing for this return is often
waived.39
Appointment
In the final stage, the confirmed nominee is given a commission signed by the
President, with the seal of the United States affixed thereto, and is sworn into office.
The President may sign the commission at any time after confirmation, and the
appointment process is not complete until he or she does so. Once the appointee is
given the commission and sworn in, he or she has full authority to carry out the
responsibilities of the office. The length of the time between confirmation and
appointment varies in accordance with the preferences of the Administration and
appointee. It is usually shorter than either of the other two stages, and has not been
identified as problematic by presidential appointment scholars.
Temporary Staffing of PAS Positions
During Presidential Transitions
Several provisions of law allow for temporarily filling PAS positions without
Senate approval during presidential transitions, as well as at other times. Congress
has provided limited statutory authority for temporary presidential appointments
under the Federal Vacancies Reform Act of 1998.40 Appointees under the Vacancies
Act are authorized to “perform the functions and duties of the office temporarily in
an acting capacity subject to the time limitations” provided in the act.41 A temporary
appointment under the Vacancies Act ordinarily may last up to 210 days
(approximately seven months). During a presidential transition, however, the 210-
day restriction period does not begin to run until either 90 days after the President
assumes office (i.e., mid-April), or 90 days after the vacancy occurs, if it is within the
90-day inauguration period. Furthermore, the time restriction is suspended if a first
or second nomination for the position has been submitted to the Senate for
confirmation and is pending.
39 The rule may be found in U.S. Congress, Senate Committee on Rules and Administration,
Senate Manual, 106th Cong., 1st sess., S. Doc. 106-1 (Washington: GPO, 1999), p. 55, Rule
XXXI, paragraph 6 of the Standing Rules of the Senate. For an example of a waiver of the
rule, see Sen. John E. Sununu, “Nomination in Status Quo,”
Congressional Record, daily
edition, vol. 149, July 31, 2003, p. S10844.
40 P.L. 105-277, Div. C, Title I, Sec. 151; 5 U.S.C. 3345-3349d. The act does not apply to
positions on multi-headed regulatory boards and commissions, to certain other specific
positions that may be filled temporarily under other statutory provisions, or to new positions
that have never been filled. This law superceded previous, similar statutory provisions. For
more on the Vacancies Act, see CRS Report 98-892,
The New Vacancies Act: Congress Acts
to Protect the Senate’s Confirmation Prerogative, by Morton Rosenberg.
41 5 U.S.C. 3345(a)(1).
CRS-12
When an executive agency position requiring confirmation becomes vacant, it
may be filled temporarily under the Vacancies Act in one of three ways. First, the
first assistant to such a position may automatically assume the functions and duties
of the office. This provision may be of limited utility to a new President, because he
probably would not yet have installed a first assistant of his own choosing.
Nonetheless, if the first assistant who becomes the acting leader is a career executive,
he or she might lend continuity to agency operations and reduce organizational
confusion and paralysis during the transition.
The Vacancies Act also provides that the President may direct an officer in any
agency who is occupying a position requiring Senate confirmation to perform the
tasks associated with the vacant position. Although this option would allow a new
President to authorize one of his confirmed appointees to perform key tasks, it might
be of limited utility in the early months of the new Administration when PAS
positions in general are thinly staffed.
Finally, the Vacancies Act provides that the President may temporarily fill the
vacant position with any officer or employee of the subject agency who has been
occupying a position for which the rate of pay is equal to or greater than the
minimum rate of pay at the GS-15 level, and who has been with the agency for at
least 90 of the preceding 365 days. Under this provision, the President could draw,
for example, from among an agency’s career Senior Executive Service members, and
this might allow him to select, as a temporary office holder, an individual who
supports his policy preferences.
A second form of limited-term appointment without Senate confirmation is a
presidential recess appointment. The President’s authority to make recess
appointments is conferred by the Constitution, which states that “[t]he President shall
have Power to fill up all Vacancies that may happen during the Recess of the Senate,
by granting Commissions which shall expire at the End of their next Session.”42
Recent Presidents have used this authority to make such appointments during both
within-session (intrasession) Senate breaks and between-sessions (intersession)
recesses. Intrasession recess appointments have, however, sometimes provoked
controversy in the Senate, and there is also an academic literature that has drawn their
legitimacy into question.43 The constitutionality of such appointments has also been
debated in briefs associated with a case before the United States Court of Appeals for
42 Article 2, Sec. 2, cl. 3 of the Constitution.
43 Regarding Senate controversy, see Sen. George Mitchell, “The Senate’s Constitutional
Authority to Advise and Consent to the Appointment of Federal Officers,”
Congressional
Record, vol. 139, July 1, 1993, p. 15266; and Senate Legal Counsel, “Memorandum of
United States Senate as Amicus Curiae in Support of Plantiffs’ Motion, and in Opposition
to Defendants’ Motions, for Summary Judgment on Count Two,” U.S. District Court for the
District of Columbia,
Mackie v. Clinton, C.A. No. 93-0032-LFO,
Congressional Record,
vol. 139, July 1, 1993, pp. 15267-15274. For academic literature, see, for example, Michael
A. Carrier, “When Is the Senate in Recess for Purposes of the Recess Appointments
Clause?”
Michigan Law Review, vol. 92, June 1994.
CRS-13
the Eleventh Circuit.44 Recess appointments expire at the end of the next session of
Congress. As a result, a recess appointment may last for less than a year, or nearly
two years, depending on when the appointment is made.
At times, a nominee is hired as a consultant while awaiting confirmation, but he
or she may serve only in an advisory capacity and may not take on the functions and
duties of the office to which he or she has been nominated. A nominee to a Senate-
confirmed position has no legal authority to assume the responsibilities of this
position; the authority comes with one of the limited-term appointments discussed
above, or with Senate confirmation and subsequent presidential appointment.
The Length of the Appointment Process
In its report, the 9/11 Commission asserted that the length of the appointment
process for positions on the President’s “national security team” at the time of
presidential transitions is too long. It expressed particular concern about
appointments to these positions during the 2000-2001 transition. How long was
taken to fill the positions? According to the commission, the 2001 appointments
were not completed until at least six months after the President took office. This
claim is difficult to verify, because the report did not define the parameters of the
national security team. Neither the specific positions nor the total number of
positions on the team were identified. According to a commission staff member, the
team includes top appointees at the Departments of Defense, Homeland Security,
Justice, and State and the Central Intelligence Agency,45 but it remains unclear which
positions in the hierarchies of these agencies are included.
Although the “national security team” remains undefined, a review of the length
of the appointment process for some of the positions likely to be included might be
helpful in identifying the scope of the problem the commission seeks to solve. The
report specifically calls for expedited Senate consideration procedures for “national
security team” positions through Level III of the Executive Schedule. This suggests
that the commission would include positions at least through the level of Under
Secretary.
Table 2 provides appointment information concerning positions at Levels I, II,
and III of the Executive Schedule for the departments and agencies identified by
commission staff. The table identifies, for each position, the Senate committee of
jurisdiction, name of the first confirmed George W. Bush appointee, date the
nomination was received by the Senate, and confirmation date. It also provides a
calculation of the days elapsed during the first two stages of the process, presidential
44 For the principal arguments, see Sen. Edward M. Kennedy, “Brief of Amicus Curiae
Senator Edward M. Kennedy in Support of Petitioner,” U.S. Court of Appeals for the
Eleventh Circuit,
Stephens v. Evans, No. 02-16424; and U.S. Dept. of Justice, “Brief for the
Intervenor United States Supporting the Constitutionality of Judge Pryor’s Appointment as
a Judge of This Court,” U.S. Court of Appeals for the Eleventh Circuit,
Stephens v. Evans,
No. 02-16424.
45 Information received from 9/11 Commission staff via telephone, Aug. 3, 2004.
CRS-14
selection and vetting, and Senate consideration. For the purposes of the table, the
selection process for most of the listed positions, which were vacated at some time
prior to, or shortly after, the end of the Clinton presidency, was considered to have
begun at the time of the President’s inauguration. The selection process for positions
in the Department of Homeland Security, which was established well after the 2000-
2001 presidential transition, was considered to have begun at the time the Homeland
Security Act was enacted. The process by which Robert S. Mueller, III, was selected
to be the Director of the FBI was considered to have begun at the time of the previous
director’s resignation on June 25, 2001. The process by which Porter J. Goss, was
selected to be the Director of Central Intelligence was considered to have begun at
the time of the previous director’s departure on July 11, 2004. Among the Level I,
II, and III positions at the Departments of Defense, Homeland Security, Justice, and
State, and the Central Intelligence Agency, not all had been vacated and refilled with
Bush appointees by the end of September 2004, and this is noted, where appropriate,
in the table.
Table 2 provides, for this group of positions, the mean and median numbers of
days taken to complete each of the first two stages of the appointment process and
to complete the entire process. These statistics show that, on average, President
Bush’s nominees for the specified positions are selected, nominated, and confirmed
within three months. Although these processes took as long as seven months for
some such appointments, 74% had been confirmed by the four-month mark.
Table 2 also shows that, for this select group of positions, the average selection
and vetting period is more than twice as long as the average period of Senate
consideration. For most of the positions shown in the table — 19 of 28 — Senate
consideration took fewer than the 9/11 Commission’s recommended 30 days.
CRS-15
Table 2. Initial Appointments by President George W. Bush to Top Positions at the
Departments of Defense, Homeland Security, Justice, State, and the Central Intelligence Agency
Days from
Days from
First confirmed
Date
inauguration,
Days elapsed
inauguration,
nomination to the
nomination
enactment, or
from
enactment, or
Senate committee of
position by President
received in
Confirmation
vacancy to
nomination to
vacancy to
Position title
jurisdiction
George W. Bush
the Senate
date
nomination
confirmation
confirmation
Department of Defense
Secretary of Defense
Armed Services
Donald Rumsfelda
01/20/01
01/20/01
0
1
1
Deputy Secretary
Armed Services
Paul D. Wolfowitz
02/15/01
02/28/01
26
13
39
Under Secretary - Acquisition,
Armed Services
Edward C. Aldridge, Jr.
04/23/01
05/08/01
93
15
108
Technology, and Logistics
Under Secretary - Comptroller
Armed Services
Dov S. Zakheim
03/13/01
05/01/01
52
49
101
and Chief Financial Officer
Under Secretary - Policy
Armed Services
Douglas J. Feith
04/30/01
07/12/01
100
73
173
Under Secretary - Personnel and
Armed Services
David S. C. Chu
04/30/01
05/26/01
100
26
126
Readiness
Under Secretary - Intelligenceb
Armed Services
Stephen A. Cambone
02/04/03
03/07/03
64
31
95
Secretary of the Air Force
Armed Services
James G. Roche
05/07/01
05/24/01
107
17
124
Secretary of the Army
Armed Services
Thomas E. White
05/01/01
05/24/01
101
23
124
Secretary of the Navy
Armed Services
Gordon England
04/30/01
05/22/01
100
22
122
Department of Homeland Securityc
Secretary
Governmental Affairs
Thomas J. Ridge
01/07/03
01/22/03
43
15
58
Deputy Secretary
Governmental Affairs
Gordon Englandd
01/07/03
01/30/03
43
23
66
CRS-16
Days from
Days from
First confirmed
Date
inauguration,
Days elapsed
inauguration,
nomination to the
nomination
enactment, or
from
enactment, or
Senate committee of
position by President
received in
Confirmation
vacancy to
nomination to
vacancy to
Position title
jurisdiction
George W. Bush
the Senate
date
nomination
confirmation
confirmation
Under Secretary — Border and
Commerce, Science,
Asa Hutchinsond
01/10/03
01/23/03
46
13
59
Transportation Security
and Transportation
Under Secretary — Emergency
Governmental Affairs
Michael D. Browne
na
na
na
na
na
Preparedness and Response
Under Secretary — Information
Analysis and Infrastructure
Intelligence
Frank Libutti
04/28/03
06/23/03
154
56
210
Protection
Under Secretary — Management
Governmental Affairs
Janet Haled
01/21/03
03/06/03
57
44
101
Under Secretary — Science and
Commerce, Science,
Charles E. McQueary
02/14/03
03/19/03
81
33
114
Technology
and Transportation
Department of Justice
Attorney General
Judiciary
John Ashcroft
01/29/01
02/01/01
9
3
12
Deputy Attorney General
Judiciary
Larry D. Thompson
03/22/01
05/10/01
61
49
110
Director — Federal Bureau of
Judiciary
Robert S. Mueller, IIIf
07/18/01
08/02/01
23
15
38
Investigation (FBI)
Department of State
Secretary
Foreign Relations
Colin L. Powella
01/20/01
01/20/01
0
1
1
Deputy Secretary
Foreign Relations
Richard L. Armitage
03/08/01
03/23/01
47
15
62
Under Secretary — Economic,
Business, and Agricultural Affairs
Foreign Relations
(No confirmed Bush appointment to this position as of October 18, 2004)
CRS-17
Days from
Days from
First confirmed
Date
inauguration,
Days elapsed
inauguration,
nomination to the
nomination
enactment, or
from
enactment, or
Senate committee of
position by President
received in
Confirmation
vacancy to
nomination to
vacancy to
Position title
jurisdiction
George W. Bush
the Senate
date
nomination
confirmation
confirmation
Under Secretary — Global
Foreign Relations
Paula J. Dobriansky
04/04/01
04/26/01
74
22
96
Affairs
Under Secretary — Arms Control
Foreign Relations
John R. Bolton
03/08/01
03/23/01
47
15
62
and International Security
Under Secretary — Management
Foreign Relations
Grant S. Green, Jr.
03/08/01
03/28/01
47
20
67
Under Secretary — Political
Foreign Relations
Marc I. Grossman
03/08/01
03/23/01
47
15
62
Affairs
Under Secretary — Public
Foreign Relations
Charlotte L. Beersg
06/29/01
09/26/01
160
58
218
Diplomacy and Public Affairs
Central Intelligence Agency
Director of Central Intelligence
Intelligence
Porter J. Gossh
09/07/04
09/22/04
58
15
73
Deputy Director of Central
Intelligence
(No confirmed Bush appointment to this position as of August 2004)
Intelligence
Deputy Director of Central
Intelligence — Community
Intelligence
Larry C. Kindsvateri
05/11/04
07/22/04
na
72
na
Management
Median elapsed days
57
21
95
Mean elapsed days
64
27
90
a Although the first day the new President formally submitted nominations to the Senate was Inauguration Day, Senate committees held hearings on some top nominations before this
time, and the Senate was therefore ready to confirm the nominees on the same day they were nominated.
b This position was created by P.L. 107-314, Sec. 901(a), enacted Dec. 2, 2002.
c The Homeland Security Act of 2002 (P.L. 107-296), which created the Department of Homeland Security, was signed into law on Nov. 25, 2002.
d On Jan. 27, 2003, President Bush announced his intention to designate England, Hutchinson, Hale, and one other individual as acting officials in their intended positions. (U.S.
President (George W. Bush), “Digest of Other White House Announcements,”
Weekly Compilation of Presidential Documents, vol. 39, Jan. 27, 2003, p. 145.) These actions were taken
CRS-18
under Sec. 1511(c)(1) of the act. (Information received from Department of Homeland Security, Office of the Deputy Secretary, via telephone conversation, Jan. 28, 2003.) England,
Hutchinson, and Hale were later confirmed as shown.
e According to DHS sources, Brown was appointed under Sec. 1511(c)(2) of the act, which provides that reconfirmation by the Senate is not required by the law for “any officer whose
agency is transferred to the Department pursuant to this act and whose duties following such transfer are germane to those performed before such transfer.” (Information received from
Department of Homeland Security, Office of Legislative Affairs, via telephone conversation, Mar. 12, 2003.) He was previously nominated to be deputy director of the Federal
Emergency Management Agency (FEMA) on Mar. 21, 2002 and confirmed on Aug. 1, 2002.
f Vacancy information for Mueller’s predecessor, Louis J. Freeh, is from the FBI’s history page, available at [http://www.fbi.gov/libref/directors/freeh.htm], visited Aug. 16, 2004.
g Technically, Beers was nominated twice. She was first nominated on June 29, 2001, and this nomination was returned to the President on Aug. 3, 2001, at the beginning of a 31-day
Senate recess, under the provisions of Senate Rule XXXI, paragraph 6 of the Standing Rules of the Senate. She was nominated again on Sept. 4, 2001. The 31 days of the Senate recess
are not included in the calculations, in this row, of days elapsed.
h Vacancy information for Goss’s predecessor, George Tenet, is from Terence Hunt, “Bush Taps Rep. Porter Goss to Head CIA,”
Associated Press, Aug. 10, 2004.
CRS-19
9/11 Commission Recommendations
The overall recommendation of the 9/11 Commission calling for changes to the
appointment process as a way of improving the presidential transition process stated
the following:
Since a catastrophic attack could occur with little or no notice, we should
minimize as much as possible the disruption of national security policymaking
during the change of administrations by accelerating the process for national
security appointments. We think the process could be improved significantly so
transitions can work more effectively and allow new officials to assume their
new responsibilities as quickly as possible.46
This general recommendation was followed by seven more specific recommended
changes, six of which are discussed below.47
Early Security Clearance for
Certain Prospective Appointees
The commission recommended two changes to the security clearance process
related to presidential transitions. First, presidential candidates should, before the
election, “submit the names of selected members of their prospective transition teams
to the FBI so that, if necessary, those team members can obtain security clearances
immediately after the election is over.” Similarly, immediately following the
election, the President-elect should submit, for national security clearance, names of
prospective nominees to national security positions.48
The security clearance process was developed in the wake of World War II as
a means of verifying federal employee and contractor loyalty to the United States and
providing standards and criteria for access, by employees and contractors, to
classified national security information. The primary legal authorities undergirding
the system are found in executive orders by President Dwight D. Eisenhower (E.O.
10450) and President William J. Clinton (E.O. 12968).49 Certain statutory provisions
also affect the clearance system in specific areas of the federal government.50 The
system provides for three levels of clearance for most agencies: confidential, secret,
46
9/11 Commission Report, p. 422.
47 The seventh change called for by the commission, centralization of the national security
clearance process in one agency, is beyond the scope of this report.
48
9/11 Commission Report, p. 422.
49 U.S. President (Eisenhower), “Security Requirements for Government Employment,”
Executive Order 10450, 18
Federal Register 2489, Apr. 27, 1953; U.S. President (Clinton),
“Access to Classified Information,” Executive Order 12968, 60
Federal Register 40245,
Aug. 2, 1995.
50 For identification and discussion of these authorities, see CRS Congressional Distribution
Memorandum
Security Clearance Program: An Overview, by Frederick M. Kaiser.
CRS-20
and top secret. Individuals may also be cleared for access to Sensitive
Compartmentalized Information.51
As part of the security clearance system, a candidate for appointment to a full-
time PAS position usually is required to complete the “Questionnaire for National
Security Positions” (SF 86). This information is then referred to the FBI for a full
field background investigation at the top-secret level. The nomination is not
submitted to the Senate until after this investigation is completed. The length of time
taken to complete the investigation varies, depending on the complexity of the
individual’s background, whether or not the potential appointee has been cleared
before, and the workload of the investigations unit at the FBI. Although some
investigations are completed relatively quickly, other investigations may take up to
six months.52
Two of the commission’s recommended changes, early background checks for
potential transition team members and prospective nominees, might allow the
President-elect and his key staff to be briefed on national security matters sooner than
is presently the case. This would presumably allow the nascent Administration to
formulate adequate national security policies prior to taking the reins of government,
as a consequence of access to classified information. Furthermore, it might facilitate
the earlier submission of key nominations to the Senate.
These two changes probably could be accomplished administratively with the
cooperation of an incumbent Administration. The sitting President could submit to
the FBI appropriate security clearance paperwork on behalf of candidates and the
President-elect. The arrangement could be formalized through a memorandum of
understanding that specified positions, procedures, and a time line. Because such an
administrative approach would not be set in statute, its success would likely be tied
to goodwill on the part of the parties involved, particularly the incumbent. Executive
Order 10450 could be amended to establish this practice as a more routine part of the
presidential transition process.
Alternatively, or in addition, a concurrent resolution of Congress expressing
support for this approach might lead to more sustained and consistent employment
of this practice. Congress could also elect to legislate such changes, possibly by
amending the Presidential Transition Act of 1963.53
51 See “Director of Central Intelligence Directive 6/4,” available at [http://www.dss.mil/
nf/adr/index.htm], visited Aug. 16, 2004.
52 Information received from Federal Bureau of Investigation via telephone, Aug. 16, 2004.
53 The Presidential Transition Act (P.L. 88-277, codified at 3 U.S.C.102 note) authorizes the
Administrator of General Services to provide, during a presidential transition, certain
logistical support to the incoming and outgoing Presidents and Vice Presidents.
CRS-21
Recommended Changes in Advice and Consent
for Certain Positions
The 9/11 Commission recommended the following regarding changes in the
advice and consent process:
A president-elect should submit the nominations of the entire new national
security team, through the level of under secretary of cabinet departments, not
later than January 20. The Senate, in return, should adopt special rules requiring
hearings and votes to confirm or reject national security nominees within 30 days
of their submission. The Senate should not require confirmation of such
executive appointees below Executive Level 3.54
Early Nominations by the President-Elect. Strictly speaking, the
President-elect does not have the authority to submit nominations to the Senate
before January 20. Under the Constitution, the power to appoint the principal
officers of the United States is shared by the President and the Senate, and the
President-elect does not have any appointment authority until he or she takes office.55
Recent Presidents have routinely submitted nominations of their Cabinet members
on Inauguration Day. Following the 9/11 Commission’s recommendation, future
Presidents would nominate “national security team” members on this day as well.
Alternative approaches might be taken to initiate Senate consideration of
“national security team members” before the new President takes office.56 One
approach would be to start a Senate consideration process before the formal
nomination of potential appointees. This practice has been followed with department
secretaries and other Cabinet positions (for example, the Director of Management
and Budget and the Administrator of the Environmental Protection Agency) during
recent transitions. Prior to inauguration, Presidents-elect usually select and announce
choices for these positions, and the Senate often holds hearings on these prospective
nominations. During the 1992-1993 presidential transition, for example, pre-
inaugural hearings on prospective nominations by President-elect William J. Clinton
were held by the Senate Committees on Agriculture, Nutrition, and Forestry;
Banking, Housing, and Urban Affairs; Energy and Natural Resources; Environment
and Public Works; Finance; Foreign Relations; Governmental Affairs; and Labor
54
9/11 Commission Report, p. 422.
55 The Constitution states, “[The President] shall nominate, and by and with the Advice and
Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls,
Judges of the supreme Court, and all other Officers of the United States, whose
Appointments are not herein otherwise provided for, and which shall be established by Law:
but the Congress may by Law vest the Appointment of such inferior Officers, as they think
proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
(Article II, Sec. 2, cl. 2.)
56 Continuity in the national security system might also be maintained if the incoming
Administration were to retain certain appointees from the outgoing Administration during
the transition. The commission’s report did not discuss this approach.
CRS-22
and Human Resources, among others.57 As a result, eight presidential nominations
were confirmed within the first week of the new Administration. In a similar
manner, 12 high-level nominees were confirmed within the first week of the
presidency of George W. Bush.58 Congress could elect to follow this process for
national security appointments as well.
Another approach would require cooperation between the outgoing and
incoming Presidents, in order for incoming “national security team” members to be
officially nominated prior to the new President’s inauguration. Under such a
scenario, the sitting President would, as a courtesy, submit nominations on behalf of
the President-elect. Once the nominations were submitted, the Senate could consider
them just as it would nominations submitted after inauguration. If the Senate were
to confirm such nominations prior to inauguration, the confirmed nominees could not
take office until the President signed their commissions. This fact would allow the
outgoing President to control the final outcome of the process until the inauguration
of the new President. As with some of the potential changes to the security clearance
process discussed above, this approach to pre-inaugural nominations would likely be
tied to goodwill on the part of the parties involved.
Time-Limited Senate Consideration. Senate consideration of a
nomination may take anywhere from less than a day to many months.59 The 9/11
Commission proposed that the Senate “adopt special rules” that would limit the
length of the consideration process for “national security team” positions to 30 days.
Although the Senate could elect to adopt such a rule, rule changes are rare, in part
because invoking cloture on a proposal to change Senate rules requires the support
of two-thirds of the Senators present and voting.60
Limits on the length of the Senate consideration process could also be imposed
by statute,61 standing order, or unanimous consent. At present, no known statute or
standing order provides for an overall time limit on Senate consideration of a
57 Senate Legal Counsel, “Memorandum of United States Senate as Amicus Curiae in
Support of Plantiffs’ Motion, and in Opposition to Defendants’ Motions, for Summary
Judgment on Count Two,” U.S. District Court for the District of Columbia,
Mackie v.
Clinton, C.A. No. 93-0032-LFO,
Congressional Record, vol. 139, July 1, 1993, p. 15267.
58 Confirmation information was drawn from the Senate nominations database of the
Legislative Information System, available at [http://www.congress.gov/nomis/], visited Aug.
16, 2004.
59 For a detailed discussion of the Senate consideration process, see CRS Report RL31980,
Senate Consideration of Presidential Nominations: Committee and Floor Procedure, by
Elizabeth Rybicki.
60 U.S. Congress, Senate Committee on Rules and Administration,
Senate Manual, 106th
Cong., 1st sess., S. Doc. 106-1 (Washington: GPO, 1999), p. 21, Rule XXII, paragraph 2 of
the Standing Rules of the Senate.
61 Statutory modifications to Senate procedures, including limits on debate for certain
nominations, could be amended, waived, repealed, or ignored by the Senate.
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nomination.62 More commonly, the Senate has used unanimous consent (UC)
agreements to structure, for individual nominations, the duration and other aspects
of the consideration process. In the case of the nominations specified by the 9/11
Commission, the Senate could fashion a UC agreement or standing order structuring
this 30-day consideration process. Such an agreement established prior to the
election would continue to be binding in the next Congress, unless the agreement
provided otherwise or was later modified.
Any rule, statute, standing order, or UC agreement placing limits on the
consideration process would implicitly restrict the right of Senators to unlimited
debate.63 As a consequence, it would be impossible to filibuster or place an unlimited
hold on a specified nomination. If time limits were placed on the Senate
consideration process for “national security team” nominations, some might argue
that this practice should be replicated for other groups of nominations.64
Removing Advice and Consent Requirements Below Level III. The
9/11 Commission suggested that presidential appointments to “national security
team” positions that are compensated below Level III of the Executive Schedule
should not be subject to the advice and consent of the Senate. The report does not
specify which among the PAS positions below this level would be considered to be
part of the “national security team.” Consequently, the type and total number of
positions that would be affected is unknown. As a point of reference, the positions
compensated at Levels IV and V of the Executive Schedule, throughout the federal
government, include the following: assistant secretaries; inspectors general; some
directors, administrators, deputy administrators, and assistant directors; general
counsels; chief financial officers; chief information officers; and members of federal
regulatory boards and commissions.65
62 For an example of a standing order that applies to the Senate consideration process but
does not limit the overall duration of this process, see Sen. George Mitchell, “Joint Referral
of Department of Energy Nomination,” remarks in the Senate,
Congressional Record, vol.
136, June 28, 1990, pp. 16573-16574. Under this standing order, nominations to the
position of Assistant Secretary of Energy for Environmental Management are referred
jointly to the Committee on Armed Services and the Committee on Energy and Natural
Resources. If one committee reports the nomination to the full Senate, the other committee
has 30 days to report the nomination before this committee is discharged from further
consideration of the nomination.
63 For a general discussion of expedited procedures, see CRS Report 98-888,
“Fast Track”
or Expedited Procedures: Their Purposes, Elements, and Implications, by Christopher M.
Davis.
64 For additional information and analysis concerning the proposed changes to the Senate
process for consideration of nominations, see CRS Report RL32551,
9/11 Commission
Recommendations: The Senate Confirmation Process for Presidential Nominees, by Betsy
Palmer.
65 5 U.S.C. 5315 and 5316. For a list of full-time PAS positions at each department, as of
the end of the 107th Congress, see CRS Report RL31346,
Presidential Appointments to Full-
Time Positions in Executive Departments During the 107th Congress, 2001-2002, by Henry
B. Hogue.
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The idea of removing advice and consent requirements from some PAS
positions has been previously suggested by others.66 The context of the
commission’s recommendation suggests that it believes taking this step would speed
the appointment process and “allow new officials to assume their new responsibilities
as quickly as possible.”67 Other proponents have contended that a reduction in the
number of PAS positions would lead to a more efficient confirmation process in the
Senate and faster appointments to the positions that continue to require advice and
consent.68
If the advice and consent requirements were removed from certain positions
with national security responsibilities compensated at Levels IV and V of the
Executive Schedule, then Congress, under the Appointments Clause of the
Constitution, could vest this authority “in the President alone, in the Courts of Law,
or in the Heads of Departments.”69 Congress rarely delegates the appointment of
officers outside the Executive Office of the President to the President alone, but it has
recently done so for two offices in the Department of Homeland Security — the
Assistant Secretary for Information Analysis and the Assistant Secretary for
Infrastructure Protection.70 More commonly, Congress delegates the appointment of
lower-level officers to agency heads. In either case, the change in appointment
authority might serve to increase the accountability of political appointees to the
Administration and further centralize management in the area of national security.
When Congress delegates the authority for the appointment of an inferior officer
to the President alone or to an agency head, it cedes some power over the federal
bureaucracy to the executive branch. In such a case, Congress, particularly the
Senate, may have reduced influence over the selection of the individual, and it gives
up the opportunity to consider the individual’s merits. In addition, congressional
committees may have greater difficulty obtaining testimony from an appointee who
has not been confirmed by the Senate. As previously mentioned, the Senate usually
gains, during the confirmation process, a commitment from the nominee to respond
to requests to come before committees of the Senate.71 This commitment may not
be necessary, under most circumstances, to obtain testimony. An argument could be
made that Congress has the authority to call most officers with operational duties,
66 For a full discussion of previous recommendations and an analysis of related issues and
options, see CRS Report RL32212,
The Appropriate Number of Advice and Consent
Positions: An Analysis of the Issue and Proposals for Change, by Henry B. Hogue.
67
9/11 Commission Report, p. 422.
68 For a discussion of these proponents arguments, see CRS Report RL32212, pp. 1-3.
69 Article II, Sec. 2, cl. 2.
70 P.L. 107-296, Sec. 201(b).
71 For example, the Senate Committee on Governmental Affairs pre-hearing questionnaire
for Michael J. Garcia, a nominee to be an Assistant Secretary at the Department of
Homeland Security, included the following question: “Do you agree without reservation to
respond to any reasonable summons to appear and testify before any duly constituted
committee of the Congress if you are confirmed?” U.S. Congress, Senate Committee on
Governmental Affairs,
Nominations of C. Stewart Verdery, Jr., and Michael J. Garcia,
hearing, 108th Cong., 1st sess., June 5, 2003 (Washington: GPO), p. 133.
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regardless of appointment status, before its committees. As a practical matter,
however, the commitment obtained at the time of confirmation may make this
process easier for Congress.
The removal of advice and consent requirements may have political
ramifications for the Senate. It could be argued that the confirmation process, in
general, provides the Senate with leverage during negotiations with the President
over related and unrelated matters, and that the removal of advice and consent
requirements for these positions might reduce this leverage. The impact of such a
change, should it be adopted, might hinge on the total number of positions involved
and the specific positions affected, neither of which is specified in the commission’s
recommendation. Furthermore, if advice and consent requirements were to be
removed from the appointment process for lower-level national security positions,
some might argue that such requirements should be removed for similar positions in
other parts of the federal government, broadening the potential impact on Senators’
leverage by reducing the number of appointments potentially subject to negotiation.
Information Exchange During Presidential Transitions
The final 9/11 Commission proposal related to its recommendation of
presidential transition process improvement was stated as follows:
The outgoing administration should provide the president-elect, as soon as
possible after election day, with a classified, compartmented list that catalogues
specific, operational threats to national security; major military or covert
operations; and pending decisions on the possible use of force. Such a document
could provide both notice and a checklist, inviting a president-elect to inquire
and learn more.72
During recent presidential transitions, presidential candidates and, later,
Presidents-elect have been briefed on national security issues.73 The commission
proposed particular form and contents for written materials that are provided to the
President-elect. As with the proposed national security clearance process changes
discussed above, the commission’s recommendations in this area could be put in
place administratively. The adoption of this practice might be more consistent and
regularized if it were established by executive order. Alternatively, or in addition,
a concurrent resolution of Congress expressing support for this recommendation
might encourage its successful adoption.
72
9/11 Commission Report, pp. 422-423.
73 For references to this practice, see John L. Helgerson,
Getting to Know the President: CIA
Briefings of Presidential Candidates, 1952-1992 (Washington: Central Intelligence Agency,
1996), chap. 1, and White House Press Briefing by Jake Siewert, Nov. 27, 2000, available
at [http://clinton6.nara.gov/2000/11/2000-11-27-press-briefing-by-jake-siewert.html], visited
Aug. 16, 2004.
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Conclusion
Observers who have studied the presidential transition process are in general
agreement with the finding of the 9/11 Commission that it takes too long to staff the
top positions in a new Administration. The commission expressed the greatest
concern about “national security team” positions, although the report did not specify
the members of this team. In the 2000-2001 transition, one possible set of members
— top-level positions at the Departments of Defense, Homeland Security, Justice,
and State — had been confirmed, on average, within about three months of the
President’s inauguration. Selection and vetting of candidates — including
background investigations and financial disclosure — accounted for most of this
time, and statutory or administrative changes to these processes might shorten the
time required to fill these positions. In most cases, the Senate consideration process
was completed within a month of nomination, the time frame suggested by the
commission. Findings might be different for a broader group of positions related to
national security, or for PAS positions in general.