9/11 Commission Recommendations: Changes to the Presidential Appointment and Presidential Transition Processes

Congressional research reportOct 19, 2004

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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 twothirds 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, centralization 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

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.

9/11 Commission Report, p. 198.

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.

As discussed below, the phrase “national security team” was not defined in the report.

9/11 Commission Report, p. 422.

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

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.

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.

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.

S. 2845, Sec. 1081(a)(1).

S. 2845, Sec. 1081(a)(3).

Ibid.

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

S. 2845, Sec. 1081(c).

S. 2845, Sec. 1081(b).

S. 2845, Sec. 1102.

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.

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.

H.R. 10, Sec. 5041(a).

H.R. 10, Sec. 5041(b).

H.R. 10, Sec. 5041(c).

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, SenateConfirmed 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.

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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 60day 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

H.R. 10, Sec. 5042.

H.R. 10, Sec. 5044.

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

S. 2845, Sec. 1081.

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.

S. 2774, Sec. 401.

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.

Requiring

Senate

Approval

Pres. Appt.

Not

Requiring

Senate

Approval

Non-Career

Senior

Executive

Service

Schedule C

Other a

Total

Agriculture

—

166

—

222

Commerce

—

154

Defense

105

262

Education

125

—

179

Energy

118

Health and Human

Services

104

Homeland Security

143

Housing and Urban

Development

—

Interior

—

Justice

119

—

261

Labor

104

145

State

—

113

156

335

Transportation

—

Treasury

Veterans Affairs

Department

Total

370

524

1172

178

2303

Source: U.S. Office of Personnel Management Central Personnel Data File. Specifications of data run are available from the

author.

Includes ambassadors and other executive appointments not specified.

CRS-9

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

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.

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).

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.

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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

5 U.S.C. 3345-3349d.

See CRS Report RS21412, Limited-Term Appointments to Presidentially Appointed,

Senate-Confirmed Positions, by Henry B. Hogue.

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.

The median is the middle value in a numerical distribution. In this case, half the

confirmations took less time, and half took more time.

CRS Report RL31346, Presidential Appointments to Full-Time Positions in Executive

Departments During the 107th Congress, 2001-2002, by Henry B. Hogue.

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 210day 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.

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.

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.

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

Article 2, Sec. 2, cl. 3 of the Constitution.

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 Senateconfirmed 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

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.

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 20002001 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

Confirmation

date

Days elapsed

from

nomination to

confirmation

Days from

inauguration,

enactment, or

vacancy to

confirmation

Senate committee of

jurisdiction

Secretary of Defense

Armed Services

Donald Rumsfelda

01/20/01

Deputy Secretary

Armed Services

Paul D. Wolfowitz

02/15/01

02/28/01

Under Secretary - Acquisition,

Technology, and Logistics

Armed Services

Edward C. Aldridge, Jr.

04/23/01

05/08/01

108

Under Secretary - Comptroller

and Chief Financial Officer

Armed Services

Dov S. Zakheim

03/13/01

05/01/01

101

Under Secretary - Policy

Armed Services

Douglas J. Feith

04/30/01

07/12/01

100

173

Under Secretary - Personnel and

Readiness

Armed Services

David S. C. Chu

04/30/01

05/26/01

100

126

Under Secretary - Intelligenceb

Armed Services

Stephen A. Cambone

02/04/03

03/07/03

Secretary of the Air Force

Armed Services

James G. Roche

05/07/01

05/24/01

107

124

Secretary of the Army

Armed Services

Thomas E. White

05/01/01

05/24/01

101

124

Secretary of the Navy

Armed Services

Gordon England

04/30/01

05/22/01

100

122

Secretary

Governmental Affairs

Thomas J. Ridge

01/07/03

01/22/03

Deputy Secretary

Governmental Affairs

Gordon Englandd

01/07/03

01/30/03

Position title

Date

nomination

received in

the Senate

Days from

inauguration,

enactment, or

vacancy to

nomination

First confirmed

nomination to the

position by President

George W. Bush

Department of Defense

Department of Homeland Securityc

CRS-16

First confirmed

nomination to the

position by President

George W. Bush

Date

nomination

received in

the Senate

Confirmation

date

Days from

inauguration,

enactment, or

vacancy to

nomination

Days elapsed

from

nomination to

confirmation

Days from

inauguration,

enactment, or

vacancy to

confirmation

Position title

Senate committee of

jurisdiction

Under Secretary — Border and

Transportation Security

Commerce, Science,

and Transportation

Asa Hutchinsond

01/10/03

01/23/03

Under Secretary — Emergency

Preparedness and Response

Governmental Affairs

Michael D. Browne

Under Secretary — Information

Analysis and Infrastructure

Protection

Intelligence

Frank Libutti

04/28/03

06/23/03

154

210

Under Secretary — Management

Governmental Affairs

Janet Haled

01/21/03

03/06/03

101

Under Secretary — Science and

Technology

Commerce, Science,

and Transportation

Charles E. McQueary

02/14/03

03/19/03

114

Attorney General

Judiciary

John Ashcroft

01/29/01

02/01/01

Deputy Attorney General

Judiciary

Larry D. Thompson

03/22/01

05/10/01

110

Director — Federal Bureau of

Investigation (FBI)

Judiciary

Robert S. Mueller, IIIf

07/18/01

08/02/01

Secretary

Foreign Relations

Colin L. Powella

01/20/01

Deputy Secretary

Foreign Relations

Richard L. Armitage

03/08/01

03/23/01

Under Secretary — Economic,

Business, and Agricultural Affairs

Foreign Relations

Department of Justice

Department of State

(No confirmed Bush appointment to this position as of October 18, 2004)

CRS-17

Confirmation

date

Days from

inauguration,

enactment, or

vacancy to

nomination

Days elapsed

from

nomination to

confirmation

Days from

inauguration,

enactment, or

vacancy to

confirmation

04/04/01

04/26/01

John R. Bolton

03/08/01

03/23/01

Foreign Relations

Grant S. Green, Jr.

03/08/01

03/28/01

Under Secretary — Political

Affairs

Foreign Relations

Marc I. Grossman

03/08/01

03/23/01

Under Secretary — Public

Diplomacy and Public Affairs

Foreign Relations

Charlotte L. Beersg

06/29/01

09/26/01

160

218

Director of Central Intelligence

Intelligence

Porter J. Gossh

09/07/04

09/22/04

Deputy Director of Central

Intelligence

Senate committee of

jurisdiction

First confirmed

nomination to the

position by President

George W. Bush

Date

nomination

received in

the Senate

Under Secretary — Global

Affairs

Foreign Relations

Paula J. Dobriansky

Under Secretary — Arms Control

and International Security

Foreign Relations

Under Secretary — Management

Position title

Central Intelligence Agency

Deputy Director of Central

Intelligence — Community

Management

Median elapsed days

Intelligence

(No confirmed Bush appointment to this position as of August 2004)

Larry C. Kindsvateri

05/11/04

07/22/04

Mean elapsed days

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.

This position was created by P.L. 107-314, Sec. 901(a), enacted Dec. 2, 2002.

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.

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.

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.

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.

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.

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,

9/11 Commission Report, p. 422.

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.

9/11 Commission Report, p. 422.

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.

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 fulltime 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

See “Director of Central Intelligence Directive 6/4,” available at [http://www.dss.mil/

nf/adr/index.htm], visited Aug. 16, 2004.

Information received from Federal Bureau of Investigation via telephone, Aug. 16, 2004.

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, preinaugural 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

9/11 Commission Report, p. 422.

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.)

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

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.

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.

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.

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.

Statutory modifications to Senate procedures, including limits on debate for certain

nominations, could be amended, waived, repealed, or ignored by the Senate.

CRS-23

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

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.

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.

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.

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 FullTime 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,

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.

9/11 Commission Report, p. 422.

For a discussion of these proponents arguments, see CRS Report RL32212, pp. 1-3.

Article II, Sec. 2, cl. 2.

P.L. 107-296, Sec. 201(b).

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.

9/11 Commission Report, pp. 422-423.

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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.