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Fabulous Formless Darkness: Presidential Nominees and the Morass of Inquiry

The White House wants to know what real estate you or your spouse now own. It also wants a list of properties you and your spouse have owned in the past six years but don’t now.

The FBI wants to know about properties in which you have an interest. Presumably the properties you might have an interest in include more than those you own outright. Drop the spouse and drop the past six years.

The U.S. Office of Government Ethics wants you to report real properties that you have sold or bought. It also wants you to list real estate assets currently held, as well as any you have sold that made you at least $200. Drop the past six years, but add the past two. Skip the properties you own but have not bought recently. Add your spouse to the mix. Add any dependent children. Then set the values of the transactions within one of eleven ranges.

A Senate committee wants to return to the White House question of ownership, drop the spouse, drop the dependent children, take the FBI time frame, drop the past six years, then drop the two years, forget about sales and acquisitions, drop the value ranges. But add a specific value to each of the properties reported.

Though W. B. Yeats had in mind the primordial chaos of mythology when he penned my title phrase, the Irish poet could well have been speaking of the inquisition that U.S. presidential appointees face in securing a post in the federal government. Over the past 30 years, the process by which the president’s nominees are confirmed has become an increasingly murky fen of executive branch and Senate forms, strategic entanglements, and “gotcha politics.” According to the 1996 Task Force on Presidential Appointments assembled by the Twentieth Century Fund, the appointment process has discouraged and demoralized many who would work in a presidential administration. A recent survey of former appointees from the past three administrations released by the Presidential Appointee Initiative elicited such descriptions of the process as “embarrassing,” “confusing,” and “a necessary evil.” The PAI study concluded that “the Founders’ model of presidential service is near the breaking point. Not only is the path into presidential service getting longer and more tortuous, it leads to ever more stressful jobs. Those who survive the appointment process often enter office frustrated and fatigued.” Both the Twentieth Century Fund’s task force and the Presidential Appointee Initiative report called for finding ways to diminish the blizzard of form filings.

This article explores what such efforts might entail. It describes the different inquiries, identifying the general areas of scrutiny, specific questions and their variants, and the array of relationships between these questions. It demonstrates the degree of commonality in areas of scrutiny and across forms. And it assesses three potential approaches to reform, concluding that two strategies seem most effective.

Author

The Formless Darkness

Anyone nominated for a position requiring Senate confirmation must file four separate forms. The first, the Personal Data Statement (PDS), originates in the White House and covers some 43 questions laid out in paragraphs of text. Applicants permitted by the White House to go on to the vetting stage fill out three other forms. The first, the Standard Form (SF) 86, develops information for a national security clearance investigation, commonly called the “FBI background check.” The SF-86 has two parts: the standard questionnaire and a “supplemental questionnaire” that repackages some questions from the SF-86 into broader language often similar though not identical to questions asked on the White House PDS.

The second additional questionnaire, SF-278, comes from the U.S. Office of Government Ethics (OGE) and gathers information for financial disclosure. It doubles as an annual financial disclosure report for all federal employees above the rank of GS-15. For most nominees, the third additional form comes from the Senate committee with jurisdiction over the nomination. Having returned each of these four forms, some nominees will receive a fifth questionnaire, again from the Senate committee of jurisdiction, with more specific questions about the nominee’s agency or policies it implements.

While nominees complain about several aspects of the process, they regularly and uniformly express frustration with the repetitive and duplicative questions. Indeed, nominees leave the impression that the forms contain nothing but repetitive inquiries. Although the problem is not that severe, the degree of repetitiveness does represent an undue burden. As indicated at the outset, for example, a presidential nominee is obliged to muster information on real estate property on four forms involving three separate time periods, three separate classes of owners, and at least two separate types of transactions—providing essentially the same information four times, but sorted each time in a different way.

Table 1: How Repetitive
Are the Questions?
Topic

Nonrepetitive

Questions

Repetitive

Questions

Total

Questions

Percent

Repetitive

Personal & family background

39

22

61

36

Professional & educational background

22

39

61

64

Tax & financial information

11

21

32

66

Domestic help issue

1

0

1

Public & organizational activities

2

7

9

78

Legal & administrative proceedings

10

25

35

71

Miscellaneous

31

3

34

9

Totals

116

117

233

Avg. 50

Source: White House
Personal Data Statement, Standard Form 86, Standard Form 278, and a
representative Senate committee questionnaire.

Measuring Repetitiveness

Just how repetitive are the forms? This section tackles that question, first identifying the different levels of repetitiveness and then assessing the distribution of repetitiveness over the different categories of inquiry pursued in the questionnaires.

The questions fall into three repetitiveness categories based on how much common information they require. Identical questions (for example, “last name”) inquire into the same subject without varying the information elicited. Repetitive questions (for example, the real property questions) request information on the same subject but vary it along at least one dimension. And nonrepetitive questions (for example, the “nanny-tax” question asked only on the White House PDS) seek different information.

On the four forms mentioned (one a representative Senate committee questionnaire), nominees must respond to 233 questions. They must answer 116 nonrepetitive questions (those without an analog) and 99 repetitive questions (those with analogs). They regularly repeat the answers to 18 identical questions. Thus half of the questions nominees answer have some analogs elsewhere while slightly less than half have no analogs anywhere.

Table 1 shows how questions are distributed across the seven topics used in the White House Personal Data Statement—personal and family information, profession and education, taxes and finances, domestic help, organizational activities, legal and administrative activities, and miscellaneous. More than a third of the questions cover personal and family background. This large share derives primarily from the detailed background information required on the SF-86. Most of the remaining questions focus on professional and educational achievement—much emphasized by the PDS and the FBI background check—legal entanglements.

Table 1 also reports the degree to which a category includes repetitive questions. One potentially misleading result, however, should be noted. Although the personal and family background category has a repetitiveness rate of 36 percent, it is not as burdensome on nominees as might appear, primarily because it contains almost all the identical questions (15 of the 18 asked) found across the four forms and those questions tend to focus on basic information such as name and telephone number. This category also accounts for the largest number of separate questions (39). One prescription for reducing repetitiveness in this category, then, could simply be to reduce the contact information required of nominees.

The greatest repetitive burden occurs on three topics: professional and educational background (64 percent over 61 questions), tax and financial information (66 percent over 32 questions), and legal and administrative proceedings (71 percent over 35 questions). Association with employers and potential conflicts of interest constitute a classic example of repetitiveness. Everyone involved in vetting nominees wants to know about potential conflicts of interest embedded in the nominee’s professional relationships. Patterns of repetitiveness in reporting conflicts of interest resemble those found in reporting property: multiple reporting periods, multiple subjects, and multiple types of information. Real property, of course, is a classic example of the kinds of repetitiveness found under the rubric of tax and financial information.

The level of repetitiveness under the rubric of legal and administrative proceedings seems particularly telling because, as noted, the Office of Government Ethics asks no questions about legal entanglements. The repetitiveness results almost exclusively from the FBI’s tendency to turn a single general question from the PDS into multiple specialized variations. For example, while the White House asks about arrests, charges, convictions, and litigation all in one question, the FBI asks a series of questions covering separate classes of offenses and case dispositions: felonies, firearms, pending charges on felonies, courts martial, civil investigations, agency procedures, and so on. The FBI background check also changes the time period from that used on the PDS.

Strategies for Rescuing Nominees

The informational burden on nominees can be eased by reform in three directions—by narrowing the scope of inquiry, by cutting redundancy, and by reconsidering strategic institutional imperatives.

Ask Fewer Questions

Reducing the scope of inquiry would be most straightforward. Because fewer than half of all questions asked of nominees are repetitive, reform could properly focus on reducing the number of unique questions. Yet of the 116 questions having no counterpart elsewhere, exactly half (58) are on the FBI background check; more than half of those (37), or a third of the total, involve personal and family background. They establish a host of background characteristics presumably necessary to trace an individual’s identity, including basic descriptors like “height” and “hair color” and spouse citizenship. The only questions that might seem superfluous require information on the nominee’s previous marriages and descriptions of adults who reside with the nominee but are not part of the immediate family. It does not seem likely that trying to ask fewer questions will reduce the burden on nominees, except where authorities are willing to challenge the basic techniques used in carrying out a background investigation.

One possible reform in this area would be to transfer basic background information on a nominee before the FBI conducts its investigation. The administration would request a name search on the nominee from the government’s files, transfer the results to the appropriate forms, then hand the forms to the nominee to check, amend, and complete. At that point the background check would begin in earnest. This approach would not only reduce the burden on nominees but also reduce the time the FBI spends retracing its earlier investigatory steps.

Table 2: How Repetitive
Are the Questions after Reform?
Topic

Nonrepetitive

Questions

After

Reform

Repetitive

Questions

After

Reform

Total

Questions

After

Reform

Percent

Repetitive

After

Reform

Percent

Repetitive

Before

Reform

Personal & family background

39

19

58

33

36

Professional & educational background

22

11

33

33

64

Tax & financial information

11

6

17

35

66

Domestic help issue

1

0

1

Public & organizational activities

2

7

9

78

78

Legal & administrative proceedings

10

7

17

41

71

Miscellaneous

31

3

34

9

9

Totals

116

53

169

Avg. 31

Avg. 50

Source: White House
Personal Data Statement, Standard Form 86, Standard Form 278, and a
representative Senate committee questionnaire.

Reduce Repetitiveness

Reform could also accommodate nominees by reducing repetitiveness, as shown in table 2. Taking this approach increases the number of identical questions by smoothing the questions asked across forms, and it may involve changing congressional mandates. Among the repeated questions, three-quarters require nominees to reshape answers to previous questions. The real property questions described earlier are a perfect example. Nominees must answer six separate though similar questions. Settling on a single question—using the OGE approach, for example—instead of on six, would cut the percentage of repetitiveness in the tax and financial category by 47 percent, from 66 percent to 35 percent, while cutting the number of questions in this category almost in half.

To create one common question, the four institutions could rely on the broadest range of information required on any dimension involved in a topic. For example, on the real property example, all institutions could settle on the longer time periods of the White House, the broader definition of subjects used by the FBI, and the broader notion of ownership inherent in the FBI’s term “interest.” In the end, this reform reduces the burden on nominees by affording them a standard format in which to provide information.

Rethinking questions about professional relationships could also help. At least ten separate questions involve connections between the nominee and corporations and other institutions. Like the questions on property, they vary by time period, the type of organizations involved, the level of connection to the organization necessary to report, the level of compensation triggering a report, and so forth. Reform here could reduce the number of questions on conflict of interest from ten to, say, three. Other changes could cut the number of questions about education, plans for post-government compensation, and foreign representation. Consolidation in these three groups could reduce eight questions to three. In all, reformulation could decrease repetitiveness in this area by half—from 64 percent to 33 percent.

Under the last topic with serious repetitiveness, legal and administrative proceedings, reformulation could eliminate all but seven questions, reducing repetitiveness from 71 percent to 41 percent. Overall, reformulating these questions would reduce repetitiveness in the executive branch forms from almost half of all questions to less than one-third—a very substantial improvement of 38 percent.

The difficulty of this approach is that the questions generated by both the FBI in SF-86 and the OGE in SF-278 have substantial institutional justification. In the former, the FBI can rely on expertise about the nature of the investigative process to suggest that it must generate sufficient data to discover security risks. In the latter, the SF-278 has a substantial statutory basis for its inquiries. Changing the form requires changing the statute.

Reconsidering Institutional Imperatives

A final reform strategy would be for one of the four institutions to surrender control over information and rely instead on information already gathered by others. The White House has the best opportunity to take this approach. Because it initiates the process, it can afford to limit its own information requirements by securing the information delivered to the other agencies. Instead of offering its own form, the White House could rely on the fact that it can see how applicants fill out their SF-86 and draft their SF-278 as part of the initial negotiations that identify eventual nominees. Based on those drafts, the White House would then decide whether to carry through its intent to nominate, thereby triggering the appointment vetting process. Because almost all the PDS questions are repeated on other forms, this strategy would reduce repetitiveness to around 28 percent, slightly less than the more complicated strategy outlined earlier.

For its own deliberations, the White House would not lose any relevant information. Except for the “nanny question,” the PDS provides information secured on other forms. Because the PDS does not provide information on any “decision criteria” unique to White House concerns, eliminating it would not adversely affect White House considerations.

The Senate Forms

Except for a few questions requiring the nominee to list publications and honors, Senate committee questionnaires differ from executive branch forms in two important respects. First, they attempt to commit nominees to resolving “constitutional” conflicts in the Senate’s favor. For example, committee questionnaires regularly require nominees to commit to reporting to the Senate on policy decisions that vary from legislative policy. No amount of reform will likely reduce the interest of the Senate in committing nominees to follow committee dictates on policy differences.

Second, many Senate committees require more detailed financial information than the executive branch questionnaires, in the form of “net worth” statements. The issue here has become the necessity of requiring information about net worth when it does not clearly indicate the kinds of relationships typically understood to create conflicts of interest.

The Relative Ease of Reform

Extracting nominees from the formless darkness of the appointment questionnaires requires only a few simple changes in the requirements imposed on them for information. As noted, streamlining information across forms, taking the highest and broadest levels of variation as the focus, greatly reduces repetitiveness without severely curtailing the information made available. Without even attempting to assess either what information is necessary to select the president’s team or whether decision criteria are appropriate, the government can make big improvements and thereby begin to reverse the unwholesome atmosphere for potential appointees.

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