Fixing the Appointment Process: What the Reform Commissions Saw

After the British electorate turned his party out of office in 1945, Winston Churchill’s wife Clementine advised him to look upon the results as a “blessing in disguise.” He replied that if she was correct, the blessing was “very much disguised.”

Churchill had reason for remorse. When Britain struggled, alone, to resist the advance of Hitler’s forces in 1940, Churchill had summoned his nation to its “finest hour.” Together with Franklin Roosevelt, who later provided assistance—first through lend-lease and after Pearl Harbor with manpower—Churchill devised the strategy that saved Western civilization as he knew it. He could hardly be blamed for indulging in a brief bout of self-pity after what he regarded as a personal repudiation on the part of an ungrateful citizenry.

But Mrs. Churchill had it right. Defeat spared Churchill blame for the industrial strife that followed the war. It also assured that Clement Atlee, rather than he, would “preside over the dissolution of the British Empire,” something Churchill vowed never to do. It also gave him time to produce a literary classic: his six-volume history of World War II. Churchill was returned to power in 1951, beginning a dozen-year span of uninterrupted Conservative party rule. When he died in 1965, he was hailed as the savior of his nation. His magisterial funeral set a record for a non-royal, equaled only by that afforded the Duke of Wellington almost a century earlier.

Recount 2000: Another Disguised Blessing?

It is hard to envision how George W. Bush or Al Gore, or their supporters, can ever regard the five weeks of court battles that followed the 2000 election and the truncated transition it produced as a blessing in disguise. But like that earlier instance, it too presents an opportunity for reflection, recharging, and repair.

Two institutions the 2000 election revealed as ripe for reform were the rickety and discordant election practices common in so many American counties, with no uniform standards to resolve disputes, and the lengthy, convoluted, and unwieldy procedures by which appointees of a new administration assume positions of responsibility.

Electoral practices and devices are attracting ample attention, and the legislative hopper is filling with reform proposals. But little has been done to streamline a presidential appointment process almost universally regarded as broken. Vice President Richard Cheney, who spearheaded George W. Bush’s transition effort, stated that the greatest obstacle that post-electoral events in Florida posed to a smooth and orderly transfer of power were delays in obtaining the necessary “clearances.” Most observers of recent transitions heartily agree.

What’s So Hard about a Clearance?

Background checks may seem to lay-people a simple undertaking, one that corporations, universities, credit companies, and state and local governments routinely do with great speed. But in Washington these clearances have become a torturous and lengthy trial by ordeal. The typical appointee must complete a minimum of three forms: SF-278, a financial disclosure statement; SF-86, a form that begins an FBI background investigation; and the White House Personal Data Statement Questionnaire. Although the White House and FBI are free to modify their forms, information on the financial disclosure form is required by statute.

Nominees needing Senate confirmation must also complete forms required by the appropriate committee. Nominees who will be engaged in national security matters must complete still others. Each form comes with appropriate “waivers” granting permission for investigators to obtain medical and academic records, tax returns, and credit histories.

All the forms have lengthened over the years in response to accumulating scandals that embarrassed past nominees and administrations. In 1990, to dramatize the mushrooming of questions on the White House personal data form, the staff of the President’s Commission on the Federal Appointments Process took to naming questions after past controversies that plagued past nominees and candidates. They named a mental health question (long since expunged), for example, after a discovery that led presidential candidate George McGovern to drop his first running mate, Missouri Senator Thomas Eagleton, from his ticket. The “drug use in college” question took the name of a federal judge whom Ronald Reagan had wanted to name to the Supreme Court. Proving the President’s Commission’s point, the Clinton administration added a question about hiring foreign nationals as domestics after withdrawing the nominations of two prospective attorneys general who had failed to pay Social Security taxes for such employees. With an eye toward protecting new administrations against similar blowups, the FBI has also extended its fields of inquiry.

The rush of paper that sweeps through Washington during each transition has all but brought the process to a standstill. Scholars estimate that in Lyndon Johnson’s day, it took about six weeks for an appointee, once nominated, to assume his or her job. By Bill Clinton’s time, it was averaging more than eight months. The system now in place resembles nothing so much as the old “I Love Lucy” show in which Lucy and Ethel, working in a candy factory, are overwhelmed by the increasing speed of the conveyor belt moving chocolates in their direction.

Past Reform Efforts

All who have participated in or observed the process agree that this is a problem crying out for a solution. In the past 15 years, no fewer than six blue-ribbon commissions have suggested ways to improve the process: the National Academy of Public Administration (in 1983 and 1985), the National Commission on the Public Service (1989), the President’s Commission on the Federal Appointments Process (1990), the National Academies of Sciences and Engineering and the Institute of Medicine (1992), and the Twentieth Century Fund (1996). Most of their recommendations have gone unheeded, largely through the force of inertia. Although parties to the appointment process have been sensitive to growing backlogs, duplication of effort, and wasted energies, few saw it in their immediate interest or capacity to make the needed reforms.

That may change. What post-election controversies may have done to improve election equipment and methods, the Clinton-Bush transition may do for the presidential appointment process. Americans have always been adept at applying Jonathan Swift’s adage about “necessity” being the “mother of invention.”

Indeed, unless improvements are made soon, more will be lost than the speed with which a new administration begins discharging its full obligations to the American people. Delays in placing people in their posts impede the president’s ability to direct the workings of the government. “Holdovers” from the past administration may be unsympathetic to his goals, and civil servants may be unable to anticipate his policy preferences and unwilling to take bold action in the absence of political leadership.

An excessively slow appointment process also prevents the public from holding public officials to account through duly elected representatives. That is best achieved by having top-level, presidentially selected officials in place early to testify before Congress and present the administration’s case through the media.

Extensive background checks and confusing and contradictory forms that are more obstacle than invitation to service may discourage the most able people from joining an administration. Even under the best of circumstances, potential candidates for high-level policy positions may find their salaries cut, their careers interrupted, and their privacy lost. To that list might be added “exit restrictions” that can limit their future earnings, as well as the potential harm of politically inspired “leaks” and rumors during the nomination and confirmation processes.

Just How Good Are Those Blue-Ribbon Recommendations?

The new administration and Congress will not need to name another commission or hold lengthy hearings to decide how to proceed. The problem has been studied extensively. Although the recommendations vary as to their practicability, findings of the half-dozen bodies that have studied the appointment process over the past two decades cluster around seven major ideas.

First, start transition planning early. Traditionally, presidential candidates have eschewed talking about plans for a possible transition, lest they appear presumptuous. Ronald Reagan was an exception, and scholars attribute much of his success to his early planning. In 2000, candidates George W. Bush and Al Gore, following in the Reagan mold, placed trusted advisers in charge of planning their transition. The impact of those efforts was clouded, of course, by the unprecedented delay in determining the winner of the election.

Second, assist new nominees. All the studies speak to the “isolation” nominees endure while awaiting appointment or confirmation. They recommend that a new White House Office of Presidential Personnel or inter-agency committee guide candidates through the process and advise them periodically where they stand. Another common suggestion is that either the Office of Management and Budget or the executive clerk to the president maintain job descriptions for every position the president is free to fill. These suggestions are sound and can easily be implemented.

Third, decide which positions merit a “full-field” FBI investigation. The Twentieth Century Fund panel found the full-field investigation, standard practice since 1953, “too blunt and intrusive an instrument for the purposes for which it is currently used.” Its study and several others questioned whether certain appointed positions required an FBI investigation. Mindful of its professional role, the agency prefers to “treat all comers the same.” But it is not the FBI’s responsibility to decide which nominees to investigate or exempt. Present coverage can be streamlined either statutorily or by executive order.

Reports issued by the President’s Commission on the Federal Appointments Process and the scientific communities recommended limiting investigations of nominees to the time since they last departed government service. The President’s Commission suggested leaving the matter to the discretion of the agency where the appointee would serve.

Recent “leaks” of raw data from FBI files and misuse of files by either White House or congressional personnel underscore the need to enforce existing statutes and to enact others to protect the privacy of citizens. Information available to those who review a nominee’s suitability should also be made available to the nominee before his or her fate is decided.

Fourth, clarify conflict-of-interest restrictions. This may be another area crying out for statutory change. Commonsense practices, subject to peer review, should replace “straitjacketing” restrictions that now determine conflicts of interest and set exit requirements. Requirements that nominees divest themselves of holdings in industries over which they have jurisdiction should be modified to allow them to spread capital gains taxes over several years or otherwise avoid forced “losses.” Rules regarding blind trusts could be clarified.

Fifth, allow cabinet officers to do the hiring in their departments. Although several commissions urged this measure both to enhance the efficiency of government and to relieve the president and his staff of the need to pass upon people with whom their interaction will be slight, the recommendation flies in the face of recent history. Presidents who delegated this task exclusively to the cabinet (Nixon and Carter) found that appointees were more likely to pursue interests other than and often contrary to the president’s. Those who exerted a firm hand over hiring decisions (Reagan and Clinton) put together administrations that worked better as a team.

Sixth, make fewer political appointments. This has become all but gospel in most of the foundation-supported, “good government” commissions on the appointment process. Noting the burden on the president of filling numerous positions, they see having fewer political appointees as a way to increase efficiency, especially during transitions.

Overlooking the practical obstacles to these proposals—why would any president want to give up this hefty instrument for asserting control over the executive branch?—such recommendations do not consider the costs such “reforms” would entail. Surely fewer than 6,000 people in a government workforce of 1.7 million is hardly a sign of the “politicization” of the government. That relative handful of appointees is one primary means presidents have of assuring that their directives are carried out. The more committed they are to the president’s goals, the more energy they are likely to invest in furthering them.

It is through political appointees, who set policy, rather than through career civil servants, who execute it, that Congress, the media, and the public hold administrations accountable. Success in this arena may require skills more readily acquired in the political arena or outside government entirely. Appointees who are not effective can be easily dismissed.

Seventh, establish limits on senatorial “holds” and make fewer positions subject to Senate approval. Senators value their prerogatives highly. Often they use holds to extract concessions from the administration or influence the direction an agency is to take. This is a scepter they are unlikely to give up. And, given its committee structure, the Senate can hardly be expected to agree on which posts to exempt from the reach of its advise and consent authority.

A more promising route would be for the new president to request the Senate’s leaders to supply the White House with its forms so that all required paperwork can go to nominees at the same time. This simple measure can save nominees days, if not months, of paperwork and fees spent on lawyers and accountants. The president may be able to persuade the Senate to adopt a common form, with each committee free to request additional information as an attachment. Perhaps the Senate can even be persuaded to follow the White House form.

An Undisguised Blessing

Anything the new president and Congress do to assist new nominees, clarify conflict-of-interest rulings, reduce the tax liabilities and exit requirements placed on new nominees, establish order, logic, and priorities to FBI and other “clearance” processes, and bring the Senate’s demands and requirements into closer conformity with the White House’s will go a long way to streamline what has become an excessively burdensome and antiquated process. All can be achieved without intruding upon the prerogatives of either the president or the Senate to discharge their constitutional obligations.

Practical measures such as these will improve both the functioning of American democracy and the quality of public service not only for the Bush administration, but for all administrations to come. That would constitute an important part of President Bush’s legacy—and that of the 107th Congress. If such remedies are successfully undertaken, historians of the future may proclaim them the “blessing in disguise” that flowed from the aftermath of the 2000 election.