Orienting the President’s Appointees

October 13, 1999

It is a pleasure to appear before this subcommittee to endorse yet another good idea from Dwight Ink for improving the governance of this nation. It is admittedly a small idea, one that will be barely noticed in the chaos of ideas and appointments that will occupy Congress and the next president in the first months of 2001.

But it also happens to be a good idea, one that past presidential appointees have endorsed as a critical need, and one that will help the next administration move more quickly to govern the federal establishment. Those who have been involved in management reform for a while quickly realize that it is often small ideas that make the greatest difference in the long term. I believe this is just such an idea and wholeheartedly encourage the subcommittee to move quickly toward passage.

I would be remiss, however, if I did not encourage this subcommittee to go much further in addressing the fundamental problems in the presidential appointments process. I think it is fair to argue that the presidential appointments process is now on the verge of complete collapse. Absent immediate action to fix the process by which this nation appoints its citizen leaders, there will be little need for orientation. We are already governing with what I believe to be the largest number of acting appointees in American history, none of whom would qualify for orientation under even the broadest application of the definitions embedded in Dwight Ink’s proposal, and I see no reason to believe that the next administration, whether led by a Democrat or Republican, will be more successful moving nominations forward. Every administration since 1960 has been later than its predecessor in appointing its leaders; there is no reason to expect a change in 2001.

Problem Statement

Let me start my assessment of the presidential appointments process with a simple point: American government was designed to be led by citizens who would step out of private life for a term of office, then return to their communities enriched by service and ready to recruit the next generation of citizen servants. The Founding Fathers believed in a democracy led by individuals who would not become so enamored of power and addicted to perquisites that they would use government as an instrument of self-aggrandizement. They fully understood that the qualities of a president’s appointments were as important to the public’s confidence as the laws that its elected leaders would enact. “There is nothing I am so anxious about as good nominations,” Thomas Jefferson wrote at the dawn of his presidency in 1801, “conscious that the merit as well as reputation of an administration depends as much on that as on its measures.”

The Founders themselves modeled their vision of citizen service by accepting the first presidential appointments, leaving behind their farms, businesses, and law practices to accept their country’s call. For many, presidential service was the least of their accomplishments. They accepted the call as an obligation of citizenship. Indeed, Jefferson did not even list his ascension to the Presidency on his epitaph. He believed his greatest service to the nation was in creating the University of Virginia.

Two hundred years later, the Founders’ model of citizen service is under duress as more and more of the nation’s most talented leaders reject the call to lead. Presidential recruiters report a rising tide of turndowns as they begin the recruiting process. The problems are particularly visible at the start of each presidential administration where the process for entering office has become an obstacle course of isolation, endless review, personal expense, and unrelenting media scrutiny. Those who survive the process enter office frustrated and fatigued, in part because they so often endure the process with little or no help, and in part because the process has become an almost insurmountable obstacle course.

All totaled, the next president will make more than 6,000 appointments in his or her first term, including roughly 600 Senate-confirmed cabinet and subcabinet members, another 600 noncareer members of the Senior Executive Service, and 1,500 personal and confidential assistants exempted from the merit system under Schedule C of the civil service code. He or she will also appoint several hundred federal judges, and several thousand members of advisory boards, commissions, and special councils. Building a presidential administration today is equivalent to creating an executive search firm on day one and recruiting the leadership for an organization staffed by 1.8 million employees within the next 74 days, which is incidentally exactly the number of days between the next presidential election on November 7, 2000 and the inaugural on January 20, 2001.

Even if the next administration gets moving quickly, the costs of service have risen to the point that presidential headhunters report an alarming increase in the number of refusals as they start the process of selecting actual candidates. Appointees report increasing frustration filling out the forms, scheduling the key meetings, and surviving the Senate confirmation process.

The forms themselves are a briar patch of complexity as the Office of Presidential Personnel (White House), Office of Government Ethics (Justice Department), Federal Bureau of Investigation, the separate departments and agencies, and Senate committees collect often needless information. All but the most minor appointees must fill out Form SF 86, “Security Investigation Data for Sensitive Position” listing every residence they have occupied since January 1, 1937, and every last one must fill out Form SF-278, “Executive Personnel Financial Disclosure Report,” a form so complicated that it carries a 17-page instruction sheet complete with two pages simply defining terms. One needs only read the first paragraph of the general instructions to sense the complexity:

This form consists of the front page and four Schedules. You must complete each Part of all Schedules as required. If you have no information to report in any Part of a Schedule, you should indicate “None.” If you are not required to complete Schedule B or Part II of Schedule D, you should leave it blank. Schedule A combines a report of income items with the disclosure of certain property interests. Schedule B deals with transactions in real property or certain other assets, as well as gifts and reimbursements. Schedules C and D relate to liabilities and employment relationships. After completing the first page and each Part of the Schedules (including extra sheets of any Schedule where continuation pages are required for any Part), consecutively number all pages.

Most appointees must also fill out the White House Personal Data Statement Questionnaire, the Internal Revenue Service Tax Check Waiver, the White House Permission for FBI Investigation, and the White House Consent Form for Nomination. And all Senate-confirmed appointees must fill out entirely separate forms for their respective committees, almost none of which fit the categories defined by the White House or SF-278, and almost all of which change from year to year as new committee members come and go. Although the forms are burdensome for everyone, they are particularly painful for appointees to advisory committees, volunteer boards, and blue-ribbon commissions where service is part-time and remuneration nonexistent.

Together, the sheer number of jobs to fill and rising tide of paperwork have contributed to five basic problems with the presidential appointments process today.

1. Vacancy rates are rising.

At the start of President Clinton’s second term in the spring of 1997, nearly 250 or a third
of the government’s 725 top jobs were vacant. Although the number came down as the year
wore on, vacancy rates now average roughly 25 percent per year. During 1998, for example, the Federal Election Commission was unable to hold a quorum to do its job monitoring election finance, while the Food and Drug Administration operated without a commissioner for 18 straight months until last year.

2. Delays are increasing.

The length of time required to fill the top jobs has been rising steadily over the past thirty years. The average appointee in the Kennedy administration was confirmed 2.4 months after the inauguration; the average appointee in the Clinton administration was confirmed in 8.5 months. If current trends hold, it will take the next president between 11 and 12 months to get his or her cabinet into office. The delays are not reserved just for executive branch posts. From 1996 to the present, it has taken President Clinton an average of 618 days to nominate a candidate for a judicial vacancy. As President Clinton complained a year into his first term, “I think, frankly, the process takes too long now. I have talked to several Republicans and Democrats who have no particular axe to grind now who think maybe it’s time to have a bipartisan look at this whole appointments process. It takes took long to get somebody confirmed. It’s too bureaucratic. You have two and three levels of investigation. I think it’s excessive.”

3. Talented Americans appear to be opting out.

Presidential recruiters interviewed as part of the proposal development effort report two parallel trends in the appointments process. The first is an increase in turndowns by people who have been approached for an initial review. The second is an increase in the number of reversals by candidates who accept a nomination, but eventually withdraw due to delays or costs. The result is that merely identifying someone willing to endure the process takes more time, increasing the delays between the opening of an administration and the actual nomination of candidates for positions. Hence, the growing vacancy rate discussed above. Although good people are still coming into government, the anecdotal evidence suggests that presidents are “drafting” from fifth, sixth, and seventh rounds instead of the first, second, and third. As David Gergen wrote in 1991, “If the nation is to restore a measure of civility and common purpose in meeting its domestic crises, it must find ways to end the relentless, ugly assaults upon the character of its public figures.” It is little wonder that talented people would opt out of a system that exposes every detail of their lives to the fullest public scrutiny, or that they might be frightened off by the White House’s own questionnaire that asks whether they “have ever had any association with any person, group, or business venture that could be used, even unfairly, to impugn or attack your character and qualifications for a government position?”

4. Turnover is rising.

Burned out by the process of entering office, appointees appear to be leaving office faster. A 1994 report by the General Accounting Office showed that the average length of service between 1981 and 1991 for appointees without fixed terms was only 2.1 years. Other data confirm the pattern. The Federal Aviation Administration has had seven appointed and 4 acting administrators over the past 15 years; the Federal Housing Administration has had 13 commissioners over the past 14 years; and the General Services Administration has had 18 administrators over the past 24 years.

5. Most importantly perhaps, the process is becoming increasingly abusive to those who decide to serve.

Nominees report that the euphoria of being called to service is quickly replaced by the twin emotions of uncertainty and isolation. Once the forms are turned in, the FBI field investigation and confirmation process can last a half year or more under the best of circumstances, and often generates intensive, frequently partisan and hostile investigation of nominees. No other institution in American society is so cavalier or cruel in its treatment of the very people it seeks as its leaders. Fears of making a bad appointment have created such anxiety that high level appointments are delayed for months as names are vetted. The White House that vetted Janet Reno’s nomination as Attorney General is reported to have made 200 phone calls digging relentlessly into any hint of scandal. The Founders most certainly expected the time spent in citizen service to be inconvenient, even burdensome. That was part of the obligation to serve. “In a virtuous government,” Jefferson wrote, “public offices are what they should be: burdens to those appointed to them, which it would be wrong to decline, though forseen to bring with them intense labor and private loss.”

So noted, they did not expect the process of entering office to exact such delay and frustration. They clearly wanted presidents to make speedy nominations and the Senate to discharge its advice-and-consent function, aye or nay, with equal dispatch. Two hundred years later, it is safe to argue that the presidential appointments process is increasingly incapable of fulfilling its most basic responsibility: recruiting talented citizens for government service. More and more citizens are saying no, and those that do say yes are being forced through a process that is more torturous than the Founders ever could have imagined.

A Simple Idea

There are many ways to fix the presidential appointments process, not all of which need be funded by the federal government. I should note that The Pew Charitable Trusts only recently provided a $3.6 million grant to the Brookings Institution to create the Presidential Service Initiative as a bipartisan source of help for future appointees.

The Initiative, which will be guided by an impeccably bipartisan advisory board and staff, is designed primarily to encourage talented Americans to accept the call to service by easing the burdens of entering office in two ways. The first is to help appointees navigate the current process by providing information on everything from filling out the forms to getting started in office. Suffice it to note that being a presidential nominee today, no matter how important the job, is akin to becoming the Maytag repairman—no one is there to help the nominee through the process, except, that is, for high-priced lawyers and accountants. The second is to make the process itself more hospitable for future appointees by focusing on a set of pragmatic, noncontroversial reforms that would make the forms easier to complete, the process smoother, and entry into office faster.

Although much of the research that will guide the Presidential Service Initiative reform agenda is yet to be done, I feel comfortable recommending one simple idea to this subcommittee, if only because it is an idea that I have advocated for the better part of the 15 years, first in my role Director of Governmental Studies at the National Academy of Public Administration, where we first inventoried the now-familiar list of problems described above, then as a senior advisor to the Senate Governmental Studies Committee, where I helped draft the legislative report underpinning the Presidential Transitions Effectiveness Act of 1988.

Simply and emphatically stated, I strongly recommend that Congress provide modest funding for pre-election transition planning by the two major national parties—modest meaning no more than $250,000 to each party. That planning would give the next administration a running start at making nominations, which in turn would accelerate the confirmation process, which in turn would make the proposed orientation program both timely and relevant. To switch commercials in mid-testimony, we can pay the parties and candidates now for transition planning, or pay the costs of delayed appointments, missed opportunities, and bad decisions later.

This subcommittee knows, of course, that the federal government already invests heavily in transitions. The General Services Administration already pays for most transition costs after the election is over, from moving vans for the incoming and outgoing president to staff and office space for the transition team. This subcommittee also knows that the federal government, or more precisely the federal taxpayer, also provides matching funds for the primary and general election campaigns, as well as $4 million to each party for the costs of hosting the national party conventions. If taxpayers are willing to see millions spent on balloons and confetti, one suspects they would gladly endorse a few hundred thousand dollars to do a little advance planning for the real event, the transition to governing.

The problem is that Congress and past presidents have seen pre-election transition planning by both candidates as wasted money. After all, one of the two is going to lose, meaning that at least one set of files will not be used. The candidates and their consultants are not much better. To be generous, some rightly worry that the public will read pre-election transition planning as a sign of over-confidence, while distracting the campaign team from the task at hand, winning the election. But there is also ample evidence that the political strategists would rather risk a failed transition than lose the inside track to a West Wing office.

One need only look back to 1992 to how that attitude plays out. Clinton’s transition was an acknowledged disaster. Those celebrated combatants in the Clinton campaign war room spent exactly zero minutes thinking about what they would do after the election, short of keeping journals for future kiss-and-tell biographies. That attitude toward governing showed in the wild ride of missed appointments and bad decisions that marked the first year and beyond. By the time the Clinton team was up to speed, they had squandered what little political capital they had reaped from the president’s razor thin victory.

The current crop of presidential hopefuls would be well advised to think further back in time to 1980 when Ronald Reagan broke all the political rules by establishing a transition operation in early spring. Not only was the operation completely separate from the campaign, thereby insulating it from the consultants, it was led by Reagan’s most trusted advisor, Edwin Meese, and staffed by one of the country’s top personnel experts, E. Pendleton James. The result was one of the fastest starts in modern presidential history, and dramatic budget and tax victories in a then-Democratic Congress.

Even with this head start, Reagan’s cabinet entered office later than Carter’s, which entered later than Nixon’s, which entered later than Kennedy’s. It was a harbinger of the complete breakdown of the presidential appointments process that plagues government today. Hence, Bush’s cabinet entered later than Reagan’s, and Clinton’s entered later than Bush’s. Those who survive the battering enter office frustrated and fatigued, in part because they so often endure the battering with little or no help from an under-staffed, over-taxed White House personnel office, and in part because the process itself has become a toxic mixture of uncertainty, insult, and delay.

Ultimately, it is up to the candidates to commit themselves to pre-election planning. The Democratic and Republican nominees could sweep away much of the old resistance by launching transition planning operations on the same day. But Congress can also improve the odds of that handshake by giving the national party committees a small allotment for pre-election planning. In doing so, Congress would send a strong signal that planning matters. As for wasted money, I strongly believe that the files from the losing campaign would find their way into the party archives for rescue four years later. Hope always springs eternal in the committees, after all.

Before concluding my testimony, let me note that there is good legislative precedent for providing pre-election planning funds. The Senate passed just such a proposal as part of the 1988 Presidential Transitions Effectiveness Act, which raised the transition allotments for both the incoming and outgoing administrations. Unfortunately, concerns in this body about spending money on what was sure to be at least one losing effort eventually led the Senate to withdraw the provision in conference.
It is important to note that the pre-election funding proposal had unanimous support in the other chamber and was based on bipartisan support from a veritable who’s who of witnesses, including both chairman of the national party committees, former presidential transition directors, the Comptroller General, and representatives from the National Academy of Public Administration. The only objection to the proposal came from then-OMB Director James Miller who cautioned the committee to make clear that the funding would only go to major party candidates who have a legitimate chance to actually undertake a transition. With the needed refinements in hand, the committee approved the proposal on a 9-0 vote, with full Senate approval by voice vote in the spring of 1988.

It is also important to note that the committee considered several funding instruments for encouraging pre-election planning, including allowing the candidates to dedicate portions of their public financing toward pre-election planning. The committee concluded that a direct appropriation to the national party committees offered the greatest control over the actual expenditure of public funds for legitimate pre-election planning activities, and offered its strong endorsement of the General Service Administration as the logical place to administer these funds. As this subcommittee knows, GSA is responsible for administering presidential transitions funding after the election is over, and has ample experience judging appropriate expenditures.

I have no idea whether this idea could find the support needed for passage today. I must admit my own surprise at the ease with which the presidential pay increase passed, and congratulate this subcommittee for its courage in tackling what has long been considered a third-rail of legislative politics. But if we are to support an orientation program, as I believe we should, then I strongly suggest that this subcommittee has ample reason to increase the odds that the orientation program will come at the beginning, not toward the end, of the next administration. Providing a tiny subsidy to support pre-election transition planning is one way to do so.