Our Tottering Confirmation Process

March 1, 2002

The presidential appointments process was designed to maintain a delicate balance between recruiting talented citizens to service and preventing corruption. “There is nothing I am so anxious about as good nominations,” Thomas Jefferson wrote at the start 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.” On the other hand, the Founders understood that some citizens might be drawn to governmental service for personal gain. Benjamin Franklin was so worried about protecting what he called the “posts of honor” from self-interest that he urged the Constitutional Convention to prohibit the executive officers of government from receiving any “salary, stipend, Fee or reward whatsoever for their service.”

The Founders dismissed Franklin’s proposal without a word of debate, but they did check the president’s appointment power by giving the Senate the power to advise and consent, albeit by a simple majority, not the two-thirds vote required for approval of treaties. As a counter-check, the Founders provided the president with the authority to make recess appointments, suggesting that they were as concerned about filling vacancies as preventing flawed nominations. This delicate balance between promoting merit and preventing corruption has held throughout American history, but the appointments process itself has come under increasing strain as the layers of government have grown thicker and the procedure for confirmation more complex. Today’s invasive and time-consuming confirmation process has produced long delays in staffing, continual administrative vacancies, efforts to circumvent Congressional confirmation, and a reluctance on the part of many talented citizens to serve in the national government. As the administrative bureaucracy has expanded, the effort to ensure merit (or, considered less charitably, to avoid scandal) by scrutinizing each and every nominee has dealt serious harm to the effective functioning of government.

Layers of government

George Washington set the precedent for high-quality presidential appointments early in his administration with the selection of Thomas Jefferson as secretary of state and Alexander Hamilton as secretary of the treasury. Most presidents have followed his lead by seeking distinguished public figures for the top executive jobs. Washington also began the thickening of government that more than 200 years later has produced a political hierarchy of staggering proportions. He named the first department secretaries and postmaster general, and appointed the first assistant postmaster general in 1789 and the second just two years later. Washington and his successor, John Adams, were both astute arbiters of patronage for their Federalist Party, prompting Jefferson to ask in 1801, “If a due participation of office is a matter of right, how are vacancies to be obtained? Those by death are few; by resignation, none.”

Jefferson resisted the temptation to exploit the system for his own purposes by adding new layers of appointees, however. Indeed, it was almost 50 years later, during the presidency of Zachary Taylor, before the next assistant-secretary position was created in an executive department. From then on, the expansion of the political hierarchy accelerated. In the 1850s and 1860s, the first assistant-secretary positions were created at the Departments of State, Justice, War and Navy, and Interior, and the number of new positions continued to grow throughout the late nineteenth century. In 1909, the first under secretary was appointed at the State Department, establishing a new layer that soon appeared in the Treasury and Agriculture Departments.

In 1935, Franklin Delano Roosevelt selected 51 Senate—confirmed appointees, and there is no evidence that he made any “exempt” appointments-those not requiring Senate confirmation. The federal government’s leadership corps consisted of 10 secretaries, 3 under secretaries, and 38 assistant secretaries. But the number of positions grew sharply after World War II. Inspired by his military experience, Dwight Eisenhower added an entirely new class of presidential appointee: the Schedule C “personal and confidential assistant,” a category of non-Senate confirmed lower-level appointee that now contains roughly 1,500 slots.

A quarter century later, Congress passed the Civil Service Reform Act of 1978, which created a new high-level Senior Executive Service that now consists of about 7,000 positions, up to 10 percent of which can be appointed by the president. George W. Bush inherited an even grander presidential hierarchy on January 20, 2001. Not only had the Senate-confirmed bureaucracy grown to roughly 500 cabinet and subcabinet posts, including 14 secretaries, 23 deputy secretaries, 41 under secretaries, and 212 assistant secretaries, Bush also had the opportunity to appoint 2,000 or so non-Senate-confirmed political aides.

Presidents seem to have embraced the notion that more leaders equals more leadership. Every president since Eisenhower has added titles and layers to the political hierarchy. So has every Congress, which retains the constitutional authority to create Senate-confirmed positions through statute. Until 1909, assistant secretary was the second most important job in executive departments. Today, it is usually 15 to 20 layers down, buried below Senate-confirmed deputy secretaries and under secretaries, and non-Senate-confirmed “alter ego” deputies of one kind or another. The Clinton administration added as many new political positions in its eight years in office as the Kennedy, Johnson, Nixon, Ford, Carter, Reagan, and Bush administrations had added in the previous 32 years. Among the Clinton administration’s innovations are the soon-to-be-classic deputy to the deputy secretary, principal assistant deputy under secretary, and associate principal deputy assistant secretary.

To be fair, not all the new posts are occupied by presidential appointees. As the layers of presidential appointees have grown, so have the layers of career civil servants. Hierarchies in career-oriented agencies such as the Commerce Department’s Census Bureau and the Justice Department’s Bureau of Prisons rose like stalagmites, driven by political appointments in other units, promotional pressures, and internal “counter-bureaucracies” that oversee their work, even as layers in heavily politicized units dripped down like stalactites. By 2000, the top of the federal hierarchy contained 49 discrete layers of career and political executives, compared to just 17 in 1960.

It is true, as scholars at the Heritage Foundation have noted, that the number of political appointees today is a small fraction of the total federal workforce. But it is not the number of appointees that matters most; it is the layers. Each layer adds distance between the top and bottom of government, increasing the cost of relaying guidance downward, while diffusing accountability for what goes right or wrong at all levels of the hierarchy. According to my estimates, political appointees accounted for 42 percent of the formal and informal layers that existed in 1993 between the president and front-line jobs such as air-traffic controller, customs inspector, immigration inspector, revenue agent, and food inspector. At the Immigration and Naturalization Service, for example, political appointees accounted for 9 of the 18 layers between the president and customs inspectors. To its credit, the Bush administration has promised to reduce the number of career layers at the middle and top of government. But it has largely exempted political appointees and early on added its own new layers to the hierarchy.

The increasing number of political jobs has also contributed to ever-increasing delays in the confirmation process. Every administration since 1960 has been just a little later than its predecessor in putting its cabinet and subcabinet in place. Whereas the Kennedy administration took an average of two-and-a-half months to get its appointees sworn in, the Nixon administration took three-and-a-half, Carter four-and-a-half, Reagan five-and-a-half, the first Bush administration just over eight, and Clinton eight-and-a-half. Almost half of the seniorlevel appointees who served from 1964 to 1984 were confirmed within two months after entering the process, compared to just 15 percent of the appointees who served from 1984 to 1999.

Although much of the increase between the Reagan and first Bush administrations can be attributed to the full implementation of the Ethics in Government Act of 1978, which added a detailed financial disclosure process to an already burdensome review process, all stages of the process have lengthened. As of October 1, 2001, the second Bush administration had been in office eight months and had just passed the halfway point in the confirmation of its top 500 appointees. It was still well behind the Reagan administration in the actual percentage of jobs nominated and confirmed by September 11, when the terrorist attacks on New York and Washington introduced an entirely unpredictable delay into the process.

Layers of paperwork

The delays in the confirmation process reflect more than the sheer number of jobs in the appointee labor market. They also reflect the rise of a complex and unnecessary inspection that has added frustration, embarrassment, and needless exhaustion to the process. To the extent that the presidential appointments process exists to fill the top jobs of government quickly, it is failing. Ironically, many of the delays have been imposed by presidents themselves. On the notion that a bad appointment hurts an administration more than a good appointment helps, the White House selection process involves a heavy dose of preventive screening, much of which dates back to the McCarthy era and the Red Scares of the early 1950s.

The Eisenhower administration instituted the first background checks on presidential appointees, which included questions about ancestry, travel, and suspicious activity that might be noticed by neighbors and acquaintances. The Standard Form 86 used by the Federal Bureau of Investigation for all Senateconfirmed appointees remains mostly unchanged since this time. Nominees are still required to list the places they have lived for the past 15 years, and to provide the name, address, and telephone number of a person who knew them then. They are still required to list the schools they attended beyond junior high, and provide a name, address, and telephone number of a former classmate who knew them then. They are still required to list all employment activities over the past 15 years, including their supervisors’ names and addresses. And they are still required to give the names and addresses of ex-spouses and the date and country of birth and citizenship of their mother, father, siblings (full, step, or half), and in-laws. Finally, they are still required to list all foreign countries they have visited over the past 15 years, including short trips to Canada or Mexico, as well as any arrests, traffic fines of more than $150, illegal drug use, and alcohol abuse dating back to their eighteenth birthday.

The SF-86, as it is commonly abbreviated, is only one of four major forms that each Senate-confirmed nominee must complete. Nominees must also complete the Standard Form 278, the “Public Financial Disclosure Report,” which was mandated under the 1978 Ethics Act and its subsequent amendments. The SF-278 comes with 11 pages of instructions, a main form, and four schedules. Schedule A covers assets and income in 12 financial categories from “none” to “over $50,000,000”; Schedule B covers financial transactions in 11 categories of value, and gifts, reimbursements, and travel expenses in exact value; Schedule C covers liabilities in 11 categories of value; and Schedule D covers positions held outside of government during the applicable reporting period, and compensation in excess of $5,000 paid by one source.

The good news is that the SF-278 is now available on-line through the Office of Government Ethics website, and Congress is likely to enact a sharp reduction in the number of reporting categories. The bad news is that the form will still be complex, time-consuming, and overly detailed. Although the Office of Government Ethics estimates that filling out the form takes an average of no more than three hours, presidential appointees tell a different story. Roughly half of the Reagan, first Bush, and Clinton administration senior-level appointees interviewed by the Brookings Institution’s Presidential Appointee Initiative in 1999 said they sought help filling out the various forms, and one-third of the 435 respondents said that the financial-disclosure and conflict-of-interest review was somewhat or very difficult. Assembling the information needed for the SF-278 can take days or even weeks.

The third major form is the “White House Personal Data Statement,” which now consists of 23 questions, down from 43 under Clinton. Much as one admires its effort to ease the burdens on nominees, the Bush White House left the two most onerous questions largely intact:

  • “Do you know anyone or any organization that might take any steps, overtly or covertly, fairly or unfairly, to criticize your appointment? If so, please explain.”

“Is there any other information, including information about other members of your family, that could be considered a possible source of embarrassment to you, your family, or the President?”

These questions are nearly impossible to answer. How is one to know the details of potential covert attacks against an appointment? And what qualifies as a potential embarrassment? Could it be a traffic fine under $150? A letter to the editor back in college? An outburst about soccer fees at a PTA meeting? Rental of an R-rated movie? It is no surprise that 40 percent of the Reagan, Bush senior, and Clinton appointees called the process confusing, nor that nearly a quarter described it as embarrassing.

The final set of forms come from the Senate, where each committee has its own version, often repeating the same questions asked earlier in the process. According to political scientist Terry Sullivan, 50 percent of the questions asked across the four forms are repetitive, including two-thirds of the inquiries about tax and finances and more than three-quarters about public and organizational activities.

The president and his White House counsel could remedy many of these problems with the stroke of a pen. Although the SF-278 is enshrined in legislation, the SF-86 and Personal Data Statement are the product of executive memoranda. It is the White House Counsel’s office, for example, that requires appointees to provide information about employment, residences, and travel going back 15 years when other federal employees only have to look back seven years. And it is the White House Office of Presidential Personnel that determines the range of questions asked in the Personal Data Statement. As the Bush White House demonstrated when it cut the Personal Data Statement nearly in half last spring, relief is only a signature away. Unfortunately, that relief has yet to extend to the most burdensome questions.

There is little the White House can do, however, about delays at the FBI. Having been embarrassed by the revelations surrounding Labor secretary-designate Linda Chavez early in the Bush administration, the FBI has tightened its field reviews to the highest level in recent memory, adding additional hurdles to the process.

It is also important to note that the Bush White House inherited a process that still bears the scars from two events that were unique to the Clinton years. First, the initial Clinton appointees entered office following an extraordinarily difficult and chaotic transition, making it the slowest administration to complete its cabinet and subcabinet in history. Second, the last wave of Clinton appointees entered office during a period of high scandal, which led to increased delays at the FBI and in the Republican-controlled Senate. Together, these two factors created a roller coaster of inefficiency in the presidential appointments process that continued to cause problems even as the Bush administration entered office.

Red tape and black lists

The forms are hardly the only source of delay. Past appointees complain about almost every step of their ordeal, from the Senate confirmation process to the financial disclosure requirements to the FBI investigations. The greatest complaints do not come from the top of the political hierarchy, however, where glamorous appointees move swiftly through. Rather, the problems are at Executive Levels III, IV, and V, since the field investigation of an assistant secretary for intergovernmental relations is hardly considered a career-enhancing assignment at the FBI. Although higher-level appointees do complain about the burdens of financial disclosure-no doubt because, being further along in their careers, they have more to disclose-it is the lower-level appointee who faces the slowdown on Capitol Hill and the delay in White House review.

The Senate has further complicated the presidential appointments process by making it a venue for conflicts over entirely unrelated issues. The number of secret holds that Senators place on nominations has exploded over the past decade and is unrestrained by party lines. Indeed, the first holds against Bush nominees in 2001 came from Senator Jesse Helms, who placed holds on four Treasury Department nominees as a way of expressing concern about the impact of textile imports on the North Carolina textile industry.

Conventional wisdom holds that the Senate became a more nettlesome institution following the bitter debate over the nomination of Judge Robert Bork to the Supreme Court. However, the more likely culprit was Ronald Reagan’s extraordinary success in using the appointments process to slow down the government’s regulatory engine. Vowing to avoid the mistakes made by Nixon in giving cabinet officers control over the subcabinet, the Reagan administration centralized the selection process in the White House. Reagan’s personnel recruiters thus were able to hand pick ideologically sympathetic nominees for key regulatory posts at agencies such as the Environmental Protection Agency, the Food and Drug Administration, and the Equal Employment Opportunity Commission. Those nominees did succeed in slowing the regulatory process, sparking increased Senate attention to lower-level positions. Thirty years ago, nominees for lower-level positions sailed through the Senate with barely a nod; today, they can spark the most intense ideological opposition.

These problems are intensified by the simple fact that the nomination and confirmation process has a finite capacity for processing candidates. The system is best viewed as a concrete pipe that can only accommodate so many names at a time. Unfortunately, as the number of turns in the pipe have increased over time, so have the odds that individual appointees will get lost or stalled along the way.

As of January, 2002, roughly a third of the Bush administration’s 500 Senate-confirmed appointments had yet to be announced, nominated, or confirmed. About half of the vacancies involved positions for which a nominee had not yet been named, while the rest involved nominations that were either stuck in the executive-branch review process or in the U.S. Senate. In early July, press spokesman Ari Fleisher excoriated the new Senate Democratic majority for creating a “confirmation gap” in which dozens of Bush nominees languished for a lack of hearing time and floor action. The Democratic majority responded with a flood of confirmations that soon exposed a “nominations gap,” in which dozens of key posts remained without a nominee until late summer.

What both branches too often deny is that the process, in its current form, is incapable of handling the transition of administrations with any semblance of efficiency. If the system can only work through 10 to 15 nominees per week with a highly dedicated White House staff and an equally committed Senate majority leader, it is not fast enough. The math is inexorable. Five-hundred Senate-confirmed nominees at 10 to 15 a week adds up to a process that requires roughly 40 legislative weeks. With recesses and vacations, the transition cannot be completed until a year into a new term.

The de facto subcabinet

These delays produce more than frustration among appointees. They have also encouraged administrations to create a de facto subcabinet composed of non-Senate-confirmed appointees.

A recent example of this trend is the Bush administration’s appointment of James E. Cason to the Department of the Interior. Cason had been chosen for a position in the Agriculture Department by the first Bush administration, but the nomination was withdrawn when it became clear he would not be confirmed. To avoid a repetition of this scenario, George W. Bush named Cason associate deputy secretary, a non-Senate—confirmed position. Cason now occupies what the administration labels “a critically sensitive” job. He is empowered to act on the deputy secretary’s behalf and oversees decisions made by lowerlevel Interior Department officials, including those in positions that the Senate would likely never allow him to occupy.

The rise of the de facto subcabinet also reflects continuing tension between the White House and agency heads over the centralization of the presidential appointments process. Centralization may make perfect sense according to theories of public bureaucracy, which argue that presidents have every reason to control the choice of subcabinet officers, but it has provoked a counter-push from cabinet and subcabinet officers who want to choose their own lieutenants. In theory, the president should select every appointee to ensure power over the subcabinet, as well as to maximize patronage. In reality, the more the White House seeks to maintain discretion, the more the departments invent new devices for evading it.

It is no coincidence, for example, that the very first chief of staff to a cabinet secretary was created in 1981 by Health and Human Services secretary Richard Schweiker, whose choice for deputy secretary was rejected by the White House in favor of a more visibly pro-life candidate. Schweiker responded by appointing his candidate as chief of staff to the secretary, creating an entirely new layer of non-Senate confirmed management that spread quickly to other departments. By 2001, every secretary had a chief of staff, and most had deputy chiefs of staff. So did most deputy secretaries, under secretaries, and a handful of assistant secretaries. What the White House so carefully achieves through centralization, departments and agencies cast asunder, often weakening the Senate-confirmed positions in the process.

The de facto subcabinet creates three unintended consequences for presidential governance. First, it undermines constitutional accountability in the confirmation process. Why require confirmations if a secretary or the White House can delegate significant authority to a nonconfirmed appointee such as a chief of staff or associate deputy secretary? Second, the de facto subcabinet diffuses accountability when things go wrong. Who is Congress to hold accountable if the president’s energy policy fails? The confirmed assistant secretary? The nonconfirmed chief of staff to the secretary? Third, by adding administrative layers, the rise of overpowered non-Senate-confirmed deputies creates obvious barriers to the flow of information up the chain of command.

The Senate is not without some blame for the rise of the de facto subcabinet. As already noted, the chamber takes too long to process presidential nominees and has a well-deserved reputation for using the appointments process to extort concessions on totally unrelated issues. The consequence has been efforts by presidents to circumvent Congress, efforts that amount to an evasion of their constitutional obligation.

Best and brightest?

This byzantine world of presidential appointments has also generated an unwillingness to serve among talented Americans who live outside the Washington, D.C., area.

According to a survey of potential appointees conducted in the year 2000 by the Presidential Appointee Initiative, many of America’s most talented citizens have come to believe that the Senate and White House would treat them as “innocent until nominated,” as former White House Counsel C. Boyden Gray once put it. The 580 corporate executives, university presidents, nonprofit executives, think tank scholars, state and local government officials, and leading lobbyists interviewed for the survey saw significant benefits in governmental service, from making valuable contacts and increasing their leadership prospects to enhancing their future earning power. They also said that such service would be an honor and an opportunity to have a positive impact on their country’s future.

At the same time, the respondents saw significant barriers to participation in government. First, most of the potential appointees looked unfavorably upon living in Washington, almost half said relocating their spouse to Washington would be somewhat or very difficult, and more than two-thirds said a presidential appointment would create much or some disruption in their personal lives. They were concerned about housing costs, commuting times, schools, and appointee salaries that have not kept pace with even the nonprofit sector. As of December, 2001, for example, federal cabinet secretaries made $161,200 in base salary, their deputy secretaries made $145,100, under secretaries $133,700, and assistant secretaries (including chief information officers) made $125,700. Second, and equally important for predicting the willingness to serve, potential appointees viewed the nomination and confirmation process as unfair, confusing, and embarrassing. The fear of abuse is so pervasive that potential appointees are more likely than actual appointees to see the process as an ordeal.

These worries about relocation and abuse create a bias in favor of people who are already located in Washington and who have been through the presidential appointments process before. More than 50 percent of the Reagan, first Bush, Clinton, and present Bush administration appointees came from inside the Beltway, and 78 percent had held an earlier presidential appointment.

Who is in charge?

The greatest cost of the current process is not in its insularity, its embarrassments, or even its delays. Rather, it is in the lingering vacancies that pockmark an administration throughout its term. With the average tenure lasting just 18 to 24 months, the first appointees of a new administration often leave before the last appointees are formally sworn in. Administrations routinely tolerate 50 to 60 percent vacancy rates in Senate-confirmed positions in the first year, and accept 20 to 30 percent vacancy rates thereafter.

Perhaps it is time to ask whether we need so many layers of government-whether more leaders equals more leadership. Fewer appointees would not only reduce stress on the overburdened process but also increase the attractiveness of many jobs to potential appointees. In 1961, for example, assistant secretaries occupied the third most important positions in most departments. Today, they often occupy the tenth or twelfth or fifteenth most important positions. This does not mean assistant secretaries are irrelevant. They still matter for moving information up and down the hierarchy, for helping to formulate policy, and for signing orders, memoranda, and contracts. But they now function principally as part of a very long and complicated chain of accountability that often fails to deliver the information, guidance, and memoranda to the right people at the right time.

As the nation learned from the 1999 Los Alamos espionage case, the problem is often neither a lack of information nor concern. Everyone in Washington seemed to know that there were security problems in the nuclear laboratories. Rather, the difficulty lay in pinpointing the right layer or individual that was responsible for taking action. Organizationally, the Department of Energy has always believed that wider and taller is better. At its founding in 1979, its secretary, deputy– secretary, under-secretary, and assistant-secretary compartments contained 10 layers and 56 senior executives, both political and career. By the winter of 1998, those four compartments had thickened to 18 layers and 143 senior executives, including an assortment of chiefs of staff and other alter-ego deputies. Who can be held accountable in such a maze of authority? The secretary? His chief of staff? How about the deputy secretary? Under secretary? Principal deputy assistant secretary for military applications? Deputy assistant secretary for research and development? Or the inspector general, deputy inspector general, or assistant inspector general? The answer is everyone and no one. With 25 layers from the top of the department to the top of Los Alamos, information is bound to get lost along the way.

The Department of Energy is hardly an isolated example. Forced by repeated hiring freezes to choose between protecting the bottom of government and bulking up its middle and top, federal departments and agencies have mostly sacrificed the lower echelons. Since 1997, for the first time in the history of civil service, middle-level employees have actually out– numbered bottom-level employees.

A leaner government

Reducing the sheer number of appointments is not the only way to restore sanity to the presidential appointments process. Congress and the president could easily streamline the financial and information disclosure process, at a minimum making all forms available on-line, while giving the White House adequate staff to handle the crush of nominations at the start of the term. Reformers could also reduce the number of nominations subject to FBI full-field investigations and Senate hearings. Does the nation really need to know about the last 15 years of foreign travel of its assistant secretary for public affairs at the Department of Housing and Urban Development? Do we really need a full Senate committee hearing for the assistant secretary for intergovernmental relations at the Department of Labor? The Senate could also limit the use of holds on nominations to a maximum of 14 days, and require upor-down votes on nominations within 60 days of submission.

Congress and the president could also tackle the equally serious problem of organizational overlap. Presidents might not feel such pressure to fill every last possible position if they could clear the bureaucratic fog that envelops most departments and agencies. Given a clean view to the front lines of government, they might conclude that fewer appointees would produce tighter leadership and better policy.

It hardly makes sense to streamline the confirmation system if nothing is done to flatten the bureaucracy below. Nor does it make sense to accelerate the appointments process even as the rest of the government continues to slow down. Unless Congress and the president act to restructure the entire hierarchy, a faster appointments process will only hasten the day that appointees realize they have little chance to make a difference through their work.