Implementation of the 1963 Presidential Transition Act

Thank you for inviting me to testify before the Subcommittee regarding the recent decision by the General Services Administration to deny the release of funding under the 1963 Presidential Transition Act to representatives of the Bush-Cheney presidential campaign. There has been considerable confusion regarding the definition of just who are the “apparent successful candidates for President and Vice President” eligible for funding under Title 3, Chapter 2, Section 102 Notes.

Let me address six questions in an effort to clarify the meaning of the words “apparent successful candidates” under Title 3, Chapter 2, Section 102 Notes. Because the legislative reports accompanying H.R. 12479, the Presidential Transition Act of 1962, and H.R. 4638, the Presidential Transition Act of 1963, do not contain any definition of terms, my answers are based solely on the relatively brief June 25, 1963, floor debate in the House of Representatives.

1. What was the original purpose of the 1963 Presidential Transition Act?

There were two purposes of the 1963 Act, one primary, one secondary. According to Section 1, the act was primarily designed to “promote the orderly transfer of the executive power in connection with the expiration of the term of office of a President and the inauguration of a new President.” The statute clearly warns that “Any disruption occasioned by the transfer of the executive power could produce results detrimental to the safety and well-being of the United States and its people.”

The act also had the secondary effect of sharply reducing the need for private money to support what Congress clearly defined as a public responsibility. As Florida Rep. Dante Fascell argued during the House floor debate on July 25, 1963, “It just does not seem proper and necessary to have [the President- and Vice President-elect] going around begging for money to pay for the cost of what ought to be legitimate costs of Government….” Congress clearly believed that the cost of presidential transitions should be borne by the public, not by what New York Rep. Benjamin Rosenthal called “special interests…anxiously coming forward to help pay government expense.”

2. When did Congress want the transition funding and assistance to start flowing?

It is clear from all documents surrounding passage of the 1963 act and its later amendments that Congress intended to provide transition support to the winning candidates well before absolute certainty is reached by the Electoral College on December 18. The authors of the act understood the trade-off between absolute certainty and the need to begin the arduous transition to governing.

3. Who is responsible for determining the “apparent successful candidates?”

Congress was absolutely clear that the Administrator of the General Services Administration, not the President of the United States nor the White House Chief of Staff, would decide when and if to begin spending dollars and providing assistance under the 1963 Presidential Transition Act. Congress believed that the decision was ministerial, not political, in nature, and viewed the General Services Administration as one of several federal agencies that would make such determinations as part of the ordinary exercise of discretion following even close elections of the kind the nation had experienced in 1960 when a mere 114,673 popular votes separated the winner from the loser. Indeed, the basic language regarding the apparent winner was drawn from Public Law 87-829, which allows the Secret Service to provide protection for the president- and vice president-elect.

4. Did Congress expect the Administrator’s decision to be difficult?

Rep. Fascell clearly believed that the decision surrounding the declaration of the apparent successful candidates would not be difficult. Referring to Public Law 87-829, Fascell noted that “Secret Service and the Secretary of the Treasury have had absolutely no difficulty in determining who the President-elect or Vice-President elect might be, so far as carrying out the administrative duties under that law is concerned. Therefore, I do not see why the General Services Administrator should have any difficulty under the pending legislation.” Earlier in the debate, Fascell had made specific reference to the 1960 election, noting that it was “as close as we would want to have an election and nobody had any trouble in deciding who was the apparent winner.”

There are at least two explanations for Fascell’s view. First, Fascell may have believed that the determination of the apparent successful candidates was easy because the winner would be easily identifiable through the projected electoral college vote. Second, Fascell may have believed that the determination was easy because most presidential elections result in absolute clarity regarding the outcome. There is some evidence in support of both positions. Fascell clearly believed that the apparent winner would almost always be easy to identify, but also recognized that there had been at least three elections in American history when transition assistance would not have been given.

5. Did Congress anticipate the current electoral impasse?

Congress accepted the possibility that the future might hold another very close election in which transition funds and assistance would be denied due to an “un-apparent” victor, as the General Services Administration recently described the current situation. At least according to Rep. Fascell, such elections would be rare, indeed: “I do not see any great big problem in the Administrator of the General Services Administration being unduly involved in the matter of determining who is the apparent winner in order to perform the ministerial functions under this act. In the whole history of the country, we have had only three close elections and I do not think there is any great problem.” Although he did not define the three, Fascell almost certainly meant the elections of 1800, 1824, and 1876, but not 1888, in which Grover Cleveland won the popular vote, but lost the election to Benjamin Harrison in the electoral college.

The question is whether the election of 2000 falls into the narrow class of elections that would have given Fascell and his colleagues pause. Yes, the 2000 election produced an exceedingly close popular vote, and, yes, only a few electoral votes will ultimately divide the winner from the loser. But close through it was and contested though it still is, this election did not produce a tie (1800), a plurality among multiple candidates (1824), or the presence of extensive fraud and voter intimidation (1876). As Fascell appeared to argue, transition funds and assistance can be released to the apparent successful candidates even in an exceedingly close election, whether measured by popular vote (e.g., 1960) or electoral vote (e.g., 1916, in which Woodrow Wilson won the presidency by a mere 23 electoral votes).¹ Viewed through this lens, “apparent successful candidates” appears to mean candidates who can lay legitimate claim to the number of electoral votes needed for victory.

6. What if the Administrator of the General Services Administration has a doubt about the outcome?

Although Rep. Fascell did not expect the determination of the apparent successful candidates to be difficult, he assured his colleagues twice that the Administrator would be free to withhold designation “if there is any doubt in his mind, and if he cannot or does not designate the apparently successful candidate.” The key instruction came late in the floor debate immediately after Rep. Fascell referred again to the potential for a close election.

In the whole history of the country, there have only been three close such situations [SIC]. It is an unlikely proposition, but if it were to happen, if the administrator had any question in his mind, he simply would not make any designation in order to make the services available as provided by the act. If as an intelligent human being and he has a doubt, he would not act until a decision has been made in the electoral college or in the Congress.

Clearly, the current Administrator has a doubt about who won, as do many Americans. The question before this Subcommittee, however, is whether doubts based on continuing legal challenges are permitted as a reason for denying funds and assistance under the 1963 statute.

My answer is two-fold. First, the Administrator was given broad authority to withhold funding and assistance in close elections, particularly when doing so would give the presidential and vice presidential candidates what Iowa Rep. Harold Gross called “psychological and other advantages” that might influence independent, or faithless, electors. As Rep. Fascell explained, “in a close contest, the Administrator simply would not make the decision.”

However, Rep. Fascell tempered that discretion when he noted twice that there had only been three close elections in the whole of American history. Merely having a close or contested election is not enough to merit a denial of funds and assistance without further explanation as to how such an election is either similar to the three elections Rep. Fascell referred to, or would constitute the fourth election in Rep. Fascell’s list.

Therefore, I believe the Administrator of the General Services Administration could have reached two equally plausible conclusions last Monday:

1. The Administrator could have concluded that the election of 2000, while close and contested, had still produced a presumed winner of the electoral college vote, and was not yet in the narrow class of three previous elections that allow doubt under the legislative record, limited though that record is. In the spirit of the 1963 Presidential Transition Act, the Administrator could have named the apparent successful candidates, and would have been well within his discretion in doing so.

The Administrator could have concluded that the election of 2000, while having produced a presumed winner of the electoral college vote, was either in the narrow class of three previous elections that allow doubt or constitutes a fourth election to be added to that class. Despite the need for speed in transition planning, the Administrator could have explained how designation of the apparent successful candidates either would have bestowed “psychological and other advantages” on the designees or would have been a breach of his obligation to withhold assistance in the event of justifiable doubt.

Unfortunately, the Administrator of the General Service Administration reached neither conclusion. Instead, in a November 9 press advisory, his agency said that the losing candidate would have to concede before it could determine the “apparent successful candidates.” In a November 27 press advisory, his agency dropped the concession requirement and said that continued legal challenges by both candidates rendered the election outcome “unclear and un-apparent.” Both definitions would give future losing candidates extraordinary authority to delay transitions through legal challenges, whether legitimate or frivolous.

Ultimately, the purpose of the 1963 Presidential Transition Act was to minimize the disruptions that might be occasioned by the transfer of the executive power. Time, not money, is the precious resource in a transition, which is why Congress allowed the Administrator to make a determination of the apparent successful candidates long before the electoral college meets. As New Jersey Rep. Joelson explained, the president-elect probably makes more “fateful decisions” during the transition than after he is sworn into office. “The Gentleman from Iowa wants to know whom this bill benefits. I believe it benefits the people of America. It makes a good system perfect.”

That is why the denial of benefits should only occur under the most extreme and uncertain of circumstances. That is also why this Subcommittee should take action to clarify the terms governing release of transition funds and assistance in future campaigns. That may mean stating in no uncertain terms that a certified electoral college majority is enough to trigger release of funds and assistance under the 1963 Presidential Transition Act, or a dual release to both campaigns in the event of a contest. But there must be clarity. I urge this Subcommittee to provide it.

Thank you.