APPENDIX C
PRESIDENTIAL APPOINTMENTS REQUIRING THE ADVICE AND CONSENT OF THE SENATE: BACKGROUND AND CURRENT ISSUES

Henry B. Hogue1

Introduction

At the top levels of the federal bureaucracy are positions to which the president makes appointments “by and with the advice and consent” of the Senate (PAS positions). The appointees who fill those positions are officers of the United States who often exercise considerable policy-making authority. This paper provides background information related to PAS positions, including the legal framework within which appointments to these positions are made, the steps in the appointment process, financial-disclosure requirements for applicants and office-holders, and the compensation framework for executive-level positions. Scholars and practitioners of public administration have raised a variety of issues with respect to present-day presidential appointments, including the balance between the burdens and benefits of financial-disclosure requirements, the compensation levels in comparison with past levels and levels in the private sector, and the length of the process, particularly at the time of presidential transitions. Those issues and some proposals for change are discussed below.

1  

Henry Hogue is an analyst with the Congressional Research Service (CRS) at the library of Congress. The views expressed here are his own and do not represent CRS or the Library.



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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments APPENDIX C PRESIDENTIAL APPOINTMENTS REQUIRING THE ADVICE AND CONSENT OF THE SENATE: BACKGROUND AND CURRENT ISSUES Henry B. Hogue1 Introduction At the top levels of the federal bureaucracy are positions to which the president makes appointments “by and with the advice and consent” of the Senate (PAS positions). The appointees who fill those positions are officers of the United States who often exercise considerable policy-making authority. This paper provides background information related to PAS positions, including the legal framework within which appointments to these positions are made, the steps in the appointment process, financial-disclosure requirements for applicants and office-holders, and the compensation framework for executive-level positions. Scholars and practitioners of public administration have raised a variety of issues with respect to present-day presidential appointments, including the balance between the burdens and benefits of financial-disclosure requirements, the compensation levels in comparison with past levels and levels in the private sector, and the length of the process, particularly at the time of presidential transitions. Those issues and some proposals for change are discussed below. 1   Henry Hogue is an analyst with the Congressional Research Service (CRS) at the library of Congress. The views expressed here are his own and do not represent CRS or the Library.

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments Constitutional Framework Under the Constitution, the president and the Senate share the power to appoint officers of the United States. The division of authority is laid out in the appointments clause as follows: [The president] shall nominate, and by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law. But the Congress may by law vest the appointment of such inferior officers, as they think proper, in the president alone, in the courts of law, or in the heads of departments.2 Under that clause, some specified officers—“ambassadors, other public ministers and consuls, judges of the supreme court,” and, implicitly, all officers who would not be considered “inferior officers”—are subject to a three-stage appointment process: nomination, some process by which the Senate can provide advice and consent, and actual appointment. In the cases of offices that are not specifically identified and that are “inferior,” Congress may either make filling them subject to the same process or allow them to be filled by appointment of one of the other three specified authorities: the president, the courts, or department heads. For the purposes of the clause, what is an officer? Which are “inferior officers”? Regarding the first question, the Supreme Court held, in Buckley v. Valeo, that “any appointee exercising significant authority pursuant to the laws of the United States is an ‘Officer of the United States,’ and must, therefore, be appointed in the manner prescribed” above.3 Under that definition, an officer of the United States might, for example, be contrasted with an appointee who acts only in an advisory capacity to the president. 2   Article II, Sec. 2, cl. 2. 3   Buckley v. Valeo, 424 US 1, 126 (1976).

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments In 1997, the meaning of the term “inferior officers” was addressed by the Supreme Court in Edmond v. United States.4 The opinion of the Court addressed the validity of the appointment process for two civilian members of the Coast Guard Court of Criminal Appeals and turned, in part, on the Court’s distinction between principal and inferior officers: Generally speaking, the term “inferior officer” connotes a relationship with some higher ranking officer or officers below the President: Whether one is an “inferior officer” depends on whether he has a superior. It is not enough that other officers may be identified who formally maintain a higher rank, or possess responsibilities of a greater magnitude. If that were the intention, the Constitution might have used the phrase “lesser officer.” Rather, in the context of a Clause designed to preserve political accountability relative to important Government assignments, we think it evident that “inferior officers” are officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.5 The Court’s opinion suggests on the one hand that with the exception of specified officers, such as ambassadors and “judges of the supreme court,” the Constitution requires only one layer of advice and consent positions in the hierarchy of each agency. It indicates that appointees who have supervisors that were appointed with advice and consent are inferior officers and that Congress may therefore provide for appointment by one of the other three authorities. On the other hand, the opinion also suggests that any officer who is not part of a hierarchy that is headed by an officer who has been appointed with advice and consent cannot be considered an inferior officer and must therefore be appointed with advice and consent. Officers in the latter category might include members 4   Edmond v. United States, 520 US 651 (1997). 5   Ibid. pp. 662-663.

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments of federal regulatory boards and commissions inasmuch as members often exercise substantial statutory authority and are generally not directed or supervised by other officers.6 The Three-Stage Presidential Appointment Process The appointment process for PAS positions includes three stages: selection and nomination, Senate consideration, and appointment. Although the language of the appointments clause suggests those stages, the specific procedures by which the process is completed have been established over time by the President and the Senate. The process also takes place within a political context, and informal practices develop among the participants as well. The President and the Senate are the principal participants in the formal steps, but other concerned parties, including interest groups and other elected officials, often attempt to influence appointments, for example, by providing information to the decision makers and the mass media. Although the president has the authority to nominate anyone to a PAS position, his or her administration will generally consider beforehand whether the nominee is likely to be confirmed. The Senate confirms most nominations, but history has shown that no president should assume that a nominee will be approved routinely. Stage 1: Selection and Nomination. The initial step in the presidential appointment process for PAS positions is selection and nomination. First, the President picks a candidate, usually with 6   For the purpose of appointing inferior officers, the members of a federal board or commission may be considered collectively a “head of department.” For example, members of the Public Company Accounting Oversight Board are appointed by the Securities and Exchange Commission as a whole (15 USC. 7211(e)(4)). That practice is in accord with the appeals court in Silver v. US Postal Service (951 F.2d 1033 (9th Cir. 1991)), in which the court concluded that the nine-member US Postal Service Board of Governors constitutes the “head of department” and therefore may be charged by Congress with the appointment of the postmaster general, an inferior officer.

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments the assistance of the White House Office of Presidential Personnel. A number of interested parties may have input into the selection of a candidate. For example, the head of the department or agency normally has a role in the choice—with the White House having the final say in cases of disagreement. The White House may consult with senators and state political-party leaders during the selection process, particularly concerning positions in the states, such as US attorney or US district judge.7 Leaders of committees that have jurisdiction over particular positions may be consulted about potential nominations to those positions. The selection process may also include consultation with relevant interest groups. Before nomination, a candidate is subject to a clearance process. The Office of the Counsel to the President oversees the process, which often includes background investigations conducted by the Federal Bureau of Investigation (FBI), the Internal Revenue Service, the Office of Government Ethics (OGE), and an ethics official for the agency to which the president wishes to appoint the candidate. As part of the process, the candidate usually prepares and submits several forms, including the “Public Financial Disclosure Report” (Standard Form [SF] 278), the “Questionnaire for National Security Positions” (SF 86), and the White House “Personal Data Statement Questionnaire.” OGE and the agency ethics officer may work with the candidate to resolve any conflicts that surface during this stage. Once cleared, the nomination is ready to be submitted to the Senate. The selection and clearance stage is usually the longest part of the appointment process even when the process goes smoothly. The beginning of a new administration may be characterized by delays because of the volume of positions that need to be filled all at once. If financial conflicts need to be resolved, this may 7   “Report of the Task Force on the Confirmation Process,” Congressional Record, vol. 138 (Feb. 4, 1992), pp. 1348-1352.

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments also increase the length of the process. Potential appointees to top-level positions, such as department and agency heads, are often given high priority in this process. Nomination does not confer legal authority. Generally, the other two stages of the process must be completed before a nominee may permanently assume the duties and responsibilities of the position. In the interim, the nominee is sometimes hired as a consultant, but he or she may serve only in an advisory capacity under this arrangement. The president has two ways of temporarily filling PAS positions, under some conditions, without the advice and consent of the Senate. The president may give the nominee a recess appointment under the Constitution8 or a temporary appointment under the Vacancies Act,9 both of which confer on the appointee legal authority to assume the duties and responsibilities of the office. Although the duration of such appointments is limited, under some circumstances a recess appointment may last for nearly 2 years, and an appointment under the Vacancies Act may last longer. If senators perceive that the president is using a temporary appointment to circumvent the confirmation process, however, they may respond by blocking other nominations or placing further restrictions on temporary appointments.10 Stage 2: Senate Consideration. After the president has submitted a nomination, the Senate consideration process begins. Although Senate activity surrounding a particular nomination depends on the position’s importance, the political context, and relevant policy issues, executive branch nominations usually follow 8   Article II, Sec. 2, cl. 3. 9   5 USC. §§ 3345-3349d. 10   See, for example, “Nomination Logjam Cleared,” Congressional Quarterly Weekly Report, vol. 43, no. 42, Oct. 19, 1985, p. 2111; Darlene Superville, “Congress to Limit ‘Acting’ Terms,” Associated Press Online, March 18, 1998.

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments the same general path. First, a nomination is referred to the committee of jurisdiction. The committee sometimes holds a hearing on the nomination. Under most circumstances, the committee then reports the nomination back to the full Senate, and it is then available for Senate action. Most nominations proceed through the process in a routine, timely fashion. For nominations to full-time department positions during the 107th Congress, for example, the median number of days from nomination to confirmation was 36. Some controversial nominations take much longer, however, and some are never acted on at all. The procedures and customs of the Senate allow individual senators to wield considerable power over the fate of individual nominations, particularly through the use of holds.11 The progress of relatively non-controversial nominations may also be slowed as part of a strategy to move non-related legislation or nominations. Although some nominations are never confirmed, the Senate rarely rejects a nomination outright. More often, rejections occur in committee, either by committee vote or by committee inaction. In addition to nominations to top policy-making positions, the Senate receives nominations to hundreds of military and other officer positions, including promotions. The Senate routinely confirms, en bloc, hundreds of such nominations at a time. Committees are central to Senate consideration of nominations. Once a committee receives a nomination, it may act on it and discontinue acting on it at any point. Committee nomination activity includes several steps: investigation, hearing, and reporting. Although committee staffs, as part of their investigations, usually collect their own personal and financial information from nominees, they may also use information from the clearance process as provided by the White House. That includes information related to the 11   A hold is an informal Senate practice in which a senator requests that his or her party leader delay floor action on a particular matter, in this case a nomination.

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments Public Financial Disclosure Report. In addition, with the authorization of the President, senators may have access to FBI reports or report summaries. The paperwork required by the committee may include standard committee forms and followup questionnaires tailored to specific nominations. The Senate usually gains a commitment from the nominee to respond to requests to come before committees of the Senate as part of the committee paperwork or during hearings.12 Among the factors that determine whether a particular nomination will receive a public hearing are the nomination’s importance, the committee workload and schedule, and the committee’s customs. A hearing gives senators an opportunity to explore a nominee’s qualifications and may serve other purposes. It provides an opportunity for senators and a nominee to discuss publicly the program or agency for which the nominee would be responsible, to go on the record with particular views or commitments, to articulate a policy perspective, or to raise related oversight issues. As a final step, the committee may vote to report the nomination back to the full Senate. It may report it favorably, unfavorably, or without recommendation. If the committee does not report a nomination, the full Senate may, under some circumstances, discharge the committee from further consideration of the nomination so that it can be brought to the floor. Once a nomination is reported back to the full Senate or the committee is discharged from further consideration, the nomination is available for Senate action, but there is no guarantee that the nomination will be 12   For example, the Senate Committee on Governmental Affairs prehearing questionnaire for Michael J. Garcia, a nominee to be an assistant secretary of the Department of Homeland Security, included the following question: “Do you agree without reservation to respond to any reasonable summons to appear and testify before any duly constituted committee of the Congress if you are confirmed?” US Congress, Senate Committee on Governmental Affairs, Nominations of C. Stewart Verdery, Jr. and Michael J. Garcia, hearing, 108th Cong., 1st sess., June 5, 2003 (Washington: GPO), p. 133.

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments brought to the floor. If the nomination is acted on, the President is then notified. Stage 3: Appointment. In the final stage, the president signs a commission, and the confirmed nominee is sworn into office. The president may sign the commission at any time after confirmation. Even at this stage, the appointment may fail to be completed if the president does not sign the commission. Once the appointee is given the commission and sworn in, he or she assumes the duties and responsibilities of the office. Other Presidential Appointments Governmentwide, some 90 full-time positions are appointed by the president alone.13 Those positions are mostly in the White House office and are designed to staff and advise the president directly.14 Although the appointment process framework 13   Estimate based on information from US Congress, Senate Committee on Governmental Affairs, United States Government Policy and Supporting Positions, 106th Cong., 2nd sess., Committee Print, S. Prt. 106-54, Nov. 8, 2000 (Washington: GPO, 2000). 14   Under 3 USC. § 105(a)(2), the president may appoint in the White House office “25 employees at rates not to exceed the rate of basic pay then currently paid for level II of the Executive Schedule” (EX II), which is the schedule for presidential appointees that require Senate confirmation; 25 at the EX III rate or lower; 50 at the “GS-18” rate, which is equivalent to the Senior Executive Service, or lower; and “such number of other employees as he may determine to be appropriate” at the “GS-16” rate or lower. Under 3 USC. § 107(a) and (b), he may appoint in the Office of Policy Development “6 employees at rates not to exceed the rate of basic pay then currently paid for level III of the Executive Schedule,” 18 employees at the “GS-18” rate or lower, and “such number of other employees as he may determine to be appropriate” at the “GS-16” rate or lower; and, in the Office of Administration, “5 employees at rates not to exceed the rate of basic pay then currently paid for level III of the Executive Schedule” and five employees at the “GS-18” rate or lower. Under 3 USC. § 106(a)(1), the vice president may appoint in his office “5 employees at rates not to exceed the rate of basic pay then currently paid for level II of the Executive Schedule,” three employees at the EX III rate or lower, three employees at the “GS-18” rate or lower, and “such number of other employees as he may determine to be appropriate” at the “GS-16” rate or lower. The GS-16, GS-17, and GS-18 levels, as such, no longer exist. Under Sec. 101(c) of the Federal Employees Pay Comparability Act of 1990 (104 Stat.1442), all references in statute to these pay rates are considered to refer to pay rates under 5 USC. § 5376.

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments under the Constitution allows Congress to delegate to the president alone appointments to a greater breadth of offices, Congress has generally not elected to do so and thus has reserved its prerogative. Appointments to some top positions in the Department of Homeland Security are an exception in this regard. Under the provisions of the Homeland Security Act, at least seven officers in the department are appointed by the president alone.15 Presidential appointees that do not require Senate confirmation are less likely to testify before congressional committees, for two reasons. First, as noted above, during the Senate confirmation process, nominees are routinely asked to agree (if confirmed) to testify before committees of Congress when requested to do so. Those who do not face Senate confirmation are not asked to make that commitment. Second, because such appointees often act to advise or otherwise assist the president directly, they may be shielded from congressional inquiry by the constitutional separation of powers. As President Nixon articulated it, Under the doctrine of separation of powers, the manner in which the president personally exercises his assigned executive powers is not subject to question by another branch of Government. If the President is not subject to such questioning, it is equally appropriate that members of his staff not be so questioned, for their roles are in effect an extension of the Presidency.16 Under that understanding, the White House may, from time to time, assert executive privilege in the face of a congressional request for the testimony of a presidential aide. Members of 15   P.L. 107-296. Six of these positions were newly created: assistant secretary for information analysis, assistant secretary for infrastructure protection, chief information officer, chief human capital officer, chief financial officer, and officer for civil rights and liberties. The seventh officer, director of the US Secret Service, was previously appointed by the secretary of the treasury. 16   US President (Nixon), “Executive Privilege: Statement by the President,” Weekly Compilation of Presidential Documents, vol. 9, Mar. 12, 1973, pp. 253-255.

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments Congress also have tools at their disposal that they may use in an effort to obtain such testimony, such as the appropriations power and the political embarrassment of the White House, particularly in the case of allegations of wrongdoing. Although White House aides do not testify often before congressional committees, their testimony is not rare.17 Ethics in Government Federal law includes a number of provisions that are designed to address the tension that may exist between an appointee’s private interests and the general public interest. Before appointment, each full-time political appointee is required to disclose information and address concerns about his or her preemployment finances. Each such appointee is required further to continue to disclose information and avoid potential conflicts of interest while holding office and, for a period after leaving office, to limit activities that could pose a conflict of interest. The statutory requirements reflect the goals of staffing the government with policy makers who act in the public interest and maintaining the public’s trust that government officers are impartial. The statutory and regulatory environment that is intended to further those goals is sometimes in tension with efforts to recruit appointees who are experienced in the fields related to the positions to which they are being appointed. The rigorous ethical requirements associated with entering high-level government service may deter some otherwise well-qualified applicants from pursuing or accepting appointments. In addition to the loss of the talents that such appointees might bring to office, the government might lose benefits arising from close contact between its long-term employees and people with substantial and relevant private-sector 17   For examples of such testimony, see Louis Fisher, “White House Aides Testifying Before Congress,” Presidential Studies Quarterly, Winter 1997, vol. 27, no. 1, p. 139.

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments experience. Because of the latter loss, long-term public servants may tend to be insulated from private-sector developments. Ethics requirements may also deter some people whose private interests make them poor matches for public service. Requirements Before and During the Appointment. Appointees must go through financial disclosure at the time of their nomination (usually during the clearance process) and, if they are confirmed, annually thereafter.18 Other high-ranking government officials are also required to disclose such information annually.19 The financial-disclosure process is generally directed at current financial interests and ties, although it sometimes involves questions about financial transactions in recent years. Each applicant must file a disclosure statement, which goes to the designated agency ethics officer, OGE, and, after review, the committee of jurisdiction in the Senate. Some portions of the statement must be updated no sooner than 5 days before a nomination hearing, if a hearing is to be held.20 The disclosure forms are very detailed, and many applicants have found that professional assistance is required to complete them.21 The process can be time-consuming, and this may add to the length of the clearance process. Information to be disclosed regarding current financial arrangements includes the identity and value of certain private income, gifts, assets, liabilities, financial transactions, positions in outside businesses and organizations, agreements regarding future employment or continuing benefits from previous employment, and the cash value of a blind trust. Applicants are also required to provide the identity of anyone 18   5 USC. app. §§ 101(b), 101(d). 19   5 USC. app. § 101. 20   5 USC. app. § 101(b)(1). 21   US Congress, Senate Committee on Governmental Affairs, The State of the Presidential Appointment Process, hearings, 107th Cong., 1st sess., April 4-5, 2001 (Washington: GPO, 2002), p. 83.

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments who provided them with more than $5,000 in the previous 2 years and the nature of any services provided in exchange. Income in the previous calendar year and positions held in the previous 2 years must also be disclosed. Most of the information required by the statement must also be reported with regard to spouses and dependent children.22 Although a potential conflict of interest or the appearance of conflict of interest may become evident, it does not necessarily end the possibility that the person will be appointed. Problems may be resolved in several ways, including divestiture, creation of a blind trust, or the applicant’s agreement to recuse himself or herself from particular decision-making processes.23 Agreements concerning remedial measures typically involve the nominee, OGE, and the agency to which the person is to be appointed. The Senate committee of jurisdiction is also informed.24 The Senate may require that additional information be provided or that additional steps be taken to resolve conflict-of-interest concerns. The resolution of conflict-of-interest problems may add to the length of clearance and Senate consideration. Once in government service, an appointee may not receive supplementary compensation to make up the difference between a prior private salary and his or her public salary.25 Requirements on Leaving Government Service. On departure from federal government service, political appointees face restrictions on their work activities.26 As with requirements at the time of entry into government, the restrictions are aimed at 22   5 USC. app. § 102. 23   US Office of Government Ethics, Public Financial Disclosure: A Reviewer’s Reference, (Washington, DC: OGE, 1996), chapt. 5. 24   US Office of Government Ethics, Public Financial Disclosure: A Reviewer’s Reference, (Washington, DC: OGE, 1996), chapt. 12. 25   18 USC. § 209. 26   See, generally, 18 USC. § 207.

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments avoiding conflicts of interest and the appearance of conflicts of interest. Among the restrictions appointees face are A lifetime ban on representing another party regarding a policy on which the official had worked personally and substantially while in government service (“switching sides”). A 2-year ban on switching sides on matters for which the official was more generally responsible. A 1-year restriction on helping others with some trade and treaty negotiations. In addition, some high-ranking officials are barred, for 1 year, from acting on behalf of third parties with officials of their former agencies. Some officials are also restricted, for 1 year, from representing foreign interests. Officials involved with procurement activities face particular limits on their work activities for 1 year after the end of their appointments.27 In general, appointees are also limited in their negotiations for future employment while they are still serving in government office.28 The Burden and Benefits of Financial Disclosure. Groups seeking to reform the presidential appointment process have criticized, among other things, the burden that the financial-disclosure process places on potential appointees. According to various reports,29 applicants face a level of ethical and political scrutiny that is too high and a paperwork burden that is too complex, abundant, and invasive. For some potential applicants, 27   41 USC. § 423(d). 28   18 USC. § 208. 29   For an annotated list of these reports, see US Congress, Senate Committee on Governmental Affairs, Presidential Appointment Process: Reports of Commissions That Studied the Staffing of Presidential Administrations: A Summary of Their Conclusions and Recommendations for Reform, committee print, 107th Cong., 1st sess. (Washington: April 2001).

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments especially those who would need to leave lucrative positions or relocate their families to Washington, DC, to take positions, the uncertainty about the outcome or timeliness of the process might discourage them from applying for the positions. It is difficult to measure objectively whether the appointment process has become too burdensome.30 Although it is possible to identify, as reports have done, many of the hurdles in the process, it can be argued that each hurdle serves a purpose that is valued by some participant in the process. Financial disclosure may be burdensome to potential appointees but important to the government’s goals of avoiding conflicts of interest and maintaining the public’s trust. Testimony in 2001 by OGE Director Amy L. Comstock reflects an effort to balance the burdens and benefits of the system. She suggested that some streamlining of the process might be possible without compromising government goals: In general, public financial disclosure was originally intended to enable the public to judge the performance of public officials in light of personal financial interests and to deter conflicts of interest from arising. We do not believe that the original purposes of public disclosure have changed. Moreover, we believe that the concept of public disclosure is generally not considered to be unduly burdensome. It is an accepted condition of government service that the public must be able to assure itself that government officials will act impartially. Rather, what is considered frustrating and unduly burdensome is the requirement to obtain and disclose excessive detail regarding financial interests, the redundancy among the various forms used in the process, and the intrusion into a nominee’s personal finances beyond what appears to be 30   Surveys conducted by the Brookings Institution Presidential Appointee Initiative have been helpful in gauging the opinion of past and potential appointees regarding the burdens of the appointment process. See US Congress, Senate Committee on Governmental Affairs, The State of the Presidential Appointment Process, hearings, 107th Cong., 1st sess., April 4-5, 2001 (Washington: GPO, 2002), pp. 77-91.  

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments necessary for a conflicts analysis or public confidence. We believe that these concerns are valid, and OGE’s report recommendations address them.31 Proposed Amendments to the Ethics in Government Act. As suggested by Director Comstock’s remarks, OGE transmitted to the Senate Committee on Governmental Affairs and the House Committee on Government Reform, on April 4, 2001, a report on completed and proposed improvements in the financial-disclosure process for presidential nominees.32 The report, which had been required under the Presidential Transition Act of 2000,33 recommended five changes in the Ethics in Government Act: reduce the number of valuation categories; shorten certain reporting time-periods; limit the scope of reporting by raising certain dollar-thresholds; reduce details that are unnecessary for conflicts analysis; and eliminate redundant reporting.34 Senator Fred Thompson introduced the Presidential Appointments Improvement Act of 2001 in December 2001.35 The bill was reported out, with amendments, by the Committee on Governmental Affairs but was not acted on by the full Senate 31   US Congress, Senate Committee on Governmental Affairs, The State of the Presidential Appointment Process, hearings, 107th Cong., 1st sess., April 4-5, 2001 (Washington: GPO, 2002), p. 51. 32   US Office of Government Ethics, Report on Improvements to the Financial Disclosure Process for Presidential Nominees (Washington: April 2001). Hereafter referred to as OGE Report. 33   P.L. 106-293, Sec. 3(b)(1). 34   OGE Report, p. 2 35   See also US Congress, Senate Committee on Governmental Affairs, Presidential Appointments Act of 2002, report to accompany S. 1811, 107th Cong., 2nd sess., S.Rept. 107-152 (Washington: GPO, 2002).

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments during the 107th Congress. Among other things, it would have revised the financial-disclosure process for executive branch personnel covered under the Ethics in Government Act. The bill included a substantial part of legislation that had been drafted by OGE. Congressional interest in those proposed changes to the Ethics in Government Act continued in the 108th Congress. In April 2003, Senator George Voinovich introduced legislation similar to Senator Thompson’s bill from the previous Congress, and Representative Jo Ann Davis introduced a companion bill in the House.36 Compensation Compensation for most PAS positions is set by law at one of five levels of the Executive Schedule.37 Secretaries and other top executive branch officials are generally compensated at level I, deputy secretaries and their peers at level II, and other officials at the remaining three levels according to the hierarchy of positions. Level II of the Executive Schedule has been in parity with salaries of members of Congress and federal circuit or district judges for most of the last 40 years. For 2004, the salaries associated with each level of the Executive Schedule were set as follows: Level I $175,700 Level II 158,100 Level III 145,600 Level IV 136,900 Level V 128,200 36   S. 765, introduced by Sen. Voinovich on April 2, 2003, and H.R. 1603, introduced by Rep. Davis, introduced on April 3, 2003, were both entitled the Presidential Appointments Improvement Act of 2003. 37   5 USC. §§ 5311-5316.

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments By law, those salaries may be adjusted in one of two ways. The Ethics Reform Act38 provides that Executive Schedule salary levels are adjusted annually according to a formula based on the Employment Cost Index (ECI).39 Under that provision, increases may not exceed the rate of base pay adjustments of the General Schedule, the pay schedule for many career federal employees. The raise goes into effect unless Congress prevents it, generally through the appropriations process. Since 1994, the raise has been eliminated or reduced through the General Schedule limitation three times, and Congress has denied an adjustment to all federal officials four times. The Ethics Reform Act of 1989 includes a salary policy that was never implemented. It provides for a quadrennial review of salary levels by the Citizens’ Commission on Public Service and Compensation (the Quadrennial Commission). The recommendations by the commission to the president were to provide salary parity for specified groups of federal officials across the three branches. Although this statutory provision suggests that Congress intended to link the salaries of federal officials and elected officials, the commission has not been activated since 1987. A 2002 study of presidential appointee compensation by the Brookings Institution Presidential Appointee Initiative found that over the last several decades federal government executives’ salaries have declined both in purchasing power and in comparison with the pay of average workers. The report stated, for example, that “when salaries are consistently measured using 2001 dollars, … Cabinet officer pay shrank 44 percent (from $290,000 to $161,000)” between 1969 and 2001.40 The report suggested that such compen- 38   Ethics Reform Act of 1989, P.L. 101-194; 103 Stat. 1716. 39   5 USC. § 5318. 40   Gary Burtless, How Much is Enough? Setting Pay for Presidential Appointees (Washington: Brookings, 2002), p. 7.

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments sation issues may deter the most competent and talented people from serving in government leadership positions.41 The Length of the Appointment Process Some critics assert that it takes too long to get appointees in place, particularly at the beginning of a new administration. There is a lack of empirical studies comparing, governmentwide, the average length of the entire appointment process in different periods.42 Some research has, however, collected such information for the beginning of new administrations, from John F. Kennedy to George W. Bush. Calculations by Calvin Mackenzie, which are often cited in discussions about appointment delays, indicate that the average time from inauguration to confirmation for initial PAS appointments43 grew from 2.38 months at the beginning of John F. Kennedy’s presidency to 8.53 months at the beginning of William J. Clinton’s presidency.44 The findings probably overstate the length of the process as a whole, in that the process is likely to be longer at the beginning of an administration, when the presidential staff is less experienced and many appointees are going through the system at the same time. Aside from statistics concerning appointments at the beginning of a presidency, information on the length of the appointment process has tended to focus on the average amount of time that the Senate takes to act on nominations, probably because this information is more readily available than information on the length of the White House selection and clearance process. One 41   Ibid., p. 23. 42   Empirical studies of the appointment process have tended to focus on the length of the Senate confirmation process, on which data are readily available. 43   Regulatory-commission members, inspectors general, ambassadors, US attorneys, and US marshals, among others, were not included. 44   Twentieth Century Fund Task Force on Presidential Appointments, Obstacle Course: Report of the Twentieth Century Fund Task Force on Presidential Appointments (New York: The Twentieth Century Fund Press, 1996), p. 72.

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments TABLE C-1 Median Number of Days from Enactment of Legislation to Nomination and Confirmation of Top Officials in Five New Departments Department Median days elapsed from enactment to nomination Median days elapsed from nomination to confirmation Median days elapsed from enactment to confirmation Housing and Urban Development (1965) 132 6 140 Transportation (1966) 130 20 163 Energy (1977) 45 37 77 Education (1979) 169 34 203 Veterans Affairs (1988) 295 72 352   SOURCE: Thomas, the Internet-based legislative information system of the Library of Congress, available at [http://thomas.loc.gov/home/nomis.html] and various volumes of the Journal of the Executive Proceedings of the Senate of the United States of America. instance in which it is possible, for a subset of PAS positions, to collect information on the length of the appointment process that includes this first stage is the case of initial appointments to newly created departments. The starting point for filling these new positions can be set at the time the enabling law was enacted, at which point the president knew he had positions to fill. From 1965 to 2000, five departments were created: Housing and Urban Development (1965), Transportation (1966), Energy (1977), Education (1979), and Veterans Affairs (1988).45 Table C-1 shows, for each new department, the median number of days elapsed from 45   In addition, at the time the Department of Education was created, the remainder of the Department of Health, Education, and Welfare became the Department of Health and Human Services. The newest department at this time is the Department of Homeland Security; information about initial appointments to PAS positions in this department are not included here, because the appointments have not been completed, and current averages would not be comparable with those of other departments.

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments enactment of the legislation establishing the department to Senate confirmation of the nominees to its PAS positions. The length of the appointment process during transitions between presidents, particularly those of different political parties, has been of particular concern to observers. As noted above, even under the best of circumstances, the process is likely to develop a bottleneck because of the large number of appointments. One study reported that nominees had been confirmed for only 6 percent of the vacant PAS positions by the end of the first 100 days of the George W. Bush administration.46 Yet the transition period is considered by many to be a critical time in the governance process. A new president has limited time after election to initiate an administrative and legislative agenda. In addition, the president is likely to need top advisers in place to address contemporary security issues. Since the time of the 2001 Clinton-Bush transition, both the Hart-Rudman report and the 9/11 Commission Report have called for improved continuity in national security policy-making during presidential transitions.47 The reports proposed expedited appointment processes for key members of the president’s national-security team. Under the 9/11 Commission Report approach, elements of that process would include Submission, by the president-elect, of names of possible national security position nominees for background checks right after the election; 46   Rogelio Garcia, CRS Report RL31054, Nominations and Confirmations to Policy Positions in the First 100 Days of the George W. Bush, William J. Clinton, and Ronald W. Reagan Administrations (Washington: Congressional Research Service, 2001). 47   The United States Commission on National Security/21st Century, Road Map for National Security: Imperative for Change: The Phase III Report of the US Commission on National Security/21st Century (Washington: 2001), pp. 89-94; US National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission Report (Washington: GPO, 2004), pp. 422-423.

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments Submission, by the incoming President, of “the nominations of the entire new national security team, through the level of under secretary of cabinet departments, not later than January 20”; and The development, by the Senate, of special rules that would require expedited hearings and votes within 30 days of the submissions of these nominations.48 Continuity could also be maintained if the incoming president were willing to retain, during the transition period, some officials from the previous administration. Alternatively, the outgoing president could submit nominations to the Senate in early January for the incoming team, allowing them to be formally considered and confirmed by the Senate before the new president’s inauguration. Either of those options would require voluntary cooperation between the outgoing and incoming administrations. The latter option would also require the Senate’s cooperation. Summary The appointments clause of the Constitution and interpretations of it have provided the general legal framework by which officers of the United States are put into place. Many of the top policy-making positions in the federal bureaucracy are filled through joint action by the president and the Senate, and some have suggested that the process by which this is accomplished is in need of reform. In particular, knowledgeable observers have proposed streamlining financial-disclosure requirements and expediting the confirmation process, particularly during presidential transitions. In addition, some have suggested that present government executive compensation levels may deter well-qualified people from accepting leadership positions in the federal bureaucracy. For the most part, changes in the present arrangements would require legislative action by Congress. 48   The 9/11 Commission Report, p. 422.