The Confirmation Clog

RUNNING THROUGH MOLASSES

On August 1, Peter Burleigh, one of America's most seasoned and effective diplomats, quietly tendered his resignation after 33 years in the U.S. Foreign Service. Burleigh's nomination to be ambassador to the Philippines had been held up for nine months in the Senate. With no prospects for movement through the remainder of the year, Burleigh decided to move on with his life. He had been in limbo not because of questions about his qualifications or actions, but because Senator Charles Grassley (R-Iowa), upset about the State Department's treatment of an American whistle blower at the United Nations, had exercised his senatorial prerogative to hold up Burleigh's nomination and two other ambassadorial appointments indefinitely.

Burleigh was no stranger to delays in appointments. Previously, he had served as the acting U.S. representative to the United Nations for more than a year while the administration's nominee for the post, Richard Holbrooke, was himself the victim of long executive and legislative branch delays. The Burleigh and Holbrooke examples stand out because of the importance and visibility of the positions, but sadly they are not unusual. More and more top executive jobs are sitting unfilled or filled on an acting basis for months or even years. Without significant changes in laws, rules, and norms, the incoming president of the United States faces the prospect of waiting for nearly a year after his inauguration on January 20 for his team to be set in place -- not to mention the headaches any subsequent vacancies will cause.

Forty years ago, when John F. Kennedy became president, cabinet and subcabinet officers were nominated and confirmed expeditiously. On average, the 196 top-level executive positions requiring Senate confirmation were filled less than two and a half months after the presidential inauguration.

Thirty-two years later, when Bill Clinton assumed the presidency, it was a different story. The 786 top-level Clinton nominees requiring Senate confirmation took an average of almost nine months after inauguration to assume their posts -- meaning they missed more than a sixth of the presidential term! Thanks to a president who moved slowly to name top officials, a glacial presidential vetting process, slow FBI background checks for nominees, and a balky Senate confirmation process, securing a top appointed position was like running a marathon in molasses. In some respects, those initial nominees were lucky: many who came later were denied the Senate's predisposition to confirm a new president's people. Nearly all nominees after the first wave were left hanging in the Senate for months after their formal nominations. Many went through the further indignity of anonymous holds by senators, leaving them twisting in the wind for additional months or even years.

The problem went beyond the humiliations suffered by individual appointees. As the United States waited a year for Holbrooke, it faced the war in Kosovo and its aftermath without a permanent representative at the U.N. By the time Mary Schapiro was finally sworn in as head of the Commodities Futures Trading Commission in 1994, the post had been vacant for 21 months, resulting in what Bloomberg Business News called at the time a "hobbled" agency beset by "complaints, indecision, and industry uncertainty." In the Philippines, the delicate negotiations over an American hostage held by Abu Sayyaf rebels have been conducted without an American ambassador to represent U.S. interests.

That the nomination and confirmation process is broken is a truism now widely accepted by both Republicans and Democrats. It is also clear that the problems did not start with Clinton's administration but have been building for at least 30 years. As the figure at left shows, the average time from inauguration to confirmation of initial administration employees has been increasing since J.F.K.'s presidency, jumping particularly during the Bush and the Clinton eras. This trend applies to all executive appointments, not just those made at the beginning of an administration.

The lag in getting people into office seriously impedes good governance. A new president's first year -- clearly the most important year for accomplishments and the most vulnerable to mistakes -- is now routinely impaired by the lack of supporting staff. For executive agencies, leaderless periods mean decisions not made, initiatives not launched, and accountability not upheld.

Moreover, the problems persist into an administration's second year. The average tenure of top government positions is only about 14 months, mostly because of promotions and reassignments, which open up gaps in leadership. The gaps become even greater when a top position becomes vacant midway through an administration. Many major positions now routinely go unfilled for a year or more, and sometimes -- as in the case of the assistant attorney general for civil rights in the Clinton administration -- they are blocked by the Senate for the duration of a presidential term.

The damage to governance is matched by the damage to individual nominees. For many selected to serve at the beginning of an administration, a year or more in limbo is typical. This wait leads to widespread frustration and demoralization for individuals who must give notice to their employers, plan moves across the country, coordinate school schedules for their children, and make home sales and purchases. A survey of 435 senior-level appointees from the Reagan, Bush, and Clinton administrations conducted for the Presidential Appointee Initiative found "a nomination and confirmation process that exacts a heavy toll on nominees, leaving them exhausted, embarrassed, and confused." The frustration, they found, increases at every stage of the process.

JUMPING THROUGH HOOPS

Time, unfortunately, is only one part of a larger problem. Nominees to executive posts must fill out thick stacks of financial disclosure and conflict-of-interest forms to comply with the ethics requirements of both the executive and legislative branches. Simply filling out the forms -- which requires one to list every foreign trip ever made and every foreigner met, every speech given over the past several years, and every investment and income item -- takes weeks of effort and a considerable amount of money. One cabinet officer estimated it cost about $20,000 in legal and accountants' fees to ensure the forms were complete and accurate. Most of the information on the forms goes into public files for any inquisitive neighbor, opposition researcher, or reporter to peruse and even publish.

All nominees requiring Senate confirmation must go through full FBI background checks -- including agent interviews of family members, neighbors, coworkers, friends, and adversaries -- designed to compile every bit of negative information, including rumors and unsupported allegations, into raw FBI files that are then frequently shared with Senate committees and occasionally disclosed to the press. A move from one appointed position to another can require another FBI investigation, starting from scratch.

The full FBI field investigations date from a 1953 executive order. Most of the required forms stem from the Ethics Act of 1978 and subsequent revisions, which were usually responses to new scandals or allegations. But together, these rules and requirements have contributed to a political atmosphere that is unremittingly hostile to nominees. If public service was once considered an honorable calling, these days political appointees are, in the words of one participant, considered "guilty until proven innocent." Joycelyn Elders, who served as surgeon general in the Clinton administration, gave her reaction to the process as she left government: "I felt it was more a mechanism to destroy me than anything else. I came to Washington, D.C., like prime steak, and after being here awhile I feel like poor grade hamburger."

The destructive "mechanism" that Elders described included the scrutiny she received from the press and political adversaries once she took office. For many public officials, the smallest misstep or misfortune of being in the wrong meeting at the wrong time can trigger an investigation, leading to bad publicity and ruinous legal fees. A high-ranking White House aide was overheard saying, "How can I work this way? If I simply go to the wrong meeting my kid's college fund could be gone."

HELP WANTED

This disheartening political atmosphere creates problems in recruitment. People with direct experience and expertise in a policy area are often considered unfit to manage that area because they cannot be trusted to oversee their previous employers or patrons. The Clinton administration, for example, had great difficulty filling key Energy Department positions overseeing the disposal of nuclear waste because most experts in the field came directly or indirectly from the nuclear industry and were thus rejected for their perceived conflicts of interest.

Finding top-flight people to serve in government for brief periods in their professional lives has always been a challenge. It requires individuals either at the peak of their professions or on their way up to leave midstream, uproot their families, learn new jobs and skills, adjust to a system without the bottom-line standards present in business and many professions, absorb political flak, and usually take sizable pay cuts. But in recent years the challenge has transformed into a nearly insurmountable one, especially for posts below the prestige level of the cabinet. It is one thing to face these challenges once one has assumed a position of responsibility. It is quite another to make the leap of faith and then wait for months or years of uncertainty accompanied by poking and prodding into one's personal life and financial records, to see if one can even be considered for the job.

No systematic, quantitative evidence suggests a drastic drop-off in the recruitment of America's best and brightest to top public policy positions. But every available piece of anecdotal evidence suggests that the recruitment problem has mushroomed into a recruitment crisis. Fewer and fewer prominent people in business, industry, or professions such as law, medicine, architecture, or science will even consider positions in the federal government. Fewer students in public policy programs aspire to jobs in Washington. If the sheer number of resumes submitted to presidential candidates or presidents-elect has not declined, the quality of the applicants, according to those who look at them, has. More and more positions fit the pattern of the deputy secretary of defense during the Bush administration, when more than 20 qualified possibilities were contacted before a willing candidate who lacked insurmountable conflicts of interest emerged.

BLOCKAGE POINTS

This crisis in public service and governance has structural, legal, cultural, and political causes. The following is a partial list:

1. A steady expansion in the number of executive appointees -- what Brookings Institution fellow Paul Light calls "the thickening of government" -- has clogged the machinery at every stage of the nomination and confirmation process.

2. Incremental changes in the law and executive orders, each a directed response to an actual or alleged scandal, have accumulated into an unworkable morass of rules intended to legislate morality. At the same time, they cumulatively contribute little to real safeguards of ethical standards, instead bordering on harassment and voyeurism for potential and actual nominees.

3. A more individualistic Senate culture has turned the "hold" from an occasional instrument of modest delay into a lethal weapon used regularly to hold nominees hostage to the whims or unrelated demands of individual senators.

4. The general rise in litigation has found its way into politics; lawsuits and the discovery process have become political tools, used increasingly to embarrass or bankrupt political adversaries.

5. The post-Watergate rise of investigative reporting has increased the media focus on scandal over substance and added to a cultural climate in which public figures are deemed guilty until proven innocent.

CLEARING THE PATH

These dangerous trends in the executive appointment process have been widely noted for more than a decade. In 1989, the National Commission on Public Service chaired by former Federal Reserve Chairman Paul Volcker found that, "if these trends continue, America will soon be left with a government of the mediocre." In 1997 G. Calvin Mackenzie, the leading scholar on the subject, declared "the appointment process had its worst year in its history." Mackenzie goes on to conclude, "The process grows thicker and slower. Vacancies grow longer. Talent grows thinner. Governing becomes more difficult." Still, there has been no serious effort to reform or streamline the appointment process.

The problem will not be easy to solve. The most difficult barrier is a cultural one, as cynicism about public figures has replaced the healthy skepticism that was once a hallmark of American democracy. But culture can be changed, beginning with small but significant steps to reform laws, rules, and norms that signal the society's intention to rethink its ethos. Both Republicans and Democrats now agree that the process is broken and that enough blood has been spilt on both sides of the aisle over the last 20 years. With the election of a new president, perhaps both parties can "call it even" and work to construct a more civil and rational system to staff the senior ranks of government.

First, as several panels have recommended, the president-elect should name his chief of staff and key White House staff as early as possible -- ideally the week after the election. President Clinton has said that not moving on the White House staff early was his biggest regret about his own transition. Why? Naming early the chief of staff and key White House staff gives the transition ballast and focus, eliminates a great deal of useless jockeying, and allows a president-elect to operate as a fully staffed president two months before the inauguration.

Second, the president-elect and congressional leaders need to expressly recognize the crisis in convincing America's best to take up public service. They should meet immediately after the election and instruct their top aides to report within 45 days on specific steps to rationalize and streamline the appointment process. The goal would be to publish an agreement on the appointment process by January 1, 2001. The agreement could include the following steps:

1. Implement a common electronic nominations form. Today, a nominee for a Senate-confirmed position at the State Department must complete three separate background forms for the State Department Diplomatic Security Division, the White House Counsel's office, and the Senate Foreign Relations Committee. The candidate must also complete a financial disclosure form for the Office of Government Ethics. This multiplicity of forms is common to all executive departments. Most of the required information is redundant; much of it is irrelevant. The Transition to Governing Project of the American Enterprise Institute and the Brookings Institution is overseeing the production of software that will allow appointees to enter information only once and have it automatically travel to all the necessary forms. The next president should direct all the appropriate agencies and authorities to accept these computer-produced forms and work together to eliminate unnecessary repetition and unnecessarily intrusive questions.

2. Decriminalize the appointment process. Today, a misstatement on a nominee's financial disclosure form, a violation of a postgovernment employment ban, or any contact with one's prior government agency is subject to criminal investigation and prosecution. This means that even filling out the forms prior to nomination or having dinner with a former colleague after leaving one's agency for private-sector employment are quite literally dangerous activities. Indeed, a lunch in Seoul, South Korea, after he left the State Department for the private sector cost U.N. representative Richard Holbrooke months of investigation. The government admitted that the case involved absolutely no venality. But the Department of Justice's Public Integrity Section believed that the law compelled it to pursue a criminal investigation for what it viewed as a strict liability offense.

Such criminalization is unnecessary and gravely damaging to recruitment efforts. Two steps make sense: first, decriminalize the appointment process by having the Office of Government Ethics enforce the disclosure and postemployment statutes as civil or regulatory matters. Second, repeal by executive order the additional postemployment bans put in place by President Clinton in 1993. These largely unenforceable restrictions go beyond the statutes and provide additional opportunities for mistakes with little gain in ethics.

3. Streamline the FBI background check. Beginning with the Eisenhower administration, most executive appointees have been subject to the FBI's "full field investigation." For national-security posts and other sensitive positions, the investigation makes sense. For most executive positions, it is a Cold War relic and a waste of the FBI's good resources. Surely Washington can move to graduated levels of investigation: full field investigations for national security and other sensitive posts, abbreviated background checks for most appointees, and simple identification checks for part-time and other minor positions. The savings in time and resources would be immense.

Additionally, to ensure timely confirmations, a president-elect should be able to submit a list of potential top appointees to sensitive positions to the FBI just after the election and have their FBI checks begin immediately, even before they have been formally nominated for specific positions.

Finally, the president-elect should ask the director of the FBI for advice on how to streamline the background-check process. The FBI's top officials have a tremendous amount of experience in what has been useful and what has not in this process.

4. Protect FBI files. The FBI usually does not edit or judge the information it gathers in its full field investigations. As a result, FBI files contain both accurate and inaccurate information, both legitimate, well-sourced facts and rank hearsay. Former FBI Director William Webster has noted that these files are "often freighted with hearsay, rumor, innuendo, and unsubstantial allegations." When former National Security Adviser Anthony Lake was nominated as director of central intelligence, Congress demanded that every member of the reviewing committee see the FBI report. John Tower's 1989 nomination to be secretary of defense also saw broad and inappropriate dissemination of FBI report material. Given the damage FBI files can do to a nominee, access should be limited to the chair and the ranking minority member of the relevant committees.

5. Change the "hold" custom in the Senate. A "hold" occurs when any single senator asks that a piece of legislation or a nomination not be brought to the floor of the Senate for an unspecified period of time, even though it has passed out of committee. It is an informal practice, has no time limit, and until recently could be totally secret. This past winter -- after a good deal of admirable effort -- Senators Grassley and Ron Wyden (D-Ore.) persuaded the Senate leadership to agree that a senator who places a hold must tell not only the leadership but also the sponsor of the legislation and the chair of the relevant committee. This was heralded as the end to secret holds.

Not so. When Holbrooke's nomination passed out of the Senate Foreign Relations Committee, chaired by Jesse Helms (R-N.C.), it took another two months to get a Senate vote. It turns out that four senators had put holds -- three of them secret -- on Holbrooke for reasons unrelated to his qualifications for the position. Senators Trent Lott (R-Miss.) and Mitch McConnell (R-Ky.) were seeking to force President Clinton to nominate their candidate for the Federal Election Commission; Senator George Voinovich (R-Ohio) was protesting the Clinton administration's Balkans policy; and Senator Grassley was protesting the State Department's treatment of a whistle blower (whom Holbrooke had never met) at the United Nations. The only one who announced and explained his hold was Grassley.

Holds, mentioned nowhere in Senate rules, are antidemocratic and probably unconstitutional (although not likely subject to judicial review since the courts tend to be deferential to political questions). The Constitution, by requiring a two-thirds Senate vote on executive appointments, reflects the idea that a simple majority is an inadequate check on the executive's power to appoint. Yet the hold subjects nominations to a single senator's veto. The Grassley-Wyden reform should be revisited with an eye toward limiting a hold's duration (to, say, a week, long enough for the legitimate purpose of meeting with or getting additional information on a nominee) or eliminating holds altogether in the case of nominations. At a minimum, the reform should be strengthened to ensure that secret holds are truly not permitted.

6. Enact other Senate procedural reforms. The Constitution's provision for senatorial approval of nominees suggests that a president should be permitted to choose his team, that the team should be subject to the political process, and that the president should be held ultimately accountable to the nation for the team's performance. Three Senate procedural reforms (all of which were proposed by a 1996 Twentieth-Century Fund task force) could reaffirm these principles and aid in recruitment. First, an executive nomination should be scheduled for a floor vote within 20 legislative days after the nomination has been voted out of committee. If a senator has problems with a nomination, he or she can vote against the nomination -- or even filibuster -- and let the Senate as a whole make its judgment. Second, committees should use their authority to waive hearings on lower-level positions. The Twentieth-Century Fund report recommended that a hearing be waived if no member of a Senate committee demands one. Third, the Senate should take former President Bush's 1991 suggestion that the Senate meet in executive session to review a candidate's personal or other sensitive matters. This allows the Senate to do its job while respecting the privacy of nominees.

7. Start with national security. Following tradition, the foreign relations, armed services, and intelligence committees should hold pre-Inauguration Day hearings on the nominees for the secretaries of state and defense; on Inauguration Day they should vote on them. Furthermore, the president should present to the relevant committees by Inauguration Day the nominations for the top ten positions in the Departments of State and Defense, and for the top three positions at the CIA. The leaders of those committees should agree to move those slates of nominees to full Senate votes within 30 days after Inauguration Day, barring a specific problem with a specific nominee. This would allow the president to have a national security team in place by March 1 -- and would promise a rational, efficient process to prospective nominees for those positions.

8. Reduce the number of political appointees. Currently the executive branch appoints more than 3,000 political positions, roughly a third of which require Senate confirmation. Senators John McCain (R-Ariz.) and Russell Feingold (D-Wisc.) have sponsored a bill to reduce that number to 2,000, as recommended by the Volcker Commission. Most scholars of public administration believe that this streamlining would actually promote more accountable management by political appointees. It would also make the remaining political appointments more prestigious and desirable and would unclog the nomination and confirmation process for them.

9. Stop the legal assault on the executive branch. The executive branch is constantly under legal assault -- a major deterrent to public service. Very few of Clinton's aides have avoided retaining a lawyer and appearing before a grand jury or other legal processes. Congress made a step in the right direction last year when it let the independent counsel law expire; that law should be buried for good. Other steps should also be taken. First among them, Congress should repeal Clinton v. Jones, in which the Supreme Court held that Paula Jones could bring her civil action for sexual harassment against the president while he was in office. The opinion would be rather quaint, with its citations of ancient presidential memoirs, if not for the carnage it has caused over the last few years and the carnage it promises for future presidents. Stunningly oblivious to the age of modern media, the Court claimed that the case, "if properly managed by the District Court," would be "highly unlikely to occupy any substantial amount of [Clinton's] time."

So much for Supreme Court sagacity. On the eve of the Jones trial, which was thrown out by the district court judge, The Washington Post's Howard Kurtz reported that nearly "seven hundred journalists had signed up to chronicle the trial in Little Rock." Of course, the Jones case and its consequences occupied a very substantial amount of the president's time -- as well as that of the nation.

But the Court was not entirely oblivious; at least it asked Congress to review its decision. Congress should accept the Court's invitation -- and soon -- because civil litigation against the president will surely be used again as a political tactic.

These steps will not solve everything. The media's skepticism about government and its obsession with scandal will persist no matter what changes are made in ethics laws or otherwise. A top federal manager's salary is now barely more than half that of a first-year associate at a major law firm. This "wage gap" is likely to widen before it narrows, and candidates for public service simply have to resign themselves to serious financial sacrifice.

But Washington can convert cynicism back to skepticism and remove some of the unnecessary obstacles, annoyances, and harassments from the executive appointment process. These changes should be embraced before the 2000 election and enacted as soon as possible after the election. Governing in the twenty-first century will be difficult enough without the handicap the American political system has placed on its public managers.