[House Hearing, 106 Congress]
[From the U.S. Government Printing Office]




                               before the

                      INFORMATION, AND TECHNOLOGY

                                 of the

                              COMMITTEE ON
                           GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED SIXTH CONGRESS

                             SECOND SESSION


                            DECEMBER 4, 2000


                           Serial No. 106-279


       Printed for the use of the Committee on Government Reform

  Available via the World Wide Web: http://www.gpo.gov/congress/house


75-062 PDF                  WASHINGTON : 2001

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                     DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York         HENRY A. WAXMAN, California
CONSTANCE A. MORELLA, Maryland       TOM LANTOS, California
CHRISTOPHER SHAYS, Connecticut       ROBERT E. WISE, Jr., West Virginia
JOHN M. McHUGH, New York             EDOLPHUS TOWNS, New York
STEPHEN HORN, California             PAUL E. KANJORSKI, Pennsylvania
JOHN L. MICA, Florida                PATSY T. MINK, Hawaii
THOMAS M. DAVIS, Virginia            CAROLYN B. MALONEY, New York
DAVID M. McINTOSH, Indiana           ELEANOR HOLMES NORTON, Washington, 
MARK E. SOUDER, Indiana                  DC
JOE SCARBOROUGH, Florida             CHAKA FATTAH, Pennsylvania
    Carolina                         ROD R. BLAGOJEVICH, Illinois
BOB BARR, Georgia                    DANNY K. DAVIS, Illinois
DAN MILLER, Florida                  JOHN F. TIERNEY, Massachusetts
ASA HUTCHINSON, Arkansas             JIM TURNER, Texas
LEE TERRY, Nebraska                  THOMAS H. ALLEN, Maine
JUDY BIGGERT, Illinois               HAROLD E. FORD, Jr., Tennessee
GREG WALDEN, Oregon                  JANICE D. SCHAKOWSKY, Illinois
DOUG OSE, California                             ------
PAUL RYAN, Wisconsin                 BERNARD SANDERS, Vermont 
HELEN CHENOWETH-HAGE, Idaho              (Independent)

                      Kevin Binger, Staff Director
                 Daniel R. Moll, Deputy Staff Director
                     James C. Wilson, Chief Counsel
                     Robert A. Briggs, Chief Clerk
                 Phil Schiliro, Minority Staff Director

   Subcommittee on Government Management, Information, and Technology

                   STEPHEN HORN, California, Chairman
JUDY BIGGERT, Illinois               JIM TURNER, Texas
THOMAS M. DAVIS, Virginia            PAUL E. KANJORSKI, Pennsylvania
GREG WALDEN, Oregon                  MAJOR R. OWENS, New York
DOUG OSE, California                 PATSY T. MINK, Hawaii
PAUL RYAN, Wisconsin                 CAROLYN B. MALONEY, New York

                               Ex Officio

DAN BURTON, Indiana                  HENRY A. WAXMAN, California
          J. Russell George, Staff Director and Chief Counsel
                 Earl Pierce, Professional Staff Member
                         Elizabeth Seong, Clerk
                    Trey Henderson, Minority Counsel

                            C O N T E N T S

Hearing held on December 4, 2000.................................     1
Statement of:
    Barram, David, Administrator, General Services 
      Administration; Sally Katzen, Deputy Director for 
      Management, Office of Management and Budget; Stuart Gerson, 
      esquire, partner, Epstein Becker & Green, PC; Paul Light, 
      director, Center for Public Service, Brookings Institution; 
      Jonathan Turley, Shapiro professor of public interest law, 
      George Washington University School of Law; Todd Zywicki, 
      associate professor of law, George Mason University School 
      of Law; Norman J. Ornstein, resident scholar, American 
      Enterprise Institute for Policy Research; and Dwight Ink, 
      president emeritus, Institute of Public Administration, 
      former Assistant Director for Executive Management, Office 
      of Management and Budget...................................    68
    Watson, Jack H., Jr., chief legal strategist, Monsanto Co., 
      former chief of staff for President Carter, and director of 
      President Carter's Transition Teams; John H. Sununu, 
      president, JHS Associates, Ltd., former Governor of New 
      Hampshire, and chief of staff for President Bush; Hon. Mark 
      Gearan, president, Hobart and William Smith Colleges, 
      former deputy chief of staff and communications director 
      for President Clinton; Bradley H. Patterson, Jr., senior 
      fellow, National Academy of Public Administration, former 
      advisor to President Eisenhower's Presidential Transition, 
      and staff member, Nixon and Ford administrations; and Harry 
      McPherson, partner, Verner Liipfert Bernhard McPherson & 
      Hand, former counsel to President Johnson..................    19
Letters, statements, etc., submitted for the record by:
    Barram, David, Administrator, General Services 
      Administration, prepared statement of......................    71
    Biggert, Hon. Judy, a Representative in Congress from the 
      State of Illinois, prepared statement of...................    11
    Gerson, Stuart, esquire, partner, Epstein Becker & Green, PC, 
      prepared statement of......................................    95
    Horn, Stephen, a Representative in Congress from the State of 
        Memo dated November 23, 2000.............................    82
        Prepared statement of....................................     3
    Katzen, Sally, Deputy Director for Management, Office of 
      Management and Budget, prepared statement of...............    79
    Light, Paul, director, Center for Public Service, Brookings 
      Institution, prepared statement of.........................   104
    Patterson, Bradley H., Jr., senior fellow, National Academy 
      of Public Administration, former advisor to President 
      Eisenhower's Presidential Transition, and staff member, 
      Nixon and Ford administrations, prepared statement of......    30
    Turley, Jonathan, Shapiro professor of public interest law, 
      George Washington University School of Law, prepared 
      statement of...............................................   115
    Turner, Hon. Jim, a Representative in Congress from the State 
      of Texas, prepared statement of............................     7
    Waxman, Hon. Henry A., a Representative in Congress from the 
      State of California, prepared statement of.................    15
    Zywicki, Todd, associate professor of law, George Mason 
      University School of Law, prepared statement of............   136



                        MONDAY, DECEMBER 4, 2000

                  House of Representatives,
Subcommittee on Government Management, Information, 
                                    and Technology,
                            Committee on Government Reform,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10 a.m., in 
room 2154, Rayburn House Office Building, Hon. Stephen Horn 
(chairman of the subcommittee) presiding.
    Present: Representatives Horn, Biggert, Davis, Ose, Turner, 
Kanjorski, and Waxman (ex officio).
    Staff present: J. Russell George, staff director and chief 
counsel; Randy Kaplan, counsel; Bonnie Heald, director of 
communications; Earl Pierce, professional staff member; 
Elizabeth Seong and James DeChene, clerks; Rachael Reddick, 
intern; Phil Barnett, minority chief counsel; Kristin Amerling, 
minority deputy chief counsel; Trey Henderson, minority 
counsel; and Jean Gosa, minority clerk.
    Mr. Horn. A quorum being present, the hearing of the 
Subcommittee on Government Management, Information, and 
Technology will come to order.
    These are extraordinary times in American history. That 
there is a need for this hearing is equally extraordinary, and 
disturbing. On October 12 of this year, the President signed 
into law the Presidential Transition Act of 2000, which I 
happened to have introduced in the House. Regardless of which 
candidate would be the next President, the 106th Congress 
wanted to give him greater assistance in assuming the highest 
office in the land. No one, however, anticipated the closeness 
of this race for the Presidency or the unsettling events that 
have followed.
    The Presidential Transition Act as amended authorizes 
funding for the General Services Administration to provide 
suitable office space, staff compensation and other costs 
associated with the transition process. The act also calls for 
the Administrator of the General Services Administration to 
ascertain the, quote, apparent successful candidates for the 
office of President and Vice President. The Administrator, of 
course, does not determine the winners. That responsibility, as 
set in the Constitution, clearly belongs to the electoral 
college and, failing that, Congress.
    Obviously, the Presidential transition period must begin 
well before Congress meets to tally the electoral college votes 
in January. The brief transition period from the day after 
election to the day of Inauguration is the time in which an 
incoming President makes crucial administrative decisions. That 
time is running out for the next administration.
    Indeed, the 88th Congress clearly recognized the importance 
of the transition period by stating in the 1963 law 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.'' Yet today, nearly 4 
weeks after the Presidential election, the Administrator says 
he is still unable to ascertain a winner, and thus is not 
providing the appropriate assistance required by the 
Presidential Transition Act.
    We've called this hearing to examine whether the 
Presidential Transition Act provides sufficient guidance to the 
Administrator on how to proceed when an election such as this 
is disputed. Clearly the law allows the Administrator certain 
discretion in complying with its provisions. It is imperative, 
however, that those charged with implementing this law most 
carefully consider the implications of their decisions and the 
precedents they establish. Our ultimate concern is to ensure 
the strength and continuity of the U.S. Government, most 
especially in extraordinary times such as these.
    We have assembled a distinguished panel of witnesses today. 
I welcome all of you and look forward to your testimony. We 
will now have opening statements limited to 5 minutes at the 
most, and I start with the ranking member, the gentleman from 
Texas, Mr. Turner, 5 minutes for an opening statement.
    [The prepared statement of Hon. Stephen Horn follows:]
    [GRAPHIC] [TIFF OMITTED] T5062.001
    [GRAPHIC] [TIFF OMITTED] T5062.002
    Mr. Turner. Thank you, Mr. Chairman.
    I think it is clear to all of us that the orderly 
transition from one Presidential administration to another is a 
matter of utmost importance to the country. In order to 
facilitate this transition, Congress passed the Presidential 
Transition Act of 1963, which provides funding and guidance in 
order to promote the orderly transfer of power from one 
administration to the next.
    Prior to 1963, there was no formal provision to assist in 
the transition period. Under the act, the General Services 
Administration shall provide fully equipped headquarters and a 
variety of services for the President-elect's transition and 
Inaugural teams.
    The act calls for the Administrator of the GSA to release 
Federal funds for transition once he or she has, in the words 
of the act, ascertained the apparent successful candidate. We 
know that the unique ongoing circumstances of the Presidential 
election of 2000 are unprecedented for purposes of the act. 
Additionally, there is no precedent, nor does the statute 
provide guidance for the Administrator in ascertaining the 
apparent successful candidate. The legislative history derived 
from the discussion of the original act on the floor of the 
House in 1963 provides perhaps our best evidence of the intent 
of the Congress.
    Mr. Fascell of Florida, the then manager of the bill, in 
response to questions regarding how the Administrator of GSA 
would ascertain the apparent successful candidate in a 
situation where the election outcome is in question, stated, 
``. . . if the Administrator had any question in 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 
    We know that the outcome of this election remains in doubt 
due to the fact that both campaigns have brought forth legal 
cases that are pending in both State and Federal courts. I 
fully appreciate the need for our next President-elect to begin 
a comprehensive transition to ensure that government operations 
continue running smoothly, yet we should not allow haste to 
distort our view or our implementation of the Presidential 
Transition Act. If the Administrator of the GSA were to 
incorrectly release funds to one campaign under the act, aside 
from breaking the law, it could result in a loss of public 
funds, waste, duplication, diminished credibility for the 
winner and a breach of proprietary information.
    I am pleased to learn that the Administrator of GSA has in 
the interim, during this period of uncertainty, attempted to 
work with both campaigns to shorten the turnover time once a 
winner has been finally determined, and I commend the 
Administrator for their efforts in these difficult 
    I think our hearing today provides us with a unique 
opportunity to review the law governing Presidential 
transitions. If there is one lesson that we can learn from the 
100 million votes cast almost 4 weeks ago, it is that our two 
parties have a mandate to work together. I sincerely hope that 
today's hearing can be an opportunity for us to set an example 
of bipartisan cooperation that will be most certainly needed in 
the next Congress as a result of the closeness of this 
Presidential contest. Our ability to govern in the interest of 
the American people will depend upon our success in this 
    Thank you, Mr. Chairman, and I look forward to hearing from 
all of the distinguished witnesses that we have here today.
    Mr. Horn. Well I thank the gentleman. He is a good example 
of the bipartisan cooperation that we've had on this committee 
for the last 6 years.
    [The prepared statement of Hon. Jim Turner follows:]
    [GRAPHIC] [TIFF OMITTED] T5062.003
    [GRAPHIC] [TIFF OMITTED] T5062.004
    Mr. Horn. I now yield to the vice chairman of the 
subcommittee Mrs. Biggert, the distinguished lady from 
    Mrs. Biggert. Good morning, Mr. Chairman and members of the 
subcommittee. I want to thank you, Mr. Chairman, for calling 
this oversight hearing on the Presidential Transition Act of 
1963. Given the unique and unprecedented situation in which our 
country finds itself today during this Presidential election 
year, this hearing is not only timely, but it is warranted and 
    Almost a month has passed since men and women across this 
great Nation and overseas cast their ballots for the candidate 
they hoped the next day would be President-elect. Well, here we 
are today, and still the keys to the transition offices and the 
funding that goes along with them have not been turned over to 
the successful candidate. It is not because there has been no 
successful candidate. It is because that candidate's success is 
being disputed, contested and litigated by the unsuccessful 
candidate. So as the litigation marches on in these few days 
remaining before the electors are seated and the final 
deposition made, I think the question we must ask is how can we 
    Not more than 2 months ago, we on the subcommittee hailed 
passage of the Presidential Transition Act of 2000. We asserted 
that our bill would make it easier for the next administration 
to assume office, but what happened? We did pass a good bill, 
but good bills, like good intentions, aren't always enough. 
What this subcommittee did not foresee was that this year's 
tight election could make this moot, at least as they applied 
to this election cycle. What we also did not take into account 
is how easily politics and political considerations can 
overtake common sense and the common good.
    It is no secret that the success or failure of a new 
administration, at least for the first year of governing, often 
depends on how well the transition process is carried out. As 
some of our witnesses today have seen firsthand, it takes time, 
and in some instances a lot of time, to put the thousands of 
people, policies and procedures into place for successful 
    Four weeks have come and gone, and January 20, 2001, is 
less than 8 weeks away. One-third of the precious time 
allocated for the transition has expired, and yet no individual 
has been afforded the assistance provided for by the 
Presidential Transition Act. This assistance is needed, as the 
1963 act stated, to promote the orderly transfer of executive 
    Is this the fault of General Services Administration, the 
agency responsible for helping new administrations get up to 
speed? Is the GSA playing favorites or showing partisanship by 
not allowing the Bush-Cheney team to access the office space 
and systems that have been set up for transition purposes?
    The GSA will state that it was unable to release the 
funding because the election is too close. Well, just because 
the election is close does not mean that GSA should abdicate 
its responsibility. The law gives GSA the authority to grant 
funds to the apparent winner. The law does not prevent the GSA 
from using a little common sense and making funds available to 
the likely winner. But because GSA has refused to grant funds 
to the apparent winner, the Bush-Cheney team is compelled to 
raise funds for its own transition efforts.
    Ironically Governor Bush now finds himself in the same 
position as did all other Presidents-elect prior to the passage 
of the 1963 act. He must finance his own transition in order to 
be prepared to take office on January 20. I commend him and 
Secretary Cheney for taking this action, for, after all, they 
are the ones ultimately responsible for putting a good team and 
good policies in by January 20.
    So what does this situation call for? At least for this 
subcommittee it calls for us to write and pass legislation to 
remedy the alleged defects in the Presidential Transition Act 
by making crystal clear what steps the GSA must take if we 
again find ourselves in a situation similar to this. That would 
only be good for the country.
    Again, Mr. Chairman, I commend you for calling this 
hearing. I look forward to the hearing from our witnesses and 
thank them for joining us today. Thank you.
    Mr. Horn. I thank the gentlewoman. Thank you very much.
    [The prepared statement of Hon. Judy Biggert follows:]
    [GRAPHIC] [TIFF OMITTED] T5062.005
    [GRAPHIC] [TIFF OMITTED] T5062.006
    Mr. Horn. And now we're privileged to have the ranking 
member of the full committee, the gentleman from California, 
Mr. Waxman, 5 minutes.
    Mr. Waxman. Thank you very much, Mr. Chairman.
    We are certainly facing an interesting situation that I 
don't think anybody quite envisioned, and that is that we 
really after all this time, I think it's 27 days since the 
Presidential election, we're not clear who the next President 
of the United States will be. And evidently GSA is not certain 
about that result either, so they haven't released the funds 
for the transition period.
    Now, the main legal issue under examination in this hearing 
is the intent of the Presidential Transition Act and its 
appropriate application in the unusual circumstances we're 
facing. Now, the act requires release of funds to support the 
transition efforts of the apparent successful candidate as 
ascertained by the General Services Administrator. And the 
application of the act during close elections was discussed 
when this bill was on the floor. My colleague Mr. Turner quoted 
from then Congressman Dante Fascell, who was one of the authors 
of this bill, and he said, if they don't know who the winner 
is, then the Administrator shouldn't make any designation.
    Well, I don't know whether we ought to say in the future 
the Administrator ought to make some determination tentatively 
and release funds. That raises a lot of different questions, 
and I think we ought to examine some of those questions. For 
example, should the Presidential Transition Act consider the 
implications of having the executive branch announce a judgment 
regarding the election outcome while the judicial branch is 
still in the process of considering significant questions 
relating to the outcome? I would think we would want to strive 
to minimize, not exacerbate, conflicts between the executive 
and the legislative branches of government. In addition, we 
should take a thorough look at the practical consequences both 
of delaying the funding of transition efforts and the funding 
of transition efforts that may have to stop if the other 
candidate is ultimately declared the winner.
    Would the delay of several weeks in GSA funding have a 
critical impact on the effective operations of a new 
administration? That's an important question. Would it be cost-
efficient to expend significant taxpayers' dollars on getting a 
transition office up and running and conducting training and 
orientation for one candidate if the other candidate is later 
determined to be the winner and then requires the same 
transition resources? Would it be appropriate to move forward 
with briefings of transition officials that involve proprietary 
information or otherwise sensitive government information when 
we're not certain that these individuals will end up governing? 
So maybe we want to look at alternative steps.
    The point is we're in a very unusual situation right now. 
We don't know at this point who the next President will be. 
Now, my colleague from Illinois presented her opening 
statements as if we know; we know it's already Bush/Cheney, and 
therefore they ought to have the funds released to the Bush/
Cheney transition. Well, maybe if you keep saying that, it will 
turn out to be true, but the decision as to who the President 
of the United States is going to be is not based on how many 
times you say it's resolved when we still have many courts 
trying to sort through these issues.
    I know there clearly is a strategy on the Republican side 
to keep on with the mantra, well, we've won, therefore let's 
don't count the votes; we won, therefore let's don't go into 
the courts; we've won, give us the transition money. That seems 
to me maybe good public relations to try to change public 
attitudes about the idea that we ought to ultimately decide who 
really won, but I don't think it makes good policy sense when 
we're trying to adopt changes to legislation or evaluate the 
laws that are on the books. The law says that there has to be 
an apparent winner, and we leave that up to the GSA.
    All of us want this resolved as quickly as possible. We 
know it is important to have the transition funding. But let's 
make sure we deal with the real substantive issues as to how 
the law should work in unusual circumstances such as this and 
not use a hearing or this strange situation we're in simply to 
repeat the mantra that we won, so don't talk about anything 
else, give us the funds. That's not really the way to make 
decisions for these very important issues that are going to be 
before us in the future, and I doubt that we will ever have a 
Presidential election as we have today, leaving things as 
uncertain as they are. If we do, then we ought to think through 
the best way to deal with it, and if the law needs to be 
changed, we should change it.
    Thank you very much, Mr. Chairman.
    Mr. Horn. Thank you.
    [The prepared statement of Hon. Henry A. Waxman follows:]
    [GRAPHIC] [TIFF OMITTED] T5062.007
    [GRAPHIC] [TIFF OMITTED] T5062.008
    [GRAPHIC] [TIFF OMITTED] T5062.009
    Mr. Horn. I now yield to the gentleman from California Mr. 
    Mr. Ose. Thank you, Mr. Chairman. I am reminded yesterday 
morning when my daughters opted to argue with each other that 
at the end of the day what we need is a President who both he 
and his team has had a proper amount of briefing and training 
and education. And I am chuckling here somewhat because I ended 
up dealing with my daughters by asking them, well, today what 
are you? And they both scratched their head, and they finally 
came up with, well, we're sisters. And I said, well, on Friday 
what are you going to be? And they both scratched their heads, 
and they both simultaneously said, well, we're still going to 
be sisters.
    Well, at the end of this entire process, we're all still 
going to be Americans, and it would seem to me that the country 
is best served, as Mr. Waxman and as Mr. Horn suggested, by 
moving this thing forward as expeditiously as possible. I don't 
understand why under such unique circumstances we can't take 
members of both campaign teams and start the transition 
process. I mean, it's not like we're going to spend all $5.3 
million the first day.
    So I am looking for answers as to how we prepare whoever is 
going to lead this country for the 4 years that they'll be in 
office for. At the end of the day, it's like my daughters. At 
the end of the week, they're still sisters. They'll be sisters 
forever. At the end of the day, we're all still Americans. We 
still have to make this work. So how do we do that? That's why 
I came today, Mr. Chairman, and I appreciate the opportunity.
    Mr. Horn. I thank the gentleman.
    Now I yield 5 minutes to the gentleman from Pennsylvania 
Mr. Kanjorski.
    Mr. Kanjorski. Thank you very much, Mr. Chairman.
    I tend to agree with Mr. Waxman that we should shy away 
from attempting to indicate our preferences for who may win 
this very close election with the hope that it will have some 
influence on the final result. I am just wondering whether or 
not we are not spending a lot of time worrying about how often 
a half dollar flipped will land on its edge, and we can go 
through an awful lot of preparation here. It seems to me if we 
have time to go through preparation here, we have time to go 
through real reform of government rather than trying to see 
what we can do after the fact of a close election and 
transition. I am sure if I have any insight as to how the 
Congress functions, nothing we do at this committee, nothing we 
formulate now will ever get done in time to affect the incoming 
administration, and that, in fact, maybe everything that we're 
doing here has to do with affecting the final result. I hope 
that's not the case, but I have a feeling that is what it is.
    I just urge my colleagues to do what a lot of wise people 
in the last several weeks have recommended: Let's step back, 
take a breath and let the system go on, resolve this problem 
and not try to cause a hysteria either in the country or in the 
Congress or certainly for the next administration.
    One thing I have to say about both candidates is they have 
staff and advisors around them that are eminently qualified to 
start the transition process. The fact that they may not have 
rented facilities or some rented computers will not in any way 
slow down the processes of the formulation of their government. 
It will not impact negatively on their service as the President 
of the United States. If anything it will impact, it's more our 
hysteria and our failure to respond properly, act as a Congress 
and in a bipartisan way.
    Thank you, Mr. Chairman.
    Mr. Horn. I thank the gentleman.
    I see no other Members for an opening statement. I now will 
call forward panel one of the witnesses. We have 13 witnesses 
before us this morning. The first is the Honorable John H. 
Sununu, Jack Watson, Mark Gearan, Bradley Patterson and Harry 
    There are cards here, gentleman, and we'll swear you all in 
at once. Mr. Watson, Mr. Gearan, Mr. Patterson.
    [Witnesses sworn.]
    Mr. Horn. Please be seated.
    Mr. Sununu will be here shortly. Let me just say how we 
operate. Some of you have prepared statements, and a number of 
you don't have prepared statements because of the last minute 
that we asked you, and we are very grateful to you. This bit of 
individual talent, some of whom I have known over the years, 
starting way back in the Eisenhower administration of which I 
was a part, and probably to somebody listening, they're saying, 
gee, did he say the Lincoln administration? But we have a lot 
of talent here, and we're delighted to tap your brains.
    So we are going to start with Mr. Watson, the chief legal 
strategist for Monsanto Co., former chief of staff for 
President Carter, and director of President Carter's transition 
teams. Thanks for coming.


    Mr. Watson. Thank you Mr. Chairman, distinguished members 
of the subcommittee and the committee, for the opportunity to 
be here today and to comment briefly on the subject of 
Presidential transitions, and specifically on the circumstances 
and challenges that are presented by the current transition.
    There is no question in anyone's mind about the importance 
of the transition in getting a new administration off to a 
strong and effective beginning. Under the best of 
circumstances, it is a formidable challenge for the incoming 
President and Vice President to do in approximately only 10 
weeks all those things they need to do in order to assume 
office on January 20 with a ``running start.'' The whole 
purpose and intent of the Presidential Transition Act of 1963, 
as amended in 1976 and 1988, and of the Presidential Transition 
Act of 2000, are to assist the incoming and outgoing Presidents 
and Vice Presidents in achieving as smooth and seamless 
transition of power as possible from one administration to 
    Although the circumstances of the current Presidential 
election have unquestionably created an extremely trying and 
difficult situation for Governor Bush and Secretary Cheney on 
the one hand, and Vice President Gore and Senator Lieberman on 
the other, there is, in my opinion, no constitutional, 
Presidential, governmental or other crisis here. There is quite 
simply an incredibly close Presidential election, the outcome 
of which needs to be, and, I submit, will be, resolved as 
fairly and expeditiously as possible in the coming days.
    Both Presidential candidates have turned to the courts for 
help in addressing the current situation, as both have a 
perfect legal right to do, and the State and Federal courts 
are, as we sit here this morning, addressing those requests and 
reviewing the parties' respective positions. The courts fully 
understand the importance of the issues presented, as well as 
the incredibly high stakes involved, and, I am personally 
confident, are trying to do everything within their 
constitutional responsibility and authority to resolve the 
issues in a legal, just, and expeditious way.
    The courts have an important role to play here, and they 
are playing it. Once they decide the issues to be decided, the 
outcome of the election will be determined, once and for all, 
and the duly elected President-elect and Vice President-elect 
and, thankfully, the country itself will go on about the 
Nation's business.
    As unusual and exasperating as the current situation is, we 
should take care not to overreact to it. The sky is not 
falling, and we shouldn't act as though it is. We should be 
calm, have confidence in our judicial system's ability to deal 
with the current situation--if not in our rather outmoded and 
outdated voting machines--and let the system run its proper 
course as the Constitution intends it to do.
    Having said that, Mr. Chairman, there is something very 
important and very significant that we can do to address 
another serious problem related, not only to the Presidential 
transitions, but to the proper functioning of the Presidency 
itself. The problem is that we have a nomination and 
confirmation process that is broken and needs fixing. The 
appointments process in the Federal Government takes far too 
long, and the lags in getting people into office are taking a 
terrible toll on good governance. The gathering of seemingly 
endless, questionably relevant, but legally required background 
information and the filling out of redundant forms takes too 
long; the FBI field investigations take too long and, in many 
cases, are of questionable value to begin with; and the Senate 
confirmation process itself also takes too long. This is a 
problem, as all of you well understand, that will not easily be 
solved and which can only be addressed, much less fixed, by a 
genuinely determined and broad-based bipartisan effort.
    Groups as varied as the 1989 National Commission on Public 
Service, chaired by former Federal Reserve Chairman Paul 
Volker, the 1996 20th Century Fund Task Force on Senate 
Reforms, and the Transition to Governing Project of the 
American Enterprise Institute and the Brookings Institution 
have all recommended much needed reforms in this area that 
deserve careful review and considered action by the Congress 
and the executive branch. I respectfully submit, the sooner, 
the better.
    For the sake of the country, we need to put partisanship 
aside and institute reforms regarding the Presidential 
appointment process that will permit our Presidents, 
irrespective of their party affiliation, to form their 
administrations and exercise their leadership without undue 
delays and unreasonable impediments.
    Although time does not permit a fuller discussion of this 
crucially important matter, I strongly commend to the 
committee's attention an excellent article on the subject which 
appeared in the November/December 2000 issue of Foreign Affairs 
Magazine. The article was written by Norman Ornstein, one of 
the witnesses you will hear from, I believe, this morning, and 
Tom Donilon. The article not only concisely discusses the 
nature and extent of the problem, but outlines several specific 
recommendations for change.
    Thank you, Mr. Chairman. I will be happy to take questions 
at the appropriate time if the subcommittee wishes.
    Mr. Horn. Well, I thank the gentleman.
    And I see that Mr. Sununu has arrived. If you will stand 
and take the oath, we will swear you in.
    [Witness sworn.]
    Mr. Horn. The clerk will note that all witnesses have now 
taken the oath, and we were going to start with Mr. Sununu, so 
here he is.
    Mr. Sununu. I apologize, Mr. Chairman. I hope that you had 
been informed that I was going to be arriving at that hour.
    Mr. Horn. We were.
    Mr. Sununu. And I thank you for your indulgence.
    I will try to be very brief, but I want to emphasize a 
couple of points. With all due respect to what I did hear of 
Jack Watson's testimony, the issue is not whether it is a 
crisis or not a crisis. The issue is whether it is good not to 
facilitate transition or not good not to facilitate transition, 
or more specifically whether it is right or wrong to not take 
advantage of tools that have been put into place very wisely by 
legislative bodies, the Congress, and the executive branch in 
the past having gone through the pain and difficulty of the 
reality of a transition process.
    Most of the needs are relatively mundane. There are needs 
for space, there are needs for phone, there are needs for 
communication, there are needs for travel, there are needs for 
staff. But they come in a concentrated time--in a concentrated 
way at a time when there is a premium on that commodity of 
    It is so important to permit a new administration to get 
started correctly, and I suggest that whatever we do under the 
breadth and capacity of existing law, we find a way to fund 
that process as soon as possible. It is not just a matter of a 
1-month delay. There is no time that will be as precious for 
transition to any new administration as these days and weeks. 
It is, in fact, the only time where they can focus on 
presentation rather than focus on fulfilling responsibilities 
of office. A 1-month delay now will be reflected in a 6-month 
to 1-year delay in getting things really started.
    I'm doing this by memory because I did not have time to 
research the exact number, but my recollection is there were 
40,000 to 60,000 resumes that arrived at the transition office 
within the first 2 weeks of opening the Bush transition office 
following President Reagan's service, and that was in a 
transition of like party where, sadly to say, most of the 
people who are already in office as Republicans, had been 
appointed as Republicans, thought they were going to be 
reappointed. And I would suggest to you that the hardest 
transition is a like-party transition, not a different-party 
transition, because the hardest thing to do is to do the 
preparation to get people out, not to get people in. They are 
both challenging, they are both demanding, and they are both a 
very important part of the time that is in front of us.
    Having said that, I want to emphasize that the impact of 
delay is not linear. A 1-day delay is probably equivalent--now 
is equivalent to 6 to 10 days of delay after Inauguration.
    I am not a part of the current transition. I do not expect 
ever to be asked to be a part of the current transition. I have 
not offered my services--I have received about two dozen 
resumes, unsolicited, of people who want me to somehow impact 
the appointment process.
    I will reiterate what Jack Watson has said about reform of 
the process of appointment and confirmation. It is one of the 
most critical things we can do to make government work better, 
and it is part of this transition process. One of the most 
disappointing things to me as one who had a responsibility 
during the transition and as one who had a responsibility 
serving as Chief of Staff to President Bush in trying to 
continue the efforts of the transition in the early days and 
then fill in voids as they occurred is the reluctance, in fact, 
sometimes clear unwillingness, of individuals to go through the 
pain of the vetting process, not because they have anything to 
hide, not because they're uncomfortable with revealing data, 
but because of the cumbersome nature of the process and, 
frankly, in some cases the unbelievable cost.
    It is not unusual for a major potential appointee to spend 
between $10,000-$60,000 on legal and accounting fees in 
preparing the forms to be named to a senior position in the 
Federal Government. That is ridiculous. It makes that position 
in some cases unable to be attained by people who are not of 
significant means. The process of the forms, the process of the 
field investigation, and, frankly, the long delay between 
appointment and confirmation is a discouraging factor to the 
best and the brightest and those that we should have in 
government. And so if there is any dividend that you might 
achieve out of this set of hearings which are focusing on the 
needs of transition, may I suggest, Mr. Chairman, that it would 
be extremely worthwhile to the country if you could somehow 
make a very pointed comment and recommendation in that 
    Having said that, I would recommend that whatever you do, 
you find a way to encourage the allocation of some of the 
existing funds, even if it has to be done initially in a 
somewhat divided way, to get the two candidates who are still 
in somewhat doubt as to which one has been selected, to get the 
two of them started in an effective way. To force them to rely 
on private funds is exactly the wrong thing to do, and the 
history of the legislation that wisely provided the structure 
and funding will tell you very clearly how much people 
understood the value of the legislation that was eventually 
    Mr. Chairman, I thank you for the opportunity to 
participate this morning.
    Mr. Horn. Both you and Mr. Watson have had a good opening 
for us, and I agree with the practicality that both of you 
faced, and you all made some good points. I think we can work 
out a situation, but we'll save that for the question period. 
And we would like, obviously, all of your views as how do you 
split it up in the short time we have before the administration 
has to take office one way or the other.
    So we will now go to Mr. Mark Gearan, now president of 
Hobart and William Smith Colleges in Geneva, NY, one of the 
youngest presidents. He was former Deputy Chief of Staff and 
Communications Director for President Clinton in working on 
various transitions, but he was also the director of the Peace 
Corps, which is dear to all of us.
    Mr. Gearan.
    Mr. Gearan. Thank you, Mr. Chairman. Thank you for that 
nice introduction. You observe that at the time of my 
appointment as president of Hobart and William Smith I was at a 
young age, but I believe your tenure as a distinguished college 
president named at the age of 38 far exceeds my youthful 
    So I thank you for this invitation. I am glad to be in your 
company as well as the other members of the committee, and I 
appreciate the opportunity to be here.
    I come before you today to answer the question that you 
have posed to this panel: Can the next President be ready? I 
come to you as having gone through a Senate confirmation 
process myself as the Director of the Peace Corps and as a 
member of President's staff having gone through the requisite 
clearance and vetting procedure. So in that context I offer my 
testimony, in addition to my service here on Capitol Hill as an 
aide, and I appreciate this opportunity.
    You have asked us the question: Transition to a new 
administration, can the next President be ready? My answer 
without hesitation is yes. The next President can indeed be 
ready to take over the office on January 20, 2001. While we are 
witnessing an extraordinary transition to be sure, I have full 
confidence that the next President will be able to start his 
administration with the necessary complement of White House 
staff and members of his Cabinet in the beginnings of the more 
complete administration as they take power.
    In fairness, I think it should be observed that the answer 
to your question has different dimensions for Vice President 
Gore and Senator Lieberman than it does for Governor Bush and 
Secretary Cheney. To state the obvious, the Vice President has 
the opportunity to continue to rely on members of the Clinton 
administration political appointees as holdovers, while 
Governor Bush would undoubtedly wish to bring in his own team. 
Nevertheless, it is the case, that both transitions are 
currently under way as we speak and are being coordinated by 
exceedingly able individuals that I know very well. Roy Neel 
for Vice President Gore and Secretary Andy Card for Governor 
Bush are knowledgeable about the intricacies of a transition 
and are well-positioned to deal with this unprecedented set of 
facts. Indeed, Secretary Card was my liaison as the Deputy 
Director of the Clinton transition, while Secretary Card 
represented the Bush administration.
    But when one considers your question, ``can the next 
President be ready?'' I answer the following reasons for my 
very affirmative response: First, when you work backward from 
Inauguration day, what must the President-elect, the newly 
sworn-in President, indeed have? Certainly a White House staff 
that must be named and cleared, and while those appointments 
obviously do not carry Senate confirmation, those clearances 
are important; and second, the Cabinet officers as well in 
place early in the administration. Given that most Cabinet 
appointees come generally from Federal or State elected or 
appointed office, the procedures, the necessary background 
information is frequently known about these appointees.
    I was pleased to read a recent report in which the FBI has 
stated they have already taken steps to increase the number of 
investigators to clear top appointees in a week to 10 days 
compared with the usual 3-week period. I'm sure that will help. 
The upper level of Presidential appointees, the second, third 
and fourth-tier appointees, generally follow the Inauguration 
    Second, President Clinton's recent Executive order creating 
a transition coordinating council will, I think, serve as a 
useful vehicle for streamlining and facilitating this process. 
This seems to be a good idea in any transition but it is 
particularly propitious this year.
    And, third, the President-elect and his team will have the 
benefit of some very important source materials for their 
appointees. Notably, the recently released Brookings 
Institution ``Survivors Guide for Presidential Appointees'' 
that was issued in coordination with the Council on Excellence 
in Government provides a treasure trove of information for 
political appointees.
    In my judgment, this abbreviated transition from the 
expected 73 days may cause some delays into the administration, 
but there is no doubt in my mind that the new President can be 
ready with his key appointees. The second, third and fourth-
tier appointees may take some longer period of time into the 
administration. However, to the extent that Cabinet secretaries 
and agency heads have the opportunity to work with career 
public servants in their departments, in their agencies, this 
may very well be a silver lining in our current dilemma. The 
new appointees will have the chance to see firsthand the skill, 
the dedication, and the commitment and competence of career 
employees of the Federal Government.
    In addition, I am hopeful, like Governor Sununu and Mr. 
Watson, that this abbreviated transition and the spotlight it 
is placing on this entire appointments process may lead to some 
very long-needed reforms.
    Scholars from the Brookings and Heritage Foundation have 
noted the increase in delays, confusion and embarrassment in 
the appointment process. They've also found that the entire 
appointment process favors individuals who have had prior 
government experience. Indeed, when one observes the growth and 
the sheer numbers of top-level executive branch appointees, 
going from 196 in 1961 to 809 in 1993 to 774 in 1998, when you 
combine those numbers with the sheer length of time it takes to 
get an appointment, it's not surprising that we witness such 
inefficiencies. At a time when we need able and competent, 
dedicated women and men to come into public service, this is 
very troubling.
    On my college campus at Hobart and William Smith, I see a 
great deal of interest from our students in public service. 
There is a great deal of interest in contemplating coming to 
Washington or in State governments and local governments and 
serving in public service. Anything you can do to streamline 
this process would be critically important.
    So I commend the reforms that have been suggested to 
encourage more training and orientation for new department 
heads and agency heads and Presidential appointees to enhance 
their focus. And, again, the spotlight on the antiquated system 
of the Presidential appointment process will lead to 
streamlining and standardizing and coordinating the financial 
disclosure reports and avoid the duplication of effort that is 
frequently so vexing and frustrating to appointees, in addition 
to reducing the burden of filing in both the White House, the 
Office of Government Ethics and the U.S. Senate.
    And finally, I think one other aspect--that I am not sure 
that even any kind of funding issue would result from your 
part, but one element--of this transition that will be missing 
is the opportunity for the President-elect to build and develop 
a honeymoon, to put chips in the political bank that will serve 
him well in his tenure as President. Transitions traditionally 
allow for that reintroduction, if you will, to the American 
people of the newly elected President and his priorities and 
his values with his statements. I am not sure any legislation 
will take back that time.
    Nevertheless, it is my view, to answer your question again, 
will the next President be ready, most affirmatively yes. This 
is a resilient country. The Presidency has been tested in the 
past many times in this decade and in this century, and I have 
full confidence that with the capacity and competence of the 
individuals involved on both sides in this present transition, 
and with your good effort, that the next President can come in 
ready and proceeding in good faith.
    I appreciate the opportunity to testify, sir.
    Mr. Horn. Thank you very much. Those were very helpful 
comments, and I am sure more questions will come out between 
different transitions once we get to the questions.
    The next gentleman is truly an American civil servant as 
well as a political appointee to several Presidents. Brad 
Patterson started in the State Department in 1945, and when I 
first knew him, he was putting together the Cabinet secretariat 
of President Eisenhower.
    Needless to say, when President Eisenhower, who probably 
had more experience than any President in terms of 
international coalitions and all the rest of it, when he got in 
there, he couldn't believe it. There was hardly any staff 
around, and he was used to a staff in the military as Supreme 
Commander in Europe. And Mr. Patterson helped pattern all of 
    And he has also written a major book now put out by 
Brookings, the White House Staff: Inside the West Wing and 
Beyond. That has nothing to do with the current TV West Wing, 
but they might well take a few examples from Mr. Patterson's 
book. It is bipartisan. Lloyd Cutler and Dick Cheney have 
endorsed the book.
    We're delighted to have you here.
    He's helped everybody from the Indians to the Alaska 
earthquakes and all the rest of it. So, Mr. Patterson, we're 
glad to have you.
    Mr. Patterson. Thank you, Mr. Chairman, for your very kind 
    Mr. Chairman and members of the subcommittee, I am honored 
to appear before you this morning and doubly honored to be in 
the company on this panel of such distinguished fellow veterans 
of service on the White House staff.
    I think the contribution I could best make to the subject 
of the Presidential transition would be to address two aspects 
of the transition which are important, but not right now in the 
limelight. First, let me speak about the implications of the 
transition for the professional staffs of the modern White 
House. And second, I would like to mention the pertinency of 
the transition for a major enterprise also occurring on January 
20 next: the Inaugural activities which accompany the swearing-
    About the professional staffs of the modern White House. In 
my recent book, the White House Staff, Inside the West Wing and 
Beyond, I give the total number of what I call the White House 
staff community. It is 5,915 men and women. That figure 
includes the domestic, economic, and national security affairs 
staffs; the White House Office, including the First Lady's 
group, the Vice President's Office, the Residence, the Military 
Office, the Secret Service units directly serving the 
President, the National Park Service, Postal Service and GSA 
support teams, the White House fellows, detailees, volunteers 
and interns. It excludes the rest of the Executive Office 
except those in the Office of Administration directly 
supporting the White House. So that White House staff family 
numbers nearly 6,000 people.
    On January 20 what will happen? Will all the desks be 
vacated, all the file cabinets cleaned out, all the shelves 
emptied? Fortunately, no. As to people, there are two 
traditions in Presidential service. The first tradition is that 
no person has tenure in his or her desk at the White House. 
That means that every person's service in the White House staff 
community is entirely at the pleasure of the President. The 
second, equally strong, tradition is that while policy 
officials change, hundreds of the technical and support 
personnel of the modern White House are invited to stay on to 
serve the next President. In fact, many have served several 
Presidents over three or four decades. One executive clerk, 
Bill Hopkins, served 40 years under 7 Presidents. One of Mr. 
Hopkins' predecessors, Maurice Latta, served 50 years.
    The Office of the Executive Clerk is a particularly good 
example of professional continuity at the White House. That's 
the office which handles all of the public papers of the 
President: enrolled bills coming through Congress, Executive 
orders, proclamations, commissions, messages to Congress--A 
little vignette: In the years past, such messages to Congress 
were delivered by the clerk dressed in formal attire, riding a 
bicycle to the Capitol.
    The Executive Clerk's Office is a treasure house of wisdom 
on White House procedures. On January 21, for instance, if a 
brand new White House staffer exclaims, ``How do we get an 
Executive order issued?'' He or she can ask the executive clerk 
and find out immediately. The present executive clerk has been 
there for 21 years.
    The new First Family will be welcomed into the executive 
residence by the Chief Usher, a 32-year veteran. Some of his 
91-member staff have served in the mansion for more than three 
decades. The new First Family can bring in a new chef, of 
course, but they would be damn fools if they fired all the 
butlers and waiters or the telephone operators or the 2,200 men 
and women who staff the Military Office, fly Air Force One and 
the helicopters, manage Camp David, and who set up the 
incredibly sophisticated communications equipment which keeps a 
U.S. President, while visiting a hamlet in China, tied into all 
his worldwide military commanders.
    100 National Park Service Staff maintain those White House 
18 acres; 133 GSA engineers keep up the EOB and the East and 
West Wings; 1,200 Secret Service professionals protect the 
First Family wherever any of them are. The President, the First 
Family, the Nation are fortunate to have such dedicated and 
strictly nonpolitical associates in the modern White House. 
They personify the Presidential transition at its best.
    One Reagan White House veteran remembered, ``When we came 
here, there were some people who wanted to dismiss every single 
person who was on the White House payroll. Now, the President 
certainly has the authority to do so, but there had been a 
time-honored group of people within the White House who 
basically live from President to President, serve the 
Presidency, were proud of that association, but kept things 
working. The White House telephone operators are a perfect 
example of that. And yet there were some in our transition who 
said, `Let's get rid of the White House operators.' I fought 
those actions, and the President agreed. We were successful in 
preventing inexperienced people from the campaign from coming 
over to the White House and getting jobs that might embarrass 
the White House or the President.''
    As for those file cabinets, not totally empty luckily. I 
have peeked at the executive clerk's current files. The first 
entry is dated 1911. The clerk's office maintains a collection 
of loose-leaf notebooks, the pages of which set forth the 
statutory authority for every single Presidential appointment. 
The clerk lets no nomination document pass up to the Oval 
Office unless it conforms to the legal parameters. That card 
file and those notebooks stay right in the White House.
    In the counsels' and chief of staff's and the President's 
physicians' offices is another vital collection of papers, the 
emergency manual. When, following the Reagan assassination 
attempt in 1981, Counsel Fred Fielding started to discuss the 
25th amendment and saw the Cabinet's eyes, as he said, ``glaze 
over,'' Fielding and his successors, among them C. Boyden Gray 
and Lloyd Cutler, worked to compile a manual covering every 
possible contingency of a Presidential disability. That 
compilation remains in the White House.
    So, hopefully, will the new 131-page staff manual which the 
Clinton White House has put together summarizing White House 
procedures and rules of the road for its employees: how to book 
a conference room, how to arrange for a foreign visitor. The 
staff manual lays out all the laws and regulations about ethics 
for White House personnel. Such a compendium is surely designed 
to survive the transition.
    In finishing this section of my testimony, allow me to 
quote one paragraph from my book: ``The White House then is not 
empty at the inaugural noon. Throughout its expectant halls, in 
its foyers and kitchens and its switchboards and guardposts, 
men and women are on duty who will serve tomorrow as they 
served yesterday. Some have walked taller in the mornings of 
two, three or four decades, skilled committed and proud, to 
support the office which they honor and the house which they 
revere. They will continue to be unknown to their fellow 
Americans, and some of them even to their President, who years 
later will depart as they again remain. Their respectful 
loyalty is always transferred to each new chief executive, and 
President after President is rewarded by their service.''
    Now, in addition to empty transition offices--about which 
the subcommittee will hear other testimony this morning--there 
is another contingent of nervously expectant men and women in 
town: those preparing for the Inaugural. There are three 
Inaugural institutions here. There's the Joint Congressional 
Committee for the Inaugural, which is in charge of all the 
swearing-in preparations and the ceremony itself. I'm sure the 
work of that committee is well under way; although committee 
members will be needing to get word about the list of 
dignitaries and friends to which to send the formal 
    There's the Armed Forces Inaugural Committee [AFIC], which 
is also already organized and at work, since the Department of 
Defense, the Military District of Washington and the various 
armed services contribute so much to all the Inaugural 
    The overall direction of the Inaugural will however come 
from the Presidential Inaugural Committee, the chair and vice 
chair and members of which must be chosen right away by the 
    And the Inaugural program consists of much, much more than 
the swearing in. Typically those include: a reception for 
distinguished ladies; the Inaugural gala; a Governors' 
reception; a reception honoring the Vice President-elect and 
his wife; a dance for Young Republicans/Democrats; an Inaugural 
medal; Inaugural decorations; Inaugural license plates; an 
Inaugural concert; the Inaugural parade; a cocktail buffet for 
the national citizens for Bush/Gore; and the Inaugural ball 
held in eight or nine separate downtown locations.
    It was expected that the transition period this year would 
be, as usual, some 74 days, and, as you can appreciate from our 
listing of Inaugural activities, every last day of those 74 is 
desperately needed as lead time for these massive events. 
Having thousands of enthusiastic celebrants at the Inaugural 
concert; designing and striking the special Inaugural medal; 
engraving, addressing and mailing 100,000 invitations to the 
ball; organizing and staging a 3 or 4-hour parade and so forth. 
We used to have 74 days. Now only 47. To quote Senator Slade 
Gorton, ``I am cautiously pessimistic.''
    I'll finish my testimony a little early. I do want to 
compliment the General Services Administration for setting up 
not only the Presidential transition offices as per the 
legislation, but there is another piece of legislation, Public 
Law 90-626, which authorizes the GSA to support the Inaugural, 
and there is another separate suite of empty offices which 
they've established with a little committee and staff of 30 
already there at 600 Independence Avenue.
    So the GSA is poised and ready to go. The question is, are 
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Patterson follows:]
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    Mr. Horn. Thank you very much. That's most interesting, and 
I think probably everybody's ears went up when you said 5,900 
staff members at the White House and when you think that the 
Brown, Lowe Commission suggested to President Roosevelt that 
you could get along with six anonymous assistants, and he ran 
the Second World War on that basis, both civil and 
    We now go to a gentleman that has been here many years, 
both in the Capitol for the legislative branch and in the 
various White Houses, as well as various departments. Harry 
McPherson is sort of a legend around here, and if you want to 
read the finest book that has ever been written on the Senate 
of the United States in the 1940's, 1950's and 1960's, read ``A 
Political Education,'' Atlantic-Little Brown 1972. Mr. 
McPherson is not only a great observer, he's also a very 
literate writer. It's the finest book I have ever seen on the 
House and the Senate and the executive branch.
    So, Mr. McPherson, we're delighted to have you here.
    Mr. McPherson. Mr. Chairman, I thank you for that more than 
I can say. You and I go back to the days of Lyndon Johnson and 
Tommy Kuchel in the U.S. Senate, and it's wonderful to be 
before you today.
    I'd adopt almost everything that's been said here, because 
I think it's all right on, and I hope the subcommittee has 
absorbed it. I have no prepared testimony, but I have a few 
observations and anecdotes to tell, as anyone has who's been 
around here too long.
    One is that I share Jack Watson's view that this is not a 
crisis at the moment for the reason that both campaigns, both 
potential Presidents, are surrounded by veterans of Washington. 
This transition procedure that the Congress has encouraged and 
developed over the years I think is most valuable for the 
administration coming in from the hinterland with very little 
experience in Washington. That's not the case with either the 
Bush or the Gore campaigns.
    Governor Bush himself was here with his father. His Vice 
President served as chief of staff in the White House as well 
as Defense Secretary. Vice President Gore, Senator Lieberman, 
that doesn't require dwelling on. Both of them are surrounded 
by veterans of past administrations, from the Pentagon and 
State Department and elsewhere. This is not, ``Mr. Smith Goes 
to Washington,'' somebody coming from the country who's never 
seen the White House or the Washington Monument. That's not the 
situation at all, and so I think the transition assistance that 
is most desperately needed by an ingenue administration is not 
so required by either of these.
    In my view, the biggest question for a new administration 
is not so much where it's going to be housed or how many bucks 
it's going to have to pay for this or that transitional 
assistance; it's an attitudinal one. The biggest question is 
whether the incoming group is prepared to listen to the people 
who are already here. If the Bush group is willing to sit down 
and pay attention to serious people in the Clinton 
administration as they talk about the issues they have 
confronted, it will help alot. There is just no way for even 
these veterans I have just been talking about to be thoroughly 
up to speed on the big issues that a new President will 
confront right from January 20th on.
    The Middle East, relations with Russia, with parts of Asia, 
Latin America, the foreign policy issues are the most obvious. 
But there are domestic ones, as well. My own experience in 
1968, made this a particularly poignant question. Lyndon 
Johnson was determined that his administration would leave 
behind not only a Great Society, but would have the best 
transition effort that any administration ever had. So each one 
of us in our offices was told to prepare everything that 
anybody would need coming into our office.
    I prepared two enormous notebooks for my successor, a guy 
named John Erlichman. I've told this story before in 
Erlichman's presence, so I don't feel as if this is abusing the 
departed. I spent 2 hours talking to John about what the 
special counsel to the President did, and I showed him 
memoranda that I had written to Lyndon Johnson that were quite 
revealing--in fact, maybe even dangerous by revealing--because 
Johnson had told us to do that, tell him everything that we 
have had to confront.
    He never asked a question and, you know, after a while, 
even if you're special counsel to the President or a 
Congressman or whatever, if you have described what you do for 
about 2 hours, you've pretty well run out of steam.
    So I said, well, what would you like to do and he said, 
well, could we have some lunch. So we went down to the White 
House mess, and he said, ``I do have two questions. Who gets to 
eat here in the White House mess?'' That was one, and the 
second one was, when do you get to use White House cars for 
personal purposes. I mean, you can say that John Erlichman 
really had his eye on the ball and not on all this talk about 
policy and stuff. But I was rather appalled because I had done 
my best.
    When I talked to him about it--I have to say this--when he 
got out of prison and he and I were on a panel one time, I 
mentioned this story, and he said, you know, I was such an 
arrogant jerk when I came in, I just didn't want to hear 
anything from anybody in the Lyndon Johnson administration.
    So my point in telling this story about Erlichman, who I 
came to like a lot and was a good guy--my point in telling the 
story is that both sides, both the incumbent administration and 
the new one coming in, have got to really talk, to really open 
up, and it's a matter of attitude more than statute or 
    To go back to what the gentleman from California said in 
his opening remarks, I don't see any reason on Earth why the 
current administration can't work with both campaigns about 
serious, emergent issues right now. I'm talking about sitting 
down with them and saying, here's what's going on in the Middle 
East. There's no reason why that has to wait until this Florida 
recount is resolved. It can happen today, it can start today; 
and it's the kind of urgent issue that if we want our new 
President to be able to handle, that's something that can be 
done if they will it to be done.
    The last thing I will just say is just ``amen'' to what 
everyone has said about the appointment process. It is nuts. 
The press has a lot to do with it. I don't know how you can 
change the press and get them off this business of nitpicking 
every appointment and somebody's holding of a mutual fund that 
may have 50 stocks, one of which will ultimately be affected in 
some way by that person's decision in the executive branch. We 
have to get real because otherwise people are simply not going 
to put themselves through this mess of an appointments process.
    Mr. Horn. You're not quite done yet.
    Just before, since you're under oath and you want to swear 
to this, were you there in the meeting that President Johnson 
called with his six top aides and what he told you about what 
you should do with Members of Congress. Valente tells the story 
very well.
    Mr. McPherson. No.
    Mr. Horn. Well, every administration coming into the White 
House, regardless of party, ought to take that advice, and I 
believe what he said was, look, when you get a call from a 
Member of Congress, the Senate or the House, you answer it this 
day, even if it's 2 a.m. or 3 a.m., and if you don't I'm going 
to kick you right out of here.
    Mr. McPherson. I have heard Jack tell that story.
    Mr. Horn. I didn't do the other things that Johnson said, 
of course, to make it really register, but that was a very fine 
administration in relating to the Hill, obviously because he 
had been a former leader.
    Well, thank you very much. We appreciate all the wisdom 
we've had from all of you here, and now we'll open it up to 
questions. I'm going to start with the ranking member, Mr. 
    Mr. Turner. Thank you, Mr. Chairman. It seems to me that 
all of our witnesses today have talked about the difficulty of 
the appointment's process and confirmation of potential 
appointees, the vetting process that must take place.
    Mr. Watson, I know you addressed that in your remarks. Give 
us some concrete suggestions here. You're talking about this 
subcommittee perhaps trying to make improvements in this area, 
and yet I'm not sure I have gotten a handle on exactly what we 
ought to consider doing as a matter of change in the law to 
improve that situation.
    Mr. Watson. Thank you, Mr. Chairman.
    The article that I commended to the committee's attention, 
is an article that appeared in the November-December issue this 
year of ``Foreign Affairs.'' It is written by Mr. Norman 
Ornstein of the American Enterprise Institute and Mr. Tom 
Donilon, who in the Clinton administration, served as chief of 
staff to the Secretary of State.
    In that article, Mr. Turner, are numerous recommendations 
as to what can be done by both the executive branch and the 
Senate and, indeed, the Congress at large to improve the 
appointment's process. A great deal of the change, as Mr. 
McPherson said and as John Sununu and others would agree, is a 
matter of attitude. It is a matter of a genuinely profound 
bipartisan determination to do something about a system that's 
not working as the Nation needs it to work.
    One of the things the article points to is the custom in 
the Senate to place a ``hold'' on nominees, that frequently has 
absolutely nothing to do with the merits or demerits, the 
qualifications or lack thereof, of the prospective appointee, 
but rather with matters totally impertinent to that issue.
    Another example of change is that there are literally a 
half dozen different complicated forms, Mr. Turner, that have 
to be filled out in which there is an enormous redundancy. As 
John Sununu said, people have to spend between $10,000 and 
$60,000 in retaining lawyers and accountants simply to fill out 
those forms, much of the information of which is of extremely 
doubtful relevance to the issue of the person's fitness for 
office. So, eliminating redundancy and duplication of forms, 
creating--as the American Enterprise Institute and the 
Brookings Institution are recommending--a common electronic 
nominations form that will serve all purposes is another idea.
    Another is to decriminalize the appointment process. Under 
current law and practice, information that is provided in the 
course of filling out those forms can serve as the basis for a 
criminal investigation, when I think it was not the intent of 
Congress to do that in such a wholesale way. So, again, that's 
a subject that requires careful congressional review. I'm not 
suggesting that we suspend the judicial process in all these 
matters, but I do believe this is a subject that needs to be 
looked at.
    Still another is to streamline the FBI background check, 
setting a clearer set of standards as to what it is we should 
be looking for in terms of information that pertains to the 
qualification of the man or woman who is being nominated to 
fill a particular post, and focusing on that information and no 
other. It has also been suggested, and I think this deserves 
careful congressional consideration, that we have full field 
investigations only for the most sensitive national security 
and defense positions and not for other, even high-ranking, but 
less ``sensitive'' positions in the government.
    A fair question, Congressman, is, do we really need full 
field investigations for an Under Secretary of Health and Human 
Services or an Assistant Secretary of Transportation? I say 
that, not meaning to imply that those positions are of any less 
importance, but rather that the nature of their role and 
responsibility in the government is so radically different that 
it calls into question, certainly in my mind, whether we need 
full field investigations for them.
    There are several other Senate procedural reforms that were 
outlined in that 1996 20th Century Fund Report I mentioned in 
my testimony, to which I would refer the committee's attention; 
but, by way of example, Congressman, these are some of the 
things I think deserve very, very close attention and reform.
    Finally, virtually no reforms would make a great difference 
unless the Democrats and the Republicans come together and say, 
we are going to fix this process together, no matter who the 
next President is.
    Mr. Turner. Thank you, Mr. Watson.
    Mr. Horn. I now yield 5 minutes for questioning to the vice 
chairman of the subcommittee, Mrs. Biggert, the gentlewoman 
from Illinois.
    Mrs. Biggert. Thank you, Mr. Chairman.
    In a memo dated November 13, 2000, John Podesta, the White 
House Chief of Staff, issued a memo to the heads of executive 
departments and agencies in which he said that, and I quote, 
you may continue to provide the kind of information or 
assistance, if any, that you typically provide to Presidential 
candidates and to continue to prepare for the transition so 
that we are able to provide full assistance quickly to the 
Office of the President-elect.
    Do you think within those parameters that either the 
Republican or the Democrat receives the necessary information? 
You were talking about sitting down and having policy 
discussions, and yet I wonder if--as a President or 
Presidential candidate, whether they really have access to some 
of the information that they might want to start on early on.
    Maybe--Mr. Gearan, I think you talked about that.
    Mr. Gearan. Thank you, Congresswoman.
    Yes, I think Mr. Podesta's intent there certainly is clear. 
And I think it underscores as Mr. McPherson's point which I 
think is the salient point here. As I mentioned, I was 
Secretary Christopher's deputy and walked into my very first 
meeting in the Roosevelt Room with the outgoing Bush 
administration. Mr. Baker and Andy Card, with Mr. Card being 
our main liaison, and because of our friendship and because of 
his personal integrity and character, the relationship of that 
transition was vastly enhanced. And certainly I believe it's a 
credit to Mr. Card in particular. But they were honoring that 
process as well.
    It would be my hope that's the intent of Mr. Podesta and 
certainly the President who would want to provide that kind of 
access. I think the President's Executive order certainly is 
consonant with that; it is a tonal dimension to this transition 
that can end the awkwardness, whether it's a friendly takeover 
or a hostile takeover of administration. But those 
relationships, I think, starting with the top would be access 
provided and with that goodwill. Certainly they would provide 
any incoming transition team with the access and support that 
they would need.
    Mrs. Biggert. Governor Sununu.
    Mr. Sununu. I don't want to be the one that is on the other 
end of the spectrum here alone, but I don't mind doing that if 
necessary. I think something is being missed here.
    The transition void that is being created is not in being 
able to name a true handful of the complete Cabinet in kind. It 
is not in not being able to name the 10 top staff members in 
the White House. The problem is not being able to have the 
detailed interaction, for example, that allows the potential 
President and his staff to prepare a budget for presentation to 
Congress with full access into the Office of Management and 
    It is an inability to put together the full structure of a 
personnel office that will move into the White House and then 
begin to add personnel after the Inauguration date. It is the 
inability to prepare a staffing structure and have them begin 
to interact fully with the existing press office and begin to 
prepare for a smooth transition there. It is the inability of 
the legal counsel and the supporting members of the legal 
counsel's office to begin to prepare all the materials and 
assist everybody in filling out these unbelievably complex 
forms and to begin to inform them of the subtle issues that are 
involved in the criminalization aspects that were addressed by 
Jack Watson. It is the inability of putting together a staff 
support structure and having them interact and have full access 
to the manuals that Mr. McPherson and Mr. Patterson referred 
to, and all the archives that are there, on a full basis so 
that they can begin to deal with the issues that are associated 
with paper flow for the President, the issues that are 
associated with making sure the staff is aware of all their 
responsibilities, not just the mythical responsibilities of 
each position that are there. It is the telecommunications 
access that is necessary to begin to communicate back and forth 
all the details that are necessary for potential members that 
are going to be appointed to understand what is happening.
    So it is not the problems at the top. It is the problems 
and layers through--2 through 10 that are not being supported 
in this void, and it is that that is going to be the most 
dramatic problem.
    Let me give you one example from my own personal experience 
that was absolutely critical, and it had to do with the savings 
and loan issue. If we had not had full briefings and 
opportunities to go into details with second, third, fourth and 
fifth-tier members of the departments that were associated 
there, we would never have had the capacity to get a good head 
start in making a new policy decision on what should or should 
not be done to deal with the savings and loan crisis, and I 
think one of the most important things President Bush did is 
immediately, on coming into office, having had his--what was 
then his transition group and then his new Cabinet speak 
directly and forcefully on the basis of their briefings. He 
made the quick decision of fix it and fix it fast, which I 
think was absolutely critical in restructuring the financial 
institutions in this country; and I believe it was the critical 
factor in fueling the kind of recovery that we eventually had.
    Mrs. Biggert. Thank you. My time has expired.
    Mr. Horn. If I might, since I think that's a relevant 
question for all of you, let me put it this way: What's the 
biggest mistake made by administrations you belonged to that 
could have been avoided by a more complete or comprehensive 
transition? Because that's sort of what you're talking about, 
Mr. Sununu.
    I'd like to hear, I think the panel would, from each of 
you, where would a shortness of it and, you know, the little 
we've had of it, it's an evolution here, but did you see 
mistakes made because of the impression of that?
    Mr. Watson.
    Mr. Watson. Mr. Chairman, it would take too long to get 
into all of our mistakes in 1976, but on a more serious note, 
any transition, whether it's 10 weeks or less, absolutely 
requires the people running the transition to exercise a 
process of exclusion, to keep things off the agenda that don't 
need to be there, in effect, focussing only on matters that the 
President must deal with in the first 6 months of his 
administration, for example.
    The purpose of a transition is not to plan for an entire 
Presidential administration; it is to get the President and his 
new administration off to a running start and deal with those 
issues, key appointments, and so forth that must be addressed, 
in the period between January 20th and the first August recess 
of the Congress.
    So I would say, Mr. Chairman, a mistake we made in the 1976 
transition in some respects, and that almost every transition 
makes to one degree or another, was trying to focus on and deal 
with too many things. The internal and external pressures on a 
President-elect to put things on his transition agenda are 
overwhelming. Everybody wants to have their issue, their 
perspective, their priority, their item on the agenda, and you 
have to be very careful to limit what you try to do.
    Mr. Horn. Mr. Gearan, anything you want to add?
    Mr. Gearan. Well, I think that's very well said, Mr. 
Chairman, and similarly, I'd agree. We do not have the time to 
detail all of our----
    Mr. Horn. Give us a few horror stories at least.
    Mr. Gearan. I can easily do that. I would make one 
observation from our point in Washington, where we put together 
briefing books and cluster groups to study all the Cabinet 
departments and agencies, everything from the Tuna Commission 
to the Department of Defense. But what we did not study, per 
the then-President, was the White House in any kind of detail 
and rigor. I think the President would certainly join me in his 
observation that the transition team, should study the Cabinet, 
agency departments in detail, and would be well-placed to have 
that kind of rigorous study and analysis of the White House.
    Mr. Horn. Mr. Patterson.
    Mr. Patterson. Mr. Chairman, as you will recall, precisely 
what Mark was talking about, about conservations between 
outgoing and incoming White House staff. The objective of the 
very helpful amendment which your committee approved and the 
Congress approved in the Presidential Transition Act of 2000, 
namely for providing workshops and briefings, that had not been 
the case in the past and now is the case.
    Of course, the problem is, the time is creeping shorter and 
shorter, but that authority is there, and the public 
Administrator such as the distinguished gentleman you will be 
hearing from later--Dwight Ink, behind me--and many others and 
your committee and the committee in the Senate were wise enough 
to approve that amendment, and it is on the books. So as soon 
as a new team is for sure, definite, those new provisions will 
be there, and I know that many of us in the public 
administration community commend the Congress for that wisdom.
    Mr. Horn. Mr. McPherson, because the compression of that 
thing is of course different, it was a party within an 
executive branch when you started with the Cabinet members and 
other key advisers after the President was tragically 
assassinated, President Johnson had his hands full.
    Mr. McPherson. He did. I was not in the White House for 
that first year, but I was fairly close to him and others; and 
I believe that if Lyndon Johnson had a heyday in the 
Presidency, if he really made a gigantic contribution that 
people in both parties would acknowledge, it was in his 
handling of the government, of the Presidency, in that first 
year after November 22, 1963.
    He did it using his tremendous knowledge of Congress, but 
going far beyond that. He connected with everyone of 
significance in the life of a Presidency--business leaders, 
labor leaders, civil rights leaders; he made it a practice to 
bring in everybody who hated him and whom he hated, but who was 
significant. He lined them up.
    I was with him 9 days after he became President, one 
Sunday. I spent Sunday sitting in the Oval Office with him just 
listening to him talking to people whom I knew he despised and 
who certainly didn't like him, but whom he needed if the 
government was to function. And each of those people came out 
and said things to the press that were very supportive: We 
really want to help this President, he's really going to try to 
work. He was on the phone constantly with every person, and 
Charlie Halleck and the leaders of the Republicans in the 
Congress. He really worked it 16, 18 hours a day. His staff, as 
Jack Valente would tell you and would tell you if he was 
sitting here, was worked down to the bone by Johnson, who was 
determined not just to win the election in 1964, but to make 
the country work again after it had been brought to a 
shuddering halt in Dallas.
    Mr. Horn. Any other addition?
    Mr. Sununu, you opened that question, so do you want to 
close out on it?
    Mr. Sununu. Well, the biggest mistake I think we made is, 
even though we heard to a great extent everything you're 
hearing today about the difficulties of the appointment process 
and about how hard it is to get good people to come in, I think 
we underestimated to some extent the burden that would be in 
getting the good people approved and confirmed and through 
    You hear the words, you read the words, you get good 
counsel, and until you do it, you don't understand how serious 
that problem really is; and I think we underestimated it a bit.
    Mr. Horn. Well, let's see, go over here now to--we'll yield 
to the gentleman from Pennsylvania, Mr. Kanjorski, for 
    Mr. Kanjorski. Thank you, Mr. Chairman.
    In listening to the observations and some of the testimony, 
I see us going in what I think is a very positive direction, 
that is, the real problems associated with transitions of 
administrations as opposed to the immediate problem that we're 
faced with of not having a certainty of who is actually the 
next President. I'm glad to see everyone taking that course, 
because there's nothing that should come out of this hearing 
that gives any indication of who should be the winner or the 
loser of this contest that's before us.
    But, Mr. Chairman, I have to confess that I have been 
around here long enough now to have experienced some of what 
the gentlemen are talking about, and that really scares me. So 
maybe I have been here too long. I agree with Mr. Sununu.
    I sat on the Banking Committee and the most impressive 
activity of President Bush was on January 8th, some 12 days 
before his Inauguration, he sent the formulation to the Banking 
Committee of how to handle the S&L crisis, and I have to say, 
I'm a Democrat, as you know, Mr. Sununu, but that impressed me 
so much----
    Mr. Sununu. I had noticed, sir.
    Mr. Kanjorski. That quite impressed me, so much that this 
incoming President would take such a difficult issue and 
complicated and understandable issue by the general public, but 
to resolve it--as you know, we had been trying to resolve that 
issue from the early 1980's. But I had great hopes for his 
Presidency as a result of that. I won't go into what errors may 
have been made later on in the Presidency.
    The experience I had in the transition in 1992 after the 
Bush administration, and I don't know whether it was the court 
cases that were going on at the time, but I remember so well 
being in the White House the day after Inauguration. I remember 
trying to get something done that had to be done concurrently 
between the new and the changing administration, and all the 
computers were gone, the guts were taken out of the computers; 
and we were actually working, rather than using computers, 
through documents. We had to go back to manual typewriters, and 
I saw the wrinkled brow. I think it may have been a court 
order, some litigation that was pending, that seized all that 
information to make sure they could find out what people were 
thinking or writing about. But it certainly did slow down the 
implementation of that administration.
    And then I remember a fact that everybody was astounded 
about, that they had a Lyndon Johnson telephone still there, 
about 20 years behind times, and that situation took a little 
bit to rewire.
    So every White House, coming and going, has its 
difficulties. What I'm interested in is the observations 
perhaps from this distinguished panel of how badly do we do up 
here on the Hill. And it's interesting, we can put a committee 
together to handle an Inauguration and do a pretty nice job, 
but I don't know any committee that comes together of the 
Congress, the House and Senate, for transition purposes--and it 
strikes me, it is much more important than having a parade--to 
have a nice smooth entrance of the leadership with the new 
government, which we easily could facilitate here on the Hill.
    Finally, I can't help but ask this question. Every 
administration that I've seen come through and every transition 
and the last one we had, Nannygate and drugs. Are we over those 
two things now and does anybody have any idea what the next 
disqualifying, past, vicious occurrence, other than hiring a 
nanny, is going to be for all these people that we have to cast 
aside? Does anybody have any idea out there what we should 
prepare the American people for?
    And I'm just wondering whether or not that is a political 
activity that's occurring? Are we in the Congress throwing 
these things out and trying to weaken people who are qualified 
to serve from coming; or is that a media circus that's 
occurring, and if so, what can we all do about it?
    Remember, I'm calling the Nannygate and the drug 
situations, if we think about it, the beginning years of the 
Clinton administration, so many very fine qualified people had 
to step aside and leave and not be considered, or be terribly 
embarrassed those who were considered, and drug process out--I 
think we're looking at the Acting Attorney General during those 
hard periods there when we couldn't even put into place someone 
at the Department of Justice.
    Are we doing that again? Is that a possibility, and if you 
    Mr. Sununu. I can't tell you what the next Nannygate-type 
issue will be. You will have to ask the press. They will find 
one and they will make it.
    What is incumbent upon us collectively, Republican and 
Democrat, is perhaps to commit ourselves not to exploit what 
they raise; and the easiest way for that to be snuffed is for a 
bipartisan, significant bipartisan group to say, we hear what 
you're saying, that is not a qualification that we care about 
for Attorney General as it was in that case. We hear that, we 
see that. It is a flaw that can be remediated, and we are going 
to only address the significant qualifications for that office.
    Now, that's not easy to do. I don't pretend that it is easy 
to do politically. We are often tempted beyond our capacity to 
do the right thing, but if we keep worrying about it and 
talking about it and having a dialog on how to deal with it, 
maybe eventually we can give each other mutual strength and be 
able to come to that point where we can stand up and say, it's 
really not significant, let's move on.
    Mr. Watson. Mr. Kanjorski, two quick points in response to 
some of what you have just said.
    One, I agree with John, we can't predict what the next one 
is going to be. But what we can predict is that whatever it is, 
it will take courage and common sense for Members of the 
Congress to deal with, whatever it is. Focusing on the real 
question that's put to the Congress in terms of the 
confirmation procedure, is the person who's been nominated for 
the post fit or not fit for the post, and all information that 
is relevant and important to that question is what we should 
consider and not other endless, intrusive, unnecessary 
intrusion into the person's private life.
    Point two, with respect to your earlier question about what 
more the Congress can do, I can only speak from my own 
experience, Congressman. In 1976, I'm afraid I bore more 
resemblance to ``Mr. Smith comes to Washington'' than to the 
``seasoned old hand in Washington affairs.'' I can tell you, 
Mr. Chairman, that the reception cooperation and help I 
received as director of the transition for President-elect 
Carter in 1976 from the Members of Congress, from the committee 
and subcommittee chairs, members and staff, was exemplary.
    As I sit here, I'm looking at the Portrait of Congressman 
Jack Brooks behind you. It was Congressman Jack Brooks that I 
worked with to amend the 1963 act to increase the funding under 
the act from $900,000 to the $3 million put into place in the 
1976 act, and all I had to do with Mr. Brooks was to come to 
him and say, Mr. Brooks, will you help us understand and 
analyze what needs to be done here, and he did it.
    So I think with the transition acts which the Congress has 
passed, with the funding it has made available, with the 
amendments it has passed in the 2000 Presidential Transition 
Act in terms of briefing support and orientation support, the 
Congress is doing its part.
    Mr. Patterson. Mr. Chairman, just an observation as a 
footnote. One remembers constitutionally there is no 
transition. Power changes at noon on January 20.
    I recall President Eisenhower in his last Cabinet meeting, 
at which I was present, admonishing them, first of all, to 
collaborate with the Kennedy folks and help them out in every 
way possible. But then immediately he reminded the Cabinet 
``There's just one President, gentlemen, and that's me until 
noon of the 20th''; and he didn't want any of the new folks 
making statements or pretending to speak for the government. So 
he just reminded them that January 20 noon had that 
constitutional aspect to it.
    Mr. Horn. OK. I see no more answers to that question, and I 
will now yield 5 minutes for questioning to the gentleman from 
California, Mr. Ose, who will be followed by the gentleman from 
Virginia, Mr. Davis.
    Mr. Ose. Thank you, Mr. Chairman. I really only have one 
question. I want to direct it to Mr. Watson and Mr. McPherson, 
and any others can respond.
    From a legal standpoint, does the Presidential Transition 
Act provide flexibility in a situation like we are experiencing 
today or does it narrow our choices? In other words, is there 
an interpretation that can be made in the Presidential 
Transition Act that would allow both campaigns basically to be 
provided the assistance they need in anticipation that one of 
them will be the winner?
    Mr. Watson. Congressman, I would not present myself as an 
authority on the Presidential----
    Mr. Ose. You're a former Chief of Staff.
    Mr. Watson. I have read it carefully, however; and I'll try 
and answer your question.
    We really have two lines of help coming here, at least two 
lines of broad categories of help. One is money. If my memory 
serves me, we have $7.1 million appropriated for this purpose 
currently. About $5.3 million of it to be divided among the 
incoming and outgoing Presidents and Vice Presidents. That's 
one category. And I think that the act is somewhat less 
flexible as to the release of those funds than it is with 
respect to the second category.
    The second category of assistance really goes to what John 
Sununu was talking about. It is the ``making available of 
information.'' It is the sharing of briefing books that have 
already been prepared. That sharing, with both camps, in my 
opinion, would be fully permissible under the act, of budget 
information, of other information related to defense and 
economic issues, etc.
    Again, I would refer back to what I said a few moments ago, 
sir, that we must keep in mind that in a transition you're only 
able to focus effectively on the most immediate and highest 
priority issues with which the President is going to have to 
deal in the early days, weeks and months of his administration. 
With respect to those issues, I think there is flexibility 
under the act for the assistance to be provided to both camps 
in the current situation.
    Mr. Ose. If I might followup on that, Mr. Watson. The issue 
you're pointing out is that particular assistance, that second 
type, is not something that would necessarily fall to GSA. As 
Mr. Sununu implicitly suggested, that's something much more 
personal. It's something like the height of responsibility. One 
of you is going to be President, come in here.
    Mr. Watson. Yes, exactly. And I will tell you again, from 
my own experience, Congressman, in 1980, when we lost the 
election to Governor Reagan, at the President's direction, I 
again headed the transition, this time from the position of 
chief of staff at the White House. We had prepared in all the 
departments and major agencies of the government briefing books 
for the new people, which we immediately made available to 
Governor Reagan and his people.
    I believe--I'm not a part of any of the current transition 
efforts, but I believe, based on what I have read and 
understand to be true, that such briefing materials are 
available now, and it would be my recommendation that, on that 
informal basis which is permitted under the act, that 
information be made available to both sides.
    Mr. Ose. I want to go to Mr. McPherson.
    Mr. McPherson. I don't see any bar to the kind of 
cooperation we've been talking about between the incumbent 
administration and both campaigns, not at all so far as the 
serious stuff is concerned, the issues that they're going--the 
new guy is going to confront.
    Mr. Ose. From a practical side, Governor Sununu, any 
    Mr. Sununu. Yeah. In order to share materials you have to 
have people with a place to be where that material can be 
shared. You have to have people in place and you have to have 
offices for those people in place and you have to have 
telephones for them to use in a coherent basis, not picking a 
phone up in one law office or another office in town but in a 
concentrated area. So, in theory, what Jack has addressed can 
be done. In practice, I don't think it can be done unless GSA 
makes available facilities, phones, and a support structure so 
that the people that are going to share this material have a 
place where they can come together as a coherent entity and 
start working to take advantage of what is being shared.
    Mr. Ose. Mr. Chairman, may I have, just with the liberty of 
the committee, ask one other question?
    Mr. Horn. Certainly.
    Mr. Ose. Are you aware of any bar under the current 
Presidential Transition Act that precludes GSA from providing 
such assistance today to both campaigns?
    Mr. Sununu. I am not a lawyer, and I thank the Lord for 
that, so I can't give you a legal answer to that, but from what 
I have read in the documents there is nothing that would do 
that except that they would be giving less money eventually to 
the one that is chosen. In other words, some of the funds will 
have been expended on someone who would end up not being the 
President, but other than that bar in terms of the total amount 
of money that's there, I do not believe that there is a 
    Mr. Ose. So if we had $4 or $5 point something million, 
split it equally $2.65 each--I mean, we spend $2.65 million in 
the space of time I've had to question the panel. So I mean I 
don't see this as something that's----
    Mr. Sununu. It's not a problem except that someone would 
have to make do with only $2.65 million until such time as that 
you added it, and the question is whether you feel you can add 
to the process when the final winner is selected.
    Mr. Ose. Do any of you know of any bar that would prevent 
GSA from offering such assistance to both camps?
    Mr. Watson. I know of no such.
    Mr. Patterson. The statute, of course, says that ``the 
terms President-elect and Vice President-elect shall mean such 
persons as are the apparent successful candidate for the office 
of President as ascertained by the administrator.''
    Mr. Horn. The Administrator is in the room; and we will, 
after those questions of Mr. Davis, why we will get to that 
with the Administrator.
    Gentleman from Virginia, Mr. Davis.
    Mr. Davis. Thank you, Mr. Chairman. And, again, I guess you 
could give it to both--probably give it to both and come back 
to Congress. We're still in session. I'm sure we could make it 
work. I'm concerned that the fact that the funds haven't been 
transferred, they're out in the fundraising mode trying to get 
money up to get the transition working smoothly, I think that 
is going to have an effect in the early days of a new 
administration. What is your judgment on the impact the delay 
of releasing transition funds would have on a new 
administration? Anyone want to take that?
    Mr. Sununu. I go back to what I said originally, Mr. Davis. 
I think it's a very nonlinear effect. One, this is quality time 
for transition. You can focus on it, you can do the background 
work, you are not burdened by the responsibility of 
administering under the duties that you will eventually get 
after January 20th. So there's a very disproportionate non-
linear impact. My guess is that if you lose a month in 
transition it will delay you being up and running by about 6 
months in the process.
    Mr. Davis. Mr. Watson.
    Mr. Watson. Mr. Davis, again, not being part of the current 
transitions, I can't give sworn testimony as to what they are, 
or are not, doing. But based on what I read and understand 
about both the efforts of Governor Bush and Secretary Cheney 
and Vice President Gore and Senator Lieberman, they are under 
way informally with the kinds of efforts they need to have 
under way to vet their appointments, make their appointment 
decisions and so forth; and indeed I think I saw Secretary 
Cheney has established transition offices in Virginia for that 
purpose temporarily.
    So I think we should not assume here--because I do not 
think it would be practical or realistic to assume--that 
nothing's being done right now in these two camps. I think a 
great deal is being done, point No. 1.
    Point No. 2, I agree with John Sununu that the other thing 
we need to keep in mind is that this Presidential election is 
going to be decided very shortly. So that the period of time we 
are now dealing with in terms of selection of who the winning 
candidates are here is a very short window. We are not talking 
about another month, but, I suspect, another week or so.
    Mr. Davis. No, but we've lost a month.
    Mr. Watson. But we can't do anything about that lost month 
at this point. It's lost, and so the question is what can we do 
    Mr. Davis. Yeah. Well, you still worry about bringing 
people on and having to hire; and it just seems to me these are 
distractions. It's on the margin but didn't have to happen. And 
Mr. Ose's suggestion, maybe you give a little bit to both sides 
and you come back and have Congress sort out, these are really 
small amounts in the scheme of things that the new 
administration can get up and operating on a timely manner 
    Mr. Gearan. Mr. Davis, if I might, I share Jack's view that 
this is time that has been lost certainly. But I believe as Mr. 
Light will tell you from the Brookings Institution, that long 
before the election they had a whole project of the 
Presidential appointee initiative, a bipartisan effort, and 
estimated at that time, even with a full transition, even with 
a landslide election that could have occurred, that it would 
have been October in the year 2001 before all Presidential 
appointees were at their desks. That was their estimation, 
which underscores what I tried to present in my testimony: the 
need for reform. This month is lost. I think the President-
elect can go forward with it, but hopefully the kind of 
streamlining reforms that could be put into place will be 
prospectively helpful.
    Mr. Davis. Let me just ask, do you think Congress ought to 
do anything? Instead of putting the burden on the GSA 
Administrator, we could do something legislatively to define an 
apparent winner by certification or something like that? Is 
there any particular language anyone would suggest?
    Mr. Watson. I have a strong view on that, Mr. Davis.
    Mr. Davis. I'd love to hear it.
    Mr. Watson. It is that our judicial process has before it 
now the election contest issues which the parties have a legal 
right to have before them; and it is my most respectful but 
firm view that neither the legislative branch nor the executive 
branch should interfere with the proper functioning of the 
judicial process in this situation. Let that process work and 
run its course, as it is about to do, without interference.
    Mr. Davis. Let me followup. What if you had an electoral 
vote that was clearly going to the House? Under those 
circumstances here, you couldn't release anything to anybody 
until the election went to the House of Representatives in 
January, where you probably would be better off giving money to 
each side to at least plan.
    Mr. Watson. That's why I think we are unanimous in our view 
on this panel that everything as an informal and practical 
matter that can be done to share information and make these 
people, both sides, both groups of people prepare, facilitate 
and expedite their preparation should be done.
    Mr. Davis. Thank you very much.
    Mr. Horn. I might add to that question just some figures. 
We have it easy if we want to pursue that, because the Vice 
President, it would be part of the $1.8 million we have 
designated for President and the Vice President, the outgoing 
administration. That would be, according to the Congressional 
Research Service, our fine support staff is $305,000. If Mr. 
Gore was made President, that money would revert to the 
Treasury because he's not leaving.
    But I think it's pretty simple and the principal witness 
will be, I am sure, helping us with some of the figures. And 
that's the next panel, with the Administrator of the General 
Services Administration. That is a solvable problem, and it 
makes it easy because nobody is losing anything. The Vice 
President at that point is coming out.
    The concern most of us have is, good heavens, can't we get 
some money to them so they don't have to go hat in hand, which 
I think was pointed out is not a good thing to be doing because 
somebody will make a lot of hubbub about it. And we ought to at 
least give them some decent planning space and communications 
and so forth so they can do the necessary things that all of 
you so eloquently have noted.
    Gentleman, I have no more questions, and I don't think my 
colleagues do. We thank you very much for sharing your 
experience, and I must say, Mr. McPherson, I enjoy C-SPAN on 
Saturday afternoon when it tells me all about Lyndon Johnson's 
phones and who he's talking to. And as you say, he hit the ones 
that liked him and the ones that didn't like him; but he was a 
dynamic President. Thank you all for coming.
    We now call forward the second panel. The second panel will 
be the Administrator of the General Services Administration Mr. 
Barram; Ms. Katzen, Deputy Director for Management; Stuart 
Gerson, a partner in Epstein Becker & Green; Paul Light, 
director, Center for Public Service at Brookings; Jonathan 
Turley, Shapiro professor of public interest law at the George 
Washington School of Law; Todd Zywicki, associate professor of 
law, George Mason University School of Law; Norman Ornstein, 
resident scholar, American Enterprise Institute for Policy 
Research; and we will close with the Honorable Dwight Ink, 
president emeritus, Institute of Public Administration. He's 
probably served more Presidents than everybody else put 
    If we have everybody behind the right sign, we will 
administer the oath. If anybody is going to be, for those in 
the administration, assisting them, please have them raise 
their hand so the clerk can note if you are dependent upon any 
aides. We don't want to have to give the oath in the middle of 
the hearing. So if you've got people that are going to give you 
information for the record, let's have them in back of you.
    I don't see any, so we'll deal strictly with the witnesses 
that are listed.
    [Witnesses sworn.]
    Mr. Horn. The clerk will note that all witnesses have 
affirmed or sworn.
    Now we will get the star witness, and he's at the edge of 
the table. Maybe that's because the door has closed, but anyhow 
we have a very distinguished member. He has been very helpful 
to this committee and Congress in the years we've been here, 
and that's the Honorable David Barram, Administrator of General 
Services Administration. They have a fine job they do during 
the year, and this one probably surprises GSA Administrators to 
get into it, but the Congress thought that would be sort of a 
neutral way, and they were in charge of getting all those fine 
things like space and documents and all the rest in collusion, 
we will say, with the National Archives which--we now turn to 
Mr. Barram, and we're delighted to have him, and please 


    Mr. Barram. Thank you very much, Mr. Chairman, and members 
of the committee. As I've said many times to you and anybody 
who will listen, this is not your father's GSA, and never has 
it been so profoundly interesting as it is right now.
    I am very pleased to be here to talk about the 
implementation of the Presidential Transition Act and how GSA 
plans to assist in an orderly Presidential transition of 2000/
    By the way, I would like to put into the record or make 
sure it gets into the record an opinion by the Department of 
Justice about whether we can fund two candidates, and their 
answer is no. Although I think, like a lot of people, it would 
be nice if we thought the law would work to do that for the 
reasons you said.
    But, anyway, under the Presidential Transition Act of 1963 
as amended, GSA is the provider of a fully equipped 
headquarters and a variety of services for the President-
elect's transition team. Most of the facilities and services we 
provide to the President-elect and his transition team are 
generally the same as we provide to all our customers: office 
space, telecommunications, IT services and equipment, and 
furnishing supplies and other things they need to do their job.
    Because GSA is the custodian of Federal transition funds, 
we also serve as the financial advisor, accountant and payroll 
office for the transition.
    Under the Presidential Transition Act of 2000, GSA was 
given two new responsibilities. The first is coordinating 
orientation activities for high-level nominees and appointees. 
The second is to work with the National Archives and Records 
Administration and others on a transition directory. Congress 
has appropriated $5.27 million for the 2000/2001 incoming 
transition to pay for those services and facilities as well as 
compensation for transition staff. $1 million of that will pay 
for the orientation activities and directory.
    In order to facilitate an orderly transition, we have been 
working with both campaigns since August, and we continue to do 
so on a daily basis. We have leased office space, provided 
security for it, fully furnished and equipped it, and arranged 
for telecommunications and information technology services to 
begin as soon as the President-elect is apparent. We have begun 
planning the orientation activities and have prepared a working 
draft of the transition directory.
    The Presidential Transition Act of 1963 makes it my 
responsibility to ascertain the apparent successful candidates 
for President and Vice President before the funds, services and 
facilities authorized by the act become available to the 
transition team. While the act gives no explicit criteria or 
deadlines for making this ascertainment, as the legislative 
history demonstrates, Congress made it perfectly clear that if 
there is any question of who the winner is in a close contest, 
this determination should not be made.
    As Representative Fascell explained during the 1963 
discussion of the bill, ``in a close contest, the Administrator 
simply would not make the decision.'' Representative Fascell 
went on to explain that ``There is nothing in the act that 
requires the Administrator to make a decision which in his own 
judgment he could not make. If he could not determine the 
apparent successful candidate, he would not authorize the 
expenditure of funds to anyone; and he should not.''
    A few people have speculated about whether the GSA 
Administrator is the right official, but the law seems quite 
clear to me. Under the Presidential Transition Act, GSA has no 
role in determining who the next President will be or affecting 
the contest for the Presidency. The law does not authorize me 
to pick the next President or predict who the next President 
will be. Instead the law creates a simple common-sense 
requirement for me to identify the President-elect after it is 
clear that one candidate has won the election.
    In this unprecedented, incredibly close and intensely 
contested election, with legal action being pursued by both 
sides, it is not apparent to me who the winner is. That is why 
I have not ascertained a President-elect. In extremely close 
elections State laws provides for various means to ensure that 
the results are correct. The country is going through that 
process now.
    I don't intend to predict when it will be apparent who the 
winner is, but I am confident that we will all know and 
probably all agree when the winner is apparent. Both candidates 
are honorable men, and each is convinced that he has won this 
extremely close race. I intend to respect the integrity of 
their public statements.
    During the last 3 weeks our American political system has 
faced a huge test. In my view, our system as usual is working. 
We Americans trust each other enough to believe we can get 
through this challenge.
    Because the President-elect will have a shortened 
transition period, we at GSA have been working diligently to 
give the transition team the tools it needs for a smooth 
transition. We continue to work closely with both campaigns to 
shorten the turnover time so that what once took a week or more 
can now be done in a day or within hours. We have talked with 
both campaigns before the election to ensure that we were 
setting up the space and systems so that they could use them 
productively. In the last few days we have suggested additional 
steps to speed the turnover, such things as creating Local Area 
Network and e-mail accounts and passwords, providing their 
staffs with remote access to the transition intranet, preparing 
financial and contractual documents for goods and services 
their teams will need, even ordering stationery. We are acting 
professionally and with no bias toward either candidate as we 
have been since August and will continue to do.
    With so many rapid technological changes, I think this may 
be actually the last transition where the transition team will 
need 90,000 square feet of office space and 500 computers in 
one location in Washington, DC. For example, staff of both 
campaigns are already linked in virtual space. Compare this to 
the last transition in which laptops were invisible, and 
wireless technology barely existed. We already see that many of 
the administrative paper-based transactions of 1992 will now be 
done electronically, saving time and money for the taxpayers. 
We think that the preparations GSA has already made, including 
taking advantage of technology, will help make the 2000/2001 
transition, though short, a smooth transition. Thank you.
    Mr. Horn. We thank you.
    [The prepared statement of Mr. Barram follows:]
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    Mr. Horn. Before we go to questions, I would like to hear 
from Ms. Katzen, the Deputy Director for Management of the 
Office of Management and Budget.
    Ms. Katzen. Thank you, Mr. Chairman and members of the 
subcommittee. Thank you for inviting me here to testify about 
OMB's implementation of the Presidential Transition Act. Given 
the events since November 7, 2000, we do not know who the next 
President will be. Nonetheless, much work has already been 
done, and we are ready to ensure that a smooth transition from 
this administration to the President-elect, whoever that may 
be, will, in fact, occur.
    The Presidential Transition Act of 1963, as amended, 
provides for an efficient transfer of authority from one 
administration to the next, and it outlines specific roles for 
a number of Federal agencies, including GSA, the Office of 
Personnel Management, the Office of Presidential Personnel and 
the U.S. Archivist.
    OMB does not have a specific role outlined in the act. 
Nonetheless we have been doing our part to assist in a 
transition process. As you know, OMB was instrumental in 
obtaining funding for the Presidential transition and 
specifically in helping secure funding in the continuing 
resolution so that funding would be available for out 
successors. Funding was, in fact, appropriated for the incoming 
administration, and the $5.3 million in funds that was provided 
for the incoming President was apportioned by OMB and is 
available for GSA to release when the Administrator determines 
that the statutory test has been satisfied.
    In addition, OMB, like every other Federal agency, is doing 
everything it can, preparing briefing materials on the 
organization, function and duties of the organization, that 
were referred to by the previous panel to assist the President-
elect and his staff. We are preparing to share that material 
with the next OMB Director or other appropriate representatives 
of a President-elect. The delay in identifying the President-
elect has absolutely not affected our work in this area.
    As you know, the bulk of OMB staff are career professionals 
whose mission is to serve the Presidency and the Nation, not 
any individual President. Our senior career staff is actively 
working with OMB leadership to prepare for the transition. The 
expertise and institutional memory of OMB's career staff will 
be invaluable to the next President regardless of which 
candidate ultimately is inaugurated.
    In addition, several weeks ago OMB began work on an 
Executive order that the President issued on November 27, 2000, 
creating a transition coordinating council. OMB Director Jacob 
J. Lew is OMB's representative and member of the Council. The 
Council will provide the President-elect's team with 
coordinated services and will ensure that we are as prepared as 
we can be for an orderly transition to the new administration. 
Specifically, the Council will oversee the transition 
activities of the agencies and departments and direct that 
training materials and orientation sessions be prepared for 
appointees nominated by the President-elect. In addition, the 
work of the Council will memorialize the process under which 
the President's appointees and the President-elect's appointees 
will collaborate during the transition process.
    The administration is seeking to do whatever we can in the 
way of providing transition assistance on a parallel basis to 
both candidates. We at OMB are prepared to do our part in that 
process. Thank you, Mr. Chairman.
    [The prepared statement of Ms. Katzen follows:]
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    Mr. Horn. We thank you very much, and before we go down the 
line, and I know you all have excellent ideas, I am going to 
stop here for some questions on the first two administration 
officials, and I want to put into the record a memorandum for 
heads of executive departments and agencies from John Podesta, 
chief of staff, Presidential Transition Guidance, dated 
November 15, 2000, and the Administrator, I know, is well aware 
of it because everybody has asked him on that question.
    [The information referred to follows:]
    [GRAPHIC] [TIFF OMITTED] T5062.041
    Mr. Horn. And in Mr. Podesta's memoranda it says, ``until a 
President-elect is clearly identified, therefore no transition 
assistance as contemplated under the Transition Act is 
available. You may continue to provide the kind of information 
or assistance, if any, that you typically provide to 
Presidential candidates and should continue to prepare for the 
transition so that we are able to provide full assistance 
quickly to the office of President-elect.''
    With that, Mr. Barram, did that memo of Mr. Podesta have 
any influence on your decision?
    Mr. Barram. No.
    Mr. Horn. And you stated a legal opinion, and I don't know 
if the staff and Members have it. Do we have it? If so, we'd 
like a copy of it. We'll get a copy of it so we can all see it.
    Mr. Barram. The legal opinion I mentioned was from the 
Department of Justice to Beth Nolan, counsel to the President. 
It was fundamentally around the question that Mr. Ose raised 
about whether there could be money provided out of this fund 
for more than one candidate. And the answer, their 
interpretation of the law, is clearly no.
    Mr. Horn. Go ahead, Mr. Gerson.
    Mr. Gerson. I've looked at this as a lawyer and as a 
denizen, a former denizen, of the Justice Department, and I 
believe the Administrator is right. I remember an old contracts 
case in which there were two ships called the Peerless. I don't 
think there can be two apparent winners. That's one of the 
things that I think is implied by Mr. Ose's question and that 
you perhaps would like to address. I can speak about it later 
in my remarks.
    Mr. Horn. Obviously one of the ways if we don't have any 
more signals along the way would be since the Clinton 
administration has funds of $1.8 million to go out of the 
administration and the offices they hold, and if the Vice 
President was the President-elect one way or the other, or 
possible President-elect, he would return the $305,000 for the 
Vice President's Office to the Treasury. Now, obviously one 
thought is if he's already got $305,000 no matter what he does, 
would it not be possible to at least give $305,000 or something 
in that range to the other contender for the Presidency? What 
do you think of that?
    Mr. Gerson. My guess is that the Administrator would balk 
at it because as he sees his entitlement, and I think he's 
right, although we may disagree about how he exercised it, he 
is only entitled to make available the cash, space and services 
to the apparent winner. The other part does take care of 
itself, you are certainly correct about that. I think that's a 
matter that you want to address. I mean, had he seen it another 
way, he likely could have done that with respect to Governor 
Bush, but I think he feels constrained, and I think the plain 
meaning of the statute constrains him from doing what is 
otherwise entirely reasonable.
    Mr. Horn. I am told that the Supreme Court of the United 
States has held that the Florida Supreme Court had no 
justification for extending the vote count deadline. The case 
was remanded to the Florida Supreme Court to explain how they 
came to their decision. Is that a little road stone along the 
way, that might get some money loose for the possible but 
likely President-elect of the United States?
    Mr. Barram. Is that a rhetorical question?
    Mr. Horn. No, it's a question, does that give you a little 
more of a signal?
    Mr. Barram. I don't want to predict how I could decide on 
the apparent winner. I don't think it's going to be that 
complicated, frankly, and there are a lot of things going on, 
and they'll certainly shake out. Nobody wants to have this 
prolonged any longer than necessary. I don't want to say that's 
a little step or a big step, but obviously it's important.
    Mr. Horn. Yes, Professor Zywicki.
    Mr. Zywicki. Yes. A quick note. Section 4 of the original 
act says that for the outgoing President or Vice President, 
that the funds that the Administrator is authorized to provide 
are requested for a period not to exceed 6 months from the date 
of the expiration of his term. If the expiration of the term is 
January 20, one would think that the outgoing funds would not 
be made available to the outgoing Vice President until after 
that date.
    Mr. Horn. Yeah. It says in section 4, as you referred to 
it, that it shall not become effective with respect to a former 
President until 6 months after the expiration of his term of 
office as President.
    Mr. Barram. Actually I think it might start 30 days in 
advance and proceed 6 months afterward.
    Mr. Horn. Well, any other questions, my colleague, Mr. 
Turner, gentlemen, the ranking member?
    Mr. Turner. Thank you, Mr. Chairman. I think it is a good 
suggestion that we have heard made by some of the members of 
our committee. It would be nice if we could provide both Vice 
President Gore and Governor Bush some assistance during this 
difficult period that we find ourselves in due to the legal 
proceedings surrounding the outcome of the election. But, Mr. 
Barram, I gather what you're telling us is that as you read the 
statute and as you've been advised by legal counsel, you don't 
have the option of sharing the money between the two 
contenders. That is not an option even available or in any way 
that could be construed from the reading of the act.
    Mr. Barram. That's correct. Regardless of what I would 
personally like to see, that's the way I read the law.
    Mr. Turner. In fact, the language of the legislation itself 
actually defines for you the terms ``President-elect'' and 
``Vice President-elect.'' And I am reading from the act here, 
it says, ``The terms `President-elect' and `Vice President-
elect' as used in this act shall mean such persons as are the 
apparent successful candidates for the office of President and 
Vice President.''
    So you're trying to follow the statute and determine who is 
the apparent-to-all successful candidate, and as of yet that 
does not seem to be apparent to any of us with the ongoing 
legal proceedings that have clouded the outcome of the 
election. Is that basically the position you've taken?
    Mr. Barram. Yes, yes.
    Mr. Turner. It wouldn't even allow you under that language 
to say, I think it's probably going to be Vice President Gore 
or probably going to be Governor Bush, and therefore I will go 
ahead and release funds.
    Mr. Barram. I took an oath to well and faithfully exercise 
the responsibilities of the office, and I see it that way. And 
I know it's not popular with some people, and it makes some 
people nervous, and it makes some people in GSA nervous. If 
Governor Bush would become the President, some people are 
wondering whether he would take it out on them. I don't see it 
that way. I think he's an honorable man. Take it out on me. You 
are welcome to take it out on me, but my agency has done a 
spectacular job of putting together the facilities, the 
capability, the resources, and our people are eager for a 
President-elect to be apparent so that person and his team can 
get working in our space.
    Mr. Turner. I noticed in your testimony before the 
committee, your written testimony, that you actually had gone 
back and cited in a footnote the debate on the act when it was 
originally passed in 1963 where Mr. Fascell, the gentleman from 
Florida, was asked what happens if there is a close election. 
And I noted that when he responded to that inquiry about what 
would happen if you don't know who is the winner, he said it is 
an unlikely proposition, which I guess turned out to be false 
because we have that situation today. But he said, if it were 
to happen--and I'm reading from page 13349 of the Congressional 
Record in 1963--if the Administrator had any question in his 
mind, any question, ``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 he has a doubt, he would not 
act until a decision has been made in the electoral college or 
in the Congress.''
    And as I recall, you actually cited that provision in your 
    Mr. Barram. I meant to cite the intelligent human being 
part. I don't know if I did. It's amazing to me how Florida 
figures prominently again.
    I never thought when I came to Washington I would be 
reading the Congressional Record about discussions between 
Members 40 years ago, but I did read that, and some things 
never change. The conversation was a lot about whether we 
should spend any money at all, and Representative Fascell was 
arguing for why this was a good idea, and Mr. Gross from Iowa 
was saying, I don't think any of these candidates that I see 
coming on the scene in 1964 are going to have any trouble 
buying their next sandwich, so why do we have to give them any 
money? Things are funny how they go. They seem not to change no 
matter how much time goes by.
    Mr. Turner. Thank you, Mr. Chairman.
    Mr. Horn. You're quite welcome.
    I now yield to the lawyers now on our side; that is, the 
vice chairman of the subcommittee, Mrs. Biggert, the 
gentlewoman from Illinois.
    Mrs. Biggert. Thank you, Mr. Chairman.
    The chairman referenced the memo from John Podesta of 
November 13, 2000. Do you know who he consulted with before 
that memo was issued?
    Mr. Barram. Who the chief of staff consulted with? No, I do 
not know.
    Mrs. Biggert. OK. But it was sent to all the executive 
    Mr. Barram. Yes.
    Mrs. Biggert. And you received that?
    Mr. Barram. Yes.
    Mrs. Biggert. And I know in your testimony you spoke about 
the type of assistance that GSA was providing to both the Bush 
and the Gore teams. Could you be a little more specific about 
what is actually being done right now?
    Mr. Barram. Well, we have had extensive conversations--we 
have a woman named June Huber, who is our career executive who 
is leading the GSA transition activity. She has been in 
constant contact with Clay Johnson and Roy Neel, and other 
members of the two transition teams for a couple of months, 
maybe 3 months now, to do a couple things; one, to make sure 
that each of them would have the kind of productive work space 
that they want. So we've been working and talking to them about 
    Mrs. Biggert. But one of the things that Governor Sununu 
mentioned, that it's very hard when you don't have the keys to 
the office and you don't have the space, and you have to maybe 
go from lawyer's office to lawyer's office, so there really is 
no physical space available that these transition teams could 
    Mr. Barram. There's no government-provided transition 
    Mrs. Biggert. Are you aware that they have a transition 
space where this is accomplished, then, if you've been meeting 
with these people?
    Mr. Barram. You mean the space in Virginia that----
    Mrs. Biggert. Yes.
    Mr. Barram. Yes, I am aware that they have some space.
    Mr. Horn. Could I take that point, if I might? The space 
you were going to give either one, I believe, is the one where 
the Y2K effort of Mr. Koskinen occurred?
    Mr. Barram. Right.
    Mr. Horn. I was told by a reporter when he leased that 
space, it was a $50 million operation. I said, you've got to be 
kidding. Now, how long is that lease? Is anybody in it now?
    Mr. Barram. Nobody's in it now.
    Mr. Horn. And if it's empty, why couldn't we move people 
into it now, because we aren't going to spend much money? I 
think you've already got a lease with that building. Who does 
own the building?
    Mr. Barram. GSA has a lease for that space, 90,000 square 
feet, which we are planning to turn over to a transition team 
    Mr. Horn. What does that 90,000 square feet cost?
    Mr. Barram. I think we're projecting $700,000 during that 
period of time.
    Mr. Horn. $700,000 over what period?
    Mr. Barram. I think it's 'til 30 days after the 
inauguration. That's correct.
    Mr. Horn. Well, Y2K was over as of January 1999, going on 
2000. Was that just a long-term lease even though we didn't 
have any use for it?
    Mr. Barram. I don't think I know the answer. Nobody was in 
that space for a period of time.
    Ms. Katzen. I can tell you that the Y2K facility, known as 
the ICC, was used through at least late May, early June. There 
was the problem not only of the December 31 date change, but 
also concerns about what would happen with leap year. And then 
there was some other problem that the technical people were 
concerned about. We started backing out of the space and moving 
things out, but I don't think it was until at least end of May, 
early June that the Y2K effort relinquished control of that 
    Mr. Horn. Who was put in it?
    Mr. Barram. From May until now I don't think anybody. We 
have a 10-year lease with that building, I am told, and we have 
follow-on tenants in mind to go in there.
    Mr. Horn. So the lease is already being paid regardless who 
is in it. So conceivably you could move at least one of the 
``Presidents-elect,'' that have come along and give them the 
space at $1 a week or something? Because, I think it's not very 
smart for anybody to be putting their hand out to have various 
people want influence and this kind of thing because that's the 
way it will look from some nitpickiness, as Mr. Sununu said, I 
think, or somebody said it, that a nitpicking member of the 
press might take it that way.
    Mr. Turley. Mr. Chairman, can I just interrupt for 1 
second, before the Administrator leaves, I was handed a note 
that says that the Supreme Court has apparently ruled 
unanimously for Bush. I thought that might be relevant--your 
staff may want to confirm it before the Administrator leaves--
to see how that would affect his decision not to designate 
President Bush as the President-elect.
    Mr. Ose. Mr. Chairman, if I might interject. We have not 
seen the decision from the Supreme Court, and I am not quite 
sure it's fair to Mr. Barram to put the him on the spot.
    Mr. Turley. I didn't mean to put him on the spot, but I 
expect this is a contingency that he might have thought of. If 
it's true, I thought it would be a relevant question.
    Mrs. Biggert. Mr. Chairman, could I reclaim my time?
    Mr. Horn. Yes. Go ahead. I apologize for taking so much of 
    Mrs. Biggert. I would like to ask Mrs. Katzen also about 
the detail of assistance, but do you know whether John Podesta 
acted in consultation with the President as far as his memo?
    Ms. Katzen. I do not know.
    Mrs. Biggert. Mr. Barram, you don't know?
    Mr. Barram. No.
    Mrs. Biggert. Could you then return to a little more 
specifics on the type of assistance that is being given to the 
transition teams?
    Mr. Barram. There are a lot of things that any enterprise 
doing what they're going to do needs to deal with. How do you 
pay your people? What kind of personnel services do you need? 
How do you lay out space? What kind of technology support do 
you need? For example, normal course of events would be for a 
tenant to plan to go into a space, and we would work with them 
to lay out the space. Doing it fast it might take 4, 5, or 6 
days. What we have talked to both camps about is let's talk 
about how you might want to configure it if you were going to 
go in tomorrow.
    So we are trying to do those kind of things in advance. 
We've talked to them about what kind of resume managing system 
would they like to have? How do you want the telephones to 
work? You asked me for specifics. What kind of domain name do 
you want on your e-mail addresses so we don't have to spend an 
hour or 3 hours or 2 days getting that simple thing fixed up? 
And that has nothing to do with ascertaining an apparent 
winner. It's just mechanical, logistic stuff that we ought to 
do in advance.
    Mrs. Biggert. What about, then, briefings on foreign 
affairs or things that might be security complications? Is this 
part of your job?
    Mr. Barram. GSA's responsibility is to prepare the space, 
provide the support. Those kind of things you talked about are 
the purview of the relevant governmental agency.
    Mrs. Biggert. Are you aware of what the other Federal 
agencies are doing then in this context?
    Mr. Barram. I know that I'm aware that they're doing it. I 
couldn't give you specifics about what each agency is doing. I 
know that we at GSA have prepared a very extensive briefing 
book. We think we can tell our story to the people that want to 
know very quickly and efficiently.
    Mrs. Biggert. Have those books been delivered to both?
    Mr. Barram. The books haven't been delivered yet.
    Mrs. Biggert. So they're waiting--you're waiting until 
there is an apparent winner.
    Mr. Barram. Yes.
    Mrs. Biggert. So really the only thing that has been done 
is what?
    Mr. Barram. I've tried to explain all the things that we 
have done in preparation for the transition. We have the 
building space ready. We have worked very hard on the----
    Mrs. Biggert. But there's been no actual contact where 
you've actually sat down with the teams?
    Mr. Barram. I don't want to say no to that because we have 
spent a lot of time with the teams, but I think your question 
is have you started with the briefings with those teams, and 
the answer is no.
    Mrs. Biggert. And, Mrs. Katzen, you would say the same 
thing as far as what you're doing?
    Ms. Katzen. I would make two different comments. First, 
with respect to national security, immediately after the 
conventions arrangements were made to have national security 
briefings for both candidates. The question of whether that was 
sufficient was raised, I think, by Mr. Card in a conversation 
with Mr. Podesta. The White House press secretary, Jake 
Siewert, announced at the end of last week the White House was 
that prepared to provide more detailed national security 
briefings to both parties, leading me to conclude that, where 
there is a time-sensitive matter requiring immediate 
consultation, we will be able to work our way through the 
    So in response to your question, I do think on the national 
security front that more information is being shared with both 
of the candidates. Second is that we have----
    Mrs. Biggert. How is that being done?
    Ms. Katzen. I don't know. It involes national security, so 
it would probably be handled through the National Security 
Advisor who was responsible for the briefings of both the 
Governor and Vice President's offices after the conventions. 
But the details of the arrangements have not been shared with 
    The second comment is that the OMB briefing books, which 
are quite voluminous, hopefully will be very helpful. I took 
some comfort from the unanimity of opinion on the preceding 
panel that it was important for the new people to listen to the 
incumbents as they describe some of the problems they had faced 
and some of the solutions they had thought of and were 
pursuing. But those books are in the final stages of 
preparation, and we are prepared to provide those at the 
appropriate time.
    My own experience with the 1992-1993 transition was that 
kind of information wasn't really made available until late 
December or early January in some instances, but I think it 
would be desirable in a perfect world for us to do it sooner 
rather than later.
    Mrs. Biggert. So the kind of assistance or information that 
is given to Presidential candidates would not include these 
types of briefings since they have not been delivered; is that 
    Ms. Katzen. That's correct.
    Mrs. Biggert. Thank you.
    Thank you, Mr. Chairman.
    Mr. Horn. We thank you.
    Before we leave that question that we posed, that Mrs. 
Biggert and I posed to Mr. Barram, I did not have a chance, as 
the other representative of the administration, Mrs. Katzen, 
are you familiar with the November 13 memorandum from Mr. 
    Ms. Katzen. Yes.
    Mr. Horn. Did he consult you?
    Ms. Katzen. No.
    Mr. Horn. Did the President consult you?
    Ms. Katzen. No.
    Mr. Horn. Because we're told that both of them consulted 
each other as you would think, the President's chief of staff 
would certainly ask the President on a delicate thing. But you 
weren't one of them that was consulted on this?
    Ms. Katzen. That's correct.
    Mr. Horn. OK. Because we're told that they all down there 
have consulted on it. They just won't admit it. So I was 
curious. Neither one of you claim that anybody asked you and 
you weren't consulted.
    Ms. Katzen. I would have to say that it is not customary 
for Mr. Podesta, the chief of staff, to consult me on each of 
the memos that he sends to the agency heads. So I had not 
expected to be consulted on this document.
    Mr. Horn. Well, I would think that when you're talking 
Presidential transition, that cuts across the whole board. It 
isn't just one or two. So, OK, we will now move to Mr.----
    Mr. Turner. I have one.
    Mr. Horn. Sure. The gentleman from Texas, Mr. Turner.
    Mr. Turner. I want to inquire as to one matter that caught 
my attention and it hasn't been mentioned yet today, and that 
is that in 1988 the Presidential Transition's Effectiveness Act 
which amended the original bill, required the disclosure of 
private contributions for purposes of transition. Prior to that 
time, there was no disclosure of any privately donated funds 
used by any President-elect or Vice President-elect. And I 
noted that in an answer to a question propounded by the 
committee you mentioned that the Clinton administration 
actually expended $5.2 million in transition expenses from 
private sources which were disclosed according to law. So I 
gather it's not all that unusual to have President-elects 
expending private funds during the transition period.
    Mr. Barram. We only had one really significant transition 
since 1988. So in the transition from Reagan to Bush there was 
a relatively small amount raised that I noted, and in the 
Clinton transition there was $5 million. I forget whatever the 
number was I wrote in the answer. So that's the sample.
    Mr. Turner. Does this include expenses such as those raised 
for inaugural parties and those kind of things, or are we 
strictly talking about transition expenses as we've been 
talking about?
    Mr. Barram. Transition only. Inaugural is another kettle of 
    Mr. Ink. Before 1963, that's the way they raised money was 
through private resources. However, I think everybody will 
agree that was not the desirable route to follow.
    Mr. Turner. And I can appreciate that.
    Now in 1992 during the Clinton transition where we were 
expending according to your numbers, $5.2 million in private 
funds, the Federal Government had appropriated $3.5 million for 
that purpose. Fortunately, we have increased that amount in the 
Presidential Transition Act appropriations effective for this 
year to $7.1 million. So at least we double the amount that the 
Federal Government is willing to pay to assist in the 
transition. But obviously, when Clinton took office in 1992, 
the $3.5 million must not have been enough to pay for the 
expenses of transition since $5.2 million in additional donated 
funds came in to accomplish that task.
    Mr. Barram. I wasn't here. If Mark Gearan were still here, 
he might tell us what they spent it on, why they needed it. But 
things are expensive and there's a lot of work to be done.
    Mr. Turner. Thank you, Mr. Chairman.
    Mr. Horn. The gentleman from California, Mr. Ose.
    Mr. Ose. Thank you, Mr. Chairman. I want to examine 
something here. Mr. Barram, excuse me. I don't know if it was 
Mrs. Katzen or Mr. Barram. One of you indicated that we've got 
a 10-year lease on 90,000 square feet costing $50 million.
    Mr. Barram. I didn't say $50 million.
    Mr. Horn. No, I said that, what a reporter told me when Mr. 
Koskinen had him in.
    Ms. Katzen. That was the total cost for the entire 
operation, which included not only the space, but also all of 
the fitting out, and all of the contractors who were hired to 
work for approximately 6 to 9 months, if not a year, before the 
date change. The whole ICC was estimated initially to be $50 
million; it was not the space alone.
    Mr. Ose. So you had interior improvements, partitions, 
demountable and otherwise, put in within the $50 million. The 
question I have, this is finished space, this is carpets, 
walls, all this stuff.
    Mr. Barram. Yes, but every time you change tenants, you 
change a few things here and there. And in the case of the Y2K, 
there was a lot of equipment that was taken out. So we had to 
redo some of the space. So yeah, we've done a little bit of 
    Mr. Ose. Have we done any of that since late May early 
    Mr. Barram. In the days up to the election, we were getting 
that space fitted out.
    Mr. Ose. In anticipation of someone occupying it?
    Mr. Barram. Yes.
    Mr. Ose. So you've had the space planning done?
    Mr. Barram. Well, there are two parts to space planning. 
We've had the big spaces available. But once a tenant wants to 
go in, he's going to want offices in a certain configuration 
and technology lines drawn a certain way. We tried to 
anticipate as much of that as we can, make it simple, like we 
do for all our tenants, but there's still some of that work 
that has to be done.
    Mr. Ose. Have either of the campaigns given you any space 
planning parameters?
    Mr. Barram. We have talked with them. Only the basics, but 
not the details, and that's what we have been talking about 
with them, even in the last week, about--can you be more 
specific so we can be ready to hit the ground with you.
    Mr. Ose. This is the issue that I'm trying to get at. Once 
we determine who wins or who won, then you have the space 
planning process. And from my experience that can be rather 
lengthy, and then you have your construction period. Tell me 
how that's going to work.
    Mr. Barram. These days with modular furniture and moveable 
walls, and if we have CAD systems that help us design space 
much faster, we think we can do this in a very short period of 
time. We're talking hours and days, not days and weeks. This 
should not be a gating factor to somebody being efficient. 
We're trying everything we can to make sure that doesn't 
    Mr. Ose. That's what I was trying to get at. I have another 
question, Mr. Chairman, if I might.
    Mr. Horn. Certainly.
    Mr. Ose. Mr. Turner referenced the act itself, and I asked 
this question earlier about a bar to who might be provided this 
assistance, and I'm looking at the act, and I followed Mr. 
Turner when he read it and he read it word for word, but 
there's nothing in here. In fact, it refers in the plural to 
the apparent successful candidates.
    Mr. Barram. That's Vice President and President. That's why 
it's plural, I think.
    Mr. Ose. Then it refers in the plural to such persons as 
are the apparent successful candidates, and I suggest within 
the body of the Congress, you might have some disagreement as 
to who are the successful candidates, but I'm just trying to 
find a way that we can start the ball rolling for whomever 
wins. And with all due respect, I see Mr. Gerson shaking his 
    Mr. Gerson. I wish you were right, I really do, because 
what you're suggesting is entirely reasonable. But what I think 
I heard the Administrator say, and I believe I heard him 
correctly, he is correct that the operative terms ``President-
elect'' and ``Vice President-elect'' are then defined as such 
persons as are the apparent successful candidates. That's the 
way that the statute reads. Let me say in saying that I'm a 
textural literalist. I believe in following the plain meaning. 
I think the Administrator could have come to a different 
decision. On the other hand, I think if you want to do the 
thing that you want to do, you can do one or both of two 
things. One, you can change the statute for the future; and 
two, the House can deal with it as a special appropriations 
matter as you are still in session. But I think that even 
though we are on opposite sides of the track on much of this, 
the Administrator's reading of the literal words of the statute 
is correct. As I said, I don't think he applied the term 
correctly, but in that regard ``persons'' means President and 
Vice President. I don't think there is a doubt about it.
    Mr. Ose. Mr. Chairman, when we get around to considering 
this, I would suggest that the word ``apparent'' offers the 
opportunity for an interpretation that would allow at this 
juncture, in a circumstance such as we've enjoyed today, so to 
speak, it would allow the apparent candidates to have access to 
this space. Somehow or another the business of the country has 
to be addressed. This has to move. I mean, this is the United 
States of America that we're talking about.
    Mr. Horn. Well, I agree with you, especially when the space 
is already leased. There isn't an extension just for the 
President-elect and Vice President-elect. They've got the 
    Mr. Ose. If we have to, I'll go out there with my Magic 
Marker and I'll draw a line down the middle of the room, and 
we'll put one on one side and the other on the other. I don't 
care. But somehow or another we've got to break this.
    Mr. Horn. In the British tradition of a shadow cabinet.
    Mr. Ose. Thank you, Mr. Chairman.
    Mr. Horn. Any questions from my colleagues before we move 
down the line with Mr. Gerson. We don't want to lose the 
precious talent we've got here. We might run through this 
several times in the next few decades. Anything to add, Mr. 
    Mr. Gerson. Not at this time.
    Mr. Horn. OK. We'll start with Mr. Light then.
    Mr. Gerson. Oh, I'm sorry. You meant in terms of 
    Mr. Horn. I'm sorry.
    Mr. Gerson. I would like to say something if I could.
    Mr. Horn. Yeah, go ahead.
    Mr. Gerson. I would address what I think were the real 
questions. Let me note at the outset two things, that there's a 
certain symmetry in my following, Mrs. Katzen. We have been 
opponents, we've been colleagues, but at the end of all of 
this, like Mr. Ose's daughters, we'll still be the same. We'll 
still be friends. And I say also while I'm here in a purely 
private capacity, I know that the Bush/Cheney camp bears no ill 
will to the Administrator whom they believe is trying his 
mightiest, given the way he reads the statute and is providing 
a substantial assistance within the bounds that he feels he 
can. So I want to make that clear as well. He's not on the 
spot. I think it's all of us who are. While I respectfully 
disagree with him, I certainly think that he's acting 
    In sum, it's my view that this subcommittee will likely 
want to consider clarifying amendments to the act. I believe 
that the act already provides the authority and the obligation 
to the Administrator to fund and support the transition to the 
administration led by Governor Bush and Secretary Cheney, whom 
I believe are the apparent winners of the 2000 election. At the 
same time, given the vagaries of the statute and the dearth of 
definitional guidance that has been provided, it is 
understandable why the Administrator has been reticent in 
committing to the expenditure of resources at this time. We've 
learned a lot in recent weeks that we didn't think we needed to 
know about in regard to the conduct of elections, and the very 
narrow question that brings this particular panel together fits 
into that category.
    I would say, though, at the outset that I think the 
questions addressed to the previous panel are at least as 
important, perhaps more important with regard to the need for 
collegiality in the actual transition. It was in this room 
while I was serving as the acting attorney general at the 
beginning of the Clinton administration that a now-departed 
Member of Congress, he's still alive but he's no longer a 
Member of the Congress, said under the watchful eye of Mr. 
Brooks, with whom I had actually consulted on the issue that 
this other fellow thought was so controversial. He said, I 
thought we had an election to get rid of people like that, Mr. 
Gerson, who still seems to think that he's running something. 
That aside, the need for collegiality between ingoing and 
outgoing administrations cannot be underestimated. At the same 
time, though, I think John Sununu was absolutely correct in 
saying you need the facilities in order to get it done too, and 
I think that's an important issue.
    In all of the functions that encompass a transition--I've 
been involved in several on either side as part of an incoming 
administration, on part of an outgoing administration and then 
sort of with my feet in both camps in 1992, 1993 it's readily 
apparent that the national interest is best served by a 
vigorous transition effort that begins early and allows an 
incoming administration to gain mastery of the activities of 
the governmental departments and put in place the competent 
individuals able to serve the public forcefully and properly 
starting on day one, the day that the administration formally 
takes office.
    The understanding of this need for promptness pervades the 
legislative history of the act. And recent history has shown 
especially where there is a change of governing political 
parties, that this is a matter of continuing national 
    The Act defines the operative term ``President-elect'' and 
``Vice President-elect'' as the apparent successful candidates. 
And here, Mr. Ose, I wanted to address in a different way, I 
think, the point that you very legitimately are trying to 
raise. The use of the conditional word apparent as opposed to 
some other word voted in by the electoral college or something 
else, strongly suggests that the drafters of the statute knew 
that the Administrator's determination could be upset by 
subsequent events both related to the electoral process and 
otherwise. Given the use of that term in the statute, I suggest 
respectfully that the Administrator could have determined that 
the Bush-Cheney ticket were the apparently successful 
contestants once the election returns in Florida were so 
certified by the secretary of state of Florida. At that point, 
the ticket had apparently 271 electoral votes, a majority 
sufficient to assure ultimate election.
    In declining to proclaim the success of the Republican 
ticket, the Administrator has cited a number of things, one of 
which was the exchange that Mr. Turner pointed out in his 
questioning between Mr. Fascell and his interlocutor. These 
exchanges exist, but that doesn't substitute for what actually 
gets written into a statute. And what the statute said is 
something that's conditional that is subject to opinion and to 
    Now, again, I respect the decision that the Administrator 
has made, while I might disagree with it, and hence, I think 
that there are things that you might want to address. One is 
changing the nature of this altogether, and creating a statute 
or changing the statute to the point that it can encompass the 
events that we have today, an election which the sum is too 
close to call, which it certainly has equivocal aspects to it 
where it makes all the sense in the world for the very points 
that have been made since Lyndon Johnson himself was the 
majority leader of the Senate, and so spoke to this very bill, 
that you need to get running early, quick and hard, and that's 
one thing that you might wish to do.
    The second thing, of course, is to change the definition to 
something clearer. And the third is to alter or remove this 
idea, that there is discretion in the Administrator that is 
otherwise unreviewable. Now, I don't know how a court would 
determine it. We've had too many lawsuits, and nobody is 
suggesting that anybody sue anybody, but there ought to be 
clearer guidance, and it ought to be clear that there is at 
least a potentially reviewable external decision that would 
allow for the encompassing of the vagary of the term that the 
Congress itself chose, ``apparent,'' not absolute, not 
scientifically certain, clinically certain or anything else but 
apparent. With that, I ask that my formal remarks be made a 
part of the record and I thank the chairman.
    [The prepared statement of Mr. Gerson follows:]
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    Mr. Horn. I might say, and I should have the minute we 
introduce you, that your full remarks are automatically put in 
the record.
    What's concerned me on some of this is several weeks ago 
after the election, and after a number of States did get most 
of their ballots through the system, Mr. Card, the designated 
chief of staff by Governor Bush, phoned the White House and 
never got any answers for a long time. Now, apparently, that's 
changed. But what worries me is, are they just trying to make 
life tough for their successor? It seems to me that when they 
raised $5 million or so back in 1993 to do a lot of this, they 
certainly ought to know what the problems were. And I would 
think that they would try to get a lawyer that put a broad 
stretch to this law. It might not be as clear as it should be, 
but just say hey, let's give them the space.
    Mr. Gerson. Well, I don't disagree. Ms. Katzen is from OMB, 
and she knows more about the expenditure of public funds than I 
do. But conceivably, if you're looking to push the envelope a 
little bit, that might relate to the ability, for example, of 
GSA to lease the space at a marginal rate, given the real 
estate realities that two or three members of this subcommittee 
have already pointed out. There may be other ways to address 
it. I want to be clear that what I'm addressing is this 
statute, and I think it does have problems, and we're 
experiencing those problems. That's not to say that there are 
not some interstitial solutions that might practically be 
available, the press and other inquirers notwithstanding, I 
think we all know how the public interest best would be served, 
and that would be to provide as much information to whomever 
might be the incoming administration as is usually possible to 
    Ms. Katzen. Mr. Horn, I simply wanted to respond to the 
speculation that there may be some thought in the west wing 
that we should make it more difficult for the incoming 
administration. And I have to unequivocally and absolutely say 
that is not the case. The President made it very clear before 
the election that he wanted to make the transition as smooth, 
as helpful, as constructive as possible. You heard during the 
earlier panel discussions about there not being computers in 
the west wing in 1993 and in some of the other Executive Office 
of the President facilities. You heard about a number of other 
things that did cause us problems, and the President was 
determined that this would be a constructive, helpful, 
supportive transition. Any thought that any action that we are 
taking is designed to make it tough on the new guys is just not 
    Mr. Horn. Well, I'm sure they are when they work for you, 
but there's a lot of people around this place downtown.
    So, let's see, any other questions on this? Then we'll move 
to Mr. Light. Oh, go ahead. The gentlewoman from Illinois, Mrs. 
    Mrs. Biggert. One thing is that if either the Bush team or 
the Gore team is using their own finances to do this, and then 
later becomes the President-elect, will they be reimbursed for 
funds that have been used, private funds that have been 
    Mr. Barram. The law is I think clear that you can't--until 
the Administrator ascertains the apparent winner, money cannot 
be expended. So money spent before couldn't be reimbursed. One 
of the things that I comfort myself with as a citizen is that 
in lieu of the conversation earlier about how much money the 
Bush team is going to raise and the Gore team would raise, I 
imagine to supplement the amount of money that you have 
appropriated, hopefully it will settle out soon enough so that 
money will get to be spent on the front half. We'll see.
    Mrs. Biggert. Would you recommend clarifying that law or do 
you think that it's proper the way it is?
    Mr. Barram. Oh, sure. If you want my personal opinion, I'm 
not hung up on the ability of the Administrator to make and 
ascertain an apparent winner. I think the real serious issue in 
America is the kind of voting machines that we have. So that is 
something to worry about.
    I would also be happy if the Congress were to tackle the 
question that Mr. Ose was raising, and others, that there ought 
to be a way to split this money and have enough available in 
this unusual circumstance. You know, Representative Fascell was 
right; it's unusual for this to happen. It isn't going to 
happen that many more times. So you don't get to burden 
yourself thinking if we had twice as much available in this 
kind of a situation that we're going to be breaking the 
Republic. It's not going to happen that way. I just think the 
law makes it impossible for me to do anything that, to use Mr. 
Gerson's words, would be common sense.
    Mrs. Biggert. Thank you. Let's hope it doesn't happen again 
    Mr. Horn. Thank you very much. We now get to Paul Light, 
director, Center for Public Service at the Brookings 
Institution. Mr. Light is probably one of the finest 
commentators on the executive branch in the country. So we look 
for your wisdom.
    Mr. Light. Well, I'm afraid to say right off the bat that 
we're now looking at another statute that I encountered earlier 
in my career and worked on as a staff member of the Senate 
Governmental Affairs Committee.
    Mr. Ose. Mr. Light, can you move that microphone closer, 
    Mr. Light. I guess we're now on. I was saying that this is 
another statute that I worked on earlier in my career as a 
staffer for Senate Governmental Affairs. And I don't recall 
ever having looked at the apparent successful candidates 
problem. We didn't think it would come up. We didn't focus 
attention on it at all. We embedded in the 1988 Presidential 
Transitions Effectiveness Act disclosure requirements as a 
condition of taking transition funds, the President-elect and 
Vice President-elect would agree to disclose the sources and 
purposes of their private fundraising. And luckily, Governor 
Bush and Secretary Cheney have agreed to disclose, even though 
they don't have to.
    I should acknowledge at the very beginning here that we 
wouldn't be arguing so much about the value of this space for 
the transition if GSA hadn't done such a terrific job in 
developing and preparing this space. If this space were down at 
the Navy Yard and it hadn't been done so well, I'm suspecting 
that we might have a transition elsewhere anyway. June Huber 
and her staff have done a terrific job and the Administrator is 
to be congratulated for his leadership in pushing the agency to 
be prepared on time.
    I should say that, you know, in 1988 when we did have the 
Transitions Effectiveness Act hearings Dante, Fascell did 
testify. His testimony showed the primary purposes of the 1963 
act again to be that we have a prompt start to the transition, 
that we move quickly to provide the President and Vice 
President-elect access to resources that could help them get a 
hold of government. It was also designed to drive private 
funding out of the transition business. The authors of the 1963 
act worried about the amounts of private fundraising going on 
and they thought it was untoward that the President-elect 
should be in that business.
    I do not believe we are yet at a crisis point in the 
transition. We would have spent the last 3 weeks doing the 
enrollments, getting things set up, picking the Cabinet 
members, but we are reaching the point of crisis. I believe 
within the next half week to week and a half, we are at a point 
where action to basically define the apparent successful 
candidates will be needed if we're to have a successful 
transition and successful first year in government.
    I should say that our primary concern at the Brookings 
Institution and at the Presidential Appointee Initiative which 
is housed at Brookings is the appointments process; that delays 
currently in the startup of the transition have a multiplier 
effect further on down the line. There will be no difficulty 
here with the President-elect, Vice President-elect, nominating 
and securing the confirmation of their Cabinet secretaries and 
senior-most officers. That's not the problem. The problem is 
not at the very top of the Federal Government in terms of the 
appointments process. The problem is at the second, third, 
fourth, and fifth vertebrae of the Federal hierarchy where you 
have an onslaught of positions that you need to fill in order 
to take firm hold of the Federal establishment. That is the 
deputy secretaries, under secretaries, assistant secretaries, 
and Administrators who occupy the neck of the Federal 
    As I've said elsewhere, we are at risk not of having a 
headless Federal Government next year but a neckless Federal 
Government, meaning that we won't have the connections between 
the leadership of the Federal hierarchy and the career work 
force. I think that is a serious problem which should motivate 
us as we try to resolve this dispute.
    In my testimony I take a look at the legislative record. I 
am not a legal scholar, I'm a legislative scholar. My reading 
of the record is that the Administrator could have made two 
choices last week, both of which would have been fine. He could 
have made the decision to allow the transition to begin. I 
believe that he had the statutory authority to do so, and I 
believe there's embedded in the statute and in the record 
appropriate support for deciding that there were apparent 
successful candidates that he could let the transition begin. I 
also believe that he could have denied the transition funding, 
as he did, but not for the reasons that have been embedded in 
the ongoing conversation of these last few days.
    I do not believe it is an appropriate reason for denying 
transition support that we just have a close election; for in 
fact, the drafters of the statute had just been through one of 
the closest elections in American history, and Dante Fascell, 
every time the discussion turned to the issue of doubt about 
close elections, when the conversation turned to the issue of 
allowing the Administrator authority when he had a doubt to say 
no, Dante Fascell talked about the fact that there had only 
been three close elections in America in the whole of American 
    I believe by that statement the representative from Florida 
qualified the authority to deny funding in close elections. 
Closeness by itself did not create the presence of a demand 
that you not release the transition funds. It was closeness of 
a type. I believe the Administrator does have the authority to 
deny transition funds in the close election, but he needs to 
make painfully clear exactly what the conditions are in a way 
that does not allow future losing candidates to deny the 
transition funds by merely contesting an election.
    That's not to say that the Gore contest is ill founded. 
It's to say that we need a definition of apparent successful 
candidates that does not put the power in the hands of the 
losing candidate to deny the beginning of a transition that the 
drafters of this bill felt was so important to taking hold of 
government. Thank you.
    [The prepared statement of Mr. Light follows:]
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    Mr. Horn. Thank you. Are there any questions? The gentleman 
from Texas, Mr. Turner.
    Mr. Turner. I was just reading Mr. Fascell's testimony or 
his remarks in the debate as you were referring to him there. 
And I may have missed a little bit of what you said, but it did 
strike me in reading the full description of the debate that 
one of the issues that was discussed in some detail was the 
concept raised by Congressman Haley that in fact under the 
Constitution, the President-elect and Vice President-elect are 
determined officially after the electoral votes are counted in 
the Congress.
    And so it seems to me that one of the purposes of the 1963 
legislation was to enable someone who was the apparent winner 
to begin to receive funds prior to that date. But it does also 
seem logical to assume that the use of the word ``apparent'' 
was designed to remedy what would otherwise be a problem if we 
said that we're going to provide transition funds to the 
President-elect, who is in fact only determined when the 
electoral votes are counted by the Congress.
    So, and I read the reference that was mentioned with regard 
to there being only three close election situations that you 
referred to, but it was only a sentence after that where Mr. 
Fascell made the statement in which he said ``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 
    In another section of that debate the question is raised, 
which perhaps is the question that we haven't talked about here 
but is so obviously apparent, when Congressman Haley said, 
``And if there is any doubt in his mind, and if he cannot and 
does not designate the apparently successful candidate, then 
the act is inoperative. He cannot do anything. There will be no 
services provided, no money expended.'' Mr. Fascell says, 
    Mr. Gross in this debate asked the question which I think 
is perhaps on all of our minds. He says, does not the 
gentleman--referring to Mr. Fascell--think that those 
designated as President and Vice President by the present 
Administrator of General Services would be given psychological 
or other advantages by designating them as President and Vice 
President? Mr. Fascell says, ``I do not think so, because if 
they were unable at the time to determine the successful 
candidates, this act would not be operative. Therefore, in a 
close contest, the Administrator simply would not make the 
    So it seems just from reading the totality of the testimony 
that what the words ``apparent President-elect'' meant was that 
it would be apparent to one of common intelligence as to who 
the winner is; and if there was any doubt in the mind of the 
Administrator where there is discretion placed, then he would 
simply not make the decision.
    Now, that may not be the best outcome, and I certainly 
agree with my colleagues who suggested that perhaps we ought to 
look at amending the act to allow some funds to flow to both 
candidates in this very difficult circumstance. But I certainly 
can understand where Mr. Barram came up with his conclusion not 
to expend public funds in a circumstance as clear as this bill 
seems to be to me.
    Thank you, Mr. Chairman.
    Mr. Light. I wish that Representative Fascell had not, 
after saying these things, said that there were only three such 
situations in history, because that then tempers his broad 
grant. Now, it's a thin brew we're dealing with here in 
legislative history. We don't have anything in the legislative 
record really, the Senate and House reports that accompanied 
this legislation, to really give clarity here. All I suggest is 
that the Administrator needs to come forward and say one of the 
following two things: He needs to say, look, the election of 
2000 is like the elections of 1800, 1824, or 1876 in the 
following ways, and therefore meets the test of one of the such 
close elections, as Representative Fascell said; or it's unlike 
the very close election of 1960 in which Jack Kennedy won the 
Presidency by 114,000 votes; or it's unlike the election of 
1888 in which we had a popular vote winner who lost the 
electoral college. That's all the Administrator need do.
    The problem for Congress is that it's likely the 
Administrator would end up saying the reason why it's like 
this--you know, why we can declare this a close election as 
Fascell--as Representative Fascell said, is that the loser has 
filed a challenge, and that puts the power in--or the apparent 
losing candidate, or the possibly losing candidate, or that 
somebody has filed a contest, and you end up putting the power 
then in the hands of the person who may not be the winner to 
deny the transition funds.
    I think you need to legislate on that so that in the future 
we don't create a situation where people who are behind by very 
large distance don't try to tie up the transition in an unfair 
or frivolous way.
    Mr. Turner. Thank you, Mr. Chairman.
    Mr. Horn. I might say just for the record, put in the word 
``apparent'' from Random House Unabridged Dictionary, second 
edition, 1993, and that's about when you came to town, Mr. 
Administrator. And I'm going to give you this and see if you 
can find the way to, now that we have a court decision, that 
this fine facilities which GSA has, and has a lease on, and is 
there, could be utilized. So put that in the record, without 
objection, and give it to the Administrator.
    It seemed to me--I know you're leaving the GSA and those 
were long plans that you had, and we wish you well on that. So 
don't go so far. You could make a lot of people happy if you 
just said hey, a new factor has been in and we ought to get 
this going, because otherwise we are going to be in a mess if 
we have to wait until the electoral college is coming up and 
that's certainly a major step in the road.
    But I just make that as a suggestion, because there's got 
to be lawyers in the administration that say yes, because they 
sure said yes to a lot of things. And there are also the ``no'' 
type lawyers, and you know about that. So we need a ``yes'' 
lawyer as opposed to a ``no'' lawyer.
    And anyhow, Mr. Light----
    Mr. Barram. Are you suggesting a no lawyer policy?
    Mr. Horn. I had long ago suggested that one. But I'm being 
delicate this morning.
    Mr. Light, we appreciate all your thoughts on this. Mr. 
Turley has to leave here and I want to get him in before the 
last three witnesses. So, Mr. Turley, go ahead.
    Mr. Turley. Thank you, Mr. Chairman. I apologize that I 
have a slight cold.
    Mr. Horn. Put the microphone a little closer. And Mr. 
Turley is the Shapiro professor of public interest law at the 
George Washington University School of Law.
    Mr. Turley. I appreciate the indulgence of the committee 
and the indulgence of my co-panelists in allowing me to go out 
of order. I am sorry that I have to leave the hearing. I am 
very honored to have the chance to speak to you on this 
subject. It's a subject, obviously, of considerable importance.
    I'd like to start out by saying, as with many of the people 
at this table, I don't have a dog in this fight. I do have a 
considerable academic interest in its outcome. With regard to 
its outcome, I should note that I have the opinion of the 
Supreme Court here, which was faxed to me during these 
proceedings. The Supreme Court indeed did unanimously rule in 
favor of Governor Bush in the sense that it has reversed and 
sent this issue back to the Florida Supreme Court. That ruling 
was very narrow and it turns on the lack of clarity as to 
whether there's a Federal question in this issue. So it will be 
sent back to the Florida Supreme Court for a determination on 
that question.
    What that means is that doubt will be prolonged as to who 
is the rightful President of the United States. Now, there has 
been great discussion about the transition to the Presidency, 
and I think that we're at a point today where we have to speak 
frankly on that subject. When we had our first transition in 
1791 from George Washington to John Adams, the transition was a 
relatively modest affair. In 1800 there were less than 4,000 
people in the executive branch. Today there's almost 6,000 
people in the White House alone. There's over 3 million 
civilian employees and there's roughly 140 agencies. The 
incoming President has 11 weeks to try to fill the necessary 
vacancies in this government to carry out the mandate given to 
him by the people.
    Governor Bush is at greater peril than Vice President Gore 
in this regard. Vice President Gore has the benefit of a 
continuity of policy and party. There are also great pressures 
upon Governor Bush because of the concerns raised as to the 
needs for reform, particularly when it comes to the White 
House. I have a recent article in Maryland Law Review detailing 
the many issues for transition that have to be looked at as to 
the White House alone. Those issues will largely stay in 
abeyance during this point of uncertainty.
    Ultimately we are left with the Presidential Transition Act 
of 1963 and the language of an ``apparent'' successful 
candidate. This act is extremely curious and is possibly the 
worst statute I have ever read in my career. I direct a 
legislative project. If a student had handed me this statute, I 
would have sent the paper back without a grade in deference to 
that student.
    Frankly it is bloody ridiculous to have a constitutional 
system that labors through checks and balances as to when we 
announce who the President is. We go through a bicameral 
process and various contingencies to guarantee in our system 
that these significant political questions are dealt with in 
the legislative branch. That's where James Madison wanted most 
things that divided us to be answered. But weeks before that 
decision is made in the electoral college, an unknown Federal 
official takes an intestinal check and determines whether he 
will announce one candidate is the apparent successor or 
another. I submit that's simply absurd. I have no idea why the 
law was written this way, except that the law was written for 
extremely good constitutional weather and terrain. Ironically, 
we have a Constitution that's built for the worst possible 
scenarios. It took Congress to write a statute to introduce a 
flaw into that system. That's what this statute represents.
    I disagree to some extent with the statements made as to 
proper interpretation of this statute. Yet, I have great 
sympathy with the Administrator. I expect that he probably 
would have liked guidance and he would like to do anything to 
have this bitter cup pass from his lips.
    I also am sympathetic with this subcommittee. This was not 
your drafting, and you are dealing with a problem that you 
inherited. It's a problem I hope that you will solve. I listed 
various possible changes that you can make in legislation to 
make this problem go away.
    The reason the Supreme Court decision today is relevant is 
because the interpretation by the Administrator leaves you with 
one obvious question: When do extrinsic actions or rulings get 
to the point that an Administrator is satisfied as to the 
outcome? That's the problem here. We don't know if the 
Administrator is waiting for the Supreme Court. I expect that 
he isn't, because at issue in the Supreme Court is not a 
determinative question as to who is the President of the United 
States. I assume that he is not waiting for the ruling of the 
circuit court judge as to Leon County, and I assume he's not 
waiting for Seminole County. But that's the question: It's not 
clear what we're waiting for. That's the central flaw in the 
    What is clear is that our present status is wholly at odds 
with the intent of Congress. Congress wanted to avoid these 11 
weeks being frittered away when we have very serious business 
to get to. It also wanted to avoid the need to raise private 
funds. We have now realized both of those dangers in this 
crisis. I agree that you cannot divide up the funds. This 
Administrator does not have that authority given to him by 
Congress. If he makes the decision that he has made, it is not 
clear what the judicial review is. This is the first statute 
which I have searched to try to find a basis for judicial 
review. It's obvious that this would probably go to a fallback 
under the APA. But once you go to an APA review, I'm not too 
sure what the court would ask. Short of announcing that Ralph 
Nader is the apparent President of the United States, I don't 
see much of a basis for a court to reverse a decision, even a 
bad one by the Administrator.
    I will quickly note the three suggestions that I have made 
in my written statement. First, this Congress should change the 
law so that the GSA Administrator does not make this 
determination. The position of the Administrator has no 
relevant constitutional or legal function. It should rest 
either in the Attorney General or a specially designed 
    Second, the Congress should lay out language that clearly 
sets forth how we deal with this type of controversy. It can do 
that in two ways. It can either allow for a dual-track 
transition, which is an easy issue and would be cost efficient. 
The government in such circumstance as this could give initial 
funding to start the transition. As an alternative, it could 
allow a candidate to spend private funds with the understanding 
that there is a qualified indemnification provision, so that, 
if you are in fact successful in your challenge, the Federal 
Government will in fact pay for those costs. We have that 
already in some analogous provisions dealing with litigation 
and executive branch officers. Either of those would alleviate 
out current problems.
    Finally, the Congress needs to make these responsibilities 
mandatory, and not discretionary, so that we have meaningful 
judicial review. I am very encouraged that this subcommittee on 
a bipartisan level has recognized that we are in a rather 
absurd situation. That absurdity can be rectified. However, I 
would note that this is not a weakness in our constitutional 
process, which is remarkably strong; it's a weakness because we 
tried to improve upon it. We were acting in good faith, but we 
acted with the worst possible means. I strongly encourage you 
to enact legislation to correct these problems.
    [The prepared statement of Mr. Turley follows:]
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    Mr. Horn. Mr. Turley, I'd be delighted to have any language 
you wish to submit. We won't grade it.
    Mr. Turley. I would be delighted to submit it, sir. Thank 
    Mr. Horn. If you can get it to us this week, we're going to 
move on it, or this next 24 hours, so we would appreciate it.
    Mr. Turley. I will get it to you within a couple of days, 
    Mr. Horn. OK. All right. Thank you. And I know your 
colleagues will be handing this up here.
    And our next speaker is Todd Zywicki, the associate 
professor of law at George Mason University School of Law.
    Mr. Zywicki. Thank you Mr. Chairman, distinguished 
representatives, it's a pleasure for me to be here to speak on 
the Presidential Transition Act of 1963. I'm just a law 
professor, I've never participated in a transition like some of 
my colleagues have, and if the price tag is $10,000 to $60,000, 
I doubt my wife will ever let me undertake such a situation. So 
I'm going to just talk on the law.
    And as I interpret the Presidential Transition Act of 1963, 
unlike some of the other people that have spoken today, I don't 
see any ambiguity in this act. I think that it is my opinion 
that under the facts of the current situation, the 
Administrator's refusal to release the transition resources to 
the Bush-Cheney transition team is inconsistent with the 
language, the policies, and the scope of the discretion 
afforded the Administrator under the act.
    We've heard reference to some of these things, but I think 
it's worth fleshing them out to understand this. As you said, 
the plain language of the act is that the Administrator is 
supposed to release the funds to the apparent successful 
candidates. ``Apparent successful candidate'' is not a defined 
term in the statute. But there are some things that are clear 
from the statute and are clear from the congressional debate 
surrounding enactment of the statute. First, it is obvious that 
the mere fact that contingencies may intervene that may mean 
that the apparent candidate is not the actual winning candidate 
at the end of the day does not change the fact that the 
apparent successful candidate is still the apparent successful 
candidate. The legislative history and debates are peppered 
with discussions about what happens, for instance, if you have 
faithless electors, electors that pledge to vote for one 
candidate, and on the day vote for another candidate. Does that 
undermine the fact that when they pledge to elect the 
President, that this is the apparent successful candidate? No, 
it does not. The fact that they may switch their vote does not 
undermine the fact that it is in fact an apparent successful 
    As was discussed during the debates, Congressman Fascell 
remarks on the close election point, ``The gentleman previously 
pointed out in the last election we had one that was as close 
as we would want to have an election and nobody had any trouble 
in deciding who was the apparent winner.'' During the 1960 
election, of course, my understanding is that Richard Nixon had 
litigation going in several States, I think I've read as many 
as 11 States after the election, recounts were ongoing for 
weeks if not months. Florida--or Hawaii didn't complete their 
recount until late December. There was litigation and recounts 
ongoing for weeks after the 1960 election. And Congressman 
Fascell says nobody had any difficulty determining that John 
Kennedy was the apparent successful winner in that election.
    You can imagine all kind of different contingencies that 
might arise in addition to recounts and litigation. You can 
imagine, as I said, court challenges, faithless electors, any 
variety of contingencies could intercede that would make it 
such that the apparent successful winner does not actually turn 
out to be the actual winner.
    Second, I think under a functional interpretation of the 
policies, I don't think we need to dwell on this, but it's 
obvious that the apparent successful winner is in fact the 
Bush-Cheney team. There are two policies that are embedded in 
here. First is for an orderly and speedy transition. Second is 
to insulate the process from the appearance of impropriety 
arising from having to rely solely on private funding.
    Clearly as to the first one, an orderly and speedy 
transition, this suggests that there is a one-way street built 
into this legislation, that money can be replaced, time cannot. 
So that the idea is that there is a reason why we swiftly and 
promptly determine who the apparent successful candidate is and 
release the money.
    Second is concerns about reliance on the private funds. My 
understanding is that the Bush-Cheney team has undergone heroic 
actions well exceeding what is provided for under the law in 
order to prevent that from happening, from actual influence 
being a problem. But the perception is what the drafters were 
concerned about first. And second they were concerned about the 
fundamental unfairness of this--this is a governmental 
function. They defined it, the transition, as a governmental 
function. It is simply unfair and inappropriate to have that be 
held hostage purely to private funds.
    So what this all means is that if you look at the 
legislative history and the plain language, it is clear what 
they have in mind is a majority of pledged or certified 
electors is sufficient and mandatorily triggers the apparent 
successful candidate provisions of the statute, and the fact 
that might later be reversed does not change that result.
    Finally, there's been question about the scope of the 
Administrator's discretion. I think if you read the statute in 
its full context, and the legislative history is clear what we 
are talking about, is very, very narrow--narrowly circumscribed 
and limited discretion to make a predicate factual finding that 
one candidate is the apparent successful candidate. Under 
standard--this isn't a court of law, but under standard legal 
principles, a factual finding of that sort must be supported by 
substantial evidence. There is really--there is certainly no 
substantial evidence that anybody other than Governor Bush is 
the President-elect. And there is no substantial evidence that 
Governor Bush is not the President-elect, given that he has 271 
pledged and certified electoral votes.
    Also, the Administrator is clearly a primarily ministerial 
actor, under this act at least. It is simply absurd to think 
that Congress would define the Administrator's obligations 
under this act as being ministerial in scope and then give 
gigantic discretion on the front end to determine when he has 
to release the funds. It is simply in this--to some extent is 
related to what Professor Turley said. It is simply not a 
reasonable understanding of the statute to think that they 
meant for the Administrator to have sort of a free-ranging 
portfolio to make that sort of determination.
    I see I'm over time, but I might ask if I could have leave 
for a minute or two just to comment on some of the other 
arguments that have been made with respect to the law.
    First, I do agree that regardless of whether or not 
Governor Bush is named the President-elect, Vice President Gore 
cannot be called that. I don't think there's any basis for 
that, which would respond to Congressman Ose's question about 
whether or not we could release funds to both. I checked, and 
in fact for the Vice President, in response to your question, 
Mr. Chairman, the time period does begin 30 days. It was 
amended in the 1988 version.
    There's an interesting colloquy in the legislative history 
that specifically talks about a question to Mr. Fascell was 
posed: What if we have a candidate who is three or four votes 
shy in the electoral college? And Congressman Fascell 
specifically replied ``no,'' if they're basically three or--if 
they don't have the majority of the electoral college, there is 
no basis for considering such a candidate to be the President-
elect. The clear implication being if they do have a majority, 
that it would be appropriate.
    Finally on these isolated bits of legislative history that 
have been taken out of context, I believe, with respect to what 
it means--with respect to a close election, first, I cited the 
specific recognition that the 1960 election, where in fact we 
had a lot of litigation and other recounts that threatened to 
upset the result, was not considered to be the sort of thing 
that interfered with the designation of an apparent winner. 
Most importantly it's a standard technique of statutory 
construction that floor statements, especially isolated floor 
statements taken out of context, cannot contradict the plain 
language and the reasonable construction of the statute.
    I think if you look at the full legislative history in 
historical context of this statute, I believe that the 
Administrator's reliance on those provisions that he relies on 
is simply unfounded. First is the reference, as I said, the 
question was posed: What if we have a candidate who's three or 
four votes shy of having majority? The response was, Mr. 
Fascell's response that the--in that situation the 
Administrator would have no discretion to release the funds.
    The second one that is relied upon is the one on page 
13348, the reference to a close election there, if you read the 
question that was posed to that, it had special historical 
significance; which is the question that Mr. Fascell was 
responding to, was a question of Mr. Gross which says we 
apparently have a situation growing up in certain States of the 
Union whereby there may be independent electors. That is a 
clear reference to the 1960 election and the situation in the 
early 1960's.
    In the 1960 election, a number of independent Democratic 
electors were named who then voted for Harry Byrd rather than 
John F. Kennedy for President. It is clear what he was talking 
about is electors who are not pledged or certified to any 
particular candidate but are running on a position that they 
have independent discretion to vote their conscience; the idea 
being that then the southern States could then use them to 
broker a deal with either the President of either party to 
throw their electors to whichever one they thought would give 
them what they wanted on the obvious issues that were dividing 
the country at that time.
    Clearly what this is, again, is a reference to a situation 
where you cannot predict that any candidate has a majority of 
electors. Both of those situations are references to situations 
where no candidate has a majority of pledged or certified 
electors. So I think that reference to those close elections is 
taken out of context. Read in full context, it supports a 
reading that the Administrator is mistaken in this situation 
and that the plain language and the policies of the statute 
further support that conclusion.
    Thank you.
    [The prepared statement of Mr. Zywicki follows:]
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    Mr. Horn. Thank you. Do any of the other members and 
especially the Administrator have any thoughts about Professor 
Zywicki's testimony? Does it give you some new guidance, Mr. 
    Mr. Barram. No. I mean, am I going to change at this moment 
where I have been in the last few days? No. I listened to him 
very carefully and disagree with him on some issues. I don't 
think we want to get into that kind of a discussion right now. 
He's a law professor, I'm just a business guy.
    Mr. Horn. Modesty does not fit. OK. I'll give you the same 
invitation I gave to Mr. Turley. If you want to get us some 
language in the next 24 hours, we'll be glad to have it.
    Mr. Zywicki. I think the statute is fine the way it's 
    Mr. Barram. I will make one comment if I can, Mr. Chairman. 
I don't know how important this is, but I do recall in 1960--
and I am old enough to remember that election--that Richard 
Nixon was saying, well into the night, if present trends 
continue, you know, John Kennedy will win. I believe he 
conceded the next morning or middle of the morning.
    Mr. Ink. He did.
    Mr. Barram. I think that's a fairly significant event.
    Mr. Horn. I think you're right on that one. I'm not aware 
of all those other cases they cited. They must have been State 
Republican parties because President Nixon's view, which I do 
not intend to contend even though we knew Illinois, New Jersey, 
and a few other States where there were major fraud. The Senate 
Committee on Rules did send an investigator to Chicago, and 
when they opened the ballot box carefully labeled, Kennedy 80, 
Nixon 2, and there were no ballots at all in the box. So, just 
the tally. And I'll never forget that one. The Rules Committee 
in the Senate isn't often working on a lot of things, but this 
one was fascinating.
    Mr. Ink, is that your recollection?
    Mr. Ink. Yes.
    Mr. Zywicki. My understanding is that the litigation did 
continue apace just as the Seminole County litigation in 
Florida is not a Gore litigation situation, it's a State 
litigation brought by voters in Seminole County but threatens 
to upset the election. My understanding, that there was several 
States in which litigation did proceed apace and recounts 
proceeded at pace, including Hawaii changing their designated 
electors, and there was an extremely close election, that those 
things did not, in Congressman Fascell's judgment, upset the 
ease with which one could be designated--that John F. Kennedy 
could be designated the apparent successful candidate in that 
    Mr. Horn. Mr. Gerson, do you agree with Mr. Zywicki's 
    Mr. Gerson. In part; and in other parts we might disagree a 
bit. I mean, Nixon did act in the way that you described, and 
the two contests that might have mattered, Illinois and West 
Virginia, were withdrawn as a result of what Mr. Nixon 
instructed his lieutenants to do at the time. But I don't know 
that detracts from the main argument. I don't agree that the 
statute is sufficient at this time for the reasons that we're 
all discussing.
    On the other hand, Professor Zywicki and I do agree that 
the Administrator shouldn't have unfettered discretion. And we 
also agree that we believe he reached the wrong decision with 
the discretion that he has, because ``apparent'' is a 
conditional term. And one can say, I believe correctly, that 
Governor Bush apparently has 271 pledged electors. I think 
that's a fair appraisal of where Professor Zywicki and I might 
agree and disagree. I think we probably agree more on the 
material aspects of his testimony. I certainly don't agree this 
is the worst statute I have seen, though.
    Mr. Zywicki. Not my position.
    Mr. Horn. Well, I thank you.
    We now go to the penultimate witness, Norman J. Ornstein, 
resident scholar, American Enterprise Institute for Policy 
    Mr. Ornstein. Thanks very much, Mr. Chairman. I might note 
at the start that I spent most of the last couple of years and 
intend to spend the next several months codirecting the 
Transition to Governing Project done with AEI Brookings and 
also in conjunction with the Hoover Institution. We've been 
geared up to facilitate a speedy transition. It's been a 
frustrating process, to be sure.
    I think we have three basic questions here today that we've 
had to deal with. The first one, on which we've just had some 
lengthy discussion, and which we've just had some lengthy 
discussion of whether the Administrator appropriately exercised 
his ministerial function. I want to weigh in on that one also. 
Then come to two very relevant questions: What can be done 
about this situation now; and what, if anything, can be done to 
improve the law for the future that will extend beyond this 
election to the next ones?
    I come down on the side that the Administrator did 
appropriately exercise his ministerial function. I've read the 
history and read the language and I believe--and here I take 
slight issue, which is unusual for me, with my colleague Paul 
Light, too. I think that the Congress was very concerned with 
the notion of a political judgment being made by a nonpolitical 
figure at a delicate time. It was actually I think something 
more on the minds of Republicans at the time, partly because 
you had Democrats running everything in 1963. Certainly it was 
H.R. Gross' concern, the idea that by making a judgment when 
there was still a question, a serious question, a real question 
that could provide some psychological or other advantages to a 
candidate, inappropriately so.
    Now, as Paul said, Dante Fascell tried to draw a line. He 
said it wasn't going to happen. It doesn't happen very often. 
It has happened before clearly in three elections: 1800, 1824, 
and 1876. And the question we have today is partly if we're 
going to consider those examples and that judgment and what 
Congress was talking about, is this election closer to 1800, 
1824, 1876, or is it closer to, say, 1960?
    To me there's no question that it's much closer to the 
former three than the latter. Partly, as we just said, in 1960 
you had a concession; you did not have a candidate pursuing 
challenges. And if they had, challenges had been pursued, it is 
true that 1960 was a close election in popular vote terms, but 
where it matters in electoral votes, it was not one State it 
was several States. It would have required a parlay from 
several States.
    We know from our history that Richard Nixon considered 
whether or not he would carry out a challenge. For a variety of 
reasons, some pragmatic, some ideological, some related to his 
basic sense that it would be bad for the country, he decided 
not to. The patriotic reasons were a part of it as well. It 
would have required a number of challenges with very iffy 
    What we have here is an election, in which at the moment we 
have one candidate with 271 apparent electoral votes, the other 
with 267 but with 25 of those electoral votes hanging in the 
balance of between one-fiftieth and one one-hundredth of 1 
percent of the votes in a State with challenges going forward. 
That is not comparable I think to 1960. By all of the 
commentary we have around us, it certainly has its parallels in 
the past, although it's also unique. So I think the 
Administrator acted in a reasonable fashion, even if he might 
have acted differently or if he had discretionary authority to 
act differently.
    Whether it should be handled differently in the future, I 
can't for the life of me see why turning this over to the 
Attorney General is better than turning it over to the 
Administrator of the General Services Administration, when the 
whole point of this was to make a judgment not about who the 
President was but about when you begin a transition process. It 
seems to me it's an appropriate place in which to go.
    Now, what do we do about this situation in the more 
practical vein? I would urge to you take one action, and that 
is this: We now have, I think, a strong desire in the country 
and in Washington to move in a bipartisan direction, however we 
go. I would urge Mr. Horn and Mr. Turner, when this hearing 
ends, to call up Speaker Hastert, Minority Leader Gephardt, 
also Majority Leader Lott and Minority Leader Daschle. With 
Congress around and people here this week, it seems to me that 
you can get an easy amendment to this act, or ought to be able 
to within a day or so--I would guess you would have the 
President willing and eager to sign it--that allocates these 
funds immediately to candidates. Do it now, give them space.
    Mr. Horn. That's why we've given the 24 hours bit.
    Mr. Ornstein. I think we can act more swiftly than Congress 
usually acts now, because it seems to me there is an 
overwhelming consensus that ought to be done now and into the 
future; that it is in the Nation's interest to beginning a 
transition early.
    Let me just very quickly address a couple of issues, and I 
won't go long. I've done it before in front of the committee 
and the subcommittee, and I hope we can do it again. I hope 
after this is over or during the remaining weeks of this 
session in preparation for next time, you will take an even 
broader look at this act. You did some very commendable things 
in the last Congress, and I think they are going to have a 
strong positive impact.
    But I believe we ought to be encouraging a climate in which 
transitions begin before the election, in which we not only 
encourage but almost mandate the candidates to begin a 
transition process before the election is over, to begin a 
formal transition process. Right now, and through this contest, 
despite a lot of what we hoped to get out there in the dialog 
in the country, it's still considered presumptuous to talk 
about or to act or to move in different ways before the 
election is over. We should start that process and make sure it 
can continue.
    I would also urge you to look at the possibility of 
codifying an action that Attorney General Reno very commendably 
took, or at least announced that she would take, just a couple 
of days ago. And that is to make sure that the FBI field 
investigations of prospective nominees take place, begin before 
those nominations are formally made. It seems to me there is an 
easy way to do this, if a President-elect, or even in a 
situation like this where there may be even the slightest 
question, puts forward a list of potential nominees with the 
approval of those people--you don't want investigations going 
on for the wrong reasons--that the FBI should know clearly in 
advance that it can begin that process, so that we can minimize 
the delays going forward.
    I would hope what would flow from that as well is we would 
do a full-scale investigation of all the impediments in place 
to get Presidential appointees into those offices as early as 
possible. We have a lot of suggestions out there on the table, 
some of which go back a few years to the 20th Century Funds 
Task Force, some of which I and my colleagues have made and you 
could do no greater service to the country than to move on 
those as well.
    Thank you very much.
    Mr. Horn. Thank you. I ask the gentleman from Texas, the 
ranking member, Mr. Turner, if he has some questions of the 
    Mr. Turner. Thank you, Mr. Chairman.
    Mr. Ornstein, obviously from being here and hearing my 
remarks, you know that I concur with your analysis regarding 
the authority of the Administrator and what the statute directs 
him to do or not to do. The one thing that did pique my 
interest about your suggestions for the future--and I certainly 
concur that we could amend the statute immediately--be able to 
fund both candidates in transition under these types of 
circumstances and should do so. But you have suggested that we 
go further and provide some transitional funding for candidates 
prior to the November election day. I'm not sure I understand 
why you think that is as critical or appropriate as funding the 
successful candidates, or the candidates, both of whom may be 
successful after election day.
    Mr. Ornstein. Well, just briefly, Mr. Turner, I think what 
happens now is that for all kinds of reasons, Presidential 
candidates don't want to take the time or feel it's 
inappropriate to talk about or to plan, other than 
surreptitiously, a transition in advance. Now we do have the 
candidates pick transition directors. They tried to operate 
below the radar screen. What ends up happening is a President-
elect often doesn't really start thinking about this process 
until the day after the election, or sometimes later, and at 
point at which he's entirely exhausted, when there is no other 
strong incentive to really move rapidly.
    A lot of things could be in place earlier. And not only 
that, I think it's good and important for the country to 
recognize that a transition is a meaningful exercise. It isn't 
just something we watch idly as we see a new person begin to 
ease into the Presidency, but involves serious, tangible steps 
for governing.
    We need to focus more on governing during the campaign. 
Candidates should focus more on governing. And it's useful to 
find ways structurally to build that into the process. I think, 
given what we know, given that the last couple of Presidencies, 
the number of months that it takes just to get the Senate-
confirmable appointees in place when you start just the day 
after the election, we need to cut that back. If we can begin 
to hit the ground running even before the election, it wouldn't 
    Mr. Gerson. May I dissent slightly from something Mr. 
Ornstein just said? I think this committee will be able to come 
up with suitable language that deals with the situation post-
election that we have today, as I have. I reiterate that and 
urge the committee, the subcommittee, to do so. But I think you 
are running into great danger if you extend that sort of 
license to a time before the election. We've had third parties 
in the last two elections that have had a meaningful effect on 
the outcome. And I hesitate to want to ever be involved in the 
kind of litigation that one would face as to preelection 
funding of such an operation, especially when some third-party 
candidate might allege that his or her campaign is the linchpin 
future policy.
    And from a theoretical standpoint, I think it would be 
unwise for the legislative process in terms of funding to 
supplant what the parties properly should do in advance of the 
election in defining the direction of their candidate, or the 
candidate in defining the direction of the party.
    And so, while I think Mr. Ornstein's suggestion is laudable 
from election day on, where we have a suitably close race, that 
one can say rationally that there is at least the potentiality 
for alternative candidates ultimately to become President, I 
wouldn't go beyond it.
    Mr. Turner. Mr. Light.
    Mr. Light. I would say back in 1988 we did have provisions 
in the Presidential Transition Effectiveness Act for doing 
exactly what Norm is suggesting. We had--the U.S. Senate passed 
a bill that as part of the act would have given the major 
parties, committees as defined under the Federal Election 
Campaign Act, $250,000 each to do some preelection transition 
planning sort of personnel kinds of things, inventories of 
positions. And it happened at a table here in conference where 
we just had a problem dealing with the amount of money that 
would be wasted. And it was dropped because there were some 
members of the conference committee who felt it was a waste of 
money to give a losing candidate $250,000 for preelection 
    To this day, I think it was a mistake. And no disrespect 
intended to the giant in the portrait above your shoulder. I 
think it would have been a good investment. And the parties 
would have continued that activity after the election and would 
have built the capacity--a small investment that might have 
yielded a big result. I guess I would say on this side that we 
came close, but no cigar. No disrespect again.
    Mr. Horn. Well, I want to get Dwight Ink into this. I was 
just really looking at the lawyer questions to try to wind that 
one up. And Mr. Ink has, I think, served seven Presidents, he's 
testified before Congress over 50 years, and he has been acting 
GSA Administrator. And so----
    Mr. Ink. Twice.
    Mr. Horn. Once.
    Mr. Ink. Twice.
    Mr. Horn. Or twice. I'd like to get some of his thoughts 
in, particularly if they relate to the legal drafting here and 
what you think--who should do it; should the Controller General 
do it, or whoever?
    Mr. Ink. Thank you, Mr. Chairman. Having had that 
experience that you talked about, I feel very strongly that a 
transition has much to do with the success or failure of a new 
Presidency, particularly in the first year, sometimes 
throughout a whole Presidential term. We saw, of course, what 
happened to the Kennedy transition in the national security 
area where that vacuum directly led to the Bay of Pigs and then 
later to the Cuban nuclear missile crisis.
    But there are many other things that are much less dramatic 
that have a considerable impact on the success or failure of a 
Presidency. Without going into the details, my own view is that 
the flavor of much of the hearing today considerably 
understates the importance of the transition and considerably 
understates the problems that we're already accumulating in 
this particular transition.
    Mr. Sununu talked about some of them. The new budget people 
are going to have to start virtually from scratch to pull 
together a new budget. You cannot do that scattered around in 
law offices around the town. You cannot do that. It's almost 
impossible to do it under the very best of circumstances. 
Policies, new initiatives, have to be developed in such a way 
that they're workable. We saw the problem with President 
Clinton's health care plan there, which the workability 
dimension was not addressed during the early period.
    There are a whole series of things that need attention, and 
we're already behind schedule. And much of the perception 
today, which I agree with, nevertheless was from the 
perspective of White House people and the outside media, not 
from the perspective of the agencies and the departments where 
the impact of these delays can be very, very serious. And I 
think we're already seriously behind schedule.
    I agree that, by the way, that I think the GSA staff--June 
Huber I think has done very well. And I think that they have 
tried very hard within the framework of the law as they have 
had it interpreted for them.
    With respect to the law, I think one can make, as has been 
done here, a legal argument that funds could have been released 
or could now be released by the General Services 
Administration. I think there's a very strong counterargument 
to that. But what I think we need to keep in mind is the public 
policy dimension. To what extent would the general public 
accept the notion that an agency head, head of GSA, has 
determined their next President? My own view is that is wishful 
thinking. I do not think in a political public policy sense, it 
would be accepted. I think we have to have some legislative 
    I think we need to amend the Presidential Transition Act. 
With the litigation that's been spawned in this election, that 
is likely going to create I think much more litigation in the 
future than we've had in the past.
    I have one possible suggestion. Probably there are better 
ones. But in my testimony I suggest, as one example, that if 5 
or 10 days, whichever you want, after the election, no 
candidate has clearly won, GSA should then make available the 
assistance now authorized under the law on an equal basis to 
each candidate until a clear winner is determined by such means 
as a concession or the legal processes have run their course. 
Admittedly, the amount received by the eventual winner would be 
reduced. Or, and what I would prefer, is that supplemental 
funds would be made available but held in reserve for such an 
eventuality. So that is one suggestion I would suggest that the 
committee take under consideration in the next 48 hours. I 
think without waiting to see how that happens, I believe that 
this committee should move forward, as Mr. Ornstein has 
suggested, I think to look at much broader than just this 
provision I've talked about, which is something I would suggest 
be done immediately and see what else can be done. And I do 
support the thoughts of Paul Light and Norm Ornstein on 
developing some way to have some advance funding in advance of 
the election.
    Mr. Chairman, beyond the transition legislation, however, I 
think we also need to look at the need for reform of election 
laws and regulations. This current situation is weakening the 
confidence of the public in our election process and it is 
exposing the United States to ridicule around the world. I 
suggest a bipartisan commission to look at opportunities for 
removing the types of election problems we're now experiencing, 
perhaps a commission co-chaired by former Presidents Ford and 
Carter, with a composition drawn heavily from former State and 
local officials. I'm not suggesting that this commission review 
the electoral college concept, because I think that gets us too 
quickly into partisan issues that would overshadow everything 
else. I do not suggest that a commission should attempt to set 
standards for States. I think it could bring State and local 
groups together to examine the election problems, compare 
approaches that they found useful, and consider reforms that 
States might find useful, and it might even spawn some State 
commissions, such as the Hoover Commission did, in spawning 
little Hoover commissions in the 1950's.
    So, Mr. Chairman, to summarize, I think the transition 
problem is not a national crisis, but I think it's much more 
serious than much of what has been described here today. And I 
do recommend specific legislation, specific amendments for the 
Presidential Transition Act, and I recommend a bipartisan 
commission in looking at our election laws.
    Mr. Barram. Mr. Chairman.
    Mr. Horn. Thank you for that. Yes.
    Mr. Barram. For what it's worth, and not having cleared 
this with the White House--but I endorse to any notion of 
within 10 days, and I would think there ought to be a 
supplemental budget available. I think that would be fine. We 
would have to figure out how to find additional space rather 
than split it in half, but that's a small price to pay for the 
kind of transition that we ought to have.
    Mr. Horn. Yes. Mr. Zywicki.
    Mr. Zywicki. If I may just have one brief comment. Which 
is, it strikes me--again my view is that the Administrator's 
discretion is virtually nil under this statute that's triggered 
by the electoral college count. But if you disagree with it, it 
seems like there's really two directions you have to go.
    One is either to provide for some sort of--after that, a 
judicial review or some sort of administrative review of the 
standards that the Administrator is using, if we are going to 
interpret this such that it gives them discretion, you have got 
to have some mechanism for reviewing that. Alternatively, you 
can clarify the language to make it clearer to remove the 
discretion and create more of a bright line rule, which is what 
I'm proposing it does already. The statute creates a bright 
line rule that relieves the Administrator of most of his 
discretion, but it seems like the current situation of 
unreviewable discretion on no articulated basis seems to me to 
be the worst of all worlds.
    Mr. Horn. Well, unlike you in the discussion here, what 
individual or holder of a position in the executive branch 
should be asked to do that? Any thoughts, other than the GSA 
    Mr. Zywicki. I don't necessarily have any problems with the 
GSA Administrator doing it in a way such that it triggers, say, 
the APA protections and is subject to judicial review. So you 
could have a situation where you clarify he has discretion to 
make this call, but then say that it is a factual 
interpretation that is subject to judicial review under the 
standards or the mechanisms that we review discretionary 
judgments by administrative agents, and that seems like it 
could be done in a relatively expedited basis in Federal 
    Mr. Horn. Mr. Gerson.
    Mr. Gerson. I would respectfully disagree with that. I 
think your questioning, Mr. Horn, implies a much better way to 
deal with this. There is no problem in the abstract with the 
Administrator of GSA exercising some level of supervision, but 
the idea--and even though I talk about APA compliance as one 
way to look at reviewability, if we are in exactly the same 
situation we are in now, which is one thing, we want to 
diminish the number of cases like this that go to court. We do 
not want the judiciary serving as the archons for decisions 
that belong in the body politic or in the legislature. So I 
think that is not a good idea.
    The much better idea, the one that you describe, is either 
to tone up the definition of ``apparence'' in the statute or, 
better than that, deal on a prospective basis in the way that 
you are just describing, that I think everybody would like to 
see you act, that when you have a race of sufficient closeness, 
which ought to be defined to eliminate fringe candidates from 
this discussion altogether, that if somebody is within 10 
percent of the number of electoral votes that you need, or 
whatever it might be, that the Administrator is authorized to 
fund those candidates subject to the sorts of considerations 
that you are describing now.
    That's a way that the problem can be worked out in an 
intelligent political sense without burdening the courts or 
imposing an imperial judiciary on a process where it doesn't 
belong at all. This idea that we keep hearing that these 
challenges to the election are all within the rights of the 
candidates, true enough, and so this is a great thing. It is 
not a great thing.
    Mr. Horn. Let me ask you all about the 271 electoral votes. 
Were they real? I am told the opposition to the Governor have 
been making phone calls all over America trying to get 
electoral votes to change. How would you define it if those 
electors, 1 or 2 weeks earlier, note a majority, and at that 
point, could the GSA Administrator make a decision or not? Is 
it on this topic or have you got a substitute?
    Mr. Ornstein. No, it is on that topic. It seems to me that 
you can't set a specific set of criteria that will govern all 
the time. If you look at 1800, 1824, 1876, the classic 
examples, this one is different. The next one is going to be 
different than these. What could you do is lay out some of the 
criteria you would want to use, and it would seem to me the 
absence of a concession, an election where one State, or 
perhaps two, are within a small margin of error, where the 
electoral votes themselves would change the outcome, and there 
are legal processes in place being pursued by the candidate who 
is behind, are certainly reasonable criteria.
    But one should note, Mr. Chairman, that just imagine if the 
circumstances between the two candidates today were reversed, 
if Vice President Gore had 271 electoral votes to 267 at the 
moment for Governor Bush. Imagine that it came down to Florida 
with a margin of one one-hundredth of 1 percent and legal 
processes were going on, and a GSA Administrator of the same 
party as the Vice President preempted the process early and 
said, I'm going to declare that the Vice President is a 
President-elect, we would have had a firestorm of controversy. 
That, it seems to me, is just what H.R. Gross, among others, 
wanted to avoid, and, you know, if you consider that context, 
you can find a way to inject yourself into the political 
process. We didn't consider it this time, because you have the 
opposite political parties, but boy, as we have seen in other 
places in the country, you can have people in the same party 
and it creates a cloud.
    Mr. Light. I think the issue about what H.R. Gross intended 
in his debate has to be measured by what Dante Fascell and the 
authors of the statute in Congress did eventually conclude in 
the statute, which was, it did not wish to wait for absolute 
certainty here. They wanted to start the transition. I'm very 
comfortable with the Administrator of the GSA retaining the 
discretion to make the apparency decision. If he can't make it 
within a date certain, then let him begin parallel transitions, 
then the big debate, and one that I'm sure that this 
Administrator doesn't want to engage in is whether you are 
going to put one at 1800 G Street, and the other down at the 
Navy Yard and what that battle is going to be for the best 
    But the Administrator does have the ability to make these 
decisions. You shouldn't put the criteria into the statute. Put 
the criteria as such into your legislative report and just 
create a trigger so that the Administrator can continue to use 
his discretion.
    Mr. Horn. May I say on that last point, we faced the 
problem in the Federal courts of they don't care anything about 
reports, about colloquies on the floor or anything. It has to 
either be in the law or don't expect it to be administered.
    Mr. Light. But if you get too detailed, you lock yourself 
into a set of criteria. There was some discussion here today 
about who is the GSA Administrator after all. Well, we can see 
him and it is a unit of government that has a strong record and 
has been an agency that has had good strong leadership, and we 
can allow that Administrator to have the discretion within 
appropriate bounds, I think.
    Mr. Horn. Let me ask Mr. Zywicki.
    Mr. Zywicki. On that point, I think it is crystal clear 
from at least the legislative history, if not the statute, but 
that they clearly understood that a majority of electoral votes 
was going to be the trigger here, because that is all they talk 
about is the scenario where if somebody is three or four votes 
shy in the electoral college, they cannot be the President-
elect. They clearly contemplate that some of the electoral 
votes might have the possibility to change after an apparent 
winner was named, and that simply did not deter them in that 
situation. That seems to me to be, at least as originally 
constructed, a majority of the electoral votes is the trigger.
    And I want to second something that Mr. Gerson said which 
is, I'm not calling for judicial review. I think that the best 
situation is to create some sort of bright line rule with 
respect to this because, although I'm sure Mr. Barram's doing 
his best in a difficult situation, I simply don't think there's 
any reason to believe that when they wrote this legislation, 
that they expected that the Administrator was going to wield 
this kind of discretion. It is clear that they thought it was 
going to be a bright line rule, an easy determined outcome 
based on electoral votes and that you're not going to have this 
sort of open-ended kind of inquiry or they would have provided 
for some sort of review of discretion if they'd intended to 
create that sort of open-ended inquiry.
    Mr. Horn. Mr. Barram.
    Mr. Barram. Mr. Chairman, I don't have any doubt in my mind 
that in the year 2004, we will know how to count votes 
electronically with technology so we don't have this stuff 
going on that is going on today. And if I may suggest to this 
committee, I think the most valuable thing for you to do is 
figure out how to get a supplemental appropriation, or some way 
where both campaigns can begin to spend government money on the 
transition activities. I believe that you can walk into--you 
could have a poll--every precinct in America could have a piece 
of technology where you made your choices, and a screen flashed 
up and said is this what you meant, you could push a button and 
now it is recorded.
    The most significant problem we would have is making sure 
that none of that got out until 11 p.m. in the East. But with 
the machine count it would be very hard to ever say, well, I 
didn't mean it when I pushed the button ``yes.'' The younger 
generation, who have grown up using video games, would find 
this particularly sensible. If we did it at every precinct, it 
would be easy for me to imagine people cleverly figuring out 
how you could do that over the Internet with the right kind of 
encryption, including absentee ballots. You could even walk 
into the polling booth with that little card that we've all 
seen a million times on television, punched, stick it into the 
device, and up would pop here's what you voted for, is that 
what you meant, Mr. So-and-so? You push a button ``yes'' and 
you are done.
    So I think the solution to this is going to be much more 
technological and a better voting mechanism than it is, to not 
be disrespectful about it, but how many angels can dance on the 
head of a pin conversation that we can easily get into?
    Mr. Horn. The gentleman from Texas, Mr. Turner, on 
    Mr. Turner. Thank you, Mr. Chairman. I want to ask, maybe, 
if we could get your thoughts on one proposal here to that see 
if we could reach consensus. Obviously, if we are going to 
remedy this legislatively, in the near term, we have got to 
have something pretty simple, pretty straightforward, everybody 
understands, everybody agrees and signs off on, and I think Mr. 
Light, and I know Mr. Ornstein shared that view, that we don't 
want to put the Administrator of the GSA in the position of 
either actually picking or appearing to pick the President. And 
this suggestion, Mr. Zywicki, that this current law is a bright 
line, I don't view it as a bright line other than to say, as I 
think the legislative history would support Mr. Sell, if you 
don't know, an intelligent being can't really tell, you do 
nothing almost as if to say this is not any entitlement, this 
is Federal dollars we're talking about here, and if you can't 
figure it out, well, you just don't do anything, which is 
exactly what happened in the instance case.
    So maybe, and let me ask each of you to respond to this, 
maybe we could leave the language alone regarding the apparent 
winner, because as I read from the dictionary you handed us, 
one definition of ``apparent'' as a synonym is ``evident, 
obvious or patent; capable of easily being received or 
understood; plain, clear or obvious.'' And perhaps we could 
leave the statutory language regarding ``apparent'' alone for 
the moment, and simply say that if it is not determined within 
10 days, then the two candidates at the top will divide the 
money. That means we don't disturb the discretion that is there 
for the GSA Administrator to decide, but if he doesn't, for 
whatever reason, then he's not in the position of actively 
choosing one over the other, or even choosing that there's not 
a winner. It would simply say this failure to act within 10 
days will act in division of funds to the top two candidates. 
Now, I'd like each of you to respond to that.
    Mr. Ink.
    Mr. Ink. Well, of course in principle, I think that's a 
great idea. I'm glad you suggested it. Because I think it gets 
the Administrator out of the role insofar as the public is 
concerned, the apparent role of having to choose a U.S. 
President, which is absolutely the wrong role for the 
Administrator of GSA. Whether you use the word ``apparent'' or 
``clear,'' I used the word ``clear,'' I don't have a strong 
view on that, but the concept I strongly support. I think 
relying upon judicial remedies is the wrong road to go. You 
have got to minimize the uncertainty as much as you can. You 
have to minimize as much as possible the role of the courts in 
trying to determine when funds are going to be available for 
the transition.
    Mr. Turner. Mr. Ornstein.
    Mr. Ornstein. I'd only have one concern, Mr. Turner. I 
think congenitally I look at unintended consequences when I 
think about any of these changes, and you just need to think a 
little bit about that in terms of making sure you don't provide 
any incentive for a candidate who's not in a position to win to 
avoid a concession to get a bundle of money to keep going for a 
period of time. So you still need to have a process here where 
you move toward declaring a winner, except under extraordinary 
    I don't think you can specify all of those circumstances. I 
think that Mr. Barram is right, we are going to move to a very 
different voting system and the electronic aspect of it; the 
touch screen aspect of it will take away some of these 
problems, but I will also tell you we are moving very rapidly 
toward vote by mail, vote by Internet, people not voting in the 
voting places, and that is going to bring us back to a kind of 
corruption that we had before we had the Australian ballot and 
the secret ballot in the voting booth after 1884 where we will 
have other kinds of problems that will emerge. We can't tell 
them all. We can probably establish some guidelines. But I 
think you need to have some discretion here for an individual 
to make some of those determinations.
    Mr. Horn. I take it that on this suggestion, which I am not 
opposed to if that was a President already in office he or she 
would not get any of that money, because I think H.R. Gross 
would say in that colloquy, ``boy, that will really be some 
pizza party.'' So that's how he used to deal with this.
    Mr. Zywicki. I think it raises a good idea, one that 
probably needs more study, more than we have the leisure now. 
One easy fix of the current situation would be to amend section 
4(C) that was enacted in 1988 that gives us 30-day reach-back 
period for the Vice President and simply amend that, I presume 
do it retroactively, to say that trigger for the outgoing 
administration begins the day of the election, so that you 
could open that window and just release the money that Vice 
President Gore would be entitled to 30 days before the end of 
the term and just open it up. I don't see any reason why 30 
days is a better rule than Election Day anyway. So that might 
be one easy way of--just very small tweak could resolve the 
issue that is currently going on.
    Mr. Light. I think you'd want to make sure you prorate the 
expenditures where you don't end up in a situation where you 
have spent all the money by December 18th. So you have to amend 
the statute to give the Administrator discretion to make sure 
the expenditures are reasonable and you are not outspending the 
moneys available. I think you could do that very easily in the 
statute. You will have near certainty with December 18th or--I 
mean, you have absolute certainty on January 20th. So you just 
have to roll back and make sure the money isn't gone.
    Mr. Horn. Any other comments on this, Mr. Ink?
    Mr. Ink. My preference if we were to go this route, though, 
would be to do it in such a way that the winner was not 
handicapped, not having the amount of funds reduced. I think by 
having a supplemental amount that would be held in reserve for 
such an eventuality would be a very small price to pay for 
opening up the ability to move forward with a full-fledged 
    Mr. Light. Let me also suggest that in your drafting 
process that you make as a condition of accepting these funds 
in this sort of dual transition period full disclosure of any 
private funds being raised. I mean, I would just basically pull 
forward the requirements under the current 1988 amendments.
    Mr. Turner. That is current law, is it not?
    Mr. Light. Yeah, but, I mean, right now the Bush and Cheney 
transition have voluntarily agreed to abide by the disclosure 
    Mr. Gerson. The law would take care of it. The reason why 
the Bush-Cheney group is where it is is because it is not 
getting the funds in the transition. If it were, the disclosure 
provision would be triggered. So that I think that if you make 
those funds available and you continue what you have in 1988, 
it's--that's a nonproblem.
    Mr. Ornstein. Mr. Chairman, I would urge you to do this now 
in the simplest and most neutral way possible for now. Then you 
can go back when you have more leisure and think about whether 
the language that you've used would be more appropriate without 
unintended consequences for future elections.
    Mr. Turner. I agree with that. Did I understand all of you 
to agree with the basic concept of having the Administrator 
exercise his discretion within the first 10 days? If he fails 
to so exercise, and the funds shall be divided equally between 
the two top candidates, and subject to the refinements you 
mentioned such as ensuring that they are accountable for the 
funds. They don't spend it all at one time, and I assume such 
time as the apparent winner is determinable, then the funds 
would cease to the losing candidate, would that be an 
appropriate refinement as well?
    Mr. Gerson. I think Mr. Ornstein made a very important 
point, though, and I want to subscribe to that particularly, 
which is, don't legislate for all times today and tomorrow. 
That's a bad way to put the meal down. Solve this problem. You 
have great consensus and very easy resolution. If you get into 
legislating for all time, you're not going to be able to push 
this thing through the short window that you have. I think Mr. 
Ornstein and I, as this discussion has progressed, are fairly 
close together on what you ought to do ultimately. There needs 
to be--to the extent the discretion resides in the 
Administrator or somebody else, there still needs to be some 
defining circumstances as to how he or she might exercise it. I 
think it ought to be pegged to the electoral vote or probable 
electoral vote more than anything else, given the Nation's 
history and the way the Constitution works, but that aside, I 
think you ought to solve the immediate problem now and then, in 
a more considerate way, deal with the ultimate solution to how 
that discretion might be exercised.
    Mr. Barram. While you're solving the immediate problem, I 
would really urge you to seriously consider doubling the money 
or making more money available, especially now if you come up 
with a solution where we end up with having both campaigns with 
money, it is going to cost a little more than if we had 4 
months to prepare for it. I just want you to know that so that 
we don't shortchange either group. You could just take a 
submarine out of one of the----
    Mr. Horn. Let me thank the staff that put this rapidly 
together. J. Russell George; on my left, your right, is staff 
director and chief counsel of the subcommittee; Randy Kaplan, 
counsel; Bonnie Heald, director of communications; Earl Pierce, 
professional staff in back there; Elizabeth Seong, clerk; 
Rachael Reddick, intern; minority staff, Trey Henderson is 
counsel, and Jean Gosa is the minority clerk. The overworked 
court reporters are Colleen Lynch and Melinda Walker, and we 
thank you both.
    And I believe, Mr. Barram, in the decision of the Supreme 
Court of the United States, I would urge you to look at the 
request from Congressman Kolbe, the appropriator, and myself as 
chairman of the authorizers last week and I hope that there 
would be some ascertainment as quickly as possible as to who 
the apparent winner of this Presidential race is, and I would 
hope in the next few days that we would have some language that 
might solve the problem, but you can also stop the language if 
you take a look at what the Supreme Court's decision is today. 
I think you'd find nothing is going to happen until that 
decision is taken a look at, and I would hope you and your 
staff would go there and see if you can't change your mind on a 
lot of this because time, as one said, is going along and money 
isn't. Thank you. And we are now in adjournment.
    [Whereupon, at 2:25 p.m., the subcommittee was adjourned.]