[Senate Hearing 112-197]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 112-197
 
   ELIMINATING THE BOTTLENECKS: STREAMLINING THE NOMINATIONS PROCESS 

=======================================================================

                                HEARING

                               before the

                              COMMITTEE ON
               HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE


                                 of the

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 2, 2011

                               __________

         Available via the World Wide Web: http://www.fdsys.gov

                       Printed for the use of the
        Committee on Homeland Security and Governmental Affairs


                               __________

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        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

               JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan                 SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii              TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware           SCOTT P. BROWN, Massachusetts
MARK L. PRYOR, Arkansas              JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana          RON JOHNSON, Wisconsin
CLAIRE McCASKILL, Missouri           JOHN ENSIGN, Nevada
JON TESTER, Montana                  ROB PORTMAN, Ohio
MARK BEGICH, Alaska                  RAND PAUL, Kentucky

                  Michael L. Alexander, Staff Director
       Beth M. Grossman, Deputy Staff Director and Chief Counsel
               Kristine V. Lam, Professional Staff Member
               Nicholas A. Rossi, Minority Staff Director
              Molly A. Wilkinson, Minority General Counsel
                   Jennifer L. Tarr, Minority Counsel
                  Trina Driessnack Tyrer, Chief Clerk
         Patricia R. Hogan, Publications Clerk and GPO Detailee
                    Laura W. Kilbride, Hearing Clerk









                            C O N T E N T S

                                 ------                                
Opening statements:
                                                                   Page
    Senator Lieberman............................................     1
    Senator Collins..............................................     3
Prepared statements:
    Senator Lieberman............................................    21
    Senator Collins..............................................    23

                               WITNESSES
                        Wednesday, March 2, 2011

Hon. Clay Johnson III, Former Deputy Director for Management, 
  Office of Management and Budget................................     4
Max Stier, President and Chief Executive Officer, Partnership for 
  Public Service.................................................     7
Robert B. Dove, Ph.D., Former Parliamentarian of the U.S. Senate.    10

                     Alphabetical List of Witnesses

Dove, Robert B., Ph.D.:
    Testimony....................................................    10
    Prepared statement...........................................    43
Johnson, Hon. Clay III:
    Testimony....................................................     4
    Prepared statement with attachments..........................    25
Stier, Max:
    Testimony....................................................     7
    Prepared statement...........................................    35

                                APPENDIX

``A Half-Empty Government Can't Govern: Why Everyone Wants to Fix 
  the Appointments Process, Why It Never Happens, and How We Can 
  Get It Done,'' by William A. Galston and E.J. Dionne, Jr., 
  December 14, 2010, submitted by Senator Lieberman..............    45
``Ready to Govern, Improving the Presidential Transition,'' 
  Partnership for Public Service, January 2010, submitted by Mr. 
  Stier..........................................................    64
Norman J. Ornstein, Resident Scholar, American Enterprise 
  Institute, prepared statement..................................    98
Responses to post-hearing questions for the Record from Mr. 
  Johnson........................................................   103


   ELIMINATING THE BOTTLENECKS: STREAMLINING THE NOMINATIONS PROCESS

                              ----------                              


                        WEDNESDAY, MARCH 2, 2011

                                     U.S. Senate,  
                       Committee on Homeland Security and  
                                      Governmental Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:03 a.m., in 
room SD-342, Dirksen Senate Office Building, Hon. Joseph I. 
Lieberman, Chairman of the Committee, presiding.
    Present: Senators Lieberman, Collins, and Brown.

            OPENING STATEMENT OF CHAIRMAN LIEBERMAN

    Chairman Lieberman. The hearing will come to order. Good 
morning and thank you for coming here. This is one of those 
topics and hearings that attracts not much public attention, 
but is actually greatly in the public interest. So if we six, 
and everyone else in the room can agree, I think it will be 
good for America.
    I thought I would start with a bit of history. In 1789, on 
a single day, the Senate of the United States took up and 
confirmed 101 executive nominations President Washington had 
sent up just 2 days earlier. I guess there was one rejected, 
and the President, our first President, complained--politely, 
I'm sure--to the Senate about the one that he did not get 
confirmed. But 101 nominations confirmed 2 days after they were 
sent to the Senate.
    My history does not go back this far, but I bet they 
performed as well as the thousands and thousands of nominations 
since that have taken months and months and months to get to 
confirmation. And, of course, that is why we are here.
    Modern presidents of both parties, I am sure, would sigh at 
that story of Washington's experience with envy. Nowadays the 
process by which a person is selected, vetted, nominated, 
considered, and confirmed by the Senate has become--in the 
words of one scholar--``nasty and brutish, without being 
short.''
    One hundred days into President Obama's Administration, 
only 14 percent of the Senate-confirmed positions in his 
Administration had been filled. After 18 months, 25 percent of 
these positions were still vacant. And this is not an 
aberration, of course, or an anomaly: The timetables for 
putting in place a leadership team across the government have 
been pretty much the same each of the last three times there 
has been a change of occupant in the White House.
    We have known about this problem a long time, but failed to 
act.
    In recent history, in 2001, under the former Chairman of 
this Committee, Senator Fred Thompson, we held hearings on 
``The State of the Presidential Appointment Process'' and 
recommended legislation, which did not pass.
    In 2003, a bipartisan commission headed by Paul Volcker 
recommended ways to speed up the nominations process. That got 
nowhere.
    And in 2004, to put it in a different context, the 9/11 
Commission said the delays in getting a new government up and 
running actually pose a threat to our national security, and in 
its report it also recommended ways to speed up the process.
    Well, after years of talk, it may well be that the time for 
change has finally arrived and we will have bipartisan support. 
This is one of those things where ``it ain't over until it is 
over.'' So while I am encouraged, I am not confident yet.
    And the reason for the change is that in January, Majority 
Leader Harry Reid and Minority Leader Mitch McConnell 
established a working group together on executive nominations 
and appointed Senators Charles Schumer and Lamar Alexander--
Chairman and Ranking Member, respectively, of the Rules 
Committee--to lead it. These two colleagues of ours have been 
working on draft legislation, and Senator Collins and I have 
been working with them on it, and we hope to introduce the 
legislation shortly.
    The nature of the problem really is known certainly to 
people in this room, and, therefore, I am going to put my full 
statement in the record, which documents the problem in 
specific numbers.
    The legislation that we are working on will eliminate 
Senate confirmation for several categories of presidential 
appointments, freeing up the Senate to concentrate on the more 
important policymaking nominees.
    It will also raise and, I think, answer some other 
questions. Can we simplify, standardize, and centralize the 
forms and documentation required by both the White House and 
the Senate so a nominee is not stretched out with duplicative 
paperwork and information requests?
    And second, since we know that there will be a flood of 
nominations with each new Administration, can we create what 
might be called a ``surge'' capacity by temporarily adding 
personnel to the White House Office of Presidential Personnel 
and perhaps the Federal Bureau of Investigation (FBI) to handle 
vetting and background checks more efficiently?
    In the past, the reason nominations reform legislation has 
stalled is, I think, evident and not really acceptable. And it 
is because of the perceived fears of some of our colleagues in 
the Senate, particularly chairs and ranking members, that they 
would be giving up some of their jurisdiction and authority if 
there were fewer nominations that came before them. The truth 
is that some of these nominations that are confirmed by the 
Senate not only should not be but, frankly, it is a waste of 
the Committee's time to spend on them when we could and should 
be doing work on legislation.
    Nothing in the legislation that Senators Schumer, 
Alexander, Collins, and I are working on together will weaken 
in any way the important constitutional role the Senate has to 
advise and consent.
    And if I may end with a little history as well, Gouverneur 
Morris, who was one of the architects of the Constitution, said 
when speaking in favor of the Advice and Consent Clause: ``As 
the President was to nominate, there would be responsibility. 
And as the Senate was to concur, there would be security.''
    Those essential national goals and principles for our 
government will be unaffected by the kinds of changes, which 
are actually relatively modest, that we are talking about. But 
I hope and believe that we can get these changes accomplished 
this year.
    Senator Collins.

              OPENING STATEMENT OF SENATOR COLLINS

    Senator Collins. Thank you, Mr. Chairman.
    The Chairman is certainly correct that rarely do we take on 
an issue where it is of such intrinsic importance to the way 
government functions and yet appears to be of little interest 
to the press and the public despite that importance.
    One of the most significant responsibilities of U.S. 
Senators is set forth in Article II, Section 2 of our 
Constitution. It requires that the Senate provide its advice 
and consent on nominations made by the President.
    The 82-word Appointments Clause, as it is commonly known, 
provides the President with the authority to determine who, in 
his judgment, is best qualified to serve in the most senior and 
critical positions across the Executive Branch. It also 
requires that we, the Senators, exercise our independent 
judgment and experience to determine if nominees have the 
necessary qualifications and character to serve our Nation in 
these important positions of public trust.
    The confirmation process must be thorough enough for the 
Senate to fulfill its constitutional duty, but it should not be 
so onerous as to deter qualified people from public service. 
And I fear that is what is happening today.
    Countless studies have been written and many experts have 
opined on how to improve the process--from the Brownlow 
Commission in 1937 to, as the Chairman has mentioned, the 9/11 
Commission in 2004.
    Let me say that there are two areas in particular where I 
think improvements should be made. The first is to reduce the 
sheer number of positions subject to Senate confirmation.
    For example, why is it that the public affairs officials in 
some major departments and agencies are subject to Senate 
confirmation when they are not carrying out any policy role?
    In this regard, the National Commission on the Public 
Service, commonly known as the Volcker Commission, gathered 
some very illuminating statistics. When President Kennedy came 
to office, he had 286 positions to fill with the titles of 
Secretary, Deputy Secretary, Under Secretary, Assistant 
Secretary, and Administrator. By the end of the Clinton 
Administration, there were 914 positions with those titles.
    Today, according to the Congressional Research Service 
(CRS), there are more than 1,200 positions appointed by the 
President that require the advice and consent of the Senate. So 
there has been an enormous explosion in the number of positions 
that are now subject to Senate confirmation.
    This large number of positions requiring confirmation leads 
to long delays in selecting, vetting, and nominating these 
appointees. Consequently, administrations can go for months 
without key officials in many agencies. And when political 
appointees are finally in place, their median tenure is only 
about 2\1/2\ years.
    A second area ripe for reform, in my view, is to develop a 
consistent, common form for nominees to complete in order to 
streamline the process, save time, and increase accuracy. This 
also would reduce the cost and burden on nominees.
    If these two areas could be reformed, substantial time will 
be saved, and key leadership posts at our Federal agencies will 
not be vacant for nearly as long.
    National security reasons also compel attention to this 
problem. As the Chairman has pointed out, the 9/11 Commission 
identified this gap, and the National Journal has noted that 
``[p]eriods of political transition are, by their very nature, 
chaotic'' and that ``terrorists strike when they believe 
governments will be caught off guard.'' Both the 1993 bombing 
of the World Trade Center and the attacks on September 11, 
2001, occurred within 8 months of a change in presidential 
administrations, and the March 2004 attacks at Madrid occurred 
3 days before Spain's national elections.
    Now, during this mid-term period--2 years away from a 
presidential election--we have the opportunity once and for all 
to streamline the process. This can help ensure that the next 
presidential transition, whether it occurs 2 years from now or 
6 years from now, will be as smooth as possible, thwarting the 
terrorists' belief that they will be able to ``catch us off 
guard.''
    While we must deliver on our duty to provide advice and 
consent, reforms are clearly needed to improve the effective 
operation of government. We all want the most qualified 
individuals possible to serve our Nation. We should, therefore, 
ensure that the process is not so unnecessarily burdensome that 
key leadership posts do not go unfilled for long stretches of 
time. And most of all, we need to reform the process so that 
good people whose talents and energy we need do not become so 
discouraged that they give up on their goal of serving the 
public.
    Thank you, Mr. Chairman.
    Chairman Lieberman. Thanks, Senator Collins, for that 
statement.
    Thanks to the witnesses. We have a great group of witnesses 
this morning who bring real experience and insight to the 
topic. So let us go right to Clay Johnson, who is a former 
Deputy Director for Management at the Office of Management and 
Budget (OMB). Thanks for being here.

 TESTIMONY OF HON. CLAY JOHNSON III,\1\ FORMER DEPUTY DIRECTOR 
        FOR MANAGEMENT, OFFICE OF MANAGEMENT AND BUDGET

    Mr. Johnson. Thank you, Mr. Chairman and Ranking Member 
Collins.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Johnson appears in the Appendix 
on page 25.
---------------------------------------------------------------------------
    Chairman Lieberman. Coming back from Texas, right?
    Mr. Johnson. That is right. I congratulate and commend you 
all for taking this up so seriously. This is something that Mr. 
Stier and I and others have been working on and have wanted to 
be involved in helping to fix for a long period of time. And I 
sense, as I suspect you all do, that this might be just such an 
opportunity. There seems to be interest on both sides of the 
aisle, at all levels of leadership--the Senate, several 
different committees, and Senators Reid and McConnell--and so 
let us know today and later how we can help you all get as much 
done as possible.
    My encouragement to you is that, as you think about 
different reforms, you pay particular attention to the reforms 
that can impact, as you have suggested in your opening remarks, 
the capability, the capacity, and the ability of a new 
Administration to put the Cabinet and sub-Cabinet in place by 
the August recess, and perhaps the 93, 100, 125, or so of the 
most time sensitive of those positions in place by April.
    It does not mean that the Senate must confirm everybody 
that the new President sends up, but that the Senate should 
accept or reject, vote up or down that person so that the new 
Administration can move on. It does not mean that the new 
Administration should nominate the appropriate number of people 
regardless of quality. The emphasis is on quality. The emphasis 
is on the Senate being the Senate and fulfilling its 
constitutional responsibilities, but to do it with a great deal 
of attention to whether we have the capacity to get this done, 
if everybody is so inclined, by April 1, or by August 1? And I 
think the two key words are ``ability'' and ``capacity.''
    One of the things I have found out in the last year or so 
as I have worked on the Rockefeller Foundation and Aspen 
Institute Commission on this subject, is that previous White 
Houses have never had the capacity to actually nominate enough 
people to the Senate in the period of time suggested to where 
it was even possible for the 100 most time sensitive, most 
important positions of a new Administration, regardless of 
which positions they were, to be in place by April 1, or the 
top 400 or so by August.
    I point out in my written statement that the staffing of 
the Office of Presidential Personnel in the White House is 
really largely a function of tradition. Presidential Personnel 
is given a certain amount of money to hire a certain number of 
people, a total of about 30, and that means they can hire about 
seven or eight commissioned officers, and they, really smart, 
working really hard, can nominate enough people to get through 
the Senate, with lots of debate, 230 or 240 people by the first 
part of August--not because that is the goal. That is because 
that is the budget they were given. So the idea of having a 
surge capacity in that period of time is a really strong 
concept.
    I just talked about how it might be manifested in the White 
House where some monies within the White House budget be 
reallocated--or it has even been suggested that some private 
monies be raised if there is not enough money in the White 
House budget, to make it possible for the White House to hire 
additional people for a 6-month period of time, to get it done.
    The FBI, the Office of Government Ethics (OGE), and 
Diplomatic Security agree that they can surge. They do not need 
additional resources to create extra capacity in that first 6 
months, but they need to know that this is really important. 
They need to know that the White House wants them to reallocate 
and move their people around. The FBI would not pull people 
away from doing traditional FBI work, nor would the Diplomatic 
Security pull their people away from securing our diplomats 
around the world. But they would do less re-investigation work 
and do almost exclusively investigation work--the same thing 
with the Office of Government Ethics--and they can do that for 
about 6 months. They cannot maintain that capacity without 
additional resources for 9 months, 12 months, 2 years, but they 
can for 6 months. It is really only the White House that I 
believe does not have the resources to create that surge 
capacity for a 6-month period of time.
    Another important factor that is critical, I think, to 
creating the ability and capacity to get those 100 most 
important positions filled by April 1, and 400 by the August 
recess, is to get the background information on all the 
nominees to the potential vetters quickly. Right now a 
nomination comes to the Senate, and Clay Johnson from Texas is 
nominated to do something. That is what the Senate starts with. 
Meanwhile, there is a file this thick in the White House with 
every possible piece of relevant information on that person, 
Mr. Johnson, and yet none of that is made available to the 
Senate. That is dumb. I mean, it is just tradition. It is 
separation of powers, whatever, but it serves no purpose at 
all. And yet something like a standard form or a smart form or 
some combination of those things I believe and am highly 
confident can be developed to get most of the background 
information the Senate needs to begin their vetting, with the 
nomination.
    Same thing with the FBI and the Office of Government 
Ethics. All three of those, including Diplomatic Security, all 
four of those vetting organizations say one of the things that 
when everybody is trying to do something 2, 3, or 4 weeks 
faster during that first 6 months of an Administration, it 
takes 10 days to 2\1/2\ weeks to get the basic background 
information before vetting can even begin. That is critical 
time that the Senate, the White House, and the country needs to 
get our people in place faster and minimize the risks 
associated with those key positions being vacant. And I think 
both of those issues, surge capacity and getting information to 
the vetters very quickly, those are mechanical kinds of things. 
They do not call for the Senate to stop being the Senate. They 
do not call for anybody to lower quality standards. They call 
for managing the process, structuring the process differently 
than happens today, and I think those are process kinds of 
things. Those are things we can address, I am highly confident, 
and I am confident that the two of you and Senators Schumer, 
Alexander, Reid, and McConnell are just the people we need to 
lead this effort, and I commend you for taking it up.
    Thank you.
    Chairman Lieberman. Thank you. That was great, very 
practical and helpful.
    Max Stier, welcome. He is the President and Chief Executive 
Officer of Partnership for Public Service.

   TESTIMONY OF MAX STIER,\1\ PRESIDENT AND CHIEF EXECUTIVE 
            OFFICER, PARTNERSHIP FOR PUBLIC SERVICE

    Mr. Stier. Thank you very much for having me here. It is a 
pleasure, and especially to be with Mr. Johnson. He has been 
someone who has been a great partner. I have enjoyed working 
with him, and it is terrific that he is keeping his aura on 
this issue since he is really in many ways uniquely positioned 
to understand many of the challenges that are involved here.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Stier appears in the Appendix on 
page 35.
---------------------------------------------------------------------------
    I am told--and I do not actually watch TV--that there is 
supposedly a show called ``Wipeout,'' which is essentially an 
obstacle course where people try to run through it and all 
these crazy things happen to them. Sitting here, I am thinking 
that maybe we should create a new reality TV show that looks at 
the political appointments process and presents that as the new 
entertainment. But judging from the audience, we may be in 
trouble, if that is what we try to do here. [Laughter.]
    So I think you are clearly right. This is a critical issue 
that receives really very little attention, and without going 
through any number of stories that demonstrates the critical 
nature of this, I really wanted to focus on 10 recommendations, 
my top 10 list of things that you might consider, some are 
things that you are already looking at, as well as some of the 
things that Mr. Johnson has already mentioned, but at least 
hopefully a framework more that you can look at as well.
    From where we sit at the Partnership for Public Service, we 
believe there are two primary or root causes of management 
dysfunction in the Executive Branch. The first is you have 
short-term political leaders that do not align against the 
long-term needs of the organizations that they are running. If 
you are a political appointee, Senator Collins, as you 
mentioned, you have 2\1/2\ years in office, if you are lucky. 
You are going to be focusing on crisis management and policy 
development, not on the long-term health of the organization 
that you are running. And, clearly, the shorter that time 
period, the shorter the runway, the harder it is for you to 
focus on long-term issues that, in fact, have great 
consequence.
    Second, we do not have real-time information on performance 
typically in government, and those two factors combined make it 
worse because those political leaders can actually hide from 
their impact on the organizations that they run during their 
tenure, because the likelihood is that the damage that they 
have caused is going to be a lagging indicator of public 
failure that takes place once they are long gone.
    The issue that is, I think, quite at center here really is 
that leadership one. Do you have the leadership in place with a 
long enough tenure and the right folks to make sure that 
government is operating correctly? And this is the most vital 
moment of all, as you have already stated.
    So I think there are 10 critical things that Congress can 
do right now, and clearly this is not a problem that the Senate 
has created. This is a problem, though, that the Senate can 
help fix.
    So first--and you have already obviously hit this one--is 
reduce the absolute number of Senate-confirmed positions. That 
would be an incredible achievement. And, clearly, if you are 
talking about 400 or a third of them, that would be massive. 
Not all the Senate-confirmed positions are the same, so if you 
are dealing with the boards, that is great. But in truth, the 
ones that are going to have greatest impact on management in 
government are the ones that are actually in the chain of 
command in the Executive Branch, the ones that actually have a 
field of control over some significant aspect of government 
activity. So to the extent that you can focus attention on 
those, that would matter a great deal.
    And, clearly, to the extent that you can help prevent 
future harm from occurring, that would matter too. With the 
creation of the Department of Homeland Security (DHS), we now 
have 20 Senate-confirmed positions in that agency alone. And, 
again, the tendency is always to add, very rarely to subtract. 
So one would be to reduce those numbers, and that is hugely 
powerful.
    Second, I would argue that you should go even further and 
think not just about converting them from Senate-confirmed 
positions, but think about whether you might even make some of 
them not just political positions but convert them into term 
appointments or career positions. And, specifically, I am 
thinking about the management positions themselves.
    I just came this morning from a breakfast at which a former 
comptroller was there for government, and she was saying that a 
bunch of folks were meeting about the Chief Financial Officer 
(CFO) Act, and they were talking about why is this a political 
position, that it really ought to be a career position. And I 
would argue to you that instead of just making these political, 
not Senate confirmed, make the CFOs, the Chief Information 
Officers (CIOs), the Chief Administrative Officers (CAOs), a 
lot of these management positions, make them career or term 
appointments that have a performance contract, and that will 
give you that longer-run wait and will allow you to have a set 
of folks that are around long enough to make sure that 
government is managed appropriately.
    Now, there is a downside. I think there is a legitimate 
argument on the other side, which says if you make them career 
or term appointments, then they will not be part of the core 
team. The political team will not actually respect them. But 
you know what? I think that is a trade-off we ought to take, 
because the flip side of that is we do not have any long-term 
focus on the management issues that we need. And we see a 
repeat cycle where a new group of political appointees 
eventually get an office, they figure out what is going on, 
they develop a plan, and guess what? They are out the door 
already. So that would be two.
    Three is a timetable for confirmation, and this is 
something that, I think, Mr. Johnson is spot on. The truth of 
the matter is we do need that surge capacity, but when that 
incoming Administration is focusing on the myriad of things 
that it needs to do, it is not prioritizing getting the 
appointments out to you because it does not know what the 
demands are. It has not been told, that if you are going to be 
able to have your government in place on day one, we will have 
a bargain with you. You provide us the names by a date 
certain--January 1, December 15, whatever it is that the Senate 
determines--and then if you do that, we will do exactly what 
Mr. Johnson described. We will make sure that you have an 
opportunity to have these folks heard from. And that would be a 
game changer. It would have enormous impact on actually what 
the incoming Administration focuses on and where they put their 
actual resources.
    So my view is it should be the top 50 by day one. Right now 
tradition holds that there is an effort to get the Cabinet in 
on day one. To me that is not good enough. You know, again, 
President Reagan had 78 by the first 100 days, President Obama 
only 65. We are not moving despite the fact that the world is 
moving much faster, challenges are much more pronounced. We 
need to change the goalposts here. We need to move them 
forward. And to do that, you need to offer a timetable. I would 
respectfully argue that would make a very big difference.
    Four, cap the number of political appointees at individual 
agencies, not simply government-wide. So here is a problem that 
I think is quite--again, not noticed by quite pronounced. There 
is a cap of 10 percent for non-career Senior Executive Service 
(SES) overall for political appointments in government, but you 
see some agencies like the Department of Education where the 
number is 20 percent. Frankly, oftentimes it is viewed as a 
dumping ground, and it has enormous implications on the 
management of those organizations. If you talk to folks that 
are there, you will hear that. And what you ought to have, I 
believe, is a cap on individual agencies in addition to the 
overall government cap, and that would make a very big 
difference. Look at DHS, it has 61 non-career SES, 102 Schedule 
C's, and the Schedule C's are also highly problematic.
    Five, something that I think you are looking at. If it has 
to be a Senate-confirmed position, can you actually have 
something that is an expedite process? So where it is non-
controversial, it does not have to go through committee. So it 
permits the Senate confirmation process to go forward, but does 
not require the same level of investment that you make in some 
of the other reviews that you do.
    Six would be the streamlined forms that Mr. Johnson 
described, and I think that is a terrific idea, and time 
matters.
    One additional thought I would put on top of that would be 
to say is there a possibility of looking not just at making the 
process electronic, but actually trying to improve the process. 
So the danger sometimes is to say, well, we can put it all on 
the Web, but I think it is also an opportune time to look at 
the method itself, and you may be able to make improvements 
there.
    Seven, we need a single source of information about the 
status of political appointments, in particular Senate-
confirmed appointments. So most folks are now going to the 
Washington Post which stopped publishing this in September. 
Well, why isn't there a government Web site that tells you in 
real time, where folks are in the process, ultimately who is 
responsible. Has the Administration not put forward the names 
to the Senate? It should be a one-stop shop rather than 
individual committees where the information is right now.
    Eight, more resources that Mr. Johnson already identified. 
I think that would make a huge difference, particularly on the 
White House side.
    Nine, we need changes to the security clearance process. 
One of my favorite examples of this is Mike McConnell. Thirty-
five years of security clearances, polygraph tests, you name 
it. He gets nominated to be the Director of National 
Intelligence (DNI). Guess what? They decide to do a new 
security clearance for Mike McConnell all over again from 
scratch. So there are all kinds of ways in which that process 
could be improved as well.
    And tenth, this is going to take us a little bit more off 
course, but the truth of the matter is that there are two 
things that are critical here: Who you pick and how you prepare 
them. I do not know if Vince Lombardi said it, but he should 
have. But we are focusing on who you pick. The preparation 
piece of the political appointments is broken. You have a whole 
ton of folks that are coming in. They do not understand 
government. They do not understand how to manage government or 
the people that they are responsible for. They do not operate 
as a team. And we need to see an up-front investment much 
larger than has occurred previously in that orientation, in 
that preparation process. Again, it may not be the topic for 
today, but I hope you will come back to this because I think it 
is absolutely vital.
    So thank you for the great work that you are doing here. 
Obviously, this Committee already passed some legislation 
earlier last year. That was, I think, really important in 
helping provide resources at the front end of the transition 
process. And, again, you are doing just an incredibly important 
thing here. So thank you.
    Chairman Lieberman. Thank you, Mr. Stier. That was 
excellent. Obviously, a number of those can be accomplished by 
administrative action and do not require legislation, a number 
of your top 10.
    Mr. Stier. I will pester them, too.
    Chairman Lieberman. Yes. I do not know that you are going 
to replace David Letterman with the Top Ten List, but that was 
good. [Laughter.]
    It is great to see Dr. Bob Dove again, who was our 
Parliamentarian for years and who has a lot to offer on this 
subject. So thank you for being here.

 TESTIMONY OF ROBERT B. DOVE, PH.D.,\1\ FORMER PARLIAMENTARIAN 
                       OF THE U.S. SENATE

    Mr. Dove. Well, thank you, Mr. Chairman. My perspective 
actually is a little different. I came to the Senate floor as 
part of the Parliamentarian's Office in 1966, and so I have 
watched leaders over the years. The first two leaders that I 
watched were Senator Mike Mansfield of Montana and Senator 
Everett Dirksen of Illinois. And my perspective is that the 
Senate is basically a personality-driven institution, and the 
two most important personalities on the Senate floor are the 
Majority Leader and the Minority Leader. And that is one of the 
reasons that I am so encouraged by the fact that the present 
Majority Leader, Senator Reid, and the present Minority Leader, 
Senator McConnell, have come together and appointed two 
Senators who have already shown their ability to work together, 
Senators Schumer and Alexander, to deal with this issue.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Dove appears in the Appendix on 
page 43.
---------------------------------------------------------------------------
    It is an important issue, but it is an issue that has some 
political ramifications that I have watched over the years. 
Nominations have on occasion become a very convenient tool of 
Senators to push a political agenda that often has absolutely 
nothing to do with the nomination. And I know that Senators are 
loath to give up a power position. That is the reason they come 
to the Senate. And I appreciate that.
    So I do not think that this will all be easy. I have seen 
over the time that I have been on the Senate floor a situation 
where a Senator from Alaska basically tried to blackmail a 
Senator from Washington over a nomination with the idea that 
the Senator from Washington, Henry ``Scoop'' Jackson at the 
time, should support his attempt to get onto a committee that 
existed then, the Joint Committee on Atomic Energy. That 
failed. But also the nomination failed because the Senator from 
Alaska continued his filibuster in that situation.
    So, I have seen in a sense the political side of the 
nomination process, and the fact that only the Senate deals 
with nominations gives Members of the Senate a unique ability 
to exercise that kind of political power.
    I watched, as I say, for 35 years on the Senate floor as 
various leaders dealt with the whole issue of nominations. 
Probably the most powerful leader that I watched in that period 
was Senator Robert Byrd of West Virginia. And, indeed, Senator 
Byrd in the late 1970s was being frustrated over the whole 
issue of getting to nominations, because it used to be in the 
Senate that you got to nominations first by going to executive 
session, and then making a debatable motion to go to the 
nomination, as you now have to make a debatable motion to go to 
legislation, and then you had another debate on the nomination 
itself. And Senator Byrd was successful in setting in the late 
1970s a precedent that eliminated one of those filibusters. It 
is now possible for a leader to make a non-debatable, non-
divisible motion to proceed to any nomination on the executive 
calendar, thus cutting in half the number of filibusters.
    So I have seen, as I say, over the years how leaders have 
dealt with the whole issue of the nomination process. I do not 
think they have solved it yet, but they have dealt with it, in 
the case of Senator Byrd, successfully eliminating one 
filibuster involving nominations. But I do not think you are 
going to take out the whole issue of politics from nominations. 
A nomination which I well remember occurred when President 
Lyndon Johnson was in office, and he sent to the Senate the 
nomination of a totally unqualified person to be a Federal 
district judge with the letter supporting it from Senator 
Robert Kennedy as a kind of payback, as it were. And it worked. 
That nomination failed in a very embarrassing vote on the 
Senate floor.
    This kind of thing is part of the Senate. Politics is part 
of the Senate. And you will, I think, have to deal with that 
issue as well in terms of solving this problem.
    I applaud the proposals. I think there probably are way too 
many positions right now that require Senate confirmation, and 
reducing that number would be appropriate. But also, having 
watched from a particular vantage point how the politics plays 
out, that is not going to be removed from the system, and there 
will be, I think, interesting fights over nominations based on 
the politics in the future as there have been in the past.
    Chairman Lieberman. That was great. We ought to get 
together and just swap stories, Mr. Dove. [Laughter.]
    That was quite realistic. Forgive me, I am going to try to 
do this quickly, but way back, I cosponsored--it was in the 
1990s--with a Republican colleague a measure--and others did, 
too--to have a Congressional Medal in honor of a particular 
American who had passed away. It had a hard time in the House 
for various reasons. It finally made it to the Senate toward 
the end of the session. We found out that there was a 
Democratic Senator holding up the movement on this medal. So my 
Republican colleague said, ``Please go see him.'' So I did, and 
I said, ``Do you have anything against this man?'' ``Oh, no, 
no.'' ``What is the problem?'' ``Well, your Republican 
cosponsor, is holding up a nomination that I am concerned 
about''--I think it was for the Securities and Exchange 
Commission (SEC); it was no small matter--``and I am not going 
to approve his medal for this person unless''--and I went back 
to the Republican Chairman, and he let that nomination go. 
[Laughter.]
    And the medal was passed.
    Mr. Dove. That is the way the Senate works.
    Chairman Lieberman. That is the way the Senate works. So it 
is actually an important cautionary note. We should start the 
question round, and we will have 7-minute rounds.
    There is a lot we can fix here, but there is a lot that is 
just plain human and part of the Senate that will always 
intervene in the advice and consent process.
    Let me ask you if you have thought about this, and I will 
begin with you, Mr. Dove. Are there other things such as the 
change that Senator Byrd made that the Senate can do, do you 
think, to improve its own processes and the nominations process 
overall? In other words, understanding that there will always 
be the kind of politics we are talking about, once a nomination 
gets to us, after all it has gone through and hopefully we 
expedite it, is there anything more you would suggest we think 
about to expedite it?
    Mr. Dove. Well, I will tell you that when I went into the 
Parliamentarian's Office, the Parliamentarian at the time, 
Floyd Riddick, gave me some advice, and he said, ``The rules of 
the Senate are perfect. And if they are all changed tomorrow, 
they are still perfect.'' [Laughter.]
    I have tried to follow that advice. I try not to make 
suggestions about how to change the rules of the Senate. I 
think that is above my pay grade. I am sure there are things 
that could improve the process, but I just am not comfortable 
getting into those kind of suggestions.
    Chairman Lieberman. I understand. I referred during my 
opening statement to the 9/11 Commission, and, in fact, in the 
Intelligence Reform and Terrorism Prevention Act of 2004, we 
did enact provisions that expedited completion of background 
investigations for the president-elect's nominees for high-
level national security positions before Inauguration Day. It 
also in another way made an important that threat information 
go to the president-elect as soon as possible after the 
election.
    I wanted to ask Mr. Stier or Mr. Johnson to comment. The 
Obama transition was the first, obviously, in which these 
provisions were in effect. In your report last year, Mr. Stier, 
on presidential transitions, did you find that the new 
provisions helped the President get his national security team 
in place more quickly and perhaps to ensure that they were 
better prepared to govern from opening day?
    Mr. Stier. I think absolutely yes, they did use those 
provisions, although there is an interesting discrepancy 
between the McCain campaign and the Obama campaign in that, 
then-Senator Obama had literally over a hundred folks go 
through the security clearance process; whereas, my 
understanding from the McCain campaign is they had five. So it 
was a very useful tool but, again, one dependent upon a 
campaign understanding the importance of it.
    Chairman Lieberman. So that it worked in that way, but, of 
course, the numbers--it worked in terms of the key national 
security positions, nominees in the Obama transition. But, of 
course, as you have said, the total number of nominees moved at 
the beginning of the Obama Administration was actually lower.
    Mr. Stier. Correct, in the first 100 days.
    Chairman Lieberman. Yes.
    Mr. Stier. Again, I do not mean to flog this too hard, but 
I do think it is one of the most important things that you 
could really do, would be to create a timetable, a set of 
expectations on the campaigns or at that point the president-
elect's perspective of what they need to do in order to have 
their team in place. And I think, frankly, they did a lot of 
great things, and they prepared a lot. There were a lot of 
reasons why they wound up----
    Chairman Lieberman. Right.
    Mr. Stier. They had personnel heads that shifted twice in 
the process. But I think that they were not shooting for a high 
target. They were not shooting for the target of having the 50 
top positions in by day one and 100 by that first 100 days. 
They were not organizing their resourcing in order to achieve 
that, and, therefore, while they used this authority, it was 
not to that end objective.
    Chairman Lieberman. So I take it that your thought about 
the top 100 by April 1, and the top 400 by August 1, is kind of 
a device of the basic idea that the 9/11 legislation imposed on 
the top people in national security.
    Mr. Johnson. Yes, it is--and the 100 is a number out of the 
air. It is more than 50, more than 25, and not 200. And every 
President would have a different 100 positions depending on 
what is going on in the world. But it is a nice number to shoot 
for by 100 days or April 1.
    A comment about the background checks before the 
inauguration or before the election. If I am not mistaken, what 
was authorized was a background check that would give the 
person a top secret security clearance, which meant that the 
person--as soon as the candidate was the president-elect, those 
100 people or 125 people could get the same top secret 
information and be available to advise the president-elect on 
national security matters. It did not authorize a background 
check worthy of being nominated to the Senate for a Senate-
confirmed position. Those are two different things.
    So it provided the president-elect with--it surrounded him 
with lots of advisers who had access to the same information.
    Chairman Lieberman. Right.
    Mr. Johnson. And you would rather have that FBI background 
check to begin with, but the background check required that a 
White House would want to do and the Senate would want to look 
at before the person was nominated--or taken up for 
consideration for confirmation is not begun with that 
legislation.
    Chairman Lieberman. Good point. What kind of process would 
you establish and do you think it makes sense to try to do it 
in law for selecting the top 100 or top 400, or whatever the 
number turned out to be?
    Mr. Johnson. I think a president-elect would identify the 
positions that he or she were going to try to concentrate on 
first and indicate that to the Senate leadership. The Senate 
leadership might have some suggestions--only suggestions. They 
cannot direct the President what to do.
    Chairman Lieberman. Right.
    Mr. Johnson. But they might add and subtract some. But have 
a dialogue at the beginning about what those positions are, and 
in effect, commit informally the Administration to work on 
those with the highest priority and commit the Senate 
informally to be prepared to receive those and to take them up 
with some expedition. But it would not obligate either party to 
do it.
    Chairman Lieberman. Right.
    Mr. Johnson. Again, for whatever reason--politics, people 
being people, the Senate being the Senate--they may not want it 
to pass them. They may not want to go that fast.
    Chairman Lieberman. Right.
    Mr. Johnson. Or they might want to go faster. But it calls 
for a dialogue and some discussion and some prioritization 
which drives everything else. It drives how fast the FBI works. 
It drives the staffing of the Office of Presidential Personnel. 
It will drive the resources that the committees allocate to 
this kind of work in that first 90 days, 120 days.
    Chairman Lieberman. It is a really good idea. In other 
words, it goes beyond the obvious, which is any President would 
want at the top, Defense, Treasury, State, etc., to forcing a 
prioritization a little further down, and then putting Congress 
or the Senate on notice that that was the goal, with nothing 
mandatory about it.
    Mr. Johnson. Right.
    Chairman Lieberman. Most important of all, I think it 
creates priorities.
    My time is up in this round. Senator Collins.
    Senator Collins. Thank you, Mr. Chairman.
    Let me start by thanking our witnesses for their excellent 
testimony and thanking Mr. Dove for throwing the cold water of 
reality on why logical reforms are so difficult to implement 
and to get through the Senate.
    The Chairman made a very important point that I want to go 
back to, and that is that the Administration, this or a 
previous one or any administration, has the ability to expedite 
the process, and that is often overlooked when we heap blame on 
the Senate for being slow to get nominees through the 
confirmation process.
    The fact is in many, perhaps most cases, the majority of 
the time spent in the nomination and confirmation process 
occurs before the nomination is even submitted to the Senate. 
And one reason for the lengthy process is that recent 
Administrations--actually, it goes all the way back to the 
Eisenhower Administration--have required full field FBI 
investigations for all nominees. And, Mr. Stier, when you 
referred to Mike McConnell, that was an excellent point. Here 
is an individual who has had the very highest level of security 
clearance for many years in many different jobs, and yet we 
start all over again as if he has held none of these positions.
    The other issue is that the FBI investigation is not scaled 
to the level of security responsibilities of the position for 
which the person is nominated. Thus, the individual who is 
nominated to be the Assistant Secretary for Public Affairs at 
the Department of Housing and Urban Development (HUD) has to go 
through exactly the same FBI check as the individual nominated 
to be the Secretary of Homeland Security. And that does not 
make sense to me.
    I want to start with Mr. Johnson on this. Is there a way to 
scale the extent of the FBI investigation so it more nearly 
matches the responsibilities of the position?
    Mr. Johnson. There is and I think it happens today. It did 
with the George W. Bush Administration. I remember Fred 
Fielding, who was the clearance counsel during the transition, 
set it up, and then Al Gonzales as White House counsel set it 
up where there was a scaling. The way they scaled it was, every 
question was answered, but for the most important positions 
there were, I would say, 20 in-person interviews. For a lower 
level position, there were maybe 15 in-person interviews or 5 
in-person interviews and 10 phone interviews. And in others 
further down, there were only ten interviews. There was a 
scaling in terms of how much data verification there was, which 
is the time-consumer. It is not that they only filled out 
sections 1 through 3 here and they had to fill out the whole 
form over here. It is how much verification there was.
    It is up to the White House--the White House determines how 
detailed the investigation is. So if it is not being scaled, it 
is because the White House is choosing not to scale it.
    Senator Collins. I am going to take a look at that issue 
with this White House. I personally read all the FBI reports on 
all the nominees that come before our Committee, and they seem 
to be the same kinds of intensive investigation.
    Now, that may reflect the fact that in some cases this 
Administration has gotten burned on some of the investigations 
done by the FBI. That happened in the case of a Transportation 
Security Administration (TSA) nominee that came before this 
Committee, where there were significant issues that were not 
uncovered by the FBI investigation.
    Mr. Johnson. One thing I would suggest you do--and your 
staff could do it--is visit with some of the White House 
counsels for the last several Administrations in the first year 
of the Administration. Tim Flanigan, who was the Deputy White 
House Counsel for George W. Bush, could talk about it, and Fred 
Fielding, and President Clinton's staff, maybe get them 
together or talk to them separately. But they would tell you 
what they did or did not do and what they think they can do and 
cannot do.
    Mr. Stier. If I might add?
    Senator Collins. Yes.
    Mr. Stier. I think it would be useful to get data. I hear 
all kinds of anecdotal stories that are quite frightening with 
respect to this and share your sense that it is not working as 
it ought to in many instances. But we do not have data, and it 
is not that hard to collect it, what is being done for the 
nominees, how much time it is actually taking. And I think that 
would help, more transparency would help a great deal.
    I think one of the improvements that happened in the Bush 
Administration was the requirement by Executive Order that 
there be reciprocity across agencies for security clearances. 
But now there is a suitability review that individual agencies 
are doing on top of security clearances, saying, we take the 
security clearance but we are going to see if it works for us. 
That is actually just shoehorning back in another layer of 
time-consuming and oftentimes detrimental review.
    But I think this is ripe for more information that would 
help you understand better what is going on.
    Senator Collins. I think that is an excellent suggestion.
    Mr. Johnson, you are in an unusual situation because you 
have served as head of the Office of Presidential Personnel, 
but you have also been a Senate-confirmed nominee as Deputy 
Director of OMB. In fact, you came before our Committee, and 
you are welcome to criticize our process, because it is more 
extensive than others.
    Mr. Johnson. Do I look that stupid? [Laughter.]
    Senator Collins. But having seen both sides of the process, 
which is very unusual for someone to have seen it from both 
sides, are there particular paperwork or form burdens that you 
recall as being particularly duplicative or onerous? You have 
the OGE form; our Committee's form; the White House's form; and 
the FBI's form. They are all different, from what I have seen. 
Do you have any thoughts on that, having gone through the 
process?
    Mr. Johnson. Well, on the form, I had already filled out a 
278 and SF-86 to get my security clearance and be properly 
qualified to work in the White House. So I did not have to fill 
those out anew. I had to update them, which you would have to 
do anyway. So that was not a new thing.
    As part of the confirmation process, there was a long list 
of subject-related questions that I was asked to respond to, 
and there was a meeting with your staff--maybe it was in this 
room--to go over a bunch of issues. And nobody is going to 
answer those questions in writing in a way that is going to 
cause them not to be confirmed.
    Senator Collins. Correct.
    Mr. Johnson. And no one is going to say anything in the 
interview that is going to cause them not to be confirmed. But 
yet the relationship between me, the nominee, and the staff is 
very important to begin to establish as early as possible. I am 
not sure, though, it helps the Committee decide that I am 
qualified or not to be the person confirmed for the position.
    So the only question I would raise--it is not a criticism--
is whether that exchange of information and that interview with 
the staff and the sharing of ideas needs to take place before 
the confirmation. It needs to take place early on, I think 
after the confirmation, to facilitate the exchange of 
information and communication between Senate and the position 
at OMB. But I am not sure that you get information from the 
answers to those questions or from the staff interviews that 
helps you decide this person is marginally qualified, not 
qualified, or whatever.
    So if time was of the essence and you are trying to move 
things along, scheduling an extra week or 10 days or so to have 
me fill out those questions and have the interview with the 
staff I am not sure improves the quality of your decision that 
I was qualified or not. It accomplished something else, but 
that could have waited until after the confirmation.
    Senator Collins. Thank you.
    Chairman Lieberman. Interesting. We are due for a vote 
soon, but maybe we can do a couple more questions each on the 
small matter of keeping the government funded and operating 
after this Friday.
    I wanted to ask you about the kind of one-way, one-time 
standard, and you made a good point. After all that the White 
House does to vet nominees, in some sense it starts again when 
it gets here. Is there any reason why the Senate should not 
begin with the full White House file on a nominee?
    Mr. Johnson. There might be some legal reason it is not 
shared. But if not, there could be some sharing of that 
information. And if there is some reason why the form itself 
cannot be shared, a so-called smart form could be used where 
they put it in there and then it populates the data in an SF-86 
and then separately gives the Senate the information it seeks.
    Chairman Lieberman. Right. Mr. Dove, do you have any 
thoughts about that from the Senate's legal point of view?
    Mr. Dove. Well, what I am reminded of was the very 
unpleasant confirmation process involving Senator John Tower to 
be Secretary of Defense, and as I recall, there were materials 
placed in a secret room----
    Chairman Lieberman. That is correct.
    Mr. Dove [continuing]. Where Senators could go, and then 
there was some question that possibly some Senators used that 
information in open debate on the floor of the Senate. To me 
that is a problem, and was a problem during that confirmation.
    Chairman Lieberman. One quick question--and I remember that 
happened when I first came into the Senate. That was the first 
month. Do you have any thoughts about how to fulfill this 
notion of a surge capacity of staff within the Office of 
Presidential Personnel at the transition time?
    Mr. Johnson. Well, it starts with a new Administration, 
directly or indirectly committing to get the 87 or 100 most 
important positions filled, potentially; send the names up to 
the Senate in time so the Senate is given a reasonable amount 
of time to get them confirmed or not within that first 100 days 
or by April 1, and the bigger number by August.
    Once they have committed to do that, then they decide how 
much money to allocate in the budget to Presidential Personnel 
staffing, how many people they put in the counsel's office to 
do clearance work, what kind of directions they give the FBI, 
and what kind of directions they give the Office of Government 
Ethics, etc.
    Chairman Lieberman. Which is----
    Mr. Johnson. But it begins with them committing to the 
notion of doing that much work.
    Chairman Lieberman. How about additional personnel? Because 
you gave a good example about they only could get so many 
through in----
    Mr. Johnson. They get a budget. Right now the budget 
generally allows for hiring seven or eight officers, and it is 
about six Special Assistants to the President, and that is 
where most of the work is done.
    Chairman Lieberman. And that goes the whole time--I mean, 
in other words, that is not just for the first 8 months or 
whatever.
    Mr. Johnson. Right. In that last 6 months of an 
administration, it might be five instead of six.
    Chairman Lieberman. Yes.
    Mr. Johnson. But the staffing is the same at the beginning 
as it is in the end, which is----
    Chairman Lieberman. Yes, so what should we do? Is one thing 
to do here to create a budget for bringing in outside people to 
do investigations for the office, for that early period of 
time?
    Mr. Johnson. Well, the so-called Kaufman bill, that you 
passed calls for pre-election transition work.
    Chairman Lieberman. Yes.
    Mr. Johnson. And it gives them the right to go out and 
raise money to fund transition activities before the election. 
And it is easy money to raise. They could raise a little bit of 
money, or they could raise a lot of money, and they would want 
to raise a lot of money if they were committed to try to make 
100 and 400 nomination most expelitously. So it starts with 
their desire to put their team on the field faster.
    Chairman Lieberman. Got it.
    Mr. Johnson. So that is a lot of jawboning. There are 
things that the Senate could probably do in bill language that 
refers to this or a dialogue at the beginning of an 
administration. I do not know how this takes place. This is 
your world. But it starts with that commitment, and then 
everything else flows from that. If there is a need for more 
money, $2 million, which is the most it would ever be, for the 
first 6 months in a White House budget--that is not a deal 
killer.
    Chairman Lieberman. It comes from having that as a 
priority.
    Senator Collins, do you want to ask a question?
    Senator Collins. Just one final point. I know we have a 
vote that has started.
    One complaint that I have heard from some nominees is that 
it has been very expensive for them to go through the process 
and to serve. I remember Gordon England in particular pointing 
out that he had lost, I think it was, hundreds of thousands of 
dollars because he had to divest himself of assets very quickly 
in order to be confirmed as Secretary of the Navy, I think it 
was, at the time. And as I said from the beginning, my goal is 
to have the best people possible in government and to not have 
unnecessary barriers to their serving.
    On the other hand, clearly we want to make sure we are 
guarding against real or perceived conflicts of interest, but I 
would ask you, Mr. Johnson, because of the role that you play, 
how big a problem are the requirements for divestiture and the 
sheer cost of hiring accountants to help you go through your 
records for the vetting process? Is that something that we 
should be worried about?
    Mr. Johnson. The reason people choose not to serve is 
because it is too expensive, directly and indirectly. An 
expense can be they have stock options that are worth too much 
or too little, or they have an ailing mother-in-law living with 
them, and they cannot afford to move, or they have just built 
the house of their dreams, or their children are juniors and 
seniors in high school, so there is an expense. There is a cost 
to the family, to the individual.
    If there is a direct cost associated with divestiture or 
associated with getting accountants to pull together all the 
information, it is because the person is really rich. 
[Laughter.]
    Senator Collins. Good point.
    Mr. Johnson. So it is usually a cost that they can incur, 
and they will tell you whether they can afford it or not.
    Now, it would take the Office of Government Ethics to 
determine whether there are other ways of dealing with a 
potential conflict. Can you put it in a blind trust? I do not 
know that. But I think the Office of Government Ethics--by the 
way, pay a lot of attention to what they recommend because 
their standards for looking for conflicts of interest are as 
high as anybody else's in the government, they are trying to do 
really good work, and they have thought very creatively about 
how to do it with less burden and get to decisions faster and 
look for ways to keep some of these expensive divestitures from 
taking place. But they are the experts, and I encourage you to 
pay a lot of attention to their ideas.
    Senator Collins. Thank you. I would love to hear more, but 
we do have a vote on, so I just want to thank all of our 
witnesses today, and you, Mr. Chairman, for holding this 
hearing.
    Chairman Lieberman. Thank you, Senator Collins. We will 
really work on this.
     Mr. Stier, do you have something else you want to say 
before I gavel?
    Mr. Stier. I just really wanted to say, back to Mr. Dove's 
point about human nature, just to reinforce, I think part of 
human nature around an election is that you are going to see a 
lot more opportunity at the front end. So if you actually set 
an aggressive timetable--and I would say not just 100 days but 
really day one, which means you actually have to have money 
pre-election. It has to be during the transition process that 
they are actually doing this. Human nature will mean that this 
stuff will happen a lot faster.
    Chairman Lieberman. Yes.
    Mr. Stier. So that front-end piece I think is huge.
    Chairman Lieberman. Thank you. Thanks to the three of you 
very much. It has been very helpful.
    We hope to have this legislation ready for introduction 
next week, and then we will move it as rapidly as we possibly 
can through the Committee. But you have been really helpful 
today. We are going to leave the record open for 15 days for 
additional questions and statements.
    With that, again I thank you. The hearing is adjourned.
    [Whereupon, at 11:13 a.m., the Committee was adjourned.]

















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