[Senate Hearing 117-521]
[From the U.S. Government Publishing Office]
S. Hrg. 117-521
EXAMINING THE SENATE CONFIRMATION PROCESS AND FEDERAL VACANCIES
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HEARING
before the
COMMITTEE ON
HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED SEVENTEENTH CONGRESS
SECOND SESSION
__________
MARCH 3, 2022
__________
Available via the World Wide Web: http://www.govinfo.gov
Printed for the use of the
Committee on Homeland Security and Governmental Affairs
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
U.S. GOVERNMENT PUBLISHING OFFICE
49-910PDF WASHINGTON : 2023
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
GARY C. PETERS, Michigan, Chairman
THOMAS R. CARPER, Delaware ROB PORTMAN, Ohio
MAGGIE HASSAN, New Hampshire RON JOHNSON, Wisconsin
KYRSTEN SINEMA, Arizona RAND PAUL, Kentucky
JACKY ROSEN, Nevada JAMES LANKFORD, Oklahoma
ALEX PADILLA, California MITT ROMNEY, Utah
JON OSSOFF, Georgia RICK SCOTT, Florida
JOSH HAWLEY, Missouri
David M. Weinberg, Staff Director
Zachary I. Schram, Chief Counsel
Matthew T. Cornelius, Senior Professional Staff Member
Emily I. Manna, Professional Staff Member
Jaqlyn Alderete, Research Assistant
Pamela Thiessen, Minority Staff Director
Amanda H. Neely, Minority Director of Governmental Affairs
Allen L. Huang, Minority Counsel
Laura W. Kilbride, Chief Clerk
Thomas J. Spino, Hearing Clerk
C O N T E N T S
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Opening statements:
Page
Senator Peters............................................... 1
Senator Portman.............................................. 2
Senator Rosen................................................ 16
Senator Lankford............................................. 21
Senator Carper............................................... 24
Senator Hawley............................................... 27
Prepared statements:
Senator Peters............................................... 31
Senator Portman.............................................. 33
WITNESSES
Thursday, March 3, 2022
Anne Joseph O'Connell, Ph.D., Adelbert H. Sweet Professor of Law,
Stanford Law School............................................ 5
Kristine Simmons, Vice President of Government Affairs,
Partnership for Public Service................................. 7
Adam White, Co-Executive Director, C. Boyden Gray Center for the
Study of the Administrative State, George Mason University, and
Senior Fellow, American Enterprise Institute................... 9
Alphabetical List of Witnesses
Joseph O'Connell, Anne Ph.D.:
Testimony.................................................... 5
Prepared statement........................................... 37
Simmons, Kristine:
Testimony.................................................... 7
Prepared statement........................................... 57
White, Adam:
Testimony.................................................... 9
Prepared statement........................................... 69
APPENDIX
Thomas A. Berry, Research Fellow, Robert A. Levy Center for
Constitutional Studies, CATO Institute Statement for the Record 83
Responses to post-hearing questions for the Record:
Ms. O'Connell................................................ 89
Ms. Simmons.................................................. 106
Mr. White.................................................... 111
EXAMINING THE SENATE CONFIRMATION PROCESS AND FEDERAL VACANCIES
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THURSDAY, MARCH 3, 2022
U.S. Senate,
Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 10:29 a.m., via
Webex and in room 342, Dirksen Senate Office Building, Hon.
Gary C. Peters, Chairman of the Committee, presiding.
Present: Senators Peters, Carper, Hassan, Sinema, Rosen,
Ossoff, Portman, Johnson, Lankford, Scott, and Hawley.
OPENING STATEMENT OF CHAIRMAN PETERS\1\
Chairman Peters. The Committee will come to order.
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\1\ The prepared statement of Senator Peters appears in the
Appendix on page 31.
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Sorry for the tardy start. I had some votes in Commerce
Committee and came over as fast as I could. But I certainly
would like to thank our witnesses for joining us today to help
examine the Senate confirmation process for our Presidential
appointees and evaluate potential reforms that could help
streamline the process and address vacancies and extended
confirmation delays to strengthen leadership at our Federal
agencies.
Every administration deserves to choose qualified leaders
to helm critical agencies and to help effectively govern our
Nation. Providing a swift confirmation process, without
excessive bureaucratic roadblocks, for these nominees is key to
not only exercising the Senate's responsibility to advise and
to consent but also ensuring Presidential appointees will be
accountable to Congress and to the American people.
In recent administrations, we have seen firsthand how
vacancies at top Federal positions, in many cases caused by a
prolonged confirmation process, have compounded significant
challenges the Federal Government must tackle. For example,
there are currently more than 180 Biden administration nominees
being considered by this body. Many of these very qualified
individuals could be helping to address the problems that
Americans face, from the Coronavirus Disease 2019 (COVID-19)
pandemic to significant threats to our national security.
Instead, they are still waiting on this body to act before they
can start their important work.
The Constitution grants the Senate with an essential check
on executive power, the authority to provide advice and consent
on many Presidential appointments, but the number of
appointments and the increasingly arduous process to nominate
and to confirm appointees has become burdensome and far, far
beyond what the framers envisioned. Recent reports estimate
that the Senate has taken an average of 103 days to confirm
President Biden's nominees. The average confirmation process
took about twice as long for the two previous administrations.
Not only do these extended timelines delay getting qualified
leaders into vital positions, but protracted vacancies also
limit Congress's ability to conduct effective oversight.
Today's hearing is an important opportunity for this
Committee to discuss potential reforms that will help address
these concerns. This is not the first time the Senate has
considered this issue. Ten years ago, the Committee helped pass
into law the bipartisan Presidential Appointment Efficiency and
Streamlining Act of 2011, which reduces the number of positions
requiring Senate confirmation and established working groups
that provided additional recommendations on how to make the
Presidential appointment process more efficient, including by
streamlining the paperwork and the background check process for
nominees.
While this bipartisan bill was an important step forward
since it was signed into law, even more Senate confirmed
positions have been created, and many recommendations from the
working group have not yet been implemented. This has
contributed to an increasingly complex confirmation process for
nominees that can eat into valuable time the Senate could be
voting to important legislation efforts and limiting an
administration's capacity to implement a policy agenda.
In addition to improving the government's efficiency and
effectiveness, Federal vacancy experts and good government
groups have argued that additional reforms, including reducing
the number of Senate-confirmed positions, can also save
taxpayer dollars. The Congressional Budget Office (CBO)
estimated those savings could be as much as $82 million.
Today, I am pleased to welcome a group of experts who can
provide unique perspectives on how we can reform the
Presidential appointment process, address the growing number of
Federal vacancies, and incentivize every administration to
quickly submit nominees. I am hopeful that on a nonpartisan
basis we can examine the facts and ensure that our Federal
Government is able to better serve the American people for
generations to come.
Now I will turn over to Ranking Member Portman for his
opening comments.
OPENING STATEMENT OF SENATOR PORTMAN\1\
Senator Portman. Thank you, Mr. Chairman. I am glad we are
having this hearing. We have had a chance to visit with the
witnesses before us today, and we look forward to having others
virtually.
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\1\ The prepared statement of Senator Portman appears in the
Appendix on page 33.
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We spend a lot of time on vetting executive nominees, and
it is an important part of our constitutional duty, so we
should. This Committee in particular sees a lot of nominees.
The process can be long and difficult. I understand that. I
went through two confirmations myself. But there is a reason
for that. We want to make sure the nominees are well qualified
and well qualified to serve the American people.
In the past year, we have seen a number of troubling issues
with nominees, and let me give you a few examples. The
Comptroller of OMB's Office of Federal Financial Management
(FFM) is required by statute to have a ``demonstrated ability
and practical experience in accounting, financial management,
and financial systems and extensive practical experience in
financial management in large governmental or business
entities.'' Now there is a reason Congress put those criteria
in place in statute, but the President's nominee for the
position was unable to explain in my view, and in the view of
others on the Republican side of the dais here, how she met
those qualifications or express a basic understanding of public
accounting and financing. Her nomination passed out of the
Committee, but it did so on a party-line vote and has yet to
come before the Senate.
We also have received distressing allegations regarding the
conduct of nominees to serve on the Federal Labor Relations
Authority (FLRA). We have asked the Inspector General (IG) to
look into these allegations, so I do not want to prejudge the
issue. But they are very serious allegations and a significant
concern to me and many of my colleagues, and yet those nominees
were on their way to this Committee before we insisted that we
give the Inspector General a chance to look into it.
Finally, multiple nominees for positions, such as a recent
nominee to the Merit Systems Protection Board (MSPB), which is
intended to serve Federal workers of all political persuasions
and in fact has a role to play there to be totally
nonpartisan--anyway, some of these nominees have tweeted
extremely partisan statements. These statements have included,
by the way, insults and partisan attacks against Members of
this Committee and also fellow members of the Senate, our
colleagues, at a time when we should be trying our best to
return to saner times, when both parties can work together in a
bipartisan fashion to serve all Americans.
My point is, I guess, it is also about the quality of the
nominees. It is hard to imagine these nominees being put
forward, by the way, if we still had a 60-vote threshold to end
debate on a nomination. When the President's party has
controlled the Senate and a nominee only needs a simple
majority to be confirmed, the majority party tends to overlook
serious concerns sometimes with these nominees' qualifications
in my view, and that might otherwise not be true if bipartisan
support were necessary.
Maybe that is what has been happening recently. Maybe that
explains it entirely. I do not know. But this concern applies
to both parties, by the way. The same was true during the
previous administration with some nominees.
One can argue that this weakens congressional oversight
because nominees who do not have to get support from Senators
of the other party might think, even if wrongly, that they do
not need to be responsive to those Senators concerns once they
are confirmed. Obviously, we have seen some of that in this
Committee, where we have asked for information we have not been
able to receive on both sides of the aisle.
We probably cannot turn the clock back. We are where we
are. But I do think we need to continue to take our advice and
consent role seriously. I understand some of our witnesses are
going to propose reducing the number of Senate-confirmed
positions and explore some ways to make the process more
efficient so we can attract the best people to government.
By the way, the Chairman talked earlier about the arduous
process. Let us be honest. The arduous process includes the
lengthy and sometimes bureaucratic pre-confirmation process at
the Executive Branch as well. Anyway, I believe some of these
reforms, including reducing the number of Senate-confirmed
positions, have merit and could work if carefully crafted.
I am also glad that the witnesses will discuss the
importance of having confirmed Inspectors General. Chairman
Peters and I have led Members of this Committee from both
parties in sending letters to President Trump and now President
Biden that urged them to nominate IGs expeditiously and offered
the Committee's assistance in identifying qualified candidates.
But again, I want to say at the outset that no matter what
reforms we discuss nominees need to be qualified and it is our
role to vet these nominees. We have to encourage the Executive
Branch to send us nominees that do not have some of the
concerns that I raised earlier, and the confirmation process
needs to be thorough and nonpartisan, or bipartisan at least.
I thank the witnesses for testifying. I look forward to
hearing what they have to say about these issues, and we look
forward to engaging in a dialog on them.
Thank you, Mr. Chairman.
Chairman Peters. Thank you, Ranking Member Portman.
It is the practice of the Homeland Security and
Governmental Affairs Committee (HSGAC) to swear in witnesses,
so if our witnesses would please stand and raise your right
hand, including our witness who is joining us virtually. Do you
swear the testimony you will give before this Committee will be
the truth, the whole truth, and nothing but the truth, so help
you, God?
Ms. O'Connell. I do.
Ms. Simmons. I do.
Mr. White. I do.
Chairman Peters. All have answered affirmatively. You may
sit down.
Our first witness is Anne O'Connell. Ms. O'Connell is the
Adelbert H. Sweet Professor of Law at Stanford Law School. She
is also a contributor to the Center on Regulation and Markets
at the Brookings Institution and an appointed senior fellow of
the Administrative Conference of the United States (ACUS). Most
recently, her work has focused on acting officials and
delegations of authority in Federal agencies, the loyalty and
competence of agency appointees and Inspectors General. Her
research and teaching also focuses on administrative and
constitutional law.
Ms. O'Connell, welcome to the Committee, and you may
proceed with your opening comments.
TESTIMONY OF ANNE JOSEPH O'CONNELL, PH.D.,\1\ ADELBERT H. SWEET
PROFESSOR OF LAW, STANFORD SCHOOL OF LAW
Ms. O'Connell. Thank you. Chairman Peters, Ranking Member
Portman, and Members of the Committee, thank you for the
opportunity to participate in today's important hearing.
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\1\ The prepared statement of Ms. O'Connell appears in the Appendix
on page 37.
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I would like to make three points. First, the current
appointments process for filling key Federal agency jobs is
broken at the White House and in the Senate. Second, vacancies
in Federal agency leadership, particularly if frequent and
lengthy, have detrimental consequences for our government.
Third, nonpartisan reforms that preserve the political
branches' constitutional roles are possible.
First, there are vast gaps in confirmed agency leadership
up and down the organization charts. Those gaps result from
lags in nomination and delays in confirmation.
A note, all my figures I will mention exclude Article III
judicial nominations but include all agency picks.
The last three completed administrations--George W. Bush,
Obama, Trump--did not submit a single nomination in their first
two years for, on average, nearly 30 percent of vacant agency
positions. At the end of December compared to the past four
administrations, President Biden has submitted fewer agency
nominations than all of his predecessors except for President
Trump.
Official nominations are just the start of the appointments
process. At the end of December, the Senate had approved fewer
agency nominees under President Biden than Presidents Obama,
Bush, and Clinton. President Biden just beat out President
Trump in absolute numbers, but in percentage terms of
submitting nominations, President Biden fell last. Just 53
percent of his agency picks were confirmed.
At the 13-month mark of the Biden presidency, so through
February 19th, the Senate had confirmed 370 agency nominees, 65
percent by voice vote, 35 percent by recorded vote, and not a
single one by unanimous consent (UC). At the same point in
President Trump's term, the Senate had confirmed 348 agency
nominations, 76 percent by voice vote, 24 percent by recorded
vote. For Obama, the Senate had confirmed 100 more nominees
than President Biden by the close of month 13, 488; 95 percent
were by voice vote and only 5 percent by recorded vote.
President Clinton was the last President to have agency
nominees confirmed by unanimous consent in his first year.
Second, vacancies undermine agency performance. The MSPB
has been practically unable to function since 2017 when it lost
its quorum. The Senate did confirm two of the three pending
nominees on Tuesday. Its backlog currently stands at around
3,600 cases.
Vacancies also foster confusion and lower morale among
nonpolitical employees and undermine both agency legitimacy and
constitutional safeguards. These delays also deter potential
nominees from pursuing government service at the highest level.
In many agencies, acting officials and delegations of
authority do help to fill the gaps but not without exacting
costs of their own. Even though acting leaders have the same
formal authority as confirmed leaders, they are less able to
wield it; they get less buy-in from the employees who work
beneath them, relevant congressional committees such as yours,
and the public. In addition, decisions made by acting leaders
may face increased legal risks.
I should note that some delay is necessary, even good. It
takes time to find compelling, qualified, and diverse leaders
and to properly vet them.
Third, the process could be improved while respecting the
political branches' constitutional roles. I focused here on
three proposals: one, decrease the number of Senate-confirmed
positions, two, streamline the vetting of nominations, and
three, incentivize quicker nominations from the White House as
part of changes to the Federal Vacancies Reform Act of 1998
(FVRA).
The most significant action Congress could take to improve
vacancies is to cut the number of Senate-confirmed jobs. The
easiest place to cut is likely for part-time positions. They
could be moved into cabinet departments where the Secretary
would pick members without Senate involvement to meet any
appointment clause concerns. The next place to look would be
positions that have not received nominees in the first half of
a Presidential administration in both recent Democratic and
Republican presidencies. The Partnership for Public Service
(PPS), who you will also hear from today, has additional
compelling proposals.
If the goal is to decrease vacancies, it might be better to
permit agency heads to select leaders, at least for some jobs,
instead of the President alone as was done in the 2012 cuts.
More choosers, less time.
Fourth, the Senate and the White House should commit to
revisiting the recommendations of the Working Group on
Streamlining Paperwork for Executive Nominations, most of which
have not been implemented, which was established by the 2012
Act.
Finally, I support the Accountability for Acting Officials
Act. It would nearly halve the permitted time limits for acting
officials outside of pending nominations in the most important
agency positions. It would also restrict Acting Inspectors
General to senior staff in IG offices. I would actually go
beyond the Accountability for Acting Officials Act and expand
that to cover other confirmed IGs. It would resolve ambiguities
in the Vacancies Act that generated litigation in the Trump
administration.
There is one reform with regard to acting officials and
delegations of authority that is more expansive of Presidential
power, and that would be that I would also allow more nominees,
those who have been confirmed to another post, to serve in an
acting capacity while their nominations are pending. In 2017,
the Supreme Court interpreted the Vacancies Act narrowly to
allow a nominee to simultaneously serve as the acting official
only if she had been confirmed to the first assisted position
or had been in the first assisted position for a particular
length of time. Mark Esper, in the last administration, had to
relinquish his acting title when the Senate formally received
his nomination for Secretary of Defense in 2019, which
contributed to get another Acting Secretary of Defense and the
Senate expediting its process.
I look forward to your questions and thank you very much
for this opportunity.
Chairman Peters. Thank you, Ms. O'Connell, for your
statement.
Our next witness is Kristine Simmons. Ms. Simmons serves as
the Vice President of Government Affairs at the Partnership for
Public Service, a nonpartisan, nonprofit organization whose
mission is to build a better democracy and a stronger
government, including programming that specializes in
Presidential transitions and improving Congress.
Prior to her time at the Partnership, she served in the
Administration of President George W. Bush as a Special
Assistant to the President for Domestic Policy and advised the
President and the White House senior staff on issues pertaining
to government operations, reform, and management.
She was also the Staff Director of the U.S. Senate
Governmental Affairs Committee Subcommittee on Oversight of
Government Management.
Ms. Simmons, welcome to the Committee. You may proceed with
your opening comments.
TESTIMONY OF KRISTINE SIMMONS,\1\ VICE PRESIDENT OF GOVERNMENT
AFFAIRS, PARTNERSHIP FOR PUBLIC SERVICE
Ms. Simmons. Thank you very much, Chairman Peters, Senator
Portman, Members of the Committee. I appreciate the opportunity
to be here with you this morning. We also thank the Committee
for your bipartisan commitment to making our government work
better and for holding today's hearing on ways to improve the
Senate confirmation process and ensure that our government has
qualified and accountable leaders in place.
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\1\ The prepared statement of Ms. Simmons appears in the Appendix
on page 57.
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My comments today are specific to the appointment and
confirmation of positions in the Executive Branch and rooted in
deep respect for the Senate's constitutional duty to advise and
consent on executive nominations.
A new President must make 4,000 political appointments, and
about 1,200 of those are subject to Senate confirmation. Our
data show that by almost any measure the appointment and
confirmation process is in dire need of improvement. As the
process is operating today, everyone loses. Numerous data
points show that each recent President has found the
confirmation process harder and longer than it was for his
predecessor. The average time to confirm a nominee has nearly
tripled since the Reagan Administration, and the Senate
confirmation rate of nominees in a President's first year, when
volume is highest, has dropped precipitously over the past four
administrations.
Widespread and long-term vacancies harm agency
effectiveness, and that is not good for government or the
people it serves. Many Senate-confirmed positions have been
vacant for years across multiple administrations. According to
Vanderbilt University's David Lewis and Mark Richardson, in the
first two years of the Bush, Obama, and Trump administrations,
30 percent of Senate-confirmed positions never received a
nomination.
The lengthy and arduous confirmation process can further
discourage qualified people from joining public service.
Serving the American people in a Presidential appointment is a
privilege, and it is appropriate that individuals nominated for
important positions are subject to the Senate's review.
However, the confirmation process exacts a toll on nominees
and sometimes on their families. Nominees subject their lives
and families to public scrutiny. Many leave jobs to avoid even
the appearance of a conflict of interest, hire lawyers and
accountants to ensure their paperwork is free from error, sell
assets and take other steps to mitigate financial conflicts,
and make plans to move their homes and families at personal
expense with no clear indication of when the Senate will
consent to, or even consider, their nomination.
The high number of positions subject to Senate confirmation
actually decreases the Senate control when so many are vacant,
and considering them takes valuable time that the Senate could
be spending on oversight, legislation, constituent service,
confirmation of other more senior or more important positions,
and other pressing needs of the American people. Between 1960
and 2016, the number of Senate-confirmed positions increased by
nearly 60 percent, and in the last 11 years alone, roughly 60
new Senate-confirmed positions have been created.
Along with more positions, the burden of considering them
is growing. The number of nominations returned at the end of a
President's first year under Senate Rule 31 has increased for
each recent President, meaning nominations must be resubmitted
and much of the process gets repeated. The number of cloture
motions on Executive Branch nominations has risen in each of
the past five administrations, meaning more floor time spent on
confirmations and less time for other Senate business.
What can the Senate do about this? We have five
recommendations.
First, reduce the number of positions subject to
confirmation. Twelve hundred positions are more than the Senate
can reasonably process given your other important
responsibilities. This Committee led the way 10 years ago in
reducing the number of Senate-confirmed positions by 163 and
can do so again.
Second, consider changes to the Senate's privileged
nominations calendar, Senate Rule 31 on return nominations, and
other Senate processes. Nominations on the privilege calendar
take longer now than they did before the privilege calendar was
created.
Third, expand the holdover norm and consider adopting fixed
terms for Senate-confirmed positions, for example, the U.S.
Department of Veterans Affairs (VA's) Under Secretary for
Health, that require unique expertise and have become difficult
to fill.
Fourth, implement the recommendations of the Working Group
on Streamlining Paperwork for Executive Nominations. The
recommendation for a smart form, for example, would make the
process more efficient and ease the burden for nominees.
Finally, we encourage you to revisit the Federal Vacancies
Reform Act and modernize the Plum Book. Greater transparency
would improve congressional oversight and agency
accountability. Senator Carper has introduced, along with
Senators Braun and Merkley, the Periodically Listed Update to
Management (PLUM Act), and we applaud him for doing so.
Thank you, and I am happy to answer your questions.
Chairman Peters. Thank you, Ms. Simmons.
Our final witness is Adam White. Mr. White is a senior
fellow at the American Enterprise Institute and Co-Executive
Director of George Mason University's C. Boyden Gray Center for
the Study of the Administrative State. He serves on the
Administrative Conference of the United States, and he is Vice
Chair of the American Bar Association's Section on
Administrative Law and Regulatory Practice.
Last year, President Biden appointed Mr. White to the
Presidential Commission on the Supreme Court of the United
States. After graduating from the University of Iowa and
Harvard Law School, he clerked for Judge David Sentelle on the
U.S. Court of Appeals for the D.C. Circuit.
Mr. White, welcome to the Committee. You may proceed with
your opening comments.
TESTIMONY OF ADAM WHITE,\1\ CO-EXECUTIVE DIRECTOR, C. BOYDEN
GRAY CENTER FOR THE STUDY OF THE ADMINISTRATIVE STATE, GEORGE
MASON UNIVERSITY, AND SENIOR FELLOW, AMERICAN ENTERPRISE
INSTITUTE
Mr. White. Thank you very much. Thank you, Chairman Peters,
Ranking Member Portman, and Members of the Committee.
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\1\ The prepared statement of Mr. White appears in the Appendix on
page 69.
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I generally agree with much of the diagnosis that has been
offered so far. Too many offices require Senate confirmation.
There are too many vacancies for too long and too many acting
officers serving in offices that should require, or currently
require, Senate confirmation. But I think the implications run
further, the fixes are more difficult, because the underlying
causes of this problem run much deeper.
Let me begin with constitutional underpinnings of the
Senate role. Needless to say, the Executive Branch is primarily
responsible for administration, but the Senate is crucial in
foreign affairs and also in domestic policy, particularly in
terms of the Senate's responsibility to grant or withhold its
advice and consent to the appointment of officers.
As Alexander Hamilton famously wrote in Federalist 76, this
role of the Senate is crucial for the steady administration of
the laws. The Executive brings energy, but the Senate must
bring stability and security. The Senate has a key role, but
for that very reason it must marshal its resources very
carefully.
In light of those constitutional foundations, the current
situation is very troubling. Too many offices require Senate
advice and consent, at least relative to the Senate's capacity
to carry out those duties with respect to all of those offices.
There are too many vacancies for officers that the Constitution
or Congress wanted to be filled with the Senate's advice and
consent. I would be in favor in general of reducing the number
of offices requiring Senate advice and consent but precisely so
that the Senate can be more effective in the remainder of its
advice and consent role, to focus on the most important offices
and hold them accountable for the rest of the agencies' work.
I want to emphasize the root cause of all this actually
runs deeper, though. I think the root cause of much of this is
the broad delegations of power that Congress has vested in
agencies, great power, great discretion, and great
responsibility, which makes each of these offices--the 1,200
offices we are referring to--all the more consequential.
Indeed, it is no surprise that Congress would have wanted the
Senate's advice and consent when it created these offices given
the powers that these offices are responsible for
administering.
I hope the Committee will keep in mind that the advice and
consent issue we are discussing today is a problem but it is a
symptom of much deeper problems. For that reason, I think that
any reforms will have much broader ramifications. For example,
if you reduce the number of offices requiring Senate advice and
consent, the top-level agency offices will necessarily require
and receive much more scrutiny both from the public and also
from the Senate.
To the extent that offices are taken out of Senate advice
and consent, and removed all the way down to Civil Service, out
of Presidential appointment altogether--and, of course, there
are constitutional questions surrounding any shift along those
lines. But to the extent that offices are transferred out to
Civil Service, that will only further exacerbate the debates we
have right now about the State of our Civil Service and the
political debates surrounding our civil servants.
To the extent that the Senate concludes that it can carry
out its oversight function less in terms of advice and consent
and more in terms of Congress's power of the purse, of course,
that raises the deeper problems regarding Congress's
appropriations and the appropriations process.
I do hope that any reforms keep in mind the underlying
problem of the powers, responsibility, and discretion wielded
by these offices. I hope that any reforms to the process are
coupled to the extent possible with reforms to substance, the
substantive powers of the agencies.
I mentioned earlier Alexander Hamilton, our founding
generation's greatest thinker on constitutional administration.
When I think about these issues, I often return to a line he
offered in Federalist 68. He said: The true test of any
constitution is its tendency and aptitude to produce good
administration. That is pretty astonishing for all the things
that Hamilton wrote about the Constitution. For him to say that
the true test of our Constitution is the administration that it
produces, that is amazing. In fact, he said it once in
Federalist 68, and then he quotes himself later in 76 to make
the point once again.
In his time, administration was the true test of
government. It remains so in our time, and I am grateful for
this Committee for considering the importance of the issue and
the need for reform.
Chairman Peters. Thank you, Mr. White.
Ms. O'Connell and Ms. Simmons, according to the Washington
Post Political Appointee Tracker, an average of 4 in 10 Biden
nominees have been waiting on Senate confirmation. This is not
uncommon. Every recent President has experienced delays. But
the delays, they just appear to be getting longer and longer.
The time it takes for Congress to confirm Presidential nominees
has been growing during every single administration since
President Ronald Reagan.
You both mentioned several causes for delays when you
presented your testimony to us. What do you believe, however,
are the most significant reasons for these delays, and what
actions from Congress should we consider to address them? Maybe
give me a priority or two, what you think is really significant
that we should be thinking about. We will start with Ms.
Simmons and then, Ms. O'Connell, if you would respond as well.
Ms. Simmons. Thank you, Mr. Chairman. From the perspective
of the Partnership, the sheer volume makes it very challenging
and contributes to just a greater bottleneck. We would
encourage fewer positions as stated in my testimony. We think
it would allow the Senate to focus on positions that most
warrant your review and scrutiny and would make the best use of
the Senate's time.
We also think the process is extremely complicated as a
result of the very challenging paperwork. All of the paperwork
serves a purpose, and it is meaningful with respect to
adjudicating issues in someone's background, financial
conflicts. But the questions that are asked are inconsistent,
confusing, and it is very common for paperwork to go through
multiple rounds and corrections because it is very difficult
for nominees to get it right the first time. There is a great
amount of delay that occurs before the Senate even gets the
nomination because there is so much involved in preparing the
package that comes to the Senate. We think simplifying the
paperwork would also contribute to a more efficient and
expedient process.
Chairman Peters. Thank you. Ms. O'Connell.
Ms. O'Connell. Thank you, Chairman. I think the two biggest
reasons for these increasing delays on the Senate side--and
there are delays on the White House side as well. The first, I
agree with Ms. Simmons from the Partnership that the sheer
number of positions and the amount of time each position takes
in terms of the vetting process has slowed it down. In terms of
reform I do think that the most important thing that Congress
could do would be to cut the number of Senate-confirmed
positions.
But I think what happens in its replacement is critical. In
the Streamlining Act enacted in 2012, those approximately 170
positions went from Senate-confirmed to President-alone, and
there were delays even when it is just the President alone. I
think giving a lot of thought to which of those positions could
be done by heads of departments to help speed up the process as
well.
The second greatest reason I believe for the delays has to
do with changing norms in the Senate. In earlier
administrations--I am thinking President Reagan, President
George Herbert Walker Bush, President Clinton--the norm was
especially in the first year that agency nominees were
confirmed by unanimous consent. And that, since President
Clinton, does not happen anymore.
It is not because in the end the votes are close. If you
look at the recorded votes of President Biden's nominees
through February 19th, over half of the recorded votes, there
are more than 60 votes to confirm. But I think now a vote on an
assistant secretary--and this is true both for Democrats and
for Republicans--is a sign of party fealty. And so kind of the
cooperative norms that existed do not exist in the same way,
and so that has contributed as well.
Now in terms of reform there, I hesitate in terms of
recommendations to changes in Senate rules. But to the extent
that the Senate could establish some more cooperative norms, at
least on a subset of critical nominations, say in the national
security space, that would also be helpful.
Chairman Peters. Thank you. Thank you both for that answer.
I am going to ask you another question, both of you, and we
will start with you again, Ms. Simmons. Under the Appointments
Clause of the Constitution, Congress has the right to
determine, as you know, which positions require Senate
confirmation. If we are going to reevaluate these positions
that require the confirmation, would you please tell the
Committee what criteria or factors do you recommend that we
consider if we go down this path? Ms. Simmons, if you would
start.
Ms. Simmons. Sure, I am happy to. Thank you for that
question. We strongly believe that every position should be
evaluated by the Senate to determine whether it is a principal
officer or an inferior officer. Titles themselves do not tell
you a lot. There is a variety of responsibility assigned to
different positions.
Some assistant secretaries are Senate confirmed; some are
not. But we recognize that there is a great opportunity to look
at assistant secretaries and make a determination and perhaps
start with the presumption that they do not need to be Senate
confirmed, particularly if they are reporting to another
appointee who is more senior, who is subject to Senate
confirmation. That is a basic test of the Supreme Court,
whether a position is under the supervision and direction of
another Senate-confirmed leader, and we think that is an
important place to start and obviously would support ensuring
that you have the control and accountable officials that you
need to do your jobs.
Chairman Peters. Thank you. Ms. O'Connell.
Ms. O'Connell. So functionally, we have already cut the
number Senate-confirmed positions with the vast use of acting
officials and delegations of authority, but the choice has been
in the White House's hands in terms of where those acting
officials and delegations take place.
I support strongly the Congress taking an affirmative role.
The place that I would look to first, the working group, after
the Streamlining Act enacted in 2012, pointed out that around
30 percent of still remaining Senate-confirmed positions are
part-time positions, requiring under 60 days of service in a
calendar year, and I think many of those positions where Senate
confirmation could be cut. In that push the Senate did in mid-
December to get a bunch of nominees through, we saw several
confirmations to these part-time boards, to the Barry Goldwater
Scholarship Foundation, the Corporation of National Service.
Those seem like places to look in addition to the suggestions
laid out in the longer Partnership for Public Service report.
Chairman Peters. Thank you.
Ranking Member Portman, you are recognized for your
questions.
Senator Portman. First, thanks to all three of you. You
have made some good suggestions. I still go back to the two
points I raised in the opening. One is the point that this not
all about the Senate. Having been one of the Associate Counsels
to the President for George H.W. Bush, who looked at nominees
and their financial disclosure forms and so on, we thought it
was pretty arduous at the time, but it has become much more so.
The point you made today I think was that 30 percent of
vacancies never receive a nomination.
We talked a little about--Professor O'Connell just talked
about acting officials and how that has increased. In effect,
actings have taken away the Senate role for confirmation.
Anyway, I will not ask for more on that today except to say
that we would like for the record--and maybe the Partnership is
the place to look to give us some more specific suggestions on
the pre-Senate nomination process, the appointment process.
That is within the purview of this Committee, so it is part of
our oversight responsibilities.
Second is the quality of the candidates. We heard a lot
today about making the process more efficient. Again, I think
there is a lot of merit to that, but also I get back to my
point about improving the quality for nominees. Are there any
changes to Senate procedures, perhaps short of going back to
the 60-vote margin, to incentivize that more qualified nominees
be recruited and nominated? I open that up to all three of you.
Ms. Simmons. Senator Portman, I am happy to start and
invite my fellow panelists to chime in. One of the things that
we were surprised to discover as we began some of our work
around Presidential transitions and the high number of
appointees that a new administration must confirm is how few
positions are associated with position descriptions. We have
actually created over 400 position descriptions that did not
exist and are not available. In some cases, it would be helpful
for the Senate to have a better understanding of what the real
job is for some of these positions. You articulated positions
where you are very familiar with what is required, and the
Senate has even put statutory qualifications in place.
We think a place to start is to consider whether there are
adequate descriptions around the qualifications that you want
in particular nominees for key roles in government, making sure
that there is an understanding even among people who are being
considered for those positions as to what the job actually
requires.
Senator Portman. Mr. White, any thoughts on that?
Mr. White. To your point about Senate procedures, I do
think this is crucial. I understand there are arguments, there
are strong arguments, for reducing the threshold for
confirmation in terms of cloture on nominees. But the fact is
the Senate's procedures have begun, as the Committee knows more
than anybody, ever more sort of straight majority rule in more
and more situations, with less and less deference given to the
judgments and the procedural powers of individual Senators. We
are seeing that filter through to the quality of the
nominations.
I think in general the underlying problem here is that--and
this goes beyond just appointments, but in general--the
administration is ever more identified exclusively with the
President, not the President and the Senate. The administration
is seen as something the Executive takes care while the Senate
worries about other things. I think it is crucial for the
Senate to reconsider its procedures surrounding advice and
consent to slow things down for the most important nominations
and use them as real points of leverage for oversight of the
agencies in general.
Senator Portman. Fewer nominees but those that are
important positions, that are from a policy perspective most
important, to spend more time on vetting those individuals and
perhaps therefore improving the quality of those individuals.
Mr. White. Absolutely. If I may, in terms of the criteria
for removing offices out of the Senate advice and consent role,
I think it is important to keep in mind each particular
agency's substantive powers. Of course, the offices vary from
agency to agency, but the agencies themselves vary in terms of
their responsibilities overall. I would urge the Senate to be
more cautious--or, the Congress to be more cautious in removing
the Senate advice and consent role for the agencies that have
the most impact on day-to-day life.
Of course, that is measured in a number of ways. The Office
of Information and Regulatory Affairs (OIRA), of course, keeps
tallies of the costs and benefits of rules imposed by agencies,
and so it might be worth keeping that in mind when you decide
which offices and which agencies to remove from advice and
consent.
Senator Portman. Professor O'Connell, you talked about
this; you said that 30 percent of these jobs are part-time
jobs, usually boards and commissions. We talked earlier about
30 percent of the vacancies never receive a nomination at all.
In other words, in effect, there may be some overlap there but
probably not much.
Sixty percent are either not nominated because an acting is
chosen, so the administration never even nominates somebody,
and another thirty percent are for part-time jobs. In effect,
it is a relatively smaller group, less than half probably that
are actually getting attention that are substantive policy
positions. Is that fair to say, Professor O'Connell, or have I
missed my math there?
Ms. O'Connell. I am not exactly sure. The 30 percent that
do not receive a single nomination in the first two years, from
the research of Professor Lewis and Mark Richardson, does not
overlap considerably, as I understand it, with the part-time
positions because many of those part-time positions are ways of
rewarding those who helped with a campaign. In that push in
mid-December, seven, I think, of the nominees that were
confirmed in the final week in December kind of came from those
boards whereas like assistant secretaries were still sitting.
But I do think, right, you could remove some of these part
time positions, of course, within the confines of the
Appointments Clause. The Senate could really focus on these key
policy positions which also have constitutional implications,
as Mr. White has explained. And so that would be important.
I would just say, one thing back to your question on
qualifications is I guess I do think that many of agency
officials who are put up by the President, confirmed by the
Senate, and even those that present some hurdles, are
extraordinarily well qualified, and they are undergoing
considerable sacrifices to serve our government. I do think by
reducing some of the vetting and the forms, not to weed, of
course, we want to have qualified people.
But what we have now is an insider game. Just the
percentage of people coming from the D.C. area is quite high.
There are well-qualified people, as you know, from States other
than Maryland, Virginia, and D.C., and some of the changes
could help expand the pool to get more diverse voices into the
Federal Government.
Senator Portman. Yes, I could not agree with you more and
particularly with regard to Ohio. Thank you.
But seriously, again I have gone through two of these
confirmations. But I will say prior to 2013, when there was a
60-vote margin required, I think the quality of the candidates
was better; I just think that. I think some of these people
that we end up passing with a strict party-line vote would
never have been nominated had there been a 60-vote margin.
The same is possibly true with regard to our judges
because, let us face it, it would require more bipartisanship.
Now the counter to that would be that the Senate has become
more partisan, which I think is also true.
But I must say I think the quality of nominees since 2013
has changed. Again, I do not think some of these nominees that
are now being nominated, who again have been online--I guess
there were not many people worried about what Twitter was
saying back in 2013. But some of the things they have said and
done, and in the positions they are being put up for, like we
talked with the Merit Systems Protection Board--someone who is
openly and overtly partisan. It just does not make sense. There
has to be, out of the hundreds of millions of people in America
someone else who can step forward, maybe from outside the D.C.
bubble, who is qualified for those kinds of positions.
Anyway, I do not disagree that the process is too arduous
and ultimately what we want to do is attract the best people to
government. Yet, I do think that the reality is that the
quality of the candidates matters, and also that the Senate
does have an important role to advise and consent, and we have
to figure out how to make that work for those important
positions that really matter.
With that, Mr. Chair, I will turn it back to you. Again, I
thank our witnesses very much and look forward, if you could,
from the Partnership, Kristine, following up with some more
specific recommendations for us. Thank you.
Ms. Simmons. I am happy to. Thank you.
Chairman Peters. Thank you, Ranking Member Portman.
Ms. O'Connell, you studied the impact of vacancies in
political positions, including adverse effects from having many
positions without confirmed officials for long periods of time.
Obviously, vacancies always occur for many reasons. But
regardless of the reason, could you explain to the Committee
the actual impact these vacancies have on agencies?
Ms. O'Connell. Thank you, Mr. Chairman. I think that
vacancies, particularly if they are lengthy and frequent, have
several detrimental consequences.
The first is in regard to performance. Sometimes agencies
cannot act. Although the Federal Vacancies Reform Act of 1998
gives long service for acting officials, that Act applies only
to cabinet departments and single-headed executive agencies for
the most part, which means that independent regulatory
commissions and boards, like the Merit Systems Protection
Board, do not have recourse to acting officials. For those
agencies who cannot use acting officials and who have quorum
requirements, then you have real effects, like you get the
3,600 case backlog at the MSPB, for example.
Even in agencies which are able to use acting officials,
performance is also impacted because acting officials are
hesitant to take on big new projects because they perceive
themselves generally as caretakers. Rulemaking, for example, in
the first year of Federal agencies is lower than in other years
as agencies staff up. Of course, rulemaking can be both
regulatory and deregulatory.
A second consequence of longer vacancies has to do with
employee morale. The Partnership of Public Service has run
various surveys of agency employees, and they have found a
connection between agencies who lack Senate-confirmed leaders
with what they call static or declining employee engagement.
Employees seem to be less happy at agencies who do not have
confirmed leaders.
Then a third consequence is that in the agencies that can
use acting officials there are detrimental consequences to long
use of acting officials. When those time limits run out to the
delegations of authority, in addition to undermining the
Senate's role, there are some legal questions that arise.
I think that there are often many detrimental consequences.
Chairman Peters. Senator Rosen, you are recognized for your
questions.
OPENING STATEMENT OF SENATOR ROSEN
Senator Rosen. Thank you, Chair Peters, and of course, I
see Ranking Member Portman there. I want to thank the witnesses
for their insights today.
All of this is critical, and I am worried about our
critical services for veterans. Ms. Simmons, in your testimony,
you referenced the VA's Under Secretary for Health, a position
that has not had a Senate-confirmed leader since 2017. This
position leads the Veterans Health Administration (VHA), which
is the country's largest integrated health system. It serves 9
million enrolled veterans each and every year, more than 1,200
sites, and an annual budget of $61 billion. Nevada is home to
over 225,000 veterans. I am deeply concerned that the VA had to
stand up a commission last year just to identify candidates to
lead and manage the VHA.
Ms. Simmons, what can Congress do to ensure that positions
like these, that are not as high as cabinet level but still
oversee critically important government services, including for
our veterans, that they do not go without permanent leaders for
years at a time? This really hurts our country.
Ms. Simmons. Thank you, Senator, for that question. We are
very much in favor of trying to find creative ways to fill
these positions that are truly management in nature and require
high levels of professional and technical expertise and are
really apolitical. I think service to our veterans is certainly
a place where we can do more to think about how to provide
continuity of leadership and to think about the positions
differently.
One idea is to change the norm, think differently about
whether these positions actually turn over with a change in
administrations. Inspectors General are positions that are
Senate-confirmed, but by tradition they are not expected to
turn over when a new administration comes in. There is a
potential to think differently about some of these management
jobs and adopt that same kind of norm or tradition of not
having them turn over.
Another suggestion would be to think about providing a set
term, a longer term, with professional qualifications so that
you have greater assurance that someone stepping into the role
would understand that they had a runway that went beyond one
administration and that they were there for their professional
expertise. You could even build performance measures around
that position.
Another thing we think is important is to think about
having performance plans for political appointees. This is
something I think would speak to Senator Portman's concern
about the quality of nominees. We strongly feel that people in
these important positions need to be qualified leaders. They
should be developed and trained as leaders. They should be held
accountable for their performance. Being clear what good
performance looks like, and setting some terms and extended
terms, would allow them to have more continuity in some of
these key positions, especially in areas as apolitical and
important as service to our veterans.
Senator Rosen. That is great. I think we also have to be
sure that we identify how we identify those quality candidates,
get them into the pipeline. Implementing some of the things you
are thinking of and others is a good thing.
I would also like to talk a little bit about regional
appointments because last week President Biden announced 13
regional appointments for the Federal Emergency Management
Agency (FEMA), the Environmental Protection Agency (EPA), and
the Department of Agriculture (USDA), including the Nevada
State Executive Director for the Farm Service Agency (FSA). The
nominee, Janice Kolvet, she has experience as a career Federal
employee working on Federal farm programs, as a cattle rancher
in Elko, Nevada. She is a Nevadan.
Regional appointments like these are so important,
especially in western States, where the local economy,
industry, and climate challenges are not always familiar to
Federal Government workers here in Washington, DC.
Ms. Simmons, I understand these regional appointments are
not subject to Senate confirmation. So why is it that it can
take so long to fill these critical roles in a new
administration, and what effect does the Senate confirmation
process in general have on these appointments even though it is
not required for a particular position?
Ms. Simmons. Thank you for that question. This speaks to
something that Professor O'Connell raised, which is the value
of reaching outside of Washington for candidates and filling
these important positions with people who bring diverse
perspectives from around the country and can really bring their
personal expertise and experience to bear in service to the
public.
When there are so many positions subject to Senate
confirmation, it is almost essential that a very small Office
of Presidential Personnel (PPO) devotes their attention there,
and that tends to take up a lot of the time that could be spent
sourcing candidates for some of these more regional positions,
positions not subject to Senate confirmation.
It is also true sometimes that some of these regional
positions or other positions that are not Senate-confirmed, are
not filled until the Senate-confirmed position is filled above
it. So that can also contribute.
Finally, I do not have specific knowledge of the situation
at USDA, but when the government is operating under a
continuing resolution (CR), there also might be financial
reasons why they are not able to fill particular positions that
they need to fill until full-year appropriations are passed.
Those are a few of the comments, and I would invite my
other panelists to chime in.
Senator Rosen. Yes, because government services really
suffer in our regional areas when these positions are not
filled. Professor O'Connell, would you like to comment on this
as well, please?
Ms. O'Connell. Thank you, Senator. I agree with Ms. Simmons
from the Partnership about the various reasons.
I would just add with regard to the Presidential Personnel
Office is that we have seen a lot of turnover in PPO across
Democratic and Republican administrations. In President Obama's
administration, for example, the head of PPO, while trying to
fill all these Plum jobs across Federal agencies, decided that
he wanted to take a Plum job as Ambassador to South Africa and
so was gone from the Presidential Personnel Office within six
months of the start of that administration. For President
Biden, the first Director of Presidential Personnel has also
left.
I think it is also important for Republicans and
Democrats--and there was turnover in PPO as well in the Trump
administration--to have experienced people in Presidential
personnel, to have the staff, and then have the various
computer systems, the online systems, to help process more
quickly people both for Senate-confirmed positions and then for
these other political jobs.
Senator Rosen. Thank you. I appreciate that.
I see my time is expired. I just think we really have to
also address the Federal Vacancies Reform Act, its relationship
to agency-specific succession schemes. We have a lot to do
here. People need services.
I appreciate everyone for being here. Thank you, Mr. Chair.
Chairman Peters. Thank you, Senator Rosen.
Ms. Simmons, the Partnership for Public Service's
unconfirmed report States that there are both economic and
performance costs related to the current number of appointments
and the pace at which they assume that office.
Could you elaborate for this Committee on what those
economic and performance costs are and how they specifically
relate to the effectiveness of our agencies?
Ms. Simmons. I am happy to, Mr. Chairman. It really speaks
to the importance of government operating at its very best,
particularly given the many challenges that our government is
facing and the need to serve the American people as effectively
and efficiently as possible.
We know that having vacancies in critical positions
contributes to delayed decisionmaking. Many acting officials
are toggling between two jobs, which means they are often not
able to fully commit to either position and to give it as much
attention as it may require, and that could de-optimize the
effectiveness of agencies. We know that legal challenges are
possible when people are serving in acting roles, and it is
questionable in terms of how they stepped into those roles. We
also think that there is national security implications for
positions that are not filled, and this is something that the
9/11 Commission recognized as well.
I will also note that there have been bills introduced in
the past that had a variety of different cost estimates
associated with the savings that would be realized from
reducing the number of positions subject to Senate
confirmation, even going back to a bill that Senator McCain had
introduced, capping the number of Senate-confirmed positions,
and it had a very high estimate of the amount of money that
that would save.
Chairman Peters. I am going to ask another question for
you, Ms. Simmons, as well as Ms. O'Connell. The Federal
Vacancies Reform Act of 1998 allows the President to fill
vacant positions requiring Senate confirmation with an acting
officer, but the acting officer may serve for a 300-day period
at the beginning of the administration and a 210-day period
later on in the administration while the President decides who
they will nominate.
If each of you could briefly share with this Committee what
happens when the time period runs out and the impact that this
has on the agency and on congressional oversight. Ms. Simmons?
Ms. Simmons. Thank you for that question. What happens when
that time period runs out is often not transparent to Congress
or to the public. We did some research on this and found a
variety of titles that were put in place. At times it appears a
position has been unfilled altogether. Other people will fill
it with titles of a principal official performing the duties
of. There are deputies that step in. It is a patchwork of ways
in which administrations respond, but the fact is that the work
needs to get done.
This is why we are encouraging a fresh look at the
Vacancies Act, to try to fix some of the ambiguities in the
law. One of the things we strongly recommend is to allow
someone who has been nominated to also serve as the acting
leader of that agency, and this is something that Professor
O'Connell also mentioned in her statement. We think that there
are opportunities to fix some of the places where the Act is
unclear.
We think more timely reporting is also essential. There is
a requirement now that agencies report to the General
Accounting Office when there is a vacancy. It is very spotty
and very slow. Again, there is not much transparency as it
exists today.
Chairman Peters. Thank you. Ms. O'Connell.
Ms. O'Connell. The time limits for the Vacancies Act are
long, Chairman. So you get in the first year 300 days if there
is a nomination, all throughout the nomination; if that
nomination is returned, an additional 210 days. You get the
time for a second nomination; if that nomination is returned or
withdrawn, a final 210 days. It is possible under the Vacancies
Act to have over two years of acting service.
Now what typically happens is we do not see those pending
nominations. After the 300-day mark, the acting title is gone
from those leadership pages, and instead we typically have
delegations of authority. So under current case law, functions
that are not exclusive to the vacant position are delegated
down.
Mr. Berry from the Cato Institute, I believe, has submitted
a written statement talking more about some of the legal
issues. He and I disagree about kind of what to do in some
regard to that. But basically, then you have senior officials
performing the duties and functions of the vacant office
occurring when the time limits run out.
As Ms. Simmons indicated, there are transparency problems.
Although you have reporting under the Vacancies Act for acting
service, there are reporting requirements with regard to
delegations. It is incredibly hard to find information about
delegations. I was a consultant to ACUS on a project on acting
officials and delegations of authority. It was very hard to
track down not just acting officials but then, when the time
limits ran out, what was happening with regard to those vacant
positions.
Now it is a tricky balance because you want transparency,
you want accountability, you want the Senate's role, but you
also want government agencies to function and we have a
dysfunctional appointments process. But somehow we need acting
officials and delegations of authority for the stop gaps, but
we need to reduce the time of those stop gaps.
Chairman Peters. Thank you.
Ranking Member Portman is recognized for a question.
Senator Portman. Thank you, thank all three of you. Great
point about acting. We also talked earlier about career because
I think, Mr. White, in your testimony, you say that if some
Senate-confirmed positions are converted to career roles then
the Federal Civil Service should be reformed also.
Senator Lankford is here, and I want to turn to him now to
make sure he has a chance to ask his questions. But if you
could just for the record provide us some specifics on that,
that would be helpful in terms of should we choose to have more
career roles, what kind of reforms to Civil Service might be
appropriate.
Thank you, Mr. Chairman.
Mr. White. Thank you for your question. I want to be very
clear at the outset the Constitution places limits on which
offices could be removed outside of the political appointments
altogether and returned down to Civil Service.
Setting that aside, in my testimony, when I referred to the
connection between the appointments issue and the Civil Service
issue, I was referring to the broader debates that we have been
having in Washington and beyond for years now over the State of
our Civil Service, the political criticism of it, some of it
well founded, some of it not at all well founded, and questions
about the policymaking discretion that is in the hands of some
civil servants who have less accountability to the agency heads
or to the President. In my testimony, I was merely pointing out
that to the extent that more agency authority is taken out of
Presidential or Senate-confirmed appointments and moved down
into the Civil Service, it will only ratchet up the temperature
surrounding debates on whether and how to reform Civil Service.
Senator Portman. Yes, that is why I asked the question.
Again, if you would provide some more for the record, that
would be great. But if we were to go down that track, as an
example, reduce the number of confirmed positions, have more of
them be career, it might be an opportunity to make some long-
awaited changes in the Civil Service as well, and that is why I
was interested in your response.
Thank you, Mr. Chairman.
Chairman Peters. Thank you, Ranking Member.
Senator Lankford, you are recognized for your questions.
OPENING STATEMENT OF SENATOR LANKFORD
Senator Lankford. Mr. Chairman, thank you and thanks for
all the input on this. This is one of those things that most
folks outside of D.C. are not going to pay attention to at all
but is extremely important for the functioning of not only the
Senate but the Administration and trying to be able to get the
right people in the right place. I appreciate all of you
spending so much time helping us think through some of these
issues and to be able to talk about it.
I do want to talk about some different things on this. One
of them is for individuals that are going through the
Presidential nomination process they have to divest from their
business, they have to divest from their stocks, and all kinds
of things they have to walk away from. Then they spend a year
or two or three awaiting the confirmation process on this. That
definitely encourages people not to take these jobs, and we
create a discouragement from people, to say: I would do that
job, but it may take two years to go through it, and I am not
going to do two years without my business, without income, and
have to be able to sell my business and then not even be
certain if the Senate is going to even take up my nomination at
all.
That is a terrible process. How do we get good people to be
able to step into these roles when there is so much uncertainty
at the beginning?
What would your suggestions be on how we handle personal
finances of individuals while they are going through the
process? Would it be a recommendation to say they have to
divest from all those different investments if they take the
role and are actually confirmed, or do they have to take it
while they are going through the nomination process?
Ms. Simmons. Senator, thank you for that question. I am
happy to start, and I invite my fellow panelists to chime in.
I am not an expert on the Ethics in Government Act which
governs the financial disclosure process, but I will share that
what we hear from nominees and from transition teams and from
people on Capitol Hill working on these issues is that as the
financial products have become, so much more sophisticated that
the Act has not really kept up. There are so many challenges
nominees face in understanding how different things they own
will be treated and viewed, and it often will be months into
the process before they are told that a particular managed
account is not a mutual fund or not treated the same way and
needs to be disposed of or mitigated in a different way. It can
be very challenging. So bringing additional clarity as early as
possible will help people complete their forms and do so in an
accurate way.
We also think it is important for people to understand what
these jobs require, what public service requires. It is a
different place. There is the responsibility of public trust.
People need to have a clear understanding of both the privilege
of serving in a Presidentially appointed role and also the
sacrifices that go with it before they say yes.
Senator Lankford. Yes. There is a different set of
sacrifices, though, to be able to say to someone, I am going to
need you to sell your business, walk away from all your
investments, and live isolated financially for the next year
and a half before we will give you an answer if you are going
to get this job.
Ms. Simmons. Right.
Senator Lankford. That is not right. Again, if they take
the job on, that is different than you have to sacrifice all
this stuff and then we will tell you later whether you are
actually going to get it or not. That is what I am driving at.
I have no problem with maintaining ethics for individuals
that are serving in government, but we are talking about those
that are literally in the application process at that point,
that the Senate is still considering advice and consent on
that. That is a whole different issue for me, and so I do think
it is an area that we have to be able to address.
There has been some conversation about reducing the list,
and I fully take on the responsibility of constitutional and
trying to be able to deal with advice and consent on this. But
there are some rules that are out there, for instance, the
legislative affairs person for several of these agencies. Why
are we doing Senate confirmation for someone that the agency is
picking to be in a relationship with us? So that seems
nonsensical.
Now I am not asking for a full list of it, but if you go
through different positions like that, like the legislative
affairs individuals and others that are out there, we are 1,200
some odd at this point now that are going through the process.
The number, I am not trying to get to a magic number. I am
trying to look at it.
As you look through the list, do any of the three of you
see a number, to say, this is more reasonable based on some of
these positions that may not need the same kind of Senate
oversight on it? Is it 800? Is it 900? Is it 1,150? Adam, do
you want to take that on?
Mr. White. Yes, although I must admit I do not have a
number for you.
Senator Lankford. Yes. But I am not looking for a magic
number. I am just trying to get a guess.
Mr. White. Having highlighted the example of the Office of
Legislative Affairs and other agency offices that do not have
significant policymaking authority and are primarily either
ministerial activities on behalf of the agency head or fact
finding, 25 percent.
Senator Lankford. Yes, a decent guess. Ms. Simmons, do you
want to take a guess at that?
Ms. Simmons. I will. There are 137, approximately, Senate-
confirmed assistant secretary positions. We would recommend
starting with the presumption that those do not need to be
Senate-confirmed unless the Senate affirmatively decides they
need to be because of the responsibilities of the job.
Right there, if you take the legislative affairs positions,
you have over a dozen that you would take off the rolls of
Senate-confirmed.
Then Professor O'Connell has spoken also about part time
boards and commissions. There are dozens of them that are
advisory in nature and we think could easily, without detriment
to the mission, be converted.
Senator Lankford. Ms. O'Connell, do you want to be able to
add into that as well?
Ms. O'Connell. Thank you, Senator. I think the number is
below a thousand. Of course, what is desirable is not always
politically feasible. I would start with the part-time boards.
Senator, if I could just quickly go back to your paperwork
question and financial conflicts of interest, I do think there
is a difference between the nomination phase and what happens
once someone joins the government and we need to spend more
time thinking about what happens in that initial phase and how
that may discourage people from entering government service.
I do think there is some that could be done with
streamlining that financial paperwork as that working group in
2012 indicated. Some of their recommendations are targeted
toward financial disclosure.
Senator Lankford. Right. Going through the Presidential
nomination process is the equivalent of a full-body cavity
search through everything in your life and everything in your
history and everything in your finances. It is a brutal process
for individuals to be able to go through. So people need to
know if you are going to step into this responsibility there is
a lot of background that we are going to look at for those
individuals, rightfully so. But then to discourage them from
even taking it on or to have to live without an income while
they go through the process is a very different issue on this.
One last question that I had on this--I know I have run out
of time. And that is the issue of how do we incentivize the
Administration to nominate people. We have had multiple
administrations in a row that have not nominated, for instance,
IGs. They will not put someone up. That is a problem. Not only
do we need to have good oversight of it, but we need
administrations to actually nominate individuals to these
roles. We have several roles that there was literally never a
nomination for.
What would you suggest as far as leverage or engagement to
be able to actually make sure we do get nominees for areas
where we need nominees, Mr. White?
Ms. O'Connell Senator, I guess I could take that on. I
mean, right now, as you know, three of the 15 cabinet
departments do not have a confirmed Inspector General; two of
those three do not even have a nominee. The number was even
greater in August 2020, where I believe seven cabinet
departments lacked a nominee for IG positions.
So what can be done? I think these positions where they are
done without regard to partisanship--that is also true for the
Under Secretary of Health that we have talked about, Ms.
Simmons talked about, in the Veterans Administration--those
positions are harder to fill. I think that White Houses turn to
the more political positions first.
I think that the Council on IGs with regard to
recommendations, pressure being placed on the White House, and
then cabining who gets to serve as an acting IG so we do not
have some of what we saw in the Trump administration with the
firing of IGs and then having acting IGs who are not drawn from
other confirmed IGs or from IG staff but instead of political
appointees. Whether you are on the left or the right, Congress
needs IGs who either confirmed or acting, who are nonpartisan,
doing critical oversight work.
Senator Lankford. Yes, just to be able to keep this
nonpartisan as well. The Obama Administration, in eight years,
had several IG positions they just refused to ever nominate
someone for, and they did not want the oversight in that area.
This is a nonpartisan issue, but we do have to have important
individuals in that spot.
Mr. White, you were about to say something.
Mr. White. If I may, the bluntest tool for creating
incentives for agencies to nominate and fill these positions
would be to tie to the effectiveness of their substantive
regulations. Any agency with policymaking power that they try
to effectuate through rulemaking, any rules, effectiveness
could be tied to the filling of those offices. Require the
agency to have the full complement of Senate-confirmed offices
in place before any new regulations could go into effect. That
would certainly create an incentive for the agency to act.
Senator Lankford. OK. Thank you.
Thank you, Mr. Chairman.
Chairman Peters. Thank you, Senator Lankford.
Senator Carper, you are recognized for your questions.
OPENING STATEMENT OF SENATOR CARPER
Senator Carper. Thanks very much, Mr. Chairman.
I want to thank our witnesses--I want to thank Dr.
O'Connell, Kristine Simmons and Adam White for taking time to
be with us today and share your thoughts and respond to our
questions.
Mr. Chairman and to our witnesses and our colleagues, I am
getting some flashbacks here. I am thinking of, 10 years ago
when another Senator from Oklahoma--in that case, Tom Coburn--
and I were privileged to lead this Committee, and we focused a
whole lot of time and attention on trying to make sure that a
different administration was able to nominate people to serve
in leadership positions, especially in Homeland Security, but
to actually get them confirmed in a bipartisan way.
This is really important stuff. I am grateful that we are
doing it and grateful to our witnesses for your help.
I have really three questions. One would be the need for
Senate-confirmed at the Federal agencies. Another would be the
PLUM Act, the bipartisan legislation that I have been
privileged to have some role in crafting. Third is lessons
learned from previous administrations' use of acting officials
and delegations of authority.
The first question goes to the need for Senate-confirmed
leadership at Federal agencies. This is a question for all of
our witnesses. Again, alluding to the time several years ago
when Senator Coburn and I held a number of hearings that pretty
much remind me of what we are doing and talking about today. We
invited witnesses from the Department of Homeland Security to
come and talk about Swiss cheese, not the kind we eat, though.
Rather, we were discussing the high number of vacancies or
acting individuals who were serving in top leadership positions
at that time in the Department of Homeland Security. They
reminded us then and reminds me today of Swiss cheese.
I am concerned. Let me say as a recovering Governor I know
personally how important, it was to be able to get my team in
place. We have a tradition in Delaware, a highly bipartisan
tradition that the Governors for the most part are given the
opportunity to put their teams together. We seem to have gotten
away from that here, and it is a matter of concern for--it has
been a matter of concern for me for a long time through the
present.
But we have a similar situation today atop several of our
Federal agencies and how it impacts agencies' abilities to
deliver results for everyday Americans.
A question for all three of you, Professor O'Connell, Ms.
Simmons, Director White. Could each of you please maybe take a
minute to discuss how a lack of Senate-confirmed leadership and
longstanding vacancies atop Federal agencies affect workforce
morale and the ability of agencies to execute their missions
and deliver results for the public? Professor O'Connell, do you
want to lead us off, please, and then Ms. Simmons and then
Director White?
Ms. O'Connell. Thank you, Senator. So as you indicate,
there are detrimental consequences, and very briefly, there are
two sets of them. The first set, as you know, are performance
related. Given your experience with the Department of Homeland
Security and this Committee, in particular with regard to
Homeland Security, vacancies are a problem and they have been a
problem in administrations since the Department was created and
got into business in 2003. Both in Republican and Democratic
administrations, there have been vacancies in DHS that have
hurt this country.
The second bucket of consequences has to do with
accountability and the Senate's role, is when we have vacancies
we typically do have acting officials in the Department of
Homeland Security, but they are less accountable. Sometimes, in
the last administration, they generated litigation with regard
to their service and some of their actions ended up being
struck down because of improper use of the succession
provisions in the Homeland Security Act.
Senator Carper. Good. Thank you. Thanks. Thanks, Professor.
Ms. Simmons, please, the same question.
Ms. Simmons. I agree with what Professor O'Connell offered.
I would just say, at the end of the day, having Senate-
confirmed leaders in place promotes more efficient and
effective administration because decisionmaking is clear, the
accountability of those people to the Senate is greater and to
the Congress is greater, and the employees that are working in
the departments and agencies understand who they are getting
their marching orders and can execute on the agenda. We think
it is in the best interest of government to have Senate
confirmed leaders in place.
Senator Carper. Government and the people, I would say,
yes.
Ms. Simmons. Yes.
Senator Carper. OK, Director White, same question, please.
Thank you.
Mr. White. Thank you. In addition to all that has been
said, I would say that Senate confirmation has an important
role to play in the quality of the leadership and management of
the agency. An administration will choose an agency official
for a number of reasons. Often they are in alignment with the
policies of the administration. Of course, those are all
important for energetic execution, but the quality of
leadership and day-to-day management is also important and so
is the character of the nominee, his or her sense of the
mission of the agency, and also the legal constraints upon the
agency.
Those are all considerations that transcend any one
administration, and it is important for the Senate to be an
outside check on the instincts of any single administration to
ensure that the agency over time, from administration to
administration, is well managed, confidence-inspiring, and
restrained by the rule of law.
Senator Carper. Thanks. Thanks, Director White.
I have another question I am going to ask Professor
O'Connell and Ms. Simmons to respond to here, and then I am
going to ask questions for the record for a couple of you as
well.
But here is the question for Professor O'Connell and Ms.
Simmons. Both of you mentioned your support for the legislation
that is called Periodically Listed Update to Management, a
bipartisan bill championed in the Senate by Senator Braun,
Senator Merkley, and myself. This legislation promotes a more
transparent and accountable Executive Branch by requiring the
Office of Personnel Management (OPM) to modernize our
government publication that is known as the Plum Book, which is
published every four years, serves as the comprehensive
directory of information for senior policy and management roles
in the Executive Branch.
Professor O'Connell and Ms. Simmons, how would passing the
PLUM Act help tackle the issue of longstanding Federal
vacancies and ensure that political appointees are well
qualified for positions to which they have been nominated?
Please proceed, Professor O'Connell and then Ms. Simmons, and
then I will be quiet. Thank you.
Ms. O'Connell. Thank you, Senator. Actually, at the very
end of this set of books, at the very end are some Plum
volumes. I have hard copies of the Plum Book.
I strongly endorse and am so grateful for your work on the
PLUM Act and support it for various reasons. One is a
transparency mandate. It is hard to figure out who is serving
in a critical Senate-confirmed position, and the Plum Book
includes beyond Senate-confirmed positions, other political
appointees, as well as positions which are carried out by
senior career workers in Federal agencies. It is important to
know who is doing that work or if that work is not getting
done. The PLUM Act would, in addition to the hard volume which
I keep in my office, would also continually update that
information electronically, and that is important.
Second, with regard to staffing these positions, the PLUM
Act would make clear which positions have which appointment
structure, fall into which agency, and, along with good
government organizations like the Partnership developing job
descriptions, can help potential nominees, help the
Presidential Personnel Office in terms of staffing them. I hope
that Congress will enact the PLUM Act very soon.
Senator Carper. Professor, thank you so much for those
words.
Ms. Simmons, just briefly, same question.
Ms. Simmons. Thank you, Senator. To echo that, first of
all, having the PLUM Act enacted would allow for a much more
efficient process. It would ensure that the Plum Book can be
updated in real time. Right now, it is a snapshot every four
years, and there is no possibility to correct errors. The most
recent Plum Book was published not until December 30th, so well
after the Presidential election. It was missing in the index
seven agencies, and there was no way to go back and correct
that. We think that making it more accessible, more
transparent, providing better accuracy and more efficiency
would be very good for transparency and good for government and
the people it serves.
Senator Carper. Thank you. Thank you so much. Thank you
both very much for that.
Then to our Chair, if I can ask a question. I am not going
to ask for the response right now. Professor O'Connell, it is
the last question for the record. When is it appropriate for
the administration to use acting officials and delegations of
authority? What are some lessons learned from previous
administrations' use of these temporary measures that Congress
should keep in mind as we consider proposals to reform the
current Senate confirmation process and existing Federal
vacancy law? Again, Professor O'Connell, if you will do that--
it is for the record--I would be most grateful.
Thank you all for your testimony. This is something that is
near and dear to my heart, and I think it is very important,
for our country. Thank you.
Chairman Peters. Thank you. Thank you, Senator Carper.
Senator Hawley, you are recognized for your questions.
OPENING STATEMENT OF SENATOR HAWLEY
Senator Hawley. Thank you very much, Mr. Chairman. Thanks
to all the witnesses for being here. Great to see each of you.
Professor O'Connell, if I could begin with you. I know that
this is your field, and I am interested in getting your
perspective on some of this, particularly some of your
historical perspective.
Let me begin, though, with something that you mentioned I
think in your testimony, and that is in some sense the problem
of vacancies begins with the Executive Branch. President Trump,
for instance, if I have my numbers right, he did not nominate a
single individual for 36 percent of posts. I mean, that is a
lot. That is a big number. President Obama, similarly, did not
nominate a single individual for over 25 percent of posts
during a similar timeframe. That is also a pretty big number.
What do you think we should infer from that?
Ms. O'Connell. Senator, thank you for that question. I
think you could infer several things. First, that there are a
lot of positions to fill and some positions take priority and
others do not, and so in the fixed resources, fixed time, some
positions just do not take a high priority.
Second, I think you can take that--there is not a lot of
pressure to fill those positions. Right? As you indicate,
Senator--and I am quoting here from research by David Lewis and
Mark Richardson out of Vanderbilt University. Thirty percent of
positions on average do not receive a single nominee in the
first two years, looking at the past three completed
administrations. I think a large part of that is the Federal
Vacancies Reform Act of 1998. At least for a set of positions,
where you can have acting officials, the need for Senate-
confirmed person in that position, excuse me, just is not as
great because you can have an acting official carrying out all
the duties exclusive and nonexclusive to that Senate-confirmed
job.
Then when the time limits run out--and they are very
generous time limits--what happens in these agencies is you
have delegations of authority downward for the nonexclusive
functions. Basically, most of the functions are nonexclusive in
Federal agencies, and then you have delegations.
You have at the Department of Homeland Security, across
Democratic and Republican administrations--you go to that
leadership page, and you look right now at the under
secretaries. The majority of them are not Senate-confirmed
officials, and you have senior officials performing the duties.
Under these delegations there are no time limits under the
Vacancies Act. You can have those positions carried out for
years, for entire Presidential terms, without ever putting
forward a nominee.
Senator Hawley. That is very interesting. Do you think is
one of the takeaways here that maybe the Federal administrative
apparatus has become so gargantuan that even the person who has
some directive authority--speaking of the President, but you
know, it is only some directive authority. But even that person
does not seem to have an enormous incentive to fill--even he or
she does not necessarily see the need to fill the entire
apparatus of an administrative branch that they largely--they
do not control it of course, but they largely direct or could.
Yet, they think that they can administer the government,
rather, without, in President Obama's case, a quarter of
positions, in President Trump's case, 36 percent.
I mean, what is your view on that? Is part of the issue
that the size and scope is just gigantic that it is hard for
even the President, who has a decided interest in this--it
would be in their interest, but it is hard for even the
President to find pressing need to fill these positions, some
of them?
Ms. O'Connell. As the economy has changed, we have a large
administrative state. I think I am more a fan of the
administrative state than you may be, Senator. But what is
interesting is that from the 1960s Federal employment has been
relatively constant. It is not as if the Federal Government has
expanded in size.
Now what has happened, research by Professor Paul Light, is
known as thickening of government, and so you have more of
these management-type of positions. I am an academic. We see
this in universities, too, where you have a thickening of the
management positions and it is not clear that all of those
management positions are needed. In fact you have greater
Presidential control if you had fewer of those positions, like
if the kind of line of accountability was clearer might
actually be more helpful in terms of the President's interest
and constitutional role in managing Federal agencies.
Senator Hawley. That is interesting. Let me ask you--and I
am probably going to date myself with this next remark and show
you when I was in law school. But when I was in law school,
Stephen Skowronek was someone in his work on the administrative
state and as it related to the political branches and political
energy. He talked about the waning of political clime in
America because of, I think, the phenomenon of thickening that
you just said.
If I remember--and you could correct me if you know
Skowronek. And you know, apologies to him if I am terribly
misrepresenting his work. But my memory of it is that part of
Skowronek's point is that as the administrative apparatus has
become thicker, deeper, big, whatever, bigger--I mean, pick
your adjective of choice--it has become more difficult for
Presidents--somewhat perhaps, paradoxically, more difficult for
President to enact their agendas. Of course, it is also more
difficult for Congress to control these agencies.
Do you agree with that analysis as I have stated it, in
rough outline, or do you think that that is off in some
fundamental way?
Ms. O'Connell. I think it has to be acknowledged that
Federal agencies are doing more complex work. When I was
referring to thickening, I was referring to a different sort of
thickening. I was referring to the thickening of leadership
positions----
Senator Hawley. Right.
Ms. O'Connell. Like the growth, for example, of assistant
secretary positions. So we have that.
Now does that impact Presidential control? That is less
clear. I think what we have seen in recent administrations on
the left and on the right is the rise of what now Justice Kagan
labels a Presidential administration. We have that through
increasing Presidential directives, whether they are Executive
Orders (EO) or Presidential memoranda directing Federal
agencies to take various actions. I think that is a
counterweight and does allow Presidential control, of course,
that raises certain concerns, both on the left and the right,
about the President's role in terms of directing Federal
agencies when we think about, of course, Congress's role in
terms of what it delegates and what it wants from Federal
agencies.
Senator Hawley. Yes, fair enough. I was going to say my
time is just about expired. Technically, it has, but one more
question I will ask this question, and then I will cease and
desist, Mr. Chairman. I wanted to ask Mr. White to be able to
weigh in on this, just in terms of the administrative state.
I mean, my own view, as I was previewing with Professor
O'Connell, is part of what has happened here is that the
administrative state it has become so powerful since this body,
the Congress, delegates so much to the administrative state,
and there are now so many political positions to fill that even
Presidents do not find there being a great incentive to fill
them all.
Just give us your perspective on this and what you think
reforms might be. How might we go about thinning this out in a
way that is constitutionally responsible?
Mr. White. I agree completely with the point. In my written
testimony and in my statements earlier, I tried to return time
and time again to the basic problem of delegation, the problem
of overbroad delegation exacerbating the issues we are
discussing.
Your point about slower and slower execution is right on
point. In our system, Congress ought to take its time
legislating, and then once it has made a decision it should
make a decision that the President and his administration can
quickly and clearly execute. That is the energy in execution.
Today, unfortunately, with so much power and discretion
delegated to the administration, you have the worst of both
worlds. It takes forever for an administration to formulate the
policy and then go into execution. We often think of delegation
as empowering a President. It does in a way, but in terms of
actual execution it really deforms execution and slows it down.
Anything that can be done to reduce the breadth of
discretion of powers delegated at the agency will make
execution faster, it will take the temperature down on Senate
confirmation fights, and it will alleviate a number of other
sort of secondary symptoms of the delegation problem that we
are grappling with here today and in other issues before the
Committee.
Chairman Peters. Thank you, Senator Hawley.
I would like to take this time to thank our witnesses for
joining us today for this very important discussion, a
discussion that I intend to continue to follow through for. We
are hoping to draft legislation out of this Committee to deal
with some of these issues, but we want to make sure we have a
robust discussion among Members of the Committee as well as
experts like each and every one of you. I appreciate your time
here today.
Effective government clearly depends on a reliable and a
consistent process for filling senior roles. Vacancies in these
roles lead not only to significant operational and managerial
risk, but they can also compromise our national security. While
the Senate must certainly continue to exercise our
constitutional authority and thoroughly consider nominees'
qualifications, I remain confident we can better streamline the
Presidential appointment process to help fill these critical
positions all across the Federal Government.
I want to thank my Ranking Member, Senator Portman, for
holding this hearing with me here today, and I certainly look
forward to working with him and others on the Committee to
address this issue in the future.
The record for this hearing will remain open for 15 days,
until 5 p.m. on March 18, 2022, for the submission of
statements and questions for the record.
Again, thank you for your appearance here today.
The hearing is now adjourned.
[Whereupon, at 12:04 p.m., the Committee was adjourned.]
A P P E N D I X
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