[Congressional Record Volume 144, Number 28 (Monday, March 16, 1998)]
[Senate]
[Pages S1992-S1994]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. THURMOND (for himself and Mr. Lott):
  S. 1764. A bill to amend sections 3345 through 3349 of title 5, 
United States Code (commonly referred to as the ``Vacancies Act'') to 
clarify statutory requirements relating to vacancies in certain Federal 
offices, and for other purposes; to the Committee on Governmental 
Affairs.


                the vacancies clarification act of 1998

  Mr. THURMOND. Madam President, I rise today to introduce legislation 
to address a serious, ongoing problem between the Executive and 
Legislative branches of our government. I am pleased to do so on behalf 
of myself and our distinguished majority leader, Senator Lott.

  The issue is the advice and consent role of the Senate under the 
Constitution, and the failure of the Administration to properly respect 
this authority in Presidential appointments. Too often, when an 
official holding an advice and consent position leaves the 
Administration, the President or lesser officials will appoint someone 
to serve in the vacancy on an acting basis for a long period of time 
without submitting a nomination to the Senate. The Administration 
routinely disregards the advice and consent role of the Senate in this 
manner.
  The Framers of the Constitution surely would not be pleased. The 
Appointments Clause of Article II, Section 2, of the Constitution is 
one of the fundamental checks and balances included within our great 
system of government. As Justice Scalia stated for the Supreme Court 
last year, ``[T]he Appointments Clause . . . is more than a matter of 
etiquette or protocol; it is among the significant structural 
safeguards of the constitutional scheme.''
  The Congress has long recognized the danger of the Executive Branch 
ignoring its role. The Vacancies Act was enacted to prevent this 
problem, and it has existed with few revisions since at least 1868. The 
Act sets forth limitations on acting appointments. It sets forth a 
logical procedure whereby the first assistant or another confirmed 
appointee takes over until a new nominee is confirmed. Importantly, it 
limits the

[[Page S1993]]

time this acting person may serve to 120 days unless the President has 
submitted a nomination to the Senate.
  There are two problems with the Vacancies Act today. The first is 
that it is being ignored. The second is that there is no enforcement 
mechanism to prevent the Administration from ignoring it.
  Today, vacancies in advice and consent positions are a serious 
problem in this Administration, and many of the people who are serving 
in these positions in an acting capacity are doing so in violation of 
the Vacancies Act. Consider the Department of Justice. The President 
has just nominated someone to head the Criminal Division. That position 
has been vacant since August 31, 1995, which is for two and one-half 
years. Also, when the Solicitor General left in June 1996, Walter 
Dellinger was made Acting Solicitor General without any effort to seek 
Senate confirmation. He then served for an entire term of the Supreme 
Court before the President nominated the current Solicitor General.
  The issue that has pushed the Vacancies Act into the headlines in 
recent months is the President's designation of Bill Lann Lee to serve 
as chief of the Civil Rights Division in an acting capacity. After 
allowing the position to remain vacant for six months, which itself 
violated the Act, the President nominated Mr. Lee. The Judiciary 
Committee could not support sending his nomination to the Senate floor. 
However, rather than sending a new, consensus candidate for 
confirmation, the President blatantly circumvented the confirmation 
process by appointing Mr. Lee in an acting capacity.
  I believe it is essential that the Senate act to stop the ongoing 
abuse of its confirmation role. Today, I am introducing the Vacancies 
Clarification Act of 1998 to help preserve our role by addressing two 
primary problems with the Act today: its alleged coverage and its 
enforcement.
  The Administration has an explanation for ignoring the Vacancies Act. 
The Department of Justice says the Act does not apply to it because of 
the administrative authorizing statutes that reorganized the Department 
in the 1950s. In my view, this argument has no merit. These statutes 
make no mention of vacancies and were certainly never intended to cover 
what the Vacancies Act already clearly covered. The most obvious flaw 
in Justice's argument is that all Executive departments have similar 
authorizing statutes. Therefore, if Justice is not bound by the Act, 
the other departments are equally free to ignore it, as many of them 
do. To address this, I propose that the Vacancies Act provide that it 
is applicable to all advise and consent appointments, unless a 
different statute provides that the Act is not applicable to a 
particular position.
  The second problem is that the Vacancies Act has no enforcement 
mechanism. There is no way to force the Administration to comply except 
to retaliate against it or to sue in court. Thus, I propose that any 
person who serves in violation of the Vacancies Act may not be paid 
while they are in violation of the law. This would be a simple but 
effective way to bring the Administration into compliance.
  My bill accomplishes these objectives by rewriting the Vacancies Act. 
The current language is somewhat intricate and dated. After all, the 
Act has existed with few revisions since 1868. Thus, I have attempted 
to rewrite the statute as it currently exists but in language that 
makes its requirements and exceptions as clear as possible. Hopefully, 
this will close any loopholes that lawyers have created in the words of 
the Act in its current form.
  It is my hope that this bill can serve as a starting point for 
bipartisan discussions on reform in this area. It is possible that the 
Administration may raise legitimate concerns with some of the 
requirements in the current law, such as that the 120 day period to 
submit a nomination is not enough time. This is an issue that could be 
discussed in hearings.
  Indeed, I am very pleased that the Governmental Affairs Committee has 
scheduled a hearing on the Vacancies Act this week. It is important 
that the Senate study this matter and address the flaws in the current 
process.
  Madam President, this is a matter of great Constitutional 
significance. We cannot allow the Administration to continue to 
disregard the advise and consent role of the Senate. By revitalizing 
the Vacancies Act, we can require the Administration to respect the 
Senate's Constitutional duty.
  At this time, I ask unanimous consent that the text of the bill be 
included in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1764

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Vacancies Clarification Act 
     of 1998''.

     SEC. 2. FINDINGS.

       Congress finds that--
       (1) Congress enacted the Act entitled ``An Act to authorize 
     the temporary supplying of vacancies in the executive 
     departments'', approved July 23, 1868 (commonly referred to 
     as the ``Vacancies Act''), to--
       (A) preclude the extended filling of a vacancy in an office 
     of an executive or military department subject to Senate 
     confirmation, without the submission of a Presidential 
     nomination;
       (B) provide an exclusive means to temporarily fill such a 
     vacancy; and
       (C) clarify the role of the Senate in the exercise of the 
     Senate's constitutional advice and consent powers in the 
     Presidential appointment of certain officers;
       (2) subchapter III of chapter 33 of title 5, United States 
     Code, includes a codification of the Vacancies Act, and 
     (pursuant to an amendment on August 17, 1988, to section 3345 
     of such title) specifically applies such vacancy provisions 
     to all Executive agencies, including the Department of 
     Justice;
       (3) the legislative history accompanying the 1988 amendment 
     makes clear in the controlling committee report that the 
     general administrative authorizing provisions for the 
     Executive agencies, which include sections 509 and 510 of 
     title 28, United States Code, regarding the Department of 
     Justice, do not supersede the specific vacancy provisions in 
     title 5, United States Code;
       (4) there are statutory provisions of general 
     administrative authority applicable to every Executive 
     department and other Executive agencies that are similar to 
     sections 509 and 510 of title 28, United States Code, 
     relating to the Department of Justice;
       (5) despite the clear intent of Congress, the Attorney 
     General of the United States has continued to interpret the 
     provisions granting general administrative authority to the 
     Attorney General under sections 509 and 510 of title 28, 
     United States Code, to supersede the specific vacancy 
     provisions in title 5, United States Code;
       (6) the interpretation of the Attorney General would--
       (A) virtually nullify the vacancy provisions under 
     subchapter III of chapter 33 of title 5, United States Code;
       (B) circumvent the clear intention of Congress to preclude 
     the extended filling of certain vacancies and provide for the 
     temporary filling of such vacancies; and
       (C) subvert the constitutional authority and responsibility 
     of the Senate to advise and consent in certain appointments;
       (7) it is necessary to further clarify the intention of 
     Congress to reject the interpretation of the Attorney General 
     by modernizing the intricate language of the long-standing 
     Vacancies Act; and
       (8) to ensure compliance by the executive branch with the 
     Vacancies Act, the Act needs an express enforcement 
     mechanism.

     SEC. 3. FEDERAL VACANCIES.

       (a) In General.--Chapter 33 of title 5, United States Code, 
     is amended by striking sections 3345 through 3349 and 
     inserting the following:

     ``Sec. 3345. Acting officer

       ``(a)(1) If an officer of an Executive agency (other than 
     the General Accounting Office) whose appointment to office is 
     by the President, by and with the advice and consent of the 
     Senate, dies, resigns, or is otherwise unable to perform the 
     functions of the office, the President may direct a person 
     described under paragraph (2) to perform the functions and 
     duties of the office temporarily in an acting capacity, 
     subject to the time limitations of section 3346.
       ``(2) The person referred to under paragraph (1) is any 
     person who on the date of death, resignation, or the 
     beginning of inability to perform serves--
       ``(A) in the position of first assistant to the officer who 
     dies, resigns, or is otherwise unable to perform; or
       ``(B) in an office for which appointment by the President, 
     by and with the advice and consent of the Senate is required.
       ``(b) With respect to the office of the Attorney General of 
     the United States, the provisions of section 508 of title 28 
     shall be applicable.

     ``Sec. 3346. Time limitation

       ``(a) The person serving as an acting officer as described 
     under section 3345 may serve in the office--
       ``(1) for no longer than 120 days; or
       ``(2) if any nomination for the office is submitted to the 
     Senate within the 120-day period beginning on the date the 
     vacancy occurs, for the period that the nomination is pending 
     in the Senate.

[[Page S1994]]

       ``(b)(1) If the nomination for the office is rejected by 
     the Senate or withdrawn, the person may continue to serve as 
     the acting officer for no more than 120 days after the date 
     of such rejection or withdrawal.
       ``(2) Notwithstanding paragraph (1), if a second nomination 
     for the office is submitted to the Senate during the 120-day 
     period after the rejection or withdrawal of the first 
     nomination, the person serving as the acting officer may 
     continue to serve--
       ``(A) until the second nomination is confirmed; or
       ``(B) for no more than 120 days after the second nomination 
     is rejected or withdrawn.
       ``(c) If a person begins serving as an acting officer 
     during an adjournment of the Congress sine die, the 120-day 
     period under subsection (a) shall begin on the date that the 
     Senate first reconvenes.

     ``Sec. 3347. Application

       ``Sections 3345 and 3346 are applicable to any office of an 
     Executive agency (other than the General Accounting Office) 
     for which appointment by the President, by and with the 
     advice and consent of the Senate, is required, unless--
       ``(1) another statutory provision expressly provides that 
     such provision supersedes sections 3345 and 3346; or
       ``(2) the President makes an appointment to fill a vacancy 
     in such office during a recess of the Senate.

     ``Sec. 3348. Vacant office

       ``Subject to section 3347, if an office is not temporarily 
     filled under sections 3345 and 3346 within 120 days after the 
     date on which a vacancy occurs, the office shall remain 
     vacant until a person is appointed by the President, by and 
     with the advice and consent of the Senate.

     ``Sec. 3349. Enforcement

       ``(a)(1) An acting officer who serves in a position in 
     violation of section 3345 or 3346 may not receive pay for any 
     day of service in violation of section 3345 or 3346.
       ``(2) Pay not received under paragraph (1) shall be 
     forfeited and may not be paid as backpay.
       ``(3) Notwithstanding section 1342 of title 31, paragraph 
     (1) shall apply regardless of whether such acting officer is 
     performing the duties of another office or position in 
     addition to performing the duties of the vacant office.
       ``(b) The head of an affected Executive agency (other than 
     the General Accounting Office) shall submit to the 
     Comptroller General of the United States and to each House of 
     Congress--
       ``(1) notification of a vacancy and the date such vacancy 
     occurred immediately upon the occurrence of the vacancy;
       ``(2) the name of any person serving in an acting capacity 
     and the date such service began immediately upon the 
     designation;
       ``(3) the name of any person nominated to the Senate to 
     fill the vacancy and the date such nomination is submitted 
     immediately upon the submission of the nomination; and
       ``(4) the date of a rejection or withdrawal of any 
     nomination immediately upon such rejection or withdrawal.
       ``(c) If the Comptroller General of the United States makes 
     a determination that an officer is serving longer than the 
     120-day period including the applicable exceptions to such 
     period as provided under section 3346, the Comptroller 
     General shall report such determination to each House of 
     Congress, the President, the Secretary of the Treasury, and 
     the Office of Personnel Management.''.
       (b) Technical and Conforming Amendment.--The table of 
     sections for chapter 33 of title 5, United States Code, is 
     amended by striking the items relating to sections 3345 
     through 3349 and inserting the following:

``3345. Acting officer.
``3346. Time limitation.
``3347. Application.
``3348. Vacant office.
``3349. Enforcement.''.

     SEC. 4. EFFECTIVE DATE AND APPLICATION.

       This Act shall take effect on the date of enactment of this 
     Act and shall apply to any office that--
       (1) becomes vacant after such date; and
       (2) is vacant on such date, except sections 3345 through 
     3349 of title 5, United States Code (as amended by this Act), 
     shall apply as though such office first became vacant on such 
     date.
                                 ______