[Congressional Record Volume 144, Number 78 (Tuesday, June 16, 1998)]
[Senate]
[Pages S6413-S6416]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. THOMPSON (for himself, Mr. Byrd, Mr. Thurmond, Mr. Lott, 
        and Mr. Roth):
  S. 2176. 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 and 
appointments to certain Federal offices, and for other purposes; to the 
Committee on Governmental Affairs.


                  federal vacancies reform act of 1998

  Mr. THOMPSON. Mr. President, on behalf of myself and a bipartisan 
group of senators, I introduce today the Federal Vacancies Reform Act 
of 1998. This legislation is needed to preserve one of the Senate's 
most important powers: the duty to advise and consent on presidential 
nominees.

  The Framers of the Constitution established a procedure for the 
appointment of all government officers: they were to be nominated by 
the President and confirmed by the Senate, unless Congress decided that 
the appointment of specified inferior officers was to be made by the 
President alone, the courts, or by department heads. The First 
Congress, however, recognized that vacancies would arise in executive 
positions, and enacted legislation providing for officials to 
temporarily exercise the powers of an office even without Senate 
confirmation. The law was adopted essentially in its current form in 
1868, and was last amended in 1988. As amended, the first assistant or 
another Senate-confirmed individual can serve for 120 days after the 
vacancy, and, in addition, may serve beyond those 120 days if the 
President submits a nomination for that office to the Senate within 
those 120 days.
  Unfortunately, the Vacancies Act is honored more in the breach than 
in the observance. For the past 25 years, administrations of both 
parties have claimed that the Justice Department is exempt from the 
Vacancies Act. And since the Reagan Administration, other departments, 
at the behest of the Justice Department, make the same argument, 
purportedly based on the authority of the heads of each of the 
executive departments to delegate their authority to other department 
personnel. Following this argument to its logical end, none of the 
departments is bound by the Vacancies Act, so that the act is a dead 
letter.
  Certainly, this Administration has conducted itself as if the 
Vacancies Act applies to none of the departments. Each department has 
at least one temporary officer who has served more

[[Page S6414]]

than 120 days before any nomination was sent to the Senate. Of the 320 
executive department advise and consent positions, 64 are held by 
temporary officials. Of the 64, 43 have served longer than 120 days 
before any nomination was submitted to the Congress. The Commerce 
Department is the worst offender in number and in degree. For instance, 
the acting head of the Census Bureau is neither the first assistant nor 
a person who has been confirmed by the Senate, a mind-boggling 
violation of the law. Nor has a nomination been made, although the 
prior Census chief announced her departure more than five months ago.
  The government's important functions should be carried out by 
permanent officials. That means that the President must submit 
nominations and the Senate needs to provide its advice and consent. 
This administration seems not to want to subject its appointees to such 
scrutiny. Acting on that desire is unconstitutional and a violation of 
the Vacancies Act as well. The Appointments Clause is not a technical 
nicety. As the Supreme Court has stated, the Appointments Clause is 
designed to keep the Executive and Legislative Branches within their 
appropriate spheres, so as to better preserve individual liberty.
  The Governmental Affairs Committee recently held an oversight hearing 
on the Vacancies Act. In that hearing, it became apparent that the 
Administration was regularly acting in violation of the law, but faced 
no consequence for its actions. The Committee also heard testimony from 
Senators Byrd and Thurmond, who had each introduced bills designed to 
ensure compliance with the Vacancies Act through clarifying the scope 
of agencies covered and providing an enforcement mechanism. Our 
colleagues owe a debt of gratitude to Senators Byrd and Thurmond for 
raising these important issues and offering solutions to address them.
  I have found the approaches in the Byrd and Thurmond bills to have 
contributed importantly to the drafting of the legislation I introduce 
today. It is extremely important to ensure that the Vacancy Act period 
run from the date of the vacancy, to clarify that it covers all 
departments, and to impose a sanction for noncompliance. Subsequent to 
the introduction of the Byrd and Thurmond bills, the United States 
Court of Appeals for the District of Columbia Circuit issued a decision 
on the meaning of the Vacancies Act, approving the four year service of 
an acting head of the Office of Thrift Supervision as appointed by the 
departing head of the agency. Overruling several portions of that 
decision have become a priority.
  The legislation I introduce today provides that in the event of a 
vacancy in a position in an executive agency requiring the advice and 
consent of the Senate, the officer's first assistant is allowed to 
perform the functions and duties of the office on an acting basis, for 
up to 150 days. Under current law, the period is 120 days, but the 
vicissitudes of the modern vetting process appear to require that the 
time be lengthened, to my regret. Alternatively, the President may 
direct another person who has already received Senate confirmation to 
serve as the acting official for 150 days. To prevent these 
restrictions from being gamed, the bill provides that the acting 
officer must have been the first assistant for 180 of the 365 days 
preceding the vacancy.
  The length of temporary service can be extended beyond the 150 days 
if the President submits a nomination to the Senate for the vacant 
position. If the nomination is withdrawn, or if the Senate rejects or 
returns it, the acting official can serve only for 150 days after that 
event.
  The bill makes clear that the Vacancies Act applies to all offices in 
executive agencies for which appointment is required to be made by the 
President by and with the advice and consent of the President. 
Nonetheless, we do not write on a clean slate. There are a number of 
laws already on the books that provide a process by which persons can 
serve as acting officers when particular offices are vacant. In most 
instances, these officials can serve until a successor is confirmed, 
without regard to the Vacancies Act. The bill preserves those specific 
statutes, but, to clearly reject the position of the Justice 
Department, it expressly repudiates the contention that a law 
authorizing the head of a department to delegate or reassign duties 
among other officers is a statute that provides for the temporary 
filling of a specific office. For the future, Congress will have to 
expressly provide that it is superseding the Vacancies Act if it wishes 
to override the Vacancies Act as to the temporary filling of advise and 
consent provisions.

  The bill also establishes a second enforcement mechanism. If a 
nominee is not submitted to the Senate within 150 days of the vacancy, 
then the office is vacant until a nominee is submitted. While the 
routine functions of the office would be allowed to continue, those 
functions and duties that are specified to be performed by that 
official could only be performed by the head of the department. In 
fact, no specified duty of the officeholder that existed by regulation 
for the 180 days preceding the vacancy could be diminished in an effort 
to avoid the bill's vacant office provisions. However, if the President 
submits a nomination at any point after the 150 days, the acting 
officer would again be allowed to serve while the nomination was 
pending in the Senate, until confirmation, or until 150 days after the 
rejection, withdrawal, or return of the nomination. Actions taken by 
any acting official in violation of these provisions would be of no 
effect, and no one would be permitted to ratify the actions of the 
acting official that were taken in violation of the vacant office 
provisions.
  Enforcement is further enhanced by requiring each executive agency to 
report to the Comptroller General the existence of vacancies, the names 
of persons serving as acting officers and when such service began, the 
name of any nominee and when such nomination was submitted to the 
Senate, and the final disposition of the nomination. The Comptroller 
General will then notify the Congress, the President, and the Office of 
Personnel Management when the 150 day limitations have been reached.
  Mr. President, the Framers established a system for appointing 
important officials in which the President and the Senate would each 
play a role. Not only did the Framers wish to ensure that more than one 
person's wisdom was brought to the appointment process, but that the 
President, in selecting nominees, would be aware that they would face 
scrutiny. When a vacancy occurs in such an office, it is important to 
establish a process that permits the routine operation of the 
government to continue, but that will not allow the evasion of the 
Senate's constitutional authority to advise and consent to nominations. 
I am pleased that a number of my colleagues are joining with me to 
formulate a structure that will achieve these ends. I look forward to 
the Senate's passage of this legislation in the near future.
  I ask unanimous consent that the bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2176

       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 ``Federal Vacancies Reform Act 
     of 1998''.

     SEC. 2. FEDERAL VACANCIES AND APPOINTMENTS.

       (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) If an officer of an Executive agency (including the 
     Executive Office of the President, and other than the General 
     Accounting Office) whose appointment to office is required to 
     be made by the President, by and with the advice and consent 
     of the Senate, dies, resigns, or is otherwise unable to 
     perform the functions and duties of the office--
       ``(1) the first assistant of such officer shall perform the 
     functions and duties of the office temporarily in an acting 
     capacity, subject to the time limitations of section 3346; or
       ``(2) notwithstanding paragraph (1), the President (and 
     only the President) may direct a person who serves in an 
     office for which appointment is required to be made by the 
     President, by and with the advice and consent of the Senate, 
     to perform the functions and duties of the office temporarily 
     in an acting capacity, subject to the time limitations of 
     section 3346.
       ``(b) Notwithstanding section 3346(a)(2), a person may not 
     serve as an acting officer for an office under this section, 
     if--
       ``(1) on the date of the death, resignation, or beginning 
     of inability to serve of the applicable officer, such person 
     serves in the position of first assistant to such officer;

[[Page S6415]]

       ``(2) during the 365-day period preceding such date, such 
     person served in the position of first assistant to such 
     officer for less than 180 days; and
       ``(3) the President submits a nomination of such person to 
     the Senate for appointment to such office.
       ``(c) 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 150 days beginning on the date the 
     vacancy occurs; or
       ``(2) subject to subsection (b), once a first or second 
     nomination for the office is submitted to the Senate, for the 
     period that the nomination is pending in the Senate.
       ``(b)(1) If the first nomination for the office is rejected 
     by the Senate, withdrawn, or returned to the President by the 
     Senate, the person may continue to serve as the acting 
     officer for no more than 150 days after the date of such 
     rejection, withdrawal, or return.
       ``(2) If a second nomination for the office (of a different 
     person than first nominated in the case of a rejection or 
     withdrawal) is submitted to the Senate during the 150-day 
     period after the rejection, withdrawal, or return 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 150 days after the second nomination 
     is rejected, withdrawn, or returned.
       ``(c) If a person begins serving as an acting officer 
     during an adjournment of the Congress sine die, the 150-day 
     period under subsection (a) shall begin on the date that the 
     Senate first reconvenes.

     ``Sec. 3347. Application

       ``(a) Sections 3345 and 3346 are applicable to any office 
     of an Executive agency (including the Executive Office of the 
     President, and other than the General Accounting Office) for 
     which appointment is required to be made by the President, by 
     and with the advice and consent of the Senate, unless--
       ``(1) another statutory provision expressly provides that 
     such provision supersedes sections 3345 and 3346;
       ``(2) a statutory provision in effect on the date of 
     enactment of the Federal Vacancies Reform Act of 1998 
     expressly authorizes the President, or the head of an 
     Executive department, to designate an officer to perform the 
     functions and duties of a specified office temporarily in an 
     acting capacity; or
       ``(3) the President makes an appointment to fill a vacancy 
     in such office during the recess of the Senate pursuant to 
     clause 3 of section 2 of article II of the United States 
     Constitution.
       ``(b) Any statutory provision providing general authority 
     to the head of an Executive agency (including the Executive 
     Office of the President, and other than the General 
     Accounting Office) to delegate duties to, or to reassign 
     duties among, officers or employees of such Executive agency, 
     is not a statutory provision to which subsection (a)(2) 
     applies.

     ``Sec. 3348. Vacant office

       ``(a) In this section--
       ``(1) the term `action' includes any agency action as 
     defined under section 551(13); and
       ``(2) the term `function or duty' means any function or 
     duty of the applicable office that--
       ``(A)(i) is established by statute; and
       ``(ii) is required by statute to be performed by the 
     applicable officer (and only that officer); or
       ``(B)(i)(I) is established by regulation; and
       ``(II) is required by such regulation to be performed by 
     the applicable officer (and only that officer); and
       ``(ii) includes a function or duty to which clause (i) (I) 
     and (II) applies, and the applicable regulation is in effect 
     at any time during the 180-day period preceding the date on 
     which the vacancy occurs, notwithstanding any regulation 
     that--
       ``(I) is issued on or after the date occurring 180 days 
     before the date on which the vacancy occurs; and
       ``(II) limits any function or duty required to be performed 
     by the applicable officer (and only that officer).
       ``(b) Subject to section 3347 and subsection (c)--
       ``(1) if the President does not submit a first nomination 
     to the Senate to fill a vacant office within 150 days after 
     the date on which a vacancy occurs--
       ``(A) the office shall remain vacant until the President 
     submits a first nomination to the Senate; and
       ``(B) in the case of an office other than the office of the 
     head of an Executive agency (including the Executive Office 
     of the President, and other than the General Accounting 
     Office), only the head of such Executive agency may perform 
     any function or duty of such office, until a nomination is 
     made in accordance with subparagraph (A);
       ``(2) if the President does not submit a second nomination 
     to the Senate within 150 days after the date of the 
     rejection, withdrawal, or return of the first nomination--
       ``(A) the office shall remain vacant until the President 
     submits a second nomination to the Senate; and
       ``(B) in the case of an office other than the office of the 
     head of an Executive agency (including the Executive Office 
     of the President, and other than the General Accounting 
     Office), only the head of such Executive agency may perform 
     any function or duty of such office, until a nomination is 
     made in accordance with subparagraph (A); and
       ``(3) if an office is vacant after 150 days after the 
     rejection, withdrawal, or return of the second nomination--
       ``(A) the office shall remain vacant until a person is 
     appointed by the President, by and with the advice and 
     consent of the Senate; and
       ``(B) in the case of an office other than the office of the 
     head of an Executive agency (including the Executive Office 
     of the President, and other than the General Accounting 
     Office), only the head of such Executive agency may perform 
     any function or duty of such office, until an appointment is 
     made in accordance with subparagraph (A).
       ``(c) If the last day of any 150-day period under 
     subsection (b) is a day on which the Senate is not in 
     session, the first day the Senate is next in session and 
     receiving nominations shall be deemed to be the last day of 
     such period.
       ``(d)(1) Except as provided under paragraphs (1)(B), 
     (2)(B), and (3)(B) of subsection (b), an action shall have no 
     force or effect if such action--
       ``(A)(i) is taken by any person who fills a vacancy in 
     violation of subsection (b); and
       ``(ii) is the performance of a function or duty of such 
     vacant office; or
       ``(B)(i) is taken by a person who is not filling a vacant 
     office; and
       ``(ii) is the performance of a function or duty of such 
     vacant office.
       ``(2) An action that has no force or effect under paragraph 
     (1) may not be ratified.
       ``(d) This section shall not apply to--
       ``(1) the General Counsel of the National Labor Relations 
     Board;
       ``(2) the General Counsel of the Federal Labor Relations 
     Authority; or
       ``(3) any Inspector General appointed by the President, by 
     and with the advice and consent of the Senate.

     ``Sec. 3349. Reporting of vacancies

       ``(a) The head of each Executive agency (including the 
     Executive Office of the President, and 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, withdrawal, or return of any 
     nomination immediately upon such rejection, withdrawal, or 
     return.
       ``(b) If the Comptroller General of the United States makes 
     a determination that an officer is serving longer than the 
     150-day period including the applicable exceptions to such 
     period under section 3346, the Comptroller General shall 
     report such determination to--
       ``(1) the Committee on Governmental Affairs of the Senate;
       ``(2) the Committee on Government Reform and Oversight of 
     the House of Representatives;
       ``(3) the Committees on Appropriations of the Senate and 
     House of Representatives;
       ``(4) the appropriate committees of jurisdiction of the 
     Senate and House of Representatives;
       ``(5) the President; and
       ``(6) the Office of Personnel Management.

     ``Sec. 3349a. Presidential inaugural transitions

       ``(a) In this section, the term `transitional inauguration 
     day' means the date on which any person swears or affirms the 
     oath of office as President, if such person is not the 
     President on the date preceding the date of swearing or 
     affirming such oath of office.
       ``(b) With respect to any vacancy that exists during the 
     60-day period beginning on a transitional inauguration day, 
     the 150-day period under section 3346 or 3348 shall be deemed 
     to--
       ``(1) begin on the later of--
       ``(A) the date following such transitional inauguration 
     day; or
       ``(B) the date the vacancy occurs; and
       ``(2) be a period of 180 days.

     ``Sec. 3349b. Holdover provisions relating to certain 
       independent establishments

       ``With respect to any independent establishment for which a 
     single officer is the head of the establishment, sections 
     3345 through 3349a shall not be construed to affect any 
     statute that authorizes a person to continue to serve in any 
     office--
       ``(1) after the expiration of the term for which such 
     person is appointed; and
       ``(2) until a successor is appointed or a specified period 
     of time has expired.

     ``Sec. 3349c. Exclusion of certain officers

       ``Sections 3345 through 3349b shall not apply to--
       ``(1) any member who is appointed by the President, by and 
     with the advice and consent of the Senate to any board, 
     commission, or similar entity that--
       ``(A) is composed of multiple members; and
       ``(B) governs an independent establishment or Government 
     corporation; or
       ``(2) any commissioner of the Federal Energy Regulatory 
     Commission.''.
       (b) Technical and Conforming Amendment.--
       (1) Table of sections.--The table of sections for chapter 
     33 of title 5, United States

[[Page S6416]]

     Code, is amended by striking the matter relating to 
     subchapter III and inserting the following:

         ``SUBCHAPTER III--DETAILS, VACANCIES, AND APPOINTMENTS

``3341. Details; within Executive or military departments.
``[3342. Repealed.]
``3343. Details; to international organizations.
``3344. Details; administrative law judges.
``3345. Acting officer.
``3346. Time limitation.
``3347. Application.
``3348. Vacant office.
``3349. Reporting of vacancies.
``3349a. Presidential inaugural transitions.
``3349b. Holdover provisions relating to certain independent 
              establishments.
``3349c. Exclusion of certain officers.''.
       (2) Subchapter heading.--The subchapter heading for 
     subchapter III of chapter 33 of title 5, United States Code, 
     is amended to read as follows:

       ``SUBCHAPTER III--DETAILS, VACANCIES, AND APPOINTMENTS''.

     SEC. 3. EFFECTIVE DATE AND APPLICATION.

       (a) Effective Date.--This Act and the amendments made by 
     this Act shall take effect on the date of enactment of this 
     Act.
       (b) Application.--This Act shall apply to any office that--
       (1) becomes vacant after the date of enactment of this Act; 
     or
       (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.
                                  ____

  Mr. THURMOND. Mr. President, I rise today as an original cosponsor of 
the Federal Vacancies Reform Act. This legislation is essential to help 
preserve and strengthen the advice and consent role of the Senate as 
mandated in the Constitution.
  One of the greatest fears of the Founders was the accumulation of too 
much power in one source, and the separation of powers among the three 
branches of Government is one of the keys to the success of our great 
democratic government. An excellent example of the separation of powers 
is the requirement in Article II, Section 2 of the Constitution that 
the President receive the advice and consent of the Senate for the 
appointment of officers of the United States. As Chief Justice 
Rehnquist wrote for the Supreme Court a few years ago, ``The Clause is 
a bulwark against one branch aggrandizing its power at the expense of 
another branch.''
  The Vacancies Act is central to the Appointments Clause because it 
places limits on the amount of time that the President can appoint 
someone to an advice and consent position in an acting capacity without 
sending a nomination to the Senate. However, for many years, the 
executive branch has failed to comply with the letter of the law. The 
Vacancies Act has no method of enforcement, so the executive branch 
just ignores it. When confronted with the act, the Attorney General 
makes very weak legal arrangements about its inapplicability. This is 
what the Attorney General did over one year ago when I raised the 
Vacancies Act at an oversight hearing. At the time, almost all of the 
top positions at the Justice Department were being filled in an acting 
capacity. I exchanged letters with her about the Vacancies Act, and 
detailed the fallacy in her argument. It was to no avail.
  I became convinced that legislation to rewrite the vacancies law and 
provide some remedy for violating it was the only way to get the 
executive branch to properly respect the advice and consent role of the 
Senate. Senator Lott and I introduced legislation earlier this year, 
and I testified about it before the Governmental Affairs Committee.
  I detailed for the Committee some prominent examples of how the Act 
was being ignored. President Clinton allowed the Criminal Division of 
the Justice Department to languish for over two and one half years 
before making an appointment. The Government had an Acting Solicitor 
General for an entire term of the Supreme Court. Most recently, the 
President installed an Acting Chief of the Civil Rights Division in 
blatant disregard of the Judiciary Committee's decision not to support 
his controversial choice.
  However, let me be clear. This bill is not about any one President or 
any one nominee. It is about preserving the institutional role of the 
Senate. A Republican President has no more right to ignore the 
appointments process than a Democrat President.
  Today, Senator Thompson, Senator Byrd, Senator Lot, and I are 
introducing a bipartisan bill to address the problem. It gives the 
President 150 days to send a nomination rather than the current 120 
days. If he does not comply, the office must remain vacant and the 
actions of any person acting in that office after that time are null 
and void, until a nominee is forwarded to the Senate. The bill also 
clarifies the application of the Vacancies Act to reject the Attorney 
General's flawed interpretation.
  Mr. President, we must act to preserve the advice and consent role of 
the Senate. As the Supreme Court has stated, ``The structural interests 
protected by the Appointments Clause are not those of any one branch of 
Government but of the entire Republic.'' Reforming the vacancies law is 
essential in this regard. Let us reaffirm the separation of powers for 
the sake of the Senate and the entire Republic.
                                 ______