[Congressional Record Volume 152, Number 45 (Monday, April 24, 2006)]
[Senate]
[Pages S3424-S3425]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. CRAIG:
  S. 2634. A bill to amend title 38, United States Code, to strike the 
term of the positions Under Secretary for Health and the Under 
Secretary for Benefits and simplify appointments to such positions; to 
the Committee on Veterans' Affairs.
  Mr. CRAIG. Mr. President, today I wish to introduce a simple, but I 
think an important piece of legislation which, if enacted, will affect 
just two positions at the Department of Veterans Affairs: the Under 
Secretary for Health and the Under Secretary for Benefits. My bill 
would abolish the 4-

[[Page S3425]]

year term limit on service in each position and remove the requirement 
that a search commission be assembled to identify candidates for either 
of the positions if a vacancy in the position occurs.
  As some of my colleagues may know, VA has thirteen positions in its 
central office for which Presidential nomination and Senate 
confirmation are required. There are seven Assistant Secretaries, a 
General Counsel, three Under Secretaries, a Deputy Secretary, and, of 
course, a full Cabinet level Secretary. Only the Under Secretaries for 
Health and Benefits are given statutory terms of office. All of the 
other positions, two of which are superior offices and one of which is 
a fellow Under Secretary, serve at the pleasure of the President.
  In addition, under current law, if a vacancy occurs in either one of 
the two offices I have just mentioned, the Secretary of Veterans 
Affairs must establish a commission made up of various interested 
individuals to recommend not less than three persons to the President 
for the job. If the President does not care for the list of persons 
provided by the commission, the President may request that the 
commission recommend additional individuals from which he can choose a 
nominee.
  I believe the two changes I am proposing are warranted and deserve my 
colleagues' support for a number of reasons. First, and most important 
to me, is that the Constitution gives the President of the United 
States the power to nominate and with advice and consent of the Senate, 
appoint Officers of the United States. There is no requirement that any 
of the candidates be identified, vetted, or recommended by an extra-
constitutional commission. In fact, recommendation and vetting is the 
power granted to the United States Senate through our advice and 
consent role.
  I find it interesting that the President today can choose a nominee 
for Chief Justice of the United States, Attorney General, Secretary of 
State, Ambassador to the Court of St. James and other incredibly 
important high offices of this government without a statutorily 
required search commission. Yet these two Under Secretaries at VA must 
go through this vetting process before even being identified to the 
President for his consideration of a nomination.
  I believe that it is our responsibility as elected representatives of 
the people to determine who is suitable for an appointment to a high 
office of public trust. The people, rightfully, hold us accountable for 
the performance of appointed officials. They do not hold commissions 
accountable. Certainly, the President and Senators are free to seek out 
the views of any number of interested parties before deciding whom to 
nominate or whether to vote to confirm that person. But those outside 
consultations should be encouraged and welcomed, not obliged by law.
  The second reason I believe my colleagues should support this bill is 
that the language of the statute with respect to the commission and the 
term limits is at best unclear and at worst confusing.
  The law requires the Secretary to establish a commission to identify 
potential nominees when ``a vacancy in the position occurs or is 
anticipated''. The law also allows the President to reappoint the 
current office occupant for like periods. This raises the vexing 
question of whether there is an anticipated vacancy, requiring the 
appointment of the search commission to identify potential nominees, 
just because a term is expiring. If the answer is yes, then I ask if 
that answer is different if the President intends to nominate the 
current office occupant for an additional term?
  Clearly, it seems absurd to me to require a search commission to 
identify a suitable candidate for nomination if the President has 
already identified the current office occupant as his chosen nominee. 
Still, more confusing is what occurs if the President nominates the 
current office holder prior to the expiration of his or her term but 
then the term expires before the Senate has had the opportunity to act 
on the nomination. This scenario is actually not an absurd legal ``what 
if'' but an actual current problem.
  Just a few weeks ago, the President nominated Daniel Cooper to serve 
a 4-year term as Under Secretary for Benefits. Mr. Cooper was already 
the Under Secretary at the time of his nomination. Thus, there was no 
vacancy in the office and none was anticipated since he was being 
offered as his own replacement. So, no search commission is required 
under law.
  Yet, now Mr. Cooper's term has expired and the Senate has yet to act 
on his nomination. So, technically, there is now a vacancy requiring a 
search commission to identify a nominee. But, as I have just explained, 
the President has already nominated someone. So, with the concurrence 
of my ranking member, Senator Akaka, I advised the White House that 
there was no need for a search commission. But, the fact that the 
conversation had to occur shows the need for a change in this law. Of 
course, my preferred course would be to just eliminate the law as I am 
now proposing.
  Mr. Cooper's nomination has actually brought to light another reason 
that I believe we should eliminate the term limits on the positions. 
That is that the term adds a huge political element to the process of 
attempting to keep on a successful officeholder as in the case of Mr. 
Cooper. While not revealing any confidences or singling out individual 
Senators, I do not think my colleagues would be surprised to hear that 
since being nominated for an additional term Mr. Cooper has been 
subject to some political bargaining by Senators who seek to have him 
take some actions in his official capacity before they will vote to 
keep him on in his job. I understand that happens often around here. 
And I don't begrudge it in general. But, I think the opportunities for 
such actions should be minimized to the extent possible, especially 
when there is no question as to the nominee's qualifications or 
successful performance in office. If he or she is doing well, then, 
under my bill, the President would presumably retain his or her 
services. If not, then he or she should be removed, immediately. Not at 
the end of a term.
  That brings me to my final reason for this legislation. I simply 
believe that senior governmental officials should serve in those 
positions only so long as they hold the confidence of the President of 
the United States. If the President loses confidence in any of his 
senior leadership, he or she should remove those individuals from those 
posts.
  I understand that there are those who believe that this action would 
make the positions inherently political. I offer two thoughts to those 
who hold this belief. First, in 1988, when VA was elevated to cabinet 
level status through Public Law 100-527, the law required that the 
President appoint individuals to these two offices ``without regard to 
political affiliation or activity and solely on the basis of integrity 
and demonstrated ability.'' I am not proposing to change any of those 
requirements. Even if I was proposing such a change, certainly the 
Senate could impose such a condition prior to any confirmation.
  Second, I firmly believe that some political responsibility also 
leads to greater performance by officeholders and accountability to 
Congressional oversight. I think you all know that improved performance 
and bureaucratic accountability at VA are annual demands of our 
Veterans service organizations. I believe this change will move us one 
step closer to addressing their concerns.
  Mr. President, as I said at the outset of my statement, this is a 
simple bill. But, just like the old saying that if you watch the 
pennies the dollars will take care of themselves, I believe that if we 
make the simple, but necessary improvements to VA's operations and 
management structure, the entire system will improve on its own. I urge 
my colleagues to support this bill as one step towards overall 
improvement.
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