Presidential Transitions - Backgrounds and Issues [1 ed.] 9781614706120, 9781607411246

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Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved. Presidential Transitions - Backgrounds and Issues, Nova Science Publishers, Incorporated, 2009. ProQuest Ebook Central,

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved. Presidential Transitions - Backgrounds and Issues, Nova Science Publishers, Incorporated, 2009. ProQuest Ebook Central,

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

PRESIDENTIAL TRANSITIONS: BACKGROUNDS AND ISSUES

No part of this digital document may be reproduced, stored in a retrieval system or transmitted in any form or by any means. The publisher has taken reasonable care in the preparation of this digital document, but makes no expressed or implied warranty of any kind and assumes no responsibility for any errors or omissions. No liability is assumed for incidental or consequential damages in connection with or arising out of information contained herein. This digital document is sold with the clear understanding that the publisher is not engaged in rendering legal, medical or any other professional services.

Presidential Transitions - Backgrounds and Issues, Nova Science Publishers, Incorporated, 2009. ProQuest Ebook Central,

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved. Presidential Transitions - Backgrounds and Issues, Nova Science Publishers, Incorporated, 2009. ProQuest Ebook Central,

PRESIDENTIAL TRANSITIONS: BACKGROUNDS AND ISSUES

IDA E. BURKHALTER Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

EDITOR

Nova Science Publishers, Inc. New York

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Copyright © 2009 by Nova Science Publishers, Inc. All rights reserved. No part of this book may be reproduced, stored in a retrieval system or transmitted in any form or by any means: electronic, electrostatic, magnetic, tape, mechanical photocopying, recording or otherwise without the written permission of the Publisher. For permission to use material from this book please contact us: Telephone 631-231-7269; Fax 631-231-8175 Web Site: http://www.novapublishers.com

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NOTICE TO THE READER The Publisher has taken reasonable care in the preparation of this book, but makes no expressed or implied warranty of any kind and assumes no responsibility for any errors or omissions. No liability is assumed for incidental or consequential damages in connection with or arising out of information contained in this book. The Publisher shall not be liable for any special, consequential, or exemplary damages resulting, in whole or in part, from the readers’ use of, or reliance upon, this material. Independent verification should be sought for any data, advice or recommendations contained in this book. In addition, no responsibility is assumed by the publisher for any injury and/or damage to persons or property arising from any methods, products, instructions, ideas or otherwise contained in this publication. This publication is designed to provide accurate and authoritative information with regard to the subject matter covered herein. It is sold with the clear understanding that the Publisher is not engaged in rendering legal or any other professional services. If legal or any other expert assistance is required, the services of a competent person should be sought. FROM A DECLARATION OF PARTICIPANTS JOINTLY ADOPTED BY A COMMITTEE OF THE AMERICAN BAR ASSOCIATION AND A COMMITTEE OF PUBLISHERS. LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA Available upon request ISBN: 978-1-61470-612-0 (eBook)

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CONTENTS

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Preface

vii

Chapter 1

Presidential Transitions Stephanie Smith

Chapter 2

Presidential Transitions: Issues Involving Outgoing and Incoming Administrations L. Elaine Halchin

49

Midnight Rulemaking: Considerations for Congress and a New Administration Curtis W. Copeland

91

Chapter 3

1

Chapter 4

Presidential Transition Act: Provisions and Funding Henry B. Hogue

Chapter 5

Presidential Transitions: Background and Federal Support Stephanie Smith

125

Submission of the President’s Budget in Transition Year Robert Keith

133

Issuance of Agency Regtilations at the End of the Administration Joshua B. Boltei

141

Chapter 6

Chapter 7

Index

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115

143

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PREFACE The constitutional transfer of power and authority from an incumbent American President to a successor is a momentous occasion in American government. In the present day, this transfer of authority is a complex and multifaceted undertaking, as the outgoing Administration concludes its affairs and the incoming Administration gets organized.In recent decades, presidential transition activities have begun months before the general election; the major candidates usually have asked individuals or small groups to begin to formulate plans in the event of an electoral victory. Preparations have accelerated after the election, as the attention of the President-elect and his supporters has turned from campaigning to governing. The President-elect and his team have approximately 11 weeks.This book presents important issues dealing with major aspects of these critical transitions. Chapter 1 - Since President George Washington first relinquished his office to incoming President John Adams in 1797, this peaceful transition, symbolizing both continuity and change, has demonstrated the stability of our system of government. Aside from the symbolic transfer of power, an orderly transition from the outgoing Administration to the incoming Administration is essential to ensure continuity in the working affairs of government. Necessary funding for both the incoming and outgoing Administrations is authorized by the Presidential Transition Act (PTA), as amended. The General Services Administration (GSA) is authorized to provide suitable office space, staff compensation, communications services, and printing and postage costs associated with the transition. For the last presidential transition, GSA was authorized a total of $7.1 million in FY2001: $1.83 million for the outgoing William Clinton Administration; $4.27 million for the incoming Administration of George W. Bush; and $1 million for GSA to provide additional assistance as required by law.

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Preface

In order to provide federal funding in the event of a 2004-2005 presidential transition, the President's FY2005 budget proposal requested a total of $7.7 million. It also proposed to amend the PTA to permit the expenditure of not more than $1 million for training and briefings for incoming appointees associated with the second term of an incumbent President. The House passed H.R. 5025, the FY2005 Transportation, Treasury, and Independent Agencies appropriations bill, on September 22, 2004. The legislation recommended for GSA a total of $7.7 million for transition expenses, and recommended that, if no transition occurred, $1 million be used by the incumbent President for briefings of incoming personnel associated with a second term. In the Senate, S. 2806 also recommended a total of $7.7 million to implement a possible transition. However, the Senate Committee on Appropriations denied the request to allow $1 million for training for incoming appointees associated with the second term of an incumbent President, stating that "it should be properly budgeted for and requested by the appropriate agencies." P.L. 108-309 was enacted on September 30, 2004, to provide continuing non-defense appropriations through November 20, 2004. A total of $2.5 million was authorized in the event of a presidential transition, until enactment of the FY2005 omnibus appropriations bill. Due to the outcome of the 2004 presidential election, no funds were provided in P.L. 108447, the FY2005 Consolidated Appropriations Act. The 108th Congress amended the PTA to require that outgoing executive branch officials prepare a classified summary of specific national security threats to be presented to the President-elect as soon as possible after the general election (118 Stat. 3856). P.L. 108-458 also provided for expedited security clearance determinations for members of a President-elect's transition team, and recommended that the Senate give expedited consideration to national security officials nominated by the incoming President. The President's FY2009 budget requests $8,520,000 in funding for the upcoming presidential transition. Chapter 2 - Since President George Washington first relinquished his office to incoming President John Adams in 1797, this peaceful transition, symbolizing both continuity and change, has demonstrated the stability of our system of government. Aside from the symbolic transfer of power, an orderly transition from the outgoing Administration to the incoming Administration is essential to ensure continuity in the working affairs of government. Necessary funding for both the incoming and outgoing Administrations is authorized by the Presidential Transition Act (PTA), as amended. The General Services Administration (GSA) is authorized to provide suitable office space, staff compensation, communications services, and printing and postage costs associated with the transition. For the last

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Preface

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presidential transition, GSA was authorized a total of $7.1 million in FY2001: $1.83 million for the outgoing William Clinton Administration; $4.27 million for the incoming Administration of George W. Bush; and $1 million for GSA to provide additional assistance as required by law. In order to provide federal funding in the event of a 2004-2005 presidential transition, the President's FY2005 budget proposal requested a total of $7.7 million. It also proposed to amend the PTA to permit the expenditure of not more than $1 million for training and briefings for incoming appointees associated with the second term of an incumbent President. The House passed H.R. 5025, the FY2005 Transportation, Treasury, and Independent Agencies appropriations bill, on September 22, 2004. The legislation recommended for GSA a total of $7.7 million for transition expenses, and recommended that, if no transition occurred, $1 million be used by the incumbent President for briefings of incoming personnel associated with a second term. In the Senate, S. 2806 also recommended a total of $7.7 million to implement a possible transition. However, the Senate Committee on Appropriations denied the request to allow $1 million for training for incoming appointees associated with the second term of an incumbent President, stating that "it should be properly budgeted for and requested by the appropriate agencies." P.L. 108-309 was enacted on September 30, 2004, to provide continuing non-defense appropriations through November 20, 2004. A total of $2.5 million was authorized in the event of a presidential transition, until enactment of the FY2005 omnibus appropriations bill. Due to the outcome of the 2004 presidential election, no funds were provided in P.L. 108447, the FY2005 Consolidated Appropriations Act. The 108th Congress amended the PTA to require that outgoing executive branch officials prepare a classified summary of specific national security threats to be presented to the President-elect as soon as possible after the general election (118 Stat. 3856). P.L. 108-458 also provided for expedited security clearance determinations for members of a President-elect's transition team, and recommended that the Senate give expedited consideration to national security officials nominated by the incoming President. The President's FY2009 budget requests $8,520,000 in funding for the upcoming presidential transition. Chapter 3 - At the end of every recent presidential administration involving a change in the party controlling the White House, the level of rulemaking activity by federal agencies tends to increase. On May 9, 2008, White House Chief of Staff Joshua B. Bolten issued a memorandum to the heads of executive departments and agencies stating that “regulations to be finalized in this Administration should be proposed no later than June 1, 2008, and final

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regulations should be issued no later than November 1, 2008.” Despite this directive, federal agencies appear to be issuing an increasing number of “midnight rules” at the end of the Bush Administration, including a number of rules attracting controversy. One approach that previous Presidents have used to control rulemaking at the start of their administrations has been the imposition of a moratorium on new regulations by executive departments and independent agencies, accompanied by a requirement that the departments and agencies postpone the effective dates of certain rules. However, for rules that have already been published in the Federal Register, the only way for the departments or agencies to eliminate or change the rules is by going back through the rulemaking process. Although the Administrative Procedure Act (5 U.S.C. § 551 et seq.) permits agencies to shorten the rulemaking process for “good cause,” an agency’s use of this exception is subject to judicial review. The Congressional Review Act (CRA, 5 U.S.C. §§ 801-808) permits the use of expedited procedures, primarily in the Senate, to disapprove agencies’ final rules. The CRA requires that agencies submit all final rules to Congress before they take effect. If Congress adjourns its annual session sine die less than 60 “legislative days” in the House of Representatives or 60 “session days” in the Senate after a rule is submitted to it, then the rule is carried over to the next session of Congress and subject to possible disapproval during that session. Although only one rule has been disapproved using CRA procedures since the legislation was enacted in 1996, Congress has frequently added provisions to agency appropriations bills to prohibit the finalization of particular proposed rules, prohibit the development of particular regulations, restrict the implementation or enforcement of certain rules, and put conditions on the development or implementation of particular rules. Unlike CRA disapprovals, however, these provisions do not eliminate the regulations from the Code of Federal Regulations, and do not prevent the agency from issuing the same or similar regulation. Chapter 4 - The Presidential Transition Act of 1963 (PTA), as amended, authorizes funding for the General Services Administration (GSA) to provide suitable office space, staff compensation, and other services associated with the presidential transition process. Section 6 of the PTA directs the President to include in his budget request, for each fiscal year in which his regular term of office will expire, “a proposed appropriation for carrying out the purposes of this Act.” The President’s FY2009 budget proposal included $8.52 million in funding for the 2008-2009 presidential transition. Of this sum, not more than $1 million was to be used for training and orientation activities under specified provisions of

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the PTA. These recommendations were endorsed by Congress and included in the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act. Chapter 5 - The Presidential Transition Act (PTA), as amended, authorizes funding for the General Services Administration (GSA) to provide suitable office space, staff compensation, and other services associated with the transition process. Section 5 of the PTA authorizes the President to include in his budget request for each fiscal year in which his regular term of office will expire, a proposed appropriation for carrying out the purposes of the act. The President's FY2009 budget requests $8,520,000 in funding for the upcoming presidential transition. Of this total, $1 million is provided for briefings and related transition services for incoming personnel associated with the new administration. Chapter 6 - At the time of a presidential transition, one question commonly asked is whether the outgoing or incoming President submits the budget for the upcoming fiscal year. Under past practices, outgoing Presidents in transition years submitted a budget to Congress just prior to leaving office and incoming Presidents usually revised them. Six incoming presidents — Eisenhower, Kennedy, Nixon, Ford, Carter, and Reagan — revised their predecessor’s budget shortly after taking office, while only two Presidents during this period, Johnson and George H. W. Bush, chose not to do so. The deadline for submission of the President’s budget, which has been changed several times over the years, was set in 1990 as the first Monday in February. The change made it possible for an outgoing President to leave the annual budget submission to his successor. The two outgoing Presidents since the 1990 change — George H. W. Bush and Clinton — exercised this option. Accordingly, the budget was submitted by the two incoming Presidents (Clinton for FY1994 and George W. Bush for FY2002). The last three incoming Presidents that submitted a budget or revised their predecessor’s budget (Reagan, Clinton, and George W. Bush) did not submit detailed budget proposals during their transitions until early April; however, each of them advised Congress regarding the general contours of their economic and budgetary policies in a special message submitted to Congress in February concurrently with a presentation made to a joint session of Congress. President George W. Bush has indicated that he will not submit a budget for FY2010, which is subject to a deadline of Monday, February 2, 2009. The Office of Management and Budget will prepare a current services baseline from which the incoming Administration can develop its budget proposals.

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In: Presidential Transitions: Backgrounds and Issues ISBN 978-1-60741-124-6 Editor: Ida E. Burkhalter, p. 1-48 © 2009 Nova Science Publishers, Inc.

Chapter 1

PRESIDENTIAL TRANSITIONS* Stephanie Smith

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ABSTRACT Since President George Washington first relinquished his office to incoming President John Adams in 1797, this peaceful transition, symbolizing both continuity and change, has demonstrated the stability of our system of government. Aside from the symbolic transfer of power, an orderly transition from the outgoing Administration to the incoming Administration is essential to ensure continuity in the working affairs of government. Necessary funding for both the incoming and outgoing Administrations is authorized by the Presidential Transition Act (PTA), as amended. The General Services Administration (GSA) is authorized to provide suitable office space, staff compensation, communications services, and printing and postage costs associated with the transition. For the last presidential transition, GSA was authorized a total of $7.1 million in FY2001: $1.83 million for the outgoing William Clinton Administration; $4.27 million for the incoming Administration of George W. Bush; and $1 million for GSA to provide additional assistance as required by law. In order to provide federal funding in the event of a 2004-2005 presidential transition, the President's FY2005 budget proposal requested a total of $7.7 million. It also proposed to amend the PTA to permit the expenditure of not more than $1 million for training and briefings for

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Stephanie Smith incoming appointees associated with the second term of an incumbent President. The House passed H.R. 5025, the FY2005 Transportation, Treasury, and Independent Agencies appropriations bill, on September 22, 2004. The legislation recommended for GSA a total of $7.7 million for transition expenses, and recommended that, if no transition occurred, $1 million be used by the incumbent President for briefings of incoming personnel associated with a second term. In the Senate, S. 2806 also recommended a total of $7.7 million to implement a possible transition. However, the Senate Committee on Appropriations denied the request to allow $1 million for training for incoming appointees associated with the second term of an incumbent President, stating that "it should be properly budgeted for and requested by the appropriate agencies." P.L. 108-309 was enacted on September 30, 2004, to provide continuing non-defense appropriations through November 20, 2004. A total of $2.5 million was authorized in the event of a presidential transition, until enactment of the FY2005 omnibus appropriations bill. Due to the outcome of the 2004 presidential election, no funds were provided in P.L. 108-447, the FY2005 Consolidated Appropriations Act. The 108th Congress amended the PTA to require that outgoing executive branch officials prepare a classified summary of specific national security threats to be presented to the President-elect as soon as possible after the general election (118 Stat. 3856). P.L. 108-458 also provided for expedited security clearance determinations for members of a President-elect's transition team, and recommended that the Senate give expedited consideration to national security officials nominated by the incoming President. The President's FY2009 budget requests $8,520,000 in funding for the upcoming presidential transition.

INTRODUCTION Since outgoing President George Washington first relinquished his office to incoming President John Adams in 1797, this peaceful transition, symbolizing both continuity and change, has demonstrated the "best of American democracy to the world."1 The activities surrounding a presidential transition today begin shortly after the election, as the President-elect has fewer than 11 weeks to formulate the new Administration before taking the oath of office on January 20. *

Excerpted from CRS Report for Congress, Order Code RL30736, dated April 3, 2008.

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A formal transition process has been shown to be essential to ensure continuity in the conduct of the affairs of the executive branch, as well as the rest of the federal government. Before 1963, the primary source of funding for transition expenses was the political party organization of the incoming President, and the efforts of volunteer staff. Realizing the importance of presidential transitions for effective government, Congress first enacted the Presidential Transition Act of 1963 (PTA) to authorize federal funding and assistance for future incoming Administrations.2 The act was amended by Congress in 1976, to increase the authorization for a presidential transition to $3 million, with $2 million available to the Presidentelect and Vice President-elect and $1 million to the outgoing President and Vice President.3 In 1988, Congress enacted the Presidential Transitions Effectiveness Act to increase federal funding to $5 million to support a change of Administrations.4 Of this total, $3.5 million was authorized to be appropriated for services and facilities to the President-elect and Vice President-elect. The outgoing President and Vice President were authorized $1.5 million in federal funds. A total of $250,000 would be returned to the Treasury if the outgoing Vice President were subsequently elected President. These funds were authorized to be increased in future transitions to accommodate inflation. The new legislation also amended the PTA to require that private contributions and names of transition personnel be publicly disclosed. In anticipation of the 2000-2001 transition, the 106th Congress enacted P.L. 106293, the Presidential Transition Act of 2000, which President Clinton signed on October 13, 2000.5 It amended the PTA to authorize the General Services Administration (GSA) to provide additional support in the orientation of the President-elect's newly appointed senior staff. Part I of this report discusses legislative actions to enhance the transition process, each transition since the 1960-1961 arrival of President John F. Kennedy, and general considerations for the presidential transition process. Part II contains the text of the major transition statutes discussed in the report.

PRESIDENT'S COMMISSION ON CAMPAIGN COSTS Subsequent to the 1960 election, it was widely recognized that changes were needed in campaign finance practices. Funding for presidential transition activities was among the issues discussed. Accordingly, on November 8, 1961, President Kennedy established the President's Commission on Campaign Costs to make

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recommendations on "improved ways of financing expenditures required of nominees for the offices of President and Vice President" as well as other relevant costs associated with presidential campaigns.6 Five months later, the 12-member bipartisan commission completed its final report, entitled Financing Presidential Campaigns, which included a recommendation on presidential transitions.7 The commission reported that the 1952-1953 transition for President Dwight D. Eisenhower cost a special Republican committee more than $200,000, and the 19601961 transition for President Kennedy cost $360,000, funded by the Democratic National Committee. Noting that such expenses created financial hardship for the political parties, especially after an election, the commission recommended that funding for the President-elect and Vice President-elect should not be the responsibility of a political party.

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We endorse proposals to "institutionalize" the transition from one administration to another when the party in power changes. Important reasons for doing so exist wholly aside from the costs to the parties. The new President must select and assemble the staff to man his administration, and they in return must prepare themselves for their new responsibilities.8

The commission also recommended that the outgoing President be authorized to receive federally funded facilities and services to assist in the orderly transfer of executive power.9 In a May 29, 1962, letter to Congress transmitting legislation to implement the commission's final recommendations, President Kennedy stated: Traditionally, the political parties have had to pay the costs of the Presidentelect and Vice President-elect during the transition period between the election and the inauguration of a new Administration. It is entirely desirable and appropriate that the Federal government provide funds for paying the reasonable and necessary costs of installing a new Administration in office.10

In addition to the importance of federal funding, President Kennedy stressed that an incoming President must select "responsible public officials who must prepare themselves for their new responsibilities"during the transition period.

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THE PRESIDENTIAL TRANSITION ACT OF 1963

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As recommended by the President's Commission on Campaign Costs, legislation was introduced during the 87th Congress to provide federal financial support for presidential transitions. Although it was supported by President Kennedy, there was no action on the bill. During the following Congress, H.R. 4638, the Presidential Transition Act of 1963 (PTA), was introduced on April 24, 1963, and was enacted on March 7, 1964, as P.L. 88-277.11 The PTA authorized the Administrator of General Services to provide to the President-elect and Vice President-elect office space, compensation to office staff, the detail of personnel on a reimbursable or non-reimbursable basis from federal agencies, the hiring of consultants, and travel expenses. It also authorized the provision of such services to the outgoing President and Vice President, for a period not to exceed six months from the expiration of their terms of office. The act authorized the appropriation of $900,000 for each presidential transition, but did not specify how the amount was to be divided between the incoming and outgoing Administrations. However, the legislative history indicated that the funds were to be divided equally.12

FUNDING UNDER THE PRESIDENTIAL TRANSITION ACT Even though the PTA was enacted in 1964, its provisions were not fully applied following President Johnson's reelection in 1964, since he was already in office. Vice President-elect Hubert Humphrey spent approximately $72,000 in transition expenses under the act.13

Johnson-Nixon Transition The PTA was first fully implemented during the transition from the Administration of President Johnson to that of President Richard Nixon in 19681969, when the transition funds were divided equally between the two Administrations. The following year, the General Accounting Office (GAO) reviewed the operation of the act. GAO found that President Nixon incurred transition costs of $1.5 million, and it recommended that the $900,000 limit be increased to better reflect actual transition expenses.14 A 1982 GAO report stated

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that President-elect Nixon raised $1 million in private funds to supplement the $450,000 available to him under the act.15 President Johnson spent $370,276 of the $375,000 allocated to him under the PTA.16 He also had the assistance of employees provided by federal agencies on a nonreimbursable basi S.17 Vice President Humphrey spent $75,000 to pay the salaries and expenses of his staff and consultants.18

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Nixon-Ford Transition In 1974, Vice President Gerald Ford faced a situation entirely different from that of the first presidential transition covered by the PTA. Because of the resignation of President Nixon, Mr. Ford was not a President-elect, and he received no funds under the Presidential Transition Act.19 Due to the manner in which President Nixon left office, there was some debate as to whether he was entitled to allowances and services as a former President. The Justice Department ruled that he was entitled to federal funds as a former President, since he had not been removed by impeachment.20 Funds are appropriated under the Presidential Transition Act only for presidential election years; therefore, no funds were specifically available when President Nixon left office. On August 29, 1974, the Ford Administration requested Congress to appropriate $450,000 to GSA for carrying out the provisions of the act. The Supplemental Appropriations Act of 1975 appropriated $100,000 to President Nixon under the Presidential Transition Act for a period of six months ending February 9, 1975.21 In addition, most of the clerical and staff work was done by detailed employees provided by several federal agencies, on a nonreimbursable basis.22

Ford-Carter Transition Based on earlier GAO recommendations, the Presidential Transition Act was amended by Congress in 1976 to increase the authorization for a presidential transition to $3 million, with $2 million available to the President-elect and Vice President-elect and $1 million to the outgoing President and Vice President.23 The act also amended the earlier legislation to authorize the detail of personnel, on a reimbursable basis only. The increase in funding was first made available to President Ford and President Jimmy Carter in the 1976-1977 transition. The incoming Carter-

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Mondale Administration spent approximately $1.7 million of the $2 million made available to it pursuant to the act, without any reported private additional assistance.24 Of the $1 million appropriated to the outgoing Ford Administration, President Ford was allocated $905,000, and $95,000 went to Vice President Nelson Rockefeller. As of August 31, 1977, former President Ford had spent approximately $63 5,000 of the total appropriation, but GAO found that an additional amount would be needed to pay for the use of military aircraft.25 At the end of the six-month transition period, Vice President Rockefeller had used $51,292 of the total funds available to him under the PTA, as amended.26

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Carter-Reagan Transition During the 1980-1981 transition, President Carter spent $672,659 for transition purposes, and Vice President Walter Mondale used $188,867 of the $1 million available to the outgoing Carter Administration.27 The incoming Administration of Ronald Reagan spent approximately $1.75 million of the $2 million in available transition funds. Of this total, $63,378 went to Vice President-elect George H. W. Bush for personnel compensation and benefits.28 A 1982 GAO review of the Reagan-Bush transition team's activities at six federal agencies found that approximately $235,000 in transition-related expenses were charged to the agencies' general appropriations. According to GAO, most of the expenses were incurred for gathering and communicating information about agency operations to the transition team. However, certain expenses were related to salaries for secretarial employees who were assigned to the transition team on a nonreimbursable basis and who worked at the team's direction on a full-time or nearly full-time basis. Since the PTA authorized that agency employee details to the transition team be made on a reimbursable basis only, GAO found that the transition team did not always follow correct procedures.29 In addition to federal appropriations, funds for the Reagan transition were solicited from the public by the Presidential Transition Foundation, Inc., a private corporation. GAO attempted to audit these funds, but was denied access to the accounts and records by the foundation's legal counsel. According to GAO's report, the foundation stated that it would be audited by a public accounting firm. GAO found that federal funds appropriated under the PTA were kept separate from private funds donated to the foundation.30 A 1988 Senate report stated that,

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based on Internal Revenue Service documents and Federal Election Commission reports: President-elect Reagan raised approximately $1.25 million for both his preelection and post-election transition activities in 1980. None of the sources or expenditures associated with the private cash were ever disclosed to the public, creating the potential for hidden conflicts of interest.31

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PRESIDENTIAL TRANSITIONS EFFECTIVENESS ACT In anticipation of a new President being elected in the November 1988 general election, the 100th Congress began consideration of legislation to provide increased federal funding for the 1988-1989 transition. After examining the transition expenditures for previous incoming Presidents Carter and Reagan, the Senate Committee on Governmental Affairs expressed concern that future incoming Presidents would have to raise private funds to finance their transitions if the funding under the PTA were not increased.32 Prior to the enactment of the PTA, and subsequently, many candidates had initiated transition activities and studies before the election, in some cases before the convention. The committee affirmed that pre-election transition planning is a legitimate cost of a presidential transition and concluded that such planning should be covered, at least partially, by public funds. However, the Federal Elections Commission indicated that there were regulatory prohibitions: [lit appears that, under current law and regulations, the FEC would find that federal campaign funds — as opposed to segregated private donations — are not available for transition funding during a campaign. Furthermore, we are aware of no FEC reporting or disclosure requirements applicable to private transition funds33

As reported, the Senate bill provided for limited public funding of preelection transition planning. Those provisions were not enacted. It continues to be the practice that all pre-election transition planning is privately financed. As a result of these deliberations, Congress enacted the Presidential Transitions Effectiveness Act to increase federal funding for presidential transitions and to amend the 1964 legislation to require that private contributions and names of transition personnel be publicly disclosed (see Part II for complete text).34

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The act authorized $3.5 million to be appropriated for the funding of services and facilities to the President-elect and Vice President-elect. The outgoing President and Vice President were authorized $1.5 million in federal funds. In the event the outgoing Vice President were subsequently elected President, the new Administration would receive only $1.25 million in assistance. For future transitions, these figures were to be increased by an inflation-adjusted amount, based on actual costs of transition expenses and services of the most recent presidential transition. In addition to funding provisions, the new legislation amended the PTA to require that private contributions and names of transition personnel be publicly disclosed. As a condition for receiving federal funding and services, the Presidentelect and Vice President-elect must formally disclose the date, source, and amount of all privately contributed funds for the transition, with a maximum contribution of $5,000 allowed from any person or organization. These written disclosures must be made to GSA within 30 days after the January 20 inauguration. The President-elect must also disclose information about transition team members before initial contact with a federal department or agency. The act also limits any temporary appointment to an executive branch vacancy to 120 days, unless a nomination has been submitted to the Senate.

FUNDING UNDER THE PRESIDENTIAL TRANSITIONS EFFECTIVENESS ACT As authorized by the act, the funding for an incoming Administration is available from the day following the general elections until 30 days after the inauguration. For the outgoing President and Vice President, transition funding was extended from six to seven months, beginning one month before the inauguration, to facilitate their relocation to private life. Separate legislation also provides former Presidents an annual lifetime pension and staff and office allowances after the transition period expires, as well as Secret Service protection.35 The increase in funding under the Presidential Transitions Effectiveness Act was first made available during the 1988-1989 transition of outgoing President Reagan and his successor, George H. W. Bush.

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Reagan-George H. W. Bush Transition President Reagan used $697,034 of the $1.25 million available to him under the act as the outgoing President.36 Outgoing Vice President Bush was authorized $250,000 for expenses related to his transition from that office. The $250,000 was transferred to the Federal Election Commission.37 Incoming President Bush and Vice President Dan Quayle spent $2.3 million of the $3.5 million authorized under the PTA, as amended, and transferred $1 million to the government of the District of Columbia for inaugural expenses.38

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George H. W. Bush-Clinton Transition For the 1992-1993 presidential transition, $3.5 million was appropriated to GSA for the incoming Administration of President William Clinton and Vice President Albert Gore Jr., and $1.5 million for the outgoing Administration of President George H. W. Bush and Vice President Quayle.39 Of this total, the Bush Administration determined that $1.25 million would be made available to President Bush, with the remaining $250,000 to be used by Vice President Quayle. During the transition period, President Bush used $907,939, with an unobligated balance of $342,061. Vice President Quayle used $244,192, with an unobligated balance of $5,808. President Clinton and Vice President Gore jointly spent $3,485,000, with an unobligated balance of $15,000. For FY1997, $5.6 million was authorized in the event of a presidential transition in January 1997, which did not occur.40

PRESIDENTIAL TRANSITION ACT OF 2000 While the PTA, as amended, has authorized federal funds and facilities to ensure smooth transitions in the past, no formalized attention was given to orientation of a President-elect's newly appointed senior staff. In anticipation of the 2000-2001 transition, the 106th Congress enacted P.L. 106-293, the Presidential Transition Act of 2000, which President Clinton signed on October 13, 2000.41

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NEW PROVISIONS TO FACILITATE THE TRANSITION PROCESS The legislation amended the PTA to authorize GSA to provide additional support during the 2000-2001 transition period. Most importantly, GSA was authorized to coordinate the development and presentation of orientation sessions for the President-elect's nominees for cabinet and high-level executive branch positions. Prior to the election on November 7, 2000, GSA was authorized to consult with the presidential candidates in order to begin development of a computer and communications system for use during the transition period. In conjunction with the National Archives and Records Administration (NARA), GSA was required to create a transition directory, composed of federal publications and materials pertaining to the statutory and administrative functions of each federal department and agency. A fourth major provision required the Office of Government Ethics to prepare a report on needed improvements to the financial disclosure process currently required for presidential nominees.

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Clinton-George W. Bush Transition For FY2001, GSA requested a total of $7.1 million for the 2000-2001 presidential transition. Of this total, $1.83 million was budgeted for the outgoing Clinton Administration, with $305,000 to be returned to the Treasury if Vice President Albert Gore was elected President; and $4.27 million was requested for the incoming Administration.42 GSA requested an additional $1 million to fund its new responsibilities under the Presidential Transition Act of 2000. On October 12, 2000, the Senate gave final approval to the conference agreement that funded this account at $7.1 million in the FY2001 Treasury, Postal Service, and General Government Appropriations Act.43 On October 30, President Clinton vetoed the legislation. On November 3, 2000, President Clinton signed the measure that funded the 2000-2001 transition at the requested levels.44 Passage of the Presidential Transition Act of 2000 was intended to allow the President-elect and his appointees to "hit the ground running" as they took office on January 20, and increase their effectiveness during the crucial first year in office. However, the significance of the relatively short transition period came under intense scrutiny during the historic events surrounding the presidential election of 2000.

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With less than five weeks available for formal transition activities, $1.83 million was provided to the outgoing Administration of President Clinton, which included $305,000 for Vice President Gore; $4.27 million for the incoming Administration of President-elect George W. Bush; and $1 million to provide briefings for incoming Bush appointees. According to GSA, actual FY2001 obligations for the outgoing Clinton Administration totaled $1,788,623, which included $282,935 for Vice President Gore. Actual FY2001 obligations for the incoming Bush-Cheney Administration totaled $4,000,836 in transition costs, plus an additional $983,507 for agency briefings for incoming Bush appointees.45

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FY2005 Transition Funding Section 6 of the PTA authorizes the President to include in his budget request for each fiscal year in which his regular term of office will expire, a proposed appropriation for carrying out the purposes of the act. In order to provide federal funding in the event of a 2004 presidential transition, the President's FY2005 budget proposal requested a total of $7.7 million. Of this total, $1 million would be provided for briefings and related transition services for incoming personnel associated with a new administration46 Currently, Section 3(f) of the PTA states that there shall be no expenditures of funds for the provision of services and facilities in the event the President-elect is the incumbent President, or when the Vice President-elect is the incumbent Vice President. Any funds appropriated for such purposes "shall be returned to the general funds of the Treasury." In the event no transition occurs, the President's FY2005 budget request for GSA proposed to amend the PTA through appropriation language to permit the expenditure of not more than $1 million for training and briefings for incoming appointees associated with the second term of an incumbent President.47 No other expenditure of appropriated funds for transition purposes would be made available to the incumbent President, and the remaining $6.7 million would be returned to the general fund of the Treasury. The House passed H.R. 5025, the FY2005 Transportation, Treasury, and Independent Agencies appropriations bill, on September 22, 2004. The legislation recommended for GSA a total of $7.7 million for the expenses associated with a possible 2004-2005 presidential transition, and included $1 million to brief incoming personnel. If no transition occurred, H.R. 5025 authorized that $1 million be used by the incumbent President for the training of new appointees associated with a second term of office. The House Committee on Appropriations also recommended the $1 million appropriation to be used by the incumbent

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President, and stated that the remaining $6.7 million in transition funds would be returned to the Treasury, if no transition occurred.48 Following its passage, H.R. 5025 was received in the Senate on September 29, 2004, and placed on the Senate Legislative Calendar. In the Senate, S. 2806, the FY2005 Transportation, Treasury, and Independent Agencies appropriations bill, also recommended a total of $7.7 million for GSA to implement a possible presidential transition, including $1 million for incoming appointees. However, the Senate Committee on Appropriations denied the request to amend the PTA to allow $1 million for training and briefings for incoming appointees associated with the second term of an incumbent President. The committee stated that it had no objection to funding such training, but believed that "it should be properly budgeted for and requested by the appropriate agencies.49 On September 15, 2004, S. 2806 was reported to the Senate and placed on the Senate Legislative Calendar. P.L. 108-309 was enacted on September 30, 2004, to provide continuing nondefense appropriations through November 20, 2004. A total of $2.5 million was authorized in the event of a presidential transition, until enactment of the FY2005 omnibus appropriations bill. Due to the outcome of the 2004 presidential election, no funds were provided in P.L. 108-447, the FY2005 Consolidated Appropriations Act.50

INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF 2004 On December 17, 2004, the 108th Congress enacted the Intelligence Reform and Terrorism Prevention Act of 2004.51 Title VII, Subtitle F, implemented the recommendations of the National Commission on Terrorist Attacks Upon the United States (9/11 Commission) pertaining to presidential transitions.52 Section 7601 amended the PTA to require that outgoing executive branch officials prepare a classified summary of specific national security threats to be presented to the President-elect as soon as possible after the general election. The national security summary was also required to detail all "major military or covert operations," as well as any pending decisions on possible uses of military force. The legislation also provided for expedited security clearance determinations for members of a President- elect's transition team, and recommended that the Senate give expedited consideration to national security officials nominated by an incoming President.

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FY2009 TRANSITION FUNDING The President's FY2009 budget requests $8,520,000 in funding for the upcoming presidential transition. Of this total, $1 million is provided for briefings and related transition services for incoming personnel associated with the new administration.53

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ACTIVITIES OF PAST PRESIDENTIAL TRANSITIONS Before the Eisenhower/Kennedy transition in 1961-1962 and the subsequent enactment of the Presidential Transition Act of 1963, communications between incoming and outgoing Administrations were usually limited, especially when the President and President-elect were of different political parties and had been recent campaign opponents. It was generally expected that the President-elect would remain away from Washington until Inauguration Day. Formal communications took place concerning the inaugural ceremonies and the occupancy of the White House, but with virtually no discussion of substantive issues. The incoming Administration's new cabinet generally was not selected until shortly before Inauguration Day; therefore, meetings between incoming and outgoing cabinet members were not common.54 President Harry Truman, who had been thrust into the Presidency in 1945 following President Franklin D. Roosevelt's sudden death, helped to establish the tradition that an outgoing President should actively facilitate the transition of power to an incoming President. Following the election on November 5, 1952, President Truman sent a telegram to President-elect Dwight D. Eisenhower, inviting him to a meeting in the White House "to discuss the problems of this transition period, so that it may be made clear to all the world that this Nation is united in its struggle for freedom and peace."55 President Truman also required each of the executive branch agencies to report to him on what was being done to facilitate the transition.56 In spite of the serious responsibilities involved, only within the past 30 years, since the enactment of the PTA, have the problems associated with the transition of power received much systematic attention.

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Eisenhower-Kennedy Transition Following his election in 1960, President Kennedy entered the White House well-briefed for his assumption of responsibility. While still a candidate, Senator Kennedy commissioned various documents on the transition process and postelection issues.57 Numerous authors and historians credit President-elect Kennedy's preparation for transition to office in 1960-1961 as being unprecedented in the history of presidential transitions. A 1960 review of past presidential transitions by the Congressional Quarterly reported that:

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John F. Kennedy made an important innovation in American Presidential transitions through his appointment of 29 task forces which were asked to report to him on a wide variety of domestic and foreign policy problems in the period immediately preceding and following his inauguration. ... [While other Presidents-elect sometimes asked individual political associates or small groups of experts to brief them on limited phases of public policy, there is no precedent for the large number of task forces, some with wide memberships, which submitted detailed policy briefings to Kennedy near the time of his inauguration.58

Senator Kennedy's use of task forces began soon after his July 1960 Democratic presidential nomination, when he recognized that, if elected President, he would need policy-making advice to address the critical issues that would face him immediately upon taking office. Senator Kennedy asked two of his former opponents for the Democratic presidential nomination, Governor Adlai Stevenson and Senator Stuart Symington, to head the first two task forces on foreign policy and national defense issues. Senator Kennedy, before election day, appointed five additional task forces pertaining to foreign affairs, natural resources, domestic agriculture, and the overseas food program. The creation of these task forces served to highlight his interest in diverse issues, while at the same time using the expertise of former political opponents to demonstrate their support of Senator Kennedy's candidacy.59 All of the task force members were volunteers who received no compensation. One task force project was funded by a foundation grant of $20,000. As stated earlier, the Democratic National Committee paid $350,000 of Kennedy's administrative expenses for the transition.60 Immediately following the election, President-elect Kennedy, with the assistance of Theodore Sorensen as counsel-designate to the President, made a detailed listing of which task forces to appoint, with a deadline for submission of

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a final report. By his inauguration, President Kennedy had appointed 29 task forces, equally divided between foreign and domestic policy. Of this total, 24 task forces had already submitted final reports that contained precise recommendations. According to the Congressional Quarterly, approximately one person from each task force was to be appointed to a high level position within the new Administration.61 Washington, DC, attorney Clark Clifford was appointed to be in charge of transition period relations with the outgoing Eisenhower Administration. When notified of an upcoming January 6, 1961, meeting between President-elect Kennedy and President Eisenhower, Mr. Clifford was able to present an extensive background briefing and report to Mr. Kennedy based on the task force position papers.62

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Johnson-Nixon Transition It was during the 1968-1969 transition that the Presidential Transition Act was first used for both incoming and outgoing Administrations. As an incumbent President not running for re-election, President Johnson became the first President to invite the presidential candidates and their staff to plan for the transition before the November election.63 Richard M. Nixon began planning for an efficient transition following his nomination at the Republican National Convention in July 1968. Franklin Lincoln, Jr., an attorney and former Defense Department official, was appointed as Mr. Nixon's representative on transition matters. Mr. Nixon made use of reports of past presidential transition efforts, and made lists of early decisions that would need to be made if he were elected to office. Following his November 1968 election, President- elect Nixon created approximately 30 task forces to prepare recommendations on issues pertaining to housing, education, tax policy, transportation, foreign aid, and job training.64 By the end of November 1968, President-elect Nixon had selected his first high- level appointees who would be responsible for implementing policies for his Administration. In December 1968, he met with Republican leaders to discuss his future legislative agenda. The selection of the Nixon cabinet was a long process, in which the President-elect spent six weeks studying various alternatives.65

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Nixon-Ford Transition The unprecedented series of events culminating in President Nixon' s resignation from office complicated the process of transition for Vice President Ford in 1974. Transition plans were initiated by Vice President Ford's close friend and former law partner Philip Buchen, who had concluded that events might force an untimely end to the Nixon Administration. According to published sources, Mr. Buchen conducted several meetings to discuss details for the change of Administrations in the event of resignation or impeachment. Assisting in the transition planning were Nixon adviser Clay Whitehead, Governor William Scranton, Senator Robert Griffin, Representative John Byrnes, former Nixon aide Bryce Harlow, and William Whyte of U.S. Steel. One day before his formal resignation announcement to the public on August 9, 1974, President Nixon informed Vice President Ford of his intention to resign. The same day, Mr. Ford's transition planners began preparing formal documents with policy alternatives that President Ford would have to consider immediately upon taking office. The morning of Mr. Ford's swearing-in as President, advisers met at the Ford residence to brief him on their transition documents.66 Upon assuming the presidency, President Ford asked all members of former President Nixon's cabinet and the heads of all federal agencies to remain in his Administration for continuity and stability.67 By December 1974, the cabinet members and numerous high-ranking aides had submitted their resignations to the President. During this period, President Ford came under criticism for the allegedly slow pace at which he had replaced Nixon appointees and selected their successors. In response, Mr. Ford stated that he had become President under sudden and difficult circumstances, without the usual time to plan a transition to power.68

Ford-Carter Transition Before the 1976 election, the subject of Presidential transition was not publicly discussed by the Jimmy Carter campaign, reportedly because of what one Carter aide described as "the implied presumptuousness" of such considerations.69 However, the actual planning for a Carter Administration began after the April 27, 1976, Pennsylvania primary, which Governor Carter considered the turning point in his achieving the Democratic nomination. According to press reports, while Jack Watson was still serving as Georgia finance chairman for the Carter campaign, he began drafting a detailed transition document with timetables and

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work-flow charts. The transition planning took place in Atlanta, Georgia, under the auspices of the "CarterMondale Policy Committee," in keeping with the lowprofile approach said to be preferred by Governor Carter.70 Members of the Carter transition staff were lawyers, academicians, and government officials recruited by Jack Watson. The staff included Harrison Wellford, a former congressional staff member; Larry Bailey, staff assistant to the U.S. Conference of Mayors; Sharleen Hirsch, an educational administrator; and Jule Sugarman, a public administrator. Staff members were assigned to task forces in the areas of community and human development, government organization, international security, economic policy, natural resources, and government regulation. The transition staff sought the advice of several persons with established expertise in transition planning, such as Clark Clifford, who worked on the Kennedy transition.71 On November 2, 1976, President Ford lost the election to Governor Carter, and the following day offered his "complete and whole-hearted support" in the transition to a new national leadership. President-elect Carter responded that he and Vice President-elect Mondale would take full advantage of this offer of close cooperation before Inauguration Day. Mr. Ford designated presidential counselor John Marsh, Jr., as his transition liaison with Mr. Carter's transition representative, Jack Watson.72 On the day of his election, Mr. Carter received 50 transition papers with major policy initiatives pertaining to welfare reform, energy development and conservation, government reorganization, cabinet appointments, and budget reform. A month after the election, Mr. Carter named his first cabinet nominees and directed his attention to the staffing of the approximately 200 top positions in his Administration.73 He also announced that he would limit his time spent in Washington during the transition because he did not wish to act as if he were already President. Mr. Carter stated that Vice President-elect Mondale was in Washington and that "he is me as far as Washington is concerned."74 On November 22, 1976, President Ford and President-elect Carter met for an hour in the White House. The President-elect also met with the Director of the Office of Management and Budget (OMB), the Secretaries of Defense and Health, Education, and Welfare, and the Chairman of the Federal Reserve Board of Governors.

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Carter-Reagan Transition As early as April 1980, Ronald Reagan began planning for a possible presidential transition when he met with a group of defense and foreign policy advisers before the Republican convention. The advisers were asked to prepare specific policy and budget recommendations for use in the first months of a Reagan Administration to enable him to begin work immediately after the inauguration. Coordinated by William Graham, an engineer with a California defense consulting firm, the experts included former Secretary of State Henry Kissinger, former President Ford, former White House chief of staff Alexander Haig, Senators John Tower and Richard Stone, Governor Bill Clements, former Cabinet member Casper Weinberger, and former Ambassador Anne Armstrong.75 Following the Republican convention in July 1980, nearly 300 advisers were asked by Mr. Reagan to serve on 23 task forces to prepare reports due before Inauguration Day on economic and domestic issues.76 Ronald Reagan was elected the 40th President of the United States on November 4, 1980. President Carter pledged in his concession speech "a very fine transition period, the best in history," and asked the country "to unite behind the Presidentelect.77 On November 6, 1980, the President-elect named his formal transition team, a job he described as "translating campaign promises into reality." He named his campaign director, William Casey, to be chairperson of the transition executive committee, and campaign co-chairperson Anne Armstrong as vice chairperson. A personnel office was established under the leadership of E. Pendleton James to select people to fill approximately 2,700 top-level federal jobs.78 In November 1980, President-elect Reagan announced an executive branch transition organization consisting of five working groups responsible for the transfer of power. Under the direction of William Timmons, deputy director of transition, the working units coordinated transition efforts of various cabinet departments and other executive agencies. Each cabinet department was assigned a specific team leader to oversee the transition. Mr. Reagan also named a 14member Economic Policy Coordinating Committee that included many high ranking officials from the Nixon and Ford Administrations. President-elect Reagan said publicly that he did not intend to preempt the powers that belonged to President Carter until Inauguration Day 1981.79 Mr. Carter's transition representative, Jack Watson, informed the Reagan group that the outgoing President intended to defer maj or policy decisions for the incoming Administration.80 President-elect Reagan and his wife met with President Carter and his wife late in November 1980.

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Reagan-George H. W. Bush Transition On November 8, 1988, George H. W. Bush became the 41st President, the first incumbent Vice President to be elected since Martin Van Buren in 1836. The following day, President-elect Bush announced the appointment of Craig Fuller, his former chief of staff, and Robert Teeter, his campaign strategist, as codirectors of the Bush transition effort. In addition, he named his longtime friend James Baker as an adviser on "key aspects" of the transition, and announced his intention to nominate Mr. Baker for Secretary of State. Mr. Bush stated that he wanted a "somewhat leaner" transition organization than was used in 1980. He also indicated that he would not seek to preempt President Reagan' s authority during the transition period or "unduly influence decisions that are properly the President' s."81 In mid-November 1988, President-elect Bush's transition office opened in Washington, DC. Soon after, the Heritage Foundation delivered 2,500 resumes of persons recommended for jobs in the Bush Administration.82 Mr. Bush proposed additional cabinet appointments on November 21, 1988, which included two from President Reagan' s cabinet, Attorney General Richard Thornburgh and Education Secretary Lauro Cavazos.83 The smooth transition between the Reagan and Bush Administrations was further demonstrated on November 22, 1988, when White House Chief of Staff Kenneth Duberstein requested cabinet members and agency heads to provide information to the transition team on organizational matters, goals, and functions, resource descriptions, congressional oversight committees, regulatory programs, and other important issues relevant to each agency.84 By the end of November 1988, most of the executive branch agencies had designated internal transition leaders to assist in an orderly transition with President-elect Bush's transition liaisons. Mr. Duberstein stated that the transition effort greatly benefited from the eight-year partnership of President Reagan and President-elect Bush, and that "their philosophical compatibility cannot be underrated.85

George H. W. Bush-Clinton Transition Following the August 1992 nomination of William Clinton at the Democratic National Convention, several of his closest aides began working on a transition document to prepare for a possible change of Administrations following the November election. Headed by Clinton campaign manager Mickey Kantor, the working group was known as the Clinton-Gore Pre-Transition Planning

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Foundation, and included former Mayor Henry Cisneros, attorney Warren Christopher, former Governor Madeleine Kunin, and attorney Vernon Jordan. Governor Clinton's pre- transition team was headquartered in Little Rock, Arkansas. The team collected information on past presidential transitions and prepared a series of transition briefing books dealing with policy issues and proposed presidential agendas.86 In his concession speech following the election on November 3, 1992, President Bush stated that "our entire administration will work closely with his [Clinton's] team to ensure the smooth transition of power."87 At a November 5 cabinet meeting, President Bush stated that his top aides would cooperate with the Clinton transition team:

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It's very important that we not be begrudging during the transition.... Let us all finish the job with the same class with which we served.88

It was later announced that Department of Transportation Secretary Andrew Card Jr. would head President Bush's transition team. In a radio address, President Bush stated that he would return to Texas after the inauguration, where he intended to retire from politics, and to "rededicate" himself to helping others.89 President-elect Clinton remained in Little Rock following the election, to read transition reports and to meet with top advisers. His key transition appointments were not immediately announced, and press reports indicated that there was a dispute among his aides over who should lead the Clinton transition effort.90 On November 6, 1992, it was announced that Vernon Jordan and Warren Christopher would head the Clinton transition team. It was also reported that Mr. Clinton would choose his cabinet officers in an orderly process, and that a "stringent set of ethics rules" would be used in the selection process.91

Clinton-George W. Bush Transition As a result of the ballot challenges concerning the November 7, 2000, presidential election, White House Chief of Staff John Podesta issued a November 13, 2000, memorandum to executive branch agencies stating that, "because of the uncertainty over election results, no President-elect has been identified to receive federal funds and assistance under the Presidential Transition Act of 1963."92 The memo advised executive branch officials to provide any assistance that was "typically" provided to presidential candidates. Following the certification of the Florida popular vote on November 26, 2000, by the Florida Secretary of State in

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favor of Governor George W. Bush, GSA Administrator David J. Barram announced the following day that he would not authorize the release of federal transition funds since the final outcome remained "unclear and un-apparent,"93 due to ongoing legal challenges to the Florida certification. Since the PTA provides no explicit criteria for determining the "apparent successful candidates," the GSA administrator based his decision on the 1963 legislative history, which stated that, "in a close contest, the Administrator simply would not make the decision."94 Also at issue was the use of 90,000 square feet of office space in Washington, DC, that GSA had leased in anticipation of the transition period between election day on November 7 and the presidential inauguration on January 20, 2001, at a cost of approximately $700,000.95 In response to GSA's decision to withhold funding and office space, Governor Bush announced the establishment of his transition offices in McLean, VA, to be headed by the vice presidential candidate, former Secretary of Defense Richard Cheney. In a November 27, 2000, news conference, Cheney stated that the BushCheney transition would be funded by private contributions as a "non-profit corporation and will seek 501(c)(4) status from the Internal Revenue Service."96 On December 4, 2000, oversight hearings on the presidential transition were held before the House Government Reform Subcommittee on Government Management, Information, and Technology. In his opening statement, subcommittee chairman Stephen Horn expressed concern that, in spite of longstanding congressional intent to federally fund presidential transitions, "today — nearly four weeks after the presidential election — the administrator says he is still unable to ascertain a winner and, thus, is not providing the appropriate assistance required by the Presidential Transition Act."97 In a written statement for the hearings record, Comptroller General David M. Walter wrote that, "given the current extraordinary circumstances surrounding the election, Congress should consider extending the existing time limitation on the obligation of funds under the Transition Act to help mitigate the unforeseen delay in the initial release of public funds."98 As a result of these hearings, H.R. 5643 was introduced in the House on December 6, 2000, to clarify the definition of "apparent successful candidates" to permit the GSA administrator to provide transition funding and services to the President-elect and Vice President-elect as determined by official state certifications. The legislation was referred to the House Committee on Government Reform. There was no additional action in the 106th Congress. Immediately following Vice President Albert Gore's concession speech on December 13, 2000, GSA Administrator David Barram authorized President-elect George Bush's use of federal transition funds and office space.99 The following day, GSA Deputy Administrator Thurman Davis presented Vice President-elect

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Cheney with an electronic card that served as the key to the Washington, DC, transition office, located at 1800 G Street, NW. The Bush-Cheney transition officials assigned to coordinate with congressional staff and prospective Cabinet members were the first to relocate from their McLean, VA, headquarters to the GSA office space. Shortly after President-elect Bush's first formal address to the nation on December 13, he received a congratulatory call from President Bill Clinton. The following day, President-elect Bush announced plans to travel to Washington, DC, on December 18, to conduct separate visits with President Clinton and Vice President Gore, as well as to conduct interviews with possible Cabinet members.100 With less than five weeks until his inauguration, President-elect Bush made his Cabinet selections in just 20 days. According to newspaper accounts, the President- elect and his aides used the five weeks of the election dispute to narrow their list of possible appointments, even though they were criticized by some for "presumptuously" proceeding with the transition. With so little time left before he took office, President-elect Bush narrowed his selections to nominees who had previously been through Senate confirmations in the past, selecting Donald Rumsfeld for Secretary of Defense, Colin Powell for Secretary of State, and Norman Mineta for Secretary of Transportation. In addition to their government and corporate expertise, the Cabinet nominees also had long-standing professional associations with the President-elect and his family.101

General Considerations Each presidential transition is unique and brings with it the conditions and circumstances facing a particular President-elect that will help shape and influence his Administration. Despite the influence of unique circumstances, observers have identified a number of generally important transition issues based on past transition experiences.

Adequate Funding Since enactment of the Presidential Transition Act of 1963, Presidents-elect have assembled extensive staffs and organizations to conduct their transitions. In the past, discussions of presidential transitions have often focused on the importance of adequate federal funding, culminating with the Reagan transition, when $1.25 million in private funds was raised by the Reagan Transition Foundation to meet additional transition expenses. Enactment of the Presidential

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Transitions Effectiveness Act in 1988 recognized this issue by increasing the total amount authorized for a presidential transition to $5 million. The legislation also authorized future transition funding to be increased by an inflation adjusted amount. For the 2000-2001 presidential transition, a total of $7.1 million was appropriated for both the incoming and outgoing Administrations, and included $1 million for GSA to implement its new transition responsibilities under the Presidential Transition Act of 2000.102

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Pre-election Planning The adequacy of federal funding, while a major consideration, is but one factor involved in determining the success of a presidential transition. A review of the literature on presidential transitions indicates that another major concern pertains to time, or a lack of it, in completing everything that needs to be accomplished by a President-elect in the 11-week period between an election and an inauguration. A transition period that begins swiftly and smoothly can help to determine how successful a presidency will be. The expression "to hit the ground running" is frequently used to describe the goal of past transition teams to make their imprint quickly on a new presidential agenda.103 During its consideration of the Presidential Transition Effectiveness Act, the Senate Committee on Governmental Affairs reported that there was: ... near-unanimous agreement among past transition officials that a President- elect must undertake at least some advance planning during the general election campaign. A President-elect cannot wait until the morning after the election to start planning for the transition. In order for the President-elect to "hit the ground running," the candidate must lay the administrative groundwork before the campaign is over.104

Based on hearing testimony by representatives of the Harvard University Public/Private Careers Proj ect, the committee found that such "pre-election transition planning may now be essential for ensuring post-election success."105 A decade later, the 106th Congress enacted the Presidential Transition Act of 2000, to authorize a formal orientation process between incoming political appointees and career federal employees. A July 18, 2000, report prepared by the Senate on Governmental Affairs Committee stated that "timely orientations to new appointees" were "virtually non-existent" during past transition periods. According to the committee, enactment of the new legislation was essential to avoid "missteps and outright errors made by newly appointed officials at executive branch agencies and in the White House."106

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Organizational Decisions The day after the election, a President-elect and his staff normally must "shift gears" from winning the election to planning a successful transition. According to a 2000 Heritage Foundation project on the presidency, one of the most difficult tasks facing an incoming President is the merging of the campaign staffs and the newly- formed transition teams.107 Elated by a winning campaign and a mandate for change by the electorate, a President-elect faces the transition period with great expectations. During the transition, the new Administration must act on campaign promises and quickly develop an administrative and legislative program. Author John Burke writes that the incoming Reagan Administration emphasized coordination between the transition team and the campaign staff to deflect the "rivalries and tensions" that had reportedly occurred during the previous transition of incoming President Carter.108 Crucial organizational decisions must be made as soon as possible on issues that will ultimately affect how well the new Administration succeeds. The President-elect and his staff must first make decisions related to key personnel appointments, and establish liaison with the representatives of the federal departments and agencies to ensure a smooth transition. Management and organizational issues should be resolved during the transition, so that substantive policy matters can be addressed on inauguration day.109 Incoming President George Bush, for example, had an obvious advantage during his well-organized 1988 transition, in that he was taking office as an incumbent Vice President. The day after his election, he immediately announced his transition team and several key staff appointments. His transition clearly benefited from the "good auspices" of former President Reagan because advice and information were "quickly conveyed, giving members of the transition both an easy start and a head start." In addition, President-elect Bush was able to select quickly his cabinet and executive appointees from many experienced executive branch officials.110 In a 1988 report on the Presidency and transitions, the National Academy of Public Administration stated that: The initial decisions that a president makes when organizing the White House, determining its structure and functional responsibilities, and establishing patterns of interaction between it and other executive branch agencies will affect how these needs are met, and ultimately, how well a presidency works. Naturally, this will affect the achievement of policy objectives.111

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Continuity of the Federal Government A leadership void can occur during the transition period when the outgoing Administration has constitutional authority but diminished influence, and the President-elect has much influence but no authority. This is sometimes referred to as a "lame duck" Administration. A 1990 University of Virginia conference on presidential transitions found that, while the incumbent Administration was often intent on having a continued impact on public and foreign policy, "the mere existence of a president-elect and his developing Administration interferes with this effort."112 A 1988 report by Editorial Research Reports discussed the "dangers associated with presidential transitions," both domestically and internationally, during the transition period. After the inauguration, difficult situations can also arise when a new and untested administration faces a sudden crisis or emergency.113 The day following his election, President-elect Clinton made a statement, asking foreign governments to continue recognizing President Bush as the "sole voice of U.S. policy." He also warned that "the greatest mistake any adversary could make would be to doubt America's resolve during this period of transition.114 Ideally, a President-elect who has been adequately briefed on policy issues by his transition teams during the weeks following the election will be better prepared to make crucial decisions upon entering office: Continuity of the federal government and responsiveness to the new political leadership are hallmark obj ectives of the traditional transition process. While incorporating these objectives, the extended transition process has been refined to perform the functions of policy making, advice-giving and personnel selection simultaneously. The new administration must concentrate upon policy programs that are immediately relevant to show effectiveness on and immediately following January 20.115

Setting Priorities in the New Administration A President-elect has 11 weeks to become informed in detail about the operations of the federal government before his inauguration on January 20. The "mechanics" of managing a transition — the tasks, deadlines, personnel decisions, budget and administrative procedures — generally occupy the initial phase of the transition process.116

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However, the President-elect must also begin to focus on making substantive decisions on policy issues. Campaign promises are reviewed to form a policy agenda. Soon after taking office, the new President must prepare a legislative agenda to present to Congress. The importance of the transition process cannot be underestimated in determining the ultimate success of an Administration. At least two authors advocate an "extended" transition that begins several months before the election and extends through at least the first session of Congress. If a President-elect has successfully focused on a "short list" of priorities or objectives that he wants to accomplish, he can dominate policymaking to achieve his goals during the honeymoon period that normally follows a election. By concentrating on a few key issues soon after taking office, many observers believe the President-elect can establish a public perception that he is in command of an aggressive policy agenda.

APPENDIX: TEXT OF PRESIDENTIAL TRANSITION STATUTES

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PRESIDENTIAL TRANSITION ACT OF 2000: P.L. 106-293, OCTOBER 13, 2000; 114 STAT. 1035 AN ACT To provide for the training or orientation of individuals, during a Presidential transition, who the President intends to appoint to certain key positions, to provide for a study and report on improving the financial disclosure process for certain Presidential nominees, and for other purposes. 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 "Presidential Transition Act of 2000".

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Sec. 2. Amendments to Presidential Transition act of 1963 Section 3(a) of the Presidential Transition Act of 1963 (3 U.S.C. 102 note) is amended — (1) in the matter preceding paragraph (1) by striking including — and inserting including the following: (2) in each of paragraphs (1) through (6) by striking the semicolon at the end and inserting a period; and (3) by adding at the end the following: (8) (A)(i) Not withstanding subsection (b), payment of expenses during the transition for briefings, workshops, or other activities to acquaint key prospective Presidential appointees with the types of problems and challenges that most typically confront new political appointees when they make the transition from campaign and other prior activities to assuming the responsibility for governance after inauguration. (ii) Activities under this paragraph may include interchange between such appointees and individuals who — (I) held similar leadership roles in prior administrations; (II) are department or agency experts from the Office of Management and Budget or an Office of Inspector General of a department or agency; or are relevant staff from the General Accounting Office. (III) Activities under this paragraph may include training or orientation in records management to comply with section 2203 of title 44, United States Code, including training on the separation of Presidential records and personal records to comply with subsection (b) of that section. (IV) Activities under this paragraph may include training or orientation in human resources management and performance-based management. (B) Activities under this paragraph shall be conducted primarily for individuals the President-elect intends to nominate as department heads or appoint to key positions in the Executive Office of the President. (9)(A) Notwithstanding subsection (b), development of a transition directory by the Administrator of General Services Administration, in consultation with the Archivist of the United

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States (head of the National Archives and Records Administration) for activities conducted under paragraph (8). (B) The transition directory shall be a compilation of Federal publications and materials with supplementary materials developed by the Administrator that provides information on the officers, organization, and statutory and administrative authorities, functions, duties, responsibilities, and mission of each department and agency. (10)(A) Notwithstanding subsection (b), consultation by the Administrator with any candidate for President or Vice President to develop a systems architecture plan for the computer and communications systems of the candidate to coordinate a transition to Federal systems, if the candidate is elected. (B) Consultations under this paragraph shall be conducted at the discretion of the Administrator.

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Sec. 3. Report on Improving the Financial Disclosure Process for Presidential Nominees (a) In General- Not later than 6 months after the date of the enactment of this Act, the Office of Government Ethics shall conduct a study and submit a report on improvements to the financial disclosure process for Presidential nominees required to file reports under section 101(b) of the Ethics in Government Act of 1978 (5 U.S.C. App.) to the Committee on Governmental Affairs of the Senate and the Committee on Government Reform of the House of Representatives. (b) Content of Report(1) In general- The report under this section shall include recommendations and legislative proposals on — (A) streamlining, standardizing, and coordinating the financial disclosure process and the requirements of financial disclosure reports under the Ethics in Government Act of 1978 (5 U.S.C. App.) for Presidential nominees; (B) avoiding duplication of effort and reducing the burden of filing with respect to financial disclosure of information to the White House Office, the Office of Government Ethics, and the Senate; and

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Stephanie Smith (C) any other relevant matter the Office of Government Ethics determines appropriate. (2) Limitation relating to conflicts of interest- The recommendations and proposals under this subsection shall not (if implemented) have the effect of lessening substantive compliance with any conflict of interest requirement. (c) Authorization of Appropriations- There are authorized to be appropriated such sums as may be necessary to carry out this section.

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References H.R. 4931 (and S. 2705), 106th Congress S.Rept. 106-348, from the Committee on Governmental Affairs 7/24/2000: Referred to the House Committee on Government Reform. 7/31/2000: Referred to the Subcommittee on Government Management, Information and Technology. 9/13/2000: Committee on Government Reform discharged. 9/13/2000: Mr. Horn asked unanimous consent to discharge from committee and consider. 9/13/2000: Considered by unanimous consent. 9/13/2000: On passage Passed without objection. 9/13/2000: Motion to reconsider laid on the table Agreed to without objection. 9/19/2000: Received in the Senate. Read twice. Placed on Senate Legislative Calendar under General Orders. Calendar No. 812. 9/28/2000: Passed Senate without amendment by Unanimous Consent. 9/28/2000: Cleared for White House. 9/29/2000: Message on Senate action sent to the House. 10/3/2000: Presented to President. 10/12/2000: Signed by President. 10/12/2000: Became P.L. 106-293.

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PRESIDENTIAL TRANSITIONS EFFECTIVENESS ACT: P.L. 100-398, AUGUST 17, 1988; 102 STAT. 985 AN ACT To amend the Presidential Transition Act of 1963 to Provide for a more orderly transfer of executive power in connection with the expiration of the term of office of a President Be it enacted by the Senate and House of Representatives of the United States ofAmerica in Congress assembled,

Section 1. Short Title This Act may be cited as the "Presidential Transitions Effectiveness Act".

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Sec 2. Presidential Transition Authorizations (a) AMENDMENT — Section 5 of the Presidential Transition Act of 1963 (3 U.S.C. 102 note) is amended — (1) by redesignating such section as section 6; (2) by inserting before such section the following heading:

Authorization of Appropriations (3) by inserting "(a)" after the section designation; (4 )in paragraph (1), by striking out "$2,000,000" and inserting in lieu thereof "$3,500,000"; (5) in paragraph (2), by striking out "$1,000,000" and inserting in lieu thereof "$1,500,000" (6) in paragraph (2), by inserting before the period at the end thereof the following: except that any amount appropriated pursuant to this paragraph in excess of $1,250,000 shall be returned to the general fund of the Treasury in the case where the former Vice President is the incumbent President"; and

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Stephanie Smith (7) by adding at the end thereof the following new subsection: "(b) The amounts authorized to be appropriated under subsection (a) shall be increased b 'y an inflation adjusted amount, based on increases in the cost of transition services and expenses which have occurred in the years following the most recent Presidential transition, and shall be included in the proposed appropriation transmitted by the President under the last sentence of subsection (a)." (b) EFFECTIVE DATE — The amendments made by subsection (a) of this section shall be effective upon enactment, except that the amendment made by paragraph (7) of such subsection shall take effect on October 1, 1989.

Sec. 3. Presidential Transition Financing and Personnel

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The Presidential Transition Act of 1963 (3 U.S.C. 102 note) is further amended by inserting after section 4 the following new section:

Disclosures of Financing and Personnel Limitation on Acceptance of Donations SEC. 5. (a)(1) The President-elect and Vice-President-elect (as a condition for receiving services under section 3 and for funds pro-vided under section 6(a)(1)) shall disclose to the Administrator the date of contribution, source, amount, and expenditure thereof of all money, other than funds from the Federal Government, and including currency of the United States and of any foreign nation, checks, money orders, or any other negotiable instruments payable on demand, received either before or after the date of the general elections for use in the preparation of the President-elect or Vice President-elect for the assumption of official duties as President or Vice President. (2) The Preside elect and Vice-President-elect (as a condition for receiving such services and funds) shall make available to the Administrator and the Comptroller General all information concerning such contributions as the Administrator or Comptroller General may require for purposes of auditing both the public and private funding used in the activities authorized by this Act. (3) Disclosures made under paragraph (1) shall be — (A) in the form of a report to the Administrator within 30 days after the inauguration of the President-elect as President and the VicePresident-elect as Vice President; and

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(B) made available to the public by the Administrator upon receipt by the Administrator. (b)(1) The President-elect and Vice-President-elect (as a condition for receiving services provided under section 3 and funds provided under section 6(a)(1)) shall make available to the public — (A) the names and most recent employment of all transition personnel (full-time or part-time, public or private, or volunteer) who are members of the President-elect or Vice- President elect's Federal department or agency transition teams; and (B) information regarding the sources of funding which support the transition activities of each transition team member. (2) Disclosures under paragraph (1) shall be made public before the initial transition team contact with a Federal department or agency and shall be updated as necessary. (c) The President-elect and Vice-President-elect (as a condition for receiving services under section 3 and for funds provided under section 6(aXl)) shall not accept more than $5,000 from any person, organization, or other entity for purposes of carrying out activities authorized by this Act."

Sec. 4. Limitation on Expenditures of Certain Funds (a) USE OF AIRCRAFT — Section 3(a)(4) of the Presidential Transition Act of 1963 (3 U.S.C. 102 note) is amended — (1) by inserting (A) after (4); (2) by adding at the end thereof the following new subparagraph: (B) When requested by the President-elect or Vice-President-elect or their designee, and approved by the President, Government aircraft may be provided for transition purposes on a reimbursable basis; when requested by the President- elect, the Vice-President-elect, or the designee of the president-elect or Vice- President-elect, aircraft may be chartered for transition purposes; and any collections from the Secret Service, press, or others occupying space on chartered aircraft shall be deposited to the credit of the appropriations made under section 6 of this Act; (b) DURATION OF EXPENDITURES — Section 3(b) of the Presidential Transition Act of 1963 is amended to read as follows:

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Stephanie Smith (b) The Administrator may not expend funds for the provision of services and facilities under section 3 of this Act in connection with any obligations incurred by the President-elect or Vice-President-elect — (1) before the day following the date of the general elections held to determine the electors of President and Vice President under section 1 or 2 of title 3, United States Code; or (2) after 30 days after the date of the inauguration of the Presidentelect as President and the inauguration of the Vice Presidentelect as Vice President. (c) COMMENCEMENT OF EXPENDITURES — Section 4 of the Presidential Transition Act of 1963 is amended by striking out "six months from the date of the expiration" and inserting "seven months from 30 days before the date of the expiration".

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Sec 5. Disclosure of In-kind Contributions to 1988-1989 Transition (a) DISCLOSURE AS CONDITION OF RECEIPT OF FUNDS — The President-elect and Vice-President-elect (as a condition for receiving services under section 3 and for funds provided under section 6(a)(1) of the Presidential Transition Act of 1963 (3 U.S.C. 102 note) shall provide an estimate to the Administrator of General Services of the aggregate value of in-kind contributions made during the period beginning on November 9, 1988, through January 20, 1989, received for transition activities for — (1) transportation; (2) hotel and other accommodations; (3) suitable office space; and (4)f urniture, furnishings, office machines and equipment, and office supplies. (b) FORM AND AVAILABILITY OF ESTIMATES — The estimates made under subsection (a) shall be — (1) in the form of a report to the Administrator of General Services within 90 days after January 20, 1989; and (2) made available to the public by the Administrator upon receipt by the Administrator.

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Sec 6. Travel and Transportation Expenses

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Section 5723 of title 5, United States Code, is amended — (1) in, subsection (a)(1), by striking out or (B) and inserting or (C); (2) in subsection (a), by adding at the end thereof. "In the case of an appointee described in paragraph (1) who has performed transition activities under section 3 of the Presidential Transition Act of 1963 (3 U.S.C. 102 note), the provisions of paragraphs (1) and (2) may apply to travel and transportation expenses from the place of residence of such appointee (at the time of relocation following the most recent general elections held to determine the electors of the President) to the assigned duty station of such appointee"; and (3) in subsection (c), by adding at the end thereof the following: "In the case of an appointee described in subsection (a)(1) who has performed transition activities under section 3 of the Presidential Transition Act of 1963 (3 U.S.C. 102 note), the travel or transportation shall take place at any time after the most recent general elections held to determine the electors of the President."

Sec. 7. Executive Agency Vacancies (a) APPLICATION OF VACANCY PROVISIONS TO EXECUTIVE AGENCIES. — (1) Section 3345 of title 5, United States Code, is amended by striking out "Executive department" and inserting in lieu thereof ' !Executive agency (other than the General Accounting Office)". (2) The heading for section 3345 of title 5, United States Code, is amended to read as follows:

"§3345. Details; to Office of Head of EXECUTIVE Agency or Military Department" (3) The table of section headings for chapter 33 of title 5, United States Code, is amended by amending the item relating to section 3345 to read as follows: 3345. Details; to office of head of Executive agency or military department. (b) EXTENSION OF TIME FOR INTERIM SERVICE. — Section 3348 of title 5, United States Code, is amended to read as follows:

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§3348. Details; Limited in Time (a) A vacancy caused by death or resignation may be filled temporarily under section 3345, 3346, or 3347 of this title for not more than 120 days except that — (1) if a first or second nomination to fill such vacancy has been submitted to the Senate, the position may be filled temporarily under section 3345, 3346, or 3347 of this title (A) until the Senate confirms the nomination; or (B) until 120 days after the date on which either the Senate rejects the nomination or the nomination is withdrawn; or (2) if the vacancy occurs during an adjournment of the Congress sine die, the position may be filled temporarily until 120 days after the Congress next convenes, subject thereafter to the provisions of paragraph (1) of this subsection. (b) Any person filling a vacancy temporarily under section 3345, 3346, or 3347 of this title whose nomination to fill such vacancy has been submitted to the Senate may not serve after the end of the 120-day period referred to in paragraph (I)(B) or (2) of subsection (a) of this section, if the nomination of such person is rejected by the Senate or is withdrawn." References H.R. 3932 (and S. 2037), 100th Congress H.Rept. 100-532, from the Committee on Government Operations S.Rept. 100-317, from the Committee on Governmental Affairs Mar. 16, 1988 — hearings held by House Government Operations Subcommittee on Legislation and National Security. Sept. 17, 1987, Oct. 14, 1987, and Feb. 17, 1988 — hearings held by Senate Committee on Governmental Affairs Mar. 31, 1988 — H.R. 3932 passed by the House Apr. 26, 1988 — S. 2037 passed by the Senate. Apr. 28, 1988 — H.R. 3932 passed by the Senate, amended, in lieu of S. 2037. July 26, 1988 — House concurred in Senate amendment, with an amendment. Aug. 2, 1988 — Senate concurred in House amendment Aug. 17, 1988 — signed into law as P.L. 100-398.

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PRESIDENTIAL TRANSITION ACT OF 1963, AMENDMENTS: P.L. 94-499, OCTOBER 14, 1976; 90 STAT. 2380

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AN ACT To revise the appropriation authorization for the Presidential Transition Act of 1963, and for other purposes. Be it enacted by the Senate and House of Representatives,8 of the United States of America in Congress assembled, That (a) section 5 of the Presidential Transition Act of 1963 (3 U.S.C. 102 note) is amended to read as follows: "SEC. 5. There are hereby authorized to be appropriated to the Administrator such funds as may be necessary for carrying out the purposes of this Act, except that with respect to any one Presidential transition — "(1) not more than $2,000,000 may be appropriated for the purposes of providing, services facilities to the President-elect and Vice President-elect under section 3, and "(2) not more than $1,000,000 may be appropriated for the purposes of providing services and facilities to the former President and former Vice President under section 4. The President shall include in the budget transmitted to Congress, for each year in which his regular term of office will expire, a proposed appropriation for carrying out the purposes of this Act." (b) Section 3(a)(2) of the Presidential Transition Act of 1963 is amended by striking out "at rates not to exceed $100 per diem for individuals". SEC. 2. Section (a)(2) of the Presidential Transition Act of 1963 is amended by striking out "or nonreimbursable". SEC. 3. The amendment made by the first section of this Act shall take effect on — (1) the date of the enactment of this Act, or (2)October 1, 1976, whichever is later.

References H.R. 14886, 94th Congress H.Rept. 94-1442, from the Committee on Government Operations S.Rept. 94-1322, from the Committee on Government Operations

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Stephanie Smith Aug. 4, 1976 — hearings held by House Government Operations Subcommittee on Legislation and National Security. Sept. 1, 1976 — passed House. Sept. 30, 1976 — passed Senate. Oct. 14, 1976 — signed into law as P.L. 94-499.

PRESIDENTIAL TRANSITION ACT OF 1963: P.L. 88-277, MARCH 7, 1964; 78 STAT. 153 AN ACT

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To promote the orderly transfer of the executive power in connection with the expiration of the term of office of a President and the inauguration of a new President. Be it enacted by the Senate and House of Representatives of the United States ofAmerica in Congress assembled, That this Act may be cited as the Presidential Transition Act of 1963.

Purpose of this Act SEC. 2. The Congress declares it to be the purpose of this Act to promote the orderly transfer of executive power in connection with the expiration of the term of office of a President and the inauguration of a new President. The national interest requires that such transitions in the office of President be accomplished so as to asure continuity in the faithful execution of the laws and in the conduct of the affairs of the Federal Government, both domestic and foreign. Any disruption occasioned by the transfer of the executive power could produce results deterimental to the safety and well of the United States and its people. Accordingly, it is the intent of the Congress that appropriate actions be authorized and taken to avoid or minimize any disruption. In addition to the specific provisions contained in this Act directed toward that purpose, it is the intent of the Congress that all officers of the Government so conduct the affairs of the Government for which they exercise responsibility and authority as (1) to be mindful of problems occasioned by transitions in the office of President, (2) to take appropriate lawful steps to avoid or minimize disruptions that might be

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occasioned by the transfer of the executive power, and (3) otherwise to promote orderly transitions in the office of President.

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Services and Facilities Authorized to Be Provided to PresidentsElect and Vice-Presidents-Elect SEC. 3. (a) The Administration of General Services, referred to hereafter in this Act as "the Administrator," is authorized to provide, upon request, to each President-elect and each Vice- President, for in connection with his preparations for the assumption of official duties and President or Vice President necessary services and facilities, including — (1) Suitable office space appropriately equipped with furniture, furnishings, office machines and equipment, and office supplies, as determined by the Administrator, after consultation with the President-elect, the Vice-President-elect, or their designee provided for in subsection (e) of this section, at such place or places within the United States as the President- elect or Vice-President-elect shall designate; (2) Payment of the compensation of members of office staffs designated by the President- elect or Vice-President-elect at rates determined by them not to exceed the rate provided by the Classification Act of 1949, as amended, for grade GS-18: Provided, That any employee of any agency of any branch of the Government may be detailed to such staffs on a reimbursable or nonreimbursable basis with the consent of the head of the agency; and while so detailed such employee shall be responsible only to the President-elect or Vice-President-elect for the performance of his duties: Provided further, That any employee so detailed shall continue to receive the compensation provided pursuant to law for his regular employment, and shall retain the rights and privileges of such employment without interruption. Notwithstanding any other law, persons receiving compensation as members of office staffs under this subsection, other than those detailed from agencies, shall not be held or considered to be employees of the Federal Government except for purposes of Civil Service Retirement Act, the Federal Employees' Compensation Act, the Federal Employees' Group Life Insurance Act of 1954, and the Federal Employee Health Benefits Act of 1959;

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Stephanie Smith (3) Payment of expenses for the procurement of services of experts or consultants or organizations thereof for the President-elect or VicePresident-elect, as authorized for the head of any department by section 15 of the Administrative Expenses Act of 1946, as amended (5 U. S.C. 55a), at rates not to exceed $100 per diem for individuals; (4) Payment of travel expenses and subsistence allowances, including rental of Government or hired motor vehicles, found necessary by the President-elect or Vice-Presidentelect, as authorized for persons employed intermittently or for persons serving without compensation by section 5 of the Administrative Expenses Act of 1946, as amended (5 U. S. C. 73b-2), as may be appropriate; (5) Communications services found necessary by the President-elect or Vice-President elect; (6) Payment of expenses for necessary printing and binding, notwithstanding the Act of January 12, 1895, and the Act of March 1, 1919, as amended (44 U. S. C. 111); (7) Reimbursement to the postal revenues in amounts equivalent to the postage that would otherwise be payable on mail matter referred to in subsection (d) of this section. (b) The Administration shall expend no funds for the provision of services and facilities under this Act in connection with any obligations incurred by the President-elect or Vice-President-elect before the day following the date of the general elections held to determine the electors of President and Vice President in accordance with title 3, United States Code, sections 1 and 2, or after the inauguration of the President-elect as President and the inauguration of the Vice-President-elect as Vice President. (c) The terms "President-elect" and "Vice-President-elect" as used in this Act shall mean such persons as are the apparent successful candidates for the office of President and Vice President, respectively, as ascertained by the Administrator following the general elections held to determine the electors of President and Vice President in accordance with title 3, United States Code, sections 1 and 2. (d) Each President-elect shall be entitled to conveyance within the United States and its territories and possessions of all mail matter, including airmail, sent by him in connection with his preparations for the assumption of official duties as President, and such mail matter shall be transmitted as penalty mail as provided in title 39, United States Code, section 4152. Each Vice- President-elect shall be entitled to conveyance

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within the United States and its territories and possessions of all mail matter, including airmail, sent by him under his written autograph signature in connection with his preparation for the assumption of official duties as Vice President. (e) Each President-elect and Vice President-elect may designate to the Administrator an assistant authorized to make on his behalf such designations or findings of necessity as may be required in connection with the services and facilities to be provided under this Act. Not more than 10 per centum of the total expenditures under this Act for any President-elect or Vice-President-elect may be made upon the basis of a certificate by him or the assistant designated by him pursuant to this section by him or the assistant designated by him pursuant to this section that such expenditures are classified and are essential to the national security, and that they accord with the provisions of subsections (a), (b), and (d) of this section. (f) In the case where the President-elect is the incumbent President or in the case where the Vice- President-elect is the incumbent Vice President, there shall be no expenditures of funds for the provision of services and facilities to such incumbent under this Act, and any funds appropriated for such purposes shall be returned to the general funds of the Treasury.

Services and Facilities Authorized to Be Provided to Former Presidents and Former Vice Presidents SEC. 4. The Administrator is authorized to provide, upon request, to each former President and each former Vice President, for a period not to exceed six months from the date of the expiration of his term of office as President or Vice President, for use in connection with winding up the affairs of his office, necessary services and facilities of the same general character as authorized by this Act to be provided to Presidents-elect and Vice Presidents-elect. Any person appointed or detailed to serve a former President or former Vice President under authority of this section shall be appointed or detailed in accordance with, and shall be subject to, all of the provisions of section 3 of this Act applicable to persons appointed or detailed under authority of that section. The provisions of the Act of August 25, 1958 (72 Stat. 838; 3 U.S.C. 102, note), other than subsections (a) and (e) shall not become effective with respect to a former President until six months after the expiration of his term of office as President.

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Authorization of Appropriations SEC. 5. There are hereby authorized to be appropriated to the Administrator such funds as may be necessary for carrying out the purposes of this Act but not to exceed $900,000 for any one Presidential transition, to remain available during the fiscal year in which the transition occurs and the next succeeding fiscal year. The President shall include in the budget transmitted to the Congress, for each fiscal year in which his regular term of office will expire, a proposed appropriation for carrying out the purposes of this Act.

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References H.R. 4638, 88th Congress H.Rept. 88-301, from Committee on Government Operations S.Rept. 88-448, from Committee on Government Operations Conference Committee Report, H.Rept. 88-1148 April 24, 1963 — hearings held by House Government Operations Subcommittee on Executive and Legislative Reorganization July 25, 1963 — passed the House Oct. 17, 1963 — passed the Senate, with amendments Feb. 24, 1964 — Conference Report adopted and passed the Senate Feb. 25, 1964 — Conference Report adopted and passed the House Mar. 7, 1964 — signed into law as P.L. 88-277

ENDNOTES 1

Alvin S. Felzenberg, ed., The Keys to a Successful Presidency (Washington: Heritage Foundation, 2000), p. 7. For a detailed discussion of early presidential transitions, see also Laurin L. Henry, Presidential Transitions (Washington: Brookings Institution, 1960). A discussion of the four most recent transitions can be found in John P. Burke, Presidential Transitions: From Politics to Practice (Colorado: Lynne Rienner Publishers, 2000). 2 P.L. 88-277, March 4, 1964; 78 Stat. 153; 3 U.S.C. § 102 note. Although signed in 1964, the act carries the 1963 designation. 3 P.L. 94-499, Oct. 14, 1976; 90 Stat. 2380. 4 P.L. 100-398, Aug. 17, 1988; 102 Stat. 985.

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P.L. 106-293, Oct. 13, 2000. Establishing the President's Commission on Campaign Costs, E.O. 10974, Nov. 8, 1961, 3 CFR 496 (1959-1963 Compilation). 7 U.S. President's Commission on Campaign Costs, Financing Presidential Campaigns, Apr. 1962 (Washington: GPO, 1962), p. 36. 8 Ibid., pp. 23-24. 9 Ibid., p. 24. 10 President John F. Kennedy, 1962, Public Papers of the Presidents, Letter to the President of the Senate and to the Speaker of the House Transmitting Bills to Carry Out Recommendations of the Commission on Campaign Costs, May 29, 1962 (Washington: GPO, 1963), p. 446. 11 3 U.S.C. § 102 note. 12 U.S. Congress, Senate Committee on Government Operations, Presidential Transition Act, Distribution of Federal Surplus Property, and Records Management, hearings, 94th Cong., 2nd sess., Sept. 13, 1976 (Washington: GPO, 1976), p. 3. 13 U.S. General Accounting Office, Federal Assistance for Presidential Transitions, Nov. 16, 1970 (Washington: GPO, 1970), p. 24. 14 Ibid., p. 3. 15 U.S. General Accounting Office, The Reagan-Bush Transition Team's Activities at Six Selected Agencies, Jan. 28, 1982 (Washington: GPO, 1982), p. 3. 16 GAO, Federal Assistance for Presidential Transitions, pp. 41-42. 17 U.S. General Accounting Office, Audit of Ford-Carter Presidential Transition Expenditures, Dec. 23, 1977 (Washington: GPO, 1977), p. i. 18 GAO, Federal Assistance for Presidential Transitions, p. 45. 19 U.S. General Accounting Office, Recommendations for Changes in Legislation, Dec. 24, 1975 (Washington: GPO, 1975), p. 2. 20 U.S. Department of Justice, Office of Assistant Attorney General, letter to the Administrator of the General Services Administration from Mary C. Lawton, Acting Assistant Attorney General, Office of Legal Counsel, Washington, DC, Aug. 15, 1974. 21 P.L. 93-554, Dec. 27, 1974; 88 Stat. 1771, at 1782. An additional amount of $100,000 was also appropriated to former President Nixon for pension, allowances, and office staff under the Former Presidents Act (3 U.S.C. 102 note). 22 GAO, Recommendations for Changes in Legislation, pp. 5-6. 23 P.L. 94-499, Oct. 14, 1976; 90 Stat. 2380; 3 U.S.C. 102 note. 24 GAO, The Reagan-Bush Transition Team's Activities at Six Selected Agencies, p. 3. 6

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GAO, Audit of Ford-Carter Presidential Transition Expenditures, p. ii. Ibid., pp. 11-12. 27 Data obtained from General Services Administration, Nov. 28, 1990. 28 Ibid. 29 GAO, Reagan-Bush Transition Team's Activities at Six Selected Agencies, p. iv. 30 U. S . General Accounting Office, Audit of Reagan Presidential Transition Expenditures, March 2, 1981 (Washington: GPO, 1981), p. 1. 31 U.S. Congress, Senate, Presidential Transitions Effectiveness Act of 1988, April 20, 1988, S.Rept. 100-317, 100th Cong., 2nd sess. (Washington: GPO, 1988), p. 10. 32 Ibid., pp. 4-5. 33 Ibid., p. 7 34 P.L. 100-398, Aug. 17, 1988; 102 Stat. 985. 35 See CRS Report 98-249, Former Presidents: Federal Pension and Retirement Benefits, by Stephanie Smith. 36 Data supplied by General Services Administration, Nov. 28, 1990. 37 Dire Emergency Supplemental Appropriations and Transfers, Urgent Supplementals, and Correcting Enrollment Errors Act of 1989, P.L. 101-45, June 30, 1989; 103 Stat. 126. 38 P.L. 101-45, June 30,1989; 103 Stat. 116; see also U.S. Congress, House, Committee on Appropriations, Subcommittee on the Treasury, Postal Service, and General Government Appropriations, Treasury, Postal Service, and General Government Appropriations for Fiscal Year 1993, part 5, Feb. 25, 1992, hearings (Washington: GPO, 1992), p. 536. 39 P.L. 102-393, Oct. 5, 1992; 106 Stat. 1729. 40 Data provided by GSA Budget Office in Oct. 23, 2000, telephone conversation. 41 114 Stat. 1035. 42 In the event Vice President Gore had become President, the $305,000 appropriation designated to him as part of the outgoing Clinton Administration would have been returned to the Treasury. He would have been entitled to the full amount of $4.27 million appropriated for the incoming President-elect. 43 H.R. 4516, section 1001, Title IV; vetoed Oct. 30, 2000. 44 P.L. 106-426, Nov. 3, 2000; 114 Stat. 1897. 45 Information received from GSA's budget office on Oct. 7, 2004. 46 U.S. Executive Office of the President, Budget of the United States Government, Fiscal Year 2005, Appendix (Washington: 2004), p. 972. 47 Ibid.

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U.S. Congress, House Committee on Appropriations, Transportation, Treasury, and Independent Agencies Appropriations Act, 2005, report to accompany H.R. 5025, 108th Cong., 2nd sess., H.Rept. 108-671 (Washington: GPO, 2004), p. 146. 49 U.S. Congress, Senate Committee on Appropriations, Transportation, Treasury, and Independent Agencies Appropriations Act, 2005, report to accompany S. 2806, 108th Cong., 2nd sess., S.Rept. 108-342 (Washington: GPO, 2004), p. 186. 50 118 Stat. 3253. 51 P.L. 108-458, Dec. 17, 2004; 118 Stat. 3638. 32 118 Stat. 3856. 33 U.S. Office of Management and Budget, Budget of the United States Government, Fiscal Year 2009. Appendix (Washington: GPO, 2008), p. 1075. 54 Laurin L. Henry, Presidential Transitions (Washington: The Brookings Institution, 1960), p. 58. This book provides an in-depth study of presidential transitions before 1960. 55 President Harry S. Truman, 1952-1953, Public Papers of the Presidents, Letter of Invitation to the President-Elect, Nov. 6, 1952 (Washington: GPO, 1953), pp. 1048-1049. 56 Henry, Presidential Transitions, pp. 513-514. 57 David T. Stanley, Changing Administrations (Washington: Brookings Institution, 1965), p. 6. 58 "Pre-Inaugural Task Forces Unprecedented in History," Congressional Quarterly Weekly Report, vol. 19, April 7, 1961, p. 620. 59 Ibid. 60 Ibid., p. 621. 61 Ibid. 62 Ibid. 63 "Presidential Transition," Congressional Quarterly Weekly Report, Sept. 20, 1968, vol. 26, p. 2506. 64 Alan L. 0 tten, "Nixon Works to Ensure an Efficient Take-Over If He Gains Presidency," Wall Street Journal, Oct. 25, 1968, p. 1. 65 Carroll Kilpatrick, "Nixon Won't Flood Congress with New Legislation, Aides Say," Washington Post, Dec. 22, 1968, pp. Al and A6. 66 James M. Naughton, "The Change in President: Plans Began Months Ago," New York Times, Aug. 26, 1974, p. 1. 67 Morton Mintz and Stuart Auerbach, "Ford Solicits Suggestions on No. 2 Man," Washington Post, Aug. 11, 1974, p. A 1 .

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Fred Austin, "Ford Begins Move to Reshape his Administration,"National Journal, Dec. 14, 1974, vol. 7, p. 1877. 69 Laurence Stern, "Transition Unit at Work for Carter," Washington Post, Aug. 9, 1976, p. Al. 70 Washington Post, Aug. 9, 1976, p. A2. 71 Ibid. 72 Fredrick Smith, "Georgian Is Urged to Appoint 100 to Prepare Washington Takeover," New York Times, Nov. 4, 1976, p. 21. 73 Jules Witcover, "Blueprint for Transition Going to Carter," Washington Post, Nov. 4, 1976, p. A18. 74 Bruce F. Freed, "New Heads for Many Regulatory Bodies Expected to Be Named at Once by Carter," Wall Street Journal, Nov. 11, 1976, p. 3. 75 Lou Cannon, "Reagan Promises to Heal and Unify," Washington Post, Nov. 5, 1980, p. A20. 76 Dick Kirschten, "The Reagan Team Comes to Washington, Ready to Get Offto a Running Start," National Journal, Nov. 15, 1980, p. 1926. 77 Michael Getler, "Reagan Advisers Setting Up Special Teams to Oversee Transition," Washington Post, Nov. 11, 1980, p. Al. 78 Lee Lescaze, "Transition Team Is Announced," Washington Post, Nov. 7, 1980, p. Al. 79 Lee Lescaze, "The Changing of the Guard Commences: Transition Team is Announced," Washington Post, Nov. 7, 1980, pp. Al, A3. 80 T. R. Reid and Lee Lescaze, "Carter to Defer Action on Major Policy Issues," Washington Post, Nov. 13, 1980, p. Al. 81 . David Hoffman, "Bush Names Baker Secretary of State," Washington Post, Nov. 10, 81 1988, pp. Al and A38. 82 Judith Havemann, "Bush to Get 2,500 Conservative Resumes," Washington Post, Nov. 15, 1988, p. A17. 83 Jessica Lee, "Bush Taps Reagan Aides for Cabinet, Budget," USA Today, Nov. 22, 1988, p. 8A. 84 Ibid. 85 Jessica Lee, "Agencies Told to Give Data to Transition Team," USA Today, Nov. 23, 1988, p. 6A. 86 Adam Nagourney and Bill Nichols, "Clinton Camp Crafts Lineup," USA Today, Oct. 20, 1992, p. 2A. 87 George Bush, "The Way We See It ... The People Have Spoken," Washington Post, Nov. 4, 1992, p. A22. 88 Bill Nichols, "Bush Cooperation," USA Today, Nov. 6, 1992, p. 5A.

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Thomas W. Lippmen, "Taking Full Responsibility for Loss," Washington Post, Nov. 8, 1992, p. Al. 90 Adam Nagourney and Bill Nichols, "Clinton Shifts Transition to High Gear," USA Today, Nov. 6, 1992, p. Al. 91 Ruth Marcus and Al Kamen, "Clinton Names Transition Chiefs," Washington Post, Nov. 7, 1992, p. Al. 92 Executive Office of the President, Memorandum from Chief of Staff John Podesta for the Heads of Executive Departments and Agencies, "Presidential Transition Guidance," Nov. 13, 2000. 93 U.S. General Services Administration, Office of Communications statement released Nov. 27, 2000. 94 Rep. Dante Fascell, "Presidential Transition Act of 1963," remarks in the House, Congressional Record, vol. 109, July 25, 1963, p. 12238. 95 U.S. General Services Administration, Office of Communications, Media Advisory Presidential Transition Fact Sheet, Nov. 17, 2000. 96 "Transcript of Former Secretary Richard Cheney's News Conference," Washington Post, Nov. 27, 2000, p. A9. 97 U.S. Congress, House Committee on Government Reform, Subcommittee on Government Management, Information, and Technology, Transitioning to a New Administration: Can the Next President be Ready? hearing, 106th Cong., 2nd sess., Dec. 4, 2000 (Washington: GPO, 2001), p. 3. 98 U.S. General Accounting Office, Presidential Transition: Challenges and Opportunities, Dec. 4, 2000 (Washington: GPO, 2000), p. 1. 99 U.S. General Services Administration, Office of Communications statement released Dec. 13, 2000. 100 Mike Allen and Dana Milbank, "Bush Reaches Out to Democrats," Washington Post, Dec. 15, 2000, p. Al. 101 Mike Allen and Dana Milbank, "Cabinet Chosen Quietly, Quickly," Washington Post, Jan. 7, 2001, p. Al. 102 P.L. 106-426, Nov. 3, 2000. 103 James P. Pfiffner, The Strategic Presidency: Hitting the Ground Running (Chicago, Dorsey Press, 1988); pp. 9-18, see also Robert K. Landers, The Dangers in Presidential Transitions (Washington: Editorial Research Reports, 1988), p. 1. 104 U.S. Congress, Senate Committee on Governmental Affairs, Presidential Transitions Effectiveness Act of 1988, p. 6. 105 Ibid., see also: Presidential Transition Effectiveness Act, hearings, 100th Cong., 1st and 2nd sess., Sept. 17, Oct. 14, 1987, and Feb. 17, 1988 (Washington: GPO, 1988), pp. 23-38.

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U.S. Congress, Senate Committee on Governmental Affairs, Presidential Transition Act of 2000, 106th Cong., 2nd sess., S.Rept. 106-348 (Washington: GPO, 2000), p. 2. 107 Alvin S. Felzenberg, ed., The Keys to a Successful Presidency, p. 18. 108 John P. Burke, Presidential Transitions: From Politics to Practice, p. 96. 109 Carl Brauer, "Lost in Transition," The Atlantic Monthly, Nov. 1988, p. 74. 110 John P. Burke, Presidential Transitions: From Politics to Practice, p. 225. 111 National Academy of Public Administration, The Executive Presidency: Federal Management for the 1990s (Washington: National Academy of Public Administration, 1988), p. 5. 112 Kenneth W. Thompson, ed., Presidential Transitions: The Reagan to Bush Experience (University of Virginia: University Press of America, 1993), p. 5. 113 Landers, "Dangers in Presidential Transitions," Editorial Research Reports, pp. 528-529. 114 Bill Nichols, "Clinton Sets New Sights," USA Today, Nov. 5, 1992, p. Al. 115 Wallace Earl Walker and Michael R. Reopel, "Strategies for Governance: Transition and Domestic Policymaking in the Reagan Administration,"Presidential Studies Quarterly, vol. 16, fall 1986, p. 736. 116 Walker and Reopel, "Strategies for Governance: Transition and Domestic Policymaking in the Reagan Administration," p. 739.

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In: Presidential Transitions: Backgrounds and Issues ISBN 978-1-60741-124-6 Editor: Ida E. Burkhalter, p. 49-89 © 2009 Nova Science Publishers, Inc.

Chapter 2

PRESIDENTIAL TRANSITIONS: ISSUES INVOLVING OUTGOING AND INCOMING ADMINISTRATIONS* L. Elaine Halchin Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

ABSTRACT The smooth and orderly transfer of power can be a notable feature of presidential transitions, and a testament to the legitimacy and durability of the electoral and democratic processes. Yet, at the same time, a variety of events, decisions, and activities contribute to what some may characterize as the unfolding drama of a presidential transition. Interparty transitions in particular might be contentious. Using the various powers available, a sitting President might use the transition period to attempt to secure his legacy or effect policy changes. Some observers have suggested that, if the incumbent has lost the election, he might try to enact policies in the waning months of his presidency that would “tie his successor’s hands.” On the other hand, a President-elect, eager to establish his policy agenda and populate his Administration with his appointees, will be involved in a host of decisions and activities, some of which might modify or overturn the previous Administration’s actions or decisions.

*

Excerpted from CRS Report for Congress, Order Code RL34722, dated October 23, 2008.

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Both the incumbent and the newly elected President can act unilaterally, through executive orders, recess appointments, and appointments to positions that do not require Senate confirmation. Additionally, a President can appoint individuals to positions that require Senate confirmation, and a presidential administration can influence the pace and substance of agency rulemaking. The disposition of government records (including presidential records and vice presidential records) and the practice of “burrowing in” (which involves the conversion of political appointees to career status in the civil service) are two activities associated largely with the outgoing President’s Administration. The incumbent President may also submit a budget to Congress, or he may defer to his successor on this matter. In light of the terrorist attacks of September 11, 2001, national security is an overarching issue for presidential transitions, and national security concerns may be heightened during the transfer of power from the sitting President to his successor. Depending upon the particular activity or function, the extent and type of Congress’s involvement in presidential transitions may vary. As an example of direct involvement, the Senate confirms the President’s appointees to certain positions. On the other hand, Congress is not involved in the issuance of executive orders, but it may exercise oversight, or take some other action regarding the Administration’s activities. This report will be updated as events warrant.

Subject Areas and CRS Staff Area of Expertise

Name

Div.

Telephone

Agency Rulemaking

Rick Beth Curtis Copeland

G&F

7-8667 70632

Executive Orders

Elaine Halchin

G&F

7-0646

Government Records

Harold Relyea

G&F

7-8 679

National Security

John Rollins

FDT

7-5529

Personnel — Political to Career Conversions

Barbara Schwemle

G&F

7-8655

Political Appointments

Henry Hogue

G&F

7-0642

Submission of the President’s Budget

Robert Keith

G&F

7-8659

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INTRODUCTION

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As both an administrative and a symbolic event in American politics, presidential transitions can be notable for the smooth and orderly transfer of power from an incumbent Administration to the next President and a shift in focus — from campaigning to governing — by the incoming Administration. Yet, as William Galston and Elaine Kamarck point out, “The peaceful transfer of power from one President to the next is an enduring and gripping drama of American democracy.”1 A variety of events and actions contribute to the unfolding drama of a presidential transition. For a sitting President who is not re-elected (and barring any electoral disputes), or is serving a second term, election day marks the beginning of the end of his presidency. While some commentators would argue that a lame duck President can accomplish little during the 11 weeks between election day and inauguration day, William G. Howell and Kenneth R. Mayer offer an alternative perspective: Portraits of outgoing presidents going quietly into the night overlook an important feature of American politics, and of executive power — namely, the president’s ability to unilaterally set public policy... . Using executive orders, proclamations, executive agreements, national security directives, memoranda, and other directives, presidents have at their disposal a wide variety of means to effectuate lasting and substantive policy changes, both foreign and domestic.2

Howell and Mayer also note that an outgoing President’s level of activity during his final months in office is influenced by the party of his successor. An outgoing President whose successor is from the same political party “has little cause to hurry through a slew of last-minute directives.”3 When the opposing party is poised to regain control of the White House, however, the sitting President might “exercise these powers with exceptional zeal, making final impressions on public policy in the short time” available before inauguration day.4 Moreover, the incumbent might use the transition period to enact policies and effect changes that might stymie his successor. A curious thing happens during the last one hundred days of a presidential administration: political uncertainty shifts to political certitude. The president knows exactly who will succeed him — his policy positions, his legislative priorities, and the level of partisan support he will enjoy within the new Congress. And if the sitting president (or his party) lost the election, he has every

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reason to hurry through last-minute public policies, doing whatever possible to tie his successor’s hands.5

During the 20th and 21st centuries, and beginning with Theodore Roosevelt, who took office in 1901, there have been 17 presidential transitions, 10 of which were interparty transitions: Woodrow Wilson, Warren G. Harding, Franklin D. Roosevelt, Dwight D. Eisenhower, John F. Kennedy, Richard M. Nixon, Jimmy Carter, Ronald W. Reagan, William J. Clinton, and George W. Bush. Regardless of an incumbent President’s intentions, however, his decisions and actions in several areas — as well as the activities of his Administration — could affect his successor, and could be a cause for congressional concern. Acting unilaterally, a President can issue executive orders, appoint individuals to positions that do not require Senate confirmation (PA positions), and make recess appointments. Additionally, the President can appoint individuals to positions which require Senate approval (PAS positions); the Administration can influence the pace of agency rulemaking; significant decisions regarding presidential and vice presidential records may be made; and some political appointees might be converted to civil service positions (in a practice known as “burrowing in”). Depending upon the timing, frequency, content (in the case of executive orders and regulations), and other salient features of certain presidential or Administration actions or decisions, some may question the propriety of an outgoing Administration’s actions during the presidential transition period. Certain decisions or actions could affect the incoming President, “forcing [him] to choose between accepting objectional policies as law or paying a steep political price for trying to change them.”6 In addition to the possibility of having to address certain actions taken by the outgoing Administration, a new President, and his staff, have to deal with “the challenges of moving from a campaign to a governing stance,” which can include handling “the issues of staffing, management, agenda setting, and policy formulation... .”7 Eager to hit the ground running, an incoming President can use the same tools his predecessor did during the transition period — for example, executive orders, agency rulemaking, and political appointments — to establish his policy agenda, populate the executive branch with his appointees, and possibly overturn or modify some of his predecessor’s policies and actions. If the sitting President defers to his successor regarding the submission of a budget, this is an additional task for the newly elected President. Alternatively, if the incumbent submits a budget, his successor may revise it. The significance of the transition period for the President- elect cannot be understated: “Since the advent of the modern presidency under Franklin Delano Roosevelt (FDR), the actions that

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presidents-elect undertake before inauguration day have been seen by scholars, journalists, other observers, and even presidents themselves as critical in determining their successes — and failures — once in office.”8 The Congress has a role to play in presidential transitions, though the extent and type of its involvement varies. It is most directly involved in the confirmation of presidential appointees (that is, individuals appointed to PAS positions), the budget process, and, under certain circumstances, agency rulemaking. Other Administration activities, such as the issuance of executive orders and the disposition of presidential records and vice presidential records, may be of interest to Congress, and, in some cases, might become the subject of congressional oversight or other congressional action. Even the practice of “burrowing in,” some would suggest, might warrant congressional interest. Finally, an overarching issue for presidential transitions, in light of the terrorist attacks of September 11, 2001, and continued concerns about terrorism, is national security. While this is an ongoing issue for the nation, national security concerns might be heightened during presidential transitions. Each of the following sections of this report focuses on a particular aspect of presidential transitions: agency rulemaking, executive orders, government records, national security considerations, personnel (political to career conversions), political appointments, and submission of the President’s budget.

AGENCY RULEMAKING Federal regulation, like taxing and spending, is one of the basic tools of government used to implement public policy. Regulations generally start with an act of Congress, and are the means by which statutes are implemented and specific requirements are established. Federal agencies issue more than 4,000 final rules each year on topics ranging from the timing of bridge openings to the amount of arsenic and other contaminants that is permitted in drinking water. The (off-budget) costs and benefits associated with all federal regulations have been a subject of great controversy. Some have estimated those regulatory costs as more than a trillion dollars — greater than all federal domestic discretionary spending. Estimates of the benefits of federal regulations are even higher.9

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“Midnight Rulemaking” At the conclusion of most recent presidential administrations, the number of final rules issued by federal agencies increases noticeably — a phenomenon that has been characterized as “midnight rulemaking.”10 As one observer stated, putting rules into effect before the end of a presidency is “a way for an administration to have life after death,”11 for the only way that a subsequent administration can change or eliminate the rule is by going back through the often lengthy rulemaking processes that are required by the Administrative Procedure Act (5 U.S.C. §551 et seq.) and various other statutes and executive orders.12 When there has been a change in party control of the presidency, recent incoming Presidents have responded to this phenomenon by stopping or delaying new agency rulemaking, and by attempting to reverse certain rules. For example, a few weeks after he took office, President Reagan issued Executive Order 12291 which, among other things, generally required covered agencies to “suspend or postpone the effective dates of all major rules that they have promulgated in final form as of the date of this Order, but that have not yet become effective.”13 President Clinton also imposed a moratorium on rules issued at the end of the first Bush Administration. As discussed below, the current Bush Administration delayed the implementation of many rules issued in the last months of the Clinton Administration and ultimately reduced the number that took effect. It has also attempted to protect rules issued in its own last months from the possibility of similarly being rendered ineffective by establishing an effective date prior to the advent of the new Administration.

Card Memorandum During the final months of the Clinton Administration, federal agencies issued hundreds of final rules, many of which were expected to have a substantial impact on regulated entities. In response to this action, on January 20, 2001, the Chief of Staff and Assistant to the new President, Andrew H. Card, Jr., sent a memorandum to the heads of all executive departments and agencies generally directing them to (1) not send proposed or final regulations to the Office of the Federal Register (OFR), (2) withdraw regulations that had been sent to the OFR but not published in the Federal Register, and (3) postpone for 60 days the effective date of regulations that had been published in the Federal Register but had not yet taken effect.14 The memorandum cited the desire to “ensure that the President’s appointees have the opportunity to review any new or pending regulations.” In 2002, GAO reported that 90 final rules had their effective dates

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delayed as a result of the Card memorandum, and 15 rules still had not taken effect one year after the memorandum was issued.15

Bolten Memorandum The Bush Administration has also taken action in anticipation of possible “midnight rules” at the end of the current President’s term. On May 9, 2008, White House Chief of Staff Joshua B. Bolten issued a memorandum to the heads of executive departments and agencies stating that the Administration needed to “resist the historical tendency of administrations to increase regulatory activity in their final months.” Therefore, Bolten said that, except in “extraordinary circumstances, regulations to be finalized in this Administration should be proposed no later than June 1, 2008, and final regulations should be issued no later than November 1, 2008.”16 He also said that the Administrator of the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget would “coordinate an effort to complete Administration priorities in this final year,” and the OIRA Administrator would “report on a regular basis regarding agency compliance with this memorandum.”17

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Congressional Disapproval of “Midnight Rules” The Congressional Review Act (CRA, 5 U.S.C. §§801-808) requires federal agencies to submit all of their final rules to both houses of Congress and the Government Accountability Office (GAO) before they can take effect, and also delays the effective date of “major” rules (e.g., those with a $100 million impact on the economy) until 60 calendar days after submission and publication.18 Under this requirement, any regulation published in the Federal Register, in accordance with the Bolten memorandum, by November 1, 2008, will have taken effect before the 111th Congress begins and the next President takes office in January 2009. As a result, the Bolten memorandum may also have the effect of preventing the next presidential administration from doing what was done via the Card memorandum — forestalling the implementation of rules published during the previous administration by delaying their effective dates or withdrawing them before they can take effect. However, even if they have taken effect, many rules submitted before the Bolten memorandum deadline will be subject to congressional disapproval in the 111th Congress.19 The CRA established a special set of expedited or “fast track” legislative procedures, primarily in the Senate, through which Congress may enact joint resolutions disapproving agencies’ final rules. Although the general powers

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of Congress permit it to overturn agency rules by legislation, the CRA is unique in permitting the use of expedited procedures for this purpose. If a rule is disapproved through the CRA procedures, the act specifies not only that the rule “shall not take effect” (or shall not continue, if it has already taken effect), but also that the rule may not be reissued in a “substantially” similar form without subsequent statutory authorization. Once a rule has been submitted to Congress, Members have 60 “days of continuous session” to introduce a resolution of disapproval.20 The CRA also provides that, if Congress adjourns its annual session sine die less than 60 “legislative days” (House of Representatives) or “session days” (Senate) after a rule is submitted to it, then the rule is carried over to the next session of Congress and treated as if it had been published in the Federal Register on the 1 5th legislative or session day after Congress reconvenes.21 The purpose of this provision is to ensure that both houses of Congress have sufficient time to consider disapproving rules submitted during this end-of-session “carryover period.” In any given year, the carryover period begins after the 60th legislative day in the House or session day in the Senate before the sine die adjournment, whichever date is earlier. The renewal of the CRA process in the following session occurs even if no resolution to disapprove the rule had been introduced during the session when the rule was submitted. Although the exact starting point for the CRA carryover period in the second session of the 1 10th Congress can be determined only after sine die adjournment has taken place, the likely date or range of dates may be illuminated by examining congressional activity in prior years. Across all sessions of Congress since the CRA was enacted in 1996 (the second session of the 1 04th Congress), the starting point for the carryover period was always determined by the schedule of the House of Representatives, and was always earlier in the second session of Congress (i.e., during election years) than in the first session. In those second sessions of Congress, the starting points ranged from May 12 to June 23, with the median starting point being June 7 (i.e., half occurring before, half after). If Congress follows this general pattern in the second session of the 110th Congress, the data suggest that any final rule submitted to Congress after June 2008 may be carried over to the first session of the 111th Congress, and may be subject to a resolution of disapproval during that session. However, the starting point for the carryover period could slip to late September or early October if an unprecedented level of congressional activity occurs late in the session. Even without the CRA, though, Congress can stop agency rulemaking in other ways. For example, each year, Congress includes provisions in appropriations legislation prohibiting rulemaking within particular policy areas,

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preventing particular proposed rules from becoming final, and prohibiting or affecting the implementation or enforcement of rules.22 However, unlike disapprovals under the CRA, the regulatory requirements that have been put into effect are not rescinded, and the agency is not prohibited from issuing a substantially similar regulation in the future.

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EXECUTIVE ORDERS Concerns about the volume, timing, and content of executive orders may be heightened during presidential transitions, particularly during the months leading up to the inauguration. The perception, if not necessarily the reality, exists that an outgoing President’s inclination to act unilaterally increases during the transition period. A President’s decision to use executive orders may be based on practical, political, or personal reasons, or any combination thereof. Executive orders are a significant vehicle for unilateral action by the President: they have the force and effect of law — unless voided or revoked by congressional, presidential, or judicial action — and they combine “the highest levels of substance, discretion, and direct presidential involvement.”23 Being able to act unilaterally enables a President to establish control over policymaking. Presidents are sometimes aided in this endeavor by the proliferation and ambiguity of statutes, which increase their opportunities for justifying presidential action.24 Another appealing feature of executive orders is that they allow Presidents to act “quickly, forcefully, and (if they like) with no advance notice.”25 Capitalizing on these features enables Presidents to seize the initiative on an issue, shape the national agenda, and force others to respond. For practical or political reasons, Presidents may choose to use executive orders to circumvent a Congress that they perceive as hostile to their policies, after considering whether the Congress is likely to overturn a particular executive order,26 or as moving too slowly.27 Executive orders suit the needs of an outgoing President who wants to establish or change policy, or is striving to secure his legacy. Howell and Mayer have noted that when a President’s successor belongs to the opposition political party, “he has every reason to hurry through last-minute public policies, doing whatever possible to tie his successor’s hands.”28 An outgoing President’s use of unilateral directives, such as executive orders, might be greeted with criticism from some quarters. Some scholars note that the “directives lack the sort of legitimacy that pre-election activity has, because by definition they are issued after a president (and, in many cases, his party) has been repudiated at the polls.

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Moreover, there are no opportunities for democratic accountability, because, again, voters do not have a subsequent chance to express their approval or disapproval.”29 An incoming President, who is eager to act quickly on his policy agenda, seeking to modify or overturn certain of his predecessor’s actions, or distinguish himself from his predecessor, particularly when they are from different parties, would find executive orders an effective way to accomplish these objectives.30 He might be stymied, though, in his efforts to amend his predecessor’s actions: “Occasionally, presidents cannot alter orders set by their predecessors without paying a considerable political price, undermining the nation’s credibility, or confronting serious legal obstacles.”31 Table 1. Number of Executive Orders Issued During Presidential Transitions, 1977 - Present President

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George W. Bush

Incoming (First term) Jan. 20-Apr. 30 12 (2001)

William J. Clinton 13 (1993) George Busha

11 (1989)

Ronald Reagan 18 (1981) Jimmy Carter

16 (1977)

Pre-election Aug. 1- Lame Duck Election Election-Jan. 20 10 (2004) 10 (1996) 11 (2000) 7 (1992) 7 (1984) 9 (1988) 20 (1980)

To be determined

22 (2000-2001) 14 (1992-1993) 12 (1988-1989) 36 (1980-1981)

Sources: U.S. National Archives and Records Administration, “Executive Orders Disposition Tables,” available at [http://www.archives.gov/federal-register/executiveorders/disposition.html]. Notes: Executive orders are categorized according to signing date.

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Timing and Volume of Executive Orders Table 1 presents the number of executive orders issued by Presidents George W. Bush, William J. Clinton, George Bush, Ronald Reagan, and Jimmy Carter in each of three transition periods.32 These three periods are comparable, but not equal, in duration, which means it is more meaningful to compare data within each column rather than across columns. As incoming Presidents, G.W. Bush, Clinton, Bush, Reagan, and Carter issued comparable numbers of executive orders. The range of executive orders issued was 11 (Bush) to 18 (Reagan). During the pre-election period, four of the Presidents also issued comparable numbers of executive orders, ranging from 7 (Reagan and Bush) to 11 (Clinton). President Carter issued 20 executive orders during the pre-election period. The lame duck period shows the greatest variation. Reagan and Bush issued comparable numbers of executive orders, 12 and 14, respectively. Clinton issued 22, and Carter issued 36.33 However, nearly one-third of the executive orders President Carter signed at the end of his term had to do with the hostage crisis in Iran. A study that examined executive orders issued between April 1936 and December 1995 found that, while the start of a new President’s term does not result in a higher number of executive orders, the end of a President’s term is notable for an increase in the quantity of executive orders is sued.34 Presidents who were succeeded by a member of the other party signed “nearly six additional orders ... in the last month of their term, nearly double the average level.”35 When party control of the White House did not change following a presidential election, there was “no corresponding increase in order frequency... .”36 The author of this study asserts that these data are evidence that “executive orders have a strong policy component, as otherwise presidents would have little reason to issue such last-minute orders.” Mayer also found that reelection plays a role in the number of executive orders signed and issued. Presidents who are running for reelection issue approximately 1.4 more executive orders per month — 14 during campaign season from January 1 through the end of October — than when they are not running for reelection.37

Content of Executive Orders Executive orders range, in terms of their import for government management and operations and the principle of shared powers, and the scope of their impact, from the somewhat innocuous to the highly significant. Presidents use executive

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orders to recognize groups and organizations; establish commissions, task forces, and committees; and make symbolic statements. Presidents also use executive orders “to establish policy, reorganize executive branch agencies, alter administrative and regulatory processes, [and] affect how legislation is interpreted and implemented.”38 Unilateral action by Presidents during transition periods can, and does, result in a mixture of executive orders in terms of their significance and scope. President Carter established a committee charged with selecting a director for the Federal Bureau of Investigation and closed the federal government on Friday, December 26, 1980.39 President Bush designated the Organization of Eastern Caribbean States as a public international organization and delegated some disaster relief and emergency assistance functions from the President to the director of the Federal Emergency Management Agency.40 Turning to executive orders with policy implications, President Ronald Reagan brought agency rulemaking under the control of the Office of Management and Budget and required cost-benefit analyses be conducted for proposed rules.41 Most notable among the executive orders signed by President Carter during a transition period was a package of executive orders relating to the negotiated release of American hostages being held in Iran.42

GOVERNMENT RECORDS Agency Records Changes of presidential administrations prompt concerns that some government records might be destroyed or removed during the transition. Responsibility for the life cycle management of government records rests with the Archivist of the United States, who is the head of the National Archives and Records Administration (NARA). To address concerns about, and prevent the possible loss of, records, NARA issued a bulletin in each of the past five presidential election years, as well as in 2008, reminding agency heads of the regulations regarding proper records management. As stated in the first line of the 2008 bulletin, NARA Bulletin 2008- 02, which was issued on February 4, its purpose “is to remind heads of Federal agencies that official records must remain in the custody of the agency.”43 While departing officials and employees may remove extra copies or photocopies of records when they leave their agency “with the approval of a designated official of the agency, such as the agency’s records

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officer or legal counsel,” the bulletin reminds readers that, if such materials are otherwise restricted — for example, for reasons of personal privacy or security classification — they “must be maintained in accordance with the appropriate agency requirements.” The bulletin provides additional guidance regarding the identification of federal records, the proper storage and disposal of documentary materials, and responding to an unauthorized removal of records. There are criminal penalties for the unauthorized removal or destruction of federal records, their concealment,44 and for the unauthorized disclosure of protected records, such as those containing personally identifiable or security classified information.45 The NARA bulletin also reminds readers that “[r]ecords may be in paper, film, tape, disk, or other physical form ... [and] may be generated manually, electronically, or by other means.” Of particular concern for the 2008 transition are electronic records. “Countless federal records are being lost to posterity,” by one recent account, “because federal employees, grappling with a staggering growth in electronic records, do not regularly preserve the documents they create on government computers, send by e-mail and post on the Web.”46 While the transition does not contribute to this development, it has increased awareness of the situation. Many federal officials are reportedly saying they are unsure what electronic materials they are supposed to preserve. This confusion is causing alarm among historians, archivists, librarians, Congressional investigators and watchdog groups that want to trace the decisionmaking process and hold federal officials accountable. With the imminent change in administrations, the concern about lost records has become more acute.47 The Washington representative of the American Association of Law Librarians, whose members are major users of government records, has stated, “We expect to see the wholesale disappearance of materials on federal agency Web sites.”48 At the end of the Clinton Administration, NARA made an effort to preserve a snapshot of each agency’s primary website. A NARA memorandum of January 12, 2001, directed the departments and agencies to take a snapshot of their websites and forward it, along with supporting documentation, to NARA.49 However, NARA decided recently that it would not take such snapshots at the end of the Bush Administration, saying “Most Web records do not warrant permanent retention because they do not have ‘long-term historical value.’”50

Presidential Records For almost two centuries, Presidents took their official papers with them when they departed from office. That practice changed with the Presidential Records

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Act of 1978, which, for all presidential records created on or after January 20, 1981, states that such materials shall remain in federal custody and under the control of the Archivist when a President departs.51 The statute also covers the official records of the Vice President pertaining to the performance of executive duties.52 Presidential records are defined as “documentary materials, or any reasonably segregable portion thereof, created or received by the President, his immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise and assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.”53 The statute states, “Nothing in this Act shall be construed to confirm, limit, or expand any constitutionally-based privilege which may be available to an incumbent or former President.”54 This provision constituted a recognition of the President’s historical, constitutionally based privilege to exercise a discretion regarding the provision of information sought by another coequal branch of the federal government — the so-called executive privilege.55 On November 1, 2001, President George W. Bush issued E.O. 13233, which, among other interpretations, offered an expansive basis for the invoking of executive privilege by the incumbent President or a former President, the Vice President or a former Vice President, or a representative or group of representatives acting on behalf of a former President.56 The order also reversed the challenge procedure set out in the statute by forcing persons seeking access to the records of a former President to bring a lawsuit to overcome a claim of executive privilege instead of requiring the former President who is claiming the privilege to obtain judicial concurrence. Attempts in the 107th and 1 10th Congresses to overturn the controversial order through remedial legislation were not successful. The order’s application of the Presidential Records Act to the “executive records” of the Vice President, among other concerns, prompted a group of historians and open government advocates to file a lawsuit in early September 2008 asking a federal court to declare the records of Vice President Richard Cheney to be subject to the requirements of the act and preventing their destruction, removal, or withholding without proper review. In response, a spokesman for the Vice President said, “The Office of the Vice President currently follows the Presidential Records Act and will continue to follow the requirements of the law, which includes turning over vice presidential records to the National Archives at the end of the term.”57 On September 20, a federal judge, in response to the lawsuit by historians and open government advocates, issued a preliminary injunction ordering Vice President Cheney and NARA to preserve all of his official records.58

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2008-2009 PRESIDENTIAL TRANSITION: NATIONAL SECURITY CONSIDERATIONS AND OPTIONS59 While changes in administration during U.S. involvement in national security related activities are not unique to the 2008-2009 election cycle, many observers suggest that the current security climate and recent acts of terrorism by individuals wishing to influence national elections and change foreign policies portend a time of increased risk during the current presidential transition period. How the new President recognizes and responds to these challenges will depend heavily on the planning and learning that occurs prior to the inauguration. Actions can be taken by the outgoing President and President-elect that may facilitate better decisionmaking in the new administration. Whether an incident of national security significance60 occurs just before or soon after the presidential transition, the actions or inactions of the Congress and the outgoing administration may have a long-lasting effect on the new President’s ability to effectively safeguard U.S. interests.61

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Possible Actions by Entities Wishing to Disrupt the Presidential Transition Period Threats to the 2008-2009 presidential election obviously exist with “dangers associated with the transition emanating both from within the homeland and internationally.”62 Some national security observers have expressed concern that a terrorist group will attempt to take action against United States interests during the presidential transition period.63 It is argued that enemies of the U.S. may see the nation as physically and politically vulnerable and that disseminating threatening propaganda or undertaking an incident of national security significance during the election period would likely result in a change in the election results or future policies. Statements or incidents may be undertaken with the desire to demonstrate a group’s ability to reestablish its status as an entity to be feared,64 intimidate the voting public, suggest perceived weaknesses in a given candidate’s national security position, change the results of the election, or change future U.S. policies in a new administration. Some national security observers speculate that, if an incident of national security significance is to occur, enemies of the United States would prefer to take action just prior to the presidential election date. However, such acts at anytime during the presidential transition period could have desired and unintended effects

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on the presidential election and resulting policies.65 Conversely, while some national security experts speculate that Al Qaeda, other extremist groups, and some foreign powers may see the presidential transition period as a desirable time to undertake action against U.S. interests, the mere fact that such activity occurs may not necessarily indicate that the act was committed with the desire to manipulate the results of the election. The timing of such acts may be solely based on the convergence of an entity attaining a desired capability with a perceived best opportunity to successfully complete its objective.

Considerations and Options Unique to Each Phase of the Presidential Transition Period

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While the time period and phases of a presidential transition are not statutorily derived, for purposes of this discussion, the presidential transition period is comprised of five phases extending from presidential campaigning activities to the new President’s establishment of a national security team and accompanying strategies and policies. Each phase identifies issues and options of possible interest to Congress during the presidential transition process.

Phases 1 and 2: Campaigning by Presidential Candidates to the Day of Election66 Some national security observers see congressional interest in and support of presidential transitions as a crucial aspect of orderly transfers of power in the executive branch. Others argue that Congress should confine its activities to simply providing the funds necessary to support the transfer of presidential authority and act quickly to confirm the President-elect’s nominated senior leadership team. Regardless of the level of involvement in the presidential transition desired by the incoming and outgoing administrations, congressional leaders have already voiced concern about the upcoming election period, and noted a desire to provide oversight and resources to support the change of administrations.67 Some suggest that, without early and substantive congressional involvement in presidential transition activities, foreign and domestic security risks may not be addressed in as full a manner as possible. The 110th Congress may consider asking the Administration to continue providing •

the names of agency leaders responsible for making national security related decisions during the presidential transition period,

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briefings on the possible risks to the presidential transition process, information about the significant national security operations that will be ongoing during the transfer of power, and briefings about the Administration’s efforts to engage and collaborate with prospective new Administration senior security officials.68

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An area of apparent ongoing congressional interest is the near-term departure of knowledgeable political appointees and career managers during a presidential transition that may significantly hamper the federal government’s ability to prevent and respond to issues of national security importance. In the months leading up to the 2008 presidential election, Congress has increased the number of questions posed to current national security leaders about plans to support the presidential transition period and require more specificity with respect to current and future planning efforts.69

Phase 3: Election Day While the actual day of the presidential election may be uneventful, some observers argue that legislative oversight of transition activities of the current Administration taken to this point may ensure the incoming Administration is as well prepared as possible. In enacting the Presidential Transition Act of 1963, Congress provided the current Administration significant discretion in deciding the level of support to be given to the incoming Administration. In recognizing the potential risks that may be associated with a presidential transition, the act noted the need for an orderly transfer of executive power. The national interest requires that such transitions in the Office of the President be accomplished so as to assure continuity in the faithful execution of the laws and in the conduct of the affairs of the Federal Government, both domestic and foreign. Any disruption occasioned by the transfer of the executive power could produce results detrimental to the safety and well-being of the United States and its people. Accordingly it is the intent of Congress that appropriate actions be authorized and taken to avoid or minimize any disruption.70 Phase 4: Selection of a President-elect to Inauguration Day Traditionally, Congress is out of session during much of the eleven weeks that comprise phase 4 of the transition period. It is unclear whether a “lame-duck” session of the 1 10th Congress will be scheduled. Some have suggested that the current financial disruption may call for congressional action or oversight prior to the convening of a new Congress. Some security experts also contend that given the current risks to U.S. national security interests, a special session of Congress

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may be beneficial to ensuring the two Administrations are properly coordinating on national security-related issues. Once a new Congress convenes and the new members are sworn in, little time is available prior to the presidential inauguration to inquire about past actions and recommend changes. A special session of Congress might be considered soon after the election to ascertain what the outgoing and incoming Administrations will do with respect to transition-related activities. If still in session during the later stages of phase 4, Congress may choose to hold additional hearings to assess the Administration’s progress on stated national security transition-related activities. Congressional concerns during this phase might include the status of incoming and outgoing Administrations’ collaboration efforts, how resources are being expended and toward what purpose, and to ascertain the incoming Administration’s national security foreign and domestic policy goals. Congress may also wish to make itself available during phase 4 to address resource requests that emanate from the two Administrations should an incident of national security significance occur.

Phase 5: Presidential Inauguration to the Establishment of a New National Security Team and Policies Some presidential historians suggest that legislative inquiry and support during the incoming Administration’s transition efforts is crucial if Congress is to provide effective oversight during the new presidency. Professor Williams of the Massachusetts Institute of Technology argues that, “the coming transition to a new Administration and Congress opens a window for reform of the organizational structures and processes that surround planning and resource allocation for homeland (and national) security in the executive branch and Congress.”71 While the transition is an opportunity for Members and staff to interact and have substantive discussions regarding the national security policies and goals of the new Administration, some presidential historians note that “transitions are hit- and-miss affairs that handicap the new President in shifting from campaigning to governing and create problems for the Congress.”72 As noted by Mr. Dwight Ink, President Emeritus of the Institute of Public Administration, “new appointees are in danger of stumbling during the first crucial weeks and months of an Administration, not so much from what they are striving to do, but from how they are functioning and a lack of familiarity with the techniques that are most likely to get things done in a complex Washington environment.”73 In overseeing and supporting the new Administration’s national security objectives, Congress has a number of activities it might undertake.

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Prioritize Hearings for Nominated Senior Executive Branch Leaders who Have Significant National Security Responsibilities Congress might assist the incoming Administration’s national security efforts by quickly considering qualified key political appointees for confirmation.74 While Congress will also be undergoing a transition having just been sworn in two weeks prior to the presidential inauguration, some analysts see this as the ideal time for the new Congress to meet with the incoming President’s national security leadership team and establish a foundation to allow for expedited confirmation hearings soon after the President takes the oath of office. As noted by a recommendation of the 9/11 Commission Report of 2004,75

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Since a catastrophic attack could occur with little or no notice, the federal government should minimize as much as possible the disruption of national security policymaking during the change of Administrations by accelerating the process for national security appointments. We (9/11 Commission) think the process could be improved significantly so transitions can work more effectively and allow new officials to assume their new responsibilities as quicky as possible.

Consistent with recommendations contained in the 9/11 Commission report, the Intelligence Reform and Terrorism Prevention Act of 200476 provides a sense of the Congress regarding an expedited consideration of individuals nominated by the President-elect to be confirmed by the Senate. The act further holds that the Senate committees to which these nominations are referred and the full Senate should attempt to complete consideration of these nominations within 30 days of submission by the newly elected President. In undertaking this responsibility, many security observers see a healthy tension between Congress’ desire to act quickly to hold confirmation hearings and the need to ensure that individuals with the relevant national security background and experience have been put forth by the President- elect. In many cases, highly qualified career Senior Executive Service personnel will be in an acting capacity for some of these Senate confirmed positions. Thus the perceived urgency to fill these positions quickly may be negated while Congress ensures individuals capable of meeting the demands of the position are selected and confirmed. Congress may also •

work with the new Administration to understand its national security priorities and where applicable have the changes in policies and programs reflected in the 2010 budget;

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• •

quickly assign new and existing Members of Congress to committees focusing on national security issues to allow these individuals to receive briefings and understand the issues for which they have oversight; hold hearings comprised of national security experts to gather ideas on prospective U.S. national security policies and goals; and hold hearings soon after the new Administration has produced its national security strategies, policies, and presidential directives to discuss objectives and determine presidential priorities.

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PERSONNEL — POLITICAL TO CAREER CONVERSIONS (“BURROWING IN”)77 Some individuals, who are serving in appointed (noncareer) positions in the executive branch, convert to career positions in the competitive service, the Senior Executive Service (SE S), or the excepted service.78 This practice, commonly referred to as “burrowing in,” is permissible when laws and regulations governing career appointments are followed. While such conversions may occur at any time, frequently they do so during the transition period when one Administration is preparing to leave office and another Administration is preparing to assume office. Generally, these appointees were selected noncompetitively and are serving in such positions as Schedule C, noncareer SES, or limited tenure SES79 that involve policy determinations or require a close and confidential relationship with the department or agency head and other top officials. Many of the Schedule C appointees receive salaries at the GS-12 through GS-15 pay levels.80 The noncareer and limited tenure members of the SES receive salaries under the pay schedule for senior executives that also covers the career SES.81 Career employees, on the other hand, are to be selected on the basis of merit and without political influence following a process that is to be fair and open in evaluating their knowledge, skills, and experience against that of other applicants. The tenure of noncareer and career employees also differs. The former are generally limited to the term of the Administration in which they are appointed or serve at the pleasure of the person who appointed them. The latter constitute a work force that continues the operations of government without regard to the change of administrations. Paul Light, a professor of government at New York University, who has studied appointees over the past several administrations, reportedly

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believes that the pay, benefits, and job security of career positions underlie the desire of individuals in noncareer positions to “burrow in.”82 Beyond the fundamental concern that the conversion of an individual from an appointed (noncareer) position to a career position may not have followed the legal and regulatory requirements, “burrowing in” raises other concerns. When the practice occurs, there may be these perceptions (whether valid or not): that an appointee converting to a career position may limit the opportunity for other employees (who were competitively selected for their career positions, following examination of their knowledge, skills, and experience) to be promoted into another career position with greater responsibility and pay; or that the individual who is converted to a career position may seek to undermine the work of the new Administration whose policies may be at odds with those that he or she espoused when serving in the appointed capacity. Both perceptions may increase the tension between noncareer and career staff, thereby hindering the effective operation of government at a time when the desirability of creating “common ground” between these staff to facilitate government performance has been emphasized.83 Appointments to career positions in the executive branch are governed by law and regulations that are codified in Title 5 of the United States Code and Title 5 of the Code of Federal Regulations. For purposes of both, appointments to career positions are among those activities defined as “personnel actions,” a class of activities that can be undertaken only in accordance with strict procedures. In taking a personnel action, each department and agency head is responsible for preventing prohibited personnel practices; for complying with, and enforcing, applicable civil service laws, rules, and regulations and other aspects of personnel management; and for ensuring that agency employees are informed of the rights and remedies available to them. Such actions must adhere to the nine merit principles and twelve prohibited personnel practices that are codified at 5 U.S.C. §2301(b) and §2302(b), respectively. These principles and practices are designed to ensure that the process for selecting career employees is fair and open (competitive), and without political influence. Department and agency heads also must follow regulations, codified at Title 5 of the Code of Federal Regulations, that govern career appointments. These include Civil Service Rules 4.2, that prohibits racial, political, or religious discrimination, and 7.1, that addresses an appointing officer’s discretion in filling vacancies. Other regulations provide that Office of Personnel Management (OPM) approval is required before employees in Schedule C positions may be detailed to competitive service positions, public announcement is required for all SES vacancies that will be filled by initial career appointment, and details to SES

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positions that are reserved for career employees (known as Career-Reserved) may only be filled by career SES or career-type non-SES appointees.84 During the period June 1, 2008, through January 20, 2009, defined as the Presidential Election Period, certain appointees are prohibited from receiving financial awards.85 These appointees, referred to as senior politically appointed officers, are (1) individuals serving in noncareer SES positions; (2) individuals serving in confidential or policy determining positions as Schedule C employees; and (3) individuals serving in limited term and limited emergency positions. When a department or agency, for example, converts an employee from an appointed (noncareer) position to a career position without any apparent change in duties and responsibilities, or that appears to be tailored to the individual’s knowledge and experience, such actions may invite scrutiny. OPM and the Government Accountability Office (GAO) each conduct oversight related to conversions of employees from noncareer to career positions to ensure that proper procedures have been followed. In addition to its general oversight authority, OPM conducts pre-appointment reviews of certain appointments to career positions in the competitive service and the SES during the transition. The agency announces this review in a memorandum to the heads of departments and agencies early in the year in which the presidential election occurs. OPM released the memorandum covering the 2008 transition on March 17, 2008, and it is effective from that date through January 20, 2009. A “Pre- Appointment Review Checklist” is included as an attachment to the OPM memorandum and lists the documentation that a department’s or agency’s Director of Human Resources must submit to OPM along with a dated cover letter. OPM cautions departments and agencies not to [C]reate or announce a competitive service vacancy for the sole purpose of selecting a current or former Schedule C or Noncareer SES employee. [R]emove the Schedule C or Noncareer SES elements of a position solely to appoint the incumbent into the competitive service.86

To assist departments and agencies, OPM also publishes the Presidential Transition Guide to Federal Human Resources Management every four years.87 The current edition, released in June 2008, includes detailed guidance on standards of ethical conduct, appointments, and compensation for federal employees. GAO’s oversight focuses on review, after the fact, of conversions from noncareer to career positions. The agency has begun to collect data from executive branch departments and agencies on such conversions that have

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occurred since its last evaluation was published in May 2006. The results of that audit covered the period May 2001 through April 2005, and provide the most current retrospective data. The evaluation found that, of 130 conversions at GS-12 or higher,

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for 37 of these conversions it appears that agencies did not follow proper procedures or agencies did not provide enough information for us to make an assessment. For 18 of the 37 of these conversions, it appears that agencies did not follow proper procedures. Some of the apparent improper procedures included: selecting former noncareer appointees who appeared to have limited qualifications and experience for career positions, creating career positions specifically for particular individuals, and failing to apply veteran’s preference in the selection process.88

As part of its oversight of government operations, Congress also monitors conversions. In the 1 10th Congress, staffing at the Departments of Homeland Security (DHS) and Justice (DOJ) has been of particular interest, especially in the wake of the leadership and management deficiencies at DHS during and after Hurricane Katrina, and improper procedures used by DOJ staff in selecting and removing United States attorneys.89 Both departments received letters from Members of Congress reminding them to examine conversions: the Chairman of the House Committee on Homeland Security, Representative Bennie Thompson, wrote to the DHS Secretary in February 2008, and Senators Dianne Feinstein and Charles Schumer, members of the Senate Committee on the Judiciary, wrote to the Attorney General in July 2008 about this issue. In assessing the current situation, Congress may decide that the existing oversight is sufficient. If Congress determines that additional measures are needed to further ensure that conversions from appointed (noncareer) positions to career positions are conducted according to proper procedures and transparent, Congress could direct OPM, and the departments and agencies, to include information on conversions in the annual performance plans that accompany the submission of their budget justifications to the Hill each February. The Government Accountability Office and OPM could jointly explore options that would result in their recommending and taking, respectively, any remedial actions that are necessary to address improper conversions promptly. OPM also could be directed by Congress to report on whether any changes are needed in the time period covered by the agency’s pre-appointment review of conversions, or in the Presidential Election Period, that restricts financial awards to senior politically appointed officers. OPM issued its memorandum on pre-appointment review for 2000 on February 18; for 2004, on March 18; and for 2008, on March 17. As

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discussed above, the dates of the Presidential Election Period are defined by law, and in a presidential election year, cover the period from June 1 through the following January 20.

POLITICAL APPOINTMENTS INTO THE NEXT PRESIDENCY The installation of executive branch political appointees is another area of presidential activity that may be of concern to Congress in the last months of an Administration. Under certain circumstances, outgoing Presidents have used the constitutional authority of the office to make recess appointments that lasted into the succeeding presidency.

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Appointment Authority for Officers of the United States In general, the President and the Senate share the power to fill the top nonelected offices of the United States government. As part of its system of checks and balances, the Constitution provides a general framework for appointments to these positions: [The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.90 In practice, the appointment process has three phases: 1) the President selects, vets, and nominates an individual, with or without input from Senators; 2) the Senate considers the nomination, with or without further action; and 3) if the nomination is confirmed by the Senate, the President signs a commission, and the appointee is sworn in. The Constitution also empowers the President unilaterally to make a temporary appointment to such a position if it is vacant and the Senate is in recess.91 Such an appointment, termed a recess appointment, expires at the end of the following session of the Senate.92 At the longest, a recess appointment made in early January, after the beginning of a new session of the Senate, would last

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until the Senate adjourns sine die at the end of the following year, a period that could be nearly two years in duration.

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Tenure during a Transition for a Confirmed Appointee Unless otherwise specified in law, appointees to executive branch positions usually serve at the pleasure of the President. That is, they serve for an indeterminate period of time and can be removed by the President at any time for any reason (or no stated reason).93 By tradition, appointees to these positions usually step down when the appointing President leaves office, unless asked to stay by the President-elect. Congress has periodically elected to set a specific term of office for a particular position, restrict the President’s power of removal for a particular position, or both. Some removal restriction provisions require only that the President inform Congress of his reasons for removing an official, while others require that a certain threshold, such as “neglect of duty, or malfeasance in office, or for other good cause shown,” be met.94 The use of fixed terms and removal restrictions has been more common for positions on regulatory and other boards and commissions, for which Congress has elected to establish a greater level of independence from the President, than for positions in executive departments and agencies.95 An appointee to a position with a fixed term and protection from removal may serve during more than one presidency; he or she is not required to step down when the appointing President leaves office, and the incoming President may not remove him or her unless the grounds for such removal would meet the threshold established in statute. An appointee to a position with a fixed term but no specified protection from removal may be protected from removal nonetheless, based on case law.96 Even where an appointee to such a position is not protected from removal, it could be argued that the fixed term establishes the expectation that the incumbent will be able to serve for a certain period. However, removal of such an appointee by the incoming President might entail the expenditure of more political capital than would otherwise be required.

Tenure During a Transition for a Recess Appointee Outgoing Presidents have often made recess appointments, during their final months in office, to both kinds of positions described above. The potential tenure for recess appointees to positions without removal protections is the same as it

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would be if the appointee had been confirmed by the Senate; they typically leave with the appointing President. Recess appointees to positions with fixed terms and removal protection, however, may serve until the expiration of the term to which they were appointed or the expiration of the recess appointment, whichever occurs earlier.97 A President could, at the end of his presidency, use a recess appointment to bypass the Senate and fill a fixed-term position for a period that would outlast his time in office by a year or more. As noted above, even an appointee without explicit statutory removal protection might prove difficult or costly for an incoming President to remove. In some cases, recess appointees who serve past the end of an Administration might be “consensus appointees,” who have the support of the incoming President and the reconstituted Senate. In other cases, however, an outgoing President could install more controversial appointees, who would not be nominated, by the new President, or confirmed, by the reconstituted Senate, to the positions to which they are appointed. It could be argued that the outgoing President carries the full constitutional authority of the office until his term is over, that he must be able to exercise that authority as he sees fit, and that he should not be expected to abstain from implementing his agenda until he leaves office. Furthermore, it might be argued, other recent Presidents have made recess appointments in their final months in office, and some of these recess appointments have been to positions with terms that carry over into the following Presidency. A counter argument might be made that, in making recess appointments to fixed term positions with removal protections, an outgoing President would be effectively circumventing the Senate and undermining the incoming President.

Senate Pro Forma Sessions to Block Recess Appointments Beginning in the fall of 2007, the Senate has used parliamentary procedures to prevent the occurrence of a recess during which the President might make recess appointments. Such procedures, if employed during the final months of a presidency, might prevent the President from exercising the authority in the manner described above. The plan to use these procedures during the 110th Congress was first announced in the Senate on November 16, 2007, when the Senate Majority Leader stated that the Senate would “be coming in for pro forma sessions during the Thanksgiving holiday to prevent recess appointments.”98 The Senate recessed later that day and pro forma meetings99 were convened on November 20, 23, 27, and 29, with no business conducted. The Senate next conducted business after

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reconvening on December 3, 2007. The President made no recess appointments during that period. On December 19, 2007, the Senate Majority Leader announced that similar pro forma meetings would be held in the following days, again for the purpose of preventing the President from making recess appointments.100 Later that day, the Senate agreed, by unanimous consent, to hold a series of pro forma meetings until sine die adjournment of the first session, and to hold another series beginning with the convening of the second session.101 The Senate recessed on December 19, 2007, and pro forma meetings were held on December 21, 23, 26, 28, and 31. The Senate adjourned sine die on December 31, 2007. On January 3, 2008, the Senate convened its second session, but no other business was conducted. Pro forma meetings of the Senate were held on January 7, 9, 11, 15, and 18. On January 22, the Senate reconvened and conducted business. The President made no recess appointments between December 19, 2007, and January 22, 2008. Similar procedures were followed during other periods, in 2008, that would otherwise have been Senate recesses of a week or longer in duration.102 On September 17, 2008, the Senate Majority Leader announced, with regard to the Senate, “We are going to have to get some committee hearings underway, which is why we are not going to adjourn. We will be in pro forma session so committees can still meet, though we won’t have any activities here on the floor as relates to these markets.”103 On October 2, 2008, the Senate agreed, by unanimous consent, to hold a series of pro forma meetings between that date and November 17, 2008, when they would reconvene and conduct business.104

SUBMISSION OF THE PRESIDENT’S BUDGET IN TRANSITION YEARS When a new Congress convenes in January, one of its first orders of business is to receive the annual budget submission of the President for the upcoming fiscal year, which begins on October 1. Following receipt of the President’s budget, Congress begins the consideration of the budget resolution and other budgetary legislation. The transition from one presidential Administration to another raises special issues regarding the annual budget submission. Which President — the outgoing President or the incoming one — is required to submit the budget, and how will the transition affect the timing and form of the submission? This section provides background information that addresses these questions.105

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Is the Outgoing or Incoming President Required to Submit the Budget? The Budget and Accounting Act of 1921,106 as amended, requires the President to submit a budget annually to Congress toward the beginning of each regular session. This requirement first applied to President Harding for FY1 923. The deadline for submission of the budget, first set in 1921 as “on the first day of each regular session,” has changed several times over the years: • •

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•

in 1950, to “during the first 15 days of each regular session”; in 1985, to “on or before the first Monday after January 3 of each year (or on or before February 5 in 1986)”; and in 1990, to “on or after the first Monday in January but not later than the first Monday in February of each year.”

The 20th Amendment to the Constitution, ratified in 1933, requires each new Congress to convene on January 3 (unless the date is changed by the enactment of a law) and provides a January 20 beginning date for a new President’s four-year term of office. Therefore, under the legal framework for the beginning of a new Congress, the beginning of a new President’s term, and the deadline for the submission of the budget, all outgoing Presidents prior to the 1990 change were obligated to submit a budget.107 The 1990 change in the deadline made it possible for an outgoing President to leave the annual budget submission to his successor, an option which the outgoing Presidents since then have taken. Incoming Presidents, except for Harding, Clinton, and George W. Bush, assumed their position with a budget of their predecessor in place. Under the 1921 act, Presidents may submit budget revisions to Congress at any time. Six incoming Presidents chose to modify their predecessor’s policies by submitting budget revisions shortly after taking office: Eisenhower, Kennedy, Nixon, Ford, Carter, and Reagan.108 Four Presidents — Roosevelt, Truman, Johnson, and George H. W. Bush — chose not to submit budget revisions. Because President George H. W. Bush chose not to submit a budget for FY1 994 (and was not obligated to do so), President Clinton submitted the original budget for FY1 994 rather than budget revisions. Similarly, the budget for FY2002 was submitted by the incoming President George W. Bush, rather than by outgoing President Clinton. The Office of Management and Budget (OMB) provided considerable advance notice of the plan for FY2002.109

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President George W. Bush indicated early on that he will not submit a budget for FY20 10, which is subject to a deadline of Monday, February 2, 2009. In announcing the decision, OMB Director Jim Nussle stated the following: The FY 2010 budget will be submitted by the next President. In order to lay the groundwork for the next Administration, we intend to prepare a budget database that includes a complete current services baseline and to gather information to develop current services program estimates for FY 2010 from which the incoming Administration can develop its budget proposals.110

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Transition Budgets in Recent Years: Timing and Form During the period beginning with the full implementation of the congressional budget process (in 1976 for FY1 977), five transitions of presidential administration have occurred. The three outgoing Presidents required to submit a budget during this period (Ford, Carter, and Reagan) did so on or before the statutory deadline. Once the original budget for a fiscal year has been submitted, a President or his successor may submit revisions at any time. Two of the incoming Presidents during this period (Carter and Reagan) submitted budget revisions and one (George H. W. Bush) did not. The FY1978 revisions by President Carter (a 101page document) were submitted on February 22 and the FY1982 revisions by President Reagan (an initial 159-page document and a subsequent 435-page document) were submitted on March 10 and April 7, respectively. As stated previously, Presidents Clinton and George W. Bush submitted the original budgets for FY1 994 and FY2002 as incoming Presidents (on April 8, 1993 and April 9, 2001, respectively). In past years, Congress authorized the submission of a budget for a fiscal year after the statutory deadline by enacting a deadline extension in law (see, for example, the deadline extension for the FY1986 budget in P.L. 99-1). Beginning in the late 1980s, however, several original budgets have been submitted late without authorization; for FY1 989 and the transition-year budget for FY1 994, for example, the budget was submitted after the deadline (by 45 and 66 days, respectively) without the consideration of any measure granting a deadline extension. Like the budget itself, the revisions may take whatever form the President desires. They have ranged from piecemeal submissions in the earlier instances to consolidated budget messages beginning with President Ford.

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Although Presidents Reagan, Clinton, and George W. Bush did not submit detailed budget proposals during their transitions until early April, each of them advised Congress regarding the general contours of their economic and budgetary policies in special messages submitted to Congress in February concurrently with a presentation made to a joint session of Congress: •

•

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on February 18, 1981, President Reagan submitted a document containing an economic plan and initial budget proposals for FY1982, America’s New Beginning: A Program for Economic Recovery, in conjunction with an address to a joint session of Congress; on February 17, 1993, President Clinton submitted to Congress a budgetary document, A Vision of Change for America, to accompany his address to a joint session of Congress. The 145-page document outlined the President’s economic plan and provided initial budget proposals in key areas; and on February 28, 2001, President George W. Bush submitted a 207-page budget summary to Congress, A Blueprint for New Beginnings: A Responsible Budget for America’s Priorities, the day after his address to a joint session of Congress.

Although President George H. W. Bush did not submit a revision of President Reagan’s FY1990 budget, he submitted a 193-page message to Congress (Building a Better America) in conjunction with a joint address to Congress on February 9, 1989. The message included revised budget proposals. To facilitate the development of the budget for the incoming Administration, President George H. W. Bush (on January 6, 1993) and President Clinton (on January 16, 2001) submitted budget documents that provided historical data, revised budget projections, and updated economic and programmatic information.

ENDNOTES 1

2

William A. Galston and Elaine Ciulla Kamarck, “The Transition: Reasserting Presidential Leadership,” in Mandate for Change, ed. Will Marshall and Martin Schram (New York: Berkley Books, 1993), p. 336. William G. Howell and Kenneth R. Mayer, “The Last One Hundred Days,” Presidential Studies Quarterly, vol. 35 (2005), p. 537. Notable examples of “last-minute presidential actions” include the following: “It was President

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John Adams’s ‘Midnight’ appointments, which [his successor Thomas] Jefferson refused to honor, that prompted the landmark Marbury v. Madison Supreme Court decision. Grover Cleveland created a twenty-one- millionacre forest reserve to prevent logging, an act that lead to an unsuccessful impeachment attempt and the passage of legislation annulling the action. Then, in response to the congressional uprising, ‘Cleveland issued a pocket veto and left office’... . Jimmy Carter negotiated for the release of Americans held hostage in Tehran, implementing an agreement on his last day in office with ten separate executive orders, many of which sharply restricted the rights of private parties to sue the Iranian government for expropriation of their property... . In late December 1992, George Bush pardoned six Reagan administration officials who were involved in the Iran-Contra scandal, a step that ended Independent Counsel Lawrence Walsh’s criminal investigation. ‘[In] a single stroke, Mr. Bush swept away one conviction, three guilty pleas, and two pending cases, virtually decapitating what was left of Mr. Walsh’s effort, which began in 1986’... . [D]uring his final days in office Clinton ‘issued scads of executive orders’ on issues ranging from protecting the Hawaiian Islands Coral Reef Ecosystem Reserve to prohibiting the importation of rough cut diamonds from Sierra Leone to curbing tobacco use both domestically and abroad.” (Ibid., pp. 534-535.) 3 Ibid., p. 538. 4 Ibid. 5 Ibid., p. 533. On the other hand, the incumbent Administration might be a significant resource for the President-elect and his team: “One of the most important transition opportunities an incoming President and his team has is the outgoing administration. They are a source of valuable information on personnel positions and can be used to take some actions smoothing the path of the incoming administration.” (Martha Joynt Kumar et al., Meeting the Freight Train Head On: Planning for the Transition to Power, The White House 2001 Project, White House Interview Program, Report No. 2, Aug. 18, 2000, p. 9.) 6 Howell and Mayer, “The Last One Hundred Days,” p. 535. 7 Ibid. 8 John P. Burke, Becoming President: The Bush Transition, 2000-2003 (Boulder, CO: Lynne Rienner Publishers, 2004), p. 1. 9 The Office of Management and Budget produces an annual report for Congress on this issue. See [http://www.whitehouse.gov/omb/inforeg/regpol-reports _congress.html] to view those reports.

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10

See, for example, Jay Cochran, III, “The Cinderella Constraint: Why Regulations Increase Significantly During Post-Election Quarters,” Mercatus Center, George Mason University, March 8, 2001; and Jason M. Loring and Liam R. Roth, “After Midnight: The Durability of the ‘Midnight’ Regulations Passed by the Two Previous Outgoing Administrations,” Wake Forest Law Review, vol. 40 (2005), pp. 1441-1465. 11 John M. Broder, “A Legacy Bush Can Control,” New York Times, Sept. 9, 2007, p. WK 3, quoting Phillip Clapp, president of the National Environmental Trust. 12 For more information on these statutes and executive orders, see CRS Report RL32240, The Federal Rulemaking Process: An Overview, by Curtis W. Copeland. 13 Executive Order 12291, “Federal Regulation,” 46 Federal Register 13193, Feb. 17, 1981. 14 See [http://www.whitehouse.gov/omb/inforeg/regreview_plan.pdf] for a copy of this memorandum. Federal courts have generally considered any delay in a rule’s effective date to require notice and comment rulemaking. See Natural Resources Defense Council, Inc. v. EPA, 683 F.2d 752, 761 (3d Cir. 1982); and Council of the Southern Mountains v. Donovan, 653 F.2d 573 (D.C. Cir. 1981). Although some agencies used notice and comment rulemaking to delay effective dates pursuant to the Card memorandum, most agencies simply published the changes and invoked the Administrative Procedure Act’s “good cause” exception. One such action was rejected by the court. See Natural Resources Defense Council v. Abraham, 355 F.3d 179, 204-05 (2d Cir 2004). 15 U.S. General Accounting Office, Regulatory Review: Delay of Effective Dates of Final Rules Subject to the Administration’s January 20, 2001, Memorandum, GAO-02-370R, Feb. 15, 2002. 16 Between June 1 and August 8, 2008, however, federal agencies sent more than 40 proposed rules to the Office of Management and Budget for review prior to publication in the Federal Register. (Ralph Lindeman, “Agencies Continue to Proposed New Rules After White House-Imposed June Deadline,” BNA Daily Report for Executives, Aug. 11, 2008, p. A-9.) 17 OIRA reviews all significant rules before they are published in the Federal Register, and is the President’s chief representative in the rulemaking process. See CRS Report RL32397, Federal Rulemaking: The Role of the Office of Information and Regulatory Affairs, by Curtis W. Copeland. 18 For an in-depth discussion of the CRA disapproval process, see CRS Report RL3 1160, Disapproval of Regulations by Congress: Procedure Under the

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Congressional Review Act, by Richard S. Beth. For a discussion of how the CRA has been implemented, see CRS Report RL30 116, Congressional Review of Agency Rulemaking: An Update and Assessment of the Congressional Review Act After a Decade, by Morton Rosenberg. 19 For a more complete discussion of the CRA’s carryover provisions and how they may apply to rules issued at the end of the 1 10th Congress, see CRS Report RL34633, Congressional Review Act: Disapproval of Rules in a Subsequent Session of Congress, by Curtis W. Copeland and Richard S. Beth. 20 “Days of continuous session” includes all calendar days except those in which either house of Congress is adjourned for more than three days during a session. 21 “Legislative days” end each time a chamber adjourns and begin each time it convenes after an adjournment. “Session days” include only calendar days on which a chamber is in session. 22 CRS Report RL34354, Congressional Influences on Rulemaking Through Appropriations Provisions, by Curtis W. Copeland. 23 Joel L. Fleishman and Arthur H. Aufses, “Law and Orders: The Problem of Presidential Legislation,” Law and Contemporary Problems, vol. 40 (1976), p. 5. Executive orders disposition tables, which list each President’s executive orders from Franklin D. Roosevelt through the current President, are available at [http://www.archives.gov/federal-register/ executive-orders/disposition. html]. 24 Terry M. Moe and William J. Howell, “The Presidential Power of Unilateral Action,” Journal of Law, Economics, and Organization, vol. 15 (1999), pp. 141 and 143. 25 Ibid., p. 138. 26 Christopher J. Deering and Forrest Maltzman, “The Politics of Executive Orders: Legislative Constraints on Presidential Power,” Political Research Quarterly, vol. 52 (1999), pp. 2 and 6. 27 Paul C. Light, The President’s Agenda: Domestic Policy Choice from Kennedy to Reagan (Baltimore: Johns Hopkins University Press, 1991), p. 118. 28 Howell and Mayer, “The Last One Hundred Days,” p. 533. 29 Ibid., p. 551. 30 Kenneth R. Mayer, “Executive Orders and Presidential Power,” Journal of Politics, vol. 61 (1999), p. 451. For example, President Clinton signed E.O. 12834 on Jan. 20, 1993, which required his senior political appointees to take an ethics pledge that would prohibit them from lobbying federal government officials for five years. President George W. Bush launched a major initiative early in his term with the signing of E.O. 13198 and E.O. 13199 on Jan. 29,

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2001, which directed the Attorney General and four cabinets secretaries to establish offices of faith-based and community initiatives, and which established a White House Office of Faith-Based and Community Initiatives, respectively. 31 Howell and Mayer, “The Last One Hundred Days,” p. 543. On the other hand, as the following examples show, several recent Presidents revoked, partly or completely, one or more executive orders issued by their immediate predecessor. President Reagan revoked two executive orders signed by President Carter, thus terminating certain aspects of the government’s wage and price program (E.O. 12288, Jan. 29, 1981) and disbanding the Tahoe Federal Coordinating Council (E.O. 12298, Mar. 12, 1981). President Clinton revoked (E.O. 12836, Feb. 1, 1993) two of President Bush’s executive orders having to do with labor unions. President G.W. Bush signed four executive orders (Executive Orders 13201, 13202, 13203, and 13204), on Feb. 17, 2001, that dealt with labor issues and that partially or completely revoked executive orders that had been signed by his predecessor. 32 Consistent with how he signed executive orders, the 41st President is identified in this report as President George Bush or President Bush. His son, the 43rd President, is identified as President George W. Bush, his signature on executive orders, or President G.W. Bush. 33 The quantity of orders President Carter signed during the pre-election and lame duck periods is consistent with the pace he maintained throughout his fouryear term. President G.W. Bush issued an average of 36 executive orders per year; President Clinton 46; President Bush 42; President Reagan 48; and President Carter 80. The figure for President G.W. Bush is an average for the years 2001-2007. 34 Mayer, “Executive Orders and Presidential Power,” p. 457. 35 Ibid. 36 Ibid. 37 Ibid., p. 459. 38 Ibid., p. 445. 39 E.O. 11971, Feb. 11, 1977, and E.O. 12255, Dec. 5, 1980, respectively. 40 E.O. 12669, Feb. 20, 1989, and E.O. 12673, Mar. 23, 1989, respectively. 41 E.O. 12291, Feb.17, 1981. 42 Executive Orders 12276 through 12285, Jan. 19, 1981. 43 U.S. National Archives and Records Administration, Protecting Federal Records and Other Documentary Materials from Unauthorized Removal, NARA Bulletin 2008-02 (Washington: Feb. 4, 2008), available at

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[http://www.archives.gov/records-mgmt/bulletins/ 2008/2008-02.html? template=print]. 44 18 U.S.C. §2071. 45 5 U.S.C. §552a(i); 18 U.S.C. §793-794, 798. 46 Robert Pear, “In Digital Age, Federal Files Blip into Oblivion,” New York Times, Sept. 13, 2008, p. A1. 47 Ibid. 48 Ibid. 49 U.S. National Archives and Records Administration, Memorandum to Chief Information Officers: Snapshot of Agency Public Web Sites, Memorandum NWM 05.2001 (Washington: Jan. 12, 2001), available at [http://www. archives.gov/records-mgmt/basics/snapshot-publicweb-sites.html?template =p...]. 50 Pear, “In Digital Age, Federal Files Blip into Oblivion,” p. A1 6. 51 44 U.S.C. §§2201-2207. 52 44 U.S.C. §2207. 53 44 U.S.C. §2201(2). 54 44 U.S.C. §2204(c)(2). 55 See Louis Fisher, The Politics of Executive Privilege (Durham, NC: Carolina Academic Press, 2004); Mark J. Rozell, Executive Privilege: Presidential Power, Secrecy, and Accountability, 2nd ed., rev. (Lawrence, KS: University Press of Kansas, 2002). 56 3 C.F.R. 2001 Comp., pp. 815-819. 57 Christopher Lee, “Lawsuit to Ask That Cheney’s Papers Be Made Public,” Washington Post, Sept. 8, 2008, p. A4. 58 Associated Press, “Cheney Is Ordered to Preserve Records,” New York Times, Sept. 21, 2008, p. 30; Christopher Lee, “Cheney Is Told to Keep Official Records,” Washington Post, Sept. 21, 2008, p. A5. 59 Prepared by John Rollins, Specialist in Terrorism and National Security, Foreign Affairs, Defense and Trade Division. For the purpose of discussing national security considerations and issues, the presidential transition period is broken down into five phases. 60 While an incident of national security significance could entail a catastrophic natural disaster, this term, for purposes of this section of the paper, is used to describe any manmade foreign or domestic security-related incident undertaken with the intent to influence the procedural aspects or outcome of the Presidential election.

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For a fuller explanation of national security considerations and options, see CRS Report RL34456, 2008-2009 Presidential Transition: National Security Considerations and Options, by John Rollins. 62 Robert Landers, “Dangers in Presidential Transitions,” Washington: Editorial Research Reports, Oct. 21, 1988, pp. 528-529. 63 Erich Follath, “Osama bin Laden is Planning Something for the U.S. ElectionInterview of Steve Coll,” Speigel Online, Apr. 2, 2008, available at [http:// www.spiegel.de/international/world/0, 1518,544921,00.html]. “I believe that he wants to influence America this time. There is a threat of the terrorist attack on American soil that al-Qaida has long warned of. Osama bin Laden is planning something for the U.S. election.” 64 Matt Korade, “New Report Tracks Relationship Between Al Qaeda and Jihadist Media,” CQ Homeland Security, Apr. 4, 2008, available at [http://www. gwumc.edu/hspi/news/cq44.htm]. In response to a question about al-Qaeda’s troubles in maintaining support for its organization, panel members informing the report noted that the possible decline in followers coupled with the upcoming presidential election could be a potent mix for a group desperate to reassert its relevancy. 65 For example, while the terrorist attacks of March 2004 did appear to have an affect on the election outcome and the Spanish government’s support of military actions in Iraq, the new Prime Minister actually increased Spain’s commitment to counterterrorism military efforts in Afghanistan. 66 For purposes of this section of the paper, Phase 1 of the Presidential transition time period spans from announcements by individuals vying for the Presidency to Phase 2, selection of nominees by the representative political parties. 67 Senate Committee on Homeland Security and Governmental Affairs, “Lieberman Calls on Senate Budget Committee to Adequately Fund FY2009 Homeland Security Needs,” press release, Feb. 22, 2008, available at [http://hsgac.senate.gov/public/index.cfm?FuseAction= PressReleases.Detail&Affiliation=C&PressRelease_id=ba22da1 1 -04b843c0-9 1 58-f2f87 44b7 1 7e&Month=2&Year=2008], visited Oct. 10, 2008. 68 In September, 2008 the Senate Homeland Security and Governmental Affairs Committee held a series of hearings devoted to ascertaining the Executive Branch’s progress and challenges regarding presidential transition related issues; some of the issues in this list were addressed. (Senate Committee on Homeland Security and Governmental Affairs, Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia, “Keeping the Nation Safe Through the Presidential Transition,”

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hearing announcement, Sept. 18, 2008, available at [http://hsgac.senate. gov/public/ index.cfm?Fuseaction=Hearings.Detail&HearingID=00 1 74c243eef-47d1 -bb2c-39c3d27 c26d3].) 69 “I am interested to know if you are beginning to make plans as to how you convey a year hence this department to a new Administration. What steps you might take to lay the foundation to have, hopefully, a seamless transition.” (“Senate Armed Services Committee Holds Hearing on the Defense Authorization Request for Fiscal Year 2009,” CQ.com, Feb. 6, 2008, at [http://www.cq.com/display.do?dockey=/cqonline/prod/data/docs/html/ transcripts/congressional/ 11 0/congressionaltranscripts 11 0-000002666499 .html@commit tees&metapub=CQ-CONGTRANSCRIPTS&searchIndex= 0&seqNum=44].) Question by Senator John Warner to Secretary of Defense Robert Gates. CRS note: the issue of transition-related activities during the upcoming election was not further addressed during this hearing. 70 Sec. 2 of P.L. 88-277; 3 U.S.C. §102 note. 71 Cindy Williams, “Strengthening Homeland Security: Reforming Planning and Resource Allocation,” 2008 Presidential Transition Series, (Washington: IBM Center for the Business of Government, 2008), available at [http:// www.businessofgovernment.org/pdfs/ CindyWilliamsReport.pdf], p. 6. 72 U.S. Congress, Senate Committee on Governmental Affairs, Presidential Transition Act of 2000, report to accompany S. 2705, 106th Cong., 2nd sess., S.Rept. 106-348 (Washington: GPO, 2000), p. 2. 73 Ibid. 74 While there is no proscriptive order in which the incoming President should nominate, or Congress should hold hearings regarding, new senior Administration officials with national security responsibilities, a review of the cabinet positions noted in the Presidential Succession Act of 1947 (3 U.S.C. § 19) and the previous Administration’s National Security Council and Homeland Security Councils may provide some assistance in prioritizing personnel placement activities. 75 U.S. National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission Report (Washington: GPO, 2004), p. 422. 76 Sec. 7601(b) of P.L. 108-458. 77 This text is excerpted from CRS Report RL34706, Federal Personnel: Conversion of Employees From Appointed (Noncareer) Positions to Career Positions in the Executive Branch, by Barbara L. Schwemle. 78 Appointments to career competitive service positions include requirements for approved qualification standards, public announcement of job vacancies, rating of applicants, and completion of a probationary period and three years

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of continuous service; career SES positions include review by the Office of Personnel Management (OPM) and certification of a candidate’s ability by a Qualifications Review Board; and career excepted service positions allow agencies to establish their own hiring procedures, but require those systems to conform to merit system principles and veterans preference. 79 Appointments to SES positions that have a limited term may be for up to 36 months, and those that are to meet an emergency (unanticipated or urgent need) may be for up to 18 months. 80 GS refers to the General Schedule, the pay schedule that covers white-collar employees in the federal government. As of January 2008, the salaries from GS- 12, step 1, to GS-1 5, step 10, in the Washington, DC, pay area ranged from $69,764 to $149,000. 81 Salaries for members of the SES are determined annually by agency heads “under a rigorous performance management system,” and range from the minimum rate of basic pay for a senior level (SL) employee (120% of the minimum basic pay rate for GS-1 5; $114,468, as of January 2008) to either EX Level III ($158,500, as of January 2008), in agencies whose performance appraisal systems have not been certified by OPM as making “meaningful distinctions based on relative performance,” or EX Level II ($172,200, as of January 2008), in agencies whose performance appraisal systems have been so certified. 82 Christopher Lee, “Political Appointees “Burrowing In,” Washington Post, Oct. 5, 2007, p. A19. 83 See, for example, Robert Maranto, Beyond a Government of Strangers: How Career Executives and Political Appointees Can Turn Conflict to Cooperation (Lanham: Lexington Books, 2005), and Dana Michael Harsell, “Working With Career Executives to Manage for Results,” in Judith E. Michaels, Becoming An Effective Political Executive: 7 Lessons from Experienced Appointees, 2nd ed. (Washington: IBM Center for the Business of Government, Jan. 2005), pp. 34-44. 84 These regulations are codified at 5 C.F.R. §300.301(c), 5 C.F.R. §317.501, and 5 C.F.R. §317.903(c), respectively. 85 5 U.S.C. §4508 and 5 C.F.R. §451.105. 86 U.S. Office of Personnel Management, Memorandum for Heads of Departments and Agencies, from Linda M. Springer, Director, Appointments and Awards During the 2008 Presidential Election Period, March 17, 2008. 87 U.S. Office of Personnel Management, Presidential Transition Guide to Federal Human Resources Management, June 2008, available at [http://www. chcoc .gov/Transmittals/Attachments/trans 1 300 .pdf].

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U.S. Government Accountability Office, Personnel Practices; Conversions of Employees from Noncareer to Career Positions May 2001-April 2005, GAO06-38 1, May 2006, pp. 4-5. For a discussion of findings from earlier GAO evaluations, see CRS Report RS20730, Presidential Transitions and Administrative Actions, by L. Elaine Halchin, June 5, 2001, available from CRS. 89 See, for example, U.S. Congress, House Select Bipartisan Committee to Investigate the Preparation For and Response to Hurricane Katrina, A Failure of Initiative: Final Report of the Select Bipartisan Committee to Investigate the Preparation For and Response to Hurricane Katrina, 109th Cong., 2nd sess. (Washington: GPO, Feb. 15, 2006); U.S. Congress, Senate Committee on Homeland Security and Governmental Affairs, Hurricane Katrina: A Nation Still Unprepared. Special Report, 109th Cong., 2nd sess., S.Rept. 109322 (Washington: GPO, 2006); and U.S. Department of Justice, Office of Professional Responsibility and Office of the Inspector General, An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General, July 28, 2008. 90 Art. II, § 2, cl. 2. 91 Article 2, § 2, clause 3 reads, “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” 92 Each Congress covers a two-year period, generally composed of two sessions. 93 It has long been recognized that “the power of removal [is] incident to the power of appointment.” (Ex Parte Hennen, 38 U.S. (13 Pet.) 230, 259 (1839).) 94 There appears to be no standard clarifying under what circumstances the thresholds set by these statutory terms regarding removal might be met. (See Marshall J. Breger and Gary J. Edles, “Established by Practice: The Theory and Operation of Independent Federal Agencies,” Administrative Law Review, vol. 52 (2000), p. 1111, at pp. 1144-1145.) A Senate committee has asserted, however, that a removal for good cause must be based on “some type of misconduct,” as opposed to the refusal to carry out a presidential order. (See U.S. Congress, Senate Committee on Governmental Affairs, Independent Counsel Reauthorization Act of 1987, report to accompany S. 1293, 100th Cong., 1st sess., S.Rept. 100-123 (Washington: GPO, 1987), pp. 12-13.). 95 Although fixed terms and removal protections for department and agency positions are unusual, notable examples do exist. The position of Commissioner of Social Security, for example, has a six-year term, and “[a]n

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individual serving in the office of Commissioner may be removed from office only pursuant to a finding by the President of neglect of duty or malfeasance in office” (42 U.S.C. § 902(a).) 96 See, for example, S.E.C. v. Blinder, Robinson & Co., Inc., 855 F.2d 677, 681 (10th Cir. 1988), in which the Court of Appeals for the Tenth Circuit stated that “it is commonly understood that the President may remove a commissioner only for ‘inefficiency, neglect of duty or malfeasance in office.’” 97 As previously noted, a recess appointment can last for as much as nearly two years. A full fixed term is usually of longer duration, but sometimes individuals are appointed to the final portion of an unexpired term that is already under way (e.g., the final year of a five year term begun by another appointee). 98 Sen. Harry Reid, “Recess Appointments,” remarks in the Senate, Congressional Record, daily edition, vol. 153 (Nov. 16, 2007), p. S 14609. 99 A pro forma session is a short meeting of the House or Senate during which it is understood that no business will be conducted. 100 Sen. Harry Reid, “Order of Business,” remarks in the Senate, Congressional Record, daily edition, vol. 153 (Dec. 19, 2007), p. S 15980. 101 Sen. Harry Reid, “Order of Procedure,” remarks in the Senate, Congressional Record, daily edition, vol. 153 (Dec. 19, 2007), p. S 16069. 102 See Sen. Harry Reid, “Order of Procedure,” remarks in the Senate, Congressional Record, daily edition, vol. 154 (Feb. 14, 2008), p. S1085; Sen. Harry Reid, “Order of Procedure,” remarks in the Senate, Congressional Record, daily edition, vol. 154 (Mar. 14, 2008), p. S219; Sen. Harry Reid, “Orders of Procedure,” remarks in the Senate, Congressional Record, daily edition, vol. 154 (May 22, 2008), p. S4849; Sen. Carl Levin, “Orders for Monday, June 30, and Monday July 7, 2008,” remarks in the Senate, Congressional Record, daily edition, vol. 154 (Jun. 27, 2008), p. S6336; and Sen. Harry Reid, “Order for Pro Forma Sessions,” remarks in the Senate, Congressional Record, daily edition, vol. 154 (Aug. 1, 2008), p. S8077. 103 Sen. Harry Reid, “The Economy,” remarks in the Senate, Congressional Record, daily edition, vol. 154 (Sept. 17, 2008), p. S8907. 104 Sen. Carl Levin, “Orders for Monday, October 6, 2008, through Monday, November 17, 2008,” remarks in the Senate, Congressional Record, daily edition, vol. 154 (Oct. 2, 2008), p. 510504. 105 For additional information on this topic, see CRS Report RS20752, Submission of the President’s Budget in Transition Years, by Robert Keith. 106 The 1921 act was P.L. 67-13 (June 10, 1921); 42 Stat. 20; 31 U.S.C. §1105.

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The 1990 change was made by Section 131 12(c)(1) of the Budget Enforcement Act of 1990 (104 Stat. 1388-608 and 609), which was included in the Omnibus Budget Reconciliation Act of 1990 (P.L. 10 1-508). CRS Report 88-661 GOV, The President’s Budget Submission: Format, Deadlines, and Transition Years, by Virginia A. McMurtry and James V. Saturno, pp. 17-26. (The report is archived and may be obtained from the authors.) See U.S. Office of Management and Budget, Memorandum M-00-12, Requirements for Development of the FY2002 Transition Budget, June 2, 2000, available at [http://www.whitehouse.gov/omb/memoranda/m00-1 2.html]. U.S. Office of Management and Budget, Memorandum 08-17, Requirements for the FY 2010 Budget Process, April 7, 2008, p. 1, available at [http:// www.whitehouse.gov/omb/memoranda/fy2008/m08-1 7.pdf].

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In: Presidential Transitions: Backgrounds and Issues ISBN 978-1-60741-124-6 Editor: Ida E. Burkhalter, p. 91-113 © 2009 Nova Science Publishers, Inc.

Chapter 3

MIDNIGHT RULEMAKING: CONSIDERATIONS * FOR CONGRESS AND A NEW ADMINISTRATION Curtis W. Copeland

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ABSTRACT At the end of every recent presidential administration involving a change in the party controlling the White House, the level of rulemaking activity by federal agencies tends to increase. On May 9, 2008, White House Chief of Staff Joshua B. Bolten issued a memorandum to the heads of executive departments and agencies stating that “regulations to be finalized in this Administration should be proposed no later than June 1, 2008, and final regulations should be issued no later than November 1, 2008.” Despite this directive, federal agencies appear to be issuing an increasing number of “midnight rules” at the end of the Bush Administration, including a number of rules attracting controversy. One approach that previous Presidents have used to control rulemaking at the start of their administrations has been the imposition of a moratorium on new regulations by executive departments and independent agencies, accompanied by a requirement that the departments and agencies postpone the effective dates of certain rules. However, for rules that have already been published in the Federal Register, the only way for the departments or agencies to eliminate or change the rules is by going back through the *

Excerpted from CRS Report for Congress, Order Code RL34747, dated November 18, 2008.

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rulemaking process. Although the Administrative Procedure Act (5 U.S.C. § 551 et seq.) permits agencies to shorten the rulemaking process for “good cause,” an agency’s use of this exception is subject to judicial review. The Congressional Review Act (CRA, 5 U.S.C. §§ 801-808) permits the use of expedited procedures, primarily in the Senate, to disapprove agencies’ final rules. The CRA requires that agencies submit all final rules to Congress before they take effect. If Congress adjourns its annual session sine die less than 60 “legislative days” in the House of Representatives or 60 “session days” in the Senate after a rule is submitted to it, then the rule is carried over to the next session of Congress and subject to possible disapproval during that session. Although only one rule has been disapproved using CRA procedures since the legislation was enacted in 1996, Congress has frequently added provisions to agency appropriations bills to prohibit the finalization of particular proposed rules, prohibit the development of particular regulations, restrict the implementation or enforcement of certain rules, and put conditions on the development or implementation of particular rules. Unlike CRA disapprovals, however, these provisions do not eliminate the regulations from the Code of Federal Regulations, and do not prevent the agency from issuing the same or similar regulation.

As various authors have documented, at the end of every recent presidential administration involving a change in the party controlling the White House, the level of rulemaking activity by federal agencies tends to increase — a phenomenon often referred to as “midnight rulemaking.”1 For example, Jay Cochran of the Mercatus Center at George Mason University reported that, between 1948 and 2001, when the party in control of the White House changed, the number of pages printed in the Federal Register increased an average of 17% during the final three months of an outgoing administration when compared to the number of pages during the same period in non-election years.2 Susan Dudley, the current administrator of the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB), wrote in 2001 (while a senior research fellow at the Mercatus Center) that the sharp increase in regulatory output at the end of the Clinton Administration was “not an anomaly,” and that “sudden bursts of regulatory activity at the end of a presidential administration are systematic, significant, and cut across party lines.”3 One explanation for the issuance of “midnight rules” is the desire of the outgoing administration to complete its work and achieve certain policy goals before the end of its term of office — what Cochran termed the “Cinderella

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effect.” However, issuing midnight rules can also help ensure a legacy for a President. As another observer said, putting agency rules into effect before the end of a presidency is “a way for an administration to have life after death.”4

MIDNIGHT RULES AT THE END OF THE BUSH ADMINISTRATION Recognizing the tendency for midnight rulemaking at the end of a presidency, on May 9, 2008, White House Chief of Staff Joshua B. Bolten issued a memorandum to the heads of executive departments and agencies stating that, except for “extraordinary circumstances, regulations to be finalized in this Administration should be proposed no later than June 1, 2008, and final regulations should be issued no later than November 1, 2008.”5 He also said the administrator of OIRA would “coordinate an effort to complete Administration priorities in this final year,” and that the OIRA administrator would “report on a regular basis regarding agency compliance with this memorandum.”6

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Final Rules Submitted Despite this initiative, federal agencies appear to be issuing an increasing number of rules at the end of the Bush Administration. One indication is the number of final rules that are being sent to the Government Accountability Office (GAO) pursuant to requirements in the Congressional Review Act (CRA, 5 U.S.C. §§ 801- 808).7 According to data obtained from GAO, from January through May 2008, GAO received an average of 232 rules per month from federal agencies. However, from June through October 2008, GAO received an average of 310 rules per month — a 3 3.6% increase. The rate of rule submissions from June through October 2008 is also higher when compared to the same Junethrough-October period in 2007 (241 rules per month in 2007 compared with 310 rules per month in 2008 — a 28.6% increase). The CRA also requires GAO to provide Congress with a report on each “major” rule (e.g., rules with at least a $100 million impact on the economy) within 15 calendar days of the rule being sent to GAO and Congress.8 During the first five months of 2008, federal agencies sent a total of 21 major rules to GAO. However, in the second five months of 2008 (June through October), the agencies sent GAO 46 major rules (including 18 in the month of October alone) — a 119%

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increase. The number of major rules in the second five months of 2008 is also higher than the number in the second five months of 2007 (46 major rules during this period in 2008 compared with 28 major rules in 2007 — a 64% increase).

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Rules Under OIRA Review Another indication of increased rulemaking activity in the final months of the Bush Administration is the number of rules being reviewed by OIRA before being published in the Federal Register. Although the OIRA data do not include rules issued by independent boards and commissions (e.g., the Securities and Exchange Commission, or the Federal Communications Commission), the data do include all cabinet departments and independent agencies like the Environmental Protection Agency (EPA) and the Social Security Administration. Also, the data include only rules considered “significant” under Executive Order 12866 — rules that are the most likely to be controversial.9 In September and October 2008, OIRA reviewed a total of 149 significant rules, including 103 final rules. The monthly average number of rules reviewed in September and October (75) was nearly 50% higher than the average for the preceding eight months of 2008 (51). More tellingly, the monthly average number of final rules that OIRA reviewed in September and October (52) was more than three times the average of the previous eight months (16). Also, the number of rules that OIRA reviewed in September and October 2008 was nearly 70% higher than the same two months in 2007 (149 versus 88), and the number of final rules was nearly 150% higher (103 versus 42). There is also evidence that the pace of OIRA’s work is continuing. As of October 31, 2008, there were 136 rules under review at OIRA, including 84 final rules. The agencies with the most rules under review at OIRA at that time were • • • • •

EPA (21 rules, including 7 final rules); the Department of Health and Human Services (HHS, 18 rules, including 13 final rules); the Department of Justice (DOJ, 11 rules, including 8 final rules); the Department of Veterans Affairs (DVA, 11 rules, including 8 final rules); the Department of Transportation (DOT, 11 rules, including 7 final rules); and

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the Department of Homeland Security (DHS, 10 rules, including 8 final rules).

At least 14 of the 136 rules that were under review at OIRA were “economically significant” rules (e.g., rules that are expected to have a $100 million impact on the economy) that would probably not be allowed to take effect for 60 days after they were published in the Federal Register.10

Rules Attracting Controversy Several Members of Congress and others have expressed concerns about many proposed and final rules that have been published or that are still under review, and some have called for the next President or Congress to stop certain rules from taking effect.11 Rules that have been identified as problematic include the following:

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•

•

•

•

an EPA “new source review” rule that, if made final, would alter current requirements stipulating when upgrades at older power plants would require the installation of modern anti-pollution equipment.12 EPA said that the change would balance environmental protection with the “economic need of sources to use existing physical and operating capacity.” However, environmental groups contend that the change would weaken existing protections and conflicts with a recent decision of the Supreme Court related to this issue.13 a Department of the Interior (DOI) rule that, in the words of the proposal, requires that surface coal mining operations “minimize the creation of excess spoil and the adverse environmental impacts of fills,” but that some observers have said would allow deposits of waste mountaintop material within 100 feet of certain streams.14 a DOI proposed rule that would, among other things, give federal agencies greater responsibility in determining when and how their actions may affect species under the Endangered Species Act.15 Several Members of Congress have expressed concerns about the draft rule, and congressional hearings are expected.16 a DOJ proposed rule that would “clarify and update” the policies governing criminal intelligence systems that receive federal funding, but that some contend would make it easier for state and local police to

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•

•

•

•

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•

•

collect, share, and retain sensitive information about Americans, even when no underlying crime is suspected.17 a DOJ proposed rule that would “adopt enforceable accessibility standards under the Americans with Disabilities Act of 1990 (ADA),” but that critics contend would weaken those standards and reduce enforcement efforts.18 an EPA revision of the definition of “solid waste” that would exclude certain types of sludge and byproducts (referred to in the proposed rule as “hazardous secondary waste”) from regulation under the Resource Conservation and Recovery Act.19 an EPA rule that is expected to change how pollution levels are measured under certain parts of the Clean Air Act, and that some contend will change emissions standards for industrial facilities operating near national parks.20 a National Park Service rule that, if consistent with the April 2008 proposal, would change the agency’s current policy and permit state laws to determine whether concealed firearms could be carried in national parks.21 a proposed amendment to the Federal Acquisition Regulation to require certain contractors and subcontractors to use the E-Verify system to confirm that certain of their employees are eligible to work in the United States, but which the U.S. Chamber of Commerce and others said contravenes the intent of Congress and raises numerous practical difficulties.22 a Department of Labor proposed rule that would change the way that occupational health risk assessments are conducted within the department. Legislation has been introduced in the 1 10th Congress (H.R. 6660 and S. 3566) that would prohibit the issuance or enforcement of this rule.23

As discussed in detail in the remainder of this report, various options are available to both a new President and Congress to delay or prevent the implementation of regulations viewed as problematic, or to eliminate them entirely.

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OPTIONS FOR A NEW ADMINISTRATION One approach that previous Presidents have used to control rulemaking at the start of their administrations has been the imposition of a moratorium on new regulations by executive departments and independent agencies, accompanied by a requirement that the departments and agencies postpone the effective dates of certain rules.24 However, for rules that have already been published in the Federal Register, the only way for the departments or agencies to eliminate or change the rules is by going back through the rulemaking process.

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Regulatory Moratoriums and Postponements On January 29, 1981, shortly after taking office, President Reagan issued a memorandum to the heads of the Cabinet departments and the EPA Administrator directing them to take certain actions that would give the new administration time to implement a “new regulatory oversight process,” particularly for “last-minute decisions” made by the previous administration.25 Specifically, the memorandum said that agencies should, to the extent permitted by law, (1) postpone for 60 days the effective date of all final rules that were scheduled to take effect during the next 60 days, and (2) refrain from promulgating any new final rules. Executive Order 12291, issued a few weeks later, contained another moratorium on rulemaking that supplemented, but did not supplant, the January 29, 1981, memorandum.26 Section 7 of the executive order directed agencies to “suspend or postpone the effective dates of all major rules that they have promulgated in final form as of the date of this Order, but that have not yet become effective.” Excluded were major rules that could not be legally postponed or suspended, and those that ought to become effective “for good cause.” Agencies were also directed to refrain from promulgating any new final rules until a final regulatory impact analysis had been conducted. On January 22, 1993, Leon E. Panetta, the Director of OMB for the incoming Clinton Administration, sent a memorandum to the heads and acting heads of Cabinet departments and independent agencies requesting them to (1) not send proposed or final rules to the Office of the Federal Register for publication until they had been approved by an agency head appointed by President Clinton and confirmed by the Senate, and (2) withdraw from the Office of the Federal Register all regulations that had not been published in the Federal Register and that could be withdrawn under existing procedures.27 The requirements did not apply,

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however, to any rules that had to be issued immediately because of a statutory or judicial deadline. The OMB Director said these actions were needed because it was “important that President Clinton’s appointees have an opportunity to review and approve new regulations.” Most recently, on January 20, 2001, Andrew H. Card, Jr., assistant to President George W. Bush and chief of staff, sent a memorandum to the heads and acting heads of all executive departments and agencies generally directing them to (1) not send proposed or final rules to the Office of the Federal Register, (2) withdraw from the Office rules that had not yet been published in the Federal Register, and (3) postpone for 60 days the effective date of rules that had been published but had not yet taken effect.28 The Card memorandum instructed agencies to exclude any rules promulgated pursuant to statutory or judicial deadlines, and to notify the OMB Director of any rules that should be excluded because they “impact critical health and safety functions of the agency.” The memorandum indicated that these actions were needed to “ensure that the President’s appointees have the opportunity to review any new or pending regulations.”

Effects of the Card Memorandum In February 2002, GAO reported on the delay of effective dates of final rules subject to the Card memorandum.29 GAO indicated that 371 final rules were subject to this aspect of the Card memorandum, and federal agencies delayed the effective dates of at least 90 of them. As of the one- year anniversary of the Card memorandum, most of the 90 rules had taken effect, but one had been withdrawn and not replaced by a new rule, three had been withdrawn and replaced by new rules, and nine others had been altered (e.g., different implementation date or reporting requirement). While some agencies allowed the public to comment on the extensions of the effective dates, most agencies simply published final rules citing the Administrative Procedure Act’s “good cause” or “procedural rule” exceptions to notice and comment rulemaking.30 One author noted that such practices “tended to evade judicial challenge due to their short time frames, but they did occasion criticism.”31 The Bolten Memorandum Viewed in this context, the May 2008 memorandum by White House Chief of Staff Bolten represents both a continuation of a trend of presidential involvement in rulemaking and an evolution in that involvement. Because the Congressional Review Act prohibits “major” rules from taking effect for 60 days after they are promulgated, one effect of the Bolten memorandum’s requirement that final rules

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be published in the Federal Register by November 1, 2008, would be to ensure that these rules will have taken effect before the 111th Congress begins in early January, and before the new President takes office on January 20, 2009. As a result, the new President would be unable to do what was done via the Card memorandum — direct federal agencies to extend the effective dates of any rules that had been published during the final days of the Bush Administration, but had not taken effect — since the rules would have already taken effect by the time the next President takes office. However, the OIRA data discussed previously indicate that at least some major rules could be published late enough that they may not take effect before January 20, 2009, thereby presenting an opportunity for their effective dates to be extended by the next administration.32 One recent publication recommended that President-elect Obama do so.33

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New Rulemaking to Eliminate or Change Rules If an agency has published a proposed rule, but has not published a final rule, the agency is under no obligation to issue a final rule unless required to do so by tatute or court order. To preclude further action on a rule, the agency may wish to publish a notice in the Federal Register announcing its withdrawal of the rule.34 Once a final rule has been published in the Federal Register, the only way for an agency to change or undo the rule is by going back through the federal rulemaking process.35 Under informal rulemaking procedures established by the Administrative Procedure Act (APA, 5 U.S.C. § 551 et seq.), agencies are generally required to publish a notice of proposed rulemaking (NPRM) in the Federal Register, allow “interested persons” an opportunity to comment on the proposed rule, and, after considering those comments, publish the final rule along with a general statement of its basis and purpose. The APA does not specify how long rules must be available for comment, but agencies commonly allow at least 30 days. The APA generally says that the final rule cannot become effective until at least 30 days after its publication. However, the APA (5 U.S.C. § 553) states that full “notice and comment” procedures are not required when an agency finds, for “good cause,” that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Agencies can also make their rules take effect in less than 30 days by invoking the “good cause” exception.36 When agencies use the good cause exception, the APA requires that they explicitly say so and provide a rationale for the exception’s use when the rule is published in the Federal Register. The APA also provides explicit

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exceptions to the NPRM requirement for certain categories of regulatory actions, such as rules dealing with military or foreign affairs; agency management or personnel; or public property, loans, grants, benefits, or contracts. Further, the APA says that the NPRM requirements do not apply to interpretative rules; general statements of policy; or rules of agency organization, procedure, or practice. Two procedures for noncontroversial and expedited rulemaking were designed not to involve NPRMs. “Direct final” rulemaking involves agency publication of a rule in the Federal Register with a statement that the rule will be effective on a particular date unless an adverse comment is received within a specified period of time (e.g., 30 days). However, if an adverse comment is filed, the direct final rule is withdrawn and the agency may publish the rule as a proposed rule under normal NPRM procedures. Direct final rulemaking can be viewed as a particular application of the APA’s good cause exception in which agencies claim NPRMs are “unnecessary.”37 The other procedure is what is known as “interim final” rulemaking, in which an agency issues a final rule without an NPRM that is generally effective immediately, but with a postpromulgation opportunity for the public to comment. If the public comments persuade the agency that changes are needed in the interim final rule, the agency may revise the rule by publishing a final rule reflecting those changes. Interim final rulemaking can be viewed as another particular application of the good cause exception in the APA, but with the addition of a comment period after the rule has become effective.38 The legislative history of the APA makes it clear that Congress did not believe that the act’s good cause exception to the notice and comment requirements should be an “escape clause.”39 A federal agency’s invocation of the good cause exception (or other exceptions to notice and comment procedures) is subject to judicial review. After having reviewed the totality of circumstances, the courts can and sometimes do determine that an agency’s reliance on the good cause exception was not authorized under the APA.40 The case law has generally reinforced the view that the good cause exception should be “narrowly construed.”41 That said, GAO reported that about half of the 4,658 final rules published in 1997 were not preceded by an NPRM, and that, in these cases, the agencies most commonly cited the good cause exception.42

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POSSIBLE CONGRESSIONAL APPROACHES Congress may examine proposed and final “midnight” regulations being issued at the end of the Bush Administration and conclude that they should be allowed to go forward. Should Congress conclude otherwise, though, various options are available — even for rules that have already taken effect.

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Congressional Review Act Congress may use its general powers to overturn agency rules by regular legislation. However, for various reasons, Congress may find it difficult to do so. The Congressional Review Act (CRA), enacted in March 1996, was an attempt by Congress to reassert control over agency rulemaking by establishing a special set of expedited or “fast track” legislative procedures for this purpose, primarily in the Senate.43 In essence, the act requires that all final rules (including rules issued by independent boards and commissions) be submitted to both houses of Congress and to GAO before they can take effect. Members of Congress have 60 “days of continuous session” to introduce a joint resolution of disapproval after a rule has been submitted to Congress (hereafter referred to as the “initiation period”).44 The Senate has 60 “session days” from the date the rule is submitted to Congress to use expedited procedures to act on a resolution of disapproval (hereafter referred to as the “action period”).45 For example, once a joint resolution has reached the floor of the Senate, the CRA makes consideration of the measure privileged, prohibits various other dilatory actions, disallows amendments, and limits floor debate to 10 hours. If passed by both houses of Congress, the joint resolution is then presented to the President for signature or veto. If the President signs the resolution, the CRA specifies not only that the rule “shall not take effect” (or shall not continue if it has already taken effect), but also that the rule may not be reissued in “substantially the same form” without subsequent statutory authorization.46 Also, the act states that any rule disapproved through these procedures “shall be treated as though such rule had never taken effect.”47 If, on the other hand, the President vetoes the joint resolution, then (as is the case with any other piece of legislation) Congress can override the President’s veto by a two-thirds vote in both houses of Congress. Under most circumstances, it is likely that the President would veto such a resolution in order to protect rules developed under his own administration, and it

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may also be difficult for Congress to muster the two-thirds vote in both houses needed to overturn the veto. Of the nearly 50,000 final rules that have been submitted to Congress since the legislation was enacted in March 1996, the CRA has been used to disapprove only one rule — the Occupational Safety and Health Administration’s November 2000 final rule on ergonomics.48 The March 2001 rejection of the ergonomics rule was the result of a specific set of circumstances created by a transition in party control of the presidency. The majority party in both houses of Congress was the same as the party of the incoming President (George W. Bush). When the new Congress convened in 2001 and adopted a resolution disapproving the rule published under the outgoing President (William J. Clinton), the incoming President did not veto the resolution. Congress may be most able to use the CRA to disapprove rules in similar, transition-related circumstances.49

CRA “Carryover” Provisions The ergonomics disapproval was also an example of the “carryover” provisions in the CRA. Section 801(d) of the CRA provides that, if Congress adjourns its annual session sine die less than 60 legislative days in the House of Representatives or 60 session days in the Senate after a rule is submitted to it, then the rule is subject, during the following session of Congress, to (1) a new initiation period in both chambers and (2) a new action period in the Senate.50 The purpose of this provision is to ensure that both houses of Congress have sufficient time to consider disapproving rules submitted during this end-ofsession “carryover period.” In any given year, the carryover period begins after the 60th legislative day in the House or session day in the Senate before the sine die adjournment, whichever date is earlier. The renewal of the CRA process in the following session occurs even if no resolution to disapprove the rule had been introduced during the session when the rule was submitted. For purposes of this new initiation period and Senate action period, a rule originally submitted during the carryover period of the previous session is treated as if it had been published in the Federal Register on the 1 5th legislative day (House) or session day (Senate) after Congress reconvenes for the next session. In each chamber, resolutions of disapproval may be introduced at any point in the 60 days of continuous session of Congress that follow this date, and the Senate may use expedited procedures to act on the resolution during the 60 days of session that follow the same date.

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The Second Session of the 110th Congress The exact starting point for the CRA carryover period in the second session of the 1 10th Congress can be determined only after sine die adjournment has taken place. However, the likely date or range of dates may be illuminated by examining congressional activity in prior years. Perhaps most relevantly, since the CRA was enacted in March 1996, the starting points for the carryover periods during second sessions of Congress have always been determined by the House of Representatives, and have ranged from May 12 to June 23, with the median starting point being June 7.51 There are some indications that the cutoff date for the carryover provisions in the second session of the 1 10th Congress may be even earlier. Again, it appears that the calendar for the House of Representatives will determine the cutoff date (because the Senate has been in session more days late in the year). If the House of Representatives meets for three days in November 2008 and then goes into recess until sine die adjournment, the 60th legislative day prior to adjournment will be May 14, 2008. Under these conditions, any final rule sent to Congress after May 14, 2008, will be subject to disapproval in the 111th Congress.

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Appropriations Provisions Although the CRA has been used only once to overturn an agency rule, Congress has frequently used provisions added to agency appropriations bills to affect rulemaking and regulations. A CRS analysis of the Consolidated Appropriations Act for 2008 revealed nearly two dozen such provisions in the act, which generally fell into four categories: (1) prohibitions on the finalization of particular proposed rules, (2) prohibitions on the development of regulations with regard to particular statutes or issues, (3) restrictions on implementation or enforcement, and (4) conditional restrictions on the development or implementation of particular rules.52 A review of appropriations legislation that was enacted from FY1 999 through FY2007 indicated that many of the regulatory restrictions in the Consolidated Appropriations Act for 2008 had appeared in one or more appropriations statutes in previous years. Some were in relevant appropriations bills in all 10 years, some had been in multiple years (but not all 10), and some were present in only one year. In some cases, the provisions appear to have been designed to slow down or prevent the issuance of “midnight” rules issued near the end of a presidential administration, or to ensure the implementation of rules issued during that period.

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These restrictions in appropriations bills illustrate that Congress can have a substantial effect on agency rulemaking and regulatory activity beyond the introduction of joint resolutions of disapproval pursuant to the CRA. However, unlike CRA joint resolutions of disapproval, these appropriations provisions cannot nullify an existing regulation (i.e., remove it from the Code of Federal Regulations) or permanently prevent the agency from issuing the same or similar regulations. Therefore, any final rule that has taken effect and been codified in the Code of Federal Regulations will continue to be binding law — even if language in the relevant regulatory agency’s appropriations act prohibits the use of funds to enforce the rule. Regulated entities are still required to adhere to applicable requirements (e.g., installation of pollution control devices, submission of relevant paperwork), even if violations are unlikely to be detected and enforcement actions cannot be taken by federal agencies. Also, unless otherwise indicated, regulatory restrictions in appropriations acts are binding only for the period of time covered by the legislation (i.e., a fiscal year or a portion of a fiscal year).53 Therefore, any restriction that is not repeated in the next relevant appropriations act or enacted in other legislation is no longer binding on the relevant agency or agencies. However, some appropriations provisions are worded in such a way that they have essentially become permanent or multi-year requirements. Most of the regulatory restrictions are in appropriations bills providing funds for particular agencies or groups of agencies. Therefore, the prohibitions are generally applicable only to the agencies funded by that appropriations measure. However, some of the regulatory prohibitions are in the “General Provisions — Government- wide” section of one of the appropriations measures (for FY2008, Title VII of the Financial Services and General Government Appropriations Act), and are, therefore, applicable to virtually all federal agencies. Other provisions are worded in such a way that their effects are broader than the agencies funded by those particular appropriations bills (e.g., those that prohibit the use of funds in “this or any other Act” to publish or implement regulations).54 On the other hand, some of the appropriations provisions limiting regulatory actions may not be as restrictive as they initially appear. Some federal regulatory agencies derive a substantial amount of their operating funds from sources other than congressional appropriations (e.g., user fees), and the use of those funds to develop, implement, or enforce rules may not be legally constrained by language preventing the use of appropriated funds.55 Also, some federal regulations (e.g., many of those issued by the Environmental Protection Agency and the Occupational Safety and Health Administration) are primarily implemented or

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enforced by state or local governments, and those governments may have sources of funding that are independent of the federal funds that are restricted by the appropriations provisions. Some state or local governments may also have their own statutory and regulatory requirements that are the same as or similar to the federal rules at issue, or may even go beyond federal standards.56 If state or local funds or legal authorities are used to develop, implement, or enforce regulations, those actions would not appear to be constrained by statutory provisions limiting the use of federal funds to restrict action on particular federal laws and regulations.57 Agencies may also find ways around provisions prohibiting the use of appropriated funds for rulemaking or other regulatory actions. For example, if an agency is not permitted to use its appropriation to issue a formal rule on a particular issue, it might attempt to achieve the end result through other means (e.g., a guidance document that, while technically having no binding effect, may be granted great deference by affected parties).58 More generally, if Congress restricts one agency or group of agencies from issuing a rule on a particular topic, another agency with similar or overlapping statutory authority may be assigned that responsibility.

ENDNOTES 1

See Jerry Brito and Veronique de Rugy, “Midnight Regulations and Regulatory Review,” Working Paper No. 08-34, Mercatus Center, George Mason University, available at [http://www.mercatus.org/uploadedFiles/Mercatus/ Publications/Midnight%20Regulation s.pdf] for a recent example of this research. 2 Jay Cochran, III, The Cinderella Constraint: Why Regulations Increase Significantly During Post-Election Quarters (Arlington, VA: Mercatus Center, 2001), available at [http://www.mercatus.org/Publication Details.aspx?id=1 7546]. 3 Susan E. Dudley, “Reversing Midnight Regulations,” Regulation, Spring 2001, p. 9. 4 John M. Broder, “A Legacy Bush Can Control,” New York Times, September 9, 2007, p. A1, quoting Phillip Clapp, president of the National Environmental Trust. 5 See [http://www.whitehouse.gov/omb/inforeg/cos_memo_5_9_08.pdf] for a copy of this memorandum. The memorandum said that agencies needed to

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“resist the historical tendency of administrations to increase regulatory activity in their final months.” 6 Under Executive Order 12866, OIRA reviews all significant rules before they are published in the Federal Register, and is the President’s chief representative in the rulemaking process. See CRS Report RL32397, Federal Rulemaking: The Role of the Office of Information and Regulatory Affairs, by Curtis W. Copeland. 7 The Congressional Review Act (in 5 U.S.C. § 801(a)(1)(A)) requires all final rules to be sent to each house of Congress and GAO before they can take effect. This requirement applies to all federal agencies, including independent boards and commissions such as the Securities and Exchange Commission and the Federal Communications Commission. 8 5 U.S.C. § 801(a)(2)(A). 9 Section 3(f) of Executive Order 12866 defines a rule as “significant” if it would “(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in this Executive order.” 10 As discussed later in this report, Section 801(a)(3) of the Congressional Review Act generally requires the effective dates of all “major” rules to be delayed for at least 60 days after publication in the Federal Register or presentation to Congress, whichever is later. The definitions of an “economically significant” rule and a “major” rule are essentially the same. 11 For example, the chairman of the House Select Committee on Energy Independence and Global Warming released a report on October 31, 2008, listing a number of rules that the majority staff considered problematic. To view a copy of this report, see [http://globalwarming.house.gov/ mediacenter/pressreleases_2008?id=0056]. The same day, the Speaker of the House issued a list of “ghoulish midnight regulations” being issued by the Bush Administration. To view a copy of this list, see [http://www.speaker.gov/ blog/?p=1 567]. On November 3, 2008, OMB Watch published a list of “controversial rules worth watching.” To view this list, see [http://www.ombwatch.org/article/blogs/ entry/5494]. For a recent

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article on this issue, see Cindy Skrzycki, “Democrats Eye Bush Midnight Regulations,” Washington Post, November 11, 2008, p. D3. For the proposed rule, see U.S. Environmental Protection Agency, “Supplemental Notice of Proposed Rulemaking for Prevention of Significant Deterioration and Nonattainment New Source Review: Emission Increases for Electric Generating Units,” 72 Federal Register 26201, May 8, 2007. American Lung Association, EarthJustice, Environmental Defense, Natural Resources Defense Council, and Sierra Club; “Comments on EPA’s Proposed ‘Supplemental Notice of Proposed Rulemaking for Prevention of Significant Deterioration and Nonattainment New Source Review: Emission Increases for Electric Generating Units,’” available at [http://www.regulations.gov/ fdmspublic/component/main?main=DocumentDetail&o=0900006480273 d62]. For the proposed rule, see U.S. Department of the Interior, Office of Surface Mining Reclamation and Enforcement, “Excess Spoil, Coal Mine Waste, and Buffers for Waters of the United States,” 72 Federal Register 48889, August 24, 2007. The final rule has been under review at OIRA since September 22, 2008. For characterizations of the rule, see John M. Broder, “Rule to Expand Mountaintop Coal Mining,” New York Times, August 23, 2007, p. A1. For the proposed rule, see U.S. Department of the Interior, Fish and Wildlife Service, and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, “Interagency Cooperation Under the Endangered Species Act,” 73 Federal Register 47868, August 15, 2008. On September 12, 2008, the agencies extended the comment period for this rule to October 14, 2008, and on October 27, 2008, the agencies allowed comment on the draft environmental assessment until November 6, 2008. See also Juliet Eilperin, “Endangered Species Act Changes Give Agencies More Say,” Washington Post, August 12, 2008, p. A1, for characterizations of the rule. For more detailed information about this rule, see CRS Report RL3464 1, Proposed Changes to Regulations Governing Consultation Under the Endangered Species Act (ESA), by Kristina Alexander and M. Lynne Corn. For the proposed rule, see U.S. Department of Justice, Office of Justice Programs, “Criminal Intelligence Systems Operating Procedures,” 73 Federal Register 44673, July 31, 2008. For a characterization of the rule, see Spencer S. Hsu and Carrie Johnson, “U.S. May Ease Police Spy Rules,” Washington Post, August 16, 2008, p. A1. For the proposed rule, see U.S. Department of Justice, Civil Rights Division, “Nondiscrimination on the Basis of Disability by Public Accommodations

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and in Commercial Facilities,” 73 Federal Register 34508, June 17, 2008. For a characterization of the rule, see “Ghoulish Midnight Regulations,” available at [http://www.speaker.gov/ blog/?p=1 567]. The final rule was published on October 30, 2008. See U.S. Environmental Protection Agency, “Revisions to the Definition of Solid Waste,” 73 Federal Register 64668, October 30, 2008. For more information on this rule and the perspectives of various parties, see Charlotte E. Tucker, “EPA Completing Last Steps for Regulation to Redefine Waste to Encourage Recycling,” BNA Daily Report for Executives, July 17, 2008, p. C-1. Juliet Eilperin, “Clean-Air Rules Protecting Parks Set to Be Eased,” Washington Post, May 16, 2008, p. A1; and Mark Clayton, “Why National Parks, Coal-Fired Power Plants May Be Neighbors,” Christian Science Monitor, April 24, 2008, p. 13. For the proposed rule, see U.S. Environmental Protection Agency, “Prevention of Significant Deterioration New Source Review: Refinement of Increment Modeling Procedures,” 72 Federal Register 31371, June 6, 2007. The final rule has been under review at OIRA since October 30, 2008. In an April 2008 letter responding to questions posed by the chairman of the House Committee on Oversight and Government Reform, EPA said it was “unable to conclusively confirm or deny” suggestions from the National Park Service that the proposed rule would make it easier to build power plants near national parks. See [http://oversight.house.gov/ documents/200805 141 80808.pdf]. U.S. Department of the Interior, National Park Service, “General Regulations for Areas Administered by the National Park Service and the Fish and Wildlife Service,” 73 Federal Register 2338, April 30, 2008. The final rule has been under review at OIRA since November 4, 2008. For the proposed rule, see U.S. Department of Defense, General Services Administration, and National Aeronautics and Space Administration, “Federal Acquisition Regulation; FAR Case 2007-013, Employment Eligibility Verification,” 73 Federal Register 33374, June 12, 2008. See [http://www.uschamber.com/assets/labor/08081 1_fed_Ks.pdf] for the views of the U.S. Chamber of Commerce. The day after this proposed rule was published, the Department of Homeland Security announced it was requiring its contractors to use the E- verify program. U.S. Department of Homeland Security, Office of the Secretary, “Designation of the Electronic Employment Eligibility Verification System Under Executive Order 12989, as Amended by the Executive Order Entitled ‘Amending Executive Order 12989, as Amended’ of June 6, 2008,” 73 Federal Register 33837, June 13, 2008. OIRA received the final rule on October 14, 2008, and completed its review

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on October 31, 2008. As of November 12, 2008, the final rule had not been published in the Federal Register. 23 For the proposed rule, see U.S. Department of Labor, Office of the Secretary, “Requirements for DOL Agencies’ Assessment of Occupational Health Risks,” 73 Federal Register 50909, August 29, 2008. For characterizations of the rule, see Carol D. Leonnig, “U.S. Rushes to Change Workplace Toxin Rules,” Washington Post, July 23, 2008, p. A1; and Gayle Cinquegrani, “Miller Introduces House Bill to Prohibit DOL ‘Secret Rule’ onWorkplace Toxin Exposure,” BNA Daily Report for Executives, August 1, 2008, p. A-7. On August 18, 2008, a Washington Post editorial recommended that the Department of Labor withdraw its proposed rule (“A Toxic Proposal: The Labor Department Politicizes a Regulation of Workplace Health,” Washington Post, August 18, 2008, p. A 10). 24 All of these presidential moratoriums on rulemaking have generally exempted regulations issued by independent regulatory boards and commissions, as well as regulations issued in response to emergency situations or statutory or judicial deadlines. 25 See [http://www.presidency.ucsb.edu/ws/index.php?pid=44 134] for a copy of this memorandum. 26 Executive Order 12291, “Federal Regulation,” 46 Federal Register 13193, February 17, 1981. 27 See [http://www.prop1 .org/rainbow/adminrec/930122lp.htm] for a copy of this memorandum. 28 U.S. White House Office, “Regulatory Review Plan,” Federal Register, vol. 66, no. 16, January 24, 2001, p. 7702. To view a copy of this memorandum, see [http://www.whitehouse.gov/omb/inforeg/regreview_plan.pdf]. 29 General Accounting Office, Regulatory Review: Delay of Effective Dates of Final Rules Subject to the Administration’s Jan. 20, 2001, Memorandum, GAO-02-370R, February 15, 2002. 30 As discussed later in this report, the Administrative Procedure Act allows an agency to avoid notice and comment procedures for rules of agency organization, procedure, or practice when an agency finds, for “good cause,” that those procedures are “impracticable, unnecessary, or contrary to the public interest.” 31 Jeffrey S. Lubbers, ed., A Guide to Federal Agency Rulemaking, Fourth Edition (Chicago: ABA Publishing, 2006), pp. 12 1-122. For a discussion of these criticisms, see William M. Jack, “Taking Care That Presidential Oversight of the Regulatory Process is Faithfully Executed: A Review of Rule Withdrawals and Rule Suspensions Under the Bush Administration’s Card

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Memorandum,” Administrative Law Review, vol. 54 (Fall 2002), pp. 14791518. Some federal courts have considered any delay in a rule’s effective date to require notice and comment rulemaking. See Natural Resources Defense Council, Inc. v. EPA, 683 F.2d 752, 761 (3d Cir. 1982); and Council of the Southern Mountains v. Donovan, 653 F.2d 573 (D.C. Cir. 1981). One such action pursuant to the Card memorandum was rejected by a court. See Natural Resources Defense Council v. Abraham, 355 F.3d 179, 204-05 (2d Cir. 2004). 32 See also Ralph Lindeman, “Agencies Continue to Propose New Rules After White-House Imposed June Deadline,” BNA Daily Report for Executives, August 11, 2008, p. A-9. 33 OMB Watch, Advancing the Public Interest Through Regulatory Reform; Recommendations for President-Elect Obama and the 111th Congress, November 2008. The report was actually the product of a steering committee composed of 17 regulatory experts that was assembled by OMB Watch. Specifically, the report recommended the following: “Place a moratorium on finalizing new regulations, and review those rules finalized but not yet in effect, except those required by statutory deadlines, court order, or necessary to meet regulatory emergencies, for 60 days pending agency review and reconsideration.” 34 These withdrawals are recorded in the Unified Agenda of Federal Regulatory and Deregulatory Actions, which is published twice a year by the Regulatory Information Service Center within the General Services Administration. 35 Advocates of the “unitary executive” theory of presidential power assert that the President should be able to make the final decision regarding the substance of agency rules — even when Congress has assigned rulemaking responsibilities to agency officials. Even in those instances, however, it is the agency that must take the rulemaking action, not the President. The President cannot unilaterally eliminate or change a rule issued by an executive agency (e.g., by issuing an executive order), but advocates of the unitary executive and others assert that the President can generally direct an agency official to do so. For more on this issue, see testimony of Curtis W. Copeland, Specialist in American National Government, U.S. Congress, House Committee on the Judiciary, Federal Rulemaking and the Unitary Executive Principle, hearings, 1 10th Congress, 2nd sess., May 6, 2008 (available from the author). 36 The APA also allows rules to take effect in less than 30 days if the rule grants or recognizes an exemption or relieves a restriction, or if the rule is an interpretative rule or statement of policy.

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For more, see Ronald M. Levin, “More on Direct Final Rulemaking: Streamlining, Not Corner Cutting,” Administrative Law Review, 51 (Summer 1999), pp. 757-766. 38 For more, see Michael Asimow, “Interim Final Rules: Making Haste Slowly,” Administrative Law Review, 51 (Summer 1999), pp. 703-755. 39 Senate Committee on the Judiciary, Administrative Procedure Act: Legislative History, Senate Document 248, 79th Congress, 2nd sess. (1946). 40 For discussions of these court cases, see Ellen R. Jordan, “The Administrative Procedure Act’s ‘Good Cause’ Exemption,” Administrative Law Review, 36 (Spring 1984), pp. 113-178; and Catherine J. Lanctot, “The Good Cause Exception: Danger to Notice and Comment Requirements Under the Administrative Procedure Act,” Georgetown Law Journal, 68 (Feb. 1980), pp. 765-782. 41 See American Federation of Government Employees, AFL-CIO v. Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981); and Mo bay Chemical Corp. v. Gorsuch, (682 F.2d 419, 426 (3rd Cir.), cert. denied, 459 U.S. 988 (1982)). In another case (Action on Smoking and Health v. CAB, 713 F.2d 795, 800 (D.C. Cir. 1983)), the court said that allowing broad use of the good cause exception would “carve the heart out of the statute.” 42 U.S. General Accounting Office, Federal Rulemaking: Agencies Often Published Final Actions Without Proposed Rules, GAO/GGD-98-126, August 31, 1998. 43 The following discussion is a synopsis of more detailed information provided in other CRS reports. For a detailed discussion of CRA disapproval procedures, see CRS Report RL3 1160, Disapproval of Regulations by Congress: Procedure Under the Congressional Review Act, by Richard S. Beth. For a discussion of the “carryover” procedures, see CRS Report RL34633, Congressional Review Act: Disapproval of Rules in a Subsequent Session of Congress, by Curtis W. Copeland and Richard S. Beth. For a discussion of the implementation of the CRA, see CRS Report RL30 116, Congressional Review of Agency Rulemaking: An Update and Assessment of the Congressional Review Act After a Decade, by Morton Rosenberg. 44 “Days of continuous session” excludes all days when either the House of Representatives or the Senate is adjourned for more than three days. 45 “Session days” include only calendar days on which a chamber is in session. Once introduced, resolutions of disapproval are referred to the committees of jurisdiction in each house of Congress. The House of Representatives would consider the resolution under its general procedures, very likely as prescribed by a special rule reported from the Committee on Rules. In the Senate,

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however, if the committee has not reported a disapproval resolution within 20 calendar days after the regulation has been submitted and published, then the committee may be discharged of its responsibilities and the resolution placed on the Senate calendar if 30 Senators submit a petition to do so. 46 5 U.S.C. § 801(b)(2). 47 5 U.S.C. § 801(f). 48 U.S. Department of Labor, Occupational Safety and Health Administration, “Ergonomics Program,” 65 Federal Register 68261, November 14, 2000. Although the CRA has been used to disapprove only one rule, it may have other, less direct or discernable effects (e.g., keeping Congress informed about agency rulemaking and preventing the publication of rules that may be disapproved). 49 See, for example, Susan E. Dudley, “Reversing Midnight Regulations,” Regulation, vol. 24 (Spring 2001), p. 9, who noted that the “veto threat is diminished [after a transition], since the president whose administration issued the regulations is no longer in office.” See also testimony of Curtis W. Copeland, in U.S. Congress, House Committee on Government Reform, Subcommittee on Regulatory Affairs, The Effectiveness of Federal Regulatory Reform Initiatives, 109th Cong., 1st sess., July 27, 2005, p. 13. See CRS Report RL301 16, Congressional Review of Agency Rulemaking: An Update and Assessment of the Congressional Review Act After a Decade, by Morton Rosenberg, for a description of this and several other possible factors affecting the law’s use. 50 “Legislative days” end each time a chamber adjourns and begin each time it convenes after an adjournment. 51 For the cutoff dates in all recent sessions of Congress, see CRS Report RL34633, Congressional Review Act: Disapproval of Rules in a Subsequent Session of Congress, by Curtis W. Copeland and Richard S. Beth, pp. 7-9. 52 CRS Report RL34354, Congressional Influence on Rulemaking and Regulation Through Appropriations Restrictions, by Curtis W. Copeland. 53 See U.S. General Accounting Office, Principles of Appropriations Law, Third Edition, Volume I, GAO-04-26 1 SP, (January 2004), p. 2-34, which states that, “Since an appropriation act is made for a particular fiscal year, the starting presumption is that everything contained in the act is effective only for the fiscal year covered. Thus, the rule is: A provision contained in an annual appropriation act is not to be construed to be permanent legislation unless the language used therein or the nature of the provision makes it clear that Congress intended it to be permanent.”

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See U.S. General Accounting Office, Principles of Appropriations Law, p. 233, which says that a general provision “may apply solely to the act in which it is contained (‘No part of any appropriation contained in this Act shall be used ...’), or it may have general applicability (‘No part of any appropriation contained in this or any other Act shall be used ...’).” 55 Others, however, take the view that even these non-appropriated funds must be at least figuratively deposited into the Treasury, and that “all spending in the name of the United States must be pursuant to legislative appropriation.” Kate Stith, “Congress’ Power of the Purse,” The Yale Law Journal, vol. 97 (1988), p. 1345. 56 For example, under the Occupational Safety and Health Act, states may set standards for hazards such as ergonomic injury for which no federal standard has been established. See U.S. General Accounting Office, Regulatory Programs: Balancing Federal and State Responsibilities for Standard Setting and Implementation, GAO-02-495, March 2002. 57 See U.S. Government Accountability Office, Principles of Federal Appropriations Law, Third Edition, Volume II, GAO-06-382, February 2006, which says that, unless stated otherwise, expenditures by recipients of federal grants “are not subject to all the same restrictions and limitations imposed on direct expenditures by the federal government. For this reason, grant funds in the hands of a grantee have been said to largely lose their character and identity as federal funds.” 58 See Office of Management and Budget, “Final Bulletin for Agency Good Guidance Practices,” 72 Federal Register 3432, January 25, 2007. OMB issued the bulletin, in part, because of concerns that agencies were treating guidance documents as binding rules. Nevertheless, as OMB points out, guidance documents can have significant effects on regulated entities.

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Chapter 4

PRESIDENTIAL TRANSITION ACT: PROVISIONS AND FUNDING* Henry B. Hogue

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ABSTRACT The Presidential Transition Act of 1963 (PTA), as amended, authorizes funding for the General Services Administration (GSA) to provide suitable office space, staff compensation, and other services associated with the presidential transition process.1 Section 6 of the PTA directs the President to include in his budget request, for each fiscal year in which his regular term of office will expire, “a proposed appropriation for carrying out the purposes of this Act.” The President’s FY2009 budget proposal included $8.52 million in funding for the 2008-2009 presidential transition. Of this sum, not more than $1 million was to be used for training and orientation activities under specified provisions of the PTA. These recommendations were endorsed by Congress and included in the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act.2

*

Excerpted from CRS Report for Congress, Order Code RS22979, dated October 30, 2008.

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INTRODUCTION3 The constitutional transfer of power and authority from an incumbent American President to a successor is a momentous occasion in American government. In the present day, this transfer of authority is a complex and multifaceted undertaking, as the outgoing Administration concludes its affairs and the incoming Administration gets organized. In recent decades, presidential transition activities have begun months before the general election; the major candidates usually have asked individuals or small groups to begin to formulate plans in the event of an electoral victory. Preparations have accelerated after the election, as the attention of the Presidentelect and his supporters has turned from campaigning to governing. The President-elect and his team have approximately 11 weeks between election day and inauguration day to organize the new Administration, and to make plans for implementing the promises of the campaign. The incoming President must also prepare to assume national security and homeland security responsibilities from the incumbent. While a formal transition process is essential to ensure continuity in the conduct of the affairs of the executive branch, the concept of a federally funded, institutionalized transition process is relatively new. Before enactment of the PTA in 1 964,4 the methods for transferring information and responsibility were developed in an ad hoc fashion with each presidential transition. In addition, the political party organization of the incoming President was the primary source of funding for transition expenses.5 Many facets of presidential transitions continue to be developed anew, according to the preferences and priorities of each outgoing and, in particular, each incoming President, but the PTA now provides a basic framework for funding and support of this process.

FUNDING AUTHORIZATION As enacted in 1964, the PTA authorized funding not to exceed $900,000 for any one transition “for carrying out the purposes” of the act.6 In 1976, this provision was amended to authorize “not more than $2,000,000 ... for the purposes of providing services and facilities to the President-elect and Vice President-elect” and “not more than $1,000,000 ... for the purposes of providing services and facilities to the former President and former Vice President....”7 In 1988, this provision was amended once again, and the authorized amounts were

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increased to $3.5 million and $1.5 million, respectively.8 The 1988 amendments also directed that the “amounts authorized to be appropriated [by these provisions] be increased by an inflation adjusted amount, based on increases in the cost of transition services and expenses which have occurred in the years following the most recent Presidential transition....”9 The GSA Administrator (Administrator) is authorized to spend these funds for the provision of most of the PTA-specified “services and facilities ... in connection with any obligations incurred by the President-elect or Vice-Presidentelect” between the day following the general election and 30 days after the inauguration.10 For the purposes of the PTA, the “President-elect” and “VicePresident-elect” are defined as “the apparent successful candidates for the office of President and Vice President, respectively, as ascertained by the Administrator following the general elections....”11 In the immediate aftermath of the contested November 7, 2000, presidential election, neither candidate was provided with the resources that would be available for the President-elect and Vice President-elect. In testimony before the House Committee on Government Reform, Subcommittee on Government Management, Information, and Technology, Administrator David J. Barram testified: “In this unprecedented, incredibly close and intensely contested election, with legal action being pursued by both sides, it is not apparent to me who the winner is. That is why I have not ascertained a President-elect.”12 In his testimony, the Administrator drew on 1963 House floor debate concerning the PTA, during which a sponsor of the legislation stated that, “in a close contest, the Administrator simply would not make the decision.”13 The GSA Deputy Administrator reportedly provided PTA facilities and funds to the Bush-Cheney transition team on December 14, 2000, the day following Vice President Al Gore’s concession speech.14 In the event the President-elect is the incumbent President, or the Vice President- elect is the incumbent Vice President, no funds are to be spent on the provision of services and facilities to this incumbent. Any funds appropriated for such purposes are to be returned to the Treasury.15 The President-elect and Vice President-elect may designate an assistant to act on their behalf in connection with the support provided by the Administrator under the PTA. Up to 10% of the expenditures under the PTA “may be made upon the basis of a certificate” by one of the two elected officials or the designated assistant “that such expenditures are classified and are essential to the national security,” and that they are consistent with PTA provisions.16 The Administrator is also authorized, under the PTA, to provide services and facilities to each outgoing President and Vice President, “for use in connection

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with winding up the affairs of his office,” for a period “not to exceed seven months from 30 days before the date of the expiration of his term of office.”17 In the event that the outgoing Vice President is becoming President, the PTA limits the authorized expenditures in this area.18

Funding for 2008-2009 The President’s FY2009 budget requested $8.52 million for PTA-authorized purposes during the 2008-2009 presidential transition. Of this total, $1 million was requested for briefings and related transition services for incoming personnel associated with the new administration.19 These recommendations were endorsed by Congress and included in the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act.20 Of the $8.52 million, no more than $5.3 million may be used by the President-elect and Vice President-elect, and no more than $2.2 million may be used by the outgoing President and Vice President.21

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TRANSITION SUPPORT: SERVICES, FACILITIES, AND FUNDS Pre-election Support As noted above, most PTA-authorized support is provided after the “apparent successful” President-elect and Vice President-elect have been “ascertained by the Administrator.” The PTA also provides, however, for “consultation by the Administrator with any candidate for President or Vice President to develop a systems architecture plan for the computer and communications systems of the candidate to coordinate a transition to Federal systems, if the candidate is elected.”22

Post-election Support Once the “apparent successful” President-elect and Vice President-elect have been “ascertained by the Administrator,” the PTA authorizes the Administrator to provide, to each President-elect and Vice President-elect, certain facilities, funds, and services, including the following:

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Suitable office space appropriately equipped with furniture, furnishings, office machines and equipment, and office supplies ...; Payment of the compensation of members of office staffs designated by the President-elect or Vice-President-elect ...; Payment of expenses for the procurement of services of experts or consultants or organizations thereof for the President-elect or VicePresident-elect ...; Payment of travel expenses and subsistence allowances, including rental of Government or hired motor vehicles ...; When requested by [one of the incoming officers or a designee], and approved by the President, Government aircraft ... for transition purposes on a reimbursable basis; [W]hen requested by [one of the incoming officers or a designee], aircraft ... chartered for transition purposes ...; Communications services ...; and Payment of expenses for printing and binding....23

In addition, the PTA authorizes funding for the use of the postal service by the President-elect and Vice President-elect “in connection with [their] preparations for the assumption of official duties.24 The PTA also authorizes the Administrator to fund, during the transition, orientation activities, primarily for “individuals the President-elect intends to nominate as department heads or appoint to key positions in the Executive Office of the President.” The purpose of these activities is to acquaint the incoming leadership “with the types of problems and challenges that most typically confront new political appointees when they make the transition from campaign and other prior activities to assuming the responsibility for governance after inauguration.” Personnel who may be involved in this process include individuals who “(I) held similar leadership roles in prior administrations; (II) are department or agency experts from the Office of Management and Budget or an Office of Inspector General of a department or agency; or (III) are relevant staff from the Government Accountability Office.”25 The orientation activities specified in the statute include “training or orientation in records management ... including training on the separation of Presidential records and personal records,” as well as “training or orientation in human resources management and performance-based management.”26 The statute also provides that these orientation activities “shall include the preparation of a detailed classified, compartmented summary ... of specific

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operational threats to national security; major military or covert operations; and pending decisions on possible uses of military force.” This summary is to be conveyed to the President-elect as soon as possible after the general election.27 The PTA directs the Administrator to work with the Archivist of the United States to create, in support of the orientation activities, a transition directory compiling “Federal publications and materials with supplementary materials developed by the Administrator.” The directory is to include “information on the officers, organization, and statutory and administrative authorities, functions, duties, responsibilities, and mission of each department and agency.”28

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TRANSITION-RELATED SECURITY CLEARANCES The PTA recommends submission by the President-elect to the agency with national security clearance functions of the “names of candidates for high level national security positions through the level of undersecretary of cabinet departments” as soon as possible after the presidential election and requires the responsible agency or agencies to carry out background investigations of these candidates for high-level national security positions “as expeditiously as possible ... before the date of the inauguration.”29 A separate transition-related provision of law that is not included in the PTA is worth noting here. The Intelligence Reform and Terrorism Prevention Act of 200430 included a provision that facilitates pre-election security clearances for transition team members. Under the provision, major party candidates “may submit, before the date of the general election, requests for security clearances for prospective transition team members who will have a need for access to classified information to carry out their responsibilities as members of the President-elect’s transition team.”31 The provision also directs that “[n]ecessary background investigations and eligibility determinations to permit appropriate prospective transition team members to have access to classified information shall be completed, to the fullest extent practicable, by the day after the date of the general election.”32

DISCLOSURE REQUIREMENTS The PTA requires that the President-elect and Vice President-elect disclose certain financial and personnel information as a condition for receiving services

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and funds under the act. They must disclose, to the Administrator and the Comptroller General, the dates, sources, amounts, and expenditure of all nonfederal funds (such as private contributions) received before or after the general election, “for use in the preparation of the President- elect or Vice-President-elect for the assumption of [their] official duties.”33 They must submit a report to the Administrator not later than 30 days after inauguration; these disclosures are then to be released to the public by the Administrator. The PTA also sets limitations on transition-related donations as a condition for receiving services and funds under the act. Under these limitations, the President-elect and Vice President-elect “shall not accept more than $5,000 from any person, organization, or other entity for the purposes of carrying out activities authorized by” the PTA.34 The PTA also requires that the incoming team disclose to the public (1) “the names and most recent employment of all transition personnel ... who are members of the President-elect or Vice-Presidentelect’s Federal department or agency transition teams”; and (2) “information regarding the sources of funding which support the transition activities of each transition team member.” These disclosures, which must be kept up to date, are to be completed before the team contacts the department or agency.35

ENDNOTES 1

3 U.S.C. § 102 note. P.L. 110-329. The text of the appropriations provision, § 137, may be found on page H.R. 2638- 7 of the enrolled version of the underlying bill, H.R. 2638 (11 0th Congress). 3 This report draws upon and supercedes CRS Report RS20709, Presidential Transitions: Background and Federal Support, by Stephanie Smith. 4 This statute was enacted March 7, 1964, but it retained the title “Presidential Transition Act of 1963.” For a detailed discussion of presidential transitions preceding this act, see Laurin L. Henry, Presidential Transitions (Washington: Brookings Institution, 1960). 5 U.S. President’s Commission on Campaign Costs, Financing Presidential Campaigns, April 1962, pp. 23-24. 6 P.L. 88-277, § 5; 78 Stat. 153, 156. 7 P.L. 94-499, § a; 90 Stat. 2380. 8 P.L. 100-398, § 2; 102 Stat. 985. 9 Ibid. 2

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10

3 U.S.C. § 102 note; Presidential Transition Act of 1963 [hereafter PTA], § 3(b). 11 3 U.S.C. § 102 note; PTA, § 3(c). 12 U.S. Congress, House Committee on Government Reform, Subcommittee on Government Management, Information, and Technology, Transitioning to a New Administration: Can the Next President Be Ready? hearings, 106th Cong., 2nd sess., December 4, 2000, (Washington: GPO, 2001), p. 69. 13 Rep. Dante Fascell, “Presidential Transition Act of 1963,” remarks in the House, Congressional Record, vol. 109, July 25, 1963, p. 13348. 14 Ben White, “White House Transition; Transition Officials Moving to D.C. Office; Team Gets $5.3 Million To Ready Administration,” Washington Post, December 15, 2000, p. A39. 15 3 U.S.C. § 102 note; PTA, § 3(g). 16 3 U.S.C. § 102 note; PTA, § 3(e). 17 3 U.S.C. § 102 note; PTA, § 4. Other provisions of law provide each former President with an annual lifetime pension, Secret Service protection, and staff and office allowances after the transition period expires. See CRS Report RL3463 1, Former Presidents: Pensions, Office Allowances, and Other Federal Benefits, by Wendy Ginsberg. 18 3 U.S.C. § 102 note; PTA, § 6(a)(2). 19 U.S. Office of Management and Budget, Budget of the United States Government, Fiscal Year 2009 — Appendix (Washington: GPO, 2008), p. 1075. 20 P.L. 110-329. The text of the appropriations provision, § 137, may be found on page H.R. 263 8-7 of the enrolled version of the underlying bill, H.R. 2638 (11 0th Congress). 21 General Services Administration, e-mail communication with author, Oct. 22, 2008. 22 3 U.S.C. § 102 note; PTA, § 3(a)(10). 23 3 U.S.C. § 102 note; PTA, § 3(a). 24 3 U.S.C. § 102 note; PTA, §§ 3(a)(7) and 3(d). 25 3 U.S.C. § 102 note; PTA, § 3(a)(8). 26 Ibid. 27 Ibid. 28 3 U.S.C. § 102 note; PTA, § 3(a)(9). 29 3 U.S.C. § 102 note; PTA, § 3(f). 30 P.L. 108-458. 31 50 U.S.C. § 435b note. 32 Ibid.

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3 U.S.C. § 102 note; PTA, § 5(a). 3 U.S.C. § 102 note; PTA, § 5(c). 35 3 U.S.C. § 102 note; PTA, § 5(b).

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Chapter 5

PRESIDENTIAL TRANSITIONS: BACKGROUND AND FEDERAL SUPPORT* Stephanie Smith

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ABSTRACT The Presidential Transition Act (PTA), as amended, authorizes funding for the General Services Administration (GSA) to provide suitable office space, staff compensation, and other services associated with the transition process.1 Section 5 of the PTA authorizes the President to include in his budget request for each fiscal year in which his regular term of office will expire, a proposed appropriation for carrying out the purposes of the act. The President's FY2009 budget requests $8,520,000 in funding for the upcoming presidential transition. Of this total, $1 million is provided for briefings and related transition services for incoming personnel associated with the new administration.

*

Excerpted from CRS Report for Congress, Order Code RS20709, dated February 11, 2008.

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INTRODUCTION

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Since President George Washington first relinquished his office to incoming President John Adams in 1797, this peaceful transition, symbolizing both continuity and change, has demonstrated the "best of American democracy to the world."2 Today, however, the activities surrounding a presidential transition begin shortly after the election, as the President-elect has less than 11 weeks to formulate the new administration before taking the oath of office on January 20. The significance of the relatively short transition period recently came under intense scrutiny against the background of the historic and dramatic events surrounding the presidential election of 2000. With less than five weeks available for formal transition preparations, Vice President-elect Richard Cheney stated on December 14, 2000, that the transition was "well under way ... to have a Cabinet in place by the inauguration."3 While a formal transition process is essential to ensure continuity in the conduct of the affairs of the executive branch, the concept of a federally funded transition period is relatively new. Before enactment of the Presidential Transition Act in 1964, the primary source of funding for transition expenses was the political party organization of the incoming President.4

TRANSITION FUNDING As enacted in 1964, the PTA provided a $900,000 authorization for GSA to provide suitable office space, staff compensation, and other services associated with the transition process. Since that time, the PTA has been amended on three occasions to provide increases in funding and to prescribe additional requirements for GSA.5 Currently, funding is authorized for an incoming Administration from the day following the general election until 30 days after the inauguration. For the outgoing President and Vice President, transition funding is available for seven months, beginning one month before the inauguration, until six months after their terms of office, to facilitate their relocation to private life.6 As a condition for receiving federal funding and services, the President-elect and Vice President-elect must formally disclose the dates, sources, and amounts of all private contributions for the transition, with a maximum contribution of $5,000 allowed from any person or organization. These written disclosures must be made to GSA not later than 30 days after the January 20 inauguration. The

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PTA also limits all temporary appointments to executive branch vacancies to 120 days, unless a nomination has been submitted to the Senate. The PTA was amended in 2000 to prescribe additional requirements for GSA to coordinate the development and presentation of orientation sessions for the President- elect's nominees for Cabinet and high-level executive branch positions. In conjunction with the National Archives and Records Administration (NARA), GSA was also required to create a transition directory, composed of federal publications and materials pertaining to the statutory and administrative functions of each federal department and agency. A third major provision required the Office of Government Ethics to prepare a report on needed improvements to the financial disclosure process for presidential nominees. For FY2001, GSA was appropriated a total of $7.1 million for the 2000-2001 transition.7 Of this total, $1.83 million was provided for the outgoing Administration of President William Clinton; $4.27 million for the incoming Administration of President- elect George W. Bush; and $1 million for GSA to provide orientation sessions and related assistance for the incoming Bush appointees.8 Section 6 of the PTA authorizes the President to include in his budget request for each fiscal year in which his regular term of office will expire, a proposed appropriation for carrying out the purposes of the act. In order to provide federal funding in the event of a 2004 presidential transition, the President's FY2005 budget proposal requested a total of $7.7 million. Of this total, $1 million would be provided for briefings and related transition services for incoming personnel associated with a new administration.9 Currently, Section 3(f) of the PTA states that there shall be no expenditures of funds for the provision of services and facilities in the event the President-elect is the incumbent President, or when the Vice President-elect is the incumbent Vice President. Any funds appropriated for such purposes "shall be returned to the general funds of the Treasury." In the event no transition occurs, the President's FY2005 budget request for GSA proposed to amend the PTA through appropriation language to permit the expenditure of not more than $1 million for training and briefings for incoming appointees associated with the second term of an incumbent President.10 No other expenditure of appropriated funds for transition purposes would be made available to the incumbent President, and the remaining $6.7 million would be returned to the general fund of the Treasury. The House passed H.R. 5025, the FY2005 Transportation, Treasury, and Independent Agencies appropriations bill, on September 22, 2004. The legislation recommended for GSA a total of $7.7 million for the expenses associated with a possible 2004-2005 presidential transition, which included $1 million to brief

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incoming personnel. If no transition occurred, H.R. 5025 authorized that $1 million be used by the incumbent President for the training of new appointees associated with a second term of office. The House Committee on Appropriations also recommended the $1 million appropriation to be used by the incumbent President, and stated that the remaining $6.7 million in transition funds would be returned to the Treasury, if no transition occurred.11 Following its passage, H.R. 5025 was received in the Senate on September 29, 2004, and placed on the Senate Legislative Calendar. In the Senate, S. 2806, the FY2005 Transportation, Treasury, and Independent Agencies appropriations bill, also recommended a total of $7.7 million for GSA to implement a possible presidential transition, including $1 million for incoming appointees. However, the Senate Committee on Appropriations denied the request to amend the PTA to allow $1 million for training and briefings for incoming appointees associated with the second term of an incumbent President. The committee stated that it had no objection to funding such training, but believed that "it should be properly budgeted for and requested by the appropriate agencies."12 On September 15, 2004, S. 2806 was reported to the Senate and placed on the Senate Legislative Calendar. P.L. 108-309 was enacted on September 30, 2004, to provide continuing nondefense appropriations through November 20. A total of $2.5 million was authorized in the event of a presidential transition, until enactment of the FY2005 omnibus appropriations bill. Any transition expenditures made pursuant to P.L. 108-309 were to be charged to the applicable authorization once the FY2005 omnibus legislation was enacted. Due to the outcome of the 2004 presidential election, no funds were provided in P.L. 108-447, the FY2005 Consolidated Appropriations Act.13 The President's FY2009 budget requests $8,520,000 to provide funding for the upcoming presidential transition. Of this total, $1 million is provided for briefings and related transition services for incoming personnel associated with the new administration."14

Clinton-Bush Transition As a result of the ballot challenges concerning the November 7, 2000, presidential election, White House Chief of Staff John Podesta issued a November 13, 2000, memorandum to executive branch agencies stating that, "because of the uncertainty over election results, no President-elect has been identified to receive federal funds and assistance under the Presidential Transition Act of 1963."15 The

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memo advised executive branch officials to provide any assistance that was "typically" provided to presidential candidates. Following the certification of the Florida popular vote on November 26, 2000, by the Florida Secretary of State in favor of Governor George W. Bush, GSA Administrator David J. Barram announced the following day that he would not authorize the release of federal transition funds since the final outcome remained "unclear and unapparent,"16 due to ongoing legal challenges to the Florida certification. Since the PTA provides no explicit criteria for determining the "apparent successful candidates," the GSA administrator based his decision on the 1963 legislative history, which stated that, "in a close contest, the Administrator simply would not make the decision."17 Also at issue was the use of 90,000 square feet of office space in Washington, DC, that GSA had leased in anticipation of the transition period between election day on November 7 and the presidential inauguration on January 20, 2001, at a cost of approximately $700,000.18 In response to GSA's decision to withhold funding and office space, Governor Bush announced the establishment of his transition offices in McLean, VA, to be headed by the vice presidential candidate, former Secretary of Defense Richard Cheney. In a November 27, 2000, news conference, Cheney stated that the BushCheney transition would be funded by private contributions as a "non-profit corporation and will seek 501(c)(4) status from the Internal Revenue Service."19 On December 4, 2000, oversight hearings on the presidential transition were held before the House Government Reform Subcommittee on Government Management, Information, and Technology. In his opening statement, subcommittee chairman Stephen Horn expressed concern that, in spite of longstanding congressional intent to federally fund presidential transitions, "today — nearly four weeks after the presidential election the administrator says he is still unable to ascertain a winner and, thus, is not providing the appropriate assistance required by the Presidential Transition Act."20 In a written statement for the hearings record, Comptroller General David M. Walter wrote that, "given the current extraordinary circumstances surrounding the election, Congress should consider extending the existing time limitation on the obligation of funds under the Transition Act to help mitigate the unforeseen delay in the initial release of public funds."21 As a result of these hearings, H.R. 5643 was introduced in the House on December 6, 2000, to clarify the definition of "apparent successful candidates" to permit the GSA administrator to provide transition funding and services to the President-elect and Vice President-elect as determined by official state certifications. The legislation was referred to the House Committee on Government Reform.

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Immediately following Vice President Albert Gore's concession speech on December 13, 2000, GSA Administrator David Barram authorized President-elect George Bush's use of federal transition funds and office space.22 The following day, GSA Deputy Administrator Thurman Davis presented Vice President-elect Cheney with an electronic card that served as the key to the Washington, DC, transition office, located at 1800 G Street, NW. The Bush-Cheney transition officials assigned to coordinate with congressional staff and prospective Cabinet members were the first to relocate from their McLean, VA, headquarters to the GSA office space. Shortly after President-elect Bush's first formal address to the nation on December 13, he received a congratulatory call from President Bill Clinton. The following day, President-elect Bush announced his plans to travel to Washington, DC, on December 18, to conduct separate visits with President Clinton and Vice President Gore, as well as to conduct interviews with possible Cabinet members.23 With less than five weeks until his inauguration, President-elect Bush made his Cabinet selections in just 20 days. According to newspaper accounts, the President-elect and his aides used the five weeks of the election dispute to narrow their list of possible appointments, even though they were criticized by some for "presumptuously" proceeding with the transition. With so little time left before he took office, President-elect Bush narrowed his selections to nominees who had previously been through Senate confirmations in the past, selecting Donald Rumsfeld for Secretary of Defense, Colin Powell for Secretary of State, and Norman Mineta for Secretary of Transportation. In addition to their government and corporate expertise, the Cabinet nominees also had longstanding professional associations with the President-elect and his family.24

ENDNOTES 1

3 U.S.C. § 102 note. Alvin S. Felzenberg, ed., The Keys to a Successful Presidency (Washington: Heritage Foundation, 2000), p. 7. For a detailed discussion of early presidential transitions, see also Laurin L. Henry, Presidential Transitions (Washington: Brookings Institution, 1960). 3 Karen Gullo, "Cheney Gets Transition Office Keys," USA Today, Dec. 14, 2000, p. 3A. 4 78 Stat. 153. See CRS Report RL30736, Presidential Transitions 1960-2001, by Stephanie Smith. 5 90 Stat. 2380; 102 Stat. 985; and 114 Stat. 711. 2

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Separate legislation also provides former Presidents an annual lifetime pension and staff and office allowances after the transition period expires, as well as Secret Service protection. See CRS Report 98-249, Former Presidents: Federal Pension and Retirement Benefits, by Stephanie Smith. 7 114 Stat. 2763. 8 P.L. 100-398 amended the PTA in 1988 to authorize $1.5 million to be appropriated to the outgoing administration and $3.5 million to be appropriated to the incoming administration, with these totals to be increased in future budget requests by an inflation-adjusted amount, based on the costs of the most recent presidential transition. P.L. 106-293 amended the PTA to authorize $1 million for briefings and related transition expenses for incoming presidential appointees. 9 U.S. Office of Management and Budget, Budget of the United States Government, Fiscal Year 2005 Appendix (Washington: 2004), p. 972. 10 Ibid. 11 U.S. Congress, House Committee on Appropriations, Transportation, Treasury, and Independent Agencies Appropriations Act, 2005, report to accompany H.R. 5025, 108th Cong., 2nd sess., H.Rept. 108-671 (Washington: GPO, 2004), p. 146. 12 U.S. Congress, Senate Committee on Appropriations, Transportation, Treasury, and Independent Agencies Appropriations Act, 2005, report to accompany S. 2806, 108th Cong., 2nd sess., S.Rept. 108-342 (Washington: GPO, 2004), p. 186. 13 118 Stat. 3253. 14 U.S. Office of Management and Budget, Budget of the United States Government, Fiscal Year 2009 Appendix (Washington: GPO, 2008), p. 1075. 15 Executive Office of the President, Memorandum from Chief of Staff John Podesta for the Heads of Executive Departments and Agencies, "Presidential Transition Guidance," Nov. 13, 2000. 16 U.S. General Services Administration, Office of Communications statement released Nov. 27, 2000. 17 Rep. Dante Fascell, "Presidential Transition Act of 1963," remarks in the House, Congressional Record, vol. 109, July 25, 1963, p. 12238. 18 U.S. General Services Administration, Office of Communications,Media AdvisoryPresidential Transition Fact Sheet, Nov. 17, 2000. 19 "Transcript of Former Secretary Richard Cheney's News Conference," Washington Post, Nov. 27, 2000, p. A9.

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20

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U.S. House of Representatives, Committee on Government Reform, Subcommittee on Government Management, Information, and Technology, Opening Statement by Chairman Stephen Horn, hearings, Dec. 4, 2000. 21 U.S. General Accounting Office, Presidential Transition: Challenges and Opportunities, Dec. 4, 2000 (Washington: GPO, 2000), p. 1. 22 U.S. General Services Administration, Office of Communications statement released Dec. 13, 2000. 23 Mike Allen and Dana Milbank, "Bush Reaches Out to Democrats," Washington Post, Dec. 15, 2000, p. Al. 24 Mike Allen and Dana Milbank, "Cabinet Chosen Quietly, Quickly," Washington Post, Jan. 7, 2001, p. Al.

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Chapter 6

SUBMISSION OF THE PRESIDENT’S BUDGET IN TRANSITION YEAR* Robert Keith

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ABSTRACT At the time of a presidential transition, one question commonly asked is whether the outgoing or incoming President submits the budget for the upcoming fiscal year. Under past practices, outgoing Presidents in transition years submitted a budget to Congress just prior to leaving office and incoming Presidents usually revised them. Six incoming presidents — Eisenhower, Kennedy, Nixon, Ford, Carter, and Reagan — revised their predecessor’s budget shortly after taking office, while only two Presidents during this period, Johnson and George H. W. Bush, chose not to do so. The deadline for submission of the President’s budget, which has been changed several times over the years, was set in 1990 as the first Monday in February. The change made it possible for an outgoing President to leave the annual budget submission to his successor. The two outgoing Presidents since the 1990 change — George H. W. Bush and Clinton — exercised this option. Accordingly, the budget was submitted by the two incoming Presidents (Clinton for FY1994 and George W. Bush for FY2002). *

Excerpted from CRS Report for Congress, Order Code RS20752, dated September 15, 2008.

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The last three incoming Presidents that submitted a budget or revised their predecessor’s budget (Reagan, Clinton, and George W. Bush) did not submit detailed budget proposals during their transitions until early April; however, each of them advised Congress regarding the general contours of their economic and budgetary policies in a special message submitted to Congress in February concurrently with a presentation made to a joint session of Congress. President George W. Bush has indicated that he will not submit a budget for FY2010, which is subject to a deadline of Monday, February 2, 2009. The Office of Management and Budget will prepare a current services baseline from which the incoming Administration can develop its budget proposals. This report will be updated as developments warrant.

When a new Congress convenes in January, one of its first orders of business is to receive the annual budget submission of the President. Following receipt of the President’s budget, Congress begins the consideration of the budget resolution and other budgetary legislation for the upcoming fiscal year, which starts on October 1. The transition from one presidential administration to another raises special issues regarding the annual budget submission. Which President — the outgoing President or the incoming one — is required to submit the budget, and how will the transition affect the timing and form of the submission? The purpose of this report is to provide background information that addresses these questions.

IS THE OUTGOING OR INCOMING PRESIDENT REQUIRED TO SUBMIT THE BUDGET? The Budget and Accounting Act of 1921,1 as amended, requires the President to submit a budget annually to Congress toward the beginning of each regular session. This requirement first applied to President Harding for FY1923. The deadline for submission of the budget, first set in 1921 as “on the first day of each regular session,” has changed several times over the years:

1

The 1921 act was P.L. 67-13 (June 10, 1921); 42 Stat. 20; 31 U.S.C. 1105.

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in 1950, to “during the first 15 days of each regular session”; in 1985, to “on or before the first Monday after January 3 of each year (or on or before February 5 in 1986)”; and in 1990, to “on or after the first Monday in January but not later than the first Monday in February of each year.”

The 20th Amendment to the Constitution, ratified in 1933, requires each new Congress to convene on January 3 (unless the date is changed by the enactment of a law) and provides a January 20 beginning date for a new President’s four-year term of office. Therefore, under the legal framework for the beginning of a new Congress, the beginning of a new President’s term, and the deadline for the submission of the budget, all outgoing Presidents prior to the 1990 change were obligated to submit a budget.2 The 1990 change in the deadline made it possible for an outgoing President to leave the annual budget submission to his successor, an option which the two outgoing Presidents since then (George H. W. Bush and Clinton) took. Incoming Presidents, except for Harding, Clinton, and George W. Bush, assumed their position with a budget of their predecessor in place. Under the 1921 act, Presidents may submit budget revisions to Congress at any time. Six incoming Presidents chose to modify their predecessor’s policies by submitting budget revisions shortly after taking office: Eisenhower, Kennedy, Nixon, Ford, Carter, and Reagan.3 Four Presidents — Roosevelt, Truman, Johnson, and George H. W. Bush — chose not to submit budget revisions. Because President George H. W. Bush chose not to submit a budget for FY1 994 (and was not obligated to do so), President Clinton submitted the original budget for FY1 994 rather than budget revisions. Similarly, the budget for FY2002 was submitted by the incoming President George W. Bush, rather than by outgoing President Clinton. The Office of Management and Budget (OMB) provided considerable advance notice of the plan for FY2002.4 2

3

4

For more detailed information on this matter, see U.S. Library of Congress, Congressional Research Service, Budget Submissions of Outgoing Presidents, by Robert Keith, CRS Report 93-672 GOV (Washington: July 21, 1993), 6 pages. (The report is archived and may be obtained from the author.) The 1990 change was made by Section 1311 2(c)(1) of the Budget Enforcement Act of 1990 (104 Stat. 1388-608 and 609), which was included in the Omnibus Budget Reconciliation Act of 1990 (P.L. 10 1-508). U.S. Library of Congress, Congressional Research Service, The President’s Budget Submission: Format, Deadlines, and Transition Years, by Virginia A. McMurtry and James V. Saturno, CRS Report 88-66 1 GOV (Washington: October 7, 1988), pages 17-26. (The report is archived and may be obtained from the authors.) See OMB Memorandum M-00-12, Requirements for Development of the FY2002 Transition Budget, June 2, 2000, 3 pages.

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President George W. Bush indicated early on that he will not submit a budget for FY20 10, which is subject to a deadline of Monday, February 2, 2009. In announcing the decision, OMB Director Jim Nussle stated: The FY20 10 budget will be submitted by the next President. In order to lay the groundwork for the next Administration, we intend to prepare a budget database that includes a complete current services baseline and to gather information to develop current services program estimates for FY20 10 from 5 which the incoming Administration can develop its budget proposals.

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TRANSITION BUDGETS IN RECENT YEARS: TIMING AND FORM During the period beginning with the full implementation of the congressional budget process (in FY1 977), five transitions of presidential administration have occurred. As Table 1 shows, the three outgoing Presidents required to submit a budget during this period (Ford, Carter, and Reagan) did so on or before the statutory deadline. Once the original budget for a fiscal year has been submitted, a President or his successor may submit revisions at any time. Two of the incoming Presidents during this period (Carter and Reagan) submitted budget revisions and one (George H. W. Bush) did not. The FY1978 revisions by President Carter (a 101-page document) were submitted on February 22 and the FY1982 revisions by President Reagan (an initial 159-page document and a subsequent 435-page document) were submitted on March 10 and April 7, respectively. As stated previously, Presidents Clinton and George W. Bush submitted the original budgets for FY1994 and FY2002 as incoming Presidents (on April 8, 1993 and April 9, 2001, respectively). In past years, Congress authorized the submission of a budget for a fiscal year after the statutory deadline by enacting a deadline extension in law. For example, the deadlines for submission of the budgets for FY1981, FY1984, and FY1986 were extended from mid-January to late-January or early-February by P.L. 96-186, P.L. 97-469, and P.L. 99-1, respectively. Beginning in the late 1980s, however, several original budgets have been submitted late without authorization. For FY1991, the 5

Office of Management and Budget, OMB Memorandum 08-17, Requirements for the FY 2010 Budget Process, April 7, 2008, p. 1, available at: [http://www.whitehouse.gov/omb/memoranda/ fy2008/m08-1 7.pdf].

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budget was submitted a week after a deadline that already had been extended by law (P.L. 101-228); for FY1989 and the transition-year budget for FY1994, the budget was submitted after the deadline (by 45 and 66 days, respectively) without the consideration of any measure granting a deadline extension. Table 1. Timing and Form of Presidential Budget Submissions in Transition Years: Carter, Reagan, George H. W. Bush, Clinton, and George W. Bush Administrations

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Fiscal Year

Outgoing Presidenta President

Incoming Presidenta Date of Submission 0 1-17-77

1978

Ford

Submitte Deadda lineb Budget? Yes 0 1-19-77

1982

Carter

Yes

01-20-81 01-15-81

1990

Reagan Yes

0 1-09-89 0 1-09-89

Reagan Yes (budget revisions 03-10-81 and further 04-07-81 details)d Bush Noe —

1994

Bush

No

02-01-93 —

Clinton Yes (budget)

04-08-93

2002

Clinton No

02-05-0 1 —

Bush

04-09-0 1

President

Submitted a Budget Date of or Budget Revisions? Submission

Carter

Yes (budget revisions)c 02-22-77

Yes (budget)

Source: Prepared by the Congressional Research Service. a The incoming President replaced the outgoing President on January 20 of the applicable year. b The budgets for FY1978 and FY1982 were required to be submitted within 15 days after Congress convened; the budget for FY1990 was required to be submitted by the first Monday in January after Congress convened; and the budgets for FY1994 and FY2002 were required to be submitted by the first Monday in February. c The FY1978 budget revisions submitted by President Carter were printed as a 101page document. d Prior to submitting FY1982 budget revisions, President Reagan submitted a document containing an economic plan and initial budget proposals (America’s New Beginning: A Program for Economic Recovery) in conjunction with an address to a joint session of Congress on February 18, 1981. With regard to the budget revisions, a 159-page budget document, Fiscal Year 1982 Budget Revisions, was submitted to Congress on March 10, and a 435-page budget document, Fiscal Year 1982 Budget Revisions: Additional Details on Budget Savings, was submitted to Congress on April 7. e Although President Bush did not submit a revision of President Reagan’s FY1 990 budget, he submitted a 193-page message to Congress (Building a Better America) in conjunction with a joint address to Congress on February 9, 1989. The message included revised budget proposals.

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The experience with transition budgets during the period that the congressional budget process has been in operation is roughly comparable, in terms of timing, with the experience of earlier years. Presidents Eisenhower, Kennedy, and Nixon submitted their revised budget messages to Congress on April 30, March 24, and April 12, respectively.6 Like the budget itself, the revisions may take whatever form the President desires. They have ranged from piecemeal submissions in the earlier instances to consolidated budget messages beginning with President Ford. Although Presidents Reagan, Clinton, and George W. Bush did not submit detailed budget proposals during their transitions until early April, each of them advised Congress regarding the general contours of their economic and budgetary policies in special messages submitted to Congress in February concurrently with a presentation made to a joint session of Congress. On February 18, 1981, President Reagan submitted a document containing an economic plan and initial budget proposals for FY1982, America’s New Beginning: A Program for Economic Recovery, in conjunction with an address to a joint session of Congress. On February 17, 1993, President Clinton submitted to Congress a budgetary document, A Vision of Change for America, to accompany his address to a joint session of Congress. The 145-page document outlined the President’s economic plan and provided initial budget proposals in key areas. On February 28, 2001, President George W. Bush submitted a 207-page budget summary to Congress, A Blueprint for New Beginnings: A Responsible Budget for America’s Priorities, the day after his address to a joint session of Congress. To facilitate the development of the budget for the incoming Clinton Administration, President George H. W. Bush submitted to Congress, on January 6, 1993, a 573page, single-volume budgetary document to Congress, Budget Baselines, Historical Data, and Alternatives for the Future. Instead of constituting a budget in the usual sense, this document provided historical data, baseline budget projections under the status quo, and illustrations of budget projections using alternative economic assumptions and different broad policy outlines. Similarly, President Clinton prepared a “transition budget” incoming President George W. Bush for FY2002 (FY2002 Economic Outlook, Highlights From FY1994 To FY2001, FY2002 Baseline Projections, January 16, 2001). The volume was comparable in scope to the one issued for FY1 994 by President

6

The President’s Budget Submission, ibid., page 17.

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George H. W. Bush just before he left office, providing revised budget projections and an economic and programmatic update. Although President George H. W. Bush did not submit a revision of President Reagan’s FY1990 budget, he submitted a 193-page message to Congress (Building a Better America) in conjunction with a joint address to Congress on February 9, 1989. The message included revised budget proposals. The deadline for submission of the President’s budget, which has been changed several times over the years, was set in 1990 as the first Monday in February. The change made it possible for an outgoing President to leave the annual budget submission to his successor. The two outgoing Presidents since the 1990 change — George H. W. Bush and Clinton — exercised this option. Accordingly, the budget was submitted by the two incoming Presidents (Clinton for FY1994 and George W. Bush for FY2002). The last three incoming Presidents that submitted a budget or revised their predecessor’s budget (Reagan, Clinton, and George W. Bush) did not submit detailed budget proposals during their transitions until early April; however, each of them advised Congress regarding the general contours of their economic and budgetary policies in a special message submitted to Congress in February concurrently with a presentation made to a joint session of Congress. President George W. Bush has indicated that he will not submit a budget for FY2010, which is subject to a deadline of Monday, February 2, 2009. The Office of Management and Budget will prepare a current services baseline from which the incoming Administration can develop its budget proposals. This report will be updated as developments warrant.

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Chapter 7

ISSUANCE OF AGENCY REGTILATIONS * AT THE END OF THE ADMINISTRATION

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Joshua B. Boltei Over the last seven years, our Administration has worked to achieve through regulation important public benefits while minimizing regulatory costs on the American people. The President has emphasized that the American people deserve a regulatory system that protects and improves their health, safety and environment, secures their rights, and ensures a fair and competitive economic system, while respecting their prerogative to make their own decisions and not imposing unnecessary costs. We need to continue this principled approach to regulation as we sprint to the finish, and resist the historical tendency of administrations to increase regulatory activity in their final months. We must recognize that the burden imposed by new regulations is cumulative and has a significant effect on all Americans. Every regulatory agency and department has a responsibility for continuing to ensure regulations issued in this final year are in the best interests of the American public. To the extent permitted by law, the heads of executive departments and agencies should continue to minimize costs and maximize benefits for each of their upcoming regulations, and should avoid issuing regulations that are unnecessary. Except in extraordinary circumstances, regulations to be finalized in *

Excerpted from Memorandum for the Heads of Executive Departments and Agencies, the Administrator of the Office of Information and Regulatory affairs. The White House, Washington, dated May 9, 2008.

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this Administration should be proposed no later than June 1, 2008, and final regulations should be issued no later than November 1, 2008. To ensure we continue to serve the American people through carefullydesigned regulations, the Administrator of the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB) will coordinate an effort to complete Administration priorities in this final year while providing for an appropriately open and transparent process and controlling regulatory costs. In this effort, OIRA will work closely with the heads of the President's policy councils, and rely on its centralized review authority under Executive Order 12866. Pursuant to Executive Order 12866, agencies shall continue to assess the need for regulation, examine alternatives, design regulations in the most cost-effective manner to achieve regulatory objectives, and assess both the costs and benefits of intended regulations. Circular A-4 provides guidance to agencies for analyzing the effects of regulation. Agencies should view each regulation as part of a broader regulatory framework and, in cooperation with OIRA, make careful and coordinated policy choices that do not impose undue regulatory burdens on the American people. Agencies should examine the regulations they intend to promulgate before the end of this Administration for compliance with this memorandum and provide all information and assistance requested by the Administrator of OIRA in this important endeavor. In identifying priorities and establishing schedules, agencies should provide adequate time for necessary analysis, interagency consultation, robust public comment, and a careful evaluation of and response to those comments. However, I also want to emphasize that nothing in this memorandum alters or impedes the ability of the executive departments and agencies to perform their responsibilities under existing law. Finally, the OIRA Administrator will report on a regular basis regarding agency compliance with this memorandum. CC:

Chairman of the Council on Environmental Quality Chairman of the Council of Economic Advisors Director, Office of Science and Technology Policy Assistants to The President

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INDEX # 9/11, 13, 67, 85 9/11 Commission, 13, 67, 85

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A access, 7, 62, 120 accessibility, 96 accountability, 58 accounting, 8 achievement, 25 acute, 61 ad hoc, 116 ADA, 96 Adams, vii, viii, 1, 2, 126 administration, ix, xi, 4, 14, 21, 26, 50, 51, 54, 55, 63, 77, 79, 91, 92, 93, 97, 99, 101, 103, 112, 118, 125, 126, 127, 128, 131, 134, 136 administrative, 11, 15, 24, 25, 26, 29, 51, 60, 120, 127 Administrative Procedure Act, x, 54, 80, 92, 98, 99, 109, 111 Advice and Consent, 72 Afghanistan, 84 agriculture, 15 aid, 16, 108 Al Qaeda, 64, 84 alternative, 51, 138 alternatives, 16, 17, 142 alters, 142

ambiguity, 57 amendments, 32, 42, 101, 117 Americans with Disabilities Act, 96 analysts, 67 APA, 99, 100, 110 application, 62, 100 appointees, viii, ix, 2, 11, 12, 13, 16, 17, 24, 25, 28, 49, 50, 52, 53, 54, 65, 66, 67, 68, 70, 71, 72, 73, 74, 81, 98, 119, 127, 128, 131 appointment process, 72 appropriations, viii, ix, x, 2, 7, 12, 13, 33, 56, 92, 103, 104, 121, 122, 127, 128 appropriations bills, x, 92, 103, 104 Archivist, 28, 60, 62, 120 argument, 74 Arkansas, 21 arsenic, 53 assessment, 71, 107 assets, 108 assumptions, 138 Atlantic, 48 attachment, 70 attacks, 50, 53, 84 Attorney General, 20, 43, 71, 82, 87 auditing, 32 authority, vii, 20, 26, 38, 41, 64, 70, 72, 74, 105, 116, 142 awareness, 61

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Index

B background information, 75, 134 benefits, 7, 53, 69, 100, 141, 142 binding, 40, 104, 105, 113, 119 bipartisan, 4 blog, 106, 108 Board of Governors, 18 Budget Committee, 84 Budget Enforcement Act, 89, 135 budget resolution, 75, 134 Bush Administration, x, 10, 20, 54, 55, 61, 91, 93, 94, 99, 101, 106, 109, 137 bypass, 74

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C cabinet members, 14, 17, 20 cabinets, 82 campaign finance, 4 campaign funds, 8 candidates, vii, 8, 11, 16, 21, 22, 40, 116, 117, 120, 129 capacity, 67, 69, 95 Caribbean, 60 case law, 73, 100 centralized, 142 certificate, 41, 117 certification, 21, 86, 129 certifications, 22, 129 Chief of Staff, ix, 20, 21, 47, 54, 55, 91, 93, 98, 128, 131, 141 Civil Rights, 107 civil service, 50, 52, 69 classification, 61 Clean Air Act, 96 Clinton Administration, vii, ix, 1, 11, 12, 44, 54, 61, 92, 97, 138 Co, 29, 46, 79, 86, 87, 88, 107 coal, 95 collaboration, 66 Colorado, 42 Columbia, 10, 84

Committee on Appropriations, viii, ix, 2, 12, 13, 44, 45, 128, 131 Committee on Homeland Security, 71, 84, 87 Committee on Oversight and Government Reform, 108 Committee on the Judiciary, 71, 110, 111 communication, 122 communities, 106 community, 18, 82 compatibility, 20 compensation, vii, viii, x, xi, 1, 5, 7, 15, 39, 40, 70, 115, 119, 125, 126 competition, 106 compilation, 29 compliance, 30, 55, 93, 142 concealment, 61 Conference Committee, 42 conflict, 30 conflict of interest, 30 confusion, 61 congress, 79 Congress, viii, ix, x, xi, 1, 2, 3, 4, 5, 6, 8, 10, 13, 22, 24, 27, 30, 31, 36, 37, 38, 42, 43, 44, 45, 47, 48, 49, 50, 51, 53, 55, 56, 57, 63, 64, 65, 66, 67, 68, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 85, 87, 91, 92, 94, 95, 96, 99, 100, 101, 102, 103, 104, 105, 106, 110, 111, 112, 115, 118, 121, 122, 125, 129, 131, 133, 134, 135, 136, 137, 138, 139 congressional budget, 77, 136, 138 Congressional Record, 47, 88, 122, 131 consensus, 74 consent, 30, 39, 75 conservation, 18 Consolidated Appropriations Act, viii, ix, 2, 13, 103, 128 Constitution, 72, 76, 135 consultants, 5, 6, 40, 119 consulting, 19 contaminants, 53 continuity, vii, viii, 1, 2, 17, 38, 65, 116, 126 contractors, 96, 108 contracts, 100

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Index control, x, 51, 54, 57, 59, 60, 62, 91, 92, 97, 101, 102, 104 convergence, 64 conversion, 50, 69 conviction, 79 cost-effective, 142 costs, vii, viii, 1, 4, 6, 9, 12, 53, 131, 141, 142 Council on Environmental Quality, 142 counsel, 7, 15, 61 counterterrorism, 84 Court of Appeals, 88 courts, 80, 100, 110 covering, 70 credibility, 58 credit, 15, 33 crime, 96 criticism, 17, 57, 98 CRS, 1, 44, 49, 50, 80, 81, 84, 85, 87, 88, 89, 92, 103, 106, 107, 111, 112, 115, 121, 122, 125, 130, 131, 133, 135 currency, 32

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D danger, 66 database, 77, 136 death, 14, 36, 54, 93 decisions, 13, 16, 19, 20, 25, 26, 27, 49, 52, 64, 97, 120, 141 defense, viii, ix, 2, 15, 19, 128 definition, 22, 57, 96, 129 demand, 32 democracy, 2, 51, 126 Democrats, 47, 107, 132 Department of Commerce, 107 Department of Defense, 108 Department of Health and Human Services, 94 Department of Homeland Security, 95, 108 Department of Justice, 43, 87, 94, 107 Department of the Interior, 95, 107, 108 Department of Transportation, 21, 95 deposits, 95 desire, 54, 63, 64, 67, 69, 93 destruction, 61, 62

145

diamonds, 79 directives, 51, 57, 68 disaster, 60, 83 disaster relief, 60 disclosure, 8, 11, 27, 29, 61, 127 discretionary, 53 discretionary spending, 53 discrimination, 69 disposition, 50, 53, 58, 81 disputes, 51 District of Columbia, 10, 84 domestic policy, 16, 66 donations, 8, 121 DOT, 95 draft, 96, 107 drinking, 53 drinking water, 53 duplication, 29 durability, 49 duration, 59, 73, 75, 88 duties, 29, 32, 39, 40, 62, 70, 119, 120, 121

E ears, xi, 133 economic policy, 18 Education, 18, 20 election, vii, viii, ix, 2, 3, 4, 6, 8, 11, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27, 49, 51, 56, 57, 58, 59, 60, 63, 64, 65, 66, 70, 72, 82, 83, 84, 85, 92, 116, 117, 118, 120, 126, 128, 129, 130 Election Day, 65 electronic materials, 61 employees, 6, 7, 24, 39, 60, 61, 68, 69, 70, 86, 96 employment, 33, 39, 121 Endangered Species Act, 95, 107 energy, 18 environment, 66, 106, 141 environmental impact, 95 environmental protection, 95 Environmental Protection Agency, 94, 104, 107, 108 EPA, 80, 94, 95, 96, 97, 108, 110

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146

Index

ergonomics, 102 ethics, 21, 81 Ethics in Government Act, 29 evolution, 99 execution, 38, 65 Executive Branch, 67, 84, 85 Executive Office of the President, 28, 44, 47, 62, 119, 131 Executive Order, 50, 54, 57, 58, 59, 80, 81, 82, 94, 97, 106, 108, 109, 142 exercise, 38, 50, 51, 62, 74 expenditures, 4, 8, 12, 41, 113, 117, 118, 127, 128 expertise, 15, 18, 23, 130 Exposure, 109

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F faith, 82 family, 23, 130 FDT, 50 February, xi, 6, 60, 71, 76, 77, 78, 98, 109, 113, 125, 133, 134, 135, 136, 137, 138, 139 FEC, 8 Federal Bureau of Investigation, 60 Federal Communications Commission, 94, 106 federal courts, 110 Federal Election Commission, 8, 10 Federal Emergency Management Agency, 60 federal funds, 3, 6, 8, 9, 10, 21, 105, 113, 121, 128 federal government, 3, 26, 60, 62, 65, 67, 81, 86, 113 federal grants, 113 federal law, 105 Federal Register, x, 54, 55, 56, 80, 92, 94, 95, 97, 98, 99, 100, 102, 106, 107, 108, 109, 112, 113 Federal Reserve, 18 Federal Reserve Board, 18 fees, 104, 106 feet, 22, 95, 129 film, 61 finance, 4, 8, 17

Financial Services and General Government, 104 financial support, 5 financing, 4 firearms, 96 Fish and Wildlife Service, 107, 108 flow, 18 focusing, 68 food, 15 Ford, xi, 6, 7, 17, 18, 19, 43, 44, 45, 46, 76, 77, 133, 135, 136, 137, 138 foreign affairs, 15, 100 foreign aid, 16 foreign nation, 32 foreign policy, 15, 19, 26 Franklin D. Roosevelt, 14, 52, 81 freedom, 14 Friday, 60 funding, vii, viii, ix, x, xi, 1, 2, 3, 4, 5, 7, 8, 9, 12, 13, 14, 22, 23, 24, 32, 33, 96, 105, 115, 116, 119, 121, 125, 126, 127, 128, 129 funds, viii, ix, 2, 3, 4, 5, 6, 7, 8, 9, 12, 13, 22, 23, 32, 33, 34, 37, 40, 41, 42, 64, 104, 105, 113, 117, 118, 121, 127, 128, 129, 130 furniture, 39, 119

G General Accounting Office, 6, 28, 35, 43, 44, 47, 80, 109, 111, 112, 113, 132 general election, vii, viii, ix, 2, 8, 9, 13, 24, 32, 34, 35, 40, 116, 117, 120, 121, 126 general fund, 12, 31, 41, 127 General Services Administration, vii, viii, x, xi, 1, 3, 28, 43, 44, 47, 108, 110, 115, 122, 125, 131, 132 General Services Administration (GSA), vii, viii, x, xi, 1, 3, 115, 125 Georgia, 17 Global Warming, 106 goals, 20, 27, 66, 68, 93 Gore, 10, 11, 12, 20, 23, 44, 130 governance, 28, 119

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Index government, vii, viii, 1, 3, 4, 10, 18, 23, 26, 50, 53, 59, 60, 61, 62, 67, 68, 69, 71, 72, 79, 81, 86, 105, 106, 113, 116, 130 Government Accountability Office, 55, 70, 71, 87, 93, 113, 119 Government Accountability Office (GAO), 55, 70, 93 GPO, 43, 44, 45, 47, 48, 85, 87, 122, 131, 132 grants, 100, 106, 110, 113 groups, vii, 15, 19, 60, 61, 64, 95, 104, 116 growth, 61 GSA, vii, viii, ix, 1, 2, 6, 9, 10, 11, 12, 13, 22, 24, 44, 117, 126, 127, 128, 129, 130 guidance, 61, 70, 105, 113, 142 guilty, 79

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H handling, 52 hands, 49, 52, 57, 113 Harvard, 24 hazards, 113 health, 98, 141 Health and Human Services, 94 hearing, 24, 47, 85 heart, 111 HHS, 94 high-level, 11, 120, 127 hip, 26 hiring, 5, 86 homeland security, 116 Homeland Security, 71, 84, 85, 95, 108 host, 49 hostage, 59, 79 House, viii, ix, x, 2, 12, 22, 27, 29, 30, 31, 36, 37, 38, 42, 43, 44, 45, 47, 56, 71, 79, 87, 88, 91, 92, 102, 103, 106, 108, 109, 110, 111, 112, 117, 122, 127, 129, 131, 132 House Committee on Government Reform, 22, 30, 47, 112, 117, 122, 129 housing, 16 human, 18, 28, 119 human development, 18 human resources, 28, 119 Hurricane Katrina, 71, 87

147

I IBM, 85, 86 id, 59, 84, 100, 105, 106, 137 identification, 61 identity, 113 impact analysis, 97 impeachment, 6, 17, 79 implementation, x, 54, 55, 57, 77, 92, 97, 98, 103, 111, 136 in transition, xi, 5, 7, 12, 13, 18, 128, 133 inauguration, 4, 9, 15, 16, 19, 21, 22, 23, 24, 25, 26, 28, 32, 34, 38, 40, 51, 53, 57, 63, 66, 67, 116, 117, 119, 120, 121, 126, 129, 130 independence, 73 Independent Agencies, viii, ix, 2, 12, 13, 45, 127, 128, 131 indication, 93, 94 industrial, 96 inefficiency, 88 inflation, 3, 9, 24, 32, 117, 131 initiation, 101, 102 injunction, 62 injury, 113 innovation, 15 Inspector General, 28, 87, 119 instruments, 32 intelligence, 96 Intelligence Reform and Terrorism Prevention Act, 13, 67, 120 intentions, 52 interaction, 25 Internal Revenue Service, 8, 22, 129 interviews, 23, 130 Iran, 59, 60, 79 Iran-Contra, 79 Iraq, 84

J January, 3, 9, 10, 11, 16, 22, 26, 34, 40, 54, 55, 59, 61, 62, 70, 72, 75, 76, 78, 80, 86,

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148

Index

93, 97, 98, 99, 109, 112, 113, 126, 129, 134, 135, 136, 137, 138 Jefferson, 79 job training, 16 jobs, 19, 20, 106 Jordan, 21, 111 journalists, 53 judge, 62 Jun, 88 jurisdiction, 111 Justice Department, 6

K Katrina, 71, 87

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L labor, 82, 108 language, 12, 104, 112, 127 law, vii, ix, 1, 8, 17, 36, 38, 39, 42, 52, 57, 62, 69, 72, 73, 76, 77, 97, 100, 104, 120, 122, 135, 136, 141, 142 laws, 38, 65, 68, 69, 96, 105 lawyers, 18 lead, 21, 79 leadership, 18, 19, 26, 28, 64, 67, 71, 119 learning, 63 legislation, viii, ix, x, 2, 3, 4, 5, 7, 8, 9, 11, 12, 13, 22, 24, 56, 60, 62, 75, 79, 92, 101, 102, 103, 104, 112, 117, 127, 128, 129, 131, 134 legislative, x, 3, 5, 16, 22, 25, 27, 29, 51, 55, 56, 65, 66, 92, 100, 101, 102, 103, 113, 129 legislative proposals, 29 librarians, 61 life cycle, 60 lifetime, 9, 122, 131 limitation, 22, 129 limitations, 113, 121 Lincoln, 16 loans, 100 lobbying, 81 local government, 105 logging, 79

long-term, 61

M machines, 34, 39, 119 Madison, 79 malfeasance, 73, 88 management, 28, 52, 59, 60, 69, 71, 86, 100, 119 mandates, 106 markets, 75 Massachusetts, 66 Massachusetts Institute of Technology, 66 measures, 71, 104 median, 56, 103 messages, 77, 78, 138 military, 7, 13, 35, 84, 100, 120 mining, 95 money, 32 moratorium, x, 54, 91, 97, 110 morning, 17, 24

N NARA, 60, 61, 62, 82 nation, 23, 32, 53, 63, 130 national, viii, ix, 2, 13, 15, 18, 38, 41, 50, 51, 53, 57, 63, 64, 65, 66, 67, 68, 83, 84, 85, 96, 108, 116, 117, 120 National Aeronautics and Space Administration, 108 National Archives and Records Administration(NARA), 11, 29, 58, 60, 82, 83, 127 National Commission on Terrorist Attacks, 13, 85 National Marine Fisheries Service, 107 National Oceanic and Atmospheric Administration, 107 National Park Service, 96, 108 national parks, 96, 108 national security, viii, ix, 2, 13, 41, 50, 51, 53, 63, 64, 65, 66, 67, 68, 83, 84, 85, 116, 117, 120

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Index National Security Council, 85 natural, 15, 18, 83 natural resources, 15, 18 NC, 83 neglect, 73, 88 New York, 45, 46, 68, 78, 80, 83, 105, 107 New York Times, 45, 46, 80, 83, 105, 107 Nixon, xi, 5, 6, 16, 17, 19, 43, 45, 52, 76, 133, 135, 138 non-defense, viii, ix, 2, 128 non-profit, 22, 129 normal, 100 NPR, 100

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O obligation, 22, 99, 129 obligations, 12, 34, 40, 106, 117 occupational, 96 occupational health, 96 Occupational Safety and Health Act, 113 Office of Justice Programs, 107 Office of Management and Budget, xi, 18, 28, 45, 55, 60, 76, 79, 80, 89, 92, 113, 119, 122, 131, 134, 135, 136, 139, 142 Office of Personnel Management, 69, 86 Office of Personnel Management (OPM), 69, 86 Office of Science and Technology Policy, 142 Office of Surface Mining, 107 OMB, 18, 76, 77, 92, 97, 98, 106, 110, 113, 135, 136, 142 omnibus, viii, ix, 2, 13, 128 OPM, 70, 71, 86 opposition, 57 organization, 3, 9, 18, 19, 20, 29, 33, 60, 84, 100, 109, 116, 120, 121, 126 organizations, 23, 40, 60, 119 orientation, x, 3, 10, 11, 24, 27, 28, 115, 119, 120, 127 oversight, 20, 22, 50, 53, 64, 65, 66, 68, 70, 71, 97, 108, 129

149

P PA, 52 paper, 61, 83, 84 Paper, 105 partnership, 20 penalties, 61 penalty, 40 Pennsylvania, 17 pension, 9, 43, 122, 131 perception, 27, 57 perceptions, 69 performance, 28, 39, 62, 69, 71, 86, 119 performance appraisal, 86 permit, viii, ix, 2, 12, 22, 56, 96, 120, 127, 129 personal, 28, 57, 61, 119 philosophical, 20 planning, 8, 16, 17, 18, 19, 24, 25, 63, 65, 66, 84 play, 53 pleasure, 68, 73 police, 96 policy choice, 142 policy initiative, 18 policy making, 26 political appointments, 52, 53 political leaders, 26 political parties, 4, 14, 84 political uncertainty, 51 politics, 21, 51 pollution, 95, 96, 104 popular vote, 21, 129 power, vii, viii, 1, 4, 14, 17, 19, 21, 31, 38, 49, 50, 51, 64, 65, 72, 73, 87, 95, 108, 110, 116 power plant, 95, 108 power plants, 95, 108 powers, 19, 49, 51, 55, 59, 64, 101 preference, 71, 86 presidency, 17, 24, 25, 49, 51, 52, 54, 66, 72, 73, 74, 93, 102, 109 president, 25, 26, 33, 51, 57, 80, 105, 112 President Bush, 10, 21, 26, 60, 82, 137 President Clinton, 3, 10, 11, 12, 23, 54, 76, 78, 81, 82, 97, 130, 135, 138

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150

Index

presidential campaigns, 4 printing, vii, viii, 1, 40, 119 priorities, 27, 51, 55, 67, 68, 93, 106, 116, 142 privacy, 61 private, 3, 6, 7, 8, 9, 22, 23, 32, 33, 79, 121, 126, 129 procedural rule, 98 productivity, 106 profit, 22, 129 program, 15, 25, 77, 82, 108, 136 proliferation, 57 promote, 38 propaganda, 63 property, 79, 100 propriety, 52 protection, 9, 73, 74, 95, 122, 131 PTA, vii, viii, ix, x, xi, 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 22, 115, 116, 117, 118, 119, 120, 122, 123, 125, 126, 127, 128, 129, 131 public, 5, 7, 8, 15, 17, 18, 22, 26, 27, 32, 33, 34, 51, 52, 53, 57, 60, 63, 69, 72, 84, 85, 98, 99, 100, 106, 109, 121, 129, 141, 142 public funding, 8 public funds, 8, 22, 129 public health, 106 public interest, 99, 109 public policy, 15, 51, 53

regulation, x, 18, 53, 55, 57, 92, 96, 104, 112, 141, 142 regulations, ix, x, 8, 52, 53, 54, 55, 60, 68, 69, 86, 91, 92, 93, 97, 98, 101, 103, 104, 106, 107, 109, 110, 112, 141, 142 regulatory framework, 142 regulatory oversight, 97 regulatory requirements, 57, 69, 105 rejection, 102 relationship, 68 Republican, 4, 16, 19 research, 92, 105 residential, 48, 51 resolution, 56, 75, 101, 102, 111, 134 resource allocation, 66 Resource Conservation and Recovery Act, 96 resources, 15, 18, 28, 64, 66, 117, 119 responsibilities, 4, 5, 11, 14, 24, 25, 29, 67, 70, 85, 110, 112, 116, 120, 142 responsiveness, 26 retention, 61 risk, 63, 96 risk assessment, 96 risks, 64, 65 Robert Gates, 85

Q

SA, 11, 107, 127 safeguard, 63 safety, 38, 65, 98, 106, 141 salaries, 6, 7, 68, 86 scandal, 79 SE, 68 Secret Service, 9, 33, 122, 131 Secretary of Defense, 22, 23, 85, 129, 130 Secretary of State, 19, 20, 21, 23, 46, 129, 130 Secretary of Transportation, 23, 130 Securities and Exchange Commission, 94, 106 security, viii, ix, 2, 13, 18, 41, 50, 51, 53, 61, 63, 64, 65, 66, 67, 68, 69, 83, 84, 85, 116, 117, 120 Security Council, 85 selecting, 23, 60, 69, 70, 71, 130 senate, 84, 85

qualifications, 71

R radio, 21 range, 56, 59, 86, 103 Reagan Administration, 19, 25, 48 reality, 19, 57 recess appointment, 50, 52, 72, 73, 74, 75, 88 Reclamation, 107 recognition, 62 reelection, 5, 59 regular, x, xi, 12, 37, 39, 42, 55, 76, 93, 101, 115, 125, 127, 134, 135, 142

S

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Index Senate, viii, ix, x, 2, 8, 9, 11, 13, 23, 24, 27, 29, 30, 31, 36, 37, 38, 42, 43, 44, 45, 47, 48, 50, 52, 55, 56, 67, 71, 72, 74, 75, 84, 85, 87, 88, 92, 98, 101, 102, 103, 111, 127, 128, 130, 131 Senate approval, 52 separation, 28, 119 September 11, 50, 53 series, 17, 21, 75, 84 services, vii, viii, x, xi, 1, 3, 4, 5, 6, 9, 12, 14, 22, 32, 33, 34, 37, 39, 40, 41, 77, 115, 116, 117, 118, 119, 120, 125, 126, 127, 128, 129, 134, 136, 139 SES, 68, 69, 70, 86 shape, 23, 57 Sierra Leone, 79 signs, 72, 101 sine, x, 36, 56, 73, 75, 92, 102, 103 sites, 61, 83 skills, 68, 69 sludge, 96 smoothing, 79 Social Security, 87, 94 soil, 84 solid waste, 96 SP, 112 Speaker of the House, 43, 106 species, 95 specificity, 65 speech, 19, 21, 22, 117, 130 sponsor, 117 stability, vii, viii, 1, 17 staffing, 18, 52, 71 stages, 66 standards, 70, 85, 96, 105, 113 state laws, 96 statutes, 3, 53, 54, 57, 80, 103 statutory, 11, 29, 56, 62, 74, 77, 87, 98, 101, 105, 109, 110, 120, 127, 136 statutory provisions, 105 storage, 61 strategies, 64, 68 streams, 95 stroke, 79 subsistence, 40, 119

151

Supreme Court, 79, 95 symbolic, vii, viii, 1, 51, 60 systems, 29, 86, 96, 118

T task force, 15, 16, 18, 19, 60 tax policy, 16 team members, 9, 120 Tehran, 79 telephone, 44 temporary appointment, 9, 72, 127 tension, 67, 69 tenure, 68, 73 terrorism, 53, 63 terrorist, 50, 53, 63, 84 terrorist attack, 50, 53, 84 testimony, 24, 110, 112, 117 Texas, 21 Theodore Roosevelt, 52 theory, 110 threat, 84, 112 threatening, 63 threats, viii, ix, 2, 13, 120 threshold, 73 thresholds, 87 time, xi, 7, 15, 17, 18, 22, 23, 24, 33, 35, 49, 51, 56, 63, 64, 66, 67, 68, 69, 71, 73, 74, 76, 77, 81, 84, 94, 97, 98, 99, 100, 102, 104, 112, 126, 129, 130, 133, 135, 136, 142 time frame, 98 timing, 52, 53, 57, 64, 75, 134, 138 title, 28, 34, 35, 36, 40, 121 tobacco, 79 total expenditures, 41 tradition, 14, 73 training, viii, ix, x, 2, 12, 13, 16, 27, 28, 115, 119, 127, 128 trans, 86 transcripts, 85 transfer, vii, viii, 1, 4, 19, 31, 38, 49, 50, 51, 64, 65, 116 transition, vii, viii, ix, x, xi, 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 32,

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152

Index

33, 34, 35, 37, 42, 49, 51, 52, 57, 59, 60, 61, 63, 64, 65, 66, 67, 68, 70, 75, 77, 79, 83, 84, 85, 102, 112, 115, 116, 117, 118, 119, 120, 121, 122, 125, 126, 127, 128, 129, 130, 131, 133, 134, 137, 138 transition period, 4, 5, 7, 9, 10, 11, 14, 16, 19, 20, 22, 24, 25, 26, 49, 51, 52, 57, 59, 60, 63, 64, 65, 68, 83, 122, 126, 129, 131 transitions, vii, xi, 3, 4, 5, 8, 9, 10, 13, 15, 21, 22, 23, 24, 25, 26, 38, 42, 45, 49, 50, 51, 52, 53, 57, 64, 65, 66, 67, 77, 78, 116, 121, 129, 130, 134, 136, 138, 139 transparent, 71, 142 transportation, 16, 34, 35 travel, 5, 23, 35, 40, 119, 130 Treasury, viii, ix, 2, 3, 11, 12, 13, 31, 41, 44, 45, 113, 117, 127, 128, 131 trend, 98 tribal, 106

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U U.S. Steel, 17 uncertainty, 21, 51, 128 unions, 82 United States, 13, 19, 27, 28, 29, 31, 32, 34, 35, 37, 38, 39, 40, 44, 45, 60, 63, 65, 69, 71, 72, 85, 96, 107, 113, 120, 122, 131

vehicles, 40, 119 veterans, 86 Vice President, 3, 4, 5, 6, 7, 9, 10, 11, 12, 17, 18, 20, 22, 23, 25, 29, 31, 32, 34, 37, 39, 40, 41, 44, 62, 116, 117, 118, 119, 120, 126, 127, 129, 130 voice, 26 voters, 58 voting, 63

W Wall Street Journal, 45, 46 Washington Post, 45, 46, 47, 83, 86, 107, 108, 109, 122, 131, 132 water, 53 websites, 61 welfare, 18 welfare reform, 18 well-being, 65 White House, ix, 14, 15, 18, 19, 20, 21, 24, 25, 29, 30, 51, 55, 59, 79, 80, 82, 91, 92, 93, 98, 109, 122, 128, 141 White House Office, 29, 82, 109 wholesale, 61 winning, 25 withdrawal, 99 working groups, 19

V vacancies, 69, 85, 127 variation, 59

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