WASHINGTON – Homeland Security and Governmental Affairs Committee Chairman Joe Lieberman, ID-Conn., delivered the following statement on the floor of the Senate on S.679, The Presidential Appointment Efficiency and Streamlining Act of 2011. The legislation – authored by Senators Charles Schumer, D-N.Y., and Lamar Alexander, R-Tenn., and co-sponsored by Majority Leader Harry Reid, Minority Leader Mitch McConnell, Lieberman, and HSGAC Ranking Member Susan Collins, R-Me., – was approved by HSGAC on April 13, 2011.
“Streamlining the Nominations Process”
Homeland Security and Governmental Affairs Committee
June 22, 2011
AS PREPARED FOR DELIVERY
Mr. President, our current nomination and confirmation process has been described as “nasty and brutish, without being short,” and I rise today in support of the efforts brought forth by Senators Schumer and Alexander to streamline it.
The legislation we begin debating today – S.679, “The Presidential Appointment Efficiency and Streamlining Act of 2011” – is a modest and bi-partisan effort to help solve a problem that has been growing since the Kennedy Administration – it takes too long for an incoming President to get his team into place, and there are too many lengthy vacancies throughout the course of an administration.
One hundred days into President Obama’s Administration, only 14 percent of the full-time Senate-confirmed positions in his Administration had been filled. And after 18 months, 25 percent of key policymaking positions were still vacant.
This is not an aberration. Presidents Clinton and George W. Bush faced similar difficulties.
This is a problem that has serious national and economic security implications when crucial offices go unfilled for months and months.
President George W. Bush did not have his national security team, including critical subcabinet officials, confirmed and on the job until at least six months after he took office. The 9-11 Commission pointed out how dangerous this was and recommended steps to speed up the process for national security appointments – some of which were adopted as part of the Intelligence Reform and Terrorism Prevention Act of 2004.
And at the height of the financial crisis, Secretary of the Treasury Tim Geithner was “home alone,” with no other Senate-confirmed positions at the Treasury Department filled for over three months.
This bill would eliminate the need for Senate confirmation for about 200 positions, mostly in the areas of legislative and public affairs; internal management positions, such as chief financial officers; directors, commissioners or administrators at or below the Assistant Secretary level who report to another Senate-confirmed official; and the members of a number of part-time advisory boards.
This is not a radical proposal and removing these positions would free up both the Senate and future Administrations to concentrate more fully on the nominations for those key positions where public policy is made.
Mr. President, I would first like to note the bipartisan nature of these proposals.
In January, Majority Leader Reid and Minority Leader McConnell decided the nomination and confirmation process had become too slow and cumbersome. They established a working group on executive nominations and appointed Senators Schumer and Alexander – Chairman and Ranking Member, respectively, of the Rules Committee – to lead it.
Senator Collins and I are also part of that group as Chairman and Ranking Member of the Homeland Security and Governmental Affairs Committee.
The reforms proposed by Senators Schumer and Alexander have been carefully crafted, and I want to thank them both for their hard work.
They introduced their legislation on March 30, with a bipartisan group of 15 cosponsors, and on April 13 the Homeland Security and Governmental Affairs Committee, on a bipartisan vote, reported the bill favorably to the Senate.
Senators Schumer and Alexander are also proposing a Senate resolution – S.Res.116 – that would streamline the confirmation process for approximately 200 other Presidential appointments that receive Senate confirmation by allowing their nominations to bypass the committee process and come directly to the Senate floor as long as no Senator objects.
This would apply to 30 bipartisan federal advisory groups and councils, like the Social Security Advisory Board and the IRS Advisory Board.
This is the way the Senate should work. A problem was identified and both sides of the aisle worked together to craft a solution and bring it to the floor for debate.
Let me lay out the problem in detail, Mr. President.
On March 2, Sen. Collins and I held a hearing titled, “Eliminating the Bottlenecks: Streamlining the Nominations Process,” and heard testimony on the appointments process from Clay Johnson, the former head of White House Office of Presidential Personnel and former Deputy Director for Management at the Office of Management and Budget; Max Stier, President of the Partnership for Public Service, and Robert Dove, former Senate Parliamentarian.
Additionally, Norman Ornstein, resident scholar at the American Enterprise Institute, provided written testimony.
They made a compelling case for change.
When President Kennedy entered office in 1961, he had 850 Senate-confirmed positions to fill. That number had increased to 1,143 when President George W. Bush took office and 1,215 when President Obama was sworn in.
And, not surprisingly, with more positions, it takes longer to fill them.
The delay is not at the cabinet level. Between 1987 and 2005 it took presidents an average of only 17 days from the time of a vacancy to nominate a cabinet secretary and the Senate an average of just 16 days to confirm the nominee.
It’s at the sub-cabinet level where things slow to a crawl. It took presidents an average of 95 days to nominate deputy cabinet secretaries and the Senate 62 days to confirm them. Non-cabinet agency heads waited an average of 173 days for nomination and 63 additional days for confirmation. Non-cabinet agency deputy heads fared worst, seeing an average of 301 days pass before nomination and 82 days before confirmation.
Part of the problem is that the large number of appointments that need to be made at the outset of a new administration can overwhelm the resources available to review and vet these nominees.
Eliminating Senate confirmation for non-policymaking or lower-level positions will allow an incoming Administration and the Senate – as well as the FBI and the Office of Government Ethics, which assist in the vetting process – to focus on the more important policy making positions, speeding up the process.
Another problem contributing to the delay are the numerous, duplicative, and time-consuming forms that potential nominees are required to fill out.
Most nominees submit to at least four reviews, each represented by a separate packet of government forms, including a White House Personal Data Statement, questionnaires from the FBI and the Office of Government Ethics, and at least one questionnaire from the Senate committee of jurisdiction.
A study by Terry Sullivan, a professor at the University of North Carolina and Executive Director of the White House Transition Project, found that half the questions are redundant or repetitive.
This Act would establish an executive branch working group to study and report to the President and Congress on the best ways to streamline all this paperwork, along with a detailed plan for creating and implementing a “smart form” – an electronic system for collecting and distributing background information for nominees requiring Senate confirmation. With a smart form, a nominee could answer a question once and have the information filled in for all the other relevant forms.
The need for reforms in the federal appointments process is not a new topic. Over the past three decades, an abundance of commissions, academics, think tanks, and good government groups have turned their sights on this problem.
I won’t list them all, but here are just a few: The National Academy of Public Administration in 1983 and 1985; the President’s Commission on the Federal Appointments Process in 1990; the Twentieth Century Fund in 1996; the Brookings Institution’s Presidential Appointee Initiative, co-chaired by former Senator Nancy Kassebaum and former Director of the Office of Management and Budget Franklin Raines in 2001; and the bipartisan National Commission on the Public Service, headed by Paul Volcker, in 1989 and 2003.
The Senate has looked into making changes as well. In 2001, our Committee – then called the Governmental Affairs Committee and chaired by former Senator Fred Thompson – held a two-day hearing titled “The State of the Presidential Appointment Process,” which looked at many of the ideas we are considering today.
The Committee also reported out a bill – “The Presidential Appointments Improvement Act of 2002” – that sought to make modest improvements to the appointments process, including streamlining financial disclosure requirements. But the full Senate never considered it.
Then, as I mentioned, Congress passed the 2004 Intelligence Reform and Terrorism Prevention Act, which included some improvements to help speed up the consideration of critical members of a new President’s national security team.
Now it is time to take a modest next step. We have reasonable, bipartisan legislation in front of us and it is time – in fact, past time – to act.
Now Mr. President, let me address the question that is rightly of concern to many of my colleagues: “Is the Senate giving away its important duty of “advice and consent?”
The answer is “no” and let me first read directly from Article II of the Constitution.
“[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” – and this is crucial, Mr. President – “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.”
And the very first Congress – in which many of the framers of the Constitution sat – did precisely that when they created the State Department – then called the Department of Foreign Affairs. The Secretary – ultimately Thomas Jefferson – was subject to Senate confirmation. But the legislation creating the Department also called for the hiring of a “chief clerk,” who would be second in command. That position was not subject to confirmation and Jefferson hired Henry Remsen, who had held the same job under the old Articles of Confederation.
It’s also worth remembering of that first Congress that on a single day in 1789 the Senate took up 102 nominations sent to it by President Washington just two days earlier – rejecting only one.
And Washington complained about the one he didn’t get.
But Washington was the acknowledged father of the country and no President has received that kind of deference since. The nominations process can be a rough-and-tumble world and that is to be expected under our separation of powers.
This legislation does nothing to change that. Rather, I would again argue it enhances the Senate’s powers by allowing us to focus our energies on the qualifications of those who would shape national policy.
If we don’t fix this system – which is almost universally regarded as broken – I fear we risk discouraging some of our nation’s most talented individuals from accepting nominations and important positions will go unfilled.
I am pleased at the support we have been getting for our effort. Former Senators Bill Frist and Chuck Robb and former White House officials Clay Johnson and Mack McLarty, who for the past year have headed up a bipartisan commission to reform the federal appointments process, have all endorsed this bill as well as S. Res. 116. So has the Partnership for Public Service.
I call on my fellow chairmen, ranking members and colleagues on both sides of the aisle to vote yes on this legislation so future Presidents can recruit the best candidates and put them to work quickly addressing the many challenges our nation faces.
I yield the floor.