Congress should reform the law to ensure federal vacancies are filled
Since the early days of the republic, presidents have had the ability to temporarily fill federal roles that need Senate confirmation with acting officials, a vital practice in the transition from one leader to the next. But serious flaws with the law that governs federal vacancies combined with Senate inaction have enabled Donald Trump to fill numerous critical jobs with acting officials indefinitely, a practice that has destabilized the work of federal agencies and undermined the role of the Senate.
The use of acting officials was never intended to be a strategy for the long term. As our government deals with the coronavirus pandemic and many other urgent matters, it is critical for Joe Biden to select and the Senate to swiftly act on his nominees to ensure that the new administration will be staffed with more permanent vetted individuals who can be clearly held accountable to the legislative branch and the public.
It is also time for the Congress to take other important steps, including a revision of the Federal Vacancies Reform Act of 1998, which outlines who can serve in an acting capacity and also for how long. While the current administration has exploited the law for its own purposes during the last four years, the Senate also has fallen in its duty.
The Senate confirmation process, for instance, has slowed dramatically. It took the upper chamber an average of 115 days to confirm the nominees of Trump in his first three years in office, twice as long as when Ronald Reagan was president. Several factors, such as the number of roles and political division, have contributed to the problem.
Absence of confirmed leaders has dire effects. The Homeland Security Department has less than 30 percent of its critical positions filled and maintains acting officials in top roles, including secretary and deputy secretary. Many positions have been without a nominee for months. The Government Accountability Office found the agency used an incorrect order of succession after Secretary Kirstjen Nielsen resigned. As a result, Acting Secretary Kevin McAleenan, Acting Secretary Chad Wolf, and also Acting Deputy Secretary Ken Cuccinelli were serving unlawfully.
When a federal judge concurred, the administration claimed it had briefly placed Peter Gaynor, who is the administrator of the Federal Emergency Management Agency, in charge of the Homeland Security Department to reset the order of succession in favor of Wolf. The judge ruled that Gaynor assumed leadership for the “sham purpose” of preserving the role of Wolf. Members of the Senate talked but took no action on this.
The Homeland Security Department is not alone. Critical roles across the government have been held by acting officials for periods that extend far beyond what the vacancies law intended. The National Park Service has been without a confirmed director ever since Trump took office, due in part to Senate inaction. Moreover, Trump has never nominated anyone to run the Drug Enforcement Administration in the last four years.
While acting officials play a vital role, relying on them often comes with a considerable downside. They are often seen as “substitute teachers” who lack authority, and in some cases expertise, and they lack accountability to the legislative branch and the public. The time is overdue for Congress to improve the Senate confirmation process and the vacancies law.
First, Biden and his transition team should continue to announce a diverse slate of nominees before the inauguration and in the days and weeks after. An examination of the last four presidents shows, on average, 95 percent of the secretary nominees that were announced in the transition period receive confirmation hearings before the inauguration.
Second, the Senate should move swiftly to consider the nominees. A recent analysis by the Partnership for Public Service found that for Bill Clinton, George Bush, and Barack Obama, over 80 percent of cabinet secretaries nominated before the inauguration received Senate approval in an average of less than three days. Congress should also reduce those 1,200 positions that need confirmation to accelerate the pace and ensure presidents have no reason to rely heavily on acting officials.
Finally, Congress should revamp the vacancies law. An updated version could mandate better reporting on vacancies and acting officials, ban acrobatic succession maneuvers, ban temporary leaders from serving in two or more roles at the same time, and allow individuals to serve in an acting capacity while nominated for a permanent position, which is a practice now prohibited by the Supreme Court.
These reforms and best practices are critical to our democracy and our government. They will ensure that capable individuals who work for the people will be in place to solve the challenges of the country.
Max Stier is president of the Partnership for Public Service. Kathryn Dunn Tenpas is a practitioner senior fellow for the Miller Center at University of Virginia and also a nonresident senior fellow for the Brookings Institution.