Science and Technology in the National Interest Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments (2005) / Chapter Skim
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Appendix C Presidential Appointments Requiring the Advice and Consent of the Senate: Background and Current Issues
Appendix C Presidential Appointments Requiring the Advice and Consent of the Senate: Background and Current Issues
Pages 79-100
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From page 79... ...
This paper provides background information related to PAS positions, including the legal framework within which appointments to these positions are made, the steps in the appointment process, financial-disclosure requirements for applicants and office-holders, and the compensa tion framework for executive-level positions. Scholars and practitio ners of public administration have raised a variety of issues with respect to present-day presidential appointments, including the balance between the burdens and benefits of financial-disclosure requirements, the compensation levels in comparison with past levels and levels in the private sector, and the length of the process, particularly at the time of presidential transitions.
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From page 80... ...
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 appoint ments 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.2 Under that clause, some specified officers -- "ambassadors, other public ministers and consuls, judges of the supreme court," and, implicitly, all officers who would not be considered "inferior officers" -- are subject to a three-stage appointment process: nomination, some process by which the Senate can provide advice and consent, and actual appointment.
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From page 81... ...
It is not enough that other officers may be identified who formally maintain a higher rank, or possess responsibilities of a greater magni tude. If that were the intention, the Constitution might have used the phrase "lesser officer." Rather, in the context of a Clause designed to preserve political accountability relative to important Government assignments, we think it evident that "inferior officers" are officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.5 The Court's opinion suggests on the one hand that with the exception of specified officers, such as ambassadors and "judges of the supreme court," the Constitution requires only one layer of advice and consent positions in the hierarchy of each agency.
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From page 82... ...
Stage 1: Selection and Nomination. The initial step in the presidential appointment process for PAS positions is selection and nomination.
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From page 83... ...
The selection and clearance stage is usually the longest part of the appointment process even when the process goes smoothly. The beginning of a new administration may be character ized by delays because of the volume of positions that need to be filled all at once.
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From page 84... ...
If senators perceive that the president is using a temporary appointment to circumvent the confirmation process, however, they may respond by blocking other nominations or placing further restrictions on temporary appointments.10 Stage 2: Senate Consideration. After the president has submitted a nomination, the Senate consideration process begins.
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That includes information related to the 11A hold is an informal Senate practice in which a senator requests that his or her party leader delay floor action on a particular matter, in this case a nomination.
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Garcia, a nominee to be an assistant secretary of the Department of Homeland Security, included the following question: "Do you agree without reservation to respond to any reasonable summons to appear and testify before any duly constituted committee of the Congress if you are confirmed? " US Congress, Senate Committee on Governmental Affairs, Nominations of C
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Once the appointee is given the commission and sworn in, he or she assumes the duties and responsibilities of the office. Other Presidential Appointments Governmentwide, some 90 full-time positions are ap pointed by the president alone.13 Those positions are mostly in the White House office and are designed to staff and advise the president directly.14 Although the appointment process framework 13Estimate based on information from US Congress, Senate Committee on Governmental Affairs, United States Government Policy and Supporting Positions, 106th Cong., 2nd sess., Committee Print, S
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From page 88... ...
Under the provisions of the Homeland Security Act, at least seven officers in the depart ment are appointed by the president alone.15 Presidential appointees that do not require Senate confir mation are less likely to testify before congressional committees, for two reasons. First, as noted above, during the Senate confirmation process, nominees are routinely asked to agree (if confirmed)
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From page 89... ...
The rigorous ethical requirements associated with entering high-level government service may deter some otherwise well-qualified applicants from pursuing or accepting appointments. In addition to the loss of the talents that such appointees might bring to office, the government might lose benefits arising from close contact between its long-term employees and people with substantial and relevant private-sector 17For examples of such testimony, see Louis Fisher, "White House Aides Testifying Before Congress," Presidential Studies Quarterly, Winter 1997, vol.
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. 21US Congress, Senate Committee on Governmental Affairs, The State of the Presidential Appointment Process, hearings, 107th Cong., 1st sess., April 4-5, 2001 (Washington: GPO, 2002)
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5. 24US Office of Government Ethics, Public Financial Disclosure: A Reviewer's Reference, (Washington, DC: OGE, 1996)
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From page 92... ...
Groups seeking to reform the presidential appointment process have criticized, among other things, the burden that the financial disclosure process places on potential appointees. According to various reports,29 applicants face a level of ethical and political scrutiny that is too high and a paperwork burden that is too com plex, abundant, and invasive.
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From page 93... ...
It is an accepted condition of government service that the public must be able to assure itself that government officials will act impartially. Rather, what is considered frustrating and unduly burdensome is the requirement to obtain and disclose excessive detail regarding financial interests, the redundancy among the various forms used in the process, and the intrusion into a nominee's personal finances beyond what appears to be 30Surveys conducted by the Brookings Institution Presidential Appointee Initiative have been helpful in gauging the opinion of past and potential appointees regarding the burdens of the appointment process.
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From page 94... ...
As suggested by Director Comstock's remarks, OGE transmit ted to the Senate Committee on Governmental Affairs and the House Committee on Government Reform, on April 4, 2001, a report on completed and proposed improvements in the financial disclosure process for presidential nominees.32 The report, which had been required under the Presidential Transition Act of 2000,33 recommended five changes in the Ethics in Government Act: (1) reduce the number of valuation categories; (2)
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From page 95... ...
In April 2003, Senator George Voinovich introduced legislation similar to Senator Thompson's bill from the previous Congress, and Representative Jo Ann Davis introduced a companion bill in the House.36 Compensation Compensation for most PAS positions is set by law at one of five levels of the Executive Schedule.37 Secretaries and other top executive branch officials are generally compensated at level I, deputy secretaries and their peers at level II, and other officials at the remaining three levels according to the hierarchy of positions. Level II of the Executive Schedule has been in parity with salaries of members of Congress and federal circuit or district judges for most of the last 40 years.
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From page 96... ...
Although this statutory provision suggests that Congress intended to link the salaries of federal officials and elected officials, the commission has not been activated since 1987. A 2002 study of presidential appointee compensation by the Brookings Institution Presidential Appointee Initiative found that over the last several decades federal government executives' salaries have declined both in purchasing power and in comparison with the pay of average workers.
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23. 42Empirical studies of the appointment process have tended to focus on the length of the Senate confirmation process, on which data are readily available.
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From page 98... ...
and various volumes of the Journal of the Executive Proceedings of the Senate of the United States of America. instance in which it is possible, for a subset of PAS positions, to collect information on the length of the appointment process that includes this first stage is the case of initial appointments to newly created departments.
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From page 99... ...
In addition, the president is likely to need top advisers in place to address contemporary security issues. Since the time of the 2001 Clinton-Bush transition, both the Hart-Rudman report and the 9/11 Commission Report have called for improved continuity in national security policy-making during presidential transitions.47 The reports proposed expedited appoint ment processes for key members of the president's national security team.
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From page 100... ...
In particular, knowledgeable observers have proposed streamlining financial-disclosure requirements and expediting the confirmation process, particularly during presidential transitions. In addition, some have suggested that present govern ment executive compensation levels may deter well-qualified people from accepting leadership positions in the federal bureau cracy.
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