Confirmation Process Leaves Government in Serious Gridlock

Posted March 24, 2009 at 2:48pm

The Washington Post’s Al Kamen noted on Monday that not a single political appointee to the Department of Health and Human Services has been confirmed 60 days into the Obama administration. Timothy Geithner remains alone atop the Treasury Department. Not that there is anything going on at HHS or Treasury.

[IMGCAP(1)]Of course, few recent administrations have had their top people in place within a couple of months. For Bill Clinton and George W. Bush, it took an average of nine to 10 months to get the top political appointees confirmed and in their offices. Barack Obama, as his team regularly points out, is ahead of both those two in his confirmations.

But that is not much to brag about. The costs of having top political posts vacant across the administration are high, and not just for the president. Two weeks ago, I spoke to a group of local government officials from around the country who are responsible for implementing the programs in the stimulus package. They are veterans at moving from federal grant to program implementation, but the normal process, which includes things like environmental impact statements and a lot of paperwork, takes several months.

They now need to compress that time frame to meet the stimulus mandate and inject the money into the economy quickly. That means getting waivers in some cases, or at least getting seriously expedited action from the feds. But these local officials are finding that the only people they have to deal with are career civil servants, who don’t have the authority in many cases to do such things — but there are no political appointees in place who do.

This problem is not new, of course. It has been building for 40 years; in the Kennedy administration, it took an average of two months to get all the top appointees in place. One root of the problem is an Eisenhower-era executive order mandating full FBI background investigations for all Senate-confirmable presidential nominees. That number has gone up by more than 30 percent since then, with the number of policy posts up even more.

There are now 1,141 Senate-confirmable positions. Each security check is a massive operation, involving up to 40 face-to-face interviews, and is basically the same for the assistant secretary of Education for public affairs as it is for the secretary of State. And, by the way, if you move from one national security post to another, you have to go through the whole thing again from square one.

Here is the best anecdotal example of the ridiculous nature of this requirement. When Mark Gearan left his post as head of the Peace Corps in the Clinton administration, he became president of Hobart and William Smith Colleges. Subsequently, he was nominated to the board of the Corporation for National and Community Service, a part-time, unpaid, public-private advisory committee. It requires Senate confirmation — and thus the full background check. Soon, FBI agents, tasked with going to the nominee’s neighbors to seek out any dirt, were flooding the campus. The president’s house at Hobart is on fraternity row — so they were asking frat boys questions like, “Is there any drinking going on there?—

Leave aside whether we want FBI agents doing this instead of investigating terrorist threats; much of the interviewing is actually done by the Office of Personnel Management or others detailed to it. The big problem is that each check takes weeks; the number of people requiring the checks is so large and the number of people doing them so limited that there is a gigantic clog in the pipeline.

Do we really need to dig so deeply into the background of sub-Cabinet nominees with no national security elements to their jobs, much less advisory committee members? A revision of the executive order to apply a sliding scale to the background checks, going from a thorough computer check for low-level nominees all the way up to the full monty for Cabinet members and those with serious national security, homeland security or financial portfolios, would strike a much better balance and significantly expedite the process for the good of the country.

Unfortunately, after the flaps over tax issues for high-profile figures such as Geithner and Tom Daschle, and after his emphasis in the campaign and since on ethics reform, it is probably impossible for Obama to do that now. Nor is it going to be easy to push the FBI to move faster on key nominees. What I am hearing from insiders is that the opposite is true; the FBI, unwilling to be the scapegoat if some problem emerges in a nominee’s background, is digging in its heels and even lengthening the amount of time needed to finish the security checks.

If the background checks are the major stumbling block, they are not the only one. It is clear that committees are putting their own obstacles in place, requiring in some cases top-to-bottom audits of tax returns over several years, demanding receipts for all travel and entertainment expenses, all charitable deductions and so on. This may be deterring serious tax cheats — but it is also driving out of the pool many others who acted in good faith but fear that something they don’t know about could emerge in a full-body-cavity audit — and suddenly they could be the next front-page examples of tax evaders. Can’t we have a little balance and perspective?

Now comes the big need: It is past time for the Senate to cut back on the number of positions that require Senate confirmation. The numbers have swollen way beyond reason, to include many positions that do not pass the threshold of serious policy power. The numbers could easily be cut back by a third, saving everyone time and heartache.

Of course, I know I am tilting at windmills here; Senators love having the control of people that comes with confirmation and love having a large pool from which to choose, often at random, when they want to use holds for leverage with an administration. The concern about leaving people twisting in the wind, waiting for months to be confirmed even after going through the background check obstacle course, is secondary.

The good news is that some Senators understand the blow to the public interest that a clogged, dysfunctional nomination and confirmation process brings, starting with Republican Lamar Alexander (Tenn.), who called last week for a major effort at reform. We should all wish him Godspeed — and allies.

Norman Ornstein is a resident scholar at the American Enterprise Institute.