As the Biden administration edges closer to the passage of a bill providing a dramatic infusion of federal dollars into the nation’s transportation system, key posts at the agency tasked with implementing that bill remain vacant.
The House plans to vote on the Senate's bipartisan infrastructure bill by Sep. 27. Meanwhile, only four of President Joe Biden's 11 nominees to head major agencies within the Department of Transportation have been confirmed. Other agencies are filled with acting administrators — which the head of one good-government group likens to “substitute teachers” — whose roles lack the weight and accountability of a Senate-confirmed official.
Some key positions — general counsel, the head of the National Highway Traffic Safety Administration and the head of the Pipeline and Hazardous Materials Safety Administration, for example — don’t yet have a nominee.
A White House official said there’s “strong acting leadership in place” at the agency, and “we look forward to sharing nominees with the requisite expertise and leadership for these jobs soon.”
A spokesman for the Senate Commerce, Science and Transportation Committee said the committee expects to hold a nominations hearing next month, when the Senate returns from its August recess.
Still, good-government groups say the Biden White House is lagging behind prior administrations in getting Senate-confirmed positions filled.
During the first 200 days of his presidency, Biden saw 88 confirmations of his nominees.
By contrast, former President Donald Trump had 89 confirmed in the first 200 days of his presidency. Former President Barack Obama had 238. Former President George W. Bush had 240, according to research by Kathryn Dunn Tenpas, a nonresident senior fellow with Governance Studies at the Brookings Institution, a moderate think tank.
“It’s a big problem that’s gotten worse,” said Max Stier, president and CEO of the Partnership for Public Service, which aims to improve government operations.
Biden’s four DOT confirmations include Secretary Pete Buttigieg, Deputy Secretary Polly Trottenberg, Under Secretary of Transportation for Policy Carlos Monje, and Federal Transit Administration Administrator Nuria Fernandez.
Other slots have nominees that have yet to be confirmed.
Tax returns and airports
Assistant Secretary for Research and Technology nominee Robert Hampshire, who is now the deputy assistant secretary, saw his nomination pulled from a planned markup because of concerns about Hampshire’s tax returns, and that nomination remains in flux.
And Sen. John Thune, R-S.D., concerned about a dispute with the Department of Transportation over air service in South Dakota, said he plans to oppose the nomination of Assistant Secretary for Aviation and International Affairs Carol “Annie” Petsonk, now serving as principal deputy assistant, until his issue is resolved. The Commerce, Science and Transportation Committee sent her nomination to the full Senate on Aug. 4 despite Thune’s opposition.
“I wouldn’t be surprised if a hold were placed on this,” said Sen. Roger Wicker, R-Miss., the ranking Republican on the committee, who noted Thune had a “very real concern” about the air service issue in his state.
Others, such as Chief Financial Officer and Assistant Secretary for Budget and Programs nominee Victoria Wassmer and Assistant Secretary for Government Affairs nominee Mohsin Syed, simply have yet to receive a vote. Like Hampshire and Petsonk, however, both are in the agency in positions that do not require Senate confirmation — Wassmer as deputy assistant secretary for finance and budget and Syed as principal deputy assistant secretary for governmental affairs.
Biden is not unusual in being slow to nominate a lead for NHTSA or PHMSA, according to the Partnership for Public Service, which tracks nominees. Neither Obama nor Trump had picked leaders for those agencies by August recess of their first year in office. However, Biden is unusual in not picking a general counsel: Both Obama and Trump had a nominee by August recess, with Obama's confirmed in April 2009.
Tenpas said Biden’s slow rate of confirmations reflects his party’s narrow Senate majority as well as what appears to be a prioritization of judicial nominees.
Obama, she said, was criticized for moving too slowly on judicial nominations; Biden seems determined not to repeat that trend.
“Anybody nominated to be an ambassador or deputy secretary of education could say, ‘sure, prioritize life tenure before you get to me,’” she said.
That, as well as a busy legislative agenda that has included COVID-19 relief, the 2021 impeachment of Trump, an infrastructure package and budget reconciliation measures, have contributed to the crowding out of executive branch nominees, Tenpas said, with Senate Majority Leader Charles E. Schumer understanding “that the chances of getting legislation through are at the beginning of a term.”
Still, she said, “it’s pretty clear they’re not prioritizing executive branch appointments.”
Dylan Hedtler-Gaudette, a government affairs expert at the Project on Government Oversight, said that while Biden started strong, quickly unveiling top cabinet appointments, eight months into his term he hasn’t named nominees for 230 positions.
“There's no real excuse for that,” he said, saying Biden is tasked with nominating 1,200 positions. “They haven’t even announced nominees for about 20 percent of the positions that the Senate has to confirm – that’s a big backlog.”
And it has an impact on policy, he said. While acting administrators can promulgate new rules for their agencies, there are limits, and doing so can lead to challenges: Trump acting Secretary of Homeland Security Chad Wolf saw several of his decisions reversed by the courts.
Plenty of blame
But Hedtler-Gaudette said Biden isn’t the only issue here. Some 206 nominees await Senate action, and some of the very lawmakers who are critical of administration inaction may be contributing to the problem by holding up nominees. “There’s a lot of blame to go around on this,” he said.
Beth Osborne, director at Transportation for America, said contributing to the problem is that a lot of career staff positions are vacant after the Trump administration.
As the bipartisan infrastructure package becomes law, with its $105 billion in discretionary grants, the administration “will need bodies to review what’s going to be thousands of applications,” she said. Implementing the law, even with an agency that employs 55,000 employees spread across 10 different modal administrations, “is a huge undertaking,” she said.
Not having those positions filled “means you don’t have people to share your work with. … There are a lot of decisions that just need to be made, and they can’t all flow up to the secretary, the deputy secretary and the undersecretary,” she said.
Stier said the problem has worsened dramatically, with confirmation times for nominees doubling between the Reagan and Trump administrations. Nominees during the George W. Bush and Obama years spent a combined 452 years in what he calls “confirmation purgatory,” awaiting the resolution of their nominations. By contrast, nominees spent about 80,000 days in the nomination process, or 219 years, during Trump’s term, according to a study by the Partnership for Public Service.
The looming passage of the infrastructure bill, Stier said, highlights the need to have people in place.
“The risk is, you’re talking about large sums of money trying to do important things that won’t get done as well as if you had high-quality, longer-term leadership that was empowered by the confirmation process,” he said.
In the interim, he said, agencies are often headed by acting administrators.
While those acting administrators could be very well-qualified, “the reality is by way of their position, they’re not fully equipped to deal with … big problems, or long-term issues.”
His group believes the best solution would be to reduce the number of positions that require Senate confirmation.
Doing so, he said, would give the Senate time to really thoroughly vet a few key appointments while keeping the bureaucracy running.
“The Senate isn’t designed for this volume of confirmations,” he said.