Mandatory timelines for federal appointments

The “nuclear option”, which eliminates the ability to filibuster most presidential nominations, forces a vote.  But is that what is necessary to break decades of gridlock when it comes to presidential nominations?

Hundreds of senior leadership positions in the federal government are currently vacant. This issue has plagued Democrat and Republican administrations alike. This matter is not about what political party controls the White House, Senate or House of Representatives; it is about process. 

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We recommend Congress change the law to mandate timelines for federal nominations.    Specifically, from the date a confirmable position becomes vacant, (or preferably the date the incumbent announces their departure) the president would have 45 days to nominate a candidate. From the date of nomination, the Senate would then have 45 days to conduct an up or down vote on the nominee. Should the nominee fail to achieve confirmation, the president would then have 30 days to nominate a new candidate. Similarly, the Senate would then have 30 days to vote on this nominee.  In the event the Senate does not vote within the allotted period of time, the nominee receives automatic senate confirmation.

Similarly, if the president does not forward a nomination to the Senate within the allotted time period, he or she defers the nomination of that position to the Senate.  Finally, if neither the president nor the Senate acts within the allotted time of this law, the outgoing government official (assuming he or she is leaving under honorable conditions) will appoint his or her replacement for a period of one year.  This proposed law would force both the president and the Senate to act in a timely manner or vest their authority to another branch or echelon of government.

The United States faces a host of significant issues at home and abroad. Staffing the government with competent and capable Americans will contribute to the resolution of these problems. Instituting mandatory timelines for federal nominations and confirmations could be an important step forward in addressing vacancies in critical positions.

Well over 100 senior federal positions requiring presidential nomination and Senate confirmation remain unfilled, including eight senior leadership positions in the Department of Homeland Security either vacant or temporarily filled by “acting” individuals, several senior advisors to the Secretary of State and 94 vacancies that exist within the Federal Courts. These vacancies produce additional, downstream ramifications when other executives move up to temporarily fill a critical position, leaving their previous job empty or in itself filled by a still more junior individual.

The U.S. government is more efficient and effective when appropriately appointed individuals fill critical government positions. Our founding fathers saw this log jam as a potential issue and provided for relief through the flexibility found in Article 2, Section 2 of the Constitution which states:   “…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.” 

To the credit of both Republicans and Democrats, significant efforts have resulted in selected streamlining of the process over the past few years.  But the current practice still leaves the Senate with the daunting task of advice and consent for nearly 2,000 Presidential nominations, and more importantly continues to lead to intolerable numbers of leadership gaps over unacceptable time periods.

Public Law 122-166 and Senate Resolution 116 are, bipartisan efforts to streamline the presidential nomination process, while maintaining the advice and consent requirements delineated in the Constitution.  The Presidential Appointment Efficiency and Streamlining Act of 2011 was signed into law in August 2012 as and eliminates the Senate’s requirements for advice and consent on nominations for 163 executive branch positions, and establishes working groups to study efficiency measures to streamline nominees’ paperwork and their associated background investigations.  For its part, Senate Resolution 116 proposes measures for expedited confirmation of 272 additional positions requiring advice and consent.

Reducing the number of positions subject to the nomination, confirmation and appointment process, while an important piece to more expedient government, is just one of several pieces and certainly not one without debate. The Heritage Foundation articulated the concern of many that better governance should be achieved by improvements to process, not a reduction of responsibility, and in their view an abdication of constitutionally mandated cooperation. Considering the expansive nature of today’s American Government, though individually arguable, thoughtful consideration must be given to determine the appropriate level of review necessary to staff the inner tiers of our agencies and departments.

A vacant or rotating executive creates numerous deficiencies in an organization and can negatively affect the government as a whole.  Lack of stable strategic direction, shifting priorities and decreased morale and performance are but a few of the problems that arise from this scenario.

Our government must strive for greater efficiency and accountability. Through a streamlined nomination and confirmation process that fills our most senior federal positions quickly and predictably, we can proceed down the road towards better governance in a smart and timely manner.

Parker and Cashin are Fellows at the Council on Foreign Relations.  The views of this article are their own and do not necessarily reflect those of any organization the authors are associated with.

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