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Delays in presidential appointments damage vetting system

For presidential appointees, especially at senior levels, the time lapse between initial selection and actually taking office increases every year.  Nominees to key positions have waited months or even years between being named as potential appointees and actually being sworn in, often based on reasons having nothing to do with the individual’s qualification for office.  However, statistics do not fully capture the full impact of these delays on the vetting system itself.  Because confirmation timelines have historically been further extended in times of divided government, the prediction is that delays will be worse than ever over the next two years.

The adverse impact of confirmation delays on the operation of government is obvious.  Open positions pose risks to the country.  News reports have highlighted several highly sensitive vacancies in critical public safety and national security positions that were empty for many months.  However, there has been almost no focus on the consequences of such delays on either the vetting system itself or the lives of prospective nominees.

{mosads}Delays have created qualitative differences in the process that have seriously undermined important components of the complex regulatory system, generally referred to as “government ethics.”  First, extensive delays threaten to undercut the security clearance review required to assure the integrity of access to classified information.  To receive a security clearance, each appointee completes a national security questionnaire – Standard Form (SF) 86.  The SF86 asks for information — life history, employment foreign travel and foreign contacts — covering the seven- or 15-year (depending upon the position) period prior to the date the form is submitted.  However, once submitted at the very beginning of the vetting process, the SF86 is never updated.  Moreover, once the “field investigation” is completed, usually by the FBI, the investigation is not followed up. If the time lag stretches to months or even years, information provided on SF86 becomes stale. Later foreign travel or contacts with foreign officials (areas of intense interest to security officers) are never picked up.

Second, delays undermine the financial disclosure system designed to prevent financial conflicts of interest.  All prospective senior candidates must file an extensive financial disclosure report, OGE 278, detailing assets, liabilities, compensation, employee benefits and fiduciary positions.  This information serves as the basis for evaluating potential financial conflicts of interest, and resolving them before the nominee takes office.

The 278 financial information is supposed to be current within 30 days of the date of “filing.” Filing takes place months before nomination.  Generally speaking, the 278 information is then “frozen” and is not updated.  Therefore, 278 financial information is almost always stale by the time the individual takes office. Moreover, Senate committee staffs generally do not engage in an independent financial conflicts analysis.  During these gaps in coverage, many financial conflicts could develop and will be undetected until it to too late.

Delays also damage the personal lives of those nominated.  Nominees often describe their status between being tapped for a position and finally taking office as being “on hold.”  Some nominees are actually instructed by the White House not to acquire any new investments for the entire period of their nomination.  Private sector jobs are at risk because normal employment-related activity can be constrained (it is impossible to maintain secrecy once the field investigation starts).  Promotion, bonuses and work assignments all can be affected.  Great damage can be done to one’s career during this period, even if employers are sympathetic and cooperative (which is often but not always the case).

Finally, normal civic activities of nominees are often put on hold, especially those that could be associated with possible political controversy.  Many nominees are told to reduce their political profile from the time they are named until final confirmation, and to decline to participate in active fundraising and other election-related activities that would otherwise be normal and, of course, perfectly legal.  In fact, no law or regulation requires a period of political “purdah” for many otherwise politically active nominees or the suspension of their First Amendment rights.  However, the practical effect may be virtual disenfranchisement during the delay.

As delays increase, so do the consequences.  Moreover, as examples of “failed” nominations increase, many individuals who would otherwise be willing to serve and to bear the burden of the nomination process are less willing to tolerate the risks.  In combination with the other risks inherent in a process that has become increasingly politicized, the results are obvious – a decrease in the number of highly qualified people willing to serve.

For years, commentators have recommended the obvious solution to accelerate the whole process to eliminate delays. In the current political climate, any overall improvement seems as unlikely as fundamental tax reform.  On the other hand, targeted improvements are possible.  One is to identify nominees that are at the greatest risk of the adverse consequences of delay and to prioritize the vetting and confirmation process for that subset – to create a “fast track” for those most at risk.  This group would include individuals with complex financial portfolios or with private sector jobs that involve international travel or other national security sensitive activities.  These individuals would be called out for special attention by Senate committee staffs and would be provided with priority treatment concerning information requested by those staffs.  While the disclosure requirements and ethical standards for these nominees would be no different than for others, the speed of vetting would be targeted for special treatment. This approach is similar to the one that was used to accelerate consideration of a number of appointees under the bipartisan Presidential Appointment Efficiency and Streamlining Act of 2011, but would build a system in the White House to focus on all high-risk nominations, and help to attract the best talent so desperately needed for public service.

Rizzi is partner at Steptoe & Johnson LLP and has counseled individuals nominated or appointed to executive and judicial branch positions in both Democratic and republican administrations. Muth is an associate at Steptoe who is also active in representing prospective political appointees through the vetting process.


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