III. Accountable and Qualified Government Officials

The abuses we have documented reveal fissures in our democratic guardrails, but they originate with individual actors — often the president, but also his political appointees throughout the executive branch. These officials wield tremendous power. Recognizing there is no substitute for character and quality in those selected to occupy positions of public trust, we turn to the norms and practices for appointing professionals to critical government positions.

Of all the president’s powers, his power to appoint top executive branch officials is among the most far-reaching. Because no president can be personally involved in all of the countless actions taken by his administration each day, his ability to carry out change and improve the effectiveness of the federal government is in large part dependent on the people chosen to run it.

The Founders understood this — even at a time when the federal government was far smaller than today. “There is nothing I am so anxious about as good nominations,” Thomas Jefferson wrote soon after entering the White House in 1801, “conscious that the merit as well as reputation of an administration depends as much on that as on its measures.”

That is why the Constitution extends our system of checks and balances to the appointment process by making the president’s authority to appoint senior officers subject to the Senate’s “advice and consent.” The Senate, argued Alexander Hamilton in the Federalist Papers, would serve as “an excellent check upon a spirit of favoritism in the President” and a guard against “the appointment of unfit characters . . . from family connection, from personal attachment, or from a view to popularity.”

It did not always work out that way. Though every president after Washington has had occasional nominees opposed by the Senate, without recognized standards for evaluating nominees, presidents enjoyed substantial deference. Early in our history, this contributed to the development of a patronage system, in which key government posts — usually those that did not require Senate confirmation, but sometimes also those that did — were doled out to political supporters and party functionaries. By the late 19th century, the result was a federal government rife with corruption and cronyism, with few mechanisms to ensure that top officials were qualified for the positions they held.

As the government grew larger and more complex to keep pace with a rapidly industrializing economy, the need for reform became apparent. The Pendleton Act first established an apolitical civil service in 1883, run on principles of professionalism and merit. And the high-profile Teapot Dome scandal of the 1920s helped push things further in the same direction. By the middle of the 20th century, a set of expectations had developed for the political appointments process: though presidents should have wide latitude in staffing their administrations, the Senate should ensure that nominees are reasonably well qualified and free from clear conflicts of interest. And candidates for vacant positions should be nominated by the president, and have their nominations considered by the Senate, in a timely manner.

These expectations were not always met, but they helped maintain Americans’ faith in the basic integrity and effectiveness of government and those who led it.

It was not inevitable that we would come to treat government jobs as public trusts rather than spoils to reward political supporters or friends and family. Indeed, the system has been threatened in the past: Watergate and associated scandals were enabled in part by the Nixon administration’s abuse of the federal bureaucracy and personnel process, including the placement in key posts of loyalists willing to put the president’s political fortunes ahead of the good of the country. In response, Congress in 1978 passed, and President Jimmy Carter signed, the Ethics in Government Act and the Civil Service Reform Act, which reaffirmed many of the values first embodied in the Pendleton Act nearly a century earlier. They established tougher ethics rules, strengthened the merit system for hiring and promoting personnel, established protections against political retaliation for civil servants, invested greater authority in senior managers, and sought to incentivize high performance.

Today, this system is at risk, threatened by hyperpartisanship and the erosion of key principles that were once championed by both parties. Again, Congress must respond.

Recent presidents have filled critical positions with unqualified cronies while leaving other posts vacant. They also have found ways to sidestep the Senate’s approval role, nullifying a crucial constitutional check.

And lawmakers have rubber-stamped some unqualified or conflicted nominees while dragging their feet on considering others, often based on whether or not the Senate and the president share a party.

This has culminated in the current administration’s near disregard for the personnel principles embodied in earlier reforms. President Trump has put family members in key adviser jobs. He has been credibly accused of politicizing the security clearance process, risking national security. And he has installed a series of acting officials — who do not require Senate confirmation — in crucial government posts while often delaying nominating a permanent replacement. Two years into his administration, the secretaries of defense, homeland security, and the interior; the directors of the Office of Management and Budget, Immigration and Customs Enforcement, and the Federal Aviation Administration; the FDA commissioner; and the United Nations ambassador were all serving in an acting capacity. “I like acting because I can move so quickly,” Trump has said. “It gives me more flexibility.”

In addition to representing a damaging end run around the Senate’s advice and consent authority, the use of so many acting officials creates instability in the leadership of crucial agencies, including those responsible for national security. And the broader breakdown in the political appointments process seen over recent decades has even more dire consequences. It harms the government’s ability to perform essential functions, deters qualified candidates from pursuing careers in public service, and undermines Americans’ faith in the people and programs responsible for making and administering policy.

To ensure an appointments process based on professionalism, merit, and an active role for the Senate, Congress needs to act.

Streamlining, and Restoring Democratic Accountability to, the Appointment of Senior Executive Branch Officials

Of the approximately 4,000 political positions in the executive branch, the Senate provides advice and consent for around 1,200 of them, known as “PAS” positions (for “Presidential Appointments with Senate confirmation”). The occupants of these positions wield tremendous influence — the most senior PAS officials manage entire departments responsible for protecting our environment, engaging in national defense, administering a fair and impartial system of justice, promoting economic growth and business development, and representing America’s interests abroad. Their significance is the reason why the Senate’s advice and consent are required for the president to fill them.

Congress has also recognized the need for some flexibility when vacancies arise. In 1868, Congress passed the Vacancies Act to provide “breathing room in the constitutional system for appointing officers,” authorizing presidents to temporarily fill critical positions while the confirmation process proceeded. Through the Vacancies Act, Congress recognized the inherent dangers of long-term vacancies in the executive branch, but also sought to preserve the Senate’s advice and consent authority.

When Congress perceived abuses in the president’s use of his Vacancies Act powers, it responded with additional safeguards. President Clinton was perceived as working around the Senate to permanently install an acting official to lead the Civil Rights Division of the Justice Department. In response, Congress in 1998 passed the Federal Vacancies Reform Act (FVRA), which included a number of mechanisms to preserve the Senate’s advice and consent authority even when the president appoints an acting official. And in 2011, amid bipartisan concern about the slow pace of the Senate’s confirmation process, Congress approved a law that cut the number of executive branch jobs requiring Senate approval.

Today, the challenges facing the appointments process are even stiffer: there is no longer an expectation that presidents or Congress will even try to quickly fill important positions. Critical posts are frequently left vacant for extended periods of time, either because the president does not make an appointment or because the Senate does not move to confirm a president’s nominee. The Senate confirmation process for such positions now takes five times longer than it did 40 years ago. Two years into the Trump administration (with a Senate dominated by members of the president’s party), only 431 of 713 key positions requiring Senate confirmation were filled with Senate-confirmed personnel, with less than half of the key positions filled at the Departments of Justice or the Interior. This puts the Trump administration nine months behind the average presidential administration in filling key appointments in government, and with more positions vacant than at the same point in the past five presidential administrations.

President Trump is not alone among recent presidents in having a high vacancy rate. One analysis of administrations from Presidents Carter to George W. Bush found that PAS positions were on average vacant for one-quarter of an administration’s tenure, and the length of vacancies in federal agencies is on an upward trend. The 9/11 Commission Report found that the George W. Bush administration did not have critical subcabinet officers in place until the summer of 2001, which created the potential for disruption in national security policy. And with 15 months left in the Bush administration, a significant number of senior officials vacated their positions, leaving three cabinet posts at the Departments of Justice, Agriculture, and Veterans Affairs — to be filled by acting officials. Other PAS positions were filled by acting officials for extended periods, including the administrator of the Centers for Medicare and Medicaid Services, the general counsel of the Department of Homeland Security, and over a quarter of U.S. attorneys. President Obama had his own challenges with vacancies long into his second term. About a quarter of the PAS positions at the State Department were vacant for months after his reelection, and it took him almost a year to name a secretary of commerce. And the Transportation Security Administration had no permanent director when the “underwear bomber” tried to bring down a passenger plane headed to Detroit on Christmas Day 2009.

The Senate’s obstruction is partly to blame. For example, senators sometimes tie political nominations to unrelated policy goals or use anonymous holds to stall key nominees. And the Senate now routinely holds pro forma sessions to prevent the president from making recess appointments while Congress is adjourned. These tactics were deployed at unprecedented rates during the Obama administration when the Senate was controlled by the opposition party.

Presidents deserve their share of blame, too. That is in part for nominating candidates who are more partisan, more hostile to the missions of their prospective agencies, and less qualified than previously. More important, presidents have at times avoided putting forward nominees to fill vacant PAS positions at all, instead using legislative loopholes to employ acting officials for indefinite periods. President Trump publicly admitted he was “in no hurry” to fill PAS positions with permanent staff.

Other reasons are structural. There are many more PAS positions today than there were just a few decades ago. This is because of new boards and commissions (and, less often, the creation of new agencies) in the federal government, as well as the continued thickening of government, with more layers of political leadership added during each new administration. Meanwhile, the resources available to the executive branch for vetting nominees and to the Senate for evaluating them have not increased at anything like the same rate. As a result, Senate committees report ever-increasing nomination workloads.

Causes aside, the drawn-out process creates a needless obstacle to the effective administration of government and undermines policymaking. Career civil servants, who typically act as temporary standard-bearers when vacancies arise, generally do not have the needed clout to drive policy or persuade other senior political officials.

They also may lack the standing to modify or push back against a president’s policy directives when necessary. It is troubling, for example, that President Trump adopted and implemented the first iteration of his “travel ban” without a director of Immigration and Customs Enforcement or a commissioner for Customs and Border Protection in place; that he embarked on a historic diplomatic mission to North Korea without an ambassador to South Korea; and that major preparations for the 2020 Census were made without a permanent director of the Census Bureau, the largest statistical agency in the federal government. And it was troubling that the Fish and Wildlife Service had an acting director when the Obama administration was responding to the BP Deepwater Horizon oil spill.

Research shows that long-term vacancies damage agencies in several other ways. They can delay or hamper needed reforms to programs and services. Opportunities for efficiencies or improvements are more likely to be ignored or put on the back burner. Agency morale generally deteriorates.

When presidents insist on leaving a PAS position vacant, rather than working with Congress to fill it, they are abrogating congressional authority — after all, the Senate either has the constitutional obligation to provide advice and consent or it has determined the position’s duties warrant its advice and consent. Going further and exploiting statutory loopholes to circumvent the Senate entirely by installing in powerful posts acting officials, who are often political allies, is even worse. It gravely undermines democratic principles. Because these acting officials are not subject to Senate confirmation, their backgrounds and qualifications are subject to less scrutiny and public examination, and they are less accountable to Congress and the people once in place.

To restore an effective appointments system, presidents need to put forward qualified nominees in a timely manner, and Congress needs to expeditiously consider them. The following proposals would help ensure this happens.

Proposal 7

Congress should fix the Federal Vacancies Reform Act to prevent presidents from cutting the Senate out of the appointments process.

The FVRA of 1998 deploys multiple mechanisms to prevent presidents from circumventing the Senate’s advice and consent authority. It limits the classes of officials who are eligible to act in a PAS role and also the length of time (generally 210 days) during which they may act. The time limit creates an incentive for the president to nominate individuals for Senate consideration. The statute also motivates the Senate to act on those nominations by suspending the time limit upon the president’s nomination, lest the Senate wants the acting official to continue serving without its review.

But the FVRA has proven inadequate. The statute purports to limit presidents to selecting from three classes of individuals to serve as acting officials in vacant PAS roles: the “first assistant” to the vacant office, another PAS official in the executive branch, or a senior official who has been serving in the same agency as the vacant office for at least 90 of the previous 365 days. However, a loophole in the law allows presidents to insert people from outside these three classes — and wholly outside of government — into vacant offices and empower them to lead offices or agencies without submitting their nominations to the Senate. Delays in the confirmation process, as well as genuine interest in keeping government running, contribute to the pressure on presidents to exploit this loophole. For example, after his earlier nominee to serve as assistant attorney general for civil rights in the Department of Justice was rejected by the Senate, President Obama appointed someone from outside of government to serve as the principal deputy assistant attorney general for civil rights and then elevated her (as the first assistant) to the role of acting assistant attorney general for civil rights. The Civil Rights Division has historically played a key role in handling difficult and publicly prominent cases, making evident a president’s interest in selecting and retaining a division head with aligned interests. Obama’s appointee ran the division for more than two years, well beyond the time limits imposed in the FVRA, and without the president formally nominating her.

President Trump has exploited the same loophole and has recently taken it a step further. After the former director for U.S. Citizenship and Immigration Service (USCIS) departed, President Trump created a new first assistant position and then appointed former Virginia attorney general Ken Cuccinelli to fill it, despite the fact that Cuccinelli had never previously served in the federal government and several senators, including members of the president’s party, had expressed opposition to his potential nomination as USCIS director. Once in the role, Cuccinelli became the acting director of USCIS, in apparent compliance with the FVRA. This maneuver establishes a troubling precedent that future presidents may rely upon to appoint literally anyone to almost any vacant position, despite the FVRA’s stated limitations.

The FVRA is prone to abuse in another important way. As written, it is unclear whether the statute’s provisions apply when the president terminates a PAS official. This provides an avenue for a president to circumvent the confirmation process by firing officials and continuously appointing acting officers instead of nominating a permanent replacement. Some believe this abuse was exemplified by Jeff Sessions’s recent departure as attorney general and the president’s subsequent designation of Matthew Whitaker (who formerly served as chief of staff to Sessions, a non-Senate-confirmed role) as the acting attorney general. Trump requested Sessions’s resignation, after relentlessly attacking him in public, despite the Senate’s continued defense of Sessions. The uncertainty over whether the FVRA is triggered when a president fires an official created doubt about whether Whitaker’s designation was lawful.

The FVRA also currently lacks an effective enforcement mechanism. This means that officials may serve, either intentionally or inadvertently, as acting officials for longer than permitted by law. Currently, the law’s primary enforcement mechanism relies on a person who has been injured by an agency’s action challenging that action in court, based on the theory that it was taken by an improperly designated or appointed acting official. But FVRA litigation is rare. The FVRA does require the comptroller general to report to the appropriate congressional committee when officers have served for longer than the allowable period. But this indirect reporting mechanism is time-consuming and does not impose sufficient accountability on the violating agency.

To preserve its role in the appointments process and democratic accountability without hampering the effectiveness of federal agencies, Congress should pass legislation reforming the FVRA to eliminate avenues for the most egregious abuses. The legislation should at a minimum:

>>Impose additional limits on the class of people who may serve as acting officers or perform the duties of a vacant PAS office until the president nominates a permanent replacement. The president should not be able to completely work around Congress by installing individuals from outside government to serve as acting PAS officials for seemingly indefinite periods of time. We do not believe Congress intended to arm the president with such broad and disrupting appointment powers even with temporary effect — when it adopted the FVRA. Congress should strengthen the existing limits in the FVRA by conditioning an individual’s ability to serve as an acting official on a minimum period of prior service in the federal government. Furthermore, to minimize operational disruptions when vacancies arise, presidents should be required to first choose from eligible individuals within the same agency as the vacancy before selecting an official from an outside agency.

As we are mindful of the president’s appointment prerogatives, we recommend that once a formal nomination for a permanent successor is submitted to the Senate, the president should be free to select from the broader class of individuals currently eligible to serve as acting officials under the FVRA. By tying the nomination of a permanent successor to a broader class of eligible acting officials, Congress would create an incentive for presidents to nominate individuals for Senate confirmation — without a nominee, the president would be limited to selecting an individual who satisfies the new tenure-ofservice requirement to serve as the acting officer.

Likewise, the prospects of the president selecting from a broader class of individuals to act in a vacant office should motivate the Senate to seriously and timely consider a nominee. Should the president name an individual who is obviously unconfirmable, the Senate could quickly reject the nominee and the class of eligible acting officials would once again be limited to the existing class in the FVRA. This proposal also protects the president’s prerogatives should the Senate simply refuse to act on a nominee; in such situations, we believe the president’s constitutional responsibilities and the effective functioning of government weigh in favor of additional executive flexibility.

>> Limit the class of people eligible to serve as an acting officer when the vacancy arises from the president’s firing of a Senate-confirmed official. To prevent abuse, when the president fires a PAS official, only someone serving as the first assistant to the vacant office at the time the vacancy arises, and who has served for a defined minimum period of time, should be eligible to perform the functions of the vacant role. If the first assistant position is vacant, or the tenure requirement is not satisfied, then the statute could allow the president to select a senior career official from within the agency (who satisfies the tenure requirement) to serve as the acting officer.

>> Impose stricter and more transparent reporting requirements on executive agencies to prevent officials from serving in violation of the FVRA. Agencies should regularly report to their congressional committees of jurisdiction on the status of all PAS vacancies and appointments made pursuant to the FVRA in their respective agencies. Congress and the agencies should also make this information more readily available to the public. Agencies could, for example, provide up-to-date information on agency websites, much as they provide up-to-date information in their online FOIA libraries.

These reforms would close a significant loophole in the FVRA, restoring what we believe was one of the driving purposes of the law: to prevent presidents from working around Congress to fill PAS positions. They would also reassert Congress’s role in the appointments process by limiting a president’s options when terminating a Senate-confirmed official. Finally, they would provide more transparency and accountability to the process for temporarily filling leadership positions, reducing the likelihood of abuse. We are not alone in recognizing that the FVRA needs reform. Scholars and nongovernmental organizations have highlighted these weaknesses and called for Congress to strengthen the law. It has done so before — and recent abuses show it needs to do so again.

Congress should tightly couple these reforms to the FVRA with improvements to the Senate’s processing and consideration of nominations. Once the president nominates someone to permanently fill an office, the Senate should duly consider them.

Proposal 8

Congress should take concrete steps to streamline the nomination and confirmation process.

As many of us have experienced firsthand, the confirmation process simply takes too much time and requires too many resources at every stage. It begins prior to the president’s nomination, where the longest reported delays occur. Prospective nominees complete voluminous forms for the White House vetting process, the FBI background investigation, the Office of Government Ethics (OGE) conflict-of-interest analysis, and the appropriate Senate committee review (in some cases, more than one committee’s form). These forms include duplicative and overly broad questions that request information in varying formats, creating a maddening and time-consuming predicament for nominees.

Then, the nominees wait for these concurrent reviews to be completed. Almost all of them undergo a “full field” background investigation by the FBI — an investigation that exceeds the broadest scope of investigation in use throughout the rest of the executive branch before their nomination is submitted to Congress. This practice is generally followed regardless of whether the PAS position is part-time or full-time, and regardless of whether the position handles classified or national security information. On average it takes between six and eight weeks, and it requires a lot of resources.

Finally, nominees are formally considered by the Senate, where, as we have discussed, they may sit in purgatory for extended periods of time. Presidents George W. Bush and Obama each proposed that the Senate adopt rules to require timely consideration of nominees. Such changes in Senate rules would be a good start. That being said, Congress does have a legitimate gripe that its resources for considering nominees have not kept pace with the increase in the number of nominees.

There is no single solution for reducing the length of the nomination and confirmation process, but there are several steps Congress can take to begin moving in the right direction. Drawing from our collective experience in the executive and legislative branches, and from the wealth of good ideas that others have already put forward, we propose focusing on three key reforms that we believe would have an immediate and lasting impact by returning a degree of normalcy to the confirmations process. Congress should:

>> Create a task force to identify positions that should no longer require Senate confirmation. The task force, in consultation with executive branch agencies, should determine which positions do not need Senate confirmation, and then delegate authority for filling these positions to agency heads or the president. As a part of its review, the task force could also identify positions that should require Senate confirmation but currently do not, such as director of the CDC.

>> Reduce the paperwork burden associated with the vetting of nominees by harmonizing the information requested on the forms required by the executive branch and various Senate committees, and by supporting the creation of a secure electronic “smart form” that can be used by both Congress and the executive branch. Creating a single set of core questions, which agencies and committees could supplement, would reduce both the time required by nominees to complete the forms and the risk of inadvertent errors or discrepancies.

>> Express support for the adoption of a tiered background investigation process for nominees. Congressional committees could still require the White House to conduct “full field” investigations for senior nominees while supporting less extensive investigations for part-time positions or those without national security implications. This system would continue to permit additional scrutiny if something of concern arises during the course of an investigation.

Almost everyone who has looked closely at this problem supports these solutions. In fact, legislation adopted in 2011 on a bipartisan basis, which removed the confirmation requirement from 163 positions, shows there is an appetite for these reforms. Still, there is more work to be done. For instance, the Morris K. Udall Scholarship Commission, the James Madison Memorial Fellowship Foundation, and the Barry Goldwater Scholarship and Excellence in Education Foundation together account for 19 PAS positions. While these are valuable programs, it is worth examining whether confirmation is necessary. Other scholarship boards do not require Senate confirmation, and eliminating the confirmation requirement from positions like these would free up resources in the Senate, the White House, and the FBI for vetting and confirming nominees for higher-level positions.

The Senate would not reduce its influence by eliminating the confirmation requirement from some positions. It would retain its considerable oversight tools for ensuring accountability in government programs and functions. At the same time, reducing the nominations workload would allow it more time for other confirmation and legislative priorities.

A bipartisan Working Group on Streamlining Paperwork for Executive Nominations (Working Group), established by the 2011 legislation, provided a road map for creating a core questionnaire for nominees that would make the executive branch’s and Senate committees’ forms more consistent, as well as for developing a smart form that would reduce redundancies in the forms. At the time of the Working Group’s review, the Senate and executive branch forms requested information on 18 similar topics, comprising an average of 60 percent of the total topics addressed by each of the forms in use. Because the information is requested in slightly varying formats, the submission process is burdensome for nominees. For example, both questionnaires aim to identify potential conflicts of interest that run afoul of the same law, but they do so using slightly different questions, which may require different answers to ensure complete accuracy.

The Working Group found that adopting one set of core questions, which committees and agencies could supplement if they saw fit, would reduce the time required by nominees to complete necessary paperwork. Developing an electronic smart form, in accordance with stringent information-technology security standards, would do even more. It would allow nominees to insert biographical, professional, and other data into one system, with modifiable permissions, that could be accessed by executive branch agencies, as well as congressional staff. In addition to reducing the paperwork burden, it would increase efficiencies in officials’ reviews. The cost savings would substantially outweigh the $5 million price tag (and $1 million annual operating expenses) estimated by the Working Group to develop and maintain the smart form.

The Working Group also expressed support for a tiered background investigation system, as have other experts. As the Homeland Security Committee report states, it makes no sense to subject a nominee to the Postal Rate Commission to the same level of scrutiny or background investigation as the deputy secretary of defense. It also makes no sense to conduct background investigations that are more extensive than those required for the highest level of security clearance on nominees to part-time boards and commissions who will never access classified information.

Though presidents have the authority and discretion to order the level of background investigation they see fit for their nominees, they are unlikely to reduce the level of investigation without Congress’s express support (since Senate committees may demand — and have grown accustomed to — a heightened level of review). This change would speed up the executive branch’s processing of nominees; it would reduce the average length of investigations for select positions, while also freeing up scarce FBI resources for investigations of other nominees.

Both branches have incentives to act on these ideas. If Congress works to streamline the nomination process, the president is less likely to abuse his appointment authority by deploying acting officials or installing partisan advisers in lieu of duly confirmed officials. On the flip side, reform would benefit the president by making it easier for him to install permanent and duly confirmed officials at agencies, who are better able to implement his agenda and influence agencies’ work.

Ensuring That Qualified and Ethical Personnel Are Appointed to Leadership Positions

When public officials were increasingly placing their family members on the federal payroll, and after President Kennedy appointed his brother attorney general, Congress passed and the president signed a federal statute prohibiting nepotism in federal hiring, including in the appointment of officials to PAS positions. The reform put fairness and merit above favoritism and privilege. Then, when Watergate led the public to question the government’s ability to impartially administer basic programs, Congress passed and the president signed the Ethics in Government Act and the Civil Service Reform Act. These laws sought to bolster public trust by creating a more professionalized and ethically accountable government.

These safeguards aim to protect the integrity of government decision-making at the highest levels. Nepotism stokes distrust in the idea that the government treats everyone the same. It undermines the integrity of policymaking — not just because the hired family member might not have the skills required for the position, or might put family interests over public ones, but also because it quashes open and honest dialogue by others.

Of course, presidents still use some positions as rewards for friends and political allies. But this has typically been limited to positions that carry prestige and personal benefit but are without significant policymaking responsibility — like an ambassadorship in the Caribbean or membership on the Kennedy Center Board of Trustees. Presidents have understood that certain critical positions require specialized skills or expertise or should be filled by people without partisan affiliation.

In recent years, presidents have increasingly appointed people — often former associates or political allies — without the requisite qualifications for important positions. Michael Brown was famously appointed by President George W. Bush to run the Federal Emergency Management Agency (FEMA), despite lacking emergency management experience, and after a nine-year stint as commissioner of the International Arabian Horse Association. Brown reportedly got the FEMA job thanks to his friendship with Bush’s 2000 campaign manager. Members of both parties said Brown was at least partially to blame for FEMA underestimating the impact of Hurricane Katrina and then mishandling the response.

President Obama’s nominees to several ambassadorial posts in his second term were criticized for their surprising lack of knowledge about their prospective host countries. Some argued that, unlike his predecessors’, President Obama’s picks were inappropriate due to the importance of the posts he sought to fill with political allies — with one nominated to serve in Hungary at a time of growing international alarm over far-right Hungarian lawmakers’ attitudes toward minorities. President Trump has gone further, appointing more ambassadors based on personal connections or political patronage than any president in the past 40 years.

Worse, the current administration has embraced candidates who lack relevant qualifications or who are opposed to the objectives of the office or agency they have been tapped to lead. Secretary of Energy Rick Perry was nominated despite not knowing that the Department of Energy managed the nuclear stockpile of the United States, and despite previously suggesting that the department should be abolished. Ben Carson is the secretary of housing and urban development, though he has no previous government, housing, or development experience and publicly tried to persuade President Trump that there were better ways he could serve the administration.

The Trump administration’s approach to positions not requiring Senate confirmation has been worse. For instance, President Trump has appointed his son’s wedding planner as a regional administrator at the Department of Housing and Urban Development, and the husband of a former household employee to a position in a regional Environmental Protection Agency office. Neither had relevant qualifications.

These appointments set a troubling precedent for future presidents. Installing unqualified candidates in critical positions — for both PAS and non-PAS appointments undermines faith in government and politicizes traditionally nonpartisan government functions, such as national security, scientific research, and the Census. And it has real-world consequences when agencies are incapable of responding to crises or otherwise carrying out their missions, as the Hurricane Katrina tragedy showed. The public expects qualified professionals to lead the Department of Energy’s groundbreaking energy research, run the system of national laboratories, develop policies for handling radioactive waste, and manage the country’s nuclear arsenal. That is why the two previous secretaries of energy were a nuclear physicist and a Nobel Prize–winning physicist. Similarly, the public depends on a highly trained diplomatic corps to inform the government’s response to international crises and national security threats. That is why over the last 30 years — as the world has become more interconnected and national security threats more complex — around 70 percent of ambassadors have been professional foreign service officers. Filling these critical positions with unqualified political appointees puts the government’s most essential functions, and the public’s faith in government, at risk.

It is clear from recent appointments that existing laws and practices are insufficient. It is time for Congress to redouble its efforts to protect the integrity of the federal workforce and ensure that qualified appointees are serving at the highest levels of government.

Proposal 9

Congress should amend the federal anti-nepotism law to make clear that it applies to presidential appointments in the White House.

For most of its history, it was uncontested that the anti-nepotism statute broadly applied to all federal officials, including the president. Despite this, presidents have from time to time considered installing family members in official positions. For example, President Carter considered formally appointing family members to a presidential commission and a position in the White House. President Reagan considered appointing a family member to the Presidential Advisory Committee on Private Sector Initiatives. And more recently, in 2009, President Obama considered appointing his brother-in-law and his half-sister to two advisory commissions. All past presidents were advised by the office principally charged with interpreting laws for the executive branch, the Department of Justice’s Office of Legal Counsel (OLC), that doing so would violate the anti-nepotism statute. This has not disturbed the traditional role that the first lady has played in championing substantive policy issues during the president’s term in office. Indeed, courts have recognized the first lady’s unique role exists in harmony with the policy goals of the anti-nepotism statute.

In 2017, the OLC changed course and concluded that the anti-nepotism statute does not extend to presidential appointments to positions in the White House, opening the door for President Trump to depart from his predecessors and appoint his daughter and son-in-law to senior positions. Though neither family member has any government experience, they have been assigned expansive portfolios. The president’s son-in-law, Jared Kushner, has responsibility for managing some of the country’s most sensitive national security challenges, despite having no previous expertise or professional experience in them. The president’s daughter, Ivanka Trump, meanwhile, has been appointed as a senior adviser despite her lack of policy experience, and has sat in on several multilateral diplomatic negotiations — raising questions about the White House’s approach to foreign policy.

This highlights nepotism’s corrosive effects on democratic governance. It communicates that family loyalty is more important than expertise and experience. It implies that a different set of rules applies to the most senior government officials, who do not need to abide by standard ethics or hiring rules. This sets a dangerous example for other federal leaders and managers.

Nepotism also may impact the White House’s official decision-making process, particularly when the president’s family members work in proximity to the president. Indeed, for a period of time, Kushner participated in the presidential daily briefing (PDB), where intelligence officials brief the president on the most sensitive national security matters of the day. When members of the president’s family participate in policy deliberations, more expert staffers may be less inclined to provide candid advice or voice disagreement for fear of alienating the president or his family. In this way, nepotism not only undermines public trust; it threatens to weaken government policy. Perhaps most troubling, people who owe their jobs to nepotism may prioritize the president’s personal standing over the nation’s — one reason they may have been appointed in the first place.

These are the risks Congress sought to protect against by passing the anti-nepotism statute. To respond to the OLC’s 2017 opinion that the statute does not apply to presidential appointments in the White House, Congress should amend the statute to clarify that it does.

Some have argued that even if the statute applied to the White House, it would only prevent the president’s family members from receiving a salary, not from serving in their official roles. Accordingly, Congress should also bolster the statute’s existing enforcement mechanism to require the removal of anyone appointed in violation of the statute.

Before the OLC’s 2017 opinion, most assumed the anti-nepotism statute applied to the White House. But now that the norm has been breached, there is a danger that future presidents may follow in President Trump’s footprints. Amending the statute would restore the former, widely held interpretation. Congress has the authority to impose this reasonable limitation on the president’s appointment powers, which is similar to other congressionally imposed limitations, such as those in the Hatch Act, the criminal conflict-of-interest law, and other regulations on federal employees’ conduct.

Proposal 10

Congress should adopt additional statutory qualifications for certain senior executive branch positions.

As detailed above, recent presidents have appointed unqualified friends or political allies to important government posts that have the authority to influence government policy in the areas of science and national security, among others. To prevent further abuse, Congress should conduct a review of senior executive branch positions (to include critical management positions or positions at the assistant secretary level and above) and adopt additional statutory qualifications for those positions that warrant subject-matter or other appropriate expertise. The qualifications should set a floor for future incumbents. They should not be so restrictive that they preclude appointments of people from diverse and varying backgrounds, to the detriment of the country.

There is a long history of Congress mandating by statute that presidential appointees and career personnel meet specified requirements. Some statutory qualification provisions require that executive branch personnel have certain experience, skills, or educational backgrounds. For instance, the Post-Katrina Emergency Management Reform Act of 2006 established a requirement that the director of FEMA have knowledge of emergency management and five years’ leadership and management experience. Other statutory qualification provisions address characteristics such as citizenship status and residency, requirements that have often been applied across the board to personnel at federal agencies.

Additionally, Congress has required that certain appointments be made without regard to political affiliation and that others reflect specific political party affiliations, often to maintain the ideological balance of multimember commissions. Statutes may also prevent appointees from having specific conflicts of interest. For instance, the U.S. trade representative cannot have “directly represented, aided, or advised a foreign entity . . . in any trade negotiation, or trade dispute, with the United States.” Similarly, the National Security Act of 1947, amended in relevant part in 2008, requires that the secretary of defense be a civilian who has not been in military service for at least seven years. As we have seen, Congress is able to waive these statutory qualifications, as it did for President Trump’s former secretary of defense, James Mattis.

Reforming the Security Clearance Process for Senior Government Officials

Recent testimony and news reports have revealed significant vulnerabilities in the White House’s security clearance process. The Trump White House has reportedly overturned an unprecedented number of clearance determinations made by career security professionals.

A significant number of senior White House staff have been permitted to operate with interim security clearances for extended periods of time. Information that in other administrations would likely have been grounds for denial of a security clearance or even termination has been overlooked for senior staff. And nominees to cabinet and other senior positions have been put forward for Senate confirmation without the completion of their background investigations.

It is increasingly clear that existing White House procedures for issuing security clearances do not ensure fairness or consistency and do not protect against erroneous outcomes. For example, notwithstanding his obligation to disclose on his security clearance questionnaire that his ex-wife had obtained a restraining order against him, former White House staff secretary Rob Porter held an interim security clearance for months. He resigned when allegations of domestic abuse — with accompanying documentary evidence — became public. If not for the public reports, the White House might have continued to ignore the derogatory information.

The dustup over Porter revealed that a reported 30 to 40 White House officials were still operating with interim clearances over a year into the administration. Most troubling among them was Kushner, who omitted important information about his foreign contacts from his security clearance questionnaire and has reportedly been identified by foreign adversaries as a manipulable target. Nonetheless, Kushner operated with an interim clearance for over a year and received access to highly classified information, including in the PDB. Kushner’s top secret security clearance was reportedly rejected by two White House security specialists, but their supervisor overruled them and approved the clearance. Kushner’s was one of at least 30 cases in which the White House personnel security director is reported to have overruled career security experts and approved top secret security clearances for Trump officials.

Taken together, these actions demonstrate a stunning disregard for a process that is critical to protecting national security. Recognizing that the president retains ultimate authority for deciding who has access to classified information, there are meaningful steps Congress should take to reform the existing security clearance process in the White House.

The White House has partially attributed the use of interim clearances to a backlog in the background investigation process. It has a point. As of early 2018, approximately 700,000 people across the government were waiting to get their clearances approved or renewed. While Congress and the executive branch are moving forward with proposals to reduce this longstanding backlog, Congress should also take concrete steps to improve the White House’s security clearance process.

Proposal 11

Congress should reform the White House security clearance process.

Presidents from both parties have established procedures for issuing security clearances that are meant to protect information that could threaten national security if it got into the wrong hands. The procedures establish minimum and uniform standards, though they create exceptions that appropriately recognize a president’s constitutional authority, as commander in chief, to share classified information with individuals when they deem it necessary.

Following the revelations about Porter, President Trump’s then chief of staff, John Kelly acknowledged the need for reform. In fact, as an initial step, Kelly suspended the issuance of interim clearances absent extraordinary circumstances and his explicit approval, and supported the revocation of long-term interim clearances. More substantial and permanent reforms are needed.

Specifically, Congress should reduce the backlog in the White House’s background investigation process and install safeguards in the security clearance process by passing legislation to:

>> Allocate more resources to the FBI for completing background investigations for White House security clearances and presidential nominees. In addition to reducing the average processing time for an investigation, additional FBI resources would reduce the need for the White House to prioritize different candidates’ or nominees’ investigations over others.

>> Limit the length of time that White House officials may operate with interim clearances. This would make permanent a reform supported by Kelly to discontinue long-term interim clearances issued to White House officials.

>> Require that the director of the White House personnel security office be a career professional with specific expertise in the security clearance process.

Similar to existing executive orders and presidential directives, the legislation could also explicitly recognize a president’s unique power to provide access to classified materials as the president sees fit. The measures would help ensure that appointees serving in senior positions satisfy the same security standards that apply to other national security officials, while providing additional resources for relieving an existing bottleneck in the background investigation process.

Such steps are within Congress’s authority. Although the Supreme Court has recognized the president’s constitutional authority to grant security clearances, it has also suggested that Congress may regulate that authority, and Congress has imposed restrictions on both the interim and permanent security clearance processes without constitutional challenge. Limiting the duration or validity of interim security clearances would be a restriction on the process for granting security clearances, similar to the process restrictions Congress has imposed before. The president could continue to prioritize or expedite investigations of security clearance applicants, and no applicant who went through the proper procedures would be denied a security clearance if the president wanted that person to have a clearance.

Legislation introduced in the last Congress would require the president to submit a report to Congress every three months listing the security clearance information for everyone working in the White House and the Executive Office of the President. This legislation serves the same goal as our proposal: to strengthen, and improve the accountability of, the background check and security clearance process. It is important for Congress not only to monitor the security clearance status of White House personnel but also to safeguard the security clearance process by reducing the access to sensitive information enjoyed by unvetted personnel, and by ensuring that security clearance determinations are made in the national interest.