CRS Report to Congress

CRS Report for Congress

Presidential Transitions and Administrative Actions

L. Elaine Halchin
Analyst in American National Government
Government and Finance Division
November 2000

Summary

Presidential transitions are noted, and celebrated, for the relative ease with which the transfer of executive power and leadership is accomplished. After the election, the incoming President's policies, programs, and political appointees are the focus of much speculation, interest, and anticipation. Underlying the scrutiny of the new President's plan, though, are questions about the outgoing Administration's activities, particularly in the areas of personnel actions, government records, and agency rulemaking.

Introduction

As both an administrative and a symbolic event in American politics, presidential transitions are notable for the smooth and orderly transfer of power from an incumbent President to his successor and a shift in focus - from campaigning to governing - by the incoming Administration. After the election, the appointees, policies, and programs of the new President garner a great deal of speculation and attention. As William Galston and Elain Kamarck point out, "The peaceful transfer of power from one President to the next is an enduring and griping drama of American democracy." 1

Part of the drama may be provided, depending upon one's perspective, by the outgoing Administration's actions in the final months of the incumbent President's term. Questions may be raised, by persons outside the Administration, about the propriety of certain personnel actions, the handing of government records, and the pace of agency rulemaking. Concerns such as these are more likely to surface when control of the White House changes hands, from one political party to the other.

Personnel Actions

The practice of converting Administration political appointees to career civil service positions, which is sometimes referred to as "burrowing in," may receive a great deal of attention in election years. As long as merit system procedures are followed and prohibited personnel practices are avoided, 2 it is permissible for political appointees to receive career appointments. However, concerns about the potential for abuse have resulted in several reports by the U.S. General Accounting Office (GSA). 3 In 1994, GAO reported that, during the period between January 1, 1992, and March 21, 1993, six of 62 political appointees might have received advantages or preferences in the hiring process and that two of 50 Ramspeck Act conversions were improper. 4 These latter two appointments were terminated. A 1997 GAO report that tracked conversions between January 1, 1996, and March 31, 1997, determined that six of 36 appointments gave the appearance of favoritism or preferences. 5 A third GAO study revealed that, over the course of a 10-year period, conversions increased in 1987, 1988, 1991, and 1992, and decreased in 1985, 1986, 1993, and 1994. 6

In an effort to avoid any improprieties or the appearance of improprieties during the final year of President Clinton's term, the U.S. Office of Personnel Management issued a memorandum, dated February 18, 2000, that describes and emphasizes the proper procedures for certain types of personnel actions. 7

Government Records

The possibility that some government records might be destroyed or removed during a presidential transition period may be, for some, another cause for concern. In an effort to address this concern and prevent the possible loss of records, the National Archives and Records Administration (NARA) has issued a bulletin in each of the past three presidential election years, as well as in 2000, that reminds agency heads of the regulations regarding proper records management. As stated in the first line of this year's bulletin, NARA Bulletin 2000-03, 8 which was issued on May 16, 2000, its purpose "is to remain heads of Federal agencies that official records must remain in the custody of the agency." 9 There are criminal penalties for the unlawful removal, destruction, or concealment of federal records 10 and for the unlawful disclosure of national security information. 11

Agency Rulemaking

As with executive orders, 12 questions regarding the pace of rulemaking and the content of regulations sometimes surface during presidential transition periods. Some would argue that outgoing Presidents should exercise restraint in the final months of their terms, while others would support an incumbent Administration's authority to continue to issue regulations through the end of its term. Data on regulations show that the pace of rulemaking has accelerated during the post-election quarter (November, December, and January). Between 1948 and 1998, there was an average increase of 16.8% in regulations during post-election quarters compared to the quantity of regulations issued during the same time frame in non-election years. 13

Agency rulemaking is governed by the Administrative Procedure Act, 14 which stipulates that a proposed rule be published in the Federal Register, that interested persons be afforded the opportunity to comment on it, and the publications of the final rule take place at least 30 days before its effective date. Nothing in the Administrative Procedure Act limits or constrains agency rulemaking during a presidential transition period.

Footnotes:

1. William A. Galston and Elaine Ciulla Kamarck, "The Transition: Reasserting Presidential Leadership," in Mandate for Change, ed. Will Marshall and Martin Schram (New York: Berkley Books, 1993), p.336.

2. 5 U.S.C. 2301 and 2302.

3. Political appointments in the executive branch consist of presidential, noncareer Senior Executive Service, and Schedule C appointments.

4. U.S. General Accounting Office, Presidential Transition Conversions and Appointments: Changes Needed, GAO report GGD-94-66 (Washington: May 31, 1994), pp.6 and 20. The Ramspeck Act (5 U.S.C. 3304¡¦, which was repealed by Congress on Dec.19, 1997, had allowed legislative and judicial branch employees, who met "the statutory requirements of the law to acquire a competitive status for transfer to the competitive service in the executive branch and become career employees upon appointment." (CRS Report 95-819 GOV, Ramspeck Act: Repeal of the Legislative and Judicial Provision, by Barbara L. Schwemle, p.1). Regarding the executive branch, eligible White House employees, pursuant to 5 C.F.R. 315.602, may be appointed to career or career-conditional status.

5. U.S. General Accounting Office, Career Appointments of Former Political and Congressional Employees, GAO Report GGD-97-165 (Washington: Sept. 2, 1997), p.7.

6. U.S. General Accounting Office, Career Appointments of Legislative, White House, and Political Appointees, GAO report GGD-96-2 (Washington: Oct.10, 1995), p.5. See also U.S. General Accounting Office, Career Appointments Granted Political Appointees From October 1998 Through June 2000, GAO Report GGD-00-205 (Washington: Sept. 18, 2000). Neither of these reports addresses the propriety of personnel actions.

7. This memorandum is contained in "Transition Guidance," a publication of the U.S. Office of Personnel Management, which is available at [http://www.opm.gov/transition].

8. NARA Bulletin 2000-03 is available at [http://www.nara.gov]

9. Presidential records also are considered government property. The Presidential Records Act (P.L. 95-591, 44 U.S.C. 2201-2207) states that, "the United States shall reserve and retain complete ownership, possession, and control of Presidential records." This legislation applies to Vice Presidents and their records as well.

> 10. 18 U.S.C. 2071.

11. 18 U.S.C. 793,794, and 798.

12. See CRS Report RS20731, Presidential Transitions and Executive Orders, by L. Elaine Halchin.

13. Jan Cochran, III, "The Cinderella Constraint: Why Regulations Increase Significantly During Post-Election Quarters," unpublished paper (Arlington, VA: Mercatus Center, George Mason University, 2000), p.3.

14. 5 U.S.C. 551-559, 701-706, 1305, 3105, 3344, 5372, 7521.

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