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[Senate Report 111-239]
[From the U.S. Government Publishing Office]

                                                      Calendar No. 499
111th Congress
 2d Session                      SENATE                          Report
                                                                111-239
_______________________________________________________________________

                                     

                                                       

 
                  PRE-ELECTION PRESIDENTIAL TRANSITION

                              ACT OF 2010

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                S. 3196

   TO AMEND THE PRESIDENTIAL TRANSITION ACT OF 1963 TO PROVIDE THAT 
 CERTAIN TRANSITION SERVICES SHALL BE AVAILABLE TO ELIGIBLE CANDIDATES 
                      BEFORE THE GENERAL ELECTION

                 August 2, 2010.--Ordered to be printed

                              _______

                   U.S. GOVERNMENT PRINTING OFFICE

                           WASHINGTON : 2010

        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

               JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan                 SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii              TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware           SCOTT P. BROWN, Massachusetts
MARK L. PRYOR, Arkansas              JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana          GEORGE V. VOINOVICH, Ohio
CLAIRE McCASKILL, Missouri           JOHN ENSIGN, Nevada
JON TESTER, Montana                  LINDSEY GRAHAM, South Carolina
ROLAND W. BURRIS, Illinois
EDWARD E. KAUFMAN, Delaware

                  Michael L. Alexander, Staff Director
                     Kevin J. Landy, Chief Counsel
                    Beth M. Grossman, Senior Counsel
               Kristine V. Lam, Professional Staff Member
  Adam D. Weissmann, Legislative Assistant, Office of Senator Kaufman
     Brandon L. Milhorn, Minority Staff Director and Chief Counsel
        Amanda Wood, Minority Director for Governmental Affairs
                   Jennifer L. Tarr, Minority Counsel
                  Trina Driessnack Tyrer, Chief Clerk

                                                       Calendar No. 499
111th Congress                                                   Report
                                 SENATE
 2d Session                                                     111-239

======================================================================

            PRE-ELECTION PRESIDENTIAL TRANSITION ACT OF 2010

                                _______
                                

                 August 2, 2010.--Ordered to be printed

                                _______
                                

Mr. Lieberman, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                         [To accompany S. 3196]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 3196) to amend the 
Presidential Transition Act of 1963 to provide that certain 
transition services shall be available to eligible candidates 
before the general election, having considered the same, 
reports favorably thereon without amendment and recommends that 
the bill do pass.

                                CONTENTS

                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and Need for the Legislation..........................2
III. Legislative History..............................................6
 IV. Section-by-Section Analysis......................................6
  V. Evaluation of Regulatory Impact..................................8
 VI. Congressional Budget Office Cost Estimate........................9
VII. Changes to Existing Law Made by the Bill, as Reported...........10

                         I. Purpose and Summary

    Under current law, the federal government offers 
Presidents-elect services and facilities to help them plan and 
execute a smooth transition into office. While the period 
between Election and Inauguration Days may once have allowed 
for an adequate transition, those governing in the post-
September 11th world need more preparation than they can 
reasonably get in the roughly eleven weeks now typically given 
them. S. 3196 seeks to remedy this situation by moving the 
transition planning calendar back and offering major party 
nominees and certain third-party candidates certain transition 
planning services following the candidates' nomination. It also 
authorizes the incumbent administration to take certain steps 
to prepare for the transition.

              II. Background and Need for the Legislation

    One of the greatest sources of Americans' pride in our 
country comes from the peaceful nature in which power is 
transferred following the election of a new president. But with 
that transfer of power comes potential vulnerability. If the 
new President and the new Administration are not ready to 
govern on their first day in office, our nation's adversaries 
may well see and take advantage of the situation.
    Concerns over the need for a smooth transition first led 
Congress to address this issue during the Cold War, by enacting 
the Presidential Transition Act of 1963\1\ in order to 
``promote the orderly transfer of executive power'' during 
presidential transitions and to ``prevent results detrimental 
to the safety and well-being of the United States and its 
people.''\2\ Before 1963, most expenses for presidential 
transitions were borne by the President-elect, the winning 
party, and volunteers.\3\ The Presidential Transition Act 
altered this model by directing the General Services 
Administration (GSA) to provide services, including office 
space and other facilities for the incoming transition team, 
the employment of transition staff, and the arrangement of 
staff from other agencies to assist in the transition.\4\
---------------------------------------------------------------------------
    \1\P.L. 88-277, 78 Stat. 153 (1964) (codified at 3 U.S.C. Sec. 102 
note).
    \2\3 U.S.C. Sec. 102 note.
    \3\U.S. President's Commission on Campaign Costs, Financing 
Presidential Campaigns, April 1962 (Washington: GPO, 1962), pp. 23-24.
    \4\Id.
---------------------------------------------------------------------------
    Subsequent legislation has updated and expanded the 
Presidential Transition Act. The Presidential Transition 
Effectiveness Act of 1988 increased the authorized 
appropriations to the GSA Administrator to provide services and 
facilities for the transition and to incoming and outgoing 
administrations; required that a specified amount of money be 
returned to the Treasury if the former Vice President becomes 
the President-elect; and added several reporting requirements, 
including the disclosure of all transition personnel and the 
disclosure of all private money received for use during the 
transition.\5\ The Presidential Transition Act of 2000 amended 
the law further to provide for additional appointee orientation 
and human resources support for the incoming administration.\6\ 
The Intelligence Reform and Terrorism Prevention Act of 2004 
(IRTPA), enacted in response to the recommendations of the 9/11 
Commission,\7\ also amended the Presidential Transition Act, 
providing that a President-elect should submit the names of 
candidates for high-level national security positions, and the 
appropriate agencies should conduct necessary background 
investigations of these individuals, as soon as possible after 
the presidential election.\8\ In addition, IRTPA allowed major 
party nominees to request security clearances for members of 
their transition team with a need for access to classified 
information and directed that background investigations for 
these individuals be competed, to the fullest extent 
practicable, by the day after the general election.\9\
---------------------------------------------------------------------------
    \5\P.L. 100-398.
    \6\P.L. 106-293.
    \7\National Commission on Terrorist Attacks upon the United 
States., The 9/11 Commission Report (2004). For the Commission's 
recommendations with respect to improving transitions between 
Administrations, see pp. 422-3.
    \8\P.L. 108-458, Section 7601(a), codified at 3 U.S.C. Sec. 102 
note, subsection (f).
    \9\P.L. 108-458, Section 7601(c), codified at 50 U.S.C. Sec. 435b 
note.
---------------------------------------------------------------------------
    These legislative efforts have been largely aimed at 
transition activities after the general election. Historically, 
candidates have been reluctant to start transition activities 
before the election because doing so could tax limited 
resources, distract or conflict key campaign staff, or risk 
political damage by creating the impression that the candidate 
has prematurely assumed victory, among other reasons.\10\
---------------------------------------------------------------------------
    \10\Partnership for Public Service, Ready to Govern: Improving the 
Presidential Transition, January 2010, pp. 4-6 (hereinafter, Ready to 
Govern).
---------------------------------------------------------------------------
    The post-September 11 security environment has made the old 
transition model obsolete. Numerous challenges now necessitate 
earlier planning and closer cooperation between incoming and 
outgoing administrations; the period between Election Day and 
the inauguration of a new president simply provides too short a 
timeframe for an incoming administration to do everything it 
needs to prepare for taking office. The selection process for 
incoming senior administration officials, many of whom require 
extensive security clearance background checks, for example, 
can be long and cumbersome.\11\ The Pre-Election Presidential 
Transition Act seeks to mitigate the risks inherent in the 
transfer of power and encourage early transition planning by 
providing resources and educating the campaigns, the press, and 
the public on the importance of early transition activities.
---------------------------------------------------------------------------
    \11\Statement of Clay Johnson, III, former Deputy Director for 
Management, Office of Management and Budget, for hearing entitled, 
``After the Dust Settles: Examining Challenges and Lessons Learned in 
Transitioning the Federal Government,'' U.S. Senate Committee on 
Homeland Security and Governmental Affairs Subcommittee on Oversight of 
Government Management, the Federal Workforce, and the District of 
Columbia, April 22, 2010, pp. 2-3.
---------------------------------------------------------------------------
    In recent elections, campaigns have begun informal 
transition planning months in advance of Election Day, even 
without access to GSA resources. According to a 2010 report by 
the Partnership for Public Service, both the Obama and McCain 
campaigns engaged in informal pre-election transition planning 
during the 2008 election year.\12\ However, candidates tread 
into such early transition planning carefully, fearing the 
portrayal of such planning as a presumptuous ``measuring of the 
drapes,'' an accusation they worry could damage them 
politically. By codifying Congress's view that candidates 
should start transition planning before the election, this 
legislation seeks to remove the stigma related to it and make 
pre-election transition planning an accepted part of a 
successful transition process.
---------------------------------------------------------------------------
    \12\Ready to Govern, pp. 3-6.
---------------------------------------------------------------------------
    Currently, incumbent administrations have little formal 
responsibility to undertake transition activities. The outgoing 
administration is required to prepare appropriate files and 
documents for archiving by the National Archives and Records 
Administration,\13\ and outgoing officials are required to 
brief their incoming counterparts on important national 
security matters, including ongoing or planned covert and 
military operations.\14\ Apart from these relatively few 
mandatory transition activities, further transition efforts on 
the part of the incumbent administration are discretionary.
---------------------------------------------------------------------------
    \13\44 U.S.C. Sec. Sec. 2201-2207.
    \14\3 U.S.C. Sec.  102 note; P.L. 108-458 Sec. 7601.
---------------------------------------------------------------------------
    The outgoing George W. Bush Administration provided a good 
example of transition planning, setting early goals and 
allocating time and resources to ensure that executive agencies 
laid the groundwork for an effective transition.\15\ First, in 
July 2008 the Office of Management and Budget (OMB) set 
deadlines for the members of the President's Management Council 
to ensure continuity of public services during the 
transition.\16\ Shortly thereafter, in October 2008, the 
President issued Executive Order 13476 establishing the 
Presidential Transition Coordinating Council to oversee 
transition efforts by his administration.\17\ This directive 
expanded upon the model created by President Clinton's 
Executive Order 13176 of November 30, 2000, which established a 
similar transition coordinating council, smaller in scope, to 
oversee his administration's transfer out of office.\18\
---------------------------------------------------------------------------
    \15\Statement of Max Stier, President and CEO of the Partnership 
for Public Service, After the Dust Settles: Examining Challenges and 
Lessons Learned in Transitioning the Federal Government, hearing before 
the Senate Committee on Homeland Security and Governmental Affairs' 
Subcommittee on Oversight of Government Management, the Federal 
Workforce, and the District of Columbia, April 22, 2010, pp. 1-3.
    \16\Memorandum from Deputy Director for Management Clay Johnson to 
Members of the President's Management Council, July 18, 2008.
    \17\Facilitation of a Presidential Transition,'' Executive Order 
No. 13476, 73 Fed. Reg. 60,605 (October 9, 2008).
    \18\Statement of John D. Podesta, President and CEO, Center for 
American Progress, After the Dust Settles: Examining Challenges and 
Lessons Learned in Transitioning the Federal Government, hearing before 
the Senate Committee on Homeland Security and Governmental Affairs' 
Subcommittee on Oversight of Government Management, the Federal 
Workforce, and the District of Columbia, April 22, 2010, pp. 3-4. Cf., 
``Facilitation of a Presidential Transition,'' Executive Order No. 
13176, 65 Fed. Reg. 71,233 (November 27, 2000).
---------------------------------------------------------------------------
    These steps, together with a dedication to early pre-
election planning by the Obama campaign, helped ensure what has 
been characterized as one of the most seamless presidential 
transitions in modern history.\19\ Close coordination between 
outgoing and incoming officials prior to January 2009--a result 
of sound decisions by both the incumbent administration and the 
two major party candidates' campaigns to engage in early 
transition planning voluntarily--proved instrumental in 
preventing a gap in leadership in the face of a suspected 
terrorist plot during the inaugural ceremonies.\20\
---------------------------------------------------------------------------
    \19\Ready to Govern, p. i.
    \20\Kumar, Martha Joynt, ``The 2008-2009 Presidential Transition 
Through the Voices of Its Participants,'' Presidential Studies 
Quarterly, December 2009, pp. 1-2.
---------------------------------------------------------------------------
    GSA played a critical role in the transition. It leased and 
furnished approximately 120,000 square feet of office space for 
use by the Obama-Biden Transition Project after the election, 
as well as for use by the Presidential Inaugural Committee and 
the Armed Forces Inaugural Committee. It provided a secure 
telecommunications infrastructure for 1,300 users. And it 
worked informally with both campaigns before Election Day to 
develop post-election plans based on their anticipated 
needs.\21\
---------------------------------------------------------------------------
    \21\Statement of Gail Lovelace, Chief People Officer, U.S. General 
Services Administration, After the Dust Settles: Examining Challenges 
and Lessons Learned in Transitioning the Federal Government, hearing 
before the Senate Committee on Homeland Security and Governmental 
Affairs' Subcommittee on Oversight of Government Management, the 
Federal Workforce, and the District of Columbia, April 22, 2010, pp. 2-
4.
---------------------------------------------------------------------------
    Detailed accounts and analyses of the 2008-2009 
transition's successes and challenges have been compiled in 
comprehensive studies, such as a December 2009 article by 
presidential scholar Martha Joynt Kumar\22\ and the January 
2010 Partnership for Public Service report Ready to Govern: 
Improving the Presidential Transition.\23\ These accounts as 
well as input from those who participated in earlier 
transitions was considered in drafting S. 3196.
---------------------------------------------------------------------------
    \22\Kumar, Martha Joynt, ``The 2008-2009 Presidential Transition 
Through the Voices of Its Participants.''
    \23\Ready to Govern, supra n. 13.
---------------------------------------------------------------------------
    In addition to providing services and facilities to 
eligible candidates and allowing candidates to raise funds to 
support transition activities, S. 3196, looking to the Bush 
Administration as a model, seeks to encourage incumbent 
administrations to take an early, organized approach to 
transition planning. Among other things, the bill specifically 
authorizes the creation of a transition coordinating council, 
to be composed of ``high-level officials of the Executive 
branch, selected by the President,'' such as the President's 
Chief of Staff, the Director of OMB, the Administrator of GSA, 
and the Director of the Office of Personnel Management. The 
bill also authorizes the establishment of an agency transition 
directors council for career employees designated to lead 
transition efforts within their agencies, in order to ensure 
leadership continuity at a time when significant numbers of 
senior appointees are likely to be departing. Given their 
proven utility in the most recent transition, both councils are 
codified in the law as congressionally authorized models, in 
the hope that this will encourage their use. However, creation 
of neither the transition coordinating council nor the agency 
transition directors council is mandatory, preserving 
flexibility for future administrations to develop other 
vehicles for ensuring an efficient transfer of power. To 
further encourage transition planning by incumbent 
administrations, the bill also requires the President to submit 
two reports to Congress during a presidential election year 
describing the steps being taken to facilitate a trouble-free 
transition.
    For eligible candidates, S. 3196 permits campaigns to 
establish separate accounts to fund transition activities not 
provided by GSA prior to Election Day or to supplement GSA-
provided services. Past Presidents-elect and Vice Presidents-
elect have used such accounts for post-Election Day transition 
activities. Eligible candidates could transfer money from their 
campaign accounts into these transition accounts as well as 
raise funds separately. Pre-election transition efforts by both 
the Obama and McCain campaigns in 2008 relied on volunteers or 
campaign staff paid by private funds.\24\
---------------------------------------------------------------------------
    \24\Ready to Govern, pp. ii-iii.
---------------------------------------------------------------------------
    Witnesses who appeared at an April 22, 2010 hearing before 
the Committee's Subcommittee on Oversight of Government 
Management, the Federal Workforce, and the District of Columbia 
expressed concern about other issues perceived as hurdles to an 
efficient transition process, including difficulties with the 
security clearance process and the sometimes long timetable for 
submitting and confirming nominees to senioradministration 
positions.\25\ Although such issues are beyond the scope of this 
bill,\26\ the Committee believes that S. 3196, if enacted, will go a 
long way toward providing for a smoother and safer transition between 
presidential administrations.
---------------------------------------------------------------------------
    \25\See, e.g., Statement of Clay Johnson, III, April 22, 2010, pp. 
2-3; Statement of John D. Podesta, April 22, 2010, pp. 10-11.
    \26\The Committee, however, has pursued such issues through other 
means. For example, IRTPA, which originated in the Committee, includes 
provisions designed to bring greater efficiency and interagency 
reciprocity to the security clearance process overall, not just during 
transitions. See P.L. 108-459, sec. 3001, 118 Stat. 3705 (codified at 
50 U.S.C. Sec. 435b). Since the enactment of IRTPA, the Committee has 
continued to conduct oversight concerning this issue, with its 
Subcommittee on Oversight of Government Management, the Federal 
Workforce, and the District of Columbia holding a series of six 
hearings on improving the security clearance process, including most 
recently a hearing entitled ``Security Clearance Reform: Moving Forward 
on Modernization'' on September 25, 2009.
    IRTPA also includes a provision expressing the Sense of the Senate 
that the President-elect should submit nominations for high-level 
national security positions by Inauguration Day and that the Senate 
should confirm or reject those nominations within 30 days of their 
submission. P.L. 108-458, sec. 7601(b), 118 Stat. 3857. In the 111th 
Congress, the Committee, for its part, has sought to act promptly on 
the nominations referred to it, reporting out all but four of the 
nominations for major administration positions (including those at the 
Department of Homeland Security and OMB) within 60 days of referral; a 
majority of these nominations were reported out within 30 days.
---------------------------------------------------------------------------

                        III. Legislative History

    Senators Kaufman, Voinovich, Akaka, and Lieberman 
introduced S. 3196 on April 13, 2010. The bill was referred to 
the Senate Committee on Homeland Security and Governmental 
Affairs.
    The Committee's Subcommittee on Oversight of Government 
Management, the Federal Workforce, and the District of Columbia 
held a hearing on April 22, 2010 on the subject of reforming 
the transition process, and the testimony addressed S. 3196. 
Witnesses included Gail Lovelace, who served as GSA's senior 
career executive for the presidential transition; John Podesta, 
who oversaw the Obama-Biden Transition Project; Clay Johnson, 
the former Bush Administration OMB Deputy Director for 
Management who helped lead transition efforts for the White 
House; and Max Stier, President and CEO of the non-profit, non-
partisan Partnership for Public Service. These four shared 
their insights into obstacles they have encountered in 
presidential transitions and the steps that proved most 
successful.
    The Committee considered S. 3196 at a business meeting that 
began on April 28, 2010 and then was adjourned and reconvened 
on May 17, 2010, when S. 3196 was favorably reported by voice 
vote. The members present for the vote were Senators Lieberman, 
Akaka, Carper, Pryor, Landrieu, Burris, Collins, Brown, 
Voinovich, and Graham.

                    IV. Section-by-Section Analysis

Section 1. Short title

    Section 1 designates the name of the act as the ``Pre-
Election Presidential Transition Act of 2010.''

Section 2. Certain Presidential transition services may be provided to 
        eligible candidates before general election

    Subsection (a) amends Section 3 of the Presidential 
Transition Act of 1963 (3 U.S.C. 102 note) to extend to major 
party nominees and certain third party candidates certain GSA 
services and access to facilities previously provided only to 
the President-elect and Vice President-elect for the purposes 
of preparing to transition into office. The services offered 
would include office space and suitable furnishings; 
communications services; payment for printing and binding; 
funds for briefings, workshops, and other orientation 
activities for incoming staff; and a transition directory with 
information on the officers, organization, authorities and 
responsibilities of each department and agency. However, 
candidates would not be extended certain other services 
received by presidents-elect and vice presidents-elect, 
including salaries, travel expenses, contractor or consultant 
fees, and postal reimbursement. The GSA Administrator (``the 
Administrator'') would be required to notify eligible 
candidates of their right to receive available GSA services and 
access to facilities and inform eligible candidates that 
certain additional services are provided under the Intelligence 
Reform and Terrorism Prevention Act of 2004. Eligible 
candidates would be permitted to use the services and 
facilities provided only in connection with their preparations 
for the assumption of official duties as President or Vice-
President, and candidates would be required to reimburse GSA 
for any unauthorized use of services or access to facilities 
provided.
    This subsection also requires the Administrator to prepare 
a quadrennial report by January 1 of each year in which a 
general election is held, which summarizes presidential 
transition activities and includes a bibliography of resources. 
This report would be released to the public and posted on the 
Internet in order to educate the press and public on the 
importance of early transition planning.
    This subsection directs the Administrator to determine the 
location of any office space provided to eligible candidates, 
to ensure that computers or communications services provided by 
the GSA to eligible candidates are secure, to offer assistance 
to eligible candidates on an equal basis without regard to 
political affiliation, and to modify the scope of services to 
reflect that they are provided to candidates rather than to the 
President-elect and Vice President-elect.
    In order to supplement the services and access to 
facilities provided by the Administrator, an eligible candidate 
may, under the provisions of this subsection, establish a 
separate fund--qualifying for the purposes of section 501(c)(4) 
of the Internal Revenue Code of 1986--to pay for transition 
services and facilities. An eligible candidate may transfer 
into this fund contributions received for his or her general 
electioncampaign and may also solicit and accept donations 
directly into it. All amounts received and disbursed must be done and 
reported in accordance with the requirements for transition accounts 
contained in Section 5 of the Presidential Transition Act of 1963, 
which among other things, limits contributions to $5000 per person.
    Finally, this subsection defines an ``an eligible 
candidate'' as either a major party nominee (as defined in 
section 9902(6) of the Internal Revenue Code of 1986) or a 
third-party candidate determined by the Administrator to be 
among the principle contenders in the general election. For a 
third-party candidate to be determined eligible by the 
Administrator, the candidate must meet all of the following 
criteria: (1) constitutional eligibility; (2) ballot 
qualification in a number of states sufficient to allow actual 
electoral college victory; and (3) a demonstration of 
significant public support so as to be considered realistically 
among the principle contenders for election to office. The 
Administrator is also directed to consider whether a candidate 
has been recognized to be among the principle contenders for 
office by national organizations, including whether the 
Commission on Presidential Debates has determined that 
candidate to be eligible for participation in the general 
election debates. The criteria set out in this subsection for 
determining the eligibility of third-party candidates are 
modeled on those used by the Commission on Presidential 
Debates.
    Subsection (b) requires the Administrator to provide 
eligible candidates with technology coordination upon request, 
including the development of a systems architecture plan for 
computer and communications systems of an eligible candidate to 
transition to federal systems should the candidate be elected.
    Subsection (c) amends the Intelligence Reform and Terrorism 
Prevention Act of 2004 to include eligible third-party 
candidates among those able to request early security 
clearances for prospective transition team members and 
electronic records on presidentially appointed positions, as 
are currently available to major party nominees.
    Subsection (d) makes conforming amendments to Section 3 of 
the Presidential Transition Act of 1963.

Section 3. Authorization of transition activities by the outgoing 
        administration

    Subsection (a) authorizes the incumbent President to take 
such actions as necessary and appropriate to plan and 
coordinate activities by the Executive Branch to facilitate an 
efficient transfer of power, including the establishment of a 
transition coordinating council comprised of high-level 
Executive Branch officials; the formation of an agency 
transition directors council that includes career employees 
designated to lead transition efforts within their agencies; 
the development of guidance to departments and agencies 
regarding briefing materials for an incoming administration and 
the development of such materials; and the development of 
computer software, contingency plans, memoranda, training and 
exercises, and other items for improving the effectiveness and 
efficiency of a Presidential transition. Under this subsection, 
any services extended to eligible candidates must be provided 
on an equal basis and without regard to political affiliation.
    Subsection (b) requires the incumbent President to provide 
two reports to this Committee and to the Committee on Oversight 
and Government Reform of the House of Representatives that 
describe activities undertaken by the incumbent administration 
to prepare for a transfer of power. The reports are to be 
provided six months and three months before the general 
election.
    Subsection (c) authorizes to be appropriated such sums as 
necessary to carry out the provisions of Section 3 of S. 3196.

                   V. Evaluation of Regulatory Impact

    Pursuant to the requirements of paragraph 11(b) of Rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this bill and determined 
that the bill will have no regulatory impact. The Congressional 
Budget Office states that the bill contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act and would not affect the budgets 
of state, local, or tribal governments.

             VI. Congressional Budget Office Cost Estimate

                                                      July 1, 2010.
Hon. Joseph I. Lieberman,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S. 
        Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 3196, the Pre-
Election Presidential Transition Act of 2010.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

S. 3196--Pre-Election Presidential Transition Act of 2010

    Summary: S. 3196 would amend the Presidential Transition 
Act of 1963 (PTA) to direct the General Services Administration 
(GSA) to provide certain services and facilities to eligible 
presidential and vice-presidential candidates before the 
general election for president. Under the bill, presidential 
candidates could solicit donations to pay for the additional 
travel and staff expenses prior to a possible transition to the 
presidency. In addition, the legislation would authorize the 
appropriation of funds to establish a council to facilitate the 
transition between administrations.
    CBO estimates that implementing S. 3196 would increase the 
administrative costs of GSA and a number of federal agencies by 
$5 million over the 2012-2013 period, assuming the availability 
of appropriated funds. Enacting the bill would not affect 
direct spending or revenues; therefore, pay-as-you-go 
procedures would not apply.
    S. 3196 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would not affect the budgets of state, local, or tribal 
governments.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of S. 3196 is shown in the following table. 
The costs of this legislation would fall within budget 
functions 750 (administration of justice) and 800 (general 
government).

----------------------------------------------------------------------------------------------------------------
                                                                    By Fiscal Year in millions of dollars--
                                                              --------------------------------------------------
                                                                2011    2012    2013    2014    2015   2011-2015
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated Authorization Level................................       0       5       0       0       0         5
Estimated Outlays............................................       0       3       2       0       0         5
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: For this estimate, CBO assumes that S. 
3196 will be enacted this year and that spending will follow 
historical patterns for similar activities.
    The PTA authorizes appropriations for GSA to provide 
suitable office space, staff compensation, and other services 
associated with the presidential transition process. Most of 
such support is provided after the election of a president. In 
2009, about $9 million was appropriated for the cost of the 
most recent transition. S. 3196 would require GSA to provide 
those transitional services to presidential candidates after 
major political parties hold their nominating conventions.
    Based on information from GSA, the Office of Personnel 
Management, the Department of Homeland Security, and other 
security-related agencies, CBO estimates that implementing S. 
3196 would increase administrative costs prior to the next 
presidential election by about $5 million over the 2012-2013 
period, assuming the availability of appropriated funds. The 
cost of the legislation could vary depending on whether an 
incumbent president is a candidate and the number of candidates 
that are eligible to receive funds from the Presidential 
Election Campaign Fund. That amount would cover additional 
office space, communications costs, training sessions, and the 
initiation of security clearances for potential administration 
officials.
    Section 3 would authorize appropriations for the outgoing 
administration to establish a council to facilitate the 
transition between administrations. Based on information from 
the White House and the Office of Management and Budget, this 
provision would codify Executive Order 13476 and current 
practice. CBO estimates that this provision would cost less 
than $500,000 during each presidential election cycle.
    Pay-as-you-go considerations: None.
    Intergovernmental and private-sector impact: S. 3196 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would not affect the budgets of state, 
local, or tribal governments.
    Estimate prepared by: Federal Costs: Matthew Pickford; 
Impact on State, Local, and Tribal Governments: Elizabeth Cove 
Delisle; Impact on the Private Sector: Sam Wice.
    Estimate approved by: Peter H. Fontaine, Assistant Director 
for Budget Analysis.

       VI. Changes to Existing Law Made by the Bill, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
S. 3196 as reported are shown as follows (existing law proposed 
to be omitted is enclosed in brackets, new matter is printed in 
italic, and existing law in which no change is proposed is 
shown in roman):

                  PRESIDENTIAL TRANSITION ACT OF 1963

                           Public Law 88-277

(as codified at 3 U.S.C Sec. 102 note)

           *       *       *       *       *       *       *

    Sec. 3. (a) The Administrator of General Services, referred 
to hereafter in this Act as ``the Administrator,'' is 
authorized to provide, upon request, to each President-elect 
and each Vice-President-elect, for use in connection with his 
preparations for the assumption of official duties as President 
or Vice President necessary services and facilities, including 
the following:

           *       *       *       *       *       *       *

          (8)(A)(i) Not withstanding subsection (b), payment of 
        expenses during the transition for briefings, 
        workshops, or other activities to acquaint key 
        prospective Presidential appointees with the types of 
        problems and challenges that most typically confront 
        new political appointees when they make the transition 
        from campaign and other prior activities to assuming 
        the responsibility for governance after inauguration.

           *       *       *       *       *       *       *

          (B) Activities under this paragraph shall be 
        conducted primarily for individuals the [President-
        elect] President-elect or eligible candidate (as 
        defined in subsection (h)(4)) for President intends to 
        nominate as department heads or appoint to key 
        positions in the Executive Office of the President.

           *       *       *       *       *       *       *

          (10)[(A)] Notwithstanding subsection (b), 
        consultation by the Administrator with any [candidate 
        for] President-elect, [or] Vice President-elect, or 
        eligible candidate (as defined in subsection (h)(4)) to 
        develop a systems architecture plan for the computer 
        and communications systems of the candidate to 
        coordinate a transition to Federal systems[,] if the 
        candidate is elected.
          [(B) Consultations under this paragraph shall be 
        conducted at the discretion of the Administrator.]

           *       *       *       *       *       *       *

    (e) Each President-elect and Vice-President-elect or 
eligible candidate (as defined in subsection (h)(4)) for 
President or Vice-President, may designate to the Administrator 
an assistant authorized to make on his behalf such designations 
or findings of necessity as may be required in connection with 
the services and facilities to be provided under this Act. Not 
more than 10 per centum of the total expenditures under this 
Act for any President-elect or Vice-President-elect may be made 
upon the basis of a certificate by him or the assistant 
designated by him pursuant to this section that such 
expenditures are classified and are essential to the national 
security, and that they accord with the provisions of 
subsections (a), (b), and (d) of this section.

           *       *       *       *       *       *       *

    (h)(1)(A) In the case of an eligible candidate, the 
Administrator--
          (i) shall notify the candidate of the candidate's 
        right to receive the services and facilities described 
        in paragraph (2) and shall provide with such notice a 
        description of the nature and scope of each such 
        service and facility; and
          (ii) upon notification by the candidate of which such 
        services and facilities such candidate will accept, 
        shall, notwithstanding subsection (b), provide such 
        services and facilities to the candidate during the 
        period beginning on the date of the notification and 
        ending on the date of the general elections described 
        in subsection (b)(1).
The Administrator shall also notify the candidate of the 
services provided under sections 7601(c) and 8403(b) of the 
Intelligence Reform and Terrorism Prevention Act of 2004.
    (B) The Administrator shall provide the notice under 
subparagraph (A)(i) to each eligible candidate--
          (i) in the case of a candidate of a major party (as 
        defined in section 9002(6) of the Internal Revenue Code 
        of 1986), on one of the first 3 business days following 
        the last nominating convention for such major parties; 
        and
          (ii) in the case of any other candidate, as soon as 
        practicable after an individual becomes an eligible 
        candidate (or, if later, at the same time as notice is 
        provided under clause (i)).
    (C)(i) The Administrator shall, not later than January 1 of 
2012 and of every 4th year thereafter, prepare a report 
summarizing modern presidential transition activities, 
including a bibliography of relevant resources.
    (ii) The Administrator shall promptly make the report under 
clause (i) generally available to the public (including through 
electronic means) and shall include such report with the notice 
provided to each eligible candidate under subparagraph (A)(i).
          (2)(A) Except as provided in subparagraph (B), the 
        services and facilities described in this paragraph are 
        the services and facilities described in subsection (a) 
        (other than paragraphs (2), (3), (4), and (7) thereof), 
        but only to the extent that the use of the services and 
        facilities is for use in connection with the eligible 
        candidate's preparations for the assumption of official 
        duties as President or Vice-President.
          (B) The Administrator--
                  (i) shall determine the location of any 
                office space provided to an eligible candidate 
                under this subsection;
                  (ii) shall, as appropriate, ensure that any 
                computers or communications services provided 
                to an eligible candidate under this subsection 
                are secure;
                  (iii) shall offer information and other 
                assistance to eligible candidates on an equal 
                basis and without regard to political 
                affiliation; and
                  (iv) may modify the scope of any services to 
                be provided under this subsection to reflect 
                that the services are provided to eligible 
                candidates rather than the President-elect or 
                Vice-President-elect, except that any such 
                modification must apply to all eligible 
                candidates.
          (C) An eligible candidate, or any person on behalf of 
        the candidate, shall not use any services or facilities 
        provided under this subsection other than for the 
        purposes described in subparagraph (A), and the 
        candidate or the candidate's campaign shall reimburse 
        the Administrator for any unauthorized use of such 
        services or facilities.
          (3)(A) Notwithstanding any other provision of law, an 
        eligible candidate may establish a separate fund for 
        the payment of expenditures in connection with the 
        eligible candidate's preparations for the assumption of 
        official duties as President or Vice-President, 
        including expenditures in connection with any services 
        or facilities provided under this subsection (whether 
        before such services or facilities are available under 
        this section or to supplement such services or 
        facilities when so provided). Such fund shall be 
        established and maintained in such manner as to qualify 
        such fund for purposes of section 501(c)(4) of the 
        Internal Revenue Code of 1986.
          (B)(i) The eligible candidate may--
                  (I) transfer to any separate fund established 
                under subparagraph (A) contributions (within 
                the meaning of section 301(8) of the Federal 
                Election Campaign Act of 1971 (2 U.S.C. 
                431(8))) the candidate received for the general 
                election for President or Vice-President or 
                payments from the Presidential Election 
                Campaign Fund under chapter 95 of the Internal 
                Revenue Code of 1986 the candidate received for 
                the general election; and
                  (II) solicit and accept amounts for receipt 
                by such separate fund.
          (ii) Any expenditures from the separate fund that are 
        made from such contributions or payments described in 
        clause (i)(I) shall be treated as expenditures (within 
        the meaning of section 301(9) of such Act (2 U.S.C. 
        431(9))) or qualified campaign expenses (within the 
        meaning of section 9002(11) of such Code), whichever is 
        applicable.
          (iii) An eligible candidate establishing a separate 
        fund under subparagraph (A) shall (as a condition for 
        receiving services and facilities described in 
        paragraph(2)) comply with all requirements and 
limitations of section 5 in soliciting or expending amounts in the same 
manner as the President-elect or Vice-President-elect, including 
reporting on the transfer and expenditure of amounts described in 
subparagraph (B)(i) in the disclosures required by section 5.
          (4)(A) In this subsection, the term ``eligible 
        candidate'' means, with respect to any presidential 
        election (as defined in section 9002(10) of the 
        Internal Revenue Code of 1986)--
                  (i) a candidate of a major party (as defined 
                in section 9002(6) of such Code) for President 
                or Vice-President of the United States; and
                  (ii) any other candidate who has been 
                determined by the Administrator to be among the 
                principle contenders for the general election 
                to such offices.
          (B) In making a determination under subparagraph 
        (A)(ii), the Administrator shall--
                  (i) ensure that any candidate determined to 
                be an eligible candidate under such 
                subparagraph--
                          (I) meets the requirements described 
                        in article II, section 1, of the United 
                        States Constitution for eligibility to 
                        the office of President;
                          (II) has qualified to have his or her 
                        name appear on the ballots of a 
                        sufficient number of States such that 
                        the total number of electors appointed 
                        in those States is greater than 50 
                        percent of the total number of electors 
                        appointed in all of the States; and
                          (III) has demonstrated a significant 
                        level of public support in national 
                        public opinion polls, so as to be 
                        realistically considered among the 
                        principal contenders for President or 
                        Vice-President of the United States; 
                        and
                  (ii) consider whether other national 
                organizations have recognized the candidate as 
                being among the principal contenders for the 
                general election to such offices, including 
                whether the Commission on Presidential Debates 
                has determined that the candidate is eligible 
                to participate in the candidate debates for the 
                general election to such offices.

           *       *       *       *       *       *       *

        INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF 2004

                           Public Law 108-458

(as codified at 50 U.S.C. 435b)

           *       *       *       *       *       *       *

SEC. 7601. PRESIDENTIAL TRANSITION.

           *       *       *       *       *       *       *

    (c) Security Clearances for Transition Team Members.--
          [(1) Definitions.--In this section, the term ``major 
        party'' shall have the meaning given under section 
        9002(6) of the Internal Revenue Code of 1986]
          (1) Definition.--In this section, the term `eligible 
        candidate' has the meaning given such term by section 
        3(h)(4) of the Presidential Transition Act of 1963 (3 
        U.S.C. 102 note).
          (2) In general.--Each [major party candidate] 
        eligible candidate for President may submit, before the 
        date of the general election, requests for security 
        clearances for prospective transition team members who 
        will have a need for access to classified information 
        to carry out their responsibilities as members of the 
        President-elect's transition team.

           *       *       *       *       *       *       *

        INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF 2004

                           Public Law 108-458

(as codified at 5 U.S.C. 1101)

           *       *       *       *       *       *       *

SEC. 8403. FINANCIAL DISCLOSURE AND RECORDS.

           *       *       *       *       *       *       *

    (b) Transmittal of Records Relating to Presidentially 
Appointed Positions to Presidential Candidates.--

           *       *       *       *       *       *       *

          (2) Transmittal.--

           *       *       *       *       *       *       *

                  (B) Other candidates.--After making 
                transmittals under subparagraph (A), the Office 
                of Personnel Management [may] shall transmit 
                [an] such electronic record [on Presidentially 
                appointed positions] to any other candidate for 
                President [.] who is an eligible candidate 
                described in section 3(h)(4)(B) of the 
                Presidential Transition Act of 1963 (3 U.S.C. 
                102 note) and may transmit such electronic 
                record to any other candidate for President.

                                  
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