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[Senate Report 115-386]
[From the U.S. Government Publishing Office]

                                                      Calendar No. 672
115th Congress      }                          {               Report
                                 SENATE
 2d Session         }                          {               115-386
_______________________________________________________________________

                                     

            PRESIDENTIAL TRANSITION ENHANCEMENT ACT OF 2018

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                S. 3487

            TO AMEND THE PRESIDENTIAL TRANSITION ACT OF 1963
     TO IMPROVE THE ORDERLY TRANSFER OF THE EXECUTIVE POWER DURING 
                        PRESIDENTIAL TRANSITIONS
                        
                        
                        
                        

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

               November 26, 2018.--Ordered to be printed
               
                                   ______

                     U.S. GOVERNMENT PUBLISHING OFFICE 

89-010                       WASHINGTON : 2018

               
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona                 CLAIRE McCASKILL, Missouri
ROB PORTMAN, Ohio                    THOMAS R. CARPER, Delaware
RAND PAUL, Kentucky                  HEIDI HEITKAMP, North Dakota
JAMES LANKFORD, Oklahoma             GARY C. PETERS, Michigan
MICHAEL B. ENZI, Wyoming             MAGGIE HASSAN, New Hampshire
JOHN HOEVEN, North Dakota            KAMALA D. HARRIS, California
STEVE DAINES, Montana                DOUG JONES, Alabama

                  Christopher R. Hixon, Staff Director
                Gabrielle D'Adamo Singer, Chief Counsel
    Courtney J. Allen, Deputy Chief Counsel for Governmental Affairs
               Margaret E. Daum, Minority Staff Director
       Charles A. Moskowitz, Minority Senior Legislative Counsel
                 Katherine C. Sybenga, Minority Counsel
                     Laura W. Kilbride, Chief Clerk

                                                      Calendar No. 672
115th Congress      }                          {               Report
                                 SENATE
 2d Session         }                          {               115-386

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

 
            PRESIDENTIAL TRANSITION ENHANCEMENT ACT OF 2018

                                _______
                                

               November 26, 2018.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                         [To accompany S. 3487]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 3487) to amend the 
Presidential Transition Act of 1963 to improve the orderly 
transfer of the executive power during Presidential 
transitions, having considered the same, reports favorably 
thereon with amendments and recommends that the bill, as 
amended, do pass.

                                CONTENTS

                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and Need for the Legislation..........................2
III. Legislative History..............................................4
 IV. Section-by-Section Analysis......................................4
  V. Evaluation of Regulatory Impact..................................5
 VI. Congressional Budget Office Cost Estimate........................5
VII. Changes in Existing Law Made by the Bill, as Reported............6

                         I. Purpose and Summary

    The purpose of S. 3487 is to strengthen the presidential 
transition process by clarifying responsibilities of the 
General Services Administration (GSA) and other agencies during 
a transition and by requiring a contractual relationship 
between GSA and a transition team to guide the transition 
process.

                II. Background and Need for Legislation

    To ``promote the orderly transfer of the executive power,'' 
Congress passed the Presidential Transition Act of 1963.\1\ 
This law and its successor statutes require the GSA to provide 
the President-elect and the Vice-President-elect with office 
space, equipment, staff, and communications services to prepare 
for the assumption of their official duties as President and 
Vice President.\2\ The Edward ``Ted'' Kaufman and Michael 
Leavitt Presidential Transitions Improvements Act of 2015 
(hereinafter the ``2015 Presidential Transitions Act'') 
established the White House Transition Coordinating Council and 
the agency transition directors council to ensure efficient 
coordination between Federal agencies and transition teams when 
conducting transition activities.\3\
---------------------------------------------------------------------------
    \1\Presidential Transition Act of 1963, Sec. 2, Pub. L. No. 88-277, 
78 Stat. 153 (1964).
    \2\Id. at Sec. 3; see also Pre-Election Presidential Transition Act 
of 2010, Pub. L. No. 111-283, 124 Stat. 3045 (2010).
    \3\Edward ``Ted'' Kaufman and Michael Leavitt Presidential 
Transitions Improvements Act of 2015, Pub. L. No. 114-136, 130 Stat. 
301 (2016).
---------------------------------------------------------------------------
    Trump for America, Inc. (TFA) was the organization 
designated to carry out pre-election and post-election 
transition activities for then-candidate Donald J. Trump.\4\ In 
December 2017, the Committee received an allegation from TFA 
that GSA had unlawfully disclosed its privileged 
communications.\5\ Since the allegation raised concerns about 
whether future presidential transition teams would trust GSA to 
safeguard their confidential material, and as the committee 
tasked by the Standing Rules of the Senate to oversee 
presidential transitions, the Committee opened an examination 
of the GSA's actions.\6\ The Committee received 6,400 of pages 
of documents produced by GSA and conducted an interview with a 
GSA attorney.\7\
---------------------------------------------------------------------------
    \4\Letter from Christopher J. Christie, Transition Chairman, Trump 
for America, Inc., to Timothy Horne, Federal Transition Coordinator, 
Gen. Serv. Admin. (Aug. 1, 2016) [GSA 004583].
    \5\Letter from Kory Langhofer, Counsel, Trump for America, Inc., to 
Senator Ron Johnson, Chairman, S. Comm. on Homeland Security and 
Governmental Affairs (Dec. 16, 2017). Acting Attorney General Rod J. 
Rosenstein appointed Robert S. Mueller III to serve as a Special 
Counsel of the U.S. Department of Justice on May 17, 2017, and ordered 
the Special Counsel to investigate ``the Russian government's efforts 
to interfere in the 2016 presidential election.'' See U.S. Dep't of 
Justice, Order No. 3915-2017, Appointment of Special Counsel to 
Investigate Russian Interference with the 2016 Presidential Election 
and Related Matters, available at https://www.justice.gov/opa/press-
release/file/967231/download.
    \6\Letter from Senator Ron Johnson, Chairman, S. Comm. on Homeland 
Security and Governmental Affairs, to Emily Murphy, Administrator, Gen. 
Serv. Admin. (Dec. 19, 2017). See also S. Rule XXV(k)(10) referring to 
the Committee matters relating to ``organization and reorganization of 
the executive branch of the Government.''
    \7\Letter from Emily Murphy, Administrator, Gen. Serv. Admin., to 
Senator Ron Johnson, Chairman, S. Comm. on Homeland Security and 
Governmental Affairs (Jan. 19, 2018).
---------------------------------------------------------------------------
    The information provided to the Committee demonstrated that 
both GSA and transition teams need additional guidance and 
protections in the event of third-party interest in the 
activities and records of a transition team. Specifically, 
there is no statutory requirement for GSA and transition teams 
to enter into a memorandum of understanding (MOU) to lay out 
the terms and responsibilities for each party regarding 
transition services. There also is no statutory language to 
ensure GSA is fully transparent with a transition team 
regarding its maintenance and distribution of transition team 
records.
    This bill will address those deficiencies by requiring GSA 
and transition teams to enter into a MOU that sets the terms 
and conditions by which GSA will provide, and the transition 
team will receive, transition-related services. In addition, 
the MOU must designate a transition representative in the 
transition team to whom GSA must direct all third-party 
inquiries for transition team records. The bill also requires 
GSA and transition teams to provide advance notice if any 
deviation from the terms of the MOU is anticipated.
    In addition to the issue regarding transition team records, 
the non-partisan Partnership for Public Service (Partnership) 
learned of other statutory obstacles transition teams faced 
during the 2016 presidential transition through interviews with 
transition officials.\8\ A main concern included differing 
interpretations of the services GSA could provide a transition 
team after inauguration day. According to the Partnership, 
despite the fact that the 2015 Presidential Transitions Act 
authorized GSA to continue providing services and facilities 
for up to 180 days after inauguration day, GSA and the Trump 
transition team negotiated an agreement whereby the transition 
team paid a lease to remain in GSA building space through 
February 2017.\9\ Transition officials also told the 
Partnership that 60 days, rather than the 180 days authorized 
under current statute, is a sufficient amount of time to allow 
transition officials ``to focus on recruiting and filling key 
positions while also transitioning incoming White House 
personnel officials into their new physical quarters within the 
Executive Office of the President.''\10\ Current statute also 
caused unnecessary delays for transition teams onboarding 
detailed congressional staff because statute requires an agency 
head to approve the detail.\11\
---------------------------------------------------------------------------
    \8\E-mail from Partnership of Public Service to Committee staff 
(Nov. 2, 2018, 16:39 EDT).
    \9\Id. See also Edward ``Ted'' Kaufman and Michael Leavitt 
Presidential Transitions Improvements Act of 2015, supra note 3 at 
Sec.  2.
    \10\Id.
    \11\Id. See also Presidential Transition Act of 1963, supra note 1 
at Sec.  3.
---------------------------------------------------------------------------
    The Partnership also identified potential areas of 
improvement for transition activities within agencies during a 
presidential transition. According to the Partnership, 
transition officials viewed the agency transition directors 
council, established under the 2015 Presidential Transitions 
Act, ``as helping to build trust with the incoming 
administration because almost all [council] members were the 
senior career officials responsible for their agencies' 
transitions.''\12\ However, a few agencies sent an official to 
the council who was not the person responsible for their 
agency's transition responsibilities, raising ``a risk of 
undermining the cohesiveness of the transition strategy.''\13\ 
The Partnership also learned of confusion among agencies 
regarding the statutory requirement to designate career 
officials to serve in an acting role for vacant senior 
political positions to be appointed by the incoming 
administration.\14\
---------------------------------------------------------------------------
    \12\Id.
    \13\Id.
    \14\Id. See also Edward ``Ted'' Kaufman and Michael Leavitt 
Presidential Transitions Improvements Act of 2015, supra note 3 at 
Sec.  2.
---------------------------------------------------------------------------
    This bill also addresses these concerns identified by the 
Partnership by clarifying that GSA can provide a transition 
team with services and facilities for up to 60 days after 
inauguration. This bill will reduce delays in detailing 
congressional staff to transition teams by having the Member of 
Congress for whom the staff works approve the detail rather 
than an agency head. The agency transition directors council 
will be required to be an agency employee whose job 
responsibilities include implementing presidential transition 
activities in order to prevent different individuals from 
leading transition activities of each agency and clarifies the 
requirement for agencies to establish a succession plan for 
each outgoing senior political position.

                        III. Legislative History

    Senator Ron Johnson (R-WI) introduced S. 3487 on September 
25, 2018. The bill was referred to the Committee on Homeland 
Security and Governmental Affairs on September 25, 2018.
    The Committee considered S. 3487 at a business meeting on 
September 26, 2018. Senator Johnson offered an amendment that 
would allow GSA to provide services and facilities to a 
transition team for up to 60 days after inauguration of the 
President-elect and Vice-President-elect. The amendment would 
also terminate the designation of a transition representative 
under the MOU between a transition team and GSA either upon the 
request of the transition team or 180 days after inauguration 
of the President-elect and Vice-President-elect. The amendment 
was adopted by voice vote with Senators Johnson, Portman, Paul, 
Lankford, Enzi, Hoeven, Daines, McCaskill, Carper, Heitkamp, 
Peters, Hassan, Harris, and Jones present.
    Senator Tom Carper offered an amendment that would impose 
new requirements on transition teams to develop an ethics plan 
and to report to Congress on each transition team member who 
applies for or receives a security clearance. It would also 
impose new requirements on any individual involved with a 
transition team to publicly disclose certain sources of their 
private income, regardless of the duration of involvement or 
the voluntary or compensated nature of the involvement. A voice 
vote was held on the amendment, and the amendment was not 
adopted. Senators Johnson, Portman, Paul, Lankford, Enzi, 
Hoeven, Daines, McCaskill, Carper, Heitkamp, Peters, Hassan, 
Harris and Jones were present for the voice vote.
    The legislation as amended by the Johnson amendment was 
passed by voice vote with Senators Johnson, Portman, Paul, 
Lankford, Enzi, Hoeven, Daines, McCaskill, Carper, Heitkamp, 
Peters, Hassan, Harris and Jones present.

        IV. Section-by-Section Analysis of the Bill, as Reported

Section 1. Short title

    This section gives the bill the short title of the 
``Presidential Transition Enhancement Act of 2018''.

Section 2. Presidential transition enhancements

    This section improves the operation of presidential 
transitions for GSA and presidential transition teams.
    Subsection (a) allows GSA to provide transition services to 
a transition team for up to 60 days after the inauguration of 
the President-elect and Vice-President-elect. This subsection 
clarifies that congressional employees may be detailed to a 
transition team and replaces the term ``computers'' with 
``information technology.'' Under this subsection, transition 
teams and GSA will be required to enter into a MOU that will 
include the conditions by which transition teams will access 
GSA staff, facilities, and agency documents. The MOU also 
requires the transition team to designate a transition 
representative to whom GSA will direct any inquiries or legal 
instruments for transition team records. This designation ends 
either upon the request of the transition team or 180 days 
after the inauguration of the President-elect and Vice-
President-elect. GSA will be required to notify a transition 
team at least three days in advance of taking any action that 
deviates from the terms and conditions of the MOU.
    Subsection (b) requires that an agency employee serving as 
a senior representative in the agency transition directors 
council must be serving in a career position at the agency. 
This subsection also requires each agency to develop a 
succession plan for each senior non-career position in the 
agency by September 15 of a Presidential election year.

                   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 within the meaning 
of the rules. The Committee agrees with the Congressional 
Budget Office's statement that the bill contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA) and would impose no costs 
on state, local, or tribal governments.

             VI. Congressional Budget Office Cost Estimate

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, October 23, 2018.
Hon. Ron Johnson,
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. 3487, the 
Presidential Transitions Enhancement Act of 2018.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.

S. 3487--Presidential Transition Enhancement Act of 2018

    S. 3487 would limit the period during which services and 
facilities are provided to Presidential transition teams and 
would authorize the executive branch to pay legislative 
employees working for them. S. 3487 also would set a timeline 
for the General Services Administration (GSA) to enter into 
agreements with campaigns to prepare for possible transitions.
    According to GSA, most of the bill's provisions would not 
have a significant effect on the cost of a Presidential 
transition. However, by reducing from 180 days to 60 days after 
an inauguration the period in which a transition team may use 
government services and facilities, the bill would reduce costs 
for staffing and office space. CBO estimates that the decrease 
in costs would be less than $500,000 annually over the next 
five years.
    Enacting S. 3487 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
    CBO estimates that enacting S. 3487 would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2029.
    S. 3487 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    The CBO staff contact for this estimate is Matthew 
Pickford. The estimate was reviewed by H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.

       VII. Changes in 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 
the bill, 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):

UNITED STATES CODE

           *       *       *       *       *       *       *

TITLE 3--THE PRESIDENT

           *       *       *       *       *       *       *

CHAPTER 2--OFFICE AND COMPENSATION OF PRESIDENT

           *       *       *       *       *       *       *

SECTION 102--COMPENSATION OF THE PRESIDENT

           *       *       *       *       *       *       *

Notes

           *       *       *       *       *       *       *

Presidential Transition Act of 1963

           *       *       *       *       *       *       *

SEC. 3. SERVICES AND FACILITIES AUTHORIZED TO BE PROVIDED TO 
                    PRESIDENTS-ELECT AND VICE-PRESIDENTS-ELECT

    (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] 
upon request, to each President-elect, each Vice-President-
elect, and for up to 60 days after the date of the inauguration 
of the President-elect and Vice-President-elect, each President 
and Vice President, for use in connection with the preparations 
for the assumption of official duties as President or Vice 
President necessary services and facilities, including the 
following:
          (1) * * *
          (2) Payment of the compensation of members of office 
        staffs designated by the President-elect or Vice-
        President-elect at rates determined by them not to 
        exceed the rate provided by the Classification Act of 
        1949, as amended (chapter 51 and subchapter III of 
        chapter 53 of title 5), for grade GS-18: Provided, That 
        any employee of any agency of any branch of the 
        Government, or an employee of a committee of either 
        House of Congress, a joint committee of the Congress, 
        or an individual Member of Congress, may be detailed to 
        such staffs on a reimbursable basis with the consent of 
        the head of the agency, or in the case of an employee 
        in a position in the legislative branch, with the 
        consent of the supervising Member of Congress; and 
        while so detailed such employee shall be responsible 
        only to the employment without interruption. 
        Notwithstanding any other law, persons receiving 
        compensation as members of office staffs under this 
        subsection, other than those detailed from agencies, 
        shall not be held or considered to be employees of the 
        Federal Government except for purposes of the Civil 
        Service Reform Act (section 8301 et seq. of title 5), 
        the Federal Employees' Compensation Act (section 8501 
        et seq. of title 5), the Federal Employees' Group Life 
        Insurance Act of 1954 (section 8701 et seq. of title 
        5), and the Federal Employees Health Benefits Act of 
        1959 (section 8901 et seq. of title 5).

           *       *       *       *       *       *       *

    [(b) The Administrator may not expend funds for the 
provision of services and facilities under this section in 
connection with any obligations incurred by the President-elect 
or Vice-President-elect--
          [(1) before the day following the date of the general 
        elections held to determine the electors of President 
        and Vice President under section 1 or 2 of title 3, 
        United States Code; or
          [(2) after 180 days after the date of the 
        inauguration of the President-elect as President and 
        the inauguration of the Vice-President-elect as Vice 
        President.]
    (b) The Administrator shall expend funds for the provision 
of services and facilities under this section--
          (1) in connection with any obligation incurred by the 
        President-elect or Vice-President-elect, or after the 
        inauguration of the President-elect as President and 
        the inauguration of the Vice-President-elect as Vice 
        President incurred by the President or Vice President, 
        during the period--
                  (A) beginning on the day after the date of 
                the general elections held to determine the 
                electors of the President and Vice President 
                under section 1 or 2 of title 3, United States 
                Code; and
                  (B) ending on the date that is 60 days after 
                the date of such inauguration; and
          (2) without regard to whether the President-elect, 
        Vice-President-elect, President, or Vice President 
        submits to the Administrator a request for payment 
        regarding services or facilities before the end of such 
        period.

           *       *       *       *       *       *       *

    (h) * * *
          (1) * * *
          (2)
                  (A) * * *
                  (B)
                          (i) * * *
                          (ii) shall, as appropriate, ensure 
                        that any [computers] information 
                        technology or communications services 
                        provided to an eligible candidate under 
                        this subsection are secure;

           *       *       *       *       *       *       *

    (i) Memorandums of Understanding.
          (1) In general.--Not later than September 1 of a year 
        during which a Presidential election occurs, the 
        Administrator shall, to the maximum extent practicable, 
        enter into a memorandum of understanding with each 
        eligible candidate, which shall include, at a minimum, 
        the conditions of access to employees, facilities, and 
        documents of agencies by transition staff.
          (2) Existing resources.--To the maximum extent 
        practicable, a memorandum of understanding entered into 
        under paragraph (1) shall be based on memorandums of 
        understanding relating to previous Presidential 
        transitions.
          (3) Transition representative.--
                  (A) Designation of representative for 
                inquiries.--Each memorandum of understanding 
                entered into under this subsection shall 
                designate a representative of the eligible 
                candidate to whom the Administrator shall 
                direct any inquiries or legal instruments 
                regarding the records of the eligible candidate 
                that are in the custody of the Administrator.
                  (B) Change in transition representative.--The 
                designation of a new individual as the 
                transition representative of an eligible 
                candidate shall not require the execution of a 
                new memorandum of understanding under this 
                subsection.
                  (C) Termination of designation.--The 
                designation of a transition representative 
                under a memorandum of understanding shall 
                terminate--
                          (i) not later than 180 days after the 
                        date of the inauguration of the 
                        President-elect as President and the 
                        inauguration of the Vice-President-
                        elect as Vice President; or
                          (ii) before the date described in 
                        clause (i), upon the request of the 
                        President-elect or Vice-President-
                        elect, or after such inauguration upon 
                        request of the President or Vice 
                        President.
          (4) Amendments.--Any amendment to a memorandum of 
        understanding entered into under this subsection shall 
        be agreed to in writing.
          (5) Prior notification of deviation.--Each party to a 
        memorandum of understanding entered into under this 
        subsection shall provide written notice, except to the 
        extent prohibited under another provision of law, not 
        later than 3 days before taking any action that 
        deviates from the terms and conditions agreed to in the 
        memorandum of understanding.
          (6) Definition.--In this subsection, the term 
        ``eligible candidate'' has the meaning given that term 
        in subsection (h)(4).

SEC. 4. TRANSITION SERVICES AND ACTIVITIES BEFORE ELECTION.

    (a) * * *

           *       *       *       *       *       *       *

    (e)
          (1) * * *
          (2) * * *
          (3)
                  (A) * * *
                  (B) * * *
                  (C) a senior representative serving in a 
                career position from each agency described in 
                section 901(b)(1) of title 31, United States 
                Code, the Office of Personnel Management, the 
                Office of Government Ethics, and the National 
                Archives and Records Administration whose 
                responsibilities include leading Presidential 
                transition efforts within the agency;
                  (D) a senior representative serving in a 
                career position from any other agency 
                determined by the Co-Chairpersons to be an 
                agency that has significant responsibilities 
                relating to the Presidential transition 
                process; and

           *       *       *       *       *       *       *

    (f)
          (1) * * *
          [(2) Acting officers.--Not later than September 15 of 
        a year during which a Presidential election occurs, and 
        in accordance with subchapter III of chapter 33 of 
        title 5, United States Code, for each noncareer 
        position in an agency that the head of the agency 
        determines is critical, the head of the agency shall 
        designate a qualified career employee to serve in that 
        position in an acting capacity if the position becomes 
        vacant.] (2) Acting officers.--Not later than September 
        15 of a year during which a Presidential election 
        occurs, and in accordance with subchapter III of 
        chapter 33 of title 5, United States Code, the head of 
        each agency shall ensure that a succession plan is in 
        place for each senior noncareer position in the agency.

           *       *       *       *       *       *       *

                                  [all]
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