Architect of the Capitol: Evolution and Implementation of the Appointment Procedure
Released: 2018-11-29T00:00:00

T he Office of the Architect of the Capitol (AOC) is responsible "for the operations and care of more than 18.4 million square feet of facilities, 570 acres of grounds and thousands of works of art." This includes the House and Senate office buildings, the Capitol, the Capitol Visitor Center, the Library of Congress buildings, the Supreme Court building, the U.S. Botanic Garden, the Capitol Power Plant, and other facilities. The AOC carries out its bicameral, nonpartisan responsibilities using both its own staff and contracting authority for architectural, engineering, and other professional services.

Since 1989, the Architect has been filled through appointment by the President, with the advice and consent of the Senate, following the forwarding of recommendations to the President from a bicameral commission consisting of Members of Congress. The Architect is appointed for a 10-year term and may be reappointed.

The position was vacant for more than three years following the retirement of Alan Hantman on February 4, 2007. On February 24, 2010, President Barack Obama nominated Stephen T. Ayers, who had been serving in an acting capacity during the vacancy, to a 10-year term. The nomination was referred to the Senate Committee on Rules and Administration, which held a hearing on April 15, 2010. The Senators in attendance at the hearing praised Mr. Ayers and congratulated him on the nomination. Mr. Ayers was confirmed by voice vote in the Senate on May 12, 2010. Mr. Ayers announced his intention to retire on November 23, 2018.

Upon his retirement, Christine Merdon, the Deputy Architect of the Capitol/Chief Operating Officer, became the Acting Architect of the Capitol.

The appointment of the Architect has been a subject of periodic consideration for at least 60 years. It is a topic that has received increased attention during periods in which there has been a vacancy in the position and periods of congressional dissatisfaction with either the work of the incumbent or the involvement of the President in what some Members view as an internal legislative branch matter.

This report discusses the history of the selection of the Architect and recent legislation.

For additional information and a comparison of appointments in the legislative branch, see CRS Report R42072, Legislative Branch Agency Appointments: History, Processes, and Recent Actions , by Ida A. Brudnick.

Current Appointment Process

The Architect is "appointed by the President by and with the advice and consent of the Senate for a term of 10 years." This procedure was established by the Legislative Branch Appropriations Act, 1990, which also created a congressional commission responsible for recommending at least three individuals to the President for the position of Architect of the Capitol. The commission originally consisted of 10 Members (including the Speaker of the House of Representatives, the President pro tempore of the Senate, the majority and minority leaders o f the House of Representatives and the Senate, and the chairs and the ranking minority members of the Committee on House Administration of the House of Representatives and the Committee on Rules and Administration of the Senate).

In considering the FY1990 Legislative Branch Appropriations Act, the Senate Appropriations Committee proposed revising the process by having the President nominate the Architect for a 10-year term, subject to the advice and consent of the Senate. Previously, the position did not require Senate confirmation. In the report accompanying H.R. 3014 , the Senate Appropriations Committee stated the following:

These changes will conform the process of the appointment of the Architect more closely to the appointment procedure followed for other officers of similar stature. The Committee believes this will accord proper recognition to the importance of the functions of this office and help to promote greater accountability in their performance.

During the brief Senate debate on the provision, Senator Harry Reid, then-chairman of the Legislative Branch Appropriations Subcommittee, declared that the committee's amendment "better reflects the institutional status of the Architect as an officer of the legislative branch and should make the lines of accountability in the performance of his duties much less ambiguous." Senator Don Nickles, then-ranking member of the subcommittee, noted the fixed term of the Architect would be similar to that of the Comptroller General, who is appointed for a single 15-year term. The legislative history does not appear to indicate why the shorter term was chosen for the Architect.

In conference, House and Senate negotiators agreed to a compromise that reflected the absence in the Senate proposal of any formal role for the House in the selection of a future Architect. The compromise expanded the Senate's language by providing for a bicameral congressional advisory commission. The conference report does not provide additional information on this decision or any other options considered. The compromise was accepted in both houses without debate and the measure was signed into law on November 21, 1989.

The commission was expanded in 1995 to include the chairs and ranking minority members of the House and Senate Appropriations Committees.

A commission process is also used for filling vacancies in the position of Comptroller General, who leads the Government Accountability Office (GAO). The commission procedure for GAO, which also calls for a recommendation to the President of at least three individuals, was established in 1980.

Increasing Congressional Involvement in the Architect Appointment: Discussion Prior to the 1989 Act

Prior to 1989, the Architect was selected by the President for an unlimited term without any formal involvement of Congress. Paul Rundquist, congressional scholar and former specialist at the Congressional Research Service, noted in testimony before the Senate Rules and Administration Committee in 1996 that "the fact that the Architect of the Capitol was a congressional agent nominated by the President without confirmation by the Senate does not seem to have troubled Congress until recent years."

Bills related to the qualifications and appointment of the Architect have been periodically introduced since at least the 1950s; however, little action was taken on these proposals until the 1980s.

Appendix A provides information on these bills.

Bills proposing a new appointment process have taken various approaches. Two changes ultimately enacted include requiring the advice and consent of the Senate and establishing a commission to recommend names to the President.

Other bills proposed making the Architect a congressional appointee. These included proposals to make the Architect subject to a joint appointment by the Speaker and President pro tempore; alternating appointment between the Speaker and President pro tempore; and a commission of Members recommending candidates to the Speaker and President pro tempore, with ratification by the chambers.

The introduced bills also varyingly addressed the term of office, eligibility for reappointment, procedure for removal, and procedures following early vacancies.

Whereas some of these bills focused only on the Architect, many of the bills introduced from the early 1970s forward also addressed the appointment of the other presidential appointees in the legislative branch, including the Librarian of Congress, the Comptroller General and the Deputy Comptroller, and the Public Printer.

Questions have previously been raised about the authority of Congress to vest itself, or more specifically congressional leadership, with the power to appoint the Architect. These questions generally relate to whether the AOC's nonlegislative functions—including facility responsibilities for the Supreme Court and the Thurgood Marshall Federal Judiciary Building and membership on several nonlegislative governing or advisory bodies —make the Architect an "Officer of the United States" such that his or her appointment cannot be made by Congress consistent with the requirements of the Appointments Clause (Clause) of the Constitution. Under the Clause, "officers of the United States," defined primarily as officials that exercise "significant authority" in a "continuing" office, must either be appointed by the President with the advice and consent of the Senate, or, in the case of "inferior officers," by the "President alone, [] the Courts of Law, or [] the Heads of Departments."

Whether the functions and responsibilities exercised by a government official rise to the level of "significant authority" is not easily determined. Consistent with this ambiguity, it does not appear that Congress has adopted a uniform interpretation of the Clause's applicability to the Architect. Nonetheless, the executive branch has previously concluded that "functions simply involving the management of governmental property" are generally not considered significant for purposes of the Clause. Thus, to the extent that concerns over congressional appointment of the Architect relate to his management of nonlegislative property, it would appear that such functions may not, on their own, prevent Congress from choosing to retain the power of appointment for itself.

Legislation Introduced Since the 1989 Act to Change the Appointment Process

Since the enactment of the new procedure in 1989, a few bills have been introduced to change the process of appointing the Architect. These proposals would shift the Architect appointment responsibility from the President to specified Members of Congress. As with earlier bills, statements in the Congressional Record by bill sponsors have cited an interest in using the appointment process to protect the prerogatives of, and ensure accountability to, the legislative branch. Some discussions also have addressed the appropriate role of the House of Representatives, which does not play a formal role in the confirmation of presidential nominees.

The only change enacted since 1989, as stated above, occurred in 1995, when the commission charged with recommending names to the President expanded to include the chairs and ranking minority members of the House and Senate Appropriations Committees.

Table 1 compares the Members involved in appointment under current law and bills introduced since the 1989 act.

109th Congress (2005-2006)

During the 109 th Congress, one bill ( H.R. 4446 ) was introduced to establish a uniform appointment process and 10-year term of service for the Architect, the Comptroller General, and the Librarian of Congress. This proposal provided for joint appointment by four Members, including the Speaker, the majority leader of the Senate, and the minority leaders of the House of Representatives and Senate. No further action was taken.

110th Congress (2007-2008)

A bill ( H.R. 6656 ), which would provide for a 12-member congressional appointing panel, was introduced in the 110 th Congress and referred to two committees, although no further action was taken.

111th Congress (2009-2010)

In the 111 th Congress, two measures ( H.R. 2185 and H.R. 2843 ) were introduced to remove the President from the Architect appointment process and shift it to the congressional leaders and chairs and ranking members of specific congressional committees. Under both measures, the Architect would still be appointed for a 10-year term.

Under H.R. 2185 , which was introduced on April 30, 2009, and referred to the Committee on House Administration and Committee on Transportation and Infrastructure, the Architect would be appointed by a 12-member congressional appointing panel. No further action was taken during the 111 th Congress.

Under H.R. 2843 , as reported, the Architect would be appointed jointly by the same 14-member panel that currently is responsible for recommending candidates to the President. This bill was reported by the Committee on House Administration ( H.Rept. 111-372 ), and the Committee on Transportation and Infrastructure was discharged from further consideration of the bill. The House agreed to the bill, as amended to include 18 rather than 14 Members of Congress (see Table 1 ), by voice vote. It was received in the Senate and referred to the Committee on Rules and Administration, and no further action was taken during the 111 th Congress.

Options for Removal Under Proposed Congressional Appointment

The Legislative Branch Appropriations Act, 1990, which established the current appointment procedure, did not address the possibility of the removal of an Architect. The Architect, then, presumably serves at the pleasure of the President.

A few of the bills introduced over the last 50 years providing for appointment by Members of Congress have contained provisions specifically addressing removal. H.R. 8616 (94 th Congress) proposed that the Architect could be removed by concurrent resolution. S. 2205 (94 th Congress) provided for removal by resolution in either the House or Senate.

Statutes related to the selection of two legislative branch agency heads also address removal. Like the Architect of the Capitol, the Comptroller General (CG) is appointed by the President for a fixed term of office (for the CG, this term is 15 years) with the advice and consent of the Senate. The CG may be removed only by "(A) impeachment; or (B) joint resolution of Congress, after notice and an opportunity for a hearing" and only by reason of permanent disability; inefficiency; neglect of duty; malfeasance; or a felony or conduct involving moral turpitude. The Director of the Congressional Budget Office, who is appointed by the Speaker of the House of Representatives and the President pro tempore of the Senate after considering recommendations received from the Committees on the Budget of the House and the Senate, "may be removed by either House by resolution."

Filling the First Vacancy After the 1989 Act: 1995-1997

Following the decision of George White, who served as Architect from January 27, 1971, until November 21, 1995, not to seek reappointment under the new process, Alan Hantman was nominated under the new procedure to a 10-year term by President Clinton on January 6, 1997. Following a hearing on January 28, 1997, the Senate Committee on Rules and Administration favorably reported his nomination. Mr. Hantman was confirmed by the Senate by voice vote on January 30, 1997. Declining to seek reappointment, Mr. Hantman retired on February 4, 2007, and Stephen T. Ayers, then-Deputy Architect, began service as the Acting Architect of the Capitol.

Filling the Second Vacancy: 2007-2010

As discussed above, Mr. Ayers was confirmed and appointed as Architect three years later, in 2010. Between the announcement that Mr. Hantman would retire and the nomination and confirmation of Mr. Ayers, few congressional announcements were made regarding the status of the Architect vacancy and the submission of the recommendations to the President.

During a hearing on the FY2008 appropriations request on April 24, 2007, before the House Legislative Branch Appropriations Subcommittee, Acting Architect Stephen Ayers responded to a question about the status from ranking member Representative Zach Wamp:

I did speak to the [Senate] Rules Committee about the selection process…. They have told me that their executive recruiter is currently interviewing potential candidates, and I surmise that they would give them that list of potential candidates in a month or two. So that is about the extent of my knowledge of that.

Although the list of names was reportedly transmitted to President George W. Bush in summer 2007, the identity of the candidates was not publicly released by the commission.

In its activities report on the 110 th Congress (2007-2008), the Committee on House Administration summarized congressional actions and indicated concern about the current process:

Although the commission forwarded three candidates [to the President], complex circumstances prevented final selection and confirmation of the Architect. The Committee anticipates completion of the appointment process in the 111 th Congress, but in the meantime is reviewing whether the process is simply broken and requires new legislation.

The three-year period following the retirement of the former Architect was also noted in the February 3, 2010, debate in the House on passage of the H.R. 2843 (111 th Congress), the Architect of the Capitol Appointment Act . Mr. Ayers was confirmed by the Senate on May 12, 2010.

Evaluation of the Current Bicameral Congressional Commission Process in Choosing the Architect

The initial selection process, as well as the recent search for a successor, have raised a number of potential issues for consideration. These issues, which are discussed below, include the length of the commission's work and the potential for extended vacancies in the position; the operation of the commission; and what would happen in the event an incumbent seeks reappointment as Architect.

Time Frame for Filling a Vacancy

Although the commission may transmit names whenever there is a vacancy, it is not clear from either the statute or the legislative history exactly when the commission proceeds. The act does not address the possibility of the bicameral congressional commission beginning its work before an incumbent's departure. In addition, the statute is silent on any time frame for the commission's forwarding of recommendations following a retirement, presidential action on the commission's recommendation, or congressional action once a nomination has been received.

From the retirement of George White until the Senate confirmation of Alan Hantman, 436 days elapsed.

Some 1,193 days elapsed from the retirement of Alan Hantman until the Senate confirmation of his successor, Stephen T. Ayers. This period included a change in presidential Administration.

Internal Operations of the Commission

The statute provides no guidance on how the commission should operate. If the commission has rules of procedure or criteria for choosing potential nominees, they have not been made public nor would they be binding for a future selection. In comparison, the statute establishing a commission to recommend individuals to serve as Comptroller General similarly does not address commission procedure.

Questions about the commission remain regarding

who presides over its meetings; where and how meetings are called; how many members of the commission constitute a quorum; what constitutes agreement by Members of the commission regarding nominees, including whether nominees need approval of a majority or all of the Members; and how the commission receives administrative or financial support (i.e., any staffing expenses, travel expenses, or other expenses related to the search and evaluation of candidates).

When former Architect Alan Hantman was chosen, press reports were the only source of information that he was among the candidates whose names were forwarded to President Clinton for consideration. One press account indicated that "Hantman is the 'primary choice' of the 14-Members of Congress appointed to find the Capitol's tenth Architect." This same press account reported the following: "According to a letter from the chairman of the Senate Rules and Administration Committee Chairman John Warner (R-VA), Hantman was the first choice of the Members 'by a substantial margin.'" The account quotes an aide as reporting that "all 14 commission members voted either by ballot or proxy for the nominees," although the votes were not published.

As stated above, following Mr. Hantman's term of office, the commission reportedly forwarded a list of names to President George W. Bush in August 2007. President Bush did not forward a nomination to the Senate prior to the end of his term. This period also encompassed the end of the 110 th Congress, with resultant changes in membership of the commission at the start of the 111 th Congress. The 1989 act does not address a change in the membership of the commission while there is a vacancy in the position.

Process for the Reappointment of an Incumbent Architect

There are also unresolved questions should an incumbent Architect decide to seek reappointment under the current process established in 1989. It is not clear if or when the commission would form under this circumstance or if the incumbent Architect would need to be chosen again among at least two other potential candidates. Should the President choose not to reappoint the incumbent, it is unclear if formal notification would be required before the commission could begin its work or how this would be accomplished.

Discussion Regarding the Qualifications of the Architect

Many of the introduced bills and congressional hearings related to appointment have addressed the fact that not all of those who have held the position of Architect of the Capitol have been trained architects. Some proposed legislation in the 1950s and 1960s would have required all future nominees to be trained architects. Alternatively, at least one bill—introduced in 1968 during a period of congressional concern over plans for the expansion of the west front of the Capitol—sought to change the title of the office to "Superintendent of the Capitol Buildings and Grounds" to reflect the fact the then-Architect did not have this training.

When Architect White announced his retirement in 1995, concerns were voiced within Congress, the media, and professional groups about the necessary qualifications for any successor. There was considerable discussion about the necessity of the new Architect being a licensed architect and the type of professional management training and experience needed for the position.

The American Institute of Architects (AIA) expressed its preference for a licensed architect with experience in management, procurement, and historic restoration. In 1995, the AIA sent congressional leaders a list of nine potential Architect nominees for consideration. The following year, Raj Barr-Kumar, the president-elect and a fellow of the American Institute of Architects, described the process by which the AIA arrived at these names and qualifications and responsibilities it identified in a February 29, 1996, hearing of the Senate Rules and Administration Committee.

To fill the most recent Architect vacancy, the AIA again urged the selection of a licensed architect. Others, including some Members of Congress, emphasized a background in management because the job responsibilities, particularly with the opening of the Capitol Visitor Center, are broader than building design and construction and include some duties not necessarily associated with typical architectural practice.

Appendix A. Legislation to Alter the Architect of the Capitol Appointment Process

Appendix B. Architects of the Capitol Since 1793

Since 1793, 11 persons have held the position currently known as the Architect of the Capitol. Of these, two served for more than three decades and two others served for more than two decades.

As stated above, pursuant to the 1989 act, any subsequent appointments would be for a term of 10 years, with the possibility of reappointment.

Table B-1 lists the individuals who have served as Architect, including names, dates of service, and links to biographical information.