Presidential Appointments to Full-Time Positions in Independent and Other Agencies During the 110th Congress
Released: 2011-04-20T00:00:00

Introduction

This report explains the process for filling positions to which the President makes appointments with the advice and consent of the Senate (PAS positions). It also identifies, for the 110 th Congress, all nominations to full-time positions requiring Senate confirmation in 39 organizations in the executive branch (26 independent agencies, 6 agencies in the Executive Office of the President (EOP), and 7 multilateral banking organizations) and 4 agencies in the legislative branch. It excludes appointments to executive departments and to regulatory and other boards and commissions, which are covered in other reports.

A profile of each agency tracks the agency's nominations, providing information on Senate activity (confirmations, rejections, returns to the President, and elapsed time between nomination and confirmation) as well as further related presidential activity (including withdrawals and recess appointments). The profiles also identify, for each agency, positions requiring Senate confirmation, the incumbents in those positions as of the end of the 110 th Congress, and the pay levels of those officials.

The Appointments Process

The Constitution (Article II, Section 2) empowers the President to nominate and, by and with the advice and consent of the Senate, to appoint the principal officers of the United States, as well as some subordinate officers. Officers of the United States are those individuals serving in high-ranking positions that have been established by Congress and "exercising significant authority pursuant to the laws of the United States" (emphasis added).

Three distinct stages mark the appointment process: selection and nomination, confirmation, and appointment.

Selection, Clearance, and Nomination

In the first stage, the White House selects and clears a prospective appointee before sending a formal nomination to the Senate. There are a number of steps in this stage of the process for most Senate-confirmed positions. First, with the assistance of, and preliminary vetting by, the White House Office of Presidential Personnel, the President selects a candidate for the position. Members of Congress and interest groups sometimes recommend candidates for specific PAS positions. They may offer their suggestions by letter, for example, or by contact with a White House liaison. In general, the White House is under no obligation to follow such recommendations. In the case of the Senate, however, it has been argued that Senators are constitutionally entitled, by virtue of the advice and consent clause noted above, to provide advice to the President regarding his selection; the extent of this entitlement is a matter of some debate. As a practical matter, in instances where Senators perceive insufficient pre-nomination consultation has occurred, they have sometimes exercised their procedural prerogatives to delay or even effectively block consideration of a nomination.

During the clearance process, the candidate prepares and submits several forms, including the "Public Financial Disclosure Report" (Standard Form (SF) 278), the "Questionnaire for National Security Positions" (SF 86), and the White House "Personal Data Statement Questionnaire." The Office of the Counsel to the President oversees the clearance process, which often includes background investigations conducted by the Federal Bureau of Investigation (FBI), Internal Revenue Service (IRS), Office of Government Ethics (OGE), and an ethics official for the agency to which the candidate is to be appointed. If conflicts of interest are found during the background investigation, OGE and the agency ethics officer may work with the candidate to mitigate the conflicts. Once the Office of the Counsel to the President has cleared the candidate, the nomination is ready to be submitted to the Senate.

The selection and clearance stage has often been the longest part of the appointment process. There have been, at times, lengthy delays, particularly when many candidates have been processed simultaneously, such as at the beginning of an Administration, or where conflicts needed to be resolved. Candidates for higher-level positions have often been accorded priority in this process. At the end of 2004, in an effort to reduce the elapsed time between a new President's inauguration and the appointment of his or her national security team, Congress enacted amendments to the Presidential Transition Act of 1963. These amendments encourage a President-elect to submit, for security clearance, potential nominees to high-level national security positions as soon as possible after the election. A separate provision of law, enacted as part of the Federal Vacancies Reform Act of 1998, lengthens, during presidential transitions, the potential duration of a temporary appointment by 90 days. Although this provision might give some additional flexibility to an incoming President, it might also lengthen the appointment process for some positions by, in effect, extending the deadline by which a permanent appointment must be completed.

For positions located within a state (U.S. attorney, U.S. marshal, and U.S. district judge), the President, by custom, normally nominates an individual recommended by one or both Senators (if they are from the same party as the President) from that state. If neither Senator is from the President's party, he usually defers to the recommendations of party leaders from the state. Occasionally, the President solicits recommendations from Senators of the opposition party because of their positions in the Senate. Before making a nomination to a federal position at the state or national level, the President would likely consider how it will fare in the confirmation process.

If circumstances permit and conditions are met, the President could give the nominee a recess appointment to the position (see section entitled " Recess Appointments " below). Recess appointments have sometimes had political consequences, however, particularly where Senators perceived that such an appointment was an effort to circumvent their constitutional role. Some Senate-confirmed positions may also be temporarily filled under the Vacancies Act.

A nominee has no legal authority to assume the duties and responsibilities of the position; a nominee who is hired by the agency as a consultant while awaiting confirmation may serve only in an advisory capacity. Authority to act comes once there is Senate confirmation and presidential appointment, or if another method of appointment, such as a recess appointment or a temporary appointment, is utilized. (For further information on these methods, see section entitled " Recess Appointments " and " Temporary Appointments " below.)

Senate Consideration

In the second stage, the Senate alone determines whether or not to confirm a nomination. The Senate's scrutiny of a nomination has depended largely on the importance of the position involved, existing political circumstances, and policy implications. Generally, the Senate has shown particular interest in the nominee's views and how they are likely to affect public policy. Two other factors have sometimes affected the examination of a nominee's personal and professional qualities: whether the President's party controlled the Senate, and the degree to which the President became involved in supporting the nomination.

Much of the Senate confirmation process occurs at the committee level. Administratively, nominations are received by the Senate executive clerk, who arranges for the referral of the nominations to committee, according to the Senate rules and precedents. Committee nomination activity has generally included investigation, hearing, and reporting stages. As part of investigatory work, committees have drawn on information provided by the White House, as well as information they themselves have collected. Some committees have held hearings on nearly all nominations; others have held hearings for only some. Hearings provide a public forum to discuss a nomination and any issues related to the program or agency for which the nominee would be responsible. Even where confirmation has been thought by most to be a virtual certainty, hearings have provided Senators and the nominee with opportunities to go on the record with particular views or commitments. Senators have used hearings to explore nominees' qualifications, articulate policy perspectives, or raise related oversight issues.

A committee may decline to act on a nomination at any point—upon referral, after investigation, or after a hearing. If the committee votes to report a nomination to the full Senate, it has three options: it may report the nomination favorably, unfavorably, or without recommendation. A failure to obtain a majority on the motion to report means the nomination will not be reported to the Senate. If the committee declines to report a nomination, the Senate may, under certain circumstances, discharge the committee from further consideration of the nomination in order to bring it to the floor.

The Senate historically has confirmed most, but not all, executive nominations. Rarely, however, has a vote to confirm a nomination failed on the Senate floor. Usually, unsuccessful nominations fail to be reported or discharged from committee. Failure of a nomination to make it out of committee has occurred for a variety of reasons, including opposition to the nomination, inadequate amount of time for consideration of the nomination, or factors that may not be directly related to the merits of the nomination.

Senate rules provide that "[n]ominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President." In practice, such pending nominations have been returned to the President at the end of the session or Congress. Pending nominations also may be returned automatically to the President at the beginning of a recess of more than 30 days, but the Senate rule providing for this return is often waived.

Appointment

In the final stage, the confirmed nominee is given a commission, which bears the Great Seal of the United States and is signed by the President, and is sworn into office. The President may sign the commission at any time after confirmation, at which point the appointment becomes official. Once the appointee is given the commission and sworn in, he or she has full authority to carry out the responsibilities of the office.

Recess Appointments

The Constitution also empowers the President to make a limited-term appointment without Senate confirmation when the Senate is in recess, either during a session (intrasession recess appointment) or between sessions (intersession recess appointment). Recess appointments expire at the end of the following session of Congress. Appendix D provides a table showing the dates of the Senate recesses for the 110 th Congress and the number of recess appointments during each recess.

Presidents have occasionally used the recess appointment power to circumvent the confirmation process. In response, Congress has enacted provisions that restrict the pay of recess appointees under certain circumstances. Because most potential appointees to full-time positions cannot serve without a salary, the President has an incentive to use his recess appointment authority in ways that allow them to be paid. Under the provisions, if the position falls vacant while the Senate is in session and the President fills it by recess appointment, the appointee may not be paid from the Treasury until he or she is confirmed by the Senate. However, the salary prohibition does not apply

(1) if the vacancy arose within 30 days before the end of the session of the Senate;

(2) if, at the end of the session, a nomination for the office, other than the nomination of an individual appointed during the preceding recess of the Senate, was pending before the Senate for its advice and consent; or

(3) if a nomination for the office was rejected by the Senate within 30 days before the end of the session and an individual other than the one whose nomination was rejected thereafter receives a recess appointment.

A recess appointment falling under any one of these three exceptions must be followed by a nomination to the position not later than 40 days after the beginning of the next session of the Senate. For this reason, when a recess appointment is made, the President generally submits a new nomination for the nominee even when an old nomination is pending. These provisions have been interpreted by the Department of Justice to preclude payment of an appointee who is given successive recess appointments to the same position.

Although recess appointees whose nominations to a full term are subsequently rejected by the Senate may continue to serve until the end of their recess appointment, a provision of the FY2008 Financial Services and General Government Appropriations Act that is still in effect today may prevent them from being paid after their rejection. The provision reads, "Hereafter, no part of any appropriation contained in this or any other Act shall be paid to any person for the filling of any position for which he or she has been nominated after the Senate has voted not to approve the nomination of said person." Prior to this provision, similar wording was included in annual funding measures for most or all of the previous 50 years.

Another recent congressional response to the President's use of recess appointments was the decision, during the latter part of the first session of the 110 th Congress, to restructure the Senate's longer recesses into a series of shorter recesses divided by pro forma sessions. Premised on the notion that the President can be restricted from making recess appointments during a recess that is no more than three days, the Senate sought to prevent recess appointments by holding pro forma sessions approximately every three days. Beginning in November 2007, the Senate agreed to regularly scheduled pro forma sessions during periods that would have otherwise been recesses of duration of a week or longer. The Senate recessed on November 16, and pro forma meetings were convened on November 20, 23, 27, and 29, with no business conducted. The Senate reconvened and conducted business beginning on December 3, 2007. Similar procedures were followed for the remainder of the 110 th Congress during other periods that would otherwise have been Senate recesses of at least a week in duration. During the remainder of his presidency, President Bush made no additional recess appointments.

Temporary Appointments

Congress has provided limited statutory authority for the temporary filling of vacant positions requiring Senate confirmation. Under the Federal Vacancies Reform Act of 1998, when an executive agency position requiring confirmation becomes vacant, it may be filled temporarily in one of three ways: (1) the first assistant to such a position may automatically assume the functions and duties of the office; (2) the President may direct an officer in any agency who is occupying a position requiring Senate confirmation to perform those tasks; or (3) the President may select any officer or employee of the subject agency who is occupying a position for which the rate of pay is equal to or greater than the minimum rate of pay at the GS-15 level and who has been with the agency for at least 90 of the preceding 365 days. The temporary appointment is for 210 days, but the time restriction is suspended if a first or second nomination for the position is pending. In addition, during a presidential transition, the 210-day restriction period does not begin until either 90 days after the President assumes office, or 90 days after the vacancy occurs, if it is within the 90-day inauguration period. The act does not apply to positions on multi-headed regulatory boards and commissions or to certain other specific positions which may be filled temporarily under other statutory provisions.

Appointments During the 110th Congress

During the 110 th Congress, President George W. Bush submitted to the Senate 52 nominations to full-time positions in independent and other agencies. Of these nominations, 27 were confirmed, 16 were returned to the President, and 9 were withdrawn. The President made two recess appointments during this period to positions in organizations covered in this report. Each recess appointment was followed by a nomination which is included in the total of 52 nominations. These recess appointments expired at the end of the second session of the 110 th Congress. Table 1 summarizes the appointment activity.

Average Time to Confirm a Nomination

The length of time a given nomination may be pending in the Senate varies widely. Some nominations are confirmed within a few days, others may not be confirmed for several months, and some are never confirmed. This report provides, for each independent agency nomination confirmed in the 110 th Congress, the number of days between nomination and confirmation ("days to confirm"). The mean (average) number of days taken by the Senate to confirm a nomination to a position covered by this report was 110. The median number of days taken by the Senate was 113.

The methodology used in this report to count the length of time between nomination and confirmation differs from that which was used in previous similar CRS reports. The statistics presented here include the days during which the Senate was adjourned for its summer recesses and between sessions of Congress. The methodological change reduces the direct comparability of statistics in this report with those of the earlier research. Reasons for the change include the conversion of traditionally long recesses into a series of short recesses punctuated by pro forma sessions during the 110 th Congress; the fact that although committees may not be taking direct action on nominations in the form of hearings or votes, they are likely still considering and processing nominations during recesses; and a desire to be consistent with the methodology used by many political scientists, as well as CRS research on judicial nominations. In addition, an argument could be made that the decision to extend Senate consideration of nominees over the course of a recess is intentional, and the choice to extend this length of time is better represented by including all days, including long recesses. A more detailed explanation of this methodological change is located in Appendix E .

Organization of This Report

Agency Profiles

The agency profiles provide data on presidential nominations and appointments to full-time positions requiring Senate confirmation, and Senate action on the nominations. Data on appointment actions during the 110 th Congress appear in two tables for each agency, "Full-time PAS Positions, as of the End of the 110 th Congress" and "Nomination Action During 110 th Congress." As noted, some agencies had no nomination activity during this period of time.

The first of these two tables identifies, as of the end of the 110 th Congress, each full-time PAS position in the department, its incumbent, and its pay level. For most presidentially appointed positions requiring Senate confirmation, the pay levels fall under the Executive Schedule, which, as of January 2009, ranged from level I ($196,700) for Cabinet-level offices to level V ($143,500) for the lowest-ranked positions. An incumbent's name followed by "(A)" indicates an official who was, at that time, serving in an acting capacity. Vacancies are also noted in the first table.

The nomination action table provides, in chronological order, information concerning each nomination. It shows the name of the nominee, position involved, date of nomination, date of confirmation, and number of days between receipt of a nomination and confirmation. As discussed earlier (see " Average Time to Confirm a Nomination ," above), the numbers of days shown in the tables in this report include days during the longer recesses around August and between sessions of Congress. Some nominees identified in this report were nominated more than once for the same position. This may have been because a nomination was returned to the President and he submitted a new nomination, or because he submitted a nomination following a recess appointment. The nomination action tables also provide information about recess appointments. When a nominee is awaiting Senate action and he or she is given a recess appointment, a follow-up nomination is usually submitted to comply with the requirements of 5 U.S.C. § 5503(b) (see section entitled " Recess Appointments ," above).

The nomination tables that have more than one nominee to a position also give statistics on the length of time between nomination and confirmation. Each nomination action table provides the average "days to confirm" in two ways: mean and median. Both are presented because the mean can be influenced by outliers in the data, while the median does not tend to be influenced by outliers. In other words, a nomination that took an extraordinarily long time might cause a significant change in the mean, but the median would be unaffected. Presenting both numbers is a better way to look at the central tendency of the data.

Additional Appointment Information

Appendix A presents a table of all nominations and recess appointments to positions in independent and other agencies, organized alphabetically by last name and following a similar format to that of the nomination action tables. It identifies the agency involved and the dates of nomination. The table indicates if and when a nomination was confirmed, withdrawn, or returned. The mean and median numbers of days taken to confirm a nomination are also provided.

Appendix B provides a table with summary information on appointments and nominations by four agency categories: independent executive agencies, agencies in the Executive Office of the President (EOP), multilateral banking organizations, and agencies in the legislative branch. For each of these categories, the table provides the number of positions, nominations, individual nominees, confirmations, nominations returned, and nominations withdrawn. The table also provides, for each of the four categories, the mean and median number of days to confirm a nomination.

Appendix C provides a list of department abbreviations.

Information on the Senate's recesses and when recess appointments occurred can be found in Appendix D .

As noted above, this report employs certain methods that differ from reports tracking appointments during previous Congresses. These methodological changes are explained in detail in Appendix E .

Nominations and Incumbents: Full-Time Positions in Independent Agencies

Appalachian Regional Commission (ARC)

No ARC Nomination Action During the 110th Congress

Broadcasting Board of Governors (BBG)

No BBG Nomination Action for Full-time Positions During the 110th Congress

Central Intelligence Agency (CIA)

Corporation for National and Community Service (CNCS)

No CNCS Nomination Action During the 110th Congress

Court Services and Offender Supervision Agency to the District of Columbia (CSOSA)

Delta Regional Authority (DRA)

No DRA Nomination Action During the 110th Congress

Environmental Protection Agency (EPA)

Federal Mediation and Conciliation Service (FMCS)

No FMCS Nomination Action During the 110th Congress

General Services Administration (GSA)

Millennium Challenge Corporation (MCC)

No MCC Nomination Action During the 110th Congress

National Aeronautics and Space Administration (NASA)

National Archives and Records Administration (NARA)

No NARA Nomination Action During the 110th Congress

National Foundation on the Arts and Humanities (NFAH)

No NFAH Nomination Action for Full-time Positions During the 110th Congress

National Science Foundation (NSF)

No NSF Nomination Action for Full-time Positions During the 110th Congress

Office of the Director of National Intelligence (ODNI)

Office of Government Ethics (OGE)

No OGE Nomination Action During the 110th Congress

Office of Navajo and Hopi Indian Relocation (ONHIR)

No ONHIR Nomination Action During the 110th Congress

Office of Personnel Management (OPM)

Office of Special Counsel (OSC)

No OSC Nomination Action During the 110th Congress

Overseas Private Investment Corporation (OPIC)

Peace Corps (PC)

No PC Nomination Action During the 110th Congress

Selective Service System (SSS)

No SSS Nomination Action During the 110th Congress

Small Business Administration (SBA)

Social Security Administration (SSA)

Trade and Development Agency (TDA)

U.S. Agency for International Development (USAID)

Nominations and Incumbents: Full-Time Positions in the Executive Office of the President

Council of Economic Advisers (CEA)

Council on Environmental Quality (CEQ)

No CEQ Nomination Action During the 110th Congress

Office of Management and Budget (OMB)

Office of National Drug Control Policy (ONDCP)

Office of Science and Technology Policy (OSTP)

No OSTP Nomination Action During the 110th Congress

Office of the U.S. Trade Representative (OUSTR)

Nominations and Incumbents: Full-Time Positions in Multilateral Organizations

African Development Bank (AfDB)

Asian Development Bank (AsDB)

European Bank for Reconstruction and Development (EBRD)

Inter-American Development Bank (IADB)

International Bank for Reconstruction and Development (World Bank) (IBRD)

International Joint Commission, U.S. and Canada (IJC)

International Monetary Fund (IMF)

Nominations and Incumbents: Full-Time Positions in Legislative Branch Agencies

Architect of the Capitol (AOC)

No AOC Nomination Action During the 110th Congress

Government Accountability Office (GAO)

No GAO Nomination Action During the 110th Congress

Government Printing Office (GPO)

Library of Congress (LOC)

No LOC Nomination Action During the 110th Congress

Appendix A. Summary of All Nominations and Appointments to Independent and Other Agencies

Appendix B. Nomination Action by Agency Type, 110 th Congress

Appendix C. Agency Abbreviations

Independent Agencies

ARC—Appalachian Regional Commission

BBG—Broadcasting Board of Governors

CIA—Central Intelligence Agency

CNCS—Corporation for National and Community Service

CSOSA—Court Services and Offender Supervision Agency for the District of Columbia

DRA—Delta Regional Authority

EPA—Environmental Protection Agency

FMCS—Federal Mediation and Conciliation Service

GSA—General Services Administration

MCC—Millennium Challenge Corporation

NARA—National Archives and Records Administration

NASA—National Aeronautics and Space Administration

NFAH—National Foundation on the Arts and Humanities

NSF—National Science Foundation

ODNI—Office of the Director of National Intelligence

OGE—Office of Government Ethics

ONHIR—Office of Navajo and Hopi Indian Relocation

OPIC—Overseas Private Investment Corporation

OPM—Office of Personnel Management

OSC—Office of Special Counsel

PC—Peace Corps

SBA—Small Business Administration

SSA—Social Security Administration

SSS—Selective Service System

TDA—Trade Development Agency

USAID—United States Agency for International Development

Executive Office of the President (EOP)

CEA—Council of Economic Advisers

CEQ—Council on Environmental Quality

OMB—Office of Management and Budget

ONDCP—Office of National Drug Control Policy

OSTP—Office of Science and Technology Policy

OUSTR—Office of U.S. Trade Representative

Multilateral Banking Organizations

AfDB—African Development Bank

AsDB—Asian Development Bank

EBRD—European Bank for Reconstruction and Development

IADB—Inter-American Development Bank

IBRD—International Bank for Reconstruction and Development

IJC—International Joint Commission, U.S. and Canada

IMF—International Monetary Fund

Legislative Branch Agencies

AC—Architect of the Capitol

GAO—Government Accountability Office

GPO—Government Printing Office

LC—Library of Congress

Appendix D. Senate Intersession Recesses and Intrasession Recesses of Four or More Days, 110 th Congress

Appendix E. Change in Methodology from Previous Tracking Reports

The calculations of nomination-to-confirmation intervals provided in this report counted all the days within the interval, including those during summer recesses and between sessions of the Senate. The inclusion of all days differs from the methodology used in similar CRS reports for previous Congresses. In these earlier reports, days during August and intersession recesses were not included in calculations of nomination-to-confirmation intervals. The rationale for the earlier methodology was that the Senate was unlikely to continue consideration of nominations during these periods; committee hearings and votes, among other activities, typically do not occur during these times. The exclusion of days during only certain periods of adjournment—intersession recesses and August recesses, which are usually longer than 30 days—is suggested by Senate rules regarding when nominations are to be returned to the President. These provide:

Nominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President; and if the Senate shall adjourn or take recess for more than thirty days, all nominations pending and not finally acted upon at the time of taking such adjournment or recess shall be returned by the Secretary to the President.

This earlier methodology was also consistent with the approach of some political scientists who study executive branch appointments.

The methodology for this report is different from that which was used in previous similar reports for several reasons. First, as discussed above in the section on recess appointments, from the latter part of the first session through the end of the 110 th Congress, the Senate chose to break up what would otherwise have been longer recesses into shorter recesses separated by pro forma sessions. This introduced two options for this report with regard to the calculation of nomination-to-confirmation intervals. The first option would have been to treat each series of short recesses created in this fashion as one long recess and to subtract these days from the nomination-to-confirmation interval. The second option would have been to treat each recess in the series of short recesses created in this fashion as a short recess, and not to subtract these days from the nomination-to-confirmation interval. Arguably, the Senate and President actions were consistent with the latter construction—short recesses as short recesses. Otherwise, Senate rules would have required the return of pending nominations (or the waiver of that rule) and the President could have made recess appointments. The Senate and the President did not take these actions. As a result, short recesses created by pro forma sessions are treated as short recesses in the count of the length of time to confirmation. It should be noted, however, that the inclusion of these days reduces the comparability of statistics provided in this report with statistics in previous similar tracking reports, since the intervals calculated in this report include days that, in previous reports, were part of longer recesses and therefore were subtracted from the length of the interval. Although the phenomenon underlying this methodological problem first arose during the 110 th Congress, it could arise again in future Congresses.

Other reasons for the methodological change are not unique to the 110 th Congress. First, in some cases, committee or floor action on a nomination that could have been completed before a recess has been, instead, deferred until after the recess. For such a nomination, the period of Senate consideration arguably has been intentionally extended. Counting all days, including those during a long recess, in calculations of elapsed time reflects that extension of Senate consideration. Second, it is unlikely that all work pertaining to nominations stops over a recess, and the inclusion of recess days is a reflection of the fact that the nominee is still under consideration, even during recess. Member and committee staffs may still be considering nominations at that time, even though they may not take direct action in the form of hearings or votes on the nominees. Ongoing activities may include investigatory work and interviews with nominees. Finally, although, as mentioned above, some political scientists who study nominations do subtract recess days during calculations of nomination-to-confirmation intervals, many others do not. In addition, the calculation of nomination-to-confirmation intervals in CRS research concerning judicial nominations does not exclude days that fall during recesses. By using methodology that is more similar to the work of other political scientists and to CRS judicial nominations research, the research presented here could be more easily compared and combined with related work. For all of these reasons, in this report, we employ a new methodology for calculating nomination-to-confirmation intervals.