Presidential Appointments to Full-Time Positions in Independent and Other Agencies During the 108th Congress
Released: 2005-05-05T00:00:00

Introduction

This report provides an overview of 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 108 th Congress, all nominations to full-time positions requiring Senate confirmation in 38 organizations in the executive branch (25 independent agencies, six agencies in the Executive Office of the President (EOP), and seven multilateral banking organizations) and four 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. The Federal Emergency Management Agency, formerly an independent agency covered by earlier versions of this report, became part of the Department of Homeland Security when that department was established in 2003; it is not covered by this report. Another government organization, the Millennium Challenge Corporation, came into existence early in the 108 th Congress after it was established by the Millennium Challenge Act of 2003.

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 January 3, 2005, dates they were confirmed, dates their terms expire, if applicable, and pay levels.

The Appointments Process

The President and the Senate share the power to appoint the principal officers of the United States. 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. Three distinct stages mark the appointment process—selection and nomination, confirmation, and appointment.

Selection, Clearance, and Nomination

In this stage, the White House selects and clears a nominee before sending the 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. Interested parties, including Members of Congress, may have input during this process.

During the clearance process, the candidate prepares and submits several forms: 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 are found during the background check, 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 is often the longest part of the appointment process. There can be lengthy delays, particularly if many candidates are being processed, as at the beginning of an Administration, or if conflicts need to be resolved. Candidates for higher-level positions are often accorded priority in this process. In an effort to reduce the elapsed time between a new President's inauguration and the appointment of his or her national security team, recent amendments to the Presidential Transitions Act of 1963 encourage Presidents-elect to submit, for security clearance, potential nominees to high-level national security positions as soon as possible after the election.

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 the Senator or 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.

A nominee has no legal authority to assume the duties and responsibilities of the position; the authority comes with Senate confirmation and presidential appointment. A nominee who is hired by the agency as a consultant while awaiting confirmation may serve only in an advisory capacity. If circumstances permit and conditions are met, the President may give the nominee a recess appointment to the position (see below). Recess appointments may have political consequences, however, particularly if Senators perceive that an appointment is an effort to circumvent their constitutional role. Some Senate-confirmed positions, such as many of those in the executive departments, may also be temporarily filled under the Vacancies Act.

Senate Consideration

In the confirmation or second stage, the Senate alone determines whether or not to confirm a nomination. The way the Senate acts on a nomination depends largely on the importance of the position involved, existing political circumstances, and policy implications. Generally, the Senate shows particular interest in the nominees' views and how they are likely to affect public policy. Two other factors may also affect the scrutiny with which a nominee's personal and professional qualities are examined: whether or not the President's party controls the Senate and the degree to which the President becomes involved in supporting the nomination.

The Senate confirmation process is centered at the committee level. Committee nomination activity generally includes investigation, hearing, and reporting stages. As part of investigatory work, committees may draw on information provided by the White House as well as information collected by the committees. 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 if confirmation is thought to be a virtual certainty, hearings may provide Senators and the nominee with an opportunity to go on the record with particular views or commitments. Senators may use hearings to explore a nominee's qualifications, articulate a policy perspective, or raise related oversight issues. Some committees hold hearings on nearly all nominations; others hold hearings for only some.

The committee may discontinue acting on a nomination at any point—upon referral, after investigation, or after a hearing. If the committee votes to report the nomination back to the full Senate, it has three options: it may report the nomination to the Senate favorably, unfavorably, or without recommendation. If the committee elects not 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.

Although the Senate confirms most nominations, some are not confirmed. Rarely, however, does a rejection occur on the Senate floor. Nearly all rejections occur in committee, either by committee vote or by committee inaction. Rejections in committee occur for a variety of reasons, including opposition to the nomination, an inadequate amount of time for consideration of the nomination, or factors that may have nothing to do with the merits of the nomination. If a nomination is not acted upon by the Senate by the end of a Congress, it is returned to the President. Pending nominations also may be returned automatically to the President at the beginning of a recess of 30 days or longer, but the Senate rule providing for this return is often waived.

Appointment

In the final stage, the confirmed nominee is given a commission signed by the President, with the seal of the United States affixed thereto, and is sworn into office. The President may sign the commission at any time after confirmation. 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 enables the President to make an 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 C provides a table showing the dates of the Senate recesses for the 108 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 placed restrictions on the President's authority to make a recess appointment. Under 5 U.S.C. § 5503(a), if the position to which the President makes a recess appointment falls vacant while the Senate is in session, the recess appointee may not be paid from the Treasury until he or she is confirmed by the Senate. The salary prohibition does not apply (1) if the vacancy arose within 30 days before the end of the session; (2) if a nomination for the office (other than the nomination of someone given a recess appointment during the preceding recess) was pending when the Senate recessed; or (3) if a nomination was rejected within 30 days before the end of the session and another individual was given the 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. In addition, 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 Treasury and General Government Appropriations Act may prevent them from being paid after their rejection.

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 108th Congress

During the 108 th Congress, President George W. Bush submitted to the Senate 40 nominations to full-time positions in independent and other agencies. Of these nominations, 31 were confirmed and nine were returned to the President; none were withdrawn. The President made four recess appointments during this period to positions in organizations covered in this report (the Environmental Protection Agency and the U.S. Agency for International Development). Two of these appointments occurred during the 2004 Memorial Day recess and two during the 2004 August recess. All four of these recess appointments would have expired at the end of the first session of the 109 th Congress. Before this time, the Senate confirmed nominations of each of these four appointees to their respective positions. 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 108 th Congress, the number of days between nomination and confirmation ("days to confirm"). These counts exclude days during August recesses and between sessions of Congress. This cutoff point is suggested by the Senate rules, which provide that, "if the Senate shall adjourn or take recess for more than thirty days, all nominations pending and not finally acted upon" shall be returned to the President, although this rule is often waived. The 31 days during the August 2003 recess, the 41 days between the first and second sessions of the 108 th Congress, and the 46 days during the August 2004 recess were subtracted from the "days to confirm" for those nominations that spanned one or more recesses. Although it also exceeded 30 days, no days were subtracted for a 35-day recess during October and November 2004 in order to maintain consistency with similar reports for previous Congresses.

The mean (average) number of days taken by the Senate to confirm a nomination to a position covered by this report was 114. Of the 31 confirmed nominations, 20 were confirmed in less than this amount of time, and 11 took longer. The median number of days taken by the Senate was 77. The duration of the confirmation process varied considerably, with eight taking 60 days or less, and four taking longer than 250 days. The shortest confirmation, of Porter J. Goss to be Director of the Central Intelligence Agency, took 15 days, while the longest confirmation, of William A. Chatfield to be Director of the Selective Service System, took 358 days.

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 108 th Congress appear in two tables for each agency, "Appointment Action During 108 th Congress" and "Positions and Incumbents in Department as of January 3, 2005." As noted, some agencies had no appointment activity during this period of time.

The appointment action table provides, in chronological order, information concerning each nomination. It shows the name of the nominee, position involved, date of nomination or appointment, 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 exclude days during the longer recesses around August and between sessions of Congress. Actions other than confirmation (i.e., nominations rejected by the Senate and nominations returned to, or withdrawn by, the President) are also noted. Some nominees identified in this report were nominated more than once for the same position because of a recess appointment. When a nominee is awaiting Senate action and he or she is given a recess appointment, a second, follow-up, nomination is usually submitted to comply with the requirements of 5 U.S.C. § 5503(b) (see " Recess Appointments ," above).

In tables that show more than one confirmed nomination, the mean number of days to confirm a nomination is provided. This figure is determined by calculating the number of days between the nomination and confirmation dates, adding these numbers for all confirmed nominations, and dividing the result by the number of nominations confirmed.

The second table of each profile identifies the agency's full-time positions requiring Senate confirmation and the incumbents in those positions as of January 3, 2005. An incumbent's name followed by "(A)" indicates an official who is serving in an acting capacity. A blank space indicates that either the position is vacant or current information about the position-holder was not available from the agency. The table also includes the pay level for each position. For presidentially appointed positions requiring Senate confirmation, the pay levels generally fall under the Executive Schedule, which ranges from Level I ($180,100) for cabinet level offices to Level V ($131,400) for the lowest-ranked positions.

Additional Appointment Information

Appendix A presents a table of all nominations to positions in all of the organizations covered by this report, alphabetically organized and following a similar format to that of the agency appointment action tables. It identifies the agency involved and the dates of nomination and confirmation. The table also indicates if a nomination was confirmed, withdrawn, or returned, or if a recess appointment was made. The mean number of days taken to confirm a nomination is calculated as described above. The table also shows the median, which is the middle number when the "days to confirm" data for all the confirmed nominations are arranged in numerical order.

Appendix B provides a table with summary information on appointments and nominations by four agency categories: independent executive agencies, agencies in the 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 number of days to confirm a nomination.

Appendix C provides a list of department abbreviations.

NOMINATIONS AND INCUMBENTS: FULL-TIME POSITIONS IN INDEPENDENT AGENCIES

Appalachian Regional Commission

Broadcasting Board of Governors

Central Intelligence Agency/ Intelligence Community

Corporation for National and Community Service

Court Services and Offender Supervision Agency to the District of Columbia

Delta Regional Authority

Environmental Protection Agency

Federal Mediation and Conciliation Service

General Services Administration

Millennium Challenge Corporation

National Aeronautics and Space Administration

National Archives and Records Administration

National Foundation on the Arts and Humanities

National Science Foundation

Office of Government Ethics

Office of Navajo and Hopi Indian Relocation

Office of Personnel Management

Office of Special Counsel

Overseas Private Investment Corporation

Peace Corps

Selective Service System

Small Business Administration

Social Security Administration

Trade and Development Agency

U.S. Agency for International Development

NOMINATIONS AND INCUMBENTS: FULL-TIME POSITIONS IN THE EXECUTIVE OFFICE OF THE PRESIDENT

Council of Economic Advisers

Council on Environmental Quality

Office of Management and Budget

Office of National Drug Control Policy

Office of Science and Technology Policy

Office of the U.S. Trade Representative

NOMINATIONS AND INCUMBENTS: FULL-TIME POSITIONS IN MULTILATERAL ORGANIZATIONS

African Development Bank

Asian Development Bank

European Bank for Reconstruction and Development

Inter-American Development Bank

International Bank for Reconstruction and Development (World Bank)

International Joint Commission, U.S. and Canada

International Monetary Fund

NOMINATIONS AND INCUMBENTS: FULL-TIME POSITIONS IN LEGISLATIVE BRANCH AGENCIES

Architect of the Capitol

Government Accountability Office

Government Printing Office

Library of Congress

Appendix A. Alphabetical Listing of Nominees and Appointees, January 3, 2003 -January 3, 2005

Appendix B. Appointment Action During the 108 th Congress, by Agency Grouping

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

FEMA—Federal Emergency Management 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

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