The Appropriate Number of Advice and Consent Positions: An Analysis of the Issue and Proposals for Change
CRS Report for Congress
The Appropriate Number of
Advice and Consent Positions:
An Analysis of the Issue and
Proposals for Change
Updated March 14, 2005
Henry B. Hogue
Analyst in American National Government
Government and Finance Division
Congressional Research Service ˜ The Library of Congress
The Appropriate Number of
Advice and Consent Positions:
An Analysis of the Issue and Proposals for Change
This report provides background information and analysis of issues concerning
possible congressional action to reduce the number of positions to which the
President makes appointments with the advice and consent of the Senate (PAS
positions). Among other topics, the report discusses the constitutional framework that
guides congressional action in this area, identifies potential congressional options,
and analyzes associated institutional and political considerations.
The Constitution provides Congress with considerable discretion over which
officers of the United States will be in PAS positions, and which may be appointed
by the President alone, the courts, or agency heads. At present, more than 2,000
high-level officials across the three branches are appointed by the President with the
advice and consent of the Senate. The appointment process includes presidential
selection and nomination, Senate consideration, and formal presidential appointment.
In general, the number of PAS positions has grown and the appointment process
has gotten longer over the last three decades. It is not clear, however, that the larger
number is responsible for the lengthier process. Other factors, such as stricter vetting
requirements, also play a role. Proponents of a reduction in the number of PAS
positions have suggested that it might lead to an improvement in the efficiency and
performance of the Senate confirmation process and to a decrease in the length of the
appointment process, but this will probably be the case only if the positions removed
from PAS status are those for which appointments consume the most time. Some
argue that removing advice and consent requirements from such positions might have
undesirable political and institutional consequences for Congress.
A recently enacted provision directs each federal agency head to submit a PAS
position reduction plan to the President and Congress. Congress might elect to make
these plans the basis for future decisions concerning the reduction of PAS positions.
Alternative options for Congress include maintaining the status quo; creating a
commission to make recommendations for reductions of PAS positions; establishing
a “fast track” procedure for these reductions; reducing the number of positions by
category or function; distributing PAS positions in proportion to agency size; and
delegating reduction choices to committees of jurisdiction. In lieu of maintaining
PAS status for certain positions, Congress might continue to influence the
appointment process by legislatively establishing qualifications or notification
requirements for appointments to those positions.
Congressional action on PAS positions would involve a number of institutional
and political considerations. For example, participation in the appointment process
through advice and consent gives Senators influence over the selection of nominees
and facilitates obtaining testimony from appointees during oversight hearings. In
addition, the confirmation process arguably provides the Senate with leverage during
negotiations with the President over unrelated matters. This report will be updated
as warranted by events.
II. The Constitutional Framework for the Appointment of Officers of the United
III. Appointment Methods for Officers of the United States................6
Officers Currently Appointed Through the Advice and Consent Process...6
Other Appointment Methods.....................................7
IV. The Appointment Process for PAS Positions........................11
Selection and Nomination......................................11
V. Length of the Appointment Process................................15
VI. Growth in the Number of PAS Positions...........................17
VII. Assessment of Expected Benefits of a Reduction in the Number of Advice and
Improving the Senate Confirmation Process........................19
Shortening the Appointment Process..............................20
Shortening Senate Consideration.............................21
VIII. Potential Approaches to Determining the Appropriate Number and Distribution
of PAS Positions.............................................22
Options for Congressional Consideration..........................25
Option 1: Maintain the Status Quo...........................25
Option 2: Create an Advisory Commission....................26
Option 3: Establish a Military Base Closure-Type Procedure......27
Option 4: Select Categories of Positions for Reduction...........29
Option 5: Reduce the Number of Positions by Function..........30
Option 6: Distribute PAS Positions in Proportion to Agency Size...31
Option 7: Delegate Selection of Positions for Reduction to Committees of
Option 8: Establish Restrictions on Appointments to Certain Positions
Option 9: Require Notification by President of Some Non-PAS
A Comparison of Options......................................33
A Combination of Approaches..................................35
List of Tables
Table 1. Average Number of Days from Enactment of Organic Legislation to
Nomination and Confirmation of Top Officials in the Six Most Recent New
Table 2. Number of Selected Full-Time Executive Branch PAS Positions at Eight
The Appropriate Number of Advice and
Consent Positions: An Analysis of the Issue
and Proposals for Change
Over the past 20 years, a number of commissions and task forces have examined
the process by which the President makes appointments to certain positions with the
advice and consent of the Senate (PAS positions).1 These groups have issued reports
criticizing, among other things, the length of the process, the level of ethical and
political scrutiny to which potential appointees are subjected, the complexity and
quantity of the paperwork that appointees are required to complete and submit, and
the procedural and political complications associated with some nominations during
the Senate confirmation process.2 Rigorous studies have associated these perceived
shortcomings of the process with longer vacancies, confusion and embarrassment of
nominees, and difficulty in attracting a broad range of well-qualified candidates to
top policymaking positions.3
These reports and studies have recommended a variety of reforms that might be
instituted by Congress, the President, and the Senate.4 In addition to procedural
1 The acronym stands for Presidentially Appointed, Senate-confirmed.
2 For an annotated list of many of these reports, see U.S. Congress, Senate Committee on
Governmental Affairs, Presidential Appointment Process: Reports of Commissions That
Studied the Staffing of Presidential Administrations: A Summary of Their Conclusions andthst
Recommendations for Reform, committee print, 107 Cong., 1 sess. (Washington: April
2001). In addition, the 9/11 Commission criticized the length of time taken to put in place
President George W. Bush’s national security team after the 2000 election. See U.S.
National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission
Report (Washington: GPO, 2004), pp. 188, 422. (Hereafter cited as 9/11 Commission
3 The recommendations resulting from these studies, by the Presidential Appointee
Initiative, are summarized in To Form a Government: A Bipartisan Plan to Improve the
Presidential Appointments Process (Washington: Brookings Institution, 2001). The studies
by the Initiative included “detailed empirical analysis of past presidential transitions, the
history of the appointments process, and the evolution of the Senate confirmation process;
a survey of a representative sample of appointees from the Reagan, [George H.W.] Bush,
and Clinton Administrations; and a survey of leading Americans who represent the types of
individuals who typically would be considered as candidates for presidential appointments”
(p. 4). An archive of the work of the Initiative, which concluded its research on June 30,
4 The recommendations include identification of nominees early in the presidential transition
remedies to perceived problems, some of these reports have called for a reduction in
the overall number of PAS positions. For example, in 1996, the Twentieth Century
Fund5 Task Force on Presidential Appointments recommended that the number of all
positions to which the President makes appointments, including those requiring
Senate confirmation, be reduced by a third. The task force further suggested that
“[a]ppointments to most advisory commissions and routine promotions of military
officers, foreign service officers, [and] public health services officers, except those
at the very highest ranks ... cease to be presidential appointments and cease to require
Senate confirmation.”6 In 2001, as part of a proposal aimed at improving the process
for making appointments to PAS positions, the Presidential Appointee Initiative
(PAI) at the Brookings Institution also called for a reduction in the number of such
positions. Rather than identifying which positions might be shed, the PAI focused
on which appointments should continue to come before the Senate. It recommended
that “Senate confirmation only be required of appointments of judges, ambassadors,
executive-level positions in the departments and agencies, and promotion of officers
of the highest rank.” It further suggested a reduction of political appointees by a
third, such that PAS positions would be limited to “the assistant secretary level and
above in each department and to the top three levels only in independent agencies.”7
The 9/11 Commission Report included a recommendation that the “Senate should not
require confirmation of [national security team] executive appointees below
Executive Level 3,” which could eliminate advice and consent requirements for,
among other positions, most assistant secretaries with national security
One of the co-chairs of the PAI advisory board, former Senator Nancy
Kassebaum Baker, elaborated on the expected benefit of a reduction in the number
of PAS positions for the conduct of Senate confirmation business:
I am a strong supporter of advice and consent—I think we all are—but the
application of the confirmation requirement now extends to many thousands of
positions, only a relatively small number of which benefit from the full attention
or careful scrutiny of the Senate.
process; greater control by cabinet heads of the selection of nominees for subordinate
positions; full-time White House guidance of nominees during the nomination and
confirmation process; easing of nominees’ financial disclosure requirements and conflict-of-
interest disclosure requirements; and streamlining and standardization among the White
House, FBI, and Senate committees of requirements and forms for background and financial
5 Now known as the Century Foundation.
6 Twentieth Century Fund Task Force on Presidential Appointments, Obstacle Course:
Report of the Twentieth Century Fund Task Force on Presidential Appointments (New
York: The Twentieth Century Fund Press, 1996), p. 9.
7 Presidential Appointee Initiative, To Form a Government: A Bipartisan Plan to Improve
the Presidential Appointments Process (Washington: Brookings Inst., 2001), pp. 12, 16.
8 9/11 Commission Report, p. 422.
I think this [proposal] would lessen the time that would be taken. By the time
one arranges hearings, the paperwork comes through, there are a number of
appointments that then take up an enormous amount of time of the hearing
So we think that a simpler, more focused set of confirmation obligations can only
yield a more efficient and more consistent performance of the Senate’s9
Other observers have suggested that by reducing the number of PAS positions, the
perceived backlog of appointments might be eased.10 In essence, critics of the
presidential appointment process contend that appointments to PAS positions are
taking too long, and that a reduction in the number of these positions would lead to
a more efficient confirmation process in the Senate and faster appointments to the
remaining positions that are subject to advice and consent.
Interest in reforming the PAS appointment process and possibly reducing the
number of PAS positions led to the enactment of a provision that directs each agency
head to submit an advice and consent position reduction plan, with specified
contents, to the President, the Senate Committee on Homeland Security and
Governmental Affairs, and the House Committee on Government Reform. Duringth
the 107 Congress, Senator Fred Thompson introduced the Presidential
Appointments Improvement Act of 2001 (S. 1811), which, among other provisions,11
would have required such plans. The bill was referred to the Committee on
Governmental Affairs and subsequently reported to the full Senate, but it was notthth
acted upon by the full Senate during the 107 Congress. Early in the 108 Congress,
Senator George Voinovich introduced legislation similar to Senator Thompson’s bill
from the previous Congress, and Representative Jo Ann Davis introduced a
companion bill in the House.12 The reduction plan provision was incorporated into
the Intelligence Reform and Terrorism Prevention Act of 2004, which was enacted
on December 17, 2004.13 Congress might elect to make these agency plans the basis
for future decisions concerning the reduction of PAS positions.
This report provides background information and analysis of issues concerning
possible congressional action to reduce PAS positions. The report begins with a
discussion of the constitutional framework that guides congressional determinations
about appointment authority. The next four parts of the report describe the various
9 U.S. Congress, Senate Committee on Governmental Affairs, The State of the Presidential
Appointment Process, hearings, 107th Cong., 1st sess., April 4-5, 2001 (Washington: GPO,
10 Ibid., pp. 124, 163.
11 See also U.S. Congress, Senate Committee on Governmental Affairs, Presidential
Appointments Act of 2002, report to accompany S. 1811, 107th Cong., 2nd sess., S.Rept. 107-
12 Both S. 765 (108th Cong.), introduced by Sen. Voinovich, and H.R. 1603 (108th Cong.),
introduced by Rep. Davis, were entitled the Presidential Appointments Improvement Act of
13 P.L. 108-458, Section 8403(c).
executive leadership appointment methods used in the federal government, the PAS
appointment process, and trends in the length of the appointment process and the
number of PAS positions. This descriptive information is followed by an evaluation
of the assertions, discussed above, that a reduction in the number of PAS positions
would likely lead to a more efficient confirmation process in the Senate and a faster
appointment overall process. The last third of the report identifies potential
congressional approaches to reducing the number of PAS positions, and analyzes the
institutional and political considerations associated with each of these options.
II. The Constitutional Framework for the
Appointment of Officers of the United States
As part of its system of checks and balances, the Constitution provides a general
framework for the appointment of officers of the United States:
[The President] shall nominate, and by and with the Advice and Consent of the
Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges
of the supreme Court, and all other Officers of the United States, whose
Appointments are not herein otherwise provided for, and which shall be
established by Law: but the Congress may by Law vest the Appointment of such
inferior Officers, as they think proper, in the President alone, in the Courts of14
Law, or in the Heads of Departments.
In a 1976 opinion, the Comptroller General reasoned that this provision indicates that
all officers of the United States are to be PAS positions unless Congress affirmatively
delegates that authority.15 In other words, the default appointment process under the
Constitution for such officers is presidential appointment with the advice and consent
of the Senate. With regard to which positions would be considered “offices” under
this clause, the Supreme Court has held that “any appointee exercising significant
authority pursuant to the laws of the United States is an ‘Officer of the United
States,’ and must, therefore, be appointed in the manner prescribed” above.16
Congress may make any office of the United States a PAS position, but only
certain positions must be filled that way. In deciding which officers must be in PAS
positions and which might be appointed by the “President alone, [by] the Courts of
Law, or [by] the Heads of Departments,” it is first necessary to determine the
constitutional meaning of “inferior officers.”
In 1997, this term was given greater specificity by the Supreme Court in
Edmond v. United States.17 At issue in this case was the validity of the appointment
process for two civilian members of the Coast Guard Court of Criminal Appeals.
Initially, the two were assigned to the court by the general counsel of the Department
14 Article II, Section 2, cl. 2.
15 Comp. Gen. Dec. No. B-183012, 56 Comp. Gen. 137.
16 Buckley v. Valeo, 424 U.S. 1, 126 (1976).
17 Edmond v. United States, 520 U.S. 651 (1997).
of Transportation. Later, the Secretary of Transportation, in his capacity as
department head, issued a memorandum “adopting” the assignments as his own
appointments. The petitioners, individuals who had been convicted by court-martial
in the court, argued that the appointments were invalid on two grounds, only one of
which is relevant here. They argued that “judges of military Courts of Criminal
Appeals are principal, not inferior, officers within the meaning of the Appointments
Clause, and must, therefore, be appointed by the President with the advice and
consent of the Senate.”18 The Opinion of the Court turned, in part, on the Court’s
distinction between principal and inferior officers:
Generally speaking, the term “inferior officer” connotes a relationship with some
higher ranking officer or officers below the President: Whether one is an
“inferior officer” depends on whether he has a superior. It is not enough that
other officers may be identified who formally maintain a higher rank, or possess
responsibilities of a greater magnitude. If that were the intention, the
Constitution might have used the phrase “lesser officer.” Rather, in the context
of a Clause designed to preserve political accountability relative to important
Government assignments, we think it evident that “inferior officers” are officers
whose work is directed and supervised at some level by others who were19
appointed by Presidential nomination with the advice and consent of the Senate.
The Court concluded that, “by reason of the supervision over their work exercised
by the General Counsel of the Department of Transportation in his capacity as the
Judge Advocate General and the Court of Appeals for the Armed Forces,” the judges
of the Coast Guard Court of Criminal Appeals were inferior officers under the
Appointments Clause of the Constitution.20 They could, therefore, be appointed by
the department head.
The Court’s opinion provides guidance that could assist Congress in identifying
which officers may be appointed through one of the non-PAS processes. It suggests
that, aside from officers in positions that the Constitution specifically identifies, such
as ambassadors and “Judges of the supreme Court,” the Constitution only requires
one layer of advice and consent positions in the hierarchy of each agency. It indicates
that appointees with PAS-appointed supervisors are inferior officers, and that
Congress may, therefore, provide for appointment by “the President alone, ... the
Courts of Law, or ... the Heads of Departments.” Based on the Court’s opinion, an
argument could be made that in the departments, for example, the Constitution
requires only that secretaries be subject to advice and consent.
On the other hand, the Court’s opinion also suggests that any officer who does
not have a PAS-appointed superior cannot be an inferior officer and, therefore, must
be appointed by the President with the advice and consent of the Senate. Therefore,
for example, members of federal boards and commissions who exercise significant
statutory authority and whose work is generally not directed or supervised by other
18 Ibid., pp. 655-656.
19 Ibid., pp. 662-663.
20 Ibid., p. 666.
officers might be considered principal, not inferior, officers.21 If such board and
commission members were considered principal officers, it would follow that
appointments to positions in this category could be made only with the advice and
consent of the Senate.
III. Appointment Methods for Officers
of the United States
As the previous section indicates, under the Constitution, presidential
appointment with the advice and consent of the Senate is just one of the ways in
which officers of the United States may be appointed. In the executive branch,
officers are appointed by the President, with or without Senate confirmation, or by
the department or agency head. Some appointments, referred to as political
appointments, are made at the discretion of the appointing authority, that is, the
President, agency head, or court. Other appointments, referred to as career or
competitive appointments, are made through a competitive process.
The executive leadership of the federal bureaucracy consists of between 9,000
and 10,000 individuals. Of that number, approximately 3,500 are political
appointees, often supporters of the President or party loyalists, and the balance are
career members of the Senior Executive Service (SES). The political positions fall
into four categories: PAS, presidential appointments not requiring confirmation (PA
positions), noncareer SES, and Schedule C positions. Each of these categories is
discussed below. If Congress removes a position from PAS status, it may continue
the position, or its functions, as another kind of position. Congress may assign
appointment authority to the President alone or direct that the position be filled by
a member of the SES. If Congress is silent on the matter, agencies may create SES
or Schedule C positions to carry out the particular functions.
Officers Currently Appointed Through the
Advice and Consent Process22
Each year the President submits more than 20,000 nominations to the Senate.
Although these nominations include those to the highest unelected policymaking
positions in the federal government, the great majority are routine armed forces
21 For the purpose of appointing inferior officers, the members of a federal board or
commission may be considered collectively a “head of department.” For example, members
of the Public Company Accounting Oversight Board are appointed by the Securities and
Exchange Commission as a whole (15 U.S.C. 7211(e)(4)). This practice is in accord withth
the appeals court in Silver v. U.S. Postal Service (951 F.2d 1033 (9 Cir. 1991)), in which
the court concluded that the nine-member U.S. Postal Service Board of Governors
constitutes the “head of department” and, therefore, may be charged, by Congress, with the
appointment of the Postmaster General, an inferior officer.
22 For listings of PAS positions by Senate committees of jurisdiction, see CRS Report
RL30959, Presidential Appointee Positions Requiring Senate Confirmation and Committees
Handling Nominations, by Henry B. Hogue.
officer appointments. The nominations also include large groups of presidential
appointments to positions in the Coast Guard,23 the Foreign Service,24 the Public
Health Service,25 and the National Oceanic and Atmospheric Administration
(NOAA) officer corps.26 Nominations to positions in these groups are often
submitted and considered en bloc.
A smaller portion of the submissions to the Senate each year comprises
nominations to high-level positions in the executive, legislative, and judicial
branches. These include:
!more than 350 full-time positions in the executive departments;
!more than 150 full-time positions on regulatory and other collegial
boards and commissions;
!more than 100 full-time positions in independent and other agencies;
!674 district court judgeships;
!179 circuit court judgeships;
!93 U.S. attorney positions;
!94 U.S. marshal positions;
!more than 150 ambassadors; and
!over 400 part-time positions in the executive branch.
The persons filling these PAS positions are generally considered to be the top policy
decision makers in the federal government, having the responsibility to implement
statutes. Federal law specifies which positions must be filled this way. The
nomination and confirmation process for PAS appointments is discussed below under
“The Appointment Process for PAS Positions.”
Other Appointment Methods
Three other types of appointments are used to staff most of the other
policymaking positions in the federal bureaucracy: PA and Schedule C positions,
which are political; and SES positions, some of which are political and some of
which are career.
Approximately 125 full-time positions government-wide are PA positions.27 PA
positions are rare in programmatic agencies; they are generally found in the White
House Office and filled by persons who directly staff and advise the President.28 The
23 See, for example, 14 U.S.C. 271(e).
24 22 U.S.C. 3942.
25 42 U.S.C. 204.
26 See, for example, 33 U.S.C. 3026.
27 Estimate based on information from U.S. Congress, House Committee on Government
Reform, United States Government Policy and Supporting Positions, 108th Cong., 2nd sess.,
Committee Print, Nov. 22, 2004 (Washington: GPO, 2004).
28 Under 3 U.S.C. 105(a)(2), the President may appoint in the White House Office “25
Department of Homeland Security is an exception in this regard. Under the
provisions of the Homeland Security Act, at least six officers in the department are
appointed by the President alone.29
The ranks of program managers are most commonly filled by members of the
SES.30 The Senior Executive Service includes both career and noncareer positions.
Congress sometimes specifies, in statute, that a particular official shall be a career
member of the SES,31 but most SES positions are established by the agencies. Career
SES appointees are appointed competitively. They have civil service status and have
had their executive qualifications reviewed and approved by the Office of Personnel
Management (OPM). Noncareer SES appointees are not appointed competitively.
Agency heads make noncareer appointments with the authorization of OPM and the
approval of the White House Office of Presidential Personnel, and noncareer
appointees serve at the pleasure of the appointing official. They occupy top-level
supervisory and management positions throughout the executive branch that typically
involve developing, promoting, and directing Administration policies. Congress has
provided, through statute, a formula for the allocation of SES positions to political
employees at rates not to exceed the rate of basic pay then currently paid for level II of the
Executive Schedule” (EX), which is the schedule for presidential appointees requiring
Senate confirmation; 25 at the EX III rate or lower; 50 at the “GS-18” rate, which is
equivalent to the Senior Executive Service, or lower; and “such number of other employees
as he may determine to be appropriate” at the “GS-16” rate or lower. Under 3 U.S.C. 107(a)
and (b), he may appoint in the Office of Policy Development “6 employees at rates not to
exceed the rate of basic pay then currently paid for level III of the Executive Schedule,” 18
employees at the “GS-18” rate or lower, and “such number of other employees as he may
determine to be appropriate” at the “GS-16” rate or lower; and, in the Office of
Administration, “5 employees at rates not to exceed the rate of basic pay then currently paid
for level III of the Executive Schedule,” and five employees at the “GS-18” rate or lower.
Under 3 U.S.C. 106(a)(1), the Vice President may appoint in his office “5 employees at rates
not to exceed the rate of basic pay then currently paid for level II of the Executive
Schedule,” three employees at the EX III rate (or lower), three employees at the “GS-18”
rate (or lower), and “such number of other employees as he may determine to be
appropriate” at the “GS-16” rate (or lower). The GS-16, GS-17, and GS-18 levels, as such,
no longer exist. Under Section 101(c) of the Federal Employees Pay Comparability Act of
1990 (104 Stat.1442), all references in statute to these pay rates are considered to refer to
pay rates under 5 U.S.C. 5376.
29 P.L. 107-296. Five of these positions were newly created: Assistant Secretary for
Information Analysis, Assistant Secretary for Infrastructure Protection, Chief Information
Officer, Chief Human Capital Officer, and Officer for Civil Rights and Liberties. The sixth
officer, Director of the United States Secret Service, was previously appointed by the
Secretary of the Treasury. The Homeland Security Act also established the Chief Financial
Officer at DHS as a PA position, but P.L. 108-330 changed it to a PAS position.
30 For more information on the Senior Executive Service, see CRS Report RS20303, The
Senior Executive Service: Overview and Current Issues, by L. Elaine Halchin.
31 For example, 6 U.S.C. 531(d)(2) specifies that the Administrator of the Tax and Trade
Bureau in the Department of the Treasury “shall occupy a career-reserved position within
the Senior Executive Service.”
appointees, and so indirectly determines their number.32 As of September 2004,
6,203 SES positions were filled by career appointees and 691 were filled by
Schedule C positions are created under the authority of Part 6 of Title 5 of the
Code of Federal Regulations.34 Schedule C appointees are excepted from the
competitive service, and occupy mostly positions of confidential assistant to higher-
level officials, as well as some policy-determining positions, throughout the
executive branch. Recent Schedule C appointments include, for example, the
Confidential Assistant to the Deputy Assistant Secretary for Export Promotion
Services in the Department of Commerce and the Director of Cargo and Trade Policy
for Border and Transportation Security in the Department of Homeland Security.35
As of September 2004, 1,526 officials had Schedule C appointments.36 Most
Schedule C appointees are paid at rates at the upper grades of the General Schedule
but are lower in the hierarchy than presidential appointees and SES appointees.37
More than 40% of Schedule C appointees were paid at or above the highest grade
level as of September 2004.38 An agency must get the approval of OPM in order to
establish a Schedule C position. Positions authorized by OPM are revoked
automatically when an incumbent leaves office.
The options discussed above include both political and career appointments.
Decreasing the number of PAS positions while increasing the number of other
political positions might be seen by some as an imperfect solution. Since the mid-
32 The number of noncareer appointees in each agency is determined annually by the Office
of Personnel Management. By law, no more than 10% of total SES positions may be filled
by noncareer SES appointees (5 U.S.C. 3134). The proportion of noncareer SES appointees,
however, may vary from agency to agency (up to a limit of 25%). OPM, in consultation
with the Office of Management and Budget (OMB), allocates SES positions for each agency
in each even-numbered calendar year (5 U.S.C. 3133(c)). At any given time, the number of
positions allocated will be greater than the number filled.
33 U.S. Office of Personnel Management FedScope, available at [http://www.fedscope.opm.
gov/index.htm], visited Mar. 9, 2005.
34 Established under the authority of 5 U.S.C. 3301, 3302.
35 OPM periodically publishes listings of decisions granting authority to make appointments
under Schedules A, B, and C. These positions were included on a comprehensive annual
list published in U.S. Office of Personnel Management, “Excepted Service; Consolidated
Listing of Schedules A, B, and C Exceptions,” Federal Register, vol. 70, no. 8, Jan. 12,
36 U.S. Office of Personnel Management FedScope, available at [http://www.fedscope.opm.
gov/index.htm], visited Mar. 9, 2005.
37 The General Schedule is the pay and classification system for the majority of the rank and
file white-collar staff of the federal government. Pay rates are found through the Office of
Personnel Management website, available at [http://www.opm.gov/oca/payrates/index.htm],
visited Mar. 9, 2005.
38 U.S. Office of Personnel Management FedScope, available at [http://www.fedscope.opm.
gov/index.htm], visited Mar. 9, 2005.
expressed concerns about the increasing number of political appointments in the
federal bureaucracy. In January 2003, for example, the second National Commission
on the Public Service, chaired by Paul Volcker, recommended a one-third reduction
in such positions.39 In recent years, several legislative initiatives have proposed
maintaining or reducing the number of political appointments.40 In the Department
of Transportation annual appropriations measures for nine of the last 13 fiscal years,
statutory limits have been placed on the number of such positions.41
The balance between political and career leadership positions reflects the value,
in the American government, of both political accountability and neutral managerial
competence. Whereas political appointments are typically made by the President and
agency heads as a means of pursuing a particular policy agenda, careerists are usually
hired under the civil service system on the basis of merit to execute the laws in an
unbiased manner. Public administration scholars and practitioners have long
recognized that this process of implementing laws is both political and
administrative. Managerial expertise is necessary during implementation, but
accountability for the way in which the will of elected officials is carried out is also
an important component of sound public administration.
If Congress changes the appointment method for some PAS positions, the
functions of the positions are likely to be placed, either by Congress, the President,
or the agency, in the hands of either a career or political appointee. Since the
appointee will no longer need to be confirmed by the Senate, it could be argued that
a political official might be less accountable to Congress than a PAS appointee would
be. What about careerists? Some have argued that career officials tend to be allied
with Congress, while others have suggested that they respond to the political
environment as a whole.42 Consequently, Congress might opt to specify that certain
functions be carried out by career officials. On the other hand, Congress might elect
to provide the Administration with greater management flexibility by allowing more
positions to be filled by the President alone or agency heads.
39 National Commission on the Public Service, Urgent Business for America: Revitalizing
the Federal Government for the 21st Century (Washington: National Commission on the
Public Service, 2003).
40 In the 104th, 105th, 106th, 107th, and 108th Congresses, legislation was introduced in the
House and Senate to limit the number of federal political appointees, in some bills to 2,000,
in others to 2,300. None of these bills was reported out of committee.
41 P.L. 108-447, Division H, Section 187 provides an example. The section reads, “None
of the funds in this Act shall be available for salaries and expenses of more than 106
political and Presidential appointees in the Department of Transportation: Provided, That
none of the personnel covered by this provision may be assigned on temporary detail outside
the Department of Transportation.”
42 Edward J. Lynch, “No, We Don’t Have Too Many Political Appointees,” Government
Executive, vol. 23, April 1991, pp. 54-55; and David M. Cohen, “Amateur Government,”
Journal of Public Administration Research and Theory, vol. 8, Oct. 1998, pp. 450-497.
IV. The Appointment Process for PAS Positions
The appointment process consists of three stages—selection and nomination,
confirmation, and appointment. The President has the authority to make a nomination
to a position requiring confirmation, but, when making his selection, he must
consider how it will fare in the confirmation process. The Senate confirms most
nominations, but, considering the history of nominations, no President can safely
assume that his nominees will be approved routinely. Although the formal
appointment process is the province of the President and the Senate, other concerned
parties, such as interest groups and other elected officials, may attempt to influence
the outcome at various stages by providing information to the decision makers and
the media. This is particularly the case for higher profile positions.
Selection and Nomination
A number of steps are involved in the President’s selection for most Senate-
confirmed appointments. First, with the assistance of the White House Office of
Presidential Personnel, the President selects a candidate for the position. Generally,
the candidate then 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 has cleared the candidate, the nomination is ready to be submitted to
For positions located within a state (U.S. attorney, U.S. marshal, and U.S.
district judge), the White House, by custom, normally consults with the Senators
from that state (if they are from the same political party as the President) prior to a
nomination.43 If neither Senator is from the President’s party, he usually consults
with party leaders from the state. Occasionally, the President solicits
recommendations from Senators of the opposition party because of their positions in
the Senate. The White House may also consult with Senators, particularly leaders of
the committees of jurisdiction, regarding other nominations. These consultations
provide an opportunity for individual Senators to play a role in the recruitment of
qualified office holders, and they also provide Senators with valuable political
capital. For these reasons, the Senate may be reluctant to give up its role in
appointments to these positions.
The selection and vetting stage is often the longest part of the appointment
process (see discussion below under “Length of the Appointment Process”). There
can be lengthy delays, particularly if many candidates are being processed, as they are
43 “Report of the Task Force on the Confirmation Process,” Congressional Record, vol. 138
(Feb. 4, 1992), pp. 1348-1352.
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.
A nominee has no legal authority to assume the duties and responsibilities of the
position; the authority comes with Senate confirmation and presidential appointment
(the nominee’s receipt of his or her commission and swearing in). A nominee who
is hired as a consultant while awaiting confirmation may serve only in an advisory
If circumstances permit and conditions are met, the President may give the
nominee a temporary appointment under the Vacancies Act44 or a recess appointment
to the position.45 Both types of appointment confer upon the appointee the legal
authority to carry out the duties of the office. Temporary appointments under the
Vacancies Act may last for 210 days after the date of the vacancy. This time
restriction may be suspended or extended under certain conditions, however, and
temporary appointments may last for more than two years. Recess appointments may
last for less than a year or nearly two years, depending on when the appointment is
made. Presidents have occasionally used these two types of appointments to
circumvent the confirmation process. Such efforts have sometimes had political
consequences, however. Senators have, at times, placed holds on other nominations
or passed more restrictive legislation in response to perceived executive abuses of the
In the consideration stage, the Senate determines whether or not to confirm a
nomination.47 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 nominee’s views
and how they are likely to affect public policy.48 Nominations are referred to the
appropriate committee, where they sometimes receive a hearing. They are then
usually reported back to the Senate, where they are taken up and voted upon. Most
nominations proceed through the process in a routine, timely fashion. During the
44 5 U.S.C. 3345-3349d.
45 See CRS Report RS21412, Limited-Term Appointments to Presidentially Appointed,
Senate-Confirmed Positions, by Henry B. Hogue.
46 See, for example, “Nomination Logjam Cleared,” Congressional Quarterly Weekly
Report, vol. 43, no. 42, Oct. 19, 1985, p. 2111; Darlene Superville, “Congress to Limit
‘Acting’ Terms,” Associated Press Online, Mar. 18, 1998.
47 For further information, see CRS Report RL31980, Senate Consideration of Presidential
Nominations: Committee and Floor Procedure, by Elizabeth Rybicki (Hereafter cited as
CRS Report RL31980); and CRS Report RL31948, Evolution of the Senate’s Role in the
Nomination and Confirmation Process, A Brief History, by Betsy Palmer.
48 G. Calvin Mackenzie, The Politics of Presidential Appointments (New York: The Free
Press, 1981), pp. 97-189.
107th Congress, for example, the median49 number of days taken to confirm a
nomination to a full-time departmental position was 36.50 A large portion of the
nominations received are military or other officer appointments, and these are
typically handled through a routinized process. The Senate routinely confirms, en
bloc, hundreds of these kinds of nominations at a time. Nominations to
policymaking positions can stall, however, or, in effect, die at any point. This is
more likely to happen to controversial nominations. Sometimes, however, Senators
may block noncontroversial nominations through the use of holds51 to gain leverage
as part of a strategy to move unrelated legislation or nominations. (See further
discussion below under “Shortening the Appointment Process.”)
The Senate confirmation process is centered at the committee level. Some
committees, such as Armed Services, Judiciary, and Foreign Relations, handle many
nominations, while other committees handle relatively few. The rules and procedures
of the committees frequently include timetables specifying minimum periods
between steps in the process. Committee nomination activity generally includes
investigation, hearing, and reporting stages. Action at the committee level tends to
be at the discretion of the chair. There is no internal requirement that a committee
act on any nomination.
As part of investigatory work, committees may draw on information provided
by the White House as well as information collected by the committees. For
example, they have access to documents related to the Public Financial Disclosure
Report completed during the nomination stage. Select Senators also may have, with
the authorization of the President, access to FBI reports or report summaries. In
addition, committees usually collect other personal and financial information from
nominees. This process may include completion of standard committee forms as
well as follow-up questionnaires tailored to specific nominations. As part of these
forms and questionnaires, or during hearings, the Senate usually gains a commitment
from the nominee to respond to requests to come before committees of the Senate.52
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
49 The median is the middle value in a numerical distribution. In this case, half the
confirmations took less time and half took more time.
50 CRS Report RL31346, Presidential Appointments to Full-Time Positions in Executive
Departments During the 107th Congress, 2001-2002, by Henry B. Hogue. (Hereafter cited
as CRS Report RL31346.)
51 A “hold” is an informal Senate practice in which a Senator requests that his or her party
leader delay floor action on a particular matter, in this case a nomination. See CRS Report
52 For example, the Senate Committee on Governmental Affairs pre-hearing questionnaire
for Michael J. Garcia, a nominee to be an assistant secretary at the Department of Homeland
Security, included the following question: “Do you agree without reservation to respond to
any reasonable summons to appear and testify before any duly constituted committee of the
Congress if you are confirmed?” U.S. Congress, Senate Committee on Governmentalth
Affairs, Nominations of C. Stewart Verdery, Jr. and Michael J. Garcia, hearing, 108 Cong.,st
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. A
committee may consider the importance of a nomination and the workload and
schedule of the committee when determining whether or not to hold a hearing.
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
favorably, unfavorably, or without recommendation. If it 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.53
Although the Senate confirms most nominations, some nominations 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, 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.54 The most recent study of Senate
confirmation action, which looked at the period between 1981 and 1992, found that
the Senate failed to confirm 9% of all nominations to full-time positions in the
executive departments, 11% of nominations to independent agencies, and 22% of
nominations to boards and commissions.55
53 For more information, see CRS Report RL31980.
54 The rule may be found in U.S. Congress, Senate Committee on Rules and Administration,
Senate Manual, 106th Cong., 1st sess., S. Doc. 106-1 (Washington: GPO, 1999), p. 55, Rule
XXXI, Paragraph 6 of the Standing Rules of the Senate. For an example of a waiver of the
rule, see Sen. John E. Sununu, “Nomination in Status Quo,” Congressional Record, daily
edition, vol. 149, July 31, 2003, p. S10844.
55 CRS Report 93-464, Senate Action on Nominations to Policy Positions in the Executive
Branch, 1981-1992, by Rogelio Garcia (archived; no longer available). The study did not
include nominations submitted by Presidents Carter and Reagan in the last months of their
Administrations, or nominations submitted within a month of the Senate’s adjournment at
the end of a session. It also excluded nominations to the judiciary, military services, Foreign
Service, National Oceanic and Atmospheric Administration Officer Corps, and Public
Health Service Officer Corps, as well as nominations to all ambassadorial, U.S. attorney,
U.S. marshal, and part-time positions.
Appoi ntment 56
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. Under
unusual circumstances, he may not sign it at all, thus preventing the appointment.
Once the appointee is given the commission and sworn in, he or she has full authority
to carry out the responsibilities of the office.
V. Length of the Appointment Process
As discussed in the introduction to this report, some proponents of reducing the
number of PAS positions have asserted that, over the last several decades, the
appointment process has taken longer, and the number of PAS positions has grown,
and that the longer process is due, in part, to the greater number of positions. This
section and the next section assess the first two assertions. An assessment of the
perceived benefits of reducing the number of PAS positions follows these sections.
Data limitations have precluded CRS from providing a comparison,
government-wide, of the length of the entire appointment process across different
time periods, but comparisons based on more limited data can be made.57 Accurate
and comprehensive data concerning the dates on which PAS positions become
vacant, which would approximate the starting dates for refilling these positions, are
not generally available. One instance in which it is possible to collect this
information for many positions,58 however, is at the beginning of a new
Administration, when many positions are vacated and filled simultaneously. G.
Calvin Mackenzie calculated that the average time from inauguration to confirmation
for initial PAS appointments grew from 2.38 months at the beginning of John F.
Kennedy’s presidency to 8.53 months at the beginning of William J. Clinton’s
presidency.59 Because of the inexperience of new presidential staff and the large
number of appointments going through the system at the same time, these average
times for new Administrations are probably longer than averages of all appointment
times would be.
56 CRS publishes a number of reports that track nominations by Congress. See, for example,
CRS Report RL31868, U.S. Circuit and District Court Nomination by President George W.th
Bush During the 107 Congress, by Denis Steven Rutkus and Mitchel A. Sollenberger, and
CRS Report RL31346.
57 Empirical studies of the appointment process have tended to focus on the length of the
Senate confirmation process, for which data are readily available.
58 Regulatory commission members, inspectors general, ambassadors, U.S. attorneys, and
U.S. marshals, among others, were not included.
59 Twentieth Century Fund Task Force on Presidential Appointments, Obstacle Course:
Report of the Twentieth Century Fund Task Force on Presidential Appointments (New
York: The Twentieth Century Fund Press, 1996), p. 72.
Another instance in which it is possible to collect information about the length
of the appointment process for a subset of PAS positions is in the case of initial
appointments to newly created departments. In this case, the starting point for filling
positions can be set at the time of the enactment of the enabling law. From 1965 to
Transportation (1966); Energy (1977); Education (1979); Veterans Affairs (1988);
and Homeland Security (2003).60 Table 1 provides a summary of the average length
of time taken to nominate and confirm initial appointees to PAS positions in each of
these departments. The last column in Table 1 shows the median numbers of days
elapsed from enactment of the organic legislation to Senate confirmation. The latter
figures range from a low of 77 days (about 2½ months) to 352 days (nearly a year).
With the exception of the Department of Energy, the median times grew longer
from 1965 (140 days) to 2004 (206 days). This is consistent with reports suggesting
that, in general, the appointment process has grown longer and more complex over
the last 40 years. Often in response to individual incidents, Congress and Presidents
have increased scrutiny of potential appointees as insurance against scandals.61 In
addition to this trend, the length of the process has been affected by particular
circumstances. In the case of the Department of Veterans Affairs, for example, the
organic legislation was signed into law in the last months of the Reagan presidency
and implemented at the beginning of the presidency of George H. W. Bush. The
incoming President had no authority to submit a nomination until his inauguration,
which was 87 days after the bill-signing. In addition, many tasks, including a
multitude of other appointments, confronted the new Administration, and this may
have contributed to the relatively lengthy appointment process for the new
Table 1 also shows that the time between enactment and nomination generally
accounts for a far greater part of the appointment process than the time between
nomination and Senate confirmation; the President generally takes much longer to
submit a nomination than does the Senate to deliberate on the nomination. This
generalization is further supported by a study of departmental appointments in 1981
and 1993. The report looked at the time required to fill PAS positions in the first
year of the Reagan and Clinton Administrations. It showed that, on average, the time
the Presidents took to submit a nomination accounted for more than 75% of the total62
time from inauguration to confirmation. This finding may not apply to nominations
in general, since at least two factors characteristic of the beginning of a new
Administration should not affect other nominations. A new President has lead time
before his inauguration to begin the selection and vetting process. On the other hand,
60 In addition, at the time the Department of Education was created, the remainder of the
Department of Health, Education, and Welfare became the Department of Health and
61 See G. Calvin Mackenzie, “The State of the Appointments Process,” in his Innocent Until
Nominated: The Breakdown of the Presidential Appointments Process (Washington:
Brookings, 2001), pp. 40-44.
62 CRS Report 98-641, Filling Policy Positions in Executive Departments: Average Time
Required Through Confirmation, 1981 and 1993 (archived; no longer available), by Rogelio
there might be a bottleneck in the vetting process, as the various offices involved
attempt to complete the investigation and clearance process for the large numbers of
potential nominees typical of the beginning of a new Administration.
Table 1. Average Number of Days from Enactment of
Organic Legislation to Nomination and Confirmation of
Top Officials in the Six Most Recent New Departments
Days elapsed fromDays elapsed during
enactment to President’sconsideration by theDays elapsed from
submission of aSenate, from nominationenactment to
nomination to the Senateto confirmationconfirmation (total)
Depa rt me nt Mean Median Mean Median Mean Median
Housing and Urban21613276223140
Veterans Affairs (1988)3372956372400352
Source: Prepared by CRS based on information from the Senate nominations database of the Legislative Information
System, available at [http://www.congress.gov/nomis/], and from various volumes of the Journal of the Executive
Proceedings of the Senate of the United States of America.
Note: The table shows both the mean and median number of days. The mean is the arithmetic average. In order to
calculate the mean number of days elapsed from enactment to nomination, for example, for each department, the entries
for all the positions in the department were added, and the sum was divided by the number of positions. The median is
the middle number when the “days elapsed” entries for all the positions are arranged numerically. Although the mean
is the more familiar kind of average, the median is included because it diminishes the influence of a few extreme entries.
For example, if the President submits 10 of 12 nominations within 90 days (three months) and the remaining two within
540 days (18 months), the mean elapsed time would be 165 days, even though most nominations were submitted far
sooner than that. The median in this case would be 90 days, which more clearly shows the time, in general, the President
took to forward his nominations.
a. The figures shown for the Department of Homeland Security are for those positions initially filled through the adviceth
and consent process and for which the President submitted a nomination and the Senate acted in the 108
Congress. Previously existing positions for which the incumbent did not need to be reconfirmed were not included.th
Not all positions established by the Homeland Security Act were filled during the 108 Congress.
VI. Growth in the Number of PAS Positions
Has the number of PAS positions grown over the past several decades? Most
observers agree that it has. Such positions have been counted in a variety of ways.
Table 2 provides one measure of the number of full-time executive branch PAS
positions with policymaking responsibilities at eight points over the last three
decades. The table shows growth in the number of positions in the 1970s and 1980s,
a slight decline in the 1990s, and additional growth between 2000 and 2004. Overall,
the number of positions grew approximately 26% between 1972 and 2004.
Table 2. Number of Selected Full-Time Executive Branch
PAS Positions at Eight Points, 1972-2004
YearNumber of positions
Source: The numbers for 1972-1992 were taken from research published in Thomas J. Weko, The
Politicizing Presidency: The White House Personnel Office, 1948-1994 (Lawrence, KS: University
Press of Kansas, 1995), p. 161. The numbers for 1996, 2000, and 2004 were calculated from the Plum
Books of those years. Weko used prior editions of the Plum Book as his source. The official citation
for the 2004 edition of the Plum Book is U.S. Congress, House Committee on Government Reform,thnd
United States Government Policy and Supporting Positions, 108 Cong., 2 sess., Committee Print,
Nov. 22, 2004 (Washington: GPO, 2004).
Note: Table excludes part-time positions, ambassadors, U.S. attorneys, U.S. marshals, and positions
in the judicial branch, the legislative branch, the military, National Oceanic and Atmospheric
Administration (NOAA), the foreign service, the Coast Guard, and international organizations.
Although a number of new government organizations with PAS positions,
including three of the departments discussed above (which had a total of 53 positions63
at their inception), were created during this time, most of the growth in the number
of PAS positions can be attributed to an incremental increase across many agencies.
For example, the Environmental Protection Agency (EPA) had seven PAS positions
in 1972 and 14 such positions in 2004. In 1972, none of the positions at the Office
of Management and Budget (OMB) was subject to the advice and consent process,
while by 2004, six required Senate confirmation.64 As in the case of OMB, in most
63 Some of these positions had existed in other forms prior to the creation of the new
64 U.S. Congress, Senate Committee on Post Office and Civil Service, United States
Government Policy and Supporting Positions, 93rd Cong., 1st sess., Committee Print
(Washington: GPO, 1973), and U.S. Congress, House Committee on Government Reform,thnd
United States Government Policy and Supporting Positions, 108 Cong., 2 sess.,
cases the creation of new PAS positions probably reflects the importance of the
policymaking functions of particular offices and the perceived need for congressional
influence in their leadership.
VII. Assessment of Expected Benefits of a
Reduction in the Number of
Advice and Consent Positions
Proponents of a reduction in the number of PAS positions have suggested that
such a reduction would be expected to “yield a more efficient and more consistent
performance of the Senate’s confirmation responsibilities”65 and to reduce the overall
the length of the appointment process.
Improving the Senate Confirmation Process
Would an improvement in the Senate confirmation process result from a
reduction in the number of PAS positions? Nearly all the potential gains in
efficiency and performance probably would be found at the committee level, since,
unless a nomination is controversial, confirmation on the Senate floor is usually
accomplished by unanimous consent with minimal debate.66 To varying degrees,
depending on the committee and the nominee, committee activity related to
nominations may include review of Federal Bureau of Investigation reports and
Executive Personnel Financial Disclosure Reports (SF-278), collection and review
of additional financial and personal background information, meetings with
nominees, and hearings. Committees usually follow more routinized procedures for
lower-level nominations, while spending more time reviewing and investigating
high-level nominees more closely. Consequently, if the Senate were to consider only
nominations to top policymaking positions, the measured Senate efficiency and
performance might not noticeably improve. If Congress changed the appointment
method for higher-level PAS positions, however, reduced workload might allow the
Senate to execute its confirmation responsibilities more efficiently.
The Senate also might incur costs, however, were the appointment method for
higher-level PAS positions to be changed. For example, Senators would lose the
opportunity to review and pass on presidential appointees’ qualifications and
potential conflicts of interest. Senators also would lose the opportunity to use the
confirmation process to influence policy. With appointments to PAS positions, they
may do this by not confirming a nominee or by extracting a commitment on some
Committee Print, Nov. 22, 2004 (Washington: GPO, 2004).
65 U.S. Congress, Senate Committee on Governmental Affairs, The State of the Presidential
Appointment Process, hearings, 107th Cong., 1st sess., April 4-5, 2001 (Washington: GPO,
66 For a more detailed discussion of Senate consideration of nominations, see CRS Report
action from a nominee during the confirmation process. In addition, Senate
committees might have greater difficulty obtaining testimony from appointees who
have not been confirmed by the Senate, and the Senate’s efficiency and performance
in its oversight role might, therefore, decrease. As noted above, the Senate usually
gains a commitment from the nominee, during the confirmation process, to respond
to requests to come before its committees. If advice and consent requirements were
discontinued for some state-level appointments, such as U.S. attorneys and marshals,
some Senators, particularly those of the same party as the President, might lose the
opportunity to consult with the President on suitable candidates for these positions.
Shortening the Appointment Process
Would a reduction in the number of PAS positions shorten the overall process
for appointments to PAS positions? Although the evidence, discussed above,
suggests that both the number of PAS positions and the length of the appointment
process have grown in the past three decades, it is not clear that the greater number
has caused or contributed to a longer appointment process. If Congress were to
reduce the number of PAS positions, doing so would, of course, shorten the process
for those appointments that no longer needed to go through the confirmation process.
It is unclear, however, whether or not the average length of the appointment process
would be reduced for the remaining PAS positions. As previously discussed, the
process includes three stages: selection and nomination, which, on average, takes the
longest period of time; Senate consideration; and appointment, which may take place
at the pleasure of the President. The appointment process could be shortened if either
the presidential vetting process or Senate consideration, or both, were shortened.
Shortening Selection. Selecting and investigating the background and
finances of potential nominees often takes a considerable amount of time. This
process sometimes can be completed quickly for top nominees, such as department
secretaries, when greater resources are committed to the task. Completion of the
vetting process for most other nominees, however, usually takes longer. If fewer
people had to go through the process, it might proceed more quickly for the
remaining applicants. If the appointees who were no longer subject to the advice and
consent of the Senate still needed to be vetted by the White House, just as many
applications would need to go through the pipeline. Consequently, it is unclear that
converting some PAS positions to other types of positions would reduce delays at the
selection stage of the appointment process.
The Intelligence Reform and Terrorism Prevention Act of 2004 included several
provisions that might reduce some appointment process delays in the selection stage.
For example, the law directs the Office of Personnel Management (OPM) to provide
each major party presidential candidate, soon after his or her nomination, with certain
information concerning presidentially appointed positions.67 Access to such
information allows the potential president to begin the selection process as much as
half a year before taking office.
67 P.L. 108-458, Section 8403(b).
The statute also amended the Presidential Transition Act of 1963 to recommend
that the President-elect submit “names of candidates for high level national security
positions through the level of undersecretary” for national security clearance as soon
as possible after the presidential election and to require expeditious background
investigations of these candidates, among other things.68 Title III of the act made
government-wide changes to the national security clearance process that are designed
to consolidate and streamline this function.69 Because most presidential appointees
are subject to this clearance process, these changes may have an impact on the
duration and difficulty of the selection stage of the appointment process.
In addition, the Intelligence Reform and Terrorism Prevention Act contained a
provision that requires a report from the Office of Government Ethics (OGE)
regarding potential improvements to the financial disclosure process for executive
branch employees.70 A similar report sent to Congress by the Office of Government
Ethics in 2001 recommended changes to the Ethics in Government Act71 to “(1)
reduce the number of valuation categories; (2) shorten certain reporting time-periods;
(3) limit the scope of reporting by raising certain dollar-thresholds; (4) reduce details
that are unnecessary for conflicts analysis; and (5) eliminate redundant reporting.”72
The findings of the newly mandated report might serve as a basis for legislation that
would streamline the financial disclosure process and thereby, on average, shorten
the duration of the appointment process.
Shortening Senate Consideration. Would a reduction in the number of
PAS positions decrease the length of the Senate confirmation process? The most
time-consuming activities in this process are the investigatory activities and
preparation for hearings. As discussed above, committee investigations include the
review of documents and reports collected during the selection and nomination stage,
as well as the collection and review of committee-specific personal and financial
forms. In some cases, committees prepare, and nominees complete, individually
tailored followup questionnaires as well. Preparation for, and scheduling of, hearings
may also lengthen the average confirmation time. If the positions removed from PAS
status were among those that involve significant investigations or hearings, their
removal might result in shorter appointment times, on average. Congress also might
opt to address any delays possibly resulting from investigations and the hearing
process by increasing committee staffing or reducing the number of nominations that
Although the average length of time that a nomination is pending in the Senate
may be related to Senate workload, other factors may play a more significant role.
Policy differences, either related or unrelated to particular nominations, may lead
Senators to delay or block nominations through the use of holds or other procedures.
68 P.L. 108-458, Section 7601(a).
69 P.L. 108-458, Title III.
70 P.L. 108-458, Section 8403(a).
71 5 U.S.C. App.
72 U.S. Office of Government Ethics, Report on Improvements to the Financial Disclosure
Process for Presidential Nominees (Washington: April 2001), p. 2.
For example, Senator Hillary Rodham Clinton placed a hold on a nomination in
connection with concerns about air quality around Ground Zero after the collapse of
the World Trade Center. On the floor of the Senate, she stated:
When Governor Leavitt was nominated for the position of Administrator of the
EPA [Environmental Protection Agency], I made it clear to Governor Leavitt, to
my colleagues on the Environment and Public Works Committee, and to the
public I would put a hold on Governor Leavitt’s nomination. At that moment it
was the only means available to a single Senator to get the attention of the White73
House and to demonstrate the seriousness I believed these issues demanded.
Other reasons nominations may be blocked or delayed include retribution for actions
by other Senators or the President (“tit-for-tat”), efforts to “trade” confirmation of
one nomination for confirmation for another (packaging together several
nominations),74 efforts to gain a policy commitment from a nominee, or a need for
more time to gain or review information on a nomination.
In 2004, Congress acted to hasten Senate consideration of a subset of
nominations at the beginning of a new Administration. The Intelligence Reform and
Terrorism Prevention Act expressed “the sense of the Senate” about a timetable for
submission and consideration of high-level national security nominations during
transitions. Under this timetable, nominations to such positions should be submitted
by the President-elect to the Senate by Inauguration Day, and Senate consideration75
of all such nominations should be completed within 30 days of submission.
VIII. Potential Approaches to Determining
the Appropriate Number and Distribution
of PAS Positions
The analysis in the preceding section suggests that a decrease in the number of
PAS positions might ease the workload of Senate committees, facilitate a faster
average confirmation time, and reduce the overall length of the appointment process.
It further suggests that these benefits could be contingent on which positions are
converted to another appointment method. The greatest effect could come from the
conversion of higher-level positions, just the kind of positions that Congress might
be most reluctant to convert.
If Congress elected to reduce the number of PAS positions for these or other
reasons, this activity could be considered as part of a larger congressional task:
determining the appropriate number and distribution of PAS positions. To a
considerable extent, the Constitution gives Congress discretion over the
determination of which officers will be subject to the advice and consent of the
73 Sen. Hillary Rodham Clinton, remarks in the Senate, Congressional Record, daily edition,
vol. 149, Oct. 27, 2003, p. S13248.
74 See G. Calvin Mackenzie, “The State of the Appointments Process,” p. 33.
75 P.L. 108-458, Section 7601(b).
Senate, and which may be appointed by the President alone, the courts, or agency
heads. This determination is likely to have consequences for Congress, the
President, agency heads, and other interested parties. Given the potential impact of
congressional decisions about the number and distribution of PAS positions, how
might Congress go about making these determinations? What institutional and
political considerations are relevant in the decision making process? What are some
alternative ways for approaching this task?
Although the President’s role has evolved into that of chief manager of the
federal bureaucracy, Congress has a clear and longstanding role as co-manager of the
national administration.76 The role of the Senate in the appointment process is just
one of the ways Congress is involved in shaping the organization and activities of
federal governmental entities and programs. Congress establishes departments and
agencies, and, to whatever degree it chooses, the internal organization of agencies.
Congress, through law, also determines the missions of agencies, defines the
parameters of personnel systems, provides funding through the appropriations
process, and ultimately determines, through the authorization process, whether
agencies and programs shall continue in existence. Congress also co-manages the
federal bureaucracy through its oversight role. Senators sometimes use confirmation
hearings as one venue for conducting oversight.
When Congress delegates the authority for the appointment of an inferior officer
to the President alone or to an agency head, it cedes some power over the federal
bureaucracy to the executive. In such a case, Congress, particularly the Senate, may
have reduced influence over the selection of the individual, and it gives up the
opportunity to consider the individual’s merits. In addition, congressional
committees may have greater difficulty obtaining testimony from an appointee who
has not been confirmed by the Senate. As previously mentioned, the Senate usually
gains, during the confirmation process, a commitment from the nominee to respond
to requests to come before committees of the Senate.77 This commitment may not
76 For a detailed discussion of the roles of Congress and the President in federal
administration, see Louis Fisher, The Politics of Shared Power: Congress and the Executive,th
of the evolution, during the 20 century, of the role of Congress in federal administration,
see David H. Rosenbloom, Building a Legislative-Centered Public Administration:
Congress and the Administrative State, 1946-1999 (Tuscaloosa: The University of Alabama
77 This practice dates back to the early 1970s, and it grew out of conflict between President
Richard Nixon and the Senate regarding the refusal of Secretary of State William P. Rogers
and National Security Advisor Henry A. Kissinger to testify, in January 1973, before the
Senate Foreign Relations Committee regarding the President’s Vietnam War policies. The
Senate Democratic Conference, representing the then majority, subsequently adopted a
resolution stating, in part, “That a prerequisite to confirmation is the commitment of
Presidential appointees to appear and testify before duly constituted Committees of the
Senate in response to committee requests.” Sen. Mike Mansfield, “Three Resolutions Passed
by the Democratic Conference on January 11, 1973,” Congressional Record, vol. 119, Jan.
be necessary, under most circumstances, to obtain testimony. An argument could be
made that Congress has the authority to call most officers with operational duties,
regardless of appointment status, before its committees. As a practical matter,
however, the commitment obtained at the time of confirmation may make this
process easier for Congress. Congress could strengthen its oversight ability by
stipulating, in law, that all officers with operational responsibilities are obligated to
respond to congressional committees of jurisdiction.
Several participants in the political process, including Congress, the President,
agency heads, and interest groups, have a political stake in the arrangements by
which the number and distribution of PAS positions are determined.
Congress. Although certain high-level policymaking positions, such as
secretary and administrator, are routinely subject to the advice and consent of the
Senate, many subordinate PAS positions require confirmation because Congress
asserted its constitutional prerogative. That is, some Members of Congress saw a
need, at some point, to establish each PAS position as an advice and consent position.
Thus, it might be difficult to change the appointment method for such positions if the
interest in asserting that prerogative is ongoing.
It could be argued that the confirmation process, in general, provides the Senate
with leverage during negotiations with the President over related and unrelated
matters. The perception that a reduction in the number of PAS positions might
reduce this leverage might add difficulty to the process of changing the appointment
method for positions presently filled through the PAS process. It might also be
perceived, however, that the reduction in the number of PAS positions would be
limited and that the remaining PAS positions might provide Congress with nearly the
same level of leverage as now exists.
If the appointment method for some positions were changed, Members of
Congress, particularly Senators, might have less influence in the selection of
appointees to these positions than they now enjoy. The perception that congressional
influence might be diminished in this way might lead to difficulties in selecting PAS
positions for reduction. This might be particularly true for state-level positions, such
as U.S. attorney, U.S. marshal, and district judge, because of the significant role that
home-state Senators often play in their selection.
The President. The President stands to gain if PAS positions are converted
into political appointments by him alone or by agency heads. Political appointees of
this type, who do not need Senate confirmation, could be more responsive and
accountable to the President than they would otherwise be. With their primary
allegiance to the President or agency head, they might be more likely to implement
energetically the President’s management and policy priorities. Such appointees
Congressional Quarterly Weekly Report, vol. 31, Feb. 10, 1973, p. 294.
would not have made commitments to the Senate during the confirmation process,
nor would they necessarily have developed relationships with Senators and
congressional staffers during the appointment process. The Administration would
have more latitude in determining if, and under what circumstances, appointees
would be permitted to testify before congressional committees. This discretion
would not be absolute, however, since Congress would continue to have other points
of political leverage, such as the appropriations process.
Agency Heads. Although agency heads are aligned politically with the
President, they are likely to prefer, where possible, to have significant leeway in the
selection of appointees to positions within their organizations. This would permit
them to exercise the greatest control over the implementation of policy and
management goals in their agencies. The White House often consults with agency
leaders when making appointments to presidentially appointed positions. If PAS
positions are to be filled through another appointment method, however, agency
heads might benefit most when such positions are converted to noncareer SES
positions, to which individuals are appointed by the agency head.
Interest Groups. Various politically active groups seek to influence the
selection of federal policymaking officials. The political considerations for these
groups are likely to vary depending on several factors. To the degree that a group is
more strongly aligned with, and has greater influence with, one party or another, it
is likely to prefer that the appointment process be centered where its preferred party
is in power. Because of the rights accorded the minority in the Senate and the power
of individual Senators, some interest groups might prefer the advice and consent
process even if the party with which they are affiliated does not control the chamber.
Senate allies could serve to check the appointment power of the President, as the
Constitution contemplates. The preference of an interest group for a particular
appointment method might be influenced also by the political advantage associated
with a certain level of visibility. In some cases, an interest group might prefer the
greater visibility of Senate hearings for a nominee, because they might serve to
highlight certain policy issues. Furthermore, even if the preferred candidate of the
group is not confirmed, rejection in the Senate can sometimes serve to galvanize the
supporters of the policies of the rejected nominee. In other cases, however, an
interest group might prefer to work “behind the scenes,” at the agency level, to
support a particular appointment.
Options for Congressional Consideration
Option 1: Maintain the Status Quo. Congress could maintain the current
number and distribution of PAS positions. Under this option, the number of PAS
positions would not be systematically reduced, and the primary means by which
Congress would determine which positions would be subject to advice and consent
would be through the legislative process. The present arrangements are firmly
grounded in the Constitution and provide institutional and political benefits to
Congress, especially the Senate.
Arguably, appointees who are confirmed by the Senate could be more
responsive to Congress than those who are not. As noted above, during confirmation,
most nominees agree to testify, as requested, before committees of Congress, making
such cooperation somewhat easier to obtain than it would be otherwise. In addition,
relationships may be built between the nominee and committee staffers or Senators
during the confirmation process, relationships that may be helpful in resolving
substantive issues arising at a later date. Senators also may obtain, during
confirmation, a nominee’s commitment to a particular action.
Senators also may use the confirmation process as a vehicle for oversight.
Nomination hearings offer an opportunity to review programs in depth. Under the
present arrangements, Senators also gain political leverage, through the use of holds,
for example, that they can use during negotiations with the President or other
Senators. Senators enjoy, as well, significant influence in the appointment of home
state officials (e.g., U.S. attorneys, marshals, and district court judges) when the
President is of the same party. Finally, continuation of the status quo would avoid
the process of selecting positions to be filled through other appointment methods,
which might prove politically difficult.
Although continuation of the status quo appears to offer many institutional and
political benefits to Senators, there are potential drawbacks for the Senate. As noted
at the beginning of this report, commissions and task forces, as well as some
Members of Congress, have been calling for changes in the appointment process.
The salience of this issue might grow as agencies submit statutorily required PAS
position reduction plans.78 To the degree that the Senate becomes identified with the
problems in this process, it could lose some prestige as an institution. In addition,
the committee consideration process, particularly for higher-level nominations,
consumes significant time and resources that might be used for other important
matters. Each of these drawbacks might be magnified if, as has happened in the past,
the number of PAS positions increases.
The status quo has disadvantages for the President as well. The President is
held accountable, by the public and Congress, for the day-to-day management of the
federal bureaucracy. Sharing appointment power with Congress may hinder the
President’s ability to carry out management reforms, as well as his political agenda,
if his appointees are accountable both to Congress and to him.
Option 2: Create an Advisory Commission. Congress could create an
advisory commission to study the number and distribution of PAS positions and
make recommendations on an agency-by-agency basis for the reduction (or increase)
of positions. Such an advisory commission might study, from a congressional
perspective, the PAS position reduction plans provided by agency heads, or it might
make an independent assessment without consideration of those plans. Congress
then could consider the commission’s recommendations and implement them as
appropriate. One benefit of this approach is that the subject could be studied outside
of the immediate political process, providing for a more objective assessment of how
78 As noted above, the Intelligence Reform and Terrorism Prevention Act of 2004 directs
each agency head to submit an advice and consent position reduction plan, with specified
contents, to the President, the Senate Committee on Homeland Security and Governmental
Affairs, and the House Committee on Government Reform within 180 days of enactment
(P.L. 108-458, Section 8403(c)).
Congress might proceed. In addition, in the short term, Congress might be seen as
responding to perceived problems with the appointment process. Furthermore, when
the commission reported its findings, Congress would retain control over which, if
any, of the recommendations to pursue. Finally, if Congress did not act on the
recommendations at the time of their release, the report could remain available and
provide a basis for future action to change the appointment process. The existence
of a report with recommendations, however, might provide political momentum that
would favor congressional action.79
There are several drawbacks to this option. One common complaint about the
creation of congressional commissions is that their findings are sometimes ignored
or marginalized. Congress probably could create a commission more easily than
implement its recommendations, because the institutional and political concerns
associated with a reduction in positions probably would still exist at the point of
implementation. Congress might increase the likelihood of eventual implementation
if the commission comprised high-profile members and if it were charged with
considering institutional and political issues during its deliberations. One further
drawback to this option is that, although the commission would be removed from the
immediate political process, it might be vulnerable to outside influence from political
leaders and interest groups. This potential drawback might be mitigated by balanced
representation of a variety of interested parties, including the President, on the
Option 3: Establish a Military Base Closure-Type Procedure.
Congress could establish an expedited, or “fast-track,” procedure to facilitate the
selection of PAS positions for reduction.80 Such a procedure could be modeled on
the one established by law, during the 1980s and 1990s, for military base closure and
realignment.81 This process was used several times in the 1990s, and a new round82
of base closures in 2005 was authorized by the FY2002 defense authorization act.
The current process involves the Secretary of Defense, the President, Congress,
and a commission whose members are appointed by the President with the advice and
consent of the Senate. Some of the nominees are recommended by the Speaker of
the House, the House minority leader, and the Senate majority and minority leaders.
79 See, for example, Colton C. Campbell, Discharging Congress: Government by
Commission (Westport Conn.: Praeger, 2002), p. 11.
80 For further information on expedited procedures, see CRS Report 98-888 GOV, “Fast-
Track” or Expedited Procedures: Their Purposes, Elements, and Implications, by
Christopher M. Davis, and CRS Report RL30599, Expedited Procedures in the House:
Variations Enacted Into Law, by Christopher M. Davis.
81 See U.S. Congress, House, Constitution, Jefferson’s Manual, and Rules of the House of
Representatives of the United States, H. Doc. 107-284, 107th Congress, 2nd sess.
(Washington: GPO, 2003), pp. 1168-1176. The use of expedited procedures to select
military bases for closure is discussed in CRS Report 97-305, Military Base Closures: A
Historical Review from 1988 to 1995, by David E. Lockwood and George Siehl. See also
CRS Report RL32216, Military Base Closures: Implementing the 2005 Round, by David E.
82 P.L. 107-107, Section 3001- 3003; 10 U.S.C. 2687 note.
The process, in brief, begins with the submission to congressional defense
committees, by the Secretary, of proposed and then final criteria to be used by the
secretary in forming recommendations regarding closure or realignment. These
criteria become final unless Congress disapproves. The Secretary then submits
recommendations, based on these criteria, to the commission. Following this, the
commission modifies the recommendations and submits them to the President, who
can either approve the recommendations, as drafted, and transmit them to Congress,
or not approve them and explain his reasons to the commission and Congress. Under
the latter circumstance, the commission then sends the President revised
recommendations for his approval, and transmission to Congress, or his rejection.
The only way Congress can block implementation of the recommendations at this
point is to pass a joint resolution of disapproval within 45 days of receiving them.
During that 45-day period, constraints on congressional activity included time limits
on committee consideration, time limits on debate, and a prohibition on
am endm ent s . 83
If Congress were to develop a similar procedure for reducing the number of PAS
positions, it might include provisions specifying, among other things, the following:
!the role of the Administration in the process;
!the structure, role, and authority of a commission;
!the role of congressional committees;
!the role of agencies, including the role, if any, of statutorily
mandated PAS position reduction plans;
!limits on debate and amendments; and
!time limits on various portions of the process.
If Congress were to pursue this option, the procedure that was established would
need to provide for legislative adoption of any recommended changes, since advice
and consent requirements, unlike military bases, are set in statute.
Expedited procedures have sometimes proven effective in accomplishing goals
that are politically difficult but important to Congress. The specifics of expedited
procedures vary, but while they generally include a role for the President and for
Congress, the provisions usually limit the ability of Members to block the process
once it is underway. Nonetheless, Congress as a whole retains the power, in the end,
to defeat objectionable legislative proposals.
Some observers of Congress argue that the slow, deliberative, and selective
nature of the legislative process acts as a check against hasty and unwise laws. Most
expedited procedures limit Members’ rights to debate and amend legislation and
thereby sidestep two of the hallmarks of congressional process. In addition to
frustrating Members’ ability to address their individual concerns, it could be argued
that these limitations close off an important avenue of legislative refinement. In
83 A joint resolution requires passage in both houses and the approval of the President, and
has the force of law. Congress may override a presidential veto of a joint resolution by a
two-thirds vote of both chambers.
particular, this option would give the Senate less control over the process than it now
has or than it probably would have under some other options.
Option 4: Select Categories of Positions for Reduction. Congress
could opt to use categories, such as military, foreign service, and public health officer
positions, judgeships, ambassadorships, and executive-level positions, when selecting
which offices to continue as PAS positions. This is essentially the approach
suggested by the Presidential Appointee Initiative in one of its recommendations:
The Congress should enact legislation providing that Senate confirmation only
be required of appointments of judges, ambassadors, executive-level positions
in the departments and agencies, and promotions of officers to the highest rank84
(0-10) in each of the service branches.
In testimony before the Senate Committee on Governmental Affairs, former Director
of the White House Office of Presidential Personnel Robert J. Nash also
recommended categories for reduction:
I also think we should consider reducing the number of part-time board and
commission members who are confirmed by the Senate. ... Examples could
include the National Endowment for the Humanities and agencies that don’t have85
security, national defense, those kinds of responsibilities.
This method has been used before. For example, collectors of internal revenue,86
collectors of customs,87 and postmasters88 were all converted from PAS positions to
84 Presidential Appointee Initiative, To Form a Government: A Bipartisan Plan to Improve
the Presidential Appointments Process (Washington: Brookings, 2001), p. 12.
85 U.S. Congress, Senate Committee on Governmental Affairs, The State of the Presidential
Appointment Process, hearings, 107th Cong., 1st sess., April 4-5, 2001 (Washington: GPO,
86 Prior to 1952, a number of positions in the Bureau of Internal Revenue, including some
64 collectors of internal revenue, were advice and consent positions. Following a series of
scandals, President Harry S Truman submitted to Congress a reorganization plan abolishing
these positions and establishing new positions under the classified civil service. Under the
Reorganization Act of 1949, a resolution of disapproval from either house of Congress
would have defeated the plan. Such resolutions failed to pass in both the House and the
Senate, and the plan went into effect on March 14, 1952. Under the reorganization plan, only
the commissioner of internal revenue continued to be a PAS position.
87 In 1952, President Truman submitted a reorganization plan for the Bureau of Customs, but
it was disapproved by the Senate and did not go into effect. In 1965, President Lyndon B.
Johnson submitted a similar plan to Congress, and, with neither the House nor the Senate
passing a resolution of disapproval, the plan went into effect on May 26, 1965. Under the
reorganization plan, 53 PAS positions were eliminated, and all positions in the bureau were
put into the civil service. The functions of the abolished positions were redelegated by the
Secretary of the Treasury.
88 Prior to 1970, postmasters throughout the United States were appointed by the President
with the advice and consent of the Senate. As part of the Postal Reorganization Act that
year, Congress established that the Postmaster General would appoint postmasters in the
competitive service positions during reorganizations of the agencies within which
they resided. Two of these three reorganizations were accomplished through
presidential reorganization authority, which is currently dormant.89
The Constitution uses categories—“Ambassadors, other public Ministers and
Consuls, Judges of the supreme Court”90—to specify which positions must be filled
through appointment by the President with the advice and consent of the Senate.
Congress might elect, for example, to remove categorically from PAS status all
military, Coast Guard, foreign service, public health, or NOAA officer appointments
and promotions below the top ranks. Removing any one of these categories would
greatly reduce the number of PAS positions but probably lead to little loss of political
and institutional benefit. Such an action might have symbolic, as well as real,
impact, and might build political momentum for further changes. In addition, it
might lead to greater efficiency in carrying out promotions at agencies and in the
armed forces. Retaining top officer positions in PAS status arguably could provide
Congress with more focused, and, therefore, meaningful, control and accountability
than it has at present.
Because of routinized approaches to these categories of nominations, which are
usually considered en bloc, this option may be least likely to have any impact on the
issues of concern to commissions and task forces—namely, that the appointment
process is too long and inefficient. In addition, some officer corps and other
appointees may value Senate confirmation as a matter of tradition or prestige, and the
use of alternative methods for such appointments might have a negative impact on
Option 5: Reduce the Number of Positions by Function. Congress
could elect to reduce the number of PAS positions according to the functions of the
positions. For example, assistant secretaries for policy might continue to be PAS
positions, while assistant secretaries for public affairs could be appointed by
departmental secretaries. Under the assumption that, in general, officers in
programmatic positions exercise more policymaking discretion than those in non-
programmatic positions, Congress might opt to require advice and consent for the
former and not the latter.
Some would argue, however, that there are few purely non-policymaking,
apolitical functions at the leadership levels of agencies. For example, an argument
could be made that general counsels are staff positions that involve providing neutral
legal advice. From this point of view, agency heads should be entitled to appoint
neutral, competent senior executives to such positions. But in some cases, general
competitive civil service. The goal of this change was to establish merit-based management
for the newly reorganized Postal Service. In addition, the change removed appointments to
several thousand lower-level positions from the purview of the Senate.
89 The President’s reorganization authority, which was codified at 5 U.S.C. 901-912, lapsed
in 1984 and has not been renewed since. See CRS Report RL30876, The President’s
Reorganization Authority: Review and Analysis, by Ronald C. Moe.
90 Article II, Section 2, cl. 2.
counsels may have considerable influence in the policy arena. For example, offices
of general counsel are often involved preparing legislation, commenting on
legislation to OMB, conducting regulatory and legislative clearance, defending the
agency against legal challenges, helping to draft agency testimony, and briefing those
who deliver it, all of which involve policymaking discretion. Approaches of general
counsels range from providing information about whether or not action is legal to
“devis[ing] plans that will achieve the objective, identifying risks and developing
options for pursuing and obtaining policy goals.”91
Option 6: Distribute PAS Positions in Proportion to Agency Size.
Congress also could approach the effort to reduce the number of PAS positions by
attempting to distribute PAS positions in relation to the size of each agency. Under
this approach, those departments with a greater number of career employees and non-
PAS political appointees92 would have a greater number of PAS positions. The logic
behind this option is that Congress, as co-manager of the federal bureaucracy, should
have a proportional number of accountable appointees throughout the agencies,
analogous to the span of control in traditional management hierarchies. At present,
the distribution of PAS positions across agencies varies widely. For example, as of
January 2003, the Department of Education employed 269 people for every full-time
PAS position, while the Department of Defense ratio was 13,151 to one.93
To the degree that PAS appointees are more accountable to Congress, this
option might help to make accountability across the agencies more uniform. It
appears to be a rational approach to administering the federal government, if
Congress sees itself as a co-manager of the bureaucracy. This method has potential
drawbacks as well, however. First, Members may have particular policy areas of
greater concern than others, and may prefer to have more PAS appointees in these
areas. In addition, the interest in strong oversight and accountability might be
stronger in some areas than others. Some arenas may be seen as more the province
of the President, and, therefore, Congress may expect less direct accountability. It
should also be noted that this approach might be more likely to result in an increase
in the number of PAS positions. Members might see the need for greater numbers
of PAS positions to mitigate high ratios and be reluctant to give up such positions
where lower ratios already exist. Finally, the workload for Senate committees with
jurisdiction over large departments, such as the Armed Services Committee, could
be greatly increased.
Option 7: Delegate Selection of Positions for Reduction to
Committees of Jurisdiction. Congress might ask congressional committees,
91 John H. Trattner, The 2000 Prune Book (Washington: Brookings Institution Press, 2000),
92 This includes presidential appointments not requiring Senate confirmation, and Schedule
C and noncareer SES appointments, as described above.
93 The Department of Education had 4,572 employees and 17 PAS positions, while the
Department of Defense had 670,724 employees and 51 PAS positions. Employment
statistics are from U.S. Office of Personnel Management, Federal Civilian Workforce
Statistics: Employment and Trends as of January 2003 (Washington, Aug. 2003), p. 13.
PAS position information is from CRS Report RL31346.
which are likely to have the closest experience with particular positions, to suggest
which PAS positions would be appropriate to appoint through another method. This
approach could provide more focused congressional control over the reduction
process. It would place the first step in the decision making process where it is likely
to serve Congress’s institutional interests. Committees are familiar with oversight
and accountability needs and might be most able to assess where less direct control
through the confirmation process might be workable. In addition, proponents of a
reduction in the number of PAS positions might be more likely to get cooperation on
the Senate floor if committees have had significant input into their areas of greatest
This option has several potential drawbacks, however. First, committees do not
have an incentive to suggest significant reductions in the number of PAS positions.
It could be argued that they would be giving up some authority, while the only benefit
might be a possible reduction in workload. Second, this approach has no explicit
avenue of input for the President. An approach that is rational from the point of view
of congressional committees might not yield an outcome that is rational from the
point of view of the President’s priorities or management goals. Finally, it could
prove difficult to determine a target number of positions to convert for each
committee, and it might, therefore, be difficult to provide committees with specific
targets. Some committees have jurisdiction over many appointments; others, few.
Option 8: Establish Restrictions on Appointments to Certain
Positions. Congress could change the appointment method for a number of PAS
positions and then restrict the President’s appointment authority for some of those
positions. For example, Congress could specify, in statute, qualifications required
for the holders of certain positions. Current law includes a number of examples of
such requirements, including the provisions for appointment of the controller at the
head of the Office of Federal Financial Management:
The Controller shall be appointed from among individuals who possess - (1)
demonstrated ability and practical experience in accounting, financial
management, and financial systems; and (2) extensive practical experience in94
financial management in large governmental or business entities.
Alternatively, Congress could specify a process for determining the appropriate
qualifications for the position. Either approach could allow Congress to retain some
control over the qualities of the appointed individual while reducing the number of
Another way for Congress to restrict the President’s appointment power might
be to specify that he must appoint from among nominees submitted to him by
particular organizations or offices. For example, the 11 members of the Nuclear
Waste Technical Review Board “shall be appointed by the President ... from among
[the not less than 22] persons nominated by the National Academy of Sciences.” The
94 31 U.S.C. 504(b).
nominees, in turn, must meet a number of qualifications, including being “eminent
in a field of science or engineering.”95
To the degree that Congress’s concern is to influence the qualifications of PAS
appointees and prevent unqualified people from being appointed, this option offers
a possible way of doing so without going through the advice and consent process.
The option does not address other institutional and political concerns, however,
including the potential loss of political leverage, oversight, and accountability.
Option 9: Require Notification by President of Some Non-PAS
Appointments. Congress could reduce the number of PAS positions and require
that the President notify appropriate Members of Congress (e.g., leaders in each
chamber, relevant committee chairs) upon appointment of an individual to some or
all of these positions. The notification could be required to include the qualifications
of the appointee and the reasons for his or her selection. A notification period also
could be specified. This requirement would be similar to present statutory
requirements for removal of incumbents from certain positions. For example, the
U.S. Code provides that if the President dismisses the Director of the Mint, “the96
President shall send a message to the Senate giving the reasons for removal.” This
option might mitigate the loss of congressional authority with regard to certain
positions. It would provide Congress with an intermediate level of involvement in
the appointment process for certain positions. Although Senators might lose the
opportunity to evaluate qualifications before the appointment and the political
leverage associated with the confirmation process for the particular position, this
approach could maintain a greater level of accountability from the President for his
appointment choices than would be the case if no notification were required.
A Comparison of Options
The options delineated above reflect different approaches to congressional
determination of the number and distribution of PAS positions in the federal
bureaucracy. Each balances the range of institutional and political considerations
differently. The first option, maintaining the status quo, is the default option. Since
it continues the present appointment arrangements, it probably offers the least
institutional and political risk for Members, particularly Senators. This choice may
have political consequences, however, if observers blame Congress, particularly the
Senate, for a lengthening appointment process for increasing numbers of important
positions. Already, commissions, such as those mentioned above, have drawn
attention to perceived shortcomings in the appointment process for positions subject
to Senate confirmation. As noted above, the submission of PAS position reduction
plans by agency heads, as required by the Intelligence Reform and Terrorism
Prevention Act, might increase the salience of this issue. If political momentum for
changes to the appointment process grows in the future, Congress might, at some
point, have less political control over the reform agenda than it now has. For this
reason, Congress might benefit politically from a reduction in the number of PAS
95 42 U.S.C. 10262(b).
96 31 U.S.C. 304(b)(1).
positions, even if the benefits to the appointment process of such a reduction are not
clear. It is unclear to what degree such benefits might offset the potential political
If Congress opts to reduce the number of PAS positions, a functional or
proportional distribution approach might best protect its institutional interests. A
functional approach would allow Congress to maintain a greater role in, and give
closer attention to, higher-priority functions. A proportional distribution approach
might lead to more uniform accountability to Congress across departments and
agencies. Alternatively, it could be argued that committees with oversight
responsibilities are in the best position to determine where Congress needs the most
accountability, and that their recommendations should be given the greatest weight
in a reduction process. Any perceived loss of senatorial authority resulting from
reductions under these methods might be mitigated by the establishment of
restrictions or notification procedures for certain positions no longer subject to advice
and consent requirements. The adoption of an expedited procedure might afford
Congress the least control over the process and serve its institutional interests least
The institutional interests of the President, as manager-in-chief, may be best
served when positions involve political appointments without the advice and consent
of the Senate, and have no associated qualifications or other restrictions. Political
appointees who are not confirmed by the Senate might be more responsive to the
President than they would be if they were approved by the Senate as well. Increased
allegiance from such appointees might strengthen the President’s ability to “take Care
that the Laws be faithfully executed.”97 From this perspective, any of the options that
convert PAS positions to positions involving political appointments not subject to
advice and consent would be preferable to the status quo. The establishment of an
expedited procedure might be the most preferred option, if the President were
accorded a significant role in selecting which positions should no longer require
Senate confirmation of nominees.
Two of the options identified above address potential political challenges
associated with PAS position reductions. First, the reduction process might be
centered in the committees, so that committees would suggest lists of positions for
consideration. Committees might be best able to suggest which PAS positions could
be converted to non-PAS status at the lowest political cost. Nonetheless, it might
prove too politically difficult, in this way, to select a significant number of positions
for conversion, since Senate committees have a vested interest in continuing to
participate in the confirmation of appointees to positions within their jurisdiction.
Alternatively, the political difficulties associated with selecting PAS positions for
reduction could be circumvented by centering the selection process outside Congress
in a commission, with or without an expedited procedure. Although this method
might be the most politically feasible option, it arguably might have significant
institutional costs, as discussed above.
97 U.S. Constitution, Art. I, Section 3.
If Members of Congress envision the reduction of the number of PAS positions
as a first step toward comprehensive reform of the appointment process, the
magnitude of the reduction might not be as important as it would be if such a
reduction were viewed as an end in itself. Even if the reduction achieved did not
significantly improve the functioning of the Senate or reduce the length of the
appointment process, it might establish a coalition of proponents of reform who
could work together for further changes. Such an achievement also could serve to
provide a precedent and momentum for further PAS position reductions or reform of
various parts of the vetting process.
A Combination of Approaches
When institutional and political factors are considered, Congress might choose
to develop a process that combines several of the options above. For example, the
initial process might involve a group of representatives from various congressional
committees, so that political considerations could be incorporated. The process
might begin with a categorization of the pool of PAS positions into principal officers
and inferior officers. The former group would be exempt from the remainder of the
process, for constitutional reasons. The remaining pool might be further categorized
in other ways. It could be divided into routine and non-routine or full-time and part-
time appointments, for example. These groups of positions could be further assessed
along functional lines to see if there is common agreement that certain functions do
not require the closest attention of Congress. Positions also could be assessed by
department and agency to determine whether Congress would be weakened as an
institution by a decrease in the number of PAS positions in a particular organization.
In some cases, the statutorily required PAS position reduction plans or further
specified study by a commission or task force might assist Congress in its
determinations. If such a process proved to be politically untenable, Congress might
opt to create an expedited procedure for the reduction of positions. For some of the
positions with changed appointment methods, Congress might establish statutory
qualifications or other restrictions on the President’s appointment authority. In
addition, or instead, Congress might establish appointment notification requirements
for newly converted positions. This is just one example of the way the options
discussed above might be combined.
Whatever additional legislative action it might elect to pursue with regard to
determining the number and distribution of PAS positions in the federal bureaucracy,
Congress might include a sunset provision so that appointment provisions would
revert to their pre-existing status after some period of time unless Congress acted to
make the changes permanent. If some Members were uncertain about the impact of
certain changes, this provision could provide a trial period to allow Congress to
assess whether the benefits of the changes outweighed any drawbacks