THE TRANSITION DELAY: A SIGNIFICANT SETBACK FOR THE NEW PRESIDENT

By JOHN DEAN

Friday, Nov. 24, 2000

The delay in determining a winner of the Florida election is denying the next president vital time necessary to prepare for the task of governing. The transition from campaigning to head of state is difficult under the best of circumstances, when a president-elect has the usual seventy-three days between his November 7th victory and January 20th inauguration. Experts calculate that during this eleven-week transition period, the president-elect normally has only about 1000 working hours (even assuming staff members toil for 13.5 hours per day) to form his new government. This year, the next president has already lost over two weeks of transition time, and he may lose more. While this truncated transition is not yet a crisis, it is a problem that could become very serious.

[Election Delay]

No newly elected president has ever commenced his term with so drastically foreshortened a period to prepare for running the country. While we've had Vice Presidents assume the Office of the President because of death or resignation, this is not the same as starting from scratch. Should no president-elect be declared before December 12th (federal law’s cutoff date for the states to resolve disputed election results), it could have a devastating impact on the new administration.

Transition Logistics

Since 1963, with the enactment of the Presidential Transition Act, the government has provided office facilities, and paid for personnel and travel costs, for the president-elect's transition team. Pursuant to this law, the Administrator of the General Services Administration (the agency that houses, and provides housekeeping and payroll for, most of the Executive Branch) has set aside 90,000 square feet of prime office space on G Street in the nation's Capital, only three blocks from the White House, along with $5.3 million for the new president-elect. But before the office space and money are put to use, GSA’s Administrator must "ascertain" who is "the apparent successful candidate," and, at this time, he has no more idea than anyone else does. So the offices remain empty, and the work of transition remains undone.

Among other things, a massive recruiting effort must take place before the new President moves into the White House. Unlike any other organization, the White House becomes vacant when one president leaves before the arrival of his successor. Stuart Eisenstat, President Carter's top domestic policy adviser, never forgot arriving at the White House on January 20th: "One of the things you're not prepared for, even with a good transition, is coming into an empty White House. The outgoing president's pictures are gone. The staff is gone. You come into the most eerie building, totally empty."

All the top people throughout the Executive Branch leave by noon on January 20th. The cabinet secretaries, agency directors, assorted commission chairpersons, along with their deputies, assistants, and other lower level presidential appointees will remove everything but paper clips from their desks, and be gone.

Thus, between 3000 to 4000 vacancies must be filled by the new president. And these hires are crucial: These are the people who will develop and implement the president's policies.

A Victor Is Needed for a True Transition

Presumably, both the Gore and Bush camps — as their predecessors did — are making plans for their new administrations. With Democrats in control of the Executive Branch, a shortened transition would be less difficult for Al Gore than for George W. Bush, who would have to oust the incumbent Democrats and select his own people. But for either candidate, transition will be difficult, and more so with each passing day.

Clearly the current election limbo, combined with the post-election litigation and public relations spin, is anything but conducive to the serious decision-making necessary to plan a new administration. This apparently prompted Vice President Gore to suggest that he and Governor Bush formally commence the transition process, regardless of the outcome. But a true transition is not possible.

Historically, after the election, the winning candidate metamorphoses into a president-elect, becoming a person whose stature is lifted from that of merely another mortal to that of the soon-to-be leader of the free world. When this happens, his words and actions take on new importance and meaning — here and around the world. Baptized with a new prestige, the president-elect engages in ceremonial meetings and private lunches, thanks his friends and supporters, and plans his presidency while, at the same time, he reaches out to adversaries to close partisan gaps and hopefully facilitate his ability to govern.

For example, because of the troubled economy confronting Bill Clinton in 1992, he held a marathon economic conference in Little Rock during his transition, a decision that was good for both the president-elect and the country. During the 1988 transition, President Reagan had president-elect George H. W. Bush join him at a working lunch with Soviet leader Mikhail Gorbachev, which established for the Soviets and the world, the continuity of both Presidential power and American foreign policy. Transitions typically seek to foster the "presidential honeymoon" that is afforded a new president at the start of his term.

With this election still contested, and the surrogates from the opposing camps becoming more shrill and combative, lodging steadily escalating charges and counter-charges of misconduct, it is difficult to imagine how either the Gore or Bush teams can effectively focus on the work of a presidential transition. Yet it is time to lower the partisan rhetoric, develop the policies for the new presidency, and select the people to implement those policies.

Selecting and Appointing New People for a New Administration

On the day after the presidential election, Congress publishes a list of all of the Executive Branch's top positions, and the names of the last incumbents. Within the Beltway, this tome is fondly known as "The Plum Book." The Plum Book indicates that currently there are 1203 presidential appointments that require Senate confirmation (Appendix No. 1), and The Washington Post reports that about 600 of these will be vacant (or available, depending on your point of view) on January 20, 2001. These are the top jobs, the sweetest plums.

Every one of these jobs requires an FBI background check of the nominee before the Senate will confirm. To hit the street running and assemble the key players of the new administration, over 200,000 resumes will be entered into a database; from this source, the nominees will be selected and vetted by the transition lawyers for ethics and conflicts of interest problems. Each nominee will have to assemble information about his or her life by filling out stacks of forms that will be passed to the FBI so it can investigate the nominee; also most of these people must be tutored on how to survive a confirmation proceeding.

Many of these positions will require Congressional schmoozing by the new administration to assure confirmation and keep Senatorial feathers from being ruffled. While the FBI and the Senate traditionally will expedite a new president's Cabinet selections, this courtesy will not reach down to the assistant secretary level. To assemble and get confirmed the key players for a new administration can take up to eight months, even provided much of the heavy lifting is done during the transition. To fill all 4000 jobs may take up to a year or more. It is a big assignment, and delays hurt.

So do mistakes. A wrong selection for a presidential nomination can damage a president, not to mention the nominee. For example, Pappy Bush's White House took a serious hit, from which it was slow to recover, when it nominated former Texas Senator John Tower to be Secretary of Defense. How he made it through the vetting process, when his drinking and carousing problems were well-known, amazed many, and no one was surprised when his former colleagues in the Senate found him unsuitable for the post. President Clinton's efforts to appoint a woman Attorney General also showed vetting errors, for it took only a few "nanny" seconds to reject Zoe Baird, a working woman who had hired a housekeeper but failed to deduct and pay social security. Cabinet posts are heavily vetted so that no one is embarrassed, and having taken several persons through that process, I can attest to the time it takes, and that it is an ordeal.

Usually, a president-elect promotes post-election interest in his presidency by announcing his major appointments — starting within days of the election by announcing senior members of his White House staff, and following with announcements of his national security team (the Secretary of State and White House national security advisory) and then his economic advisers (the Secretary of the Treasury, the Secretary of Commerce, the Budget Director).

Richard Nixon announced his entire cabinet during the sixth week of the transition. He also did something unusual. He selected as Attorney General his former law partner and campaign manager, John N. Mitchell, who (I now know) said he would not serve in the Cabinet if he was subjected to an FBI background investigation. Nixon worked this issue out with FBI Director J. Edgar Hoover, and Mitchell was never investigated. The Senate Judiciary Committee, under Chairman James O. Eastland (of Mississippi), confirmed Mitchell without a peep. I can only surmise the political cost of this arrangement.

Today, no president could get away with such a ploy. To the contrary, given the partisan split of the Senate, the new president will have to take extra care in selecting and vetting his appointees for the opposition is waiting for mistakes and an opportunity to score political points. Unfortunately, the confirmation process is considered a legitimate blood sport in the Capital City.

Transition for a New President without a Mandate

Typically, the president-elect starts the transition by selecting the staff he needs to help him formulate policy. As policy is developed, its direction suggests other persons who should be asked to join the administration.

Setting the agenda for a new administration commonly occurs during the campaign. But since neither Bush nor Gore has a mandate, much of the transition must focus on this problem. Not since the Kennedy-Nixon election in 1960 has the country been so evenly divided. Thus, the next president will be considering fundamental questions: Should the new administration include opposition party people? To what degree? How can the new president deal with the expectations of the constituencies that supported his candidacy? Which campaign promises should be promoted, given the absence of a mandate? These are but a few of the many hard questions that must be answered between now and January 20th.

Because of the election imbroglio, the tightness of the race and the delayed transition, I believe the new president will be able to develop only limited policy plans. It is not a time for an activist president. Given the situation, I will be surprised if there is any honeymoon period for the next president. Rather, I anticipate that the new president will devote a considerable amount of energy to the 2002 Congressional races, for if he can increase his power with the Congress, he may be able to provide his presidency with a belated popular mandate.

But come January 20th, he will begin the greatest challenge of his political life, notwithstanding the setback of a delayed, maybe even denied, transition into office. This hampered transition will test his skills as a manager and leader at the very outset of his presidency.

John Dean, a FindLaw columnist, is a former Counsel to the President of the United States.

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