Proposals for Reform Volume II: National Task Force on Rule of Law & Democracy

In recent years, the norms and expectations that once ensured that our government was guided primarily by the public interest rather than by individual or partisan interest have significantly weakened. There are now far fewer constraints to deter abuse by executive branch actors. This report focuses on two distinct areas: the growing politicization of government science and research and the breakdown of processes for filling key government positions.

Objective data and research are essential to effective governance and democratic oversight. But over the last few decades, the safeguards meant to keep government research objective and publicly accessible have been steadily weakening. Recent administrations have manipulated the findings of government scientists and researchers, retaliated against career researchers for political reasons, invited outside special interests to shape research priorities, undermined and sidelined advisory committees staffed by scientists, and suppressed research and analysis from public view — often material that had previously been made available. In many cases, they have appeared to pay little political price for these missteps. This trend has culminated in the efforts of the current administration not only to politicize scientific and technical research on a range of topics, but also, at times, to undermine the value of objective facts themselves.

Now, we are at a crisis point, with almost weekly violations of previously respected safeguards.

• The acting White House chief of staff reportedly instructed the secretary of commerce to have the National Oceanic and Atmospheric Administration (NOAA) — a part of the Department of Commerce — issue a misleading statement in support of the president’s false assertion about the trajectory of a hurricane, contradicting an earlier statement released by the National Weather Service. The secretary of commerce reportedly threatened to fire top NOAA officials in pressuring them to act.
• The Department of Agriculture relocated economists across the country after they published findings showing the financial harms to farmers of the administration’s trade policies.
• The Interior Department reassigned its top climate scientist to an accounting role after he highlighted dangers posed by climate change.
• The Environmental Protection Agency (EPA) adopted rules that prevent leading experts from serving on science advisory boards and encourage participation by industry-affiliated researchers.
• The White House suppressed a report showing a toxic substance that is present in several states’ water supplies endangers human health at levels far lower than previously reported by the EPA.

Political officials have the prerogative to make policy decisions, and even challenge the science and methodology of career experts, but accurate, nonpolitical, government-supported research and analysis should be protected. Indeed, government research has shifted the course of human history through, for example, the space race, cures for disease, food- and water-safety measures, and computer and internet technology innovations.

Effective government also depends on a reliable process for filling senior government positions with qualified professionals who are dedicated to doing the people’s work. Recent presidents have filled critical jobs with unqualified cronies while leaving other posts vacant, and have found ways to sidestep the Senate’s approval role, nullifying a crucial constitutional check. For their part, lawmakers have rubber-stamped some nominees who are unqualified or have conflicts of interest while dragging their feet on considering others, often based on whether or not the Senate majority and the president share a party.

The consequences are readily apparent: less than half the senior roles at the Departments of Justice and Homeland Security are filled; at least a dozen agencies — including two cabinet departments — are run by non-Senate-confirmed acting officials two years into this administration; and the Senate confirmation process takes five times longer than it did 40 years ago.

If left unchecked, both of these trends are likely to do damage. Government research that is guided by politics, not the facts, can lead to ineffective and costly policy, among other harms, and a dysfunctional appointments process risks stymieing vital government functions. Both developments also threaten to exact a long-term price, if allowed to stand. They risk creating a vicious cycle, opening the door to abuse by future administrations, which may push the envelope ever further.

We are committed to teaching future administrations the opposite lesson — that these abuses of power violate broadly recognized standards of honest and effective government, long accepted by both political parties. Abuse once again can beget reform. And the task of advancing this reform could not be more urgent, and cannot be for one or another party alone.

We have big problems to solve in this nation. If we cannot agree on the facts underlying potential solutions to those problems, and we do not have qualified and dedicated people in place to develop and execute on them, we will imperil the future of our democracy.

To protect government research from politicization and keep it accessible, we offer proposals that would

• create scientific integrity standards and require agencies to establish protocols for adhering to them,
• prohibit politically motivated manipulation or suppression of research,
• ensure the proper functioning of scientific advisory committees, and
• increase public access to government research and data.

To fix the process for filling senior government positions, we offer proposals that would

• encourage the appointment of qualified and ethical people to key government posts,
• make it harder for presidents to sideline the Senate during the process,
• streamline the confirmation process for executive branch nominees, and
• protect national security by fixing the vulnerable White House security clearance process.

Our proposals narrowly target areas that are ripe for executive abuse. But as former federal government officials, we have seen up close how other factors contribute to government dysfunction and undermine democratic values. We conclude this report by highlighting these factors — in particular, our broken campaign finance system, the president’s expansive emergency powers, the weakening of Congress as a check on the executive, and the politicization of the judiciary — and we reaffirm the essential role that a functioning system of checks and balances plays in protecting our democracy.

The process of governing, while inherently political, must still be grounded in an accurate assessment of reality. For this reason, the United States has long invested significant government resources in research and the production of objective data on virtually every issue that impacts society and public policy, mostly through a range of executive branch agencies and departments. As executive leaders, presidents and their political appointees at government agencies can and should set their agencies’ research and policy priorities and weigh scientific research against economic and other factors when making policy decisions, but it is inappropriate for them to manipulate or suppress research in order to justify policy objectives or for personal, financial, or partisan political gain. Recognizing this, American leaders have long respected the principles that government research should be both insulated from undue political influence and shared with the scientific community and the general public. For the most part, this ensured that U.S. policy, no matter its ideological orientation, was informed by sound empirical data.

The benefits of this approach are clear: important, unbiased research has undergirded policies that have improved the lives of Americans, making our air and water cleaner, saving lives on the roads and in the sky, and leading to the development of life-saving drugs. The use and public availability of unbiased research also bolstered public trust in the legitimacy of the policymaking process.

Under recent administrations, this principle has been breaking down. A few examples are representative:

• George W. Bush administration officials suppressed and undercut the findings of a leading climate change expert. ¹
• Obama administration officials inserted a misleading phrase into a public draft report on fracking that downplayed the impact on drinking water, a move that was protested by members of the EPA’s Science Advisory Board, a panel of independent scientists. ²
• Trump administration officials at the Department of the Interior (DOI) removed from a government document warnings about the environmental impact of a proposed wall on the southern border. ³

The Appendix includes a more extensive list of such violations.

Perhaps even more troubling, the value of scientific and technical research, and of objective data itself, is now contested. While politicians have long tried to spin the results of government research to their advantage, in the past a broad consensus held that this kind of manipulation was clearly improper. And government officials at least paid lip service to the idea that policy should be guided by unbiased information, analyzed without political pressure. When examples of manipulation did come to light, those responsible generally paid a price. ⁴

In recent years, adherence to this ideal has weakened. We have seen efforts to recast the scientific and research communities as little more than special interest groups whose conclusions carry no more weight than those of other such groups. ⁵ We have also seen attempts to dismiss inconvenient facts — especially on hot-button political issues like climate change and immigration — by labeling them biased or partisan. ⁶ And even more alarming, we have seen outright efforts to manipulate data for personal or political gain.

These developments pose several dangers. Politicized research can lead to flawed government policy, undertaken to achieve a political goal rather than to advance the public interest. When government officials undermine objective scientific analysis for political ends, scientists may leave government service or self-censor their work. ⁷ Bad or undisclosed science also undermines judicial review established to ensure agencies are following the law. Flawed government science or research — about, for instance, the health effects of alcohol consumption ⁸ or the environmental impact of various pollutants ⁹ — nonetheless can carry an imprimatur of authority, allowing it to gain traction with the media and public and causing a range of long-term harms. Without access to the underlying research, Americans cannot properly evaluate their government’s decisions or have confidence that those decisions are being guided by the facts. And the broader efforts to undermine the value assigned to scientific and technical research threaten to weaken the expectation that our government should even attempt to base policy on an accurate understanding of objective reality.

These dangers are too great for us to merely hope that the norms that are now breaking down will repair themselves. In today’s hyperpartisan climate, we need additional guardrails to cultivate an environment of free scientific inquiry, monitor political officials’ influence on experts’ work, ensure public access to government research and data, and deter and punish political interference. To protect the integrity of government science and research, we need Congress to act.

The Ideal of Unbiased and Accessible Government Research

The federal government has sponsored scientific research since at least the mid-19th century, when Congress created the National Academy of Sciences “to guide public action in reference to science matters.” ¹⁰ With the emergence of a powerful central government and complex administrative state in the 20th century, the quest for accurate information to undergird policy led the federal government, in the years following World War II, to become a major funder of scientific research and data. ¹¹

Over the course of the country’s history, Congress has created a slew of agencies, subagencies, and offices, the sole or primary purpose of which is to produce scientific research and data. Prominent examples include the National Aeronautics and Space Administration (NASA), the National Institutes of Health (NIH), the Centers for Disease Control and Prevention (CDC), the Census Bureau, and the Defense Advanced Research Projects Agency (DARPA). There are also more than 200 scientific and technical advisory committees — some created by Congress, others by the agencies themselves — made up of experts from academia, industry, state and local governments, and the nonprofit sector who generally serve without pay or for a modest stipend. ¹² Moreover, Congress has relied upon expert, nonpartisan offices within the legislative branch to provide guidance on complex subjects, such as the Congressional Research Service (CRS), ¹³ the Joint Committee on Taxation (JCT), ¹⁴ the Office of Technology Assessment (now defunct), ¹⁵ and the Congressional Budget Office (CBO). ¹⁶ These agencies, offices, and committees were established to produce unbiased research and data by qualified experts following accepted professional standards of objectivity and empiricism.

The principle that government research and data should be unbiased and apolitical is longstanding. In a 1935 report, President Franklin Roosevelt’s Science Advisory Board wrote that science must be “free to report and interpret the facts . . . as [it finds] them, and not as the government of the day may wish to have them reported or interpreted.” ¹⁷ Vannevar Bush, who as director of the Office of Scientific Research and Development in the 1940s was the architect of modern federal government research programs, promoted a vision of government research being performed in an environment of free scientific inquiry ¹⁸ — a vision that has enjoyed wide support. Half a century later, President George H. W. Bush explained, “Science, like any field of endeavor, relies on freedom of inquiry; and one of the hallmarks of that freedom is objectivity. . . . [G]overnment relies on the impartial perspective of science for guidance.” ¹⁹

It has also long been understood that, as a governing principle, research and data should be accessible to the public. This fosters accountability in two ways. First, it provides the transparency that deters — and allows us to recognize and root out — manipulation of scientific information. Second, it gives the public a chance to test and assess the data on which policy decisions are based, and to improve the quality of that information. “A democracy works best when the people have all the information that the security of the Nation permits,” President Lyndon Johnson said when he signed the Freedom of Information Act (FOIA) in 1966. “No one should be able to pull curtains of secrecy around decisions which can be revealed without injury to the public interest.” ²⁰

For the second half of the 20th century, administrations more or less adhered to these twin ideals of unbiased research and public access to information. ²¹ A few relevant laws — such as the Administrative Procedure Act (APA) ²² and FOIA ²³ — provided broad, indirect checks to ensure research quality. More important, a strong set of informal norms and practices emerged to uphold these ideals. They included proactive disclosure of completed, peer-reviewed scientific reports; respect for government science as separate from political decision-making; and a tradition of selecting highly regarded scientists with relevant subject-matter expertise to give scientific advice to government policymakers.

This system never worked perfectly. On a number of occasions, for example, presidents tried to suppress or alter expert reports that exposed deficiencies in their policy initiatives. The Johnson White House imposed an explicit political test in the selection of members of the President’s Science Advisory Committee (PSAC), based on their attitudes toward the Vietnam War. ²⁴ The Nixon administration suppressed a government report that criticized the cost of a project to develop a high-speed passenger jet, as well as the performance of the aircraft. ²⁵ After a physicist on the PSAC testified to his technical reservations about the project before Congress, President Richard Nixon dissolved PSAC and abolished the office of the presidential science adviser. ²⁶ President Ronald Reagan’s Defense Department delayed the release of an expert congressional report that exposed the technical infeasibility of the administration’s “Star Wars” defense program; the administration also suppressed three chapters of the report. ²⁷ Under President George H. W. Bush, the White House altered the proposed congressional testimony of James Hansen, a renowned NASA climate expert, to emphasize scientific uncertainties about climate change. ²⁸ Still, throughout this period there was a clear working consensus, honored for the most part, that government science and research should be unbiased and accessible.

Today, the norms that supported this practice are breaking down, with the result that political actors enjoy a much freer hand than in the past to undermine the integrity of government research or to keep it secret. As detailed more fully in the Appendix, political officials have increasingly manipulated research and data about topics such as ecology, economics, and pharmaceuticals, ²⁹ retaliated against career researchers for political reasons or threatened to do so, ³⁰ and suppressed politically inconvenient research and analysis from public view — often material that had previously been made available. ³¹ Many of these episodes of tampering involve environmental issues, with government officials who have close financial, political, or personal ties to the oil, chemical, and manufacturing industries interfering with research, to the benefit of those industries, but there have been abuses in other fields — including public health, worker and food safety, and fiscal policy — as well. That is why we need additional safeguards to protect the scientific legitimacy of the government’s research enterprise and restore the longstanding role of objective data and research as a foundation for policymaking.

Past Responses to Abuse and Their Shortcomings

After past assaults on the integrity of government research and data, both the executive branch and Congress spearheaded reforms. These responses have been worthwhile first steps, and they underscore the value placed on objective science-based policymaking. However, they have generally been too narrowly focused or have lacked sharp-enough teeth to have a lasting impact.

When one administration has crossed the line, subsequent administrations have responded with efforts to rebuild scientific integrity. For instance, in the 1940s and 1950s, government officials and members of the public grew concerned about the power of advisory committees, created by private-sector industries, that attempted to influence federal government operations. ³² In response, the Truman and Kennedy administrations created standards for the composition and functioning of these advisory committees. (Congress subsequently strengthened these directives by establishing statutory standards.) ³³ In the years after President Nixon’s controversial move to dissolve PSAC, several presidents took steps to restore the role of science advice in the White House. First, President Reagan’s science adviser created a White House Science Council that reported to him, ³⁴ and then President George H. W. Bush created the President’s Council of Advisers on Science and Technology (PCAST), an advisory body administered by the White House Office of Science and Technology Policy (OSTP) that reports directly to the president. ³⁵ Presidents Bill Clinton, George W. Bush, Barack Obama, and Donald Trump have maintained the PCAST, but President Trump has not yet appointed any members to it. ³⁶ After a spate of episodes of political interference in government research and data under President George W. Bush, during which political officials in the White House and federal agencies censored scientists’ work and ordered experts to change their analyses in order to justify the administration’s policy objectives, ³⁷ President Obama in 2009 issued a memorandum on the need to maintain “the highest level of integrity in all aspects of the executive branch’s involvement with scientific and technological processes.” The memo also required federal agencies to create and implement scientific integrity policies. ³⁸

As with other executive branch efforts, the Obama administration initiative was a good first step, but it was not enough. In practice, the scientific integrity policies produced by the agencies vary significantly in their scope and specificity, as well as in the degree to which they have been implemented. ³⁹

Turning to the public availability of government research, there have been similar limitations to addressing science-related transparency concerns through executive action. In response to criticisms during the Reagan administration that the White House’s Office of Information and Regulatory Affairs (OIRA), which oversees the implementation of government-wide policies and reviews draft regulations, allegedly succumbed to pressure from business groups, ⁴⁰ President Clinton issued an executive order mandating that agencies make publicly available their underlying analyses of the costs and benefits of regulatory actions. ⁴¹ The order also required agencies to publicly identify the substantive changes between draft rules submitted to OIRA for review and the actions subsequently announced, and to identify those changes in the regulatory actions that were made at the suggestion or recommendation of OIRA. ⁴² Another executive order, issued in 2011 by President Obama, required that agencies ensure the objectivity of any scientific or technological information, or processes used to support regulatory actions. ⁴³ The Clinton and Obama executive orders — still in effect — express the principle that rulemaking should be transparent and based on high-quality research. But even when followed, they have shortcomings. The Clinton order requires disclosure only of changes made by 5 OIRA, not those made by political officials within agencies. Though the Obama order establishes a standard of objectivity for the rulemaking process, it contains no mechanism for accountability. And executive orders, of course, can be changed from one administration to the next.

Congress has also taken steps to prevent abuse, but its efforts have been either vetoed or too limited. In the midst of the Nixon administration’s effort to undermine science advice in the White House, Congress established OSTP in the Executive Office of the President to advise on science and technology issues. ⁴⁴ Congress also created the Office of Technology Assessment (OTA), which gave lawmakers their own source of “competent, unbiased information” about technology and its impact on the world. Unfortunately, Congress withdrew the latter agency’s funding in 1995. ⁴⁵

Building on the Truman and Kennedy administrations’ efforts to limit corporate influence over government science advice, Congress passed in 1972 the Federal Advisory Committee Act (FACA), ⁴⁶ which requires that advisory committees be balanced in the points of view represented, insulated from inappropriate outside influence, and transparent with lawmakers and the public about their activities and makeup. ⁴⁷ A decade later, during the Reagan administration, the principles of FACA were thwarted when political officials at the EPA created a “hit list” of scientists serving on EPA science advisory committees. The list included disparaging comments about the scientists’ purported views, such as “reported to be liberal and environmentalist” and “get him out fast, extreme anti-nuclear type.” ⁴⁸ In response, Congress passed legislation to reduce the EPA administrator’s discretion in choosing advisory board members, with stronger conflict-of-interest screenings and greater protections against committee members’ removal. ⁴⁹ The legislation was vetoed by President Reagan. ⁵⁰

Some reform efforts that have been signed into law have not gone far enough. In the 1970s, when an epidemiologist conducting a government-funded study concluded that low-level radiation exposure caused cancer in nuclear workers, government officials pressured him to suppress his findings and publicly refute those of a similar study. When he refused, they terminated his contract. ⁵¹ In response, Congress conducted hearings ⁵² and passed the Radiation-Exposed Veterans Compensation Act of 1988 ⁵³ and the Radiation Exposure Compensation Act in 1990. ⁵⁴ Though these laws attempted to right the wrongs of this specific episode, they did not do much to stop similar abuses in other areas. Congress lacked, and still lacks, the capacity and expertise to legislate substantive, science-based solutions every time political officials in the executive branch interfere with government science. Broader safeguards to protect against politically motivated interference are necessary.

The mechanisms Congress has created for fighting improper politicization are not sufficient. Inspectors general can play an important role in uncovering misconduct, ⁵⁵ but their investigations often wrap up long after scientific analysis has been altered and policy decisions based on it have been made. Regulatory analysis and government research products may be obtained through FOIA requests, but it often takes months, if not years, for those requests to be fulfilled, ⁵⁶ and there are reports from the DOI and the EPA that information that should have been released pursuant to FOIA has been withheld for political reasons. ⁵⁷ Similarly, political manipulation can sometimes be challenged in court under the APA, ⁵⁸ which requires that the agency policymaking process be transparent and allow for public participation. ⁵⁹ But litigation is time-consuming and expensive for everyone involved, courts often lack the technical expertise needed to evaluate the quality of scientific research, and without a record of revisions and contacts, it is difficult to prove political interference. And plenty of egregious cases of politicization are not illegal under current law.

Congress has also taken steps to ensure government research is made public. During the Obama administration, it directed OSTP to prioritize and coordinate the development of agency policies to promote public access to unclassified federally funded research. ⁶⁰ In turn, OSTP issued a directive requiring federal agencies to create public-access plans to proactively make available government-generated scientific data and peer-reviewed, published research. ⁶¹ By 2017, 22 federal agencies and departments had issued public-access plans pursuant to OSTP’s directive. ⁶² Although the policy is still in effect, there have been episodes in which completed research — often about politically controversial topics, such as climate change — was withheld from public view. ⁶³ Moreover, this executive branch directive lacks an enforcement mechanism.

Ultimately, the long list of recent efforts to politicize research or keep it hidden from the public — documented more fully in the Appendix — makes clear that we need to do much more. In practice, only rules that have the force of law behind them and that apply across the government can provide the enforcement mechanisms needed to ensure the integrity and transparency of government research and data.

Proposal 1
Congress should pass legislation that establishes scientific integrity standards for the executive branch and requires agencies to create policies that guarantee those standards.

Here, it is instructive to look at a success story. During the George W. Bush administration, NASA’s public affairs office censored government research for political reasons, adding uncertainty to scientific findings, changing report titles to obscure findings, eliminating politically controversial terms such as “global warming,” and altering scientists’ quotations. ⁶⁴ But NASA had laws and agency mechanisms in place to respond to this attack on scientific integrity. The agency’s inspector general found that the episode violated the National Aeronautics and Space Act’s requirement that NASA offer “the widest practicable and appropriate dissemination” ⁶⁵ of information about its work. ⁶⁶ In response, the NASA administrator renewed the agency’s commitment to scientific openness ⁶⁷ and reformed its public relations policy. ⁶⁸

Other agencies, however, lack such safeguards, underscoring the need for government-wide rules. Notwithstanding the existence of Obama-era scientific integrity policies, there have been continued reports of political interference in the scientific process at federal agencies. ⁶⁹ For instance, EPA officials recently blocked agency scientists and contractors from presenting research about climate change and related ecological issues at a professional conference. ⁷⁰ Agency officials at the Departments of Agriculture, Energy, and the Interior have similarly prevented staff from attending scientific conferences. ⁷¹ At the Department of Health and Human Services (HHS), the CDC, and the United States Geological Survey (USGS), agency officials have increased scrutiny of scientists’ communications with congressional representatives and the media about their research. ⁷² An employee at the National Parks Service reports being instructed to avoid using terms such as “climate change” in internal project proposals. ⁷³ And the EPA has introduced a proposed “transparent science” rule that, despite its name, would limit EPA scientists’ access to high-quality research ⁷⁴ because it would prohibit the agency from using research whose underlying data is not made publicly available. ⁷⁵ (It would, in effect, bar a substantial number of environmental and public health research studies involving privacy-protected personally identifiable health information from agency consideration. ⁷⁶ )

Congress should respond to these and other potential threats to the integrity of government research and data by passing legislation that promotes a culture of openness and scientific inquiry, free from politically motivated suppression and manipulation. Specifically, Congress should pass legislation to require agencies to implement and publish scientific integrity policies that apply to both employees and contractors who perform government and government-funded research at federal agencies, as well as federally funded research and development centers. ⁷⁷ The policies should contain the following principles and elements:

>> Science and the scientific process at federal agencies shall be free from politics, ideology, and financial conflicts of interest. ⁷⁸

>> Scientists at federal agencies shall be able to review content released publicly in their names or that significantly relies on their work as government scientists, so that they can respond to changes to, or inaccurate representations of, their work. ⁷⁹

>> Agencies shall have a clear, consistent, transparent, and predictable procedure for agency approval of government scientists’ publications, presentations, and participation in scientific conferences. ⁸⁰

>> Agencies shall have a procedure for handling disagreements about scientific method and conclusions. ⁸¹

>> Agencies shall designate a nonpolitical agency official or officials, with relevant scientific expertise, to be charged with monitoring and supporting scientific integrity, ⁸² with appropriate insulation from political officials. ⁸³

>> Agencies shall conduct routine scientific integrity training for all agency personnel who use science to any significant degree in their jobs. ⁸⁴

Other countries have similar policies. For instance, last year, Canada’s chief science adviser published a government-wide policy on scientific integrity, with directives against falsifying data, destroying records, and ignoring conflicts of interest, and a process to deal with infractions. ⁸⁵

In the United States, an executive branch requirement that agencies create scientific integrity policies already exists, although it has not been fully implemented. Legislation that would turn this requirement into law — the Scientific Integrity Act — was introduced this year. ⁸⁶ Making the existing executive branch requirement law is an efficient solution, because it builds on efforts already underway at agencies. It would establish clear standards, and a mechanism to enforce them, while giving agencies flexibility to craft policies that fit their unique needs. And it would improve upon protections in existing law ⁸⁷ without impeding or suppressing government research.

Proposal 2
Congress should pass legislation requiring agencies that perform scientific research to articulate clear standards for, and report on, how political officials interact with career researchers.

When a political official with no background in biology forced DOI scientists to reverse their findings on an issue of endangered species protection, she was criticized in the press and scrutinized by the department’s inspector general, prompting her to resign (see Appendix). ⁸⁸ But the embarrassment this episode from the George W. Bush administration caused has not deterred other political officials from tampering with government scientists’ work; on the contrary, many officials have continued to do so with relative impunity. ⁸⁹ For instance, during the Obama administration, the Fish and Wildlife Service (FWS) decided against protecting the sagebrush lizard under the Endangered Species Act because, as a senior regional official put it, the service did not want to “list a lizard [with a habitat] in the middle of oil country during an election year.” The biologist reviewing the process was instructed to report directly to a senior official, instead of her immediate supervisor, about the matter. That supervisor subsequently raised concerns about FWS’s decision and later alleged that he was transferred in retaliation for doing so. ⁹⁰

During the current administration, when U.S. Customs and Border Protection asked FWS for its input on how animals would be affected by the construction of the president’s proposed border wall, ⁹¹ FWS officials removed from the agency’s response letter several warnings by career biologists and wildlife managers about the wall’s potential impacts on the area’s rare cats and other animals. ⁹² Before the letter was drafted, aides to then Interior Secretary Ryan Zinke communicated to FWS officials that “we are to support the border security mission,” ⁹³ regardless of scientific assessments about the impact of that mission on animals the agency is charged with protecting. ⁹⁴

These examples — each of which led to the provision of incomplete or inaccurate information to decisionmakers — demonstrate the need for stronger protections from political staff using their oversight of agencies to interfere in the substance of scientific work. While the scientific integrity policies called for above are a powerful tool for cultivating openness and unbiased research, they are not enough on their own.

Congress should require agencies to adopt protocols that ensure appropriate insulation of experts’ work, particularly during the technical stages of regulatory development and the preparation of scientific reports to Congress and the public. It should also increase transparency and bolster accountability in political officials’ interactions with scientific staff. Specifically, Congress should pass legislation to:

>> Require the White House and agencies to publish a policy detailing measures taken to ensure that senior political officials with supervisory authority do not exert improper political influence on the research and analysis of career scientists and other subject-matter experts at agencies.⁹⁵ The legislation should require each administration to identify specific officials, in both the White House and the relevant agencies, who are authorized to communicate with career experts during the technical stages of regulatory development, as well as during the preparation of scientific reports to Congress and the public. The public disclosure requirement can assist Congress and inspectors general in investigating political interference in government research.

>> Require agencies to maintain a log of contacts between senior political officials with supervisory authority (both at the agency and in the White House) and agency experts. The log would cover any communications about the substance of scientific research, data, and expert analysis related to proposed regulations and scientific reports prepared for Congress and the public. It would include contacts by subordinates who are directed by covered senior officials to engage in such contacts.

>> Require agencies to publish reports based on the above logs. This would allow Congress, inspectors general, and scientific integrity officers to review and inquire about particular contacts, and would allow outside scientists to take those contacts into consideration when relying on agency research and analysis. It would also let courts assess the impact of those contacts when evaluating agency decision-making under the APA.

As in Proposal 1, this legislation would codify a policy that the executive branch has already imposed itself numerous times. For instance, several administrations have adopted policies that limit White House contacts with agencies pertaining to pending regulatory matters. ⁹⁶ And some agencies have rules requiring that communications by the White House be disclosed in the rulemaking record if they are of substantial significance and clearly intended to affect the ultimate decision. ⁹⁷

In addition, scholars have called for similar reforms, ⁹⁸ and members of Congress looking to hold the executive branch accountable have at times sought contact logs in response to allegations of politically motivated manip ulation of scientific research. ⁹⁹

Proposal 3
Congress should pass legislation to define and prohibit politically motivated manipulation and suppression of government research and data in the executive branch. It should also prohibit discrimination and retaliation against government researchers on the basis of their scientific conclusions.

Promoting a culture of scientific integrity and shining a light on senior political officials’ contacts with agency scientists are important steps to protect government science and data. But they must be supported by mechanisms to deter and punish inappropriate politicization. ¹⁰⁰

To be sure, political officials have the authority and prerogative to set research and regulatory priorities and direct career experts accordingly. But it undermines the important and longstanding role of unbiased science in policymaking when political officials interfere with completed scientific research in order to make it appear to support their policy objectives.

To date, there have been some executive branch efforts to prohibit scientific misconduct. The Federal Policy on Research Misconduct addresses fabrication, falsification, and plagiarism in proposing, performing, and reviewing research, and in reporting research results. ¹⁰¹ However, this policy does not focus on the specific problem of political interference in government research.

Additionally, federal employees who blow the whistle on science-related improprieties have some legal protections. ¹⁰² But the process for pursuing such whistle-blower claims is time-consuming, and claimants’ prospects for relief are low. ¹⁰³ There should be consequences for wrongdoers — not merely for retaliating against whistle-blowers, but for the underlying misconduct — in order to hold them accountable and deter malfeasance.

At times, inspectors general police political interference in government research and data. ¹⁰⁴ But their authority to investigate wrongdoing often turns on agency-specific legislation and regulations ¹⁰⁵ rather than a government-wide standard that prevents improper political interference. Inspectors general also have limited power to impose penalties. Instead, that is left in the hands of agency heads, who may themselves be implicated in wrongdoing or susceptible to political pressure. ¹⁰⁶

Congress should enact legislation that makes it unlawful for government officials ¹⁰⁷ to

>> tamper with the conduct of federally funded scientific research or data for personal, financial, or partisan political gain; ¹⁰⁸

>> censor findings of such research or analysis for the same reasons; ¹⁰⁹

>> direct the dissemination of scientific information that the directing official knows is false or misleading; ¹¹⁰ and

>> retaliate or discriminate against government researchers for the development or dissemination of scientific research or analysis that the researchers reasonably believe to be accurate and valid. ¹¹¹

To ensure that this legislation does not penalize legitimate supervisory interventions in scientific research, differences of opinion, and merely negligent errors in scientific judgment, there should be a clear standard for intent. Thus, a finding of prohibited political interference should require that there be a significant departure from accepted practices of the relevant research community; ¹¹² the misconduct be committed intentionally, knowingly, or recklessly; ¹¹³ and the allegation be proven by a preponderance of evidence. ¹¹⁴

This legislation would strengthen the longstanding aims of several existing executive branch protocols, ¹¹⁵ as well as statutes that prohibit public employers from retaliating against employees who assist in their administration or enforcement. ¹¹⁶ It would create a clearly defined, government-wide prohibition against improper influence over government research and data that has until now existed only in specific statutes or as a matter of executive branch policy. Similar legislation has been introduced: the Scientific Integrity Act, introduced this year, would prohibit the alteration and suppression of scientific and technical findings, as well as intimidation of and retaliation against research staff. ¹¹⁷ And the Restore Scientific Integrity to Federal Research and Policymaking Act, introduced in 2005 in response to threats to scientific integrity during the George W. Bush administration, would have made political interference a prohibited personnel practice. ¹¹⁸

Proposal 4
Congress should pass legislation to ensure the proper functioning of science advisory committees.

Federal policy benefits from the knowledge of subject-matter experts across the country. But we cannot expect every expert in life-saving technologies or medicines to be a federal employee. Science advisory committees help policymakers tap into outside expertise. To give a few examples, the Federal Reserve and the Consumer Financial Protection Bureau rely on expert advice about financial stability from academics, consumer advocates, and industry leaders who serve as members of advisory committees, ¹¹⁹ and HHS convenes advisory committees composed of health-care professionals and researchers from across the country when responding to new health risks, such as antibiotic-resistant bacteria. ¹²⁰ The work of these advisory committees, too, is at risk of political interference. Indeed, notwithstanding the guardrails meant to ensure balance in the points of view represented on science advisory committees, ¹²¹ these committees have been undermined and politicized in a variety of ways under recent administrations, often affecting the quality and independence of the advice they provide. ¹²²

Both Presidents Clinton and Trump issued executive orders requiring executive departments and agencies to reduce the number of advisory committees by one-third, and President Trump has placed a cap on the total number of advisory committees across the government. ¹²³ The George W. Bush administration disbanded advisory committees when they attracted opposition from religious and industry groups for their scientific conclusions ¹²⁴ and removed experts on pediatric lead exposure from an advisory committee that issues recommendations to prevent childhood lead poisoning, replacing them with members who had direct ties to the lead industry. ¹²⁵ The revamped panel issued recommendations at odds with research showing serious cognitive damage resulting from lead exposure. ¹²⁶ The Obama administration was criticized for naming a proponent of a debunked theory about links between vaccines and autism to the President’s Committee for People with Intellectual Disabilities ¹²⁷ and appointing a major donor to Democratic candidates and the Clinton Foundation to the State Department’s International Security Advisory Board, despite his lack of background in nuclear security. ¹²⁸

During the present administration, several committees have not met, in violation of their charters; ¹²⁹ administration officials have failed to fill vacancies on science advisory committees; ¹³⁰ agency officials have dismissed science advisory committee members who come from academia and other subject-matter experts and replaced them with officials from only Republican state governments, and with representatives from regulated industries who hold views that are outside the scientific mainstream on topics such as climate change and the health effects of exposure to toxic chemicals. ¹³¹ At the EPA, political officials have abandoned the practice of deferring to career staff’s recommendations for appointment of advisory committee members, further increasing the membership of political actors and industry representatives. ¹³²

As a result of these abuses, many agencies either do not receive independent science advice in policymaking or receive advice that is skewed in favor of the regulatory agendas of political leaders or the interests of regulated industries. To ensure that policymaking is informed by high-quality, objective science, Congress must address the shortcomings of the current federal science advisory committee system. Specifically, Congress should pass legislation to:

>> Create more accountability in the science advisory committee membership selection process by publishing the criteria for evaluation of nominees, ¹³³ allowing the public to comment on candidates, and releasing the names and roles of the key officials involved in the selection process. ¹³⁴ As one means to ensure that highly qualified scientists are among those under consideration for appointment to science advisory committees, Congress could require that the National Academies of Sciences, Engineering, and Medicine (NASEM) provide lists of nominees for the agencies to consider (to be made available to the public simultaneously). ¹³⁵ Finally, Congress could articulate educational and professional requirements for at least some of the members of specific advisory committees. ¹³⁶

>> Increase protections against vacancies on science advisory committees and the politically motivated removal of advisory committee members, such as by creating staggered terms for members of standing committees, for-cause removal protection for members, ¹³⁷ and a default selection process in the event that vacancies are not filled promptly. ¹³⁸

>> Increase transparency surrounding science advisory committee members’ financial and professional ties. This should be done by extending disclosure requirements that apply to participants designated as “special government employees” to those designated as “representatives,” ¹³⁹ and potentially by expanding the scope of information required to be disclosed — such as the 11 historical professional affiliations of nominees and the sources of funding for their research ¹⁴⁰ — in order to better capture potential sources of influence. Congress should also require contemporaneous disclosure of recusals and conflict-of-interest waivers. ¹⁴¹ Finally, Congress should specify that receiving grants from the agency that hosts the advisory committee is not a conflict of interest.

>> Establish safeguards to better ensure that science advisory committees meet as required by their charters, such as by requiring that information about meeting schedules, notes from meetings, and the reasons for canceling or not scheduling meetings be published on advisory committees’ websites. ¹⁴² This would be in addition to the existing requirement that such information is published in the Federal Register. ¹⁴³

Create a mechanism for peer review of science advisory committees’ work in the event that there are credible claims from members of the public that a committee’s work deviates significantly from the scientific consensus of the relevant research community. This would build on ad hoc measures agencies have used when the validity of advisory committees’ scientific conclusions is called into question. ¹⁴⁴ NASEM has at times performed such independent peer review of scientific conclusions. ¹⁴⁵ Frivolous challenges would be deterred because the review process would not interfere with the publication of the findings and because a peer review confirming the science advisory committee’s conclusions would bolster the credibility of the committee.

Require agency leaders to provide an explanation when a science advisory committee’s term is not renewed and make the explanation available to the public, in order to hold administration officials accountable when they determine that scientific advice is no longer needed. ¹⁴⁶

These recommendations would increase the quality of the advice provided by science advisory committees. Additionally, they would give the public, the press, and Congress more insight into the motivations and deliberations of committee members, and create incentives for committees to improve their credibility as stewards of science working in the public interest, potentially deterring the types of abuses that have occurred with increasing frequency during recent administrations. Numerous scholars, scientific integrity advocates, and good-government groups have long called for similar reforms. ¹⁴⁷ In 2016, 2017, and 2019, the House of Representatives passed, with bipartisan support, FACA amendments that would increase transparency and decrease conflicts of interest for advisory committees. ¹⁴⁸

Proposal 5
Congress should enact legislation requiring proactive disclosure of government research and data.

Another success story underscores how legislation can ensure that government research be available for public use. The National Climate Assessment, a major government report on climate change, is required by law to be submitted to Congress. ¹⁴⁹ In 2018, the report was released on the day after Thanksgiving, which was seen by many as an attempt to downplay its findings by releasing them on a day when fewer Americans than usual were paying attention to the news. ¹⁵⁰ President Trump told reporters, “I don’t believe” the report’s findings that the world’s temperature is rising and human actions likely play a role in it. ¹⁵¹ And the administration announced plans to convene a White House panel to challenge established scientific conclusions about the severity of climate change and humanity’s contributions to it. ¹⁵² Despite these attempts to discredit and bury the report’s findings, experts’ scientific conclusions are now available to Congress and the public, establishing a sound basis for policymaking, accountability, and scientific progress.

But there are plenty of valuable government research products that, unlike the National Climate Assessment, are not required by current law to be made public. To be sure, agencies throughout the federal government have a two-century-long history of proactively making completed research reports, finalized data, and similar materials produced and used by the government available to the public. ¹⁵³ For instance, the CDC’s Morbidity and Mortality Weekly Report (MMWR), an early version of which began publication in 1878, ¹⁵⁴ is published to this day as a matter of agency practice, not law. ¹⁵⁵ It has an international readership that consists predominantly of health-care practitioners, public health officials, epidemiologists, researchers, and educators. ¹⁵⁶ If the MMWR were not published, or the information it contains were censored or manipulated for political purposes, life-saving research would be delayed or hampered.

The norm of proactively disseminating government research products is breaking down. There is an increasing tendency among political officials to restrict public access to government research and data, as documented in the Appendix. ¹⁵⁷ For instance, the EPA and the White House suppressed a report from HHS’s Agency for Toxic Proposals for Reform Vol. 2 Substances and Disease Registry that showed that a class of toxic chemicals, which have contaminated water supplies near military bases, chemical plants, and other sites in several states, endangers human health at a far lower level than the EPA had previously called safe. Emails between White House and EPA officials show that the reason for suppressing the report was a concern that it would be a “public relations nightmare.” ¹⁵⁸

While many research and data products that the government proactively discloses could be obtained through FOIA requests in the event that agency officials withheld them, as noted above, FOIA requests can take a long time to be fulfilled. ¹⁵⁹ Additionally, information is often withheld improperly in FOIA responses. ¹⁶⁰ Thus, FOIA does not guarantee timely and complete access to research the government has historically shared with the public.

Building on past efforts, ¹⁶¹ Congress should codify guarantees for public access to government-funded research and data, in electronic form, and to impose safeguards against removal of this information from the public domain. ¹⁶² The legislation should contain provisions to:

>> Codify the presumption of disclosure for government-funded research and data, and specify a time frame within which the information must be disclosed after it is completed or published. ¹⁶³ To the extent practicable, and in compliance with applicable legal restrictions, privileges, protections, and authorities, completed data ¹⁶⁴ and research findings, such as peer-reviewed research papers accepted for publication in journals, should be made available to the public. ¹⁶⁵

>> Require free online public access to governmentfunded research and data that are in the public domain, with protections for intellectual property rights and other proprietary interests. ¹⁶⁶ The legislation should also require that research and data repositories contain descriptions of available materials written in plain language. ¹⁶⁷ Further, the legislation should put forth clear standards delineating the grounds for withholding government-funded research and data ¹⁶⁸ and require agencies to memorialize in writing the grounds on which materials are withheld, with records to be maintained by the agency.

>> Require agencies to establish safeguards against the removal of government research and data, ¹⁶⁹ including advance notice to the national archivist of planned data removal. ¹⁷⁰

>> Create an enforcement mechanism to ensure compliance with public access requirements, along with remedies for noncompliance. ¹⁷¹ These should include not only disclosure of the improperly withheld information and restoration of improperly removed information, but also penalties, such as cost-shifting in the event of agency wrongdoing and discipline for responsible agency personnel, depending on the magnitude of and motive for noncompliance. The legislation should also permit private individuals and organizations to request that materials be made publicly available, and allow for the filing of complaints in federal court in the event that a request is denied or ignored. ¹⁷²

This proposal would codify and standardize a practice to which many agencies already adhere, whether pursuant to statute or agency practice. It aligns with other legislation recently passed by Congress that requires government data assets to be made publicly available in electronic form, ¹⁷³ and numerous other bills lawmakers have introduced to further codify the norm of public access. ¹⁷⁴ Guaranteeing public access to government-funded research and data would foster scientific progress, a more informed public, and greater accountability for policymakers.

Proposal 6
Congress should enact legislation requiring disclosure of the nonpolitical expert regulatory analysis that underlies agency rulemaking. ¹⁷⁵

Laws passed by Congress tend to be broad policy mandates. Regulatory agencies are charged with using their expertise to craft the detailed rules and procedures needed to implement the law. ¹⁷⁶ This means that, for all the press and public attention devoted to Capitol Hill, the success or failure of a new measure passed by lawmakers can often depend on what happens when agencies interpret and implement Congress’s directives.

Pursuant to the APA, ¹⁷⁷ agencies must publish a notice of a proposed rule; ¹⁷⁸ give the public a chance to submit written data, views, or arguments regarding the proposed rule; ¹⁷⁹ consider all relevant matter presented during the comment period; ¹⁸⁰ and provide a statement of the basis and purpose for the final rule. ¹⁸¹ But existing mechanisms are inadequate to ensure real transparency. As discussed above, although litigation under the APA is possible, ¹⁸² it is costly and time-consuming, and past executive orders aimed at improving transparency and accountability in the rulemaking process have not gone far enough. ¹⁸³ Recent manipulations of the rulemaking process, ¹⁸⁴ such as on the issues of wetland protection ¹⁸⁵ and food safety at slaughtering facilities, ¹⁸⁶ make clear that it can be gamed with relative ease by determined political actors.

This kind of manipulation deprives courts, Congress, and the public of the expert analysis needed to evaluate the government’s policy decisions. Indeed, by hiding or changing expert analysis, political officials can thwart agencies’ statutory missions to protect public health and welfare and subvert the administrative process. ¹⁸⁷

To ensure public access to the regulatory analysis underlying rulemaking, Congress should:

>> Require agencies to publish the nonpolitical expert analysis underlying regulatory actions as part of the administrative record. Congress should specify that the version of the scientific analysis to be published is the final version prepared by nonpolitical agency experts, before it has been reviewed by political officials at the agency or in the White House.

>> Require substantive alterations ¹⁸⁸ of the regulatory analysis made by or at the suggestion of political officials — both in the agency and the White House — to be published in the administrative record, as well, along with an explanation of the changes made to the analysis.

This proposal would address political interference in expert analysis of draft regulations that occurs within agencies, as well as when draft regulations reach the White House. It would not hinder political officials from exercising their prerogative to make policy decisions, or even from challenging the science and methodology of career experts, as is their right. It would merely preserve the nonpolitical analysis of agency experts for the public, Congress, and the courts to consider when evaluating agency decision-making — and, in the process, deter political officials from making changes for improper reasons.

The proposal would build on an existing framework. It would modestly extend the disclosure, required by the Clinton and Obama executive orders, of proposed rules that agencies submit to the Office of Management and Budget (OMB) and of changes made in the White House. ¹⁸⁹ It would standardize a requirement that is found in a variety of existing laws. ¹⁹⁰ It is in line with legislation introduced recently to address related issues. ¹⁹¹ And it responds to calls from both the Administrative Conference of the United States and outside scholars for improved transparency in the regulatory process. ¹⁹²

The abuses we have documented reveal fissures in our democratic guardrails, but they originate with individual actors — often the president, but also his political appointees throughout the executive branch. These officials wield tremendous power. Recognizing there is no substitute for character and quality in those selected to occupy positions of public trust, we turn to the norms and practices for appointing professionals to critical government positions.

Of all the president’s powers, his power to appoint top executive branch officials is among the most far-reaching. ¹ Because no president can be personally involved in all of the countless actions taken by his administration each day, his ability to carry out change and improve the effectiveness of the federal government is in large part dependent on the people chosen to run it.

The Founders understood this — even at a time when the federal government was far smaller than today. “There is nothing I am so anxious about as good nominations,” Thomas Jefferson wrote soon after entering the White House in 1801, “conscious that the merit as well as reputation of an administration depends as much on that as on its measures.” ²

That is why the Constitution extends our system of checks and balances to the appointment process by making the president’s authority to appoint senior officers subject to the Senate’s “advice and consent.” ³ The Senate, argued Alexander Hamilton in the Federalist Papers, would serve as “an excellent check upon a spirit of favoritism in the President” and a guard against “the appointment of unfit characters . . . from family connection, from personal attachment, or from a view to popularity.” ⁴

It did not always work out that way. Though every president after Washington has had occasional nominees opposed by the Senate, ⁵ without recognized standards for evaluating nominees, presidents enjoyed substantial deference. ⁶ Early in our history, this contributed to the development of a patronage system, in which key government posts — usually those that did not require Senate confirmation, but sometimes also those that did — were doled out to political supporters and party functionaries. ⁷ By the late 19th century, the result was a federal government rife with corruption and cronyism, with few mechanisms to ensure that top officials were qualified for the positions they held. ⁸

As the government grew larger and more complex to keep pace with a rapidly industrializing economy, the need for reform became apparent. The Pendleton Act first established an apolitical civil service in 1883, run on principles of professionalism and merit. ⁹ And the high-profile Teapot Dome scandal of the 1920s helped push things further in the same direction. By the middle of the 20th century, a set of expectations had developed for the political appointments process: though presidents should have wide latitude in staffing their administrations, the Senate should ensure that nominees are reasonably well qualified and free from clear conflicts of interest. ¹⁰ And candidates for vacant positions should be nominated by the president, and have their nominations considered by the Senate, in a timely manner. ¹¹

These expectations were not always met, but they helped maintain Americans’ faith in the basic integrity and effectiveness of government and those who led it.

It was not inevitable that we would come to treat government jobs as public trusts rather than spoils to reward political supporters or friends and family. Indeed, the system has been threatened in the past: Watergate and associated scandals were enabled in part by the Nixon administration’s abuse of the federal bureaucracy and personnel process, including the placement in key posts of loyalists willing to put the president’s political fortunes ahead of the good of the country. ¹² In response, Congress in 1978 passed, and President Jimmy Carter signed, the Ethics in Government Act and the Civil Service Reform Act, which reaffirmed many of the values first embodied in the Pendleton Act nearly a century earlier. They established tougher ethics rules, strengthened the merit system for hiring and promoting personnel, established protections against political retaliation for civil servants, invested greater authority in senior managers, and sought to incentivize high performance. ¹³

Today, this system is at risk, threatened by hyperpartisanship and the erosion of key principles that were once championed by both parties. Again, Congress must respond.

Recent presidents have filled critical positions with unqualified cronies while leaving other posts vacant. They also have found ways to sidestep the Senate’s approval role, nullifying a crucial constitutional check.

And lawmakers have rubber-stamped some unqualified or conflicted nominees while dragging their feet on considering others, often based on whether or not the Senate and the president share a party.

This has culminated in the current administration’s near disregard for the personnel principles embodied in earlier reforms. ¹⁴ President Trump has put family members in key adviser jobs. He has been credibly accused of politicizing the security clearance process, risking national security. ¹⁵ And he has installed a series of acting officials — who do not require Senate confirmation — in crucial government posts while often delaying nominating a permanent replacement. Two years into his administration, the secretaries of defense, homeland security, and the interior; the directors of the Office of Management and Budget, Immigration and Customs Enforcement, and the Federal Aviation Administration; the FDA commissioner; and the United Nations ambassador were all serving in an acting capacity. “I like acting because I can move so quickly,” Trump has said. “It gives me more flexibility.” ¹⁶

In addition to representing a damaging end run around the Senate’s advice and consent authority, the use of so many acting officials creates instability in the leadership of crucial agencies, including those responsible for national security. And the broader breakdown in the political appointments process seen over recent decades has even more dire consequences. It harms the government’s ability to perform essential functions, deters qualified candidates from pursuing careers in public service, and undermines Americans’ faith in the people and programs responsible for making and administering policy. ¹⁷

To ensure an appointments process based on professionalism, merit, and an active role for the Senate, Congress needs to act.

Streamlining, and Restoring Democratic Accountability to, the Appointment of Senior Executive Branch Officials

Of the approximately 4,000 political positions in the executive branch, the Senate provides advice and consent for around 1,200 of them, known as “PAS” positions (for “Presidential Appointments with Senate confirmation”). ¹⁸ The occupants of these positions wield tremendous influence — the most senior PAS officials manage entire departments responsible for protecting our environment, engaging in national defense, administering a fair and impartial system of justice, promoting economic growth and business development, and representing America’s interests abroad. Their significance is the reason why the Senate’s advice and consent are required for the president to fill them. ¹⁹

Congress has also recognized the need for some flexibility when vacancies arise. In 1868, Congress passed the Vacancies Act to provide “breathing room in the constitutional system for appointing officers,” authorizing presidents to temporarily fill critical positions while the confirmation process proceeded. ²⁰ Through the Vacancies Act, Congress recognized the inherent dangers of long-term vacancies in the executive branch, but also sought to preserve the Senate’s advice and consent authority. ²¹

When Congress perceived abuses in the president’s use of his Vacancies Act powers, it responded with additional safeguards. President Clinton was perceived as working around the Senate to permanently install an acting official to lead the Civil Rights Division of the Justice Department. ²² In response, Congress in 1998 passed the Federal Vacancies Reform Act (FVRA), which included a number of mechanisms to preserve the Senate’s advice and consent authority even when the president appoints an acting official. ²³ And in 2011, amid bipartisan concern about the slow pace of the Senate’s confirmation process, Congress approved a law that cut the number of executive branch jobs requiring Senate approval. ²⁴

Today, the challenges facing the appointments process are even stiffer: there is no longer an expectation that presidents or Congress will even try to quickly fill important positions. ²⁵ Critical posts are frequently left vacant for extended periods of time, either because the president does not make an appointment or because the Senate does not move to confirm a president’s nominee. The Senate confirmation process for such positions now takes five times longer than it did 40 years ago. ²⁶ Two years into the Trump administration (with a Senate dominated by members of the president’s party), only 431 of 713 key positions requiring Senate confirmation were filled with Senate-confirmed personnel, ²⁷ with less than half of the key positions filled at the Departments of Justice or the Interior. ²⁸ This puts the Trump administration nine months behind the average presidential administration in filling key appointments in government, and with more positions vacant than at the same point in the past five presidential administrations. ²⁹

President Trump is not alone among recent presidents in having a high vacancy rate. One analysis of administrations from Presidents Carter to George W. Bush found that PAS positions were on average vacant for one-quarter of an administration’s tenure, and the length of vacancies in federal agencies is on an upward trend. ³⁰ The 9/11 Commission Report found that the George W. Bush administration did not have critical subcabinet officers in place until the summer of 2001, which created the potential for disruption in national security policy. ³¹ And with 15 months left in the Bush administration, a significant number of senior officials vacated their positions, ³² leaving three cabinet posts at the Departments of Justice, Agriculture, and Veterans Affairs — to be filled by acting officials. Other PAS positions were filled by acting officials for extended periods, including the administrator of the Centers for Medicare and Medicaid Services, the general counsel of the Department of Homeland Security, and over a quarter of U.S. attorneys. ³³ President Obama had his own challenges with vacancies long into his second term. About a quarter of the PAS positions at the State Department were vacant for months after his reelection, and it took him almost a year to name a secretary of commerce. ³⁴ And the Transportation Security Administration had no permanent director when the “underwear bomber” tried to bring down a passenger plane headed to Detroit on Christmas Day 2009. ³⁵

The Senate’s obstruction is partly to blame. For example, senators sometimes tie political nominations to unrelated policy goals ³⁶ or use anonymous holds to stall key nominees. ³⁷ And the Senate now routinely holds pro forma sessions to prevent the president from making recess appointments while Congress is adjourned. ³⁸ These tactics were deployed at unprecedented rates during the Obama administration when the Senate was controlled by the opposition party. ³⁹

Presidents deserve their share of blame, too. That is in part for nominating candidates who are more partisan, more hostile to the missions of their prospective agencies, and less qualified than previously. ⁴⁰ More important, presidents have at times avoided putting forward nominees to fill vacant PAS positions at all, instead using legislative loopholes to employ acting officials for indefinite periods. ⁴¹ President Trump publicly admitted he was “in no hurry” to fill PAS positions with permanent staff. ⁴²

Other reasons are structural. There are many more PAS positions today than there were just a few decades ago. ⁴³ This is because of new boards and commissions (and, less often, the creation of new agencies) in the federal government, as well as the continued thickening of government, with more layers of political leadership added during each new administration. ⁴⁴ Meanwhile, the resources available to the executive branch for vetting nominees and to the Senate for evaluating them have not increased at anything like the same rate. As a result, Senate committees report ever-increasing nomination workloads. ⁴⁵

Causes aside, the drawn-out process creates a needless obstacle to the effective administration of government and undermines policymaking. Career civil servants, who typically act as temporary standard-bearers when vacancies arise, generally do not have the needed clout to drive policy or persuade other senior political officials.

They also may lack the standing to modify or push back against a president’s policy directives when necessary. It is troubling, for example, that President Trump adopted and implemented the first iteration of his “travel ban” without a director of Immigration and Customs Enforcement or a commissioner for Customs and Border Protection in place; ⁴⁶ that he embarked on a historic diplomatic mission to North Korea without an ambassador to South Korea; ⁴⁷ and that major preparations for the 2020 Census were made without a permanent director of the Census Bureau, the largest statistical agency in the federal government. ⁴⁸ And it was troubling that the Fish and Wildlife Service had an acting director when the Obama administration was responding to the BP Deepwater Horizon oil spill. ⁴⁹

Research shows that long-term vacancies damage agencies in several other ways. ⁵⁰ They can delay or hamper needed reforms to programs and services. ⁵¹ Opportunities for efficiencies or improvements are more likely to be ignored or put on the back burner. ⁵² Agency morale generally deteriorates. ⁵³

When presidents insist on leaving a PAS position vacant, rather than working with Congress to fill it, they are abrogating congressional authority — after all, the Senate either has the constitutional obligation to provide advice and consent or it has determined the position’s duties warrant its advice and consent. ⁵⁴ Going further and exploiting statutory loopholes to circumvent the Senate entirely by installing in powerful posts acting officials, who are often political allies, is even worse. It gravely undermines democratic principles. Because these acting officials are not subject to Senate confirmation, their backgrounds and qualifications are subject to less scrutiny and public examination, and they are less accountable to Congress and the people once in place.

To restore an effective appointments system, presidents need to put forward qualified nominees in a timely manner, and Congress needs to expeditiously consider them. The following proposals would help ensure this happens.

Proposal 7
Congress should fix the Federal Vacancies Reform Act to prevent presidents from cutting the Senate out of the appointments process.

The FVRA of 1998 deploys multiple mechanisms to prevent presidents from circumventing the Senate’s advice and consent authority. It limits the classes of officials who are eligible to act in a PAS role and also the length of time (generally 210 days) during which they may act. ⁵⁵ The time limit creates an incentive for the president to nominate individuals for Senate consideration. The statute also motivates the Senate to act on those nominations by suspending the time limit upon the president’s nomination, lest the Senate wants the acting official to continue serving without its review. ⁵⁶

But the FVRA has proven inadequate. The statute purports to limit presidents to selecting from three classes of individuals to serve as acting officials in vacant PAS roles: the “first assistant” ⁵⁷ to the vacant office, another PAS official in the executive branch, or a senior official who has been serving in the same agency as the vacant office for at least 90 of the previous 365 days. ⁵⁸ However, a loophole in the law allows presidents to insert people from outside these three classes — and wholly outside of government — into vacant offices and empower them to lead offices or agencies without submitting their nominations to the Senate. ⁵⁹ Delays in the confirmation process, as well as genuine interest in keeping government running, contribute to the pressure on presidents to exploit this loophole. For example, after his earlier nominee to serve as assistant attorney general for civil rights in the Department of Justice was rejected by the Senate, President Obama appointed someone from outside of government to serve as the principal deputy assistant attorney general for civil rights and then elevated her (as the first assistant) to the role of acting assistant attorney general for civil rights. The Civil Rights Division has historically played a key role in handling difficult and publicly prominent cases, making evident a president’s interest in selecting and retaining a division head with aligned interests. Obama’s appointee ran the division for more than two years, well beyond the time limits imposed in the FVRA, and without the president formally nominating her. ⁶⁰

President Trump has exploited the same loophole ⁶¹ and has recently taken it a step further. After the former director for U.S. Citizenship and Immigration Service (USCIS) departed, President Trump created a new first assistant position and then appointed former Virginia attorney general Ken Cuccinelli to fill it, ⁶² despite the fact that Cuccinelli had never previously served in the federal government and several senators, including members of the president’s party, had expressed opposition to his potential nomination as USCIS director. ⁶³ Once in the role, Cuccinelli became the acting director of USCIS, in apparent compliance with the FVRA. ⁶⁴ This maneuver establishes a troubling precedent that future presidents may rely upon to appoint literally anyone to almost any vacant position, despite the FVRA’s stated limitations. ⁶⁵

The FVRA is prone to abuse in another important way. As written, it is unclear whether the statute’s provisions apply when the president terminates a PAS official. ⁶⁶ This provides an avenue for a president to circumvent the confirmation process by firing officials and continuously appointing acting officers instead of nominating a permanent replacement. Some believe this abuse was exemplified by Jeff Sessions’s recent departure as attorney general and the president’s subsequent designation of Matthew Whitaker (who formerly served as chief of staff to Sessions, a non-Senate-confirmed role) as the acting attorney general. ⁶⁷ Trump requested Sessions’s resignation, after relentlessly attacking him in public, ⁶⁸ despite the Senate’s continued defense of Sessions. ⁶⁹ The uncertainty over whether the FVRA is triggered when a president fires an official created doubt about whether Whitaker’s designation was lawful. ⁷⁰

The FVRA also currently lacks an effective enforcement mechanism. This means that officials may serve, either intentionally or inadvertently, as acting officials for longer than permitted by law. ⁷¹ Currently, the law’s primary enforcement mechanism relies on a person who has been injured by an agency’s action challenging that action in court, based on the theory that it was taken by an improperly designated or appointed acting official. ⁷² But FVRA litigation is rare. The FVRA does require the comptroller general to report to the appropriate congressional committee when officers have served for longer than the allowable period. But this indirect reporting mechanism is time-consuming and does not impose sufficient accountability on the violating agency. ⁷³

To preserve its role in the appointments process and democratic accountability without hampering the effectiveness of federal agencies, Congress should pass legislation reforming the FVRA to eliminate avenues for the most egregious abuses. The legislation should at a minimum:

>>Impose additional limits on the class of people who may serve as acting officers or perform the duties of a vacant PAS office until the president nominates a permanent replacement. ⁷⁴ The president should not be able to completely work around Congress by installing individuals from outside government to serve as acting PAS officials for seemingly indefinite periods of time. We do not believe Congress intended to arm the president with such broad and disrupting appointment powers even with temporary effect — when it adopted the FVRA. Congress should strengthen the existing limits in the FVRA by conditioning an individual’s ability to serve as an acting official on a minimum period of prior service in the federal government. ⁷⁵ Furthermore, to minimize operational disruptions when vacancies arise, presidents should be required to first choose from eligible individuals within the same agency as the vacancy before selecting an official from an outside agency. ⁷⁶

As we are mindful of the president’s appointment prerogatives, we recommend that once a formal nomination for a permanent successor is submitted to the Senate, the president should be free to select from the broader class of individuals currently eligible to serve as acting officials under the FVRA. By tying the nomination of a permanent successor to a broader class of eligible acting officials, Congress would create an incentive for presidents to nominate individuals for Senate confirmation — without a nominee, the president would be limited to selecting an individual who satisfies the new tenure-ofservice requirement to serve as the acting officer.

Likewise, the prospects of the president selecting from a broader class of individuals to act in a vacant office should motivate the Senate to seriously and timely consider a nominee. Should the president name an individual who is obviously unconfirmable, the Senate could quickly reject the nominee and the class of eligible acting officials would once again be limited to the existing class in the FVRA. This proposal also protects the president’s prerogatives should the Senate simply refuse to act on a nominee; in such situations, we believe the president’s constitutional responsibilities and the effective functioning of government weigh in favor of additional executive flexibility.

>> Limit the class of people eligible to serve as an acting officer when the vacancy arises from the president’s firing of a Senate-confirmed official. To prevent abuse, when the president fires a PAS official, only someone serving as the first assistant ⁷⁷ to the vacant office at the time the vacancy arises, and who has served for a defined minimum period of time, ⁷⁸ should be eligible to perform the functions of the vacant role. If the first assistant position is vacant, or the tenure requirement is not satisfied, then the statute could allow the president to select a senior career official from within the agency (who satisfies the tenure requirement) to serve as the acting officer. ⁷⁹

>> Impose stricter and more transparent reporting requirements on executive agencies to prevent officials from serving in violation of the FVRA. Agencies should regularly report to their congressional committees of jurisdiction on the status of all PAS vacancies and appointments made pursuant to the FVRA in their respective agencies. Congress and the agencies should also make this information more readily available to the public. Agencies could, for example, provide up-to-date information on agency websites, much as they provide up-to-date information in their online FOIA libraries.

These reforms would close a significant loophole in the FVRA, restoring what we believe was one of the driving purposes of the law: to prevent presidents from working around Congress to fill PAS positions. They would also reassert Congress’s role in the appointments process by limiting a president’s options when terminating a Senate-confirmed official. Finally, they would provide more transparency and accountability to the process for temporarily filling leadership positions, reducing the likelihood of abuse. We are not alone in recognizing that the FVRA needs reform. Scholars and nongovernmental organizations have highlighted these weaknesses and called for Congress to strengthen the law. ⁸⁰ It has done so before — and recent abuses show it needs to do so again.

Congress should tightly couple these reforms to the FVRA with improvements to the Senate’s processing and consideration of nominations. Once the president nominates someone to permanently fill an office, the Senate should duly consider them.

Proposal 8
Congress should take concrete steps to streamline the nomination and confirmation process.

As many of us have experienced firsthand, the confirmation process simply takes too much time and requires too many resources at every stage. ⁸¹ It begins prior to the president’s nomination, where the longest reported delays occur. ⁸² Prospective nominees complete voluminous forms for the White House vetting process, the FBI background investigation, the Office of Government Ethics (OGE) conflict-of-interest analysis, and the appropriate Senate committee review (in some cases, more than one committee’s form). ⁸³ These forms include duplicative and overly broad questions that request information in varying formats, creating a maddening and time-consuming predicament for nominees. ⁸⁴

Then, the nominees wait for these concurrent reviews to be completed. Almost all of them undergo a “full field” background investigation by the FBI — an investigation that exceeds the broadest scope of investigation in use throughout the rest of the executive branch ⁸⁵ before their nomination is submitted to Congress. ⁸⁶ This practice is generally followed regardless of whether the PAS position is part-time or full-time, and regardless of whether the position handles classified or national security information. ⁸⁷ On average it takes between six and eight weeks, and it requires a lot of resources. ⁸⁸

Finally, nominees are formally considered by the Senate, where, as we have discussed, they may sit in purgatory for extended periods of time. Presidents George W. Bush and Obama each proposed that the Senate adopt rules to require timely consideration of nominees. ⁸⁹ Such changes in Senate rules would be a good start. That being said, Congress does have a legitimate gripe that its resources for considering nominees have not kept pace with the increase in the number of nominees. ⁹⁰

There is no single solution for reducing the length of the nomination and confirmation process, but there are several steps Congress can take to begin moving in the right direction. Drawing from our collective experience in the executive and legislative branches, and from the wealth of good ideas that others have already put forward, ⁹¹ we propose focusing on three key reforms that we believe would have an immediate and lasting impact by returning a degree of normalcy to the confirmations process. Congress should:

>> Create a task force to identify positions that should no longer require Senate confirmation. The task force, in consultation with executive branch agencies, should determine which positions do not need Senate confirmation, and then delegate authority for filling these positions to agency heads or the president. ⁹² As a part of its review, the task force could also identify positions that should require Senate confirmation but currently do not, such as director of the CDC. ⁹³

>> Reduce the paperwork burden associated with the vetting of nominees by harmonizing the information requested on the forms required by the executive branch and various Senate committees, and by supporting the creation of a secure electronic “smart form” that can be used by both Congress and the executive branch. Creating a single set of core questions, which agencies and committees could supplement, would reduce both the time required by nominees to complete the forms and the risk of inadvertent errors or discrepancies. ⁹⁴

>> Express support for the adoption of a tiered background investigation process for nominees. Congressional committees could still require the White House to conduct “full field” investigations for senior nominees ⁹⁵ while supporting less extensive investigations for part-time positions or those without national security implications. This system would continue to permit additional scrutiny if something of concern arises during the course of an investigation.

Almost everyone who has looked closely at this problem supports these solutions. In fact, legislation adopted in 2011 on a bipartisan basis, which removed the confirmation requirement from 163 positions, ⁹⁶ shows there is an appetite for these reforms. ⁹⁷ Still, there is more work to be done. For instance, the Morris K. Udall Scholarship Commission, the James Madison Memorial Fellowship Foundation, and the Barry Goldwater Scholarship and Excellence in Education Foundation together account for 19 PAS positions. ⁹⁸ While these are valuable programs, it is worth examining whether confirmation is necessary. Other scholarship boards do not require Senate confirmation, and eliminating the confirmation requirement from positions like these would free up resources in the Senate, the White House, and the FBI for vetting and confirming nominees for higher-level positions. ⁹⁹

The Senate would not reduce its influence by eliminating the confirmation requirement from some positions. ¹⁰⁰ It would retain its considerable oversight tools for ensuring accountability in government programs and functions. At the same time, reducing the nominations workload would allow it more time for other confirmation and legislative priorities. ¹⁰¹

A bipartisan Working Group on Streamlining Paperwork for Executive Nominations (Working Group), established by the 2011 legislation, provided a road map for creating a core questionnaire for nominees that would make the executive branch’s and Senate committees’ forms more consistent, as well as for developing a smart form that would reduce redundancies in the forms. At the time of the Working Group’s review, the Senate and executive branch forms requested information on 18 similar topics, comprising an average of 60 percent of the total topics addressed by each of the forms in use. ¹⁰² Because the information is requested in slightly varying formats, the submission process is burdensome for nominees. For example, both questionnaires aim to identify potential conflicts of interest that run afoul of the same law, but they do so using slightly different questions, which may require different answers to ensure complete accuracy. ¹⁰³

The Working Group found that adopting one set of core questions, which committees and agencies could supplement if they saw fit, would reduce the time required by nominees to complete necessary paperwork. Developing an electronic smart form, in accordance with stringent information-technology security standards, would do even more. It would allow nominees to insert biographical, professional, and other data into one system, with modifiable permissions, that could be accessed by executive branch agencies, as well as congressional staff. In addition to reducing the paperwork burden, it would increase efficiencies in officials’ reviews. ¹⁰⁴ The cost savings would substantially outweigh the $5 million price tag (and $1 million annual operating expenses) estimated by the Working Group to develop and maintain the smart form. ¹⁰⁵

The Working Group also expressed support for a tiered background investigation system, ¹⁰⁶ as have other experts. ¹⁰⁷ As the Homeland Security Committee report states, it makes no sense to subject a nominee to the Postal Rate Commission to the same level of scrutiny or background investigation as the deputy secretary of defense. ¹⁰⁸ It also makes no sense to conduct background investigations that are more extensive than those required for the highest level of security clearance on nominees to part-time boards and commissions who will never access classified information. ¹⁰⁹

Though presidents have the authority and discretion to order the level of background investigation they see fit for their nominees, they are unlikely to reduce the level of investigation without Congress’s express support (since Senate committees may demand — and have grown accustomed to — a heightened level of review). ¹¹⁰ This change would speed up the executive branch’s processing of nominees; it would reduce the average length of investigations for select positions, while also freeing up scarce FBI resources for investigations of other nominees. ¹¹¹

Both branches have incentives to act on these ideas. If Congress works to streamline the nomination process, the president is less likely to abuse his appointment authority by deploying acting officials or installing partisan advisers in lieu of duly confirmed officials. On the flip side, reform would benefit the president by making it easier for him to install permanent and duly confirmed officials at agencies, who are better able to implement his agenda and influence agencies’ work. ¹¹²

Ensuring That Qualified and Ethical Personnel Are Appointed to Leadership Positions

When public officials were increasingly placing their family members on the federal payroll, and after President Kennedy appointed his brother attorney general, Congress passed and the president signed a federal statute prohibiting nepotism in federal hiring, including in the appointment of officials to PAS positions. The reform put fairness and merit above favoritism and privilege. ¹¹³ Then, when Watergate led the public to question the government’s ability to impartially administer basic programs, Congress passed and the president signed the Ethics in Government Act and the Civil Service Reform Act. ¹¹⁴ These laws sought to bolster public trust by creating a more professionalized and ethically accountable government. ¹¹⁵

These safeguards aim to protect the integrity of government decision-making at the highest levels. Nepotism stokes distrust in the idea that the government treats everyone the same. It undermines the integrity of policymaking — not just because the hired family member might not have the skills required for the position, or might put family interests over public ones, but also because it quashes open and honest dialogue by others. ¹¹⁶

Of course, presidents still use some positions as rewards for friends and political allies. But this has typically been limited to positions that carry prestige and personal benefit but are without significant policymaking responsibility — like an ambassadorship in the Caribbean or membership on the Kennedy Center Board of Trustees. ¹¹⁷ Presidents have understood that certain critical positions require specialized skills or expertise or should be filled by people without partisan affiliation. ¹¹⁸

In recent years, presidents have increasingly appointed people — often former associates or political allies — without the requisite qualifications for important positions. Michael Brown was famously appointed by President George W. Bush to run the Federal Emergency Management Agency (FEMA), despite lacking emergency management experience, and after a nine-year stint as commissioner of the International Arabian Horse Association. Brown reportedly got the FEMA job thanks to his friendship with Bush’s 2000 campaign manager. ¹¹⁹ Members of both parties said Brown was at least partially to blame for FEMA underestimating the impact of Hurricane Katrina and then mishandling the response. ¹²⁰

President Obama’s nominees to several ambassadorial posts in his second term were criticized for their surprising lack of knowledge about their prospective host countries. ¹²¹ Some argued that, unlike his predecessors’, President Obama’s picks were inappropriate due to the importance of the posts he sought to fill with political allies — with one nominated to serve in Hungary at a time of growing international alarm over far-right Hungarian lawmakers’ attitudes toward minorities. ¹²² President Trump has gone further, appointing more ambassadors based on personal connections or political patronage than any president in the past 40 years. ¹²³

Worse, the current administration has embraced candidates who lack relevant qualifications or who are opposed to the objectives of the office or agency they have been tapped to lead. Secretary of Energy Rick Perry was nominated despite not knowing that the Department of Energy managed the nuclear stockpile of the United States, and despite previously suggesting that the department should be abolished. ¹²⁴ Ben Carson is the secretary of housing and urban development, though he has no previous government, housing, or development experience and publicly tried to persuade President Trump that there were better ways he could serve the administration. ¹²⁵

The Trump administration’s approach to positions not requiring Senate confirmation has been worse. For instance, President Trump has appointed his son’s wedding planner as a regional administrator at the Department of Housing and Urban Development, and the husband of a former household employee to a position in a regional Environmental Protection Agency office. Neither had relevant qualifications. ¹²⁶

These appointments set a troubling precedent for future presidents. Installing unqualified candidates in critical positions — for both PAS and non-PAS appointments undermines faith in government and politicizes traditionally nonpartisan government functions, such as national security, scientific research, and the Census. And it has real-world consequences when agencies are incapable of responding to crises or otherwise carrying out their missions, as the Hurricane Katrina tragedy showed. The public expects qualified professionals to lead the Department of Energy’s groundbreaking energy research, run the system of national laboratories, develop policies for handling radioactive waste, and manage the country’s nuclear arsenal. That is why the two previous secretaries of energy were a nuclear physicist and a Nobel Prize–winning physicist. ¹²⁷ Similarly, the public depends on a highly trained diplomatic corps to inform the government’s response to international crises and national security threats. That is why over the last 30 years — as the world has become more interconnected and national security threats more complex — around 70 percent of ambassadors have been professional foreign service officers. ¹²⁸ Filling these critical positions with unqualified political appointees puts the government’s most essential functions, and the public’s faith in government, at risk.

It is clear from recent appointments that existing laws and practices are insufficient. It is time for Congress to redouble its efforts to protect the integrity of the federal workforce and ensure that qualified appointees are serving at the highest levels of government.

Proposal 9
Congress should amend the federal anti-nepotism law to make clear that it applies to presidential appointments in the White House.

For most of its history, it was uncontested that the anti-nepotism statute broadly applied to all federal officials, including the president. ¹²⁹ Despite this, presidents have from time to time considered installing family members in official positions. For example, President Carter considered formally appointing family members to a presidential commission and a position in the White House. ¹³⁰ President Reagan considered appointing a family member to the Presidential Advisory Committee on Private Sector Initiatives. ¹³¹ And more recently, in 2009, President Obama considered appointing his brother-in-law and his half-sister to two advisory commissions. ¹³² All past presidents were advised by the office principally charged with interpreting laws for the executive branch, the Department of Justice’s Office of Legal Counsel (OLC), that doing so would violate the anti-nepotism statute. ¹³³ This has not disturbed the traditional role that the first lady has played in championing substantive policy issues during the president’s term in office. Indeed, courts have recognized the first lady’s unique role exists in harmony with the policy goals of the anti-nepotism statute. ¹³⁴

In 2017, the OLC changed course and concluded that the anti-nepotism statute does not extend to presidential appointments to positions in the White House, opening the door for President Trump to depart from his predecessors and appoint his daughter and son-in-law to senior positions. ¹³⁵ Though neither family member has any government experience, they have been assigned expansive portfolios. The president’s son-in-law, Jared Kushner, has responsibility for managing some of the country’s most sensitive national security challenges, despite having no previous expertise or professional experience in them. ¹³⁶ The president’s daughter, Ivanka Trump, meanwhile, has been appointed as a senior adviser despite her lack of policy experience, and has sat in on several multilateral diplomatic negotiations — raising questions about the White House’s approach to foreign policy. ¹³⁷

This highlights nepotism’s corrosive effects on democratic governance. It communicates that family loyalty is more important than expertise and experience. It implies that a different set of rules applies to the most senior government officials, who do not need to abide by standard ethics or hiring rules. This sets a dangerous example for other federal leaders and managers.

Nepotism also may impact the White House’s official decision-making process, particularly when the president’s family members work in proximity to the president. Indeed, for a period of time, Kushner participated in the presidential daily briefing (PDB), where intelligence officials brief the president on the most sensitive national security matters of the day. ¹³⁸ When members of the president’s family participate in policy deliberations, more expert staffers may be less inclined to provide candid advice or voice disagreement for fear of alienating the president or his family. ¹³⁹ In this way, nepotism not only undermines public trust; it threatens to weaken government policy. Perhaps most troubling, people who owe their jobs to nepotism may prioritize the president’s personal standing over the nation’s — one reason they may have been appointed in the first place.

These are the risks Congress sought to protect against by passing the anti-nepotism statute. To respond to the OLC’s 2017 opinion that the statute does not apply to presidential appointments in the White House, ¹⁴⁰ Congress should amend the statute to clarify that it does.

Some have argued that even if the statute applied to the White House, it would only prevent the president’s family members from receiving a salary, not from serving in their official roles. ¹⁴¹ Accordingly, Congress should also bolster the statute’s existing enforcement mechanism to require the removal of anyone appointed in violation of the statute.

Before the OLC’s 2017 opinion, most assumed the anti-nepotism statute applied to the White House. ¹⁴² But now that the norm has been breached, there is a danger that future presidents may follow in President Trump’s footprints. Amending the statute would restore the former, widely held interpretation. ¹⁴³ Congress has the authority to impose this reasonable limitation on the president’s appointment powers, which is similar to other congressionally imposed limitations, such as those in the Hatch Act, the criminal conflict-of-interest law, and other regulations on federal employees’ conduct. ¹⁴⁴

Proposal 10
Congress should adopt additional statutory qualifications for certain senior executive branch positions.

As detailed above, recent presidents have appointed unqualified friends or political allies to important government posts that have the authority to influence government policy in the areas of science and national security, among others. To prevent further abuse, Congress should conduct a review of senior executive branch positions (to include critical management positions or positions at the assistant secretary level and above) ¹⁴⁵ and adopt additional statutory qualifications for those positions that warrant subject-matter or other appropriate expertise. The qualifications should set a floor for future incumbents. They should not be so restrictive that they preclude appointments of people from diverse and varying backgrounds, to the detriment of the country.

There is a long history of Congress mandating by statute that presidential appointees and career personnel meet specified requirements. ¹⁴⁶ Some statutory qualification provisions require that executive branch personnel have certain experience, skills, or educational backgrounds. For instance, the Post-Katrina Emergency Management Reform Act of 2006 established a requirement that the director of FEMA have knowledge of emergency management and five years’ leadership and management experience. ¹⁴⁷ Other statutory qualification provisions address characteristics such as citizenship status and residency, requirements that have often been applied across the board to personnel at federal agencies. ¹⁴⁸

Additionally, Congress has required that certain appointments be made without regard to political affiliation and that others reflect specific political party affiliations, often to maintain the ideological balance of multimember commissions. ¹⁴⁹ Statutes may also prevent appointees from having specific conflicts of interest. For instance, the U.S. trade representative cannot have “directly represented, aided, or advised a foreign entity . . . in any trade negotiation, or trade dispute, with the United States.” ¹⁵⁰ Similarly, the National Security Act of 1947, amended in relevant part in 2008, requires that the secretary of defense be a civilian who has not been in military service for at least seven years. ¹⁵¹ As we have seen, Congress is able to waive these statutory qualifications, as it did for President Trump’s former secretary of defense, James Mattis. ¹⁵²

Reforming the Security Clearance Process for Senior Government Officials

Recent testimony and news reports have revealed significant vulnerabilities in the White House’s security clearance process. The Trump White House has reportedly overturned an unprecedented number of clearance determinations made by career security professionals. ¹⁵³

A significant number of senior White House staff have been permitted to operate with interim security clearances for extended periods of time. ¹⁵⁴ Information that in other administrations would likely have been grounds for denial of a security clearance or even termination has been overlooked for senior staff. ¹⁵⁵ And nominees to cabinet and other senior positions have been put forward for Senate confirmation without the completion of their background investigations. ¹⁵⁶

It is increasingly clear that existing White House procedures for issuing security clearances do not ensure fairness or consistency and do not protect against erroneous outcomes. For example, notwithstanding his obligation to disclose on his security clearance questionnaire that his ex-wife had obtained a restraining order against him, former White House staff secretary Rob Porter held an interim security clearance for months. ¹⁵⁷ He resigned when allegations of domestic abuse — with accompanying documentary evidence — became public. ¹⁵⁸ If not for the public reports, the White House might have continued to ignore the derogatory information.

The dustup over Porter revealed that a reported 30 to 40 White House officials were still operating with interim clearances over a year into the administration. ¹⁵⁹ Most troubling among them was Kushner, who omitted important information about his foreign contacts from his security clearance questionnaire and has reportedly been identified by foreign adversaries as a manipulable target. Nonetheless, Kushner operated with an interim clearance for over a year and received access to highly classified information, including in the PDB. ¹⁶⁰ Kushner’s top secret security clearance was reportedly rejected by two White House security specialists, but their supervisor overruled them and approved the clearance. ¹⁶¹ Kushner’s was one of at least 30 cases in which the White House personnel security director is reported to have overruled career security experts and approved top secret security clearances for Trump officials. ¹⁶²

Taken together, these actions demonstrate a stunning disregard for a process that is critical to protecting national security. Recognizing that the president retains ultimate authority for deciding who has access to classified information, ¹⁶³ there are meaningful steps Congress should take to reform the existing security clearance process in the White House.

The White House has partially attributed the use of interim clearances to a backlog in the background investigation process. ¹⁶⁴ It has a point. As of early 2018, approximately 700,000 people across the government were waiting to get their clearances approved or renewed. ¹⁶⁵ While Congress and the executive branch are moving forward with proposals to reduce this longstanding backlog, Congress should also take concrete steps to improve the White House’s security clearance process. ¹⁶⁶

Proposal 11
Congress should reform the White House security clearance process.

Presidents from both parties have established procedures for issuing security clearances that are meant to protect information that could threaten national security if it got into the wrong hands. ¹⁶⁷ The procedures establish minimum and uniform standards, though they create exceptions that appropriately recognize a president’s constitutional authority, as commander in chief, to share classified information with individuals when they deem it necessary. ¹⁶⁸

Following the revelations about Porter, President Trump’s then chief of staff, John Kelly acknowledged the need for reform. ¹⁶⁹ In fact, as an initial step, Kelly suspended the issuance of interim clearances absent extraordinary circumstances and his explicit approval, ¹⁷⁰ and supported the revocation of long-term interim clearances. ¹⁷¹ More substantial and permanent reforms are needed.

Specifically, Congress should reduce the backlog in the White House’s background investigation process and install safeguards in the security clearance process by passing legislation to:

>> Allocate more resources to the FBI for completing background investigations for White House security clearances and presidential nominees. In addition to reducing the average processing time for an investigation, additional FBI resources would reduce the need for the White House to prioritize different candidates’ or nominees’ investigations over others.

>> Limit the length of time that White House officials may operate with interim clearances. This would make permanent a reform supported by Kelly to discontinue long-term interim clearances issued to White House officials. ¹⁷²

>> Require that the director of the White House personnel security office be a career professional with specific expertise in the security clearance process.

Similar to existing executive orders and presidential directives, the legislation could also explicitly recognize a president’s unique power to provide access to classified materials as the president sees fit. The measures would help ensure that appointees serving in senior positions satisfy the same security standards that apply to other national security officials, while providing additional resources for relieving an existing bottleneck in the background investigation process.

Such steps are within Congress’s authority. Although the Supreme Court has recognized the president’s constitutional authority to grant security clearances, ¹⁷³ it has also suggested that Congress may regulate that authority, ¹⁷⁴ and Congress has imposed restrictions on both the interim ¹⁷⁵ and permanent ¹⁷⁶ security clearance processes without constitutional challenge. Limiting the duration or validity of interim security clearances would be a restriction on the process for granting security clearances, similar to the process restrictions Congress has imposed before. ¹⁷⁷ The president could continue to prioritize or expedite investigations of security clearance applicants, and no applicant who went through the proper procedures would be denied a security clearance if the president wanted that person to have a clearance.

Legislation introduced in the last Congress would require the president to submit a report to Congress every three months listing the security clearance information for everyone working in the White House and the Executive Office of the President. ¹⁷⁸ This legislation serves the same goal as our proposal: to strengthen, and improve the accountability of, the background check and security clearance process. It is important for Congress not only to monitor the security clearance status of White House personnel but also to safeguard the security clearance process by reducing the access to sensitive information enjoyed by unvetted personnel, and by ensuring that security clearance determinations are made in the national interest.

In this report, we have proposed ways to strengthen the guardrails that promote fundamental democratic values and protect against abuse by the executive branch. But these guardrails depend on a functioning system of checks and balances. ¹ The Constitution establishes three coequal branches, ² intended to blunt arbitrary power and the potential for tyranny. ³ This system is threatened by both internal and external forces: Congress’s ability to appropriately check abuse has atrophied, ⁴ the independence of the judiciary has been called into question, ⁵ and the integrity of the entire political system is jeopardized by the corrosive influence of money in politics. ⁶ For our proposals to protect essential democratic values, our system of checks and balances needs to be recalibrated and defended.

Congress

Congress needs to reestablish itself as an appropriate check on abuse — from the executive and also from its own ranks. Members of Congress are meant to serve not only as legislators, but also as investigators who seek “the fullest information in order to do justice to the country and to public offices.” ⁷ This necessarily requires Congress to operate as a separate and independent branch, regardless of the president in power. However, congressional procedures and customs have evolved to hinder the ability of Congress to perform as a coequal branch — while also allowing legislators to abuse their power — and complicate the ability of voters to hold their representatives and Congress as a whole accountable. ⁸ This is epitomized in the Senate’s rubber-stamping of unqualified nominees put forward by presidents of the same party as the Senate’s majority, discussed at length above. In this and many other ways, Congress appears to have tolerated executive branch abuse of shared constitutional powers, without providing Americans with a transparent explanation for its actions. ⁹ For instance, war powers are shared under the Constitution, but Congress has appeared to defer to the executive instead of responding when it oversteps. ¹⁰ Trump’s use of the National Emergencies Act to marshal resources for building a wall on the country’s southern border is the most recent example. ¹¹ Congress failed to block the president’s national emergency declaration, ¹² despite his explicitly circumventing Congress’s appropriations power and strong public opposition to his move. ¹³

The lack of meaningful congressional oversight when the same parties occupy Congress and the White House also warrants highlighting. Investigatory authority is an essential component of the legislative power endowed to Congress; it is a mechanism for ensuring that laws are faithfully executed without bias or malfeasance. ¹⁴ When used right, it can uncover fraud and waste in federal programs, protect the rights of minorities, or uncover abuses of power and corruption. ¹⁵ But in today’s polarized environment, the majority party appears to use this authority for its own political benefit, rather than for ensuring good policy and governance. ¹⁶ The result is increased opportunity for executive branch abuse due to a lack of oversight when the president is of the same party as the majority in Congress, ¹⁷ and increased potential for legislators’ abuse of power and political grandstanding when the president is of a different party. ¹⁸

Congress also needs to keep its own houses in order. By exempting itself from ethics, employment, and accountability laws, Congress has created a clear double standard. ¹⁹ Recent scandals involving insider trading allegations and the use of taxpayer funds for settling sexual misconduct cases highlight the deficiencies in its ethics regime. ²⁰ For Congress to serve as an effective and independent check on the executive, it must meet the same standards it should demand of the executive.

To that end, Congress needs to develop a more robust oversight structure, with mechanisms for insulating the process from hyperpartisanship. ²¹ Reform of the National Emergencies Act is also badly needed to eliminate a tool for presidential abuse. The Brennan Center for Justice has put forward a package of reforms that would, among other things, refine the criteria for emergency declarations, require a connection between the nature of the emergency and the powers invoked, and prohibit indefinite emergencies. ²² There is growing momentum for some of these reforms with the Article One Act, which advanced out of the Senate Homeland Security and Governmental Affairs Committee at the end of July. ²³

As another means to fulfill its constitutional duties, Congress should renew its longstanding commitment to nonpartisan congressional research agencies, such as the Congressional Budget Office, including by creating a modernized technology assessment entity, so that Congress can more effectively perform oversight, guard against executive branch manipulation of research and data, and make informed policy decisions in response to — and in anticipation of — 21st century technological needs. ²⁴

Finally, Congress must seriously consider ways to reform its institutional culture. There is no shortage of proposals. ²⁵ Holding members of Congress personally liable for sexual harassment and retaliation settlements was a good place to start. ²⁶ Extending the Freedom of Information Act and conflict-of-interest rules to Congress would substantially further the effort. ²⁷ Momentum is growing for reform, and we are confident Congress can meet the challenge, as it has before. ²⁸

Judiciary

Likewise, our democratic system depends on an independent judiciary. We believe the judiciary has held up as an effective check on executive abuse, ²⁹ but recent political attacks on judges threaten judicial independence and risk undermining public confidence in the courts.

While there is nothing wrong with publicly disagreeing with a court ruling, criticism of judicial decisions should not turn into personal attacks on judges and their heritage. ³⁰ This is particularly true when the president is the messenger, given the bully pulpit presidents enjoy. Nor should presidents allege, without evidence, that a judge was biased or the courts unfair simply because they ruled against him. ³¹

Such attacks can put judges’ safety at risk. They also threaten the legitimacy of the judiciary in the eyes of the public. ³² Our legal system relies on a shared understanding that even when you are on the losing side of a court case, you need to respect the outcome. President Trump’s issuance of a pardon to former Arizona sheriff Joe Arpaio for disobeying a court order hints at a future where court orders are not respected by all parties. ³³

The broader political context heightens the need for vigilance. The judicial confirmation process is more politicized than ever in recent memory — with the Senate taking extraordinary steps to eliminate procedural safeguards that previously ensured a semblance of bipartisanship in the process. ³⁴ And public confidence in the Supreme Court is declining. ³⁵ Fortunately, the American judicial system is among the strongest and most resilient in the world. ³⁶ To protect against continued abuse by the executive branch, that must remain the case.

Money in Politics

The unfettered flow of money into our political system contributes to a culture that is more accepting and inviting of abuse. The current rules allow moneyed interests to provide substantial support to public officials before, during, and after their public service. ³⁷ These rules create incentives for public officials to put their personal or political interests ahead of the public interest. They also reduce the likelihood that other public officials will hold bad actors accountable.

The Founders recognized these risks when they enshrined the Foreign and Domestic Emoluments Clauses in the Constitution, prohibiting federal officials from receiving payments that might bias them. ³⁸ The Due Process Clauses of the Fifth and Fourteenth Amendments serve a similar purpose by, among other things, prohibiting judges from presiding in cases in which they have a personal interest. ³⁹

The norms and unwritten rules we have considered — including those concerning conflicts of interest and financial disclosure guidelines, and the evenhanded administration of the law ⁴⁰ — serve to mitigate the threats posed by money in our politics. As they have eroded, the power of money in politics has become more pronounced. ⁴¹

If the country is serious about preventing abuses of power, Congress should consider ways to interrupt and reduce the unfettered flow of money into our political system at the same time that it moves to shore up longstanding democratic norms. This is not a partisan issue — past reforms have been led by leaders of both political parties. ⁴² And there is no shortage of ideas. The Brennan Center for Justice has put forward a number of proposals, including small-donor public financing of political campaigns, ⁴³ transparency rules for “dark money” organizations, ⁴⁴ safeguards against foreign funds in elections, ⁴⁵ and stronger contribution limits to reduce the influence of super PACs. ⁴⁶ These reforms are possible even within the current legal framework established by the Supreme Court’s recent campaign finance jurisprudence. ⁴⁷ The public broadly supports reform ⁴⁸ — and we believe members of all political parties can come together, as they have in previous eras, to pass effective campaign finance laws.

Threats to Scientific Integrity

• When responding to questions from a Senate committee, the secretary of the interior cherry-picked facts and misrepresented research performed by the Fish and Wildlife Service (FWS) about caribou in the Arctic National Wildlife Refuge to support her case for oil exploration there. ¹ (George W. Bush administration)
• A White House aide and former oil industry lobbyist edited government reports to downplay links between carbon emissions and climate change. ² (George W. Bush administration)
• Environmental Protection Agency (EPA) officials allowed the White House to make last-minute edits to proposed public health standards and misrepresented an internal scientific committee’s research in publicly defending the standards. ³ (George W. Bush administration)
• The public affairs office at the National Aeronautics and Space Administration (NASA) added uncertainty to scientific findings, changed report titles, and altered scientists’ quotes, undercutting research on the threat of climate change. One political appointee in the public affairs office denied a request from NPR to interview a top climate scientist, saying his own job was “to make the president look good.” ⁴ (George W. Bush administration)
• EPA officials made last-minute changes to a major public-facing draft report on the impact of fracking on drinking water, downplaying the risks. After EPA scientists challenged the edits, they were removed from the final report. ⁵ (Obama administration)
• National Institutes of Health (NIH) officials met with alcohol industry representatives to solicit funding to study the benefits of moderate drinking, then allowed the industry representatives to give input on the study’s design. ⁶ (Obama administration)
• The secretary of health and human services (HHS) publicly overruled the Food and Drug Administration’s (FDA) determination that over-the-counter emergency contraceptives were safe for minors, questioning the underlying research despite her lack of scientific training. ⁷ Her decision was immediately criticized as politically motivated, and a judge presiding over a lawsuit challenging the action agreed, finding the secretary’s action “politically motivated, scientifically unjustified, and contrary to agency precedent.” ⁸ (Obama administration)
• EPA officials blocked agency scientists and contractors from presenting research about climate change and related ecological issues at a professional conference. ⁹ Agency officials at the Departments of Agriculture, Energy, and the Interior have similarly prevented staff from attending scientific conferences. ¹⁰ (Trump administration)
• At HHS, the Centers for Disease Control and Prevention (CDC), and the United States Geological Survey (USGS), agency officials increased scrutiny of scientists’ communications with congressional representatives and the media about their research. ¹¹ For instance, at the CDC, scientists were prohibited from responding to press inquiries “even for a simple data-related question” without prior clearance from the agency’s communications office, and at the USGS, scientists were required to submit reporters’ questions and their proposed answers to the communications office for review. (Trump administration)
• An employee at the National Parks Service reported being instructed to avoid using terms such as “climate change” in project proposals. ¹² (Trump administration)
• The CDC censored scientific language, including terms related to research on gender identity and reproductive health, informing staff that the terms could not be used in official documents under preparation for the agency’s budget. ¹³ The move was condemned as an effort to limit the effectiveness of public health. ¹⁴ (Trump administration)
• Political officials censored a press release about a USGS study, removing references to the dire effects of climate change in the release. The officials also delayed the press release for several months. ¹⁵ (Trump administration)
• The authority and reach of a nuclear facilities safety board were curtailed, despite safety risks to American nuclear workers and the general public. ¹⁶ (Trump administration)
• The EPA introduced a proposed “transparent science” rule that would prevent the agency from using research for which underlying data are not made publicly available. ¹⁷ Oftentimes, the underlying data in environmental and public health research are not published because they involve personally identifiable health information that is protected by privacy laws. ¹⁸ The effect of the “transparent science” rule will be to limit EPA scientists’ access to high-quality research, thereby interfering with the scientific process. ¹⁹ (Trump administration)
• Officials from the White House’s Office of Legislative Affairs, Office of Management and Budget, and National Security Council barred the Office of the Geographer and Global Issues, a State Department intelligence agency, from submitting written testimony to the House Intelligence Committee warning that climate change is “possibly catastrophic.” ²⁰ The scientist whose work was edited subsequently resigned. ²¹ (Trump administration)
• The Department of Agriculture (USDA) required agency scientists to label their finalized peer-reviewed scientific publications “preliminary” and “not . . . formally disseminated by the U.S. Department of Agriculture,” misleading terms suggesting that the research was not complete and should not be relied upon. ²² (Trump administration)
• High-level Department of the Interior (DOI) officials altered an environmental assessment for seismic surveying prepared by career scientists in order to underplay the potential impact of oil and gas development on Alaska’s coastal plain. They reversed a Bureau of Land Management (BLM) biologist’s conclusion and removed large portions of an agency anthropologist’s analysis of potential impacts on native communities. A third BLM scientist, who studies fish and water resources, identified fundamental inaccuracies that were introduced into his research without his knowledge. ²³ (Trump administration)
• EPA career scientists recommended that the agency ask the Army Corps of Engineers to conduct a new environmental review for a copper and gold mine planned upstream from Alaska’s premier salmon fishery, due to deficiencies the scientists identified in the environmental review. Political officials at the EPA reviewed the analysis, which was revised to downplay the scientists’ concerns. ²⁴ (Trump administration)
• The National Oceanic and Atmospheric Administration (NOAA) released a statement contradicting government meteorologists’ forecast and supporting the president’s repeated inaccurate claims that Alabama would be affected by a hurricane, including when he displayed a map of the storm’s path that had been altered to include Alabama. NOAA issued the statement after the acting White House chief of staff reportedly instructed the secretary of commerce to have NOAA — a branch of the Department of Commerce — publicly disavow an earlier statement by NOAA’s National Weather Service (NWS) clarifying that Alabama was not in the storm’s path, and the secretary of commerce reportedly threatened to fire top employees at NOAA if they did not repudiate NWS’s statement. ²⁵ (Trump administration)

Contacts Between Political Officials and Career Experts That Undermine Scientific Integrity

• DOI officials frequently interfered with the work of government scientists in order to weaken wildlife protections. In one case, an agency official with no background in biology forced scientists to reverse findings that would have made a species of prairie dog eligible for protection. ²⁶ (George W. Bush administration)
• Officials at the FWS, which is part of the DOI, removed warnings from career scientists about the impact of a proposed border wall on local wildlife from a letter sent to U.S. Customs and Border Protection. Before the letter was drafted, DOI political aides told FWS officials, “we are to support the border security mission.” ²⁷ (Trump administration)
• Department of Labor (DOL) officials ordered career researchers to revise a study showing the negative financial effects on restaurant workers of a proposed “tip pooling” rule, ²⁸ which would reverse a previous regulation that stated tips are the property of employees, and permit restaurant managers to take tips from tip pools over workers’ objections. ²⁹ (Trump administration)
• After EPA researchers produced a study showing economic benefits to protecting wetlands from pollution, aides to the agency’s administrator told them to produce a new study showing no such benefits. ³⁰ (Trump administration)
• After a field supervisor for the FWS determined that it was “reasonably certain” that threatened and endangered species could be harmed by a development project and called for a biological assessment to be performed, a high-level political appointee at the DOI communicated that the field supervisor’s determination “was not the position of the administration,” and he was pressured to reverse his determination. ³¹ (Trump administration)

Retaliation and Threatened Retaliation Against Career Experts

• A senior biologist at the DOI’s FWS was fired after he filed a legal complaint alleging that agency officials knowingly used flawed science in the agency’s assessment of the endangered Florida panther’s habitat and viability in order to facilitate proposed real estate development. The FWS subsequently conceded that it had used flawed science, reinstated the biologist, and published a revised analysis. ³² (George W. Bush administration)
• The director of the Centers for Medicare and Medicaid Services threatened to fire a top actuary if he shared his estimates of the cost of the administration’s Medicare prescription drug bill. The actuary’s estimate was significantly higher than the one released by the Congressional Budget Office. ³³ (George W. Bush administration)
• A senior radiation biologist in the low-dose radiation research program at the Department of Energy was reassigned and then fired for insubordination and inappropriate workplace communication after she spoke favorably about the program during a congressional briefing. At the time, the department was planning to end the program and reallocate funds to different research projects. The scientist was subsequently reinstated. ³⁴ (Obama administration)
• The DOI’s top climate change scientist was reassigned to an accounting role, despite no training in accounting, after he highlighted the dangers climate change poses for Alaska’s Native communities. ³⁵ Five days after the reassignment, the interior secretary testified before Congress that the department planned to use reassignments as part of its effort to reduce employees, the inference being that he expected employees to quit in response to undesirable transfers. ³⁶ The climate scientist eventually resigned from government service. ³⁷ (Trump administration)
• A scientist working under a contract with the National Park Service resisted efforts by federal officials to remove all references to human causes of climate change in her scientific report, drawing media attention. She was previously told that she would be hired for a new project but was later told that no funding was available for the work. The scientist asked her supervisor at the agency, “Is this because of the climate change stuff?” He responded, “I don’t want to answer that.” ³⁸ (Trump administration)
• Economists in the Economic Research Service (ERS) of the USDA published findings showing the negative financial impacts on farmers of the administration’s trade and tax policies. Subsequently, the secretary of the USDA announced a restructuring plan that would reduce the ERS’s insulation from political officials and require staff relocation across the country. Six economists quit on a single day due to concerns about retaliation for the conclusions of their research. ³⁹ (Trump administration)

Attacks on Science Advisory Committees

• Advisory committees at HHS were disbanded when they attracted opposition from religious and industry groups for their scientific conclusions. ⁴⁰ (George W. Bush administration)
• The secretary of HHS removed experts on pediatric lead exposure from a CDC advisory committee that issues recommendations to prevent childhood lead poisoning, replacing them with members who had direct ties to the lead industry. ⁴¹ The move came just weeks before the committee was set to decide whether to lower the level at which the government believed lead in the blood represents a health concern. ⁴² The revamped panel ultimately recommended against lowering the level, despite research showing that lead at lower levels than those then deemed safe could cause serious cognitive damage. ⁴³ (George W. Bush administration)
• A candidate for a position on an advisory board that researches Arctic issues including the impact of proposed drilling in a wildlife refuge, a key administration priority — said the first question she was asked in an interview was, “Do you support the president?” ⁴⁴ (George W. Bush administration)
• The EPA issued a memo that discouraged members of its Science Advisory Board from speaking publicly, even in their outside capacity, about any scientific issue under consideration by the board, without EPA approval. Watchdogs warned that the new rule could lead scientists to avoid contributing to the public conversation on key issues. ⁴⁵ (Obama administration)
• A proponent of a debunked theory about links between vaccines and autism was appointed to the President’s Committee for People with Intellectual Disabilities, ⁴⁶ and a major donor to Democratic candidates and the Clinton Foundation was appointed to the State Department’s International Security Advisory Board, despite his lack of background in nuclear security. ⁴⁷ (Obama administration)
• The Advisory Committee on Climate Change and Natural Resource Science, established to offer advice to the interior secretary about climate change, stopped meeting. A scheduled meeting was canceled, and then the panel’s charter expired. ⁴⁸ (Trump administration)
• The National Park System Advisory Board, which works with DOI officials to designate national historic and natural landmarks, did not convene for an entire year, leading ten of its 12 members to quit in frustration. ⁴⁹ The board was later reconstituted with new members who were all either registered Republicans or had voted in Republican primaries. Three had given more than $500,000 to Republican candidates and causes, while a fourth was a former national chair of the American Legislative Exchange Council, an influential conservative lobbying group. Whereas the board’s members had previously included professors from universities, none of the 11 new members was an academic. ⁵⁰ (Trump administration)
• The Department of Energy’s advisory committees held fewer meetings in 2017 than in any year since 1997, when records began. ⁵¹ Throughout 2017, the administration did not contact members of the Secretary of Energy Advisory Board, a high-level committee that produces detailed reports on complex scientific topics and has been used frequently by past secretaries. ⁵² The department subsequently announced the reconstituted board’s eight new members, five of whom were from industry. ⁵³ The chair was the chief executive officer of a major oil company. ⁵⁴ She replaced a professor emeritus of chemistry at the Massachusetts Institute of Technology. ⁵⁵ (Trump administration)
• At the EPA, political officials abandoned the practice of deferring to career staff’s recommendations for appointment of advisory committee members, increasing the membership of political actors and industry representatives. ⁵⁶ (Trump administration)
• The number of industry representatives and consultants quadrupled on the EPA’s Science Advisory Board, while representation of academics decreased from 79 to 50 percent. ⁵⁷ The list of new appointees to the Science Advisory Board includes industry representatives, officials from Republican state administrations, and independent scientists who have criticized major federal environmental regulations. ⁵⁸ (Trump administration)
• The EPA announced that it would not renew members of the Board of Scientific Counselors (BOSC) with expiring appointments — contrary to past practice — and cancelled upcoming meetings of the board’s subcommittees. ⁵⁹ Those who did not return to the BOSC included university professors, as well as employees of a scientific foundation, an engineering consulting company, and government agencies or laboratories. ⁶⁰ (Trump administration)
• By statute, the composition of the EPA’s Clean Air Science Advisory Committee (CASAC) must include at least one member of the National Academy of Sciences, one physician, and one person representing state air pollution control agencies. ⁶¹ Of the seven current members of CASAC, which informs the agency’s standards on ozone and other pollutants, only one has a deep background in air pollution research. ⁶² This member is also the only independent academic scientist on the committee; other members include state regulators with scientific views outside of the scientific mainstream. ⁶³ Additionally, the chairman of CASAC has questioned studies that connect serious human health problems to air pollution; he has accepted research funding from the American Petroleum Institute (API), an oil industry lobbying group, and the organization reviewed his findings before publication. ⁶⁴ (Trump administration)
• The EPA disbanded a subcommittee of air pollution experts that helped it decide how much soot in the atmosphere is safe to breathe. ⁶⁵ That task is now handled by the CASAC, a smaller, less expert panel. ⁶⁶ The CASAC chair wrote a letter to the EPA administrator criticizing the agency’s use of science to set air pollution standards and questioning the long-established scientific view that fine particulate airborne matter is linked to early deaths. ⁶⁷ “It is hard to overstate just how jarring this is,” one expert at a nongovernmental organization wrote in response. ⁶⁸ (Trump administration)
• After the release of the 2018 National Climate Assessment, a major government report on climate change, the administration announced plans to convene a White House panel to challenge established scientific conclusions about the severity of climate change and humanity’s contributions to it. ⁶⁹ (Trump administration)
• The EPA barred scientists who receive grants from the agency from serving on its advisory committees. ⁷⁰ The move was presented as an effort to avoid conflicts of interest, but the agency already had policies to prevent such conflicts, and the new rule did not apply to scientists who receive funding from industry. As a result, there are more advisory board members affiliated with industry and fewer universityaffiliated researchers. ⁷¹ Because the leading experts on topics of concern to the EPA are those who are most likely to obtain highly competitive federal grants, the rule prevents the EPA from getting input from some of the most knowledgeable voices in the field. ⁷² A former chair of the EPA’s Science Advisory Board called the move “clearly political, not ethical” and said it was aimed at “eliminating independent science advice.” ⁷³ (Trump administration)

Restriction of Public Access to Government Research and Data

• The Federal Bureau of Investigation removed from its annual crime report significant amounts of information that had been included in previous years. The missing data covered violent crime — a top administration priority — as well as domestic violence and drug crimes. ⁷⁴ (Trump administration)
• The EPA stopped collecting data on oil and gas companies’ methane emissions ⁷⁵ and took down web pages containing information about climate change. ⁷⁶ (Trump administration)
• The USDA took offline animal welfare enforcement records, including abuses in dog breeding operations and records of horse farms that alter the gait of horses through the controversial practice of “soring” the animals’ legs. ⁷⁷ (Trump administration)
• USDA officials ordered the department’s main research arm to stop communicating with the public. ⁷⁸ The DOI, the Department of Transportation, and HHS implemented similar rules. ⁷⁹ (Trump administration)
• The Treasury Department removed from its website an economic analysis that found workers pay only a small share of the corporate tax burden. The analysis undercut the administration’s claims that reducing the corporate tax rate, a top priority, would primarily benefit workers. ⁸⁰ (Trump administration)
• Amid criticism of the administration’s response to Hurricane Maria, the Federal Emergency Management Agency removed from its website information about how many people in Puerto Rico had access to drinking water and electricity. ⁸¹ (Trump administration)
• A Consumer Financial Protection Bureau (CFPB) report omitted warnings about boilerplate deals enabling banks to charge students fees, which had been included in previous agency reports. An unpublished draft of the report states that more than 100 colleges reported being paid by banks to promote “college-sponsored” bank accounts to students, despite the fact that the CFPB had previously “expressed concern over the relationship between revenue sharing provisions in contracts and fees charged to student account holders.” Though the CFPB’s mission is to protect consumers from abusive financial practices, the report contained no discussion of those abusive practices. ⁸² (Trump administration)
• White House and EPA officials suppressed a report from the HHS’s Agency for Toxic Substances and Disease Registry that showed that a class of toxic chemicals, which have contaminated water supplies near military bases, chemical plants, and other sites in several states, endanger human health at a far lower level than the EPA previously called safe. One White House official said the report’s release would cause a “public relations nightmare.” ⁸³ (Trump administration)
• The USDA departed from its longstanding practice of disseminating department and department-funded research studies. For instance, in the case of a groundbreaking discovery that rice loses vitamins in a carbon-rich environment — a potentially serious health concern for the 600 million people worldwide whose diet consists mostly of rice — USDA officials withheld a department news release and sought to prevent dissemination of the findings by the department’s research partners. ⁸⁴ (Trump administration)

Politically Motivated Interventions in Nonpolitical Expert Regulatory Analysis Underlying Regulatory Actions

• The EPA proposed a sharp reduction in the permissible levels of ozone, a key component of smog. ⁸⁵ Industry groups and local governments lobbied against the rule. Staff at the Office of Information and Regulatory Affairs (OIRA), a division of the White House Office of Management and Budget (OMB) charged with reviewing agencies’ regulations staffed primarily with economists, lawyers, and people with public policy training, ⁸⁶ manipulated the EPA’s scientific analysis of the proposed ozone rule to cast doubt on the benefits of a lower standard. ⁸⁷ (George W. Bush administration)
• OIRA altered the EPA’s scientific findings underlying a rule to regulate coal ash. The EPA initially stated that using ponds for storing the most toxic form of coal ash did “not represent the best available technology for controlling pollutants in almost all circumstances.” Revisions made during OIRA review recommended eliminating this conclusion, giving no explanation why. Other changes made during OIRA review included softening data, such as reducing coal-fired power plants’ share of toxic pollutants discharged to surface water from “at least 60 percent” to “50–60 percent.” ⁸⁸ (Obama administration)
• As noted above, DOL officials proposed a “tip pooling” rule, proposing that the policy would increase the paychecks of low-wage kitchen workers. When career employees at the department produced an economic analysis showing that the proposed “tip pooling” rule would cause restaurant workers to lose money, senior department staff ordered them to revise the analysis to reach a more favorable result with no scientific basis. Senior political staff at OMB were reportedly involved in the decision to delete the unfavorable data. Ultimately, the DOL proceeded with the notice-and-comment process for the rule without publicly disclosing the department’s analysis on the rule’s impact. ⁸⁹ (Trump administration)
• During the effort to repeal the EPA’s prior definition of the regulatory term “waters of the United States” ⁹⁰ (WOTUS), career economists complied with agency political officials’ instruction to change their methodology in order to reach the predetermined conclusion that there was no quantifiable benefit to preserving wetlands. Contrary to standard practice, no records were made to document the methodological changes the career staff were ordered to make. ⁹¹ When the new definition was announced, the EPA’s head stated that “a detailed mapping of all the wetlands in the country” had not been performed, ⁹² and the EPA Office of Water chief told reporters that there were no data about the number of streams and wetlands removed from protection under the new definition of WOTUS. ⁹³ However, documents obtained by means of Freedom of Information Act requests show that EPA and Army Corps of Engineers staff determined the percentage of streams and wetlands that would not be protected under the proposed rule, and this information was presented to leaders of both agencies during the course of deliberations about the regulation. ⁹⁴ (Trump administration)
• The DOL proposed to roll back a safety rule requiring 16– and 17-year-olds in the nursing home industry to be supervised when using hoisting equipment to move patients. ⁹⁵ In 2011, the National Institute for Occupational Safety and Health (NIOSH) concluded that there were serious safety risks associated with minors’ unsupervised operation of these devices. ⁹⁶ The DOL was not forthcoming about whether and to what extent department officials consulted with the NIOSH before issuing the rule. ⁹⁷ In the rulemaking announcement, the DOL refused to publicly release a survey of vocational training programs it claimed supported the rule. ⁹⁸ An advocacy group that obtained the survey identified serious methodological flaws. ⁹⁹ (Trump administration)
• The USDA’s Food Safety and Inspection Service (FSIS) proposed a rule that would allow factories to speed up line processing for pork while removing some federal food safety inspectors from the premises, ¹⁰⁰ before it had completed the required peer review of the rule’s risk assessment. ¹⁰¹ The rule cites a pilot program — which replaced government inspectors with companies’ own employees — as the basis for concluding that the proposed rule would be more effective in ensuring food safety. ¹⁰² However, the USDA’s Office of Inspector General (OIG) previously determined that the pilot program was flawed. ¹⁰³ The USDA also asserted that worker injuries went down in plants participating in the pilot program but did not make that data or analysis publicly available. ¹⁰⁴ Researchers who obtained work injury data by means of Freedom of Information Act requests concluded that there were significant limitations in the data used by FSIS to draw its conclusion about worker injury rates. ¹⁰⁵ The USDA’s OIG is evaluating whether the agency concealed information and used flawed data to develop and promote the rule. ¹⁰⁶ (Trump administration)

The National Task Force on Rule of Law & Democracy is a nonpartisan group of former government officials and policy experts. We have worked at the highest levels in federal and state government, as prosecutors, members of the military, senior advisers in the White House, members of Congress, heads of federal agencies, and state executives. We come from across the country and reflect varying political views.

We care deeply about our nation and its democratic values. And we are concerned about the erosion in recent years of critical norms and practices, built up over time, that ensure government officials use their power primarily to further the public interest, not partisan or personal interests. We have come together to propose reforms, including legislative changes, to bolster these norms and practices, and to strengthen the future of our democracy.

This is the second report of the Task Force. The first, released in October 2018, focused on the erosion of the norms and practices protecting the rule of law and ethical conduct in government.

Preet Bharara, Co-Chair

Preet Bharara is an American lawyer who served as U.S. Attorney for the Southern District of New York from 2009 to 2017. His office prosecuted cases involving terrorism, narcotics and arms trafficking, financial and health-care fraud, cybercrime, public corruption, gang violence, organized crime, and civil rights violations. In 2012, Bharara was featured on Time’s “100 Most Influential People in the World.” On April 1, 2017, Bharara joined the NYU School of Law faculty as a Distinguished Scholar in Residence. He is Executive Vice President at Some Spider Studios, where he hosts a CAFE podcast, Stay Tuned, focused on questions of justice and fairness. He is also the author of a top-five New York Times bestselling book, Doing Justice: A Prosecutor’s Thoughts on Crime, Punishment, and the Rule of Law.

Christine Todd Whitman, Co-Chair

Christine Todd Whitman is President of the Whitman Strategy Group, a consulting firm specializing in environmental and energy issues. She served in the cabinet of President George W. Bush as Administrator of the Environmental Protection Agency from 2001 to 2003, and was Governor of New Jersey from 1994 to 2001. During her time in government, she gained bipartisan support and was widely praised for championing common-sense environmental improvements. Gov. Whitman is involved in numerous national nonprofit organizations focused on legal and environmental causes, including the American Security Project and the O’Connor Judicial Selection Advisory Committee at the Institute for the Advancement of the American Legal System. She is a graduate of Wheaton College in Norton, Massachusetts.

Mike Castle

Mike Castle is a former two-term governor, nine-term member of Congress, lieutenant governor, deputy attorney general, and state senator of his home state of Delaware. Recently retired from the law firm DLA Piper, Gov. Castle served on the Financial Services, Intelligence, and Education and Workforce Committees during his tenure in the U.S. House of Representatives, and also led a number of congressional caucuses. Since leaving office in January 2011, he has been honored by the Delaware Chamber of Commerce and the University of Delaware, and politicians of both parties have heralded Gov. Castle as a bipartisan leader. As a partner at DLA Piper, he worked on financial issues, international trade, legislative affairs, and health care. He is the Board Chair for Research!America. He received his B.A. from Hamilton College and his J.D. from Georgetown University

Christopher Edley, Jr.

Christopher Edley, Jr. is the Honorable William H. Orrick, Jr. Distinguished Professor of Law at UC Berkeley School of Law, after serving as dean from 2004 through 2013. Before Berkeley, he was a professor at Harvard Law School for 23 years and cofounded the Harvard Civil Rights Project. Prof. Edley co-chaired the congressionally chartered National Commission on Education Equity and Excellence from 2011 to 2013. He served in White House policy and budget positions under Presidents Jimmy Carter and Bill Clinton, held senior positions in five presidential campaigns, and worked on two presidential transitions. He is a fellow or member of the American Academy of Arts & Sciences, the National Academy of Public Administration, the Council on Foreign Relations, the American Law Institute, the advisory board of the Hamilton Project, the Brookings Institution, and the board of Inequality Media. As a National Associate of the National Research Council, he recently chaired committees to evaluate National Assessment of Educational Progress performance standards and design a national system of education equity indicators. Prof. Edley is a graduate of Swarthmore College, Harvard Kennedy School, and Harvard Law School.

Chuck Hagel

Chuck Hagel served as the 24th Secretary of Defense from 2013 to 2015. He is the only Vietnam veteran and enlisted combat veteran to serve as Secretary of Defense. He represented the state of Nebraska in the U.S. Senate from 1997 to 2009. In the Senate, Sec. Hagel was a senior member of the Foreign Relations; Banking, Housing and Urban Affairs; and Intelligence Committees. Previously, Sec. Hagel was Co-Chairman of the President’s Intelligence Advisory Board, a Distinguished Professor at Georgetown University, Chairman of the Atlantic Council, Chairman of the United States of America Vietnam War Commemoration Advisory Committee, Co-Chairman of the Vietnam Veterans Memorial Fund Corporate Council, President and CEO of the USO, and Deputy Administrator of the Veterans Administration. He currently serves on the RAND Board of Trustees, PBS Board, Corsair Capital Advisory Board, and American Security Project Board, and is a Senior Advisor to Gallup. He is a graduate of the University of Nebraska at Omaha.

David Iglesias

David Iglesias is Director of the Wheaton Center for Faith, Politics and Economics and is the Jean & E. Floyd Kvamme Associate Professor of Politics and Law at Wheaton College. Previously, Prof. Iglesias served as a prosecutor focusing on national security and terrorism cases. He was the U.S. Attorney for the District of New Mexico from 2001 to 2007. Prof. Iglesias was recalled to active duty status between 2008 and 2014 in support of Operation Enduring Freedom. He served as a team leader, senior prosecutor, and spokesman with the U.S. Military Commissions, handling war crimes and terrorism cases. He retired from the U.S. Navy as a Captain. Prof. Iglesias received his bachelor’s degree from Wheaton College and his J.D. from the University of New Mexico School of Law.

Amy Comstock Rick

Amy Comstock Rick is the President and CEO of the Food and Drug Law Institute, and was previously the CEO of the Parkinson’s Action Network. Prior to becoming a nonprofit and health leader, Ms. Rick served as the Director of the U.S. Office of Government Ethics (2000–2003) and as an Associate Counsel to the President in the White House Counsel’s Office (1998–2000). She also served as a career attorney at the U.S. Department of Education, including as the Department’s Assistant General Counsel for Ethics. Ms. Rick has also served as President of the Coalition for the Advancement of Medical Research, and as a board member of Research!America, the National Health Council, and the American Brain Coalition. She received her bachelor’s degree from Bard College and J.D. from the University of Michigan.

Donald B. Verrilli, Jr.

Donald B. Verrilli, Jr. is a partner at Munger, Tolles & Olson LLP, and the founder of its Washington, D.C., office. He served as Solicitor General of the United States from June 2011 to June 2016. During that time, he was responsible for representing the U.S. government in all appellate matters before the Supreme Court and in the courts of appeals, and was a legal adviser to President Barack Obama and the Attorney General. Earlier, he served as Deputy White House Counsel and as Associate Deputy Attorney General in the U.S. Department of Justice. He clerked for U.S. Supreme Court Justice William J. Brennan, Jr., and the Honorable J. Skelly Wright on the U.S. Court of Appeals for the D.C. Circuit. He received his B.A. from Yale University and J.D. from Columbia Law School.

Rudy Mehrbani

Rudy Mehrbani is a fellow and senior counsel at the Brennan Center. He leads the Center’s work on the bipartisan National Task Force on Rule of Law and Democracy. He previously served as an assistant to President Obama and director of the Presidential Personnel Office at the White House, where he advised the president, cabinet members, and other senior government officials on human capital issues arising across the executive branch of the federal government. In that role, he served as a member of the White House Transition Coordinating Council in 2016. He has also served as general counsel of the Peace Corps and as an associate counsel and special assistant to the president in the White House Counsel’s Office, where he led the team responsible for vetting President Obama’s executive nominees and appointees. He worked in a variety of other roles in the federal government, including as a special policy advisor to the secretary of housing and urban development.

Martha Kinsella

Martha Kinsella, counsel in the Brennan Center’s Democracy Program, is based in the Washington, D.C., office. She works on rights restoration, democracy reform, and government reform. Her principal project has been the National Task Force on Rule of Law and Democracy, with a focus on scientific integrity.

Wendy Weiser

Wendy Weiser directs the Democracy Program at the Brennan Center for Justice at NYU School of Law, a nonpartisan think tank and public interest law center that works to revitalize, reform, and defend systems of democracy and justice. Her program focuses on voting rights and elections, money in politics and ethics, redistricting and representation, government dysfunction, rule of law, and fair courts. She founded and directed the program’s Voting Rights and Elections Project, directing litigation, research, and advocacy efforts to enhance political participation and prevent voter disenfranchisement across the country. She has authored a number of nationally recognized publications and articles on voting rights and election reform, litigated groundbreaking lawsuits on democracy issues, testified before both houses of Congress and in a variety of state legislatures, and provided legislative and policy drafting assistance to federal and state legislators and administrators across the country. She is a frequent public speaker and media commentator on democracy issues.

The Brennan Center gratefully acknowledges the Carnegie Corporation of New York, Change Happens Foundation, Craig Newmark Philanthropies, Ford Foundation, the William and Flora Hewlett Foundation, the JPB Foundation, the Kohlberg Foundation, Open Society Foundations, Rockefeller Family Fund, and the Bernard and Anne Spitzer Charitable Trust for their generous support of this work.

The Task Force members and its staff would like to thank Zachary Roth for his substantial writing assistance, as well as Daniel Weiner, Sidni Frederick, and Natalie Giotta for their critical research and deliberations in support of our report. We would also like to thank Michael Waldman, Alicia Bannon, Andrew Boyle, Victoria Bassetti, Gareth Fowler, Hazel Millard, Peter Dunphy, Derek Tisler, Lisa Benenson, Alden Wallace, Alexandra Ringe, Rebecca Autrey, Josh Bell, Zachary Laub, and Jeanne Park of the Brennan Center for their contributions. Finally, thank you to Joanna Loomis, Monica Finke, Jacob Apkon, and Catherine Larsen for their research assistance.