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

Summary: The second National Task Force report on the Rule of Law & Democracy outlines how to curb political interference in government science and fix a broken appointments process.

  • Preet Bharara, Co-Chair
  • Christine Todd Whitman, Co-Chair
  • Mike Castle
  • Christopher Edley, Jr.
  • Chuck Hagel
  • David Iglesias
  • Amy Comstock Rick
  • Donald B. Verrilli, Jr.
  • Rudy Mehrbani (Staff)
  • Wendy R. Weiser (Staff)
  • Martha Kinsella (Staff)
Published: October 3, 2019

I. Executive Summary

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.

II. Integrity and Accessibility of Government Research and Data

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. foot­note1_ybj9­pyg 1 National Aero­naut­ics and Space Admin­is­tra­tion Office of the Inspector General, Invest­ig­at­ive Summary Regard­ing Alleg­a­tions That NASA Suppressed Climate Change Science and Denied Media Access to Dr. James E. Hansen, a NASA Scient­ist (Wash­ing­ton, D.C.: National Aero­naut­ics and Space Admin­is­tra­tion, 2008), avail­able at https://oig.nasa.gov/docs/OI_STI_Summary.pdf. The inspector gener­al’s office found that the public affairs office added uncer­tainty to scientific find­ings, changed report titles to obscure find­ings, elim­in­ated contro­ver­sial terms such as “global warm­ing,” and altered quota­tions from scient­ists. Ibid., 22, 27–32.
  • 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. foot­note2_uyuja8s 2 Tom DiChris­topher, “Major EPA Frack­ing Study Down­played Risks to US Water Supply, Invest­ig­a­tion Finds,” CNBC, Dec. 1, 2016, https://www.cnbc.com/2016/12/01/major-epa-frack­ing-study-down­played-risks-to-us-water-supply-invest­ig­a­tion-finds.html. Records of commu­nic­a­tions obtained through Free­dom of Inform­a­tion Act requests indic­ate that the changes were made after EPA offi­cials and media consult­ants met with advisers to Pres­id­ent Obama to discuss market­ing the study. Scott Tong and Tom Scheck, “EPA’s Late Changes to Frack­ing Study Down­play Risk of Drink­ing Water Pollu­tion,” Market­place, Nov. 30, 2016, https://www.market­place.org/2016/11/29/world/epa-s-late-changes-frack­ing-study-portray-lower-pollu­tion-risk. The EPA’s Science Advis­ory Board contested the report’s conclu­sions on the grounds that they either lacked quant­it­at­ive evid­ence or were incon­sist­ent with under­ly­ing data and recom­men­ded that the EPA revise the report’s find­ings to clearly link to evid­ence provided in the report. Letter from Peter S. Thorne, chair, Science Advis­ory Board, and David A. Dzom­bak, chair, SAB Hydraulic Frac­tur­ing Research Advis­ory Panel, to Gina McCarthy, admin­is­trator, Envir­on­mental Protec­tion Agency (Aug. 11, 2016), avail­able at https://www.docu­mentcloud.org/docu­ments/3011057-EPA-SAB-16–005-Unsigned.html.
  • 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. foot­note3_7czp­w4i 3 Dino Grandoni and Juliet Eilperin, “Interior Dept. Offi­cials Down­played Federal Wild­life Experts’ Concerns About Trump’s Border Wall, Docu­ments Show,” Wash­ing­ton Post, Dec. 10, 2018, https://www.wash­ing­ton­post.com/energy-envir­on­ment/2018/12/11/interior-offi­cials-down­played-federal-wild­life-experts-concerns-about-trumps-border-wall-docu­ments-show.

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. foot­note4_1xfai2q 4 For instance, when the media revealed that the chief of staff for the White House Coun­cil on Envir­on­mental Qual­ity under Pres­id­ent George W. Bush rewrote sections of climate change reports, despite his lack of scientific train­ing, he resigned. Andrew C. Revkin, “Former Bush Aide Who Edited Reports Is Hired by Exxon,” New York Times, June 15, 2005, https://www.nytimes.com/2005/06/15/polit­ics/former-bush-aide-who-edited-reports-is-hired-by-exxon.html. And a polit­ical offi­cial at the DOI under Pres­id­ent George W. Bush who forced scient­ists to reverse find­ings without scientific basis resigned after the depart­ment’s inspector general scru­tin­ized her conduct. Charlie Savage, “Report Finds Meddling in Interior Dept. Actions,” New York Times, Dec. 15, 2008, http://www.nytimes.com/2008/12/16/wash­ing­ton/16in­terior.html.

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. foot­note5_1y3uadl 5 Michael E. Mann, “The Seren­geti Strategy: How Special Interests Try to Intim­id­ate Scient­ists, And How Best to Fight Back,” Bulletin of the Atomic Scient­ists 71(1) (2015). 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. foot­note6_qn3l­ww4 6 See, e.g., David Harsa­nyi, “‘Impar­tial’ Fact-check­ers Are Reveal­ing Their Partis­an­ship Against Trump,” New York Post, Feb. 9, 2019, https://nypost.com/2019/02/09/impar­tial-fact-check­ers-are-reveal­ing-their-partis­an­ship-against-trump/. 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. foot­note7_47ue68z 7 See examples under “Retali­ation and Threatened Retali­ation Against Career Experts” in the Appendix. 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 foot­note8_squn­8qh 8 In 2013 and 2014, offi­cials and scient­ists from the National Insti­tutes of Health (NIH) met with alco­hol industry repres­ent­at­ives to soli­cit fund­ing for a study of the bene­fits of moder­ate drink­ing. They also allowed industry repres­ent­at­ives to give input on study design. After their actions were publicly repor­ted, the NIH ended the trial. Rony Caryn Rabin, “Major Study of Drink­ing Will Be Shut Down,” New York Times, June 15, 2018, https://www.nytimes.com/2018/06/15/health/alco­hol-nih-drink­ing.html. or the envir­on­mental impact of vari­ous pollut­ants foot­note9_q6bcw0z 9 Rachel Leven, “Bad Science Under­lies EPA’s Air Pollu­tion Program,” Scientific Amer­ican, Jan. 29, 2018, https://www.scien­ti­ficamer­ican.com/article/bad-science-under­lies-epa-rsquo-s-air-pollu­tion-program/. — 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.” foot­note10_cmoalno 10 “History,” National Academy of Sciences, accessed Mar. 1, 2019, http://www.nason­line.org/about-nas/history/archives/found­ing-and-early-work.html. 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. foot­note11_7n82ndt 11 “A Compan­ion to Science and Engin­eer­ing Indic­at­ors 2008,” National Science Board, accessed Apr.15, 2019, https://wayback.archive-it.org/5902/20160210222347/http://www.nsf.gov/stat­ist­ics/nsb0803/start.htm?CFID=14442646&CFTOKEN=37871803&jses­sionid=f0301d4aa9e1ceb­d0e3b624695d26e5853a4. See also Jeffrey Mervis, “Data Check: U.S. Govern­ment Share of Basic Research Fund­ing Falls Below 50%,” Science, Mar. 9, 2017, https://www.sciencemag.org/news/2017/03/data-check-us-govern­ment-share-basic-research-fund­ing-falls-below-50; Art Jahnke, “Who Picks Up the Tab for Science?” BU Research, accessed Apr. 15, 2019, http://www.bu.edu/research/articles/fund­ing-for-scientific-research/.

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. foot­note12_b38h46i 12 Genna Reed et al., Abandon­ing Science Advice, Union of Concerned Scient­ists, 2018, 3, https://www.ucsusa.org/sites/default/files/attach/2018/01/abandon­ing-science-advice-full-report.pdf. 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), foot­note13_1uym­qjz 13 The CRS was created to provide “compre­hens­ive and reli­able legis­lat­ive research.” “Congres­sional Research Service: History and Mission,” Library of Congress, last modi­fied Nov. 15, 2012, accessed July 2, 2019, http://www.loc.gov/crsinfo/about/history.html. the Joint Commit­tee on Taxa­tion (JCT), foot­note14_sh5q5hh 14 The JCT was estab­lished to assist in “every aspect of the tax legis­lat­ive process.” “JCT About Page Over­view,” The Joint Commit­tee on Taxa­tion, accessed July 2, 2019, https://www.jct.gov/about-us/over­view.html. the Office of Tech­no­logy Assess­ment (now defunct), foot­note15_timkixq 15 Tech­no­logy Assess­ment Act of 1972, 2 U.S.C. §§ 471–481. and the Congres­sional Budget Office (CBO). foot­note16_hem458d 16 The CBO was estab­lished to provide object­ive, nonpar­tisan inform­a­tion to assist Congress in making effect­ive budget and economic policy. Congres­sional Budget and Impound­ment Control Act of 1974, 2 U.S.C. §§ 601–688. 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.” foot­note17_nwmalc0 17 Science Advis­ory Board, Second Report of the Science Advis­ory Board, Septem­ber 1, 1934 to August 31, 1935 (Wash­ing­ton, D.C.: National Academy of Sciences, 1935), 15–16. 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 foot­note18_mpg9b53 18 Bush wrote that govern­ment scient­ists should work in an envir­on­ment “free from the adverse pres­sure of conven­tion, preju­dice, or commer­cial neces­sity” that would “provide the scientific worker with a strong sense of solid­ar­ity and secur­ity, as well as a substan­tial degree of personal intel­lec­tual free­dom.” Vannevar Bush, Science — ém (Wash­ing­ton, D.C.: United States Govern­ment Print­ing Office, July 1945), avail­able at https://www.nsf.gov/od/lpa/nsf50/vbush1945.htm. — 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.” foot­note19_b3l5u9s 19 Gretchen Gold­man et al., Preserving Scientific Integ­rity in Federal Poli­cy­mak­ing: Lessons from the Past Two Admin­is­tra­tions and What’s at Stake Under the Trump Admin­is­tra­tion, Union of Concerned Scient­ists, 2017, 1, avail­able at https://www.ucsusa.org/sites/default/files/attach/2017/01/preserving-scientific-integ­rity-in-federal-poli­cy­mak­ing-ucs-2017.pdf.

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.” foot­note20_b765i3m 20 Public Papers of the Pres­id­ents of the United States: Lyndon B. John­son (Wash­ing­ton, D.C.: United States Govern­ment Print­ing Office, 1967), 2:699, quoted in H.R. Rep. No. 104–795, at 8 (1996).

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. foot­note21_k8bf­be7 21 For instance, Pres­id­ent Reagan’s surgeon general, C. Ever­ett Koop, a polit­ical conser­vat­ive who was deeply reli­gious and had authored a book oppos­ing abor­tion, was lauded for writ­ing a compre­hens­ive report about Acquired Immune Defi­ciency Syndrome (AIDS) that laid out sound, science-based public health policy object­ives. In the fore­word of the report, he wrote, “At the begin­ning of the AIDS epidemic, many Amer­ic­ans had little sympathy for people with AIDS. The feel­ing was that some­how people from certain groups ‘deserved’ their illness. Let us put those feel­ings behind us. We are fight­ing a disease, not people . . . .” John-Manuel Andri­ote, “Doctor, Not Chap­lain: How a Deeply Reli­gious Surgeon General Taught a Nation About HIV,” Atlantic, Mar. 4, 2013, https://www.theat­lantic.com/health/archive/2013/03/doctor-not-chap­lain-how-a-deeply-reli­gious-surgeon-general-taught-a-nation-about-hiv/273665/. An eight-page version of his report was mailed to every Amer­ican house­hold in 1988. Eyder Peralta, “C. Ever­ett Koop, Surgeon General Who Fought Against Smoking, AIDS, Dies,” NPR, Feb. 25, 2013, https://www.npr.org/sections/thetwo-way/2013/02/25/172907525/c-ever­ett-koop-surgeon-general-who-fought-against-smoking-aids-dies. A few relev­ant laws — such as the Admin­is­trat­ive Proced­ure Act (APA) foot­note22_8xg6ocb 22 5 U.S.C. §§ 551–559. For more details about the Admin­is­trat­ive Proced­ure Act, see Proposal 6. and FOIA foot­note23_w651cas 23 5 U.S.C. § 552. For more details about FOIA and govern­ment Science, see Proposal 5. — 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. foot­note24_txk4wwr 24 Emily Berman and Jacob Carter, “Policy Analysis: Scientific Integ­rity in Federal Poli­cy­mak­ing Under Past and Present Admin­is­tra­tions,” Journal of Science Policy and Governance 13, (1) (2018), avail­able at http://www.scien­ce­pol­i­cy­journal.org/uploads/5/4/3/4/5434385/berman_emily__carter_jacob.pdf. 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. foot­note25_m10n0as 25 “Congress Ends U.S. Fund­ing of Super­sonic Aircraft,” CQ Almanac, 27th ed. (Wash­ing­ton, D.C.: Congres­sional Quarterly, 1981), 513–21, avail­able at http://library.cqpress.com/cqal­manac/docu­ment.php?id=cqal71–1252799#H2_8. 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. foot­note26_kp813xs 26 David Z. Robin­son, “Polit­ics in the Science Advising Process,” Tech­no­logy in Soci­ety 2 (1980): 162; Dave Levitan, “When a Pres­id­ent Banishes Science from the White House,” Atlantic, Oct. 31, 2016, https://www.theat­lantic.com/science/archive/2016/10/when-a-pres­id­ent-banishes-science-from-the-white-house/505937/. 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. foot­note27_u8970rw 27 Warren E. Leary, “‘Star Wars’ Runs into New Criti­cism,” New York Times, Apr. 25, 1988, https://www.nytimes.com/1988/04/25/world/star-wars-runs-into-new-criti­cism.html; Chris­topher Joyce, “Soft­ware for SDI Is ‘Too Complex to Work,’” New Science, June 9, 1988, 39. 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. foot­note28_jd7i2zc 28 Steven Thomma, “Gore Says OMB Edit­ing Amounts to ‘Science Fraud,’” Phil­adelphia Inquirer, May 9, 1989. 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, foot­note29_mxj1rc7 29 See examples listed under “Threats to Scientific Integ­rity” and “Contacts Between Polit­ical Offi­cials and Career Experts That Under­mine Scientific Integ­rity” in the Appendix. retali­ated against career research­ers for polit­ical reas­ons or threatened to do so, foot­note30_4198rqe 30 See examples listed under “Retali­ation and Threatened Retali­ation Against Career Experts” in the Appendix. and suppressed polit­ic­ally incon­veni­ent research and analysis from public view — often mater­ial that had previ­ously been made avail­able. foot­note31_hefy0ur 31 See, e.g., Andrew Berg­man and Toly Rinberg, “In Its First Year, the Trump Admin­is­tra­tion Has Reduced Public Inform­a­tion Online,” Sunlight Found­a­tion, Jan. 4, 2018, https://sunlight­found­a­tion.com/2018/01/04/in-its-first-year-the-trump-admin­is­tra­tion-has-reduced-public-inform­a­tion-online/; “Silen­cing Science Tracker,” Columbia Law School, Sabin Center for Climate Change Law, accessed Mar. 1, 2019, http://columbi­ac­li­matelaw.com/resources/silen­cing-science-tracker/. See also Jacob Carter et al., The State of Science in the Trump Era: Damage Done, Lessons Learned, and a Path to Progress, Union of Concerned Scient­ists, 2019, 10–12, 30, avail­able at https://www.ucsusa.org/sites/default/files/attach/2019/01/ucs-trump-2yrs-report.pdf. See also examples listed under “Restric­tion of Public Access to Govern­ment Research and Data” in the Appendix. 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. foot­note32_6p597mu 32 Wendy Gins­berg and Casey Burgat, Federal Advis­ory Commit­tees: An Intro­duc­tion and Over­view, CRS Report No. R44253 (Wash­ing­ton, D.C.: Congres­sional Research Service, 2016), 17, https://fas.org/sgp/crs/secrecy/R44253.pdf. 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.) foot­note33_hhr8pmo 33 See ibid; Steven P. Croley and William F. Funk, “The Federal Advis­ory Commit­tee Act and Good Govern­ment,” Yale Journal on Regu­la­tion 14 (1997): 459. The Depart­ment of Justice (DOJ) issued guidelines for advis­ory commit­tees in 1950. See Hear­ings on WOCs [Without Compens­a­tion Govern­ment Employ­ees] and Govern­ment Advis­ory Groups Before the Anti­trust Subcomm. (Subcomm. No. 5) of the House Comm. on the Judi­ciary, 84th Cong. 586–87 (1955) (reprint­ing DOJ guidelines). In 1962, Pres­id­ent John F. Kennedy issued an exec­ut­ive order that built on the DOJ’s guidelines. 3 C.F.R. 573 (1959–1963). 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, foot­note34_j253m3o 34 Robert C. Cowen, “Reagan Adviser Keyworth on Admin­is­tra­tion’s Science Policy,” Chris­tian Science Monitor, Jan. 22, 1985, https://www.csmon­itor.com/1985/0122/zee.html. 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. foot­note35_23kc­cab 35 Exec. Order No. 12,700, 3 C.F.R. 271 (1990). 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. foot­note36_i6jb­fof 36 Exec. Order No. 12,882, 3 C.F.R. 681 (1993); Exec. Order No. 13,226, 3 C.F.R. 792 (2001); Exec. Order No. 13,539, 3 C.F.R. 209 (2010); Tony Romm, “A Key White House Science Coun­cil Is Still Vacant — But the Trump Admin­is­tra­tion Does­n’t Plan to Kill It,” Recode, Sept. 2, 2017, https://www.recode.net/2017/9/2/16236724/white-house-trump-pres­id­ent-coun­cil-science-tech-vacant. 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, foot­note37_r2wbbg4 37 See Appendix for examples of polit­ical inter­fer­ence in govern­ment research during the Bush admin­is­tra­tion. 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. foot­note38_m9djd5n 38 “Scientific Integ­rity,” White House Office of Science and Tech­no­logy Policy, accessed May 23, 2019, https://en.wiki­source.org/w/index.php?title=Page:Title_3_CFR_1959–1963_Compil­a­tion.djvu/573&action=edit&redlink=1.

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. foot­note39_ja3b4xu 39 See “Scientific Integ­rity Policies,” Public Employ­ees for Envir­on­mental Respons­ib­il­ity, accessed Mar. 20, 2019, https://www.peer.org/campaigns/whis­tleblowers-scient­ists/scientific-integ­rity/scientific-integ­rity-policies.html; Gold­man et al., Preserving Scientific Integ­rity; United States Govern­ment Account­ab­il­ity Office, Scientific Integ­rity Policies: Addi­tional Actions Could Strengthen Integ­rity of Federal Research, GAO-19–265 (Wash­ing­ton, D.C.: Govern­ment Account­ab­il­ity Office, 2019), https://www.gao.gov/assets/700/698231.pdf.

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, foot­note40_drpq4zw 40 Richard H. Pildes and Cass R. Sunstein, “Rein­vent­ing the Regu­lat­ory State,” Univer­sity of Chicago Law Review 62 (1995): 19 and n. 70. Pres­id­ent Clin­ton issued an exec­ut­ive order mandat­ing that agen­cies make publicly avail­able their under­ly­ing analyses of the costs and bene­fits of regu­lat­ory actions. foot­note41_fqhalt7 41 Exec. Order No. 12,866, 3 C.F.R. 638, § 6(a)(3)(E)(ii)–(iii) (1993). Pres­id­ent Obama issued Exec­ut­ive Order 13,563, which supple­men­ted and reaf­firmed the prin­ciples of regu­lat­ory review estab­lished in Exec­ut­ive Order 12,866. 3 C.F.R. 215 (2011). 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. foot­note42_yjwaecg 42 Exec. Order No. 12,866, 3 C.F.R. 638, § 6(a)(3)(E)(ii)–(iii) (1993). 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. foot­note43_ou8f4x4 43 Exec. Order No. 13,563, 3 C.F.R. 215, § 5 (2011). 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. foot­note44_659n­ag1 44 National Science and Tech­no­logy Policy, Organ­iz­a­tion, and Prior­it­ies Act of 1976, Pub. L. No. 94–282, 90 Stat. 459 (1976). See also John F. Sargent, Jr. and Dana A Shea, Office of Science and Tech­no­logy Policy (OSTP): History and Over­view, CRS Report No. R43935 (Wash­ing­ton, D.C.: Congres­sional Research Service, 2017), 2, https://fas.org/sgp/crs/misc/R43935.pdf. 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. foot­note45_o1t1y8n 45 Tech­no­logy Assess­ment Act of 1972, Pub. L. No. 92–484, §§ 2(a)(2), 2(d)(1), 86 Stat. 797–803 (1972). See also Gregory C. Kunkle, “New Chal­lenge or the Past Revis­ited? The Office of Tech­no­logy Assess­ment in Histor­ical Context,” Tech­no­logy in Soci­ety 17 (1995): 176 (“The idea for the organ­iz­a­tion emerged in a period of tech­no­lo­gical revi­sion­ism char­ac­ter­ized by the Super­sonic Trans­port (SST) and Anti-Ballistic Missile (ABM) contro­ver­sies and the closely related burgeon­ing envir­on­mental concerns of the 1960s and 1970s.”); Ed O’Keefe, “When Congress Wiped an Agency off the Map,” Wash­ing­ton Post, Nov. 29, 2011, https://www.wash­ing­ton­post.com/blogs/federal-eye/post/when-congress-wiped-an-agency-off-the-map/2011/11/29/gIQAIt0J9N_blog.html.

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), foot­note46_2ytx7kk 46 5 U.S.C. app. 2 §§ 1–16. 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. foot­note47_2jzorj5 47 See ibid. §§ 2(b)(5), 5(b)(2)–(3). The General Services Admin­is­tra­tion has issued guid­ance to agen­cies about advis­ory commit­tees, Federal Advis­ory Commit­tee Manage­ment, 41 C.F.R. pt. 102–3 (2001), and the Govern­ment Account­ab­il­ity Office has made recom­mend­a­tions for the exec­ut­ive branch to improve the balance of advis­ory commit­tees. Robin M. Nazarro, United States Govern­ment Account­ab­il­ity Office, Testi­mony Before the Subcom­mit­tee on Inform­a­tion Policy, Census, and National Archives, Commit­tee on Over­sight and Govern­ment Reform, House of Repres­ent­at­ives: Federal Advis­ory Commit­tee Act: Issues Related to the Inde­pend­ence and Balance of Advis­ory Commit­tees, GAO-08–611T (Wash­ing­ton, D.C.: Govern­ment Account­ab­il­ity Office, 2008), https://www.gao.gov/new.items/d08611t.pdf. The EPA’s scientific integ­rity policy specifies that the selec­tion of advis­ory commit­tee members should be based on expert­ise, balance of the scientific or tech­nical points of view, and consid­er­a­tion of conflicts of interest. “Scientific Integ­rity Policy,” U.S. Envir­on­mental Protec­tion Agency, last modi­fied 2012, 9, https://www.epa.gov/sites/produc­tion/files/2014–02/docu­ments/scientific_integ­rity_policy_2012.pdf. 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.” foot­note48_zdw244s 48 Eliot Marshall, “Hit List at EPA?” Science, Mar. 18, 1983, http://science.sciencemag.org/content/219/4590/1303; Scott Wald­man, “Polit­ical Appointees Once Kept a Scient­ist ‘Hit List,’” Climatewire, May 14, 2018, https://www.eenews.net/stor­ies/1060081559. 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. foot­note49_0ngswwk 49 Envir­on­mental Research, Devel­op­ment, and Demon­stra­tion Act of 1983, S. 2577, 97th Cong. (1982); H.R. 6323, 97th Cong. (1982). The legis­la­tion was vetoed by Pres­id­ent Reagan. foot­note50_ff2r66a 50 Ronald Reagan, Message from the Pres­id­ent of the United States: Return­ing Without My Approval S. 2577, a Bill to Author­ize Appro­pri­ations for Envir­on­mental Research, Devel­op­ment, and Demon­stra­tion for the Fiscal Years 1983 and 1984, and for Other Purposes, S. Doc. No. 97–37 (Oct. 22, 1982), avail­able at https://www.senate.gov/refer­ence/Legis­la­tion/Vetoes/Messages/ReaganR/S2577-Sdoc-97–37.pdf

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. foot­note51_kwf53xy 51 Paul Shinoff, “Nuclear Work­ers’ Health Monitored but Debate Grows,” Wash­ing­ton Post, May 22, 1978, https://www.wash­ing­ton­post.com/archive/busi­ness/1978/05/22/nuclear-work­ers-health-monitored-but-debate-grows/a99224cc-627d-4f43-ac17–3aaf390837cb. In response, Congress conduc­ted hear­ings foot­note52_gloh847 52 Legis­lat­ive Hear­ing on Radi­ation Meas­ures: Hear­ings on H.R. 1811, S. 1002, and S. 453, Before the Subcomm. on Compens­a­tion, Pension and Insur­ance of the Comm. on Veter­ans’ Affairs, 100th Cong. (1987). and passed the Radi­ation-Exposed Veter­ans Compens­a­tion Act of 1988 foot­note53_7tzd21n 53 Radi­ation-Exposed Veter­ans Compens­a­tion Act of 1988, Pub. L. No. 100–321, 102 Stat. 485 (1988). See also Clif­ford T. Honnicker, “Amer­ica’s Radi­ation Victims: The Hidden Files,” New York Times, Nov. 19, 1989, https://www.nytimes.com/1989/11/19/magazine/amer­ica-s-radi­ation-victims-the-hidden-files.html; David Michaels, Doubt Is Their Product: How Industry’s Assault on Science Threatens Your Health (New York: Oxford Univer­sity Press, 2008), 218. and the Radi­ation Expos­ure Compens­a­tion Act in 1990. foot­note54_9158rat 54 Radi­ation Expos­ure Compens­a­tion Act of 1990, Pub. L. No. 101–426, 104 Stat. 920 (1990). See also Michaels, Doubt Is Their Product, 220. 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, foot­note55_ufb97b2 55 See, e.g., National Aero­naut­ics and Space Admin­is­tra­tion Office of the Inspector General, Alleg­a­tions That NASA Suppressed Climate Change Science. 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, foot­note56_l2ir6hq 56 “Federal Govern­ment Sets New Record for Censor­ing, With­hold­ing Files Under FOIA,” CBS News, Mar. 12, 2018, https://www.cbsnews.com/news/foia-federal-govern­ment-sets-new-record-for-censor­ing-with­hold­ing-files-trump-admin­is­tra­tion/. 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. foot­note57_0ha3iaa 57 The DOI and the EPA imple­men­ted policies that allow polit­ical offi­cials to review responses to FOIA requests, giving them leeway to with­hold reques­ted docu­ments. Rebecca Beitsch, “Pres­sure Mounts Against EPA’s New FOIA Rule,” The Hill, July 10, 2019, https://thehill.com/policy/energy-envir­on­ment/452425-pres­sure-mounts-on-epa-to-with­draw-new-foia-rule. See also Rebecca Beitsch, “Bipar­tisan Senat­ors Fight ‘Polit­ical Consid­er­a­tions’ in EPA’s New FOIA Rule,” The Hill, July 22, 2019, https://thehill.com/policy/energy-envir­on­ment/454189-bipar­tisan-senat­ors-fight-polit­ical-consid­er­a­tions-in-epa-foia-rule. For instance, when processing a FOIA request at the DOI, FOIA officers iden­ti­fied 96 pages of poten­tially respons­ive mater­i­als, but released only 16 pages after review by polit­ical offi­cials. Michael Doyle and Jennifer Yach­nin, “Depart­ment’s FOIA Program Prompts IG Complaint,” E&E News, June 17, 2019, https://www.eenews.net/eenewspm/2019/06/17/stor­ies/1060613483. Simil­arly, polit­ical manip­u­la­tion can some­times be chal­lenged in court under the APA, foot­note58_uaqg­pl3 58 For instance, during the Obama admin­is­tra­tion, Health and Human Services Secret­ary Kath­leen Sebelius publicly over­ruled the Food and Drug Admin­is­tra­tion’s determ­in­a­tion that over-the-counter emer­gency contra­cept­ives were safe for minors, ques­tion­ing the under­ly­ing research despite her lack of scientific train­ing. Gardiner Harris, “Plan to Widen Avail­ab­il­ity of Morn­ing-After Pill Is Rejec­ted,” New York Times, Dec. 7, 2011, https://www.nytimes.com/2011/12/08/health/policy/sebelius-over­rules-fda-on-freer-sale-of-emer­gency-contra­cept­ives.html. 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.” Pam Belluck, “Judge Strikes Down Age Limits on Morn­ing-After Pill,” New York Times, Apr. 5, 2013, https://www.nytimes.com/2013/04/06/health/judge-orders-fda-to-make-morn­ing-after-pill-avail­able-over-the-counter-for-all-ages.html (quot­ing Tummino v. Hamburg, 936 F. Supp. 2d 162, 192 (E.D.N.Y. 2013)). which requires that the agency poli­cy­mak­ing process be trans­par­ent and allow for public parti­cip­a­tion. foot­note59_llo6e3c 59 5 U.S.C. §§ 551–559. 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. foot­note60_f5ikju1 60 Amer­ica Creat­ing Oppor­tun­it­ies to Mean­ing­fully Promote Excel­lence in Tech­no­logy, Educa­tion, and Science Reau­thor­iz­a­tion Act or “Amer­ica COMPETES Reau­thor­iz­a­tion Act of 2010,” Pub. L. No. 111–358, § 103(a), 124 Stat. 3982 (2010). 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. foot­note61_wjl6xg0 61 The Public Access Memo mandates the creation of public-access plans and clari­fies that the push for disclos­ure does not extend to labor­at­ory note­books, prelim­in­ary analyses, drafts of scientific papers, plans for future research, peer review reports, or commu­nic­a­tions with colleagues. John Hold­ren, Director, Office of Science and Tech­no­logy Policy, “Increas­ing Access to the Results of Feder­ally Funded Scientific Research” (offi­cial memor­andum, Wash­ing­ton, D.C.: Exec­ut­ive Office of the Pres­id­ent, 2013). By 2017, 22 federal agen­cies and depart­ments had issued public-access plans pursu­ant to OSTP’s direct­ive. foot­note62_hcp1pd5 62 Jerry Shee­han, “Making Federal Research Results Avail­able to All,” White House, Jan. 9, 2017, https://obamawhite­house.archives.gov/blog/2017/01/09/making-federal-research-results-avail­able-all. 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. foot­note63_ux6j4mg 63 See examples under “Restric­tion of Public Access to Govern­ment Research and Data” in the Appendix. 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. foot­note64_asm1dwg 64 For example, the first sentence of a news release draf­ted by a scient­ist was, “The ‘ozone hole’ that devel­ops over Antarc­tica was larger this year than in 2004 and was the fifth largest on record.” The public affairs office changed that sentence to read, “NASA research­ers[] . . . determ­ined the seasonal ozone hole that developed over Antarc­tica this year is smal­ler than in previ­ous years.” National Aero­naut­ics and Space Admin­is­tra­tion Office of the Inspector General, Alleg­a­tions That NASA Suppressed Climate Change Science. See also Andrew C. Revkin, “Climate Expert Says NASA Tried to Silence Him,” New York Times, Jan. 29, 2006, https://www.nytimes.com/2006/01/29/science/earth/climate-expert-says-nasa-tried-to-silence-him.html. George Deutsch, a polit­ic­ally appoin­ted public affairs officer at NASA, rejec­ted a request from a produ­cer at NPR to inter­view James E. Hansen, then director of NASA’s Goddard Insti­tute for Space Stud­ies, reportedly call­ing NPR “the most liberal” media outlet in the coun­try and that his job was “to make the pres­id­ent look good.” Ibid. 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” foot­note65_d82mkwc 65 The National Aero­naut­ics and Space Act, 51 U.S.C. § 20112(a)(3). of inform­a­tion about its work. foot­note66_x62xret 66 National Aero­naut­ics and Space Admin­is­tra­tion Office of the Inspector General, Alleg­a­tions That NASA Suppressed Climate Change Science. In response, the NASA admin­is­trator renewed the agency’s commit­ment to scientific open­ness foot­note67_bwcrxyn 67 Michael Griffin, Admin­is­trator, “State­ment on Scientific Open­ness,” National Aero­naut­ics and Space Admin­is­tra­tion, Feb. 4, 2006, https://www.nasa.gov/about/high­lights/griffin_science.html. and reformed its public rela­tions policy. foot­note68_x8yczjf 68 “NASA Policy on the Release of Inform­a­tion to News and Inform­a­tion Media,” National Aero­naut­ics and Space Admin­is­tra­tion, Mar. 30, 2006, https://www.nasa.gov/pdf/145687­main_inform­a­tion_policy.pdf.

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. foot­note69_dgjg­zye 69 See examples listed under “Threats to Scientific Integ­rity” in the Appendix. For instance, EPA offi­cials recently blocked agency scient­ists and contract­ors from present­ing research about climate change and related ecolo­gical issues at a profes­sional confer­ence. foot­note70_5ex0j11 70 Lisa Fried­man, “E.P.A. Cancels Talk on Climate Change by Agency Scient­ists,” New York Times, Oct. 22, 2017, https://www.nytimes.com/2017/10/22/climate/epa-scient­ists.html?emc=eta1; Arianna Skibell, “Agency Keeps Scient­ists from Speak­ing at Water­shed Confer­ence,” Green­wire, Oct. 23, 2017. Agency offi­cials at the Depart­ments of Agri­cul­ture, Energy, and the Interior have simil­arly preven­ted staff from attend­ing scientific confer­ences. foot­note71_2u7b­dah 71 Elliot Negin, “Energy Depart­ment Scient­ists Barred from Attend­ing Nuclear Power Confer­ence,” Huff­ing­ton Post, Aug. 1, 2017, https://www.huff­post.com/entry/energy-depart­ment-scient­ists-barred-from-attend­ing_b_597f7e2ee4b0cb4fc1c73b8e; Brit­tany Patter­son, “Govt. Scient­ist Blocked from Talk­ing About Climate and Fire,” E&E News, Oct. 31, 2017, https://www.eenews.net/stor­ies/1060065143; Sarah Kaplan, “Govern­ment Scient­ists Blocked from the Biggest Meet­ing in Their Field,” Wash­ing­ton Post, Dec. 22, 2017, https://www.wash­ing­ton­post.com/news/speak­ing-of-science/wp/2017/12/22/govern­ment-scient­ists-blocked-from-the-biggest-meet­ing-in-their-field; Dino Grandoni, “The Energy 202: Interior Agency Blocks Group of Archae­olo­gists from Attend­ing Scientific Confer­ence,” Wash­ing­ton Post, May 3, 2018, https://www.wash­ing­ton­post.com/news/power­post/paloma/the-energy-202/2018/05/03/the-energy-202-interior-agency-blocks-group-of-archae­olo­gists-from-attend­ing-scientific-confer­ence. 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. foot­note72_ppclqu4 72 Lance Leggitt, Chief of Staff, Office of the Secret­ary, “Congres­sional Rela­tions” (offi­cial memor­andum, Wash­ing­ton, D.C.: Depart­ment of Health and Human Services, May 3, 2017), avail­able at https://www.wash­ing­ton­post.com/news/post-nation/wp-content/uploads/sites/23/2017/05/HHSMemo.pdf; Sam Baker, “CDC Cracks Down on Commu­nic­a­tions with Report­ers,” Axios, Sept. 12, 2017, https://www.axios.com/cdc-cracks-down-on-commu­nic­a­tions-with-report­ers-1513305443–0a94d025–172c-44f1-b26c-e02885bd­ff40.html; Rong-Gong Lin II, “Trump Admin­is­tra­tion Tight­ens Rules for Federal Scient­ists Talk­ing to Report­ers,” Los Angeles Times, June 22, 2018, https://www.latimes.com/local/lanow/la-me-ln-trump-policy-usgs-scient­ists-20180621-story.html. An employee at the National Parks Service reports being instruc­ted to avoid using terms such as “climate change” in internal project propos­als. foot­note73_354mkp8 73 Center for Science and Demo­cracy, Science Under Pres­id­ent Trump: Voices of Scient­ists Across 16 Federal Agen­cies, Union of Concerned Scient­ists, 2018, 7, avail­able at https://www.ucsusa.org/sites/default/files/attach/2018/08/science-under-trump-report.pdf. And the EPA has intro­duced a proposed “trans­par­ent science” rule that, despite its name, would limit EPA scient­ists’ access to high-qual­ity research foot­note74_w2ble45 74 Robin­son Meyer, “Trump’s Inter­fer­ence with Science Is Unpre­ced­en­ted,” Atlantic, Nov. 9, 2018, https://www.theat­lantic.com/science/archive/2018/11/experts-warn-trump-epa-meddling-scientific-method/575377/. because it would prohibit the agency from using research whose under­ly­ing data is not made publicly avail­able. foot­note75_o4c2e20 75 The EPA’s proposed “trans­par­ent science” rule would require that scientific stud­ies that support “pivotal regu­lat­ory science” publish their under­ly­ing data, models, and assump­tions, which would often entail disclos­ure of personal health and other private inform­a­tion of study parti­cipants, in contra­ven­tion of privacy laws. Robin­son Meyer, “Even Geolo­gists Hate the EPA’s New Science Rule,” Atlantic, July 17, 2018, https://www.theat­lantic.com/science/archive/2018/07/scott-pruitts-secret-science-rule-could-still-become-law/565325/. (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. foot­note76_mltajra 76 Audra J. Wolfe, “Yes, Radi­ation Is Bad for You. The EPA’s ‘Trans­par­ency Rule’ Would Be Even Worse.” Wash­ing­ton Post, Oct. 8, 2018, https://www.wash­ing­ton­post.com/outlook/2018/10/08/yes-radi­ation-is-bad-you-epas-trans­par­ency-rule-would-be-even-worse. See also Scott Wald­man, “How Pruit­t’s Science Plans Might Help Industry Fight Rules,” E&E News, May 1, 2018, https://www.eenews.net/stor­ies/1060080501 (“Offer­ing more raw data[] . . . could allow industry to take data out of context and to rework it with prede­ter­mined find­ings that it will claim inval­id­ates the work of estab­lished and inde­pend­ent research­ers[.]”); Bern­ard Gold­stein, “Why the EPA’s ‘Secret Science’ Proposal Alarms Public Health Experts,” The Conver­sa­tion, May 18, 2018, https://thecon­ver­sa­tion.com/why-the-epas-secret-science-proposal-alarms-public-health-experts-96000 (provid­ing histor­ical context for “trans­par­ent science” rule). )

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. foot­note77_shtlk1t 77 The 2017 version of the Scientific Integ­rity Act would have required that scientific integ­rity policies apply “to each employee or contractor who conducts, handles, commu­nic­ates, super­vises, or manages feder­ally funded scientific research for the [f]ederal agency or for a feder­ally funded research and devel­op­ment center sponsored by the [f]ederal agency.” Scientific Integ­rity Act, H.R. 1358, 115th Cong. § 6(a) (2017); Scientific Integ­rity Act, S. 338, 115th Cong. § 6(a) (2017). Of note, some of the scientific integ­rity policies that agen­cies have adop­ted apply to contract­ors, states, and other part­ners. See Public Employ­ees for Envir­on­mental Respons­ib­il­ity, Scientific Integ­rity Report Card Factors, § I(B)(2), avail­able at https://www.peer.org/assets/docs/Factors_RC_Point_System.pdf; Public Employ­ees for Envir­on­mental Respons­ib­il­ity, Scientific Integ­rity Report Card Compar­ison Charts, avail­able at https://www.peer.org/assets/docs/SI_Report_Card_Compar­ison_Chart%20-%20Sor­ted%20by%20Score.pdf. 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. foot­note78_4etukxk 78 See Scientific Integ­rity Act, H.R. 1709, 116th Cong. § 2(3) (2019); Scientific Integ­rity Act, S. 775, 116th Cong. § 3(3) (2019).

>> 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. foot­note79_wzmbllg 79 See Scientific Integ­rity Act, H.R. 1709, 116th Cong. § 3 (2019); Scientific Integ­rity Act, S. 775, 116th Cong. § 4 (2019).

>> Agen­cies shall have a clear, consist­ent, trans­par­ent, and predict­able proced­ure for agency approval of govern­ment scient­ists’ public­a­tions, present­a­tions, and parti­cip­a­tion in scientific confer­ences. foot­note80_5xmp­d95 80 See Scientific Integ­rity Act, H.R. 1709, 116th Cong. § 3 (2019); Scientific Integ­rity Act, S. 775, 116th Cong. § 4 (2019). See also Holly Doremus, “Scientific and Polit­ical Integ­rity in Envir­on­mental Policy,” Texas Law Review 86 (2008): 1647–48 (“Outside of regu­lat­ory agen­cies, federal research units modeled along academic lines should allow scient­ists to speak out just as academic scient­ists are free to do. Within regu­lat­ory agen­cies, there is some justi­fic­a­tion for over­see­ing contacts with the press; at some level those agen­cies must speak with one voice. But no such concern exists with respect to research science units. . . . It is never appro­pri­ate for any polit­ical appointee or public affairs officer to screen submis­sions of scientific liter­at­ure.”).

>> Agen­cies shall have a proced­ure for hand­ling disagree­ments about scientific method and conclu­sions. foot­note81_0ss3yxo 81 See ibid., 1645 (advoc­at­ing for creation of dissent chan­nels at agen­cies where scientific research is performed). See also Scientific Integ­rity Act, H.R. 1709, 116th Cong. § 3 (2019); Scientific Integ­rity Act, S. 775, 116th Cong. § 4 (2019).

>> Agen­cies shall desig­nate a nonpolit­ical agency offi­cial or offi­cials, with relev­ant scientific expert­ise, to be charged with monit­or­ing and support­ing scientific integ­rity, foot­note82_8dza­6hr 82 See ibid. See also Doremus, “Scientific and Polit­ical Integ­rity,” 1645–46 (call­ing for inde­pend­ent scientific ombuds­men to whom agency tech­nical staff could forward concerns about scientific under­pin­nings of regu­lat­ory decisions and public commu­nic­a­tions). Congress has created similar posi­tions, such as the director of the Office of Research Integ­rity in HHS. 42 U.S.C. § 289b(a)(2). The director is required by stat­ute to be exper­i­enced and specially trained in the conduct of research and have exper­i­ence in the conduct of invest­ig­a­tions of research miscon­duct and is appoin­ted by the secret­ary of the depart­ment.   Some agen­cies have scientific integ­rity officers (SIOs) to admin­is­ter scientific integ­rity policies. See, e.g., U.S. Envir­on­mental Protec­tion Agency, Scientific Integ­rity Policy (Wash­ing­ton, D.C.: Envir­on­mental Protec­tion Agency, 2017), 10, avail­able at https://www.peer.org/assets/docs/epa/1_17_EPA_Final_SIP.pdf; “Maryam Daneshvar, PhD, Director, Office of Scientific Integ­rity,” Centers for Disease Control and Preven­tion, accessed Mar. 1, 2019, https://www.cdc.gov/od/science/abou­tus/maryam-daneshvar.htm; “Scientific Integ­rity Officers,” U.S. Depart­ment of the Interior, accessed Mar. 1, 2019, https://www.doi.gov/scien­ti­ficin­teg­rity/Scientific-Integ­rity-Officers; “Agency and Depart­mental Scientific Integ­rity Officers,” U.S. Depart­ment of Agri­cul­ture, accessed Mar. 1, 2019, https://www.usda.gov/our-agency/staff-offices/office-chief-scient­ist-ocs/agency-and-depart­mental-scientific-integ­rity. with appro­pri­ate insu­la­tion from polit­ical offi­cials. foot­note83_ci8ujsa 83 See Jeff Ruch, “Emer­ging Law of Scientific Integ­rity — A Bumpy Birth,” Fish­er­ies 42 (2017): 354–55 (emphas­iz­ing need for inde­pend­ent review of scientific integ­rity complaints).

 

>> Agen­cies shall conduct routine scientific integ­rity train­ing for all agency person­nel who use science to any signi­fic­ant degree in their jobs. foot­note84_8hgp2e9 84 See Scientific Integ­rity Act, H.R. 1709, 116th Cong. § 3 (2019); Scientific Integ­rity Act, S. 775, 116th Cong. § 4 (2019). See also Doremus, “Scientific and Polit­ical Integ­rity,” 1648 (advoc­at­ing train­ing on the roles of tech­nical and polit­ical staff).

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. foot­note85_9drt­fzf 85 Carl Meyers, “Canada Moves to Protect Its Federal Scient­ists from Polit­ical Inter­fer­ence,” (Canada’s) National Observer, July 30, 2018, https://www.nation­alob­server.com/2018/07/30/news/canada-moves-protect-its-federal-scient­ists-polit­ical-inter­fer­ence. See also “Resources,” European Network of Research Integ­rity Offices, accessed Mar. 21, 2019, http://www.enrio.eu/resources/ (list­ing national and inter­na­tional codes of conduct for research integ­rity, open data policies, and other resources).

Science Under Seige: Wages

 

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. foot­note86_dg12p0l 86 The Scientific Integ­rity Act would require scientific integ­rity policies to ensure, inter alia, that: scientific conclu­sions are not made based on polit­ical consid­er­a­tions; person­nel actions for scientific person­nel are not made based on polit­ical consid­er­a­tions; proced­ures are in place as are neces­sary to ensure the integ­rity of scientific and tech­no­lo­gical inform­a­tion and processes on which the federal agency relies in its decision-making or other­wise uses. Scientific Integ­rity Act, H.R. 1709, 116th Cong. § 3 (2019); Scientific Integ­rity Act, S. 775, 116th Cong. § 4 (2019). 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 foot­note87_ulasmb4 87 The Data Qual­ity Act (DQA, also known as the Inform­a­tion Qual­ity Act) directs the White House Office of Manage­ment and Budget (OMB) to issue guidelines that “provide policy and proced­ural guid­ance to Federal agen­cies for ensur­ing and maxim­iz­ing the qual­ity, objectiv­ity, util­ity, and integ­rity of inform­a­tion (includ­ing stat­ist­ical inform­a­tion) dissem­in­ated by Federal agen­cies.” Pub. L. No. 106–554, § 515, 114 Stat. 2763 (2000). This appears to provide modest protec­tions for the qual­ity of govern­ment data dissem­in­ated to the public. However, the DQA has been criti­cized as a vehicle for special interest groups to impede or suppress govern­ment research by means of nonmer­it­ori­ous peti­tions chal­len­ging the objectiv­ity of govern­ment data. See Wendy Wagner, “The Perils of Rely­ing on Inter­ested Parties to Eval­u­ate Scientific Qual­ity,” Amer­ican Journal of Public Health 95 (2005); Thomas O. McGar­ity et al., Truth and Science Betrayed: The Case Against the Inform­a­tion Qual­ity Act, Center for Progress­ive Reform, 2005, 2, http://www.progress­ivere­form.org/articles/iqa.pdf. In many instances, such chal­lenges have relied on industry-funded stud­ies, which have them­selves been faul­ted by main­stream scientific opin­ion. See Stephen M. John­son, “Junk­ing the Junk Science Law: Reform­ing the Inform­a­tion Qual­ity Act,” Admin­is­trat­ive Law Review 58 (2006): 37; Derek Araujo, Daniel Horow­itz, and Ronald A. Lind­say, Protect­ing Scientific Integ­rity, Center for Inquiry, 2007, 7, https://center­forin­quiry.org/wp-content/uploads/2018/05/scientific-integ­rity.pdf. For these reas­ons, we believe that another legis­lat­ive approach is warran­ted to protect scientific integ­rity. 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). foot­note88_uu8p­bxa 88 U.S. Depart­ment of the Interior Office of the Inspector General, Invest­ig­at­ive Report on Alleg­a­tions Against Julie MacDon­ald, Deputy Assist­ant Secret­ary, Fish, Wild­life and Parks (Wash­ing­ton, D.C.: Depart­ment of the Interior, 2006), avail­able at https://www.doioig.gov/sites/doioig.gov/files/Macdon­ald.pdf; Scientific Integ­rity Program, Polit­ical Inter­fer­ence in Endangered Species Science: A Systemic Prob­lem at the U.S. Fish and Wild­life Service, Union of Concerned Scient­ists, 2006, avail­able at https://www.ucsusa.org/sites/default/files/legacy/assets/docu­ments/scientific_integ­rity/white-tailed-prairie-dog.pdf; Savage, “Report Finds Meddling.” 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. foot­note89_a7frta8 89 See examples listed under “Contacts Between Polit­ical Offi­cials and Career Experts That Under­mine Scientific Integ­rity” in the Appendix. 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. foot­note90_osiq6uh 90 Bruce Rocheleau, Wild­life Polit­ics (New York: Cambridge Univer­sity Press, 2017), 55.

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, foot­note91_x0y1hq9 91 Grandoni and Eilperin, “Interior Dept. Offi­cials Down­played Concerns.” 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. foot­note92_j7r3idx 92 Letter from Regional Director to Paul Enriquez, Real Estate and Envir­on­mental Branch Chief, U.S. Customs and Border Protec­tion (Oct. 13, 2017), avail­able at https://apps.wash­ing­ton­post.com/g/docu­ments/national/fish-and-wild­life-services-final-letter-on-border-walls-envir­on­mental-impacts/3345/. See also Grandoni and Eilperin, “Interior Dept. Offi­cials Down­played Concerns.” 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,” foot­note93_3y4fwso 93 Grandoni and Eilperin, “Interior Dept. Offi­cials Down­played Concerns.” regard­less of scientific assess­ments about the impact of that mission on anim­als the agency is charged with protect­ing. foot­note94_9nwr­wl2 94 “About the U.S. Fish and Wild­life Service,” U.S. Fish and Wild­life Service, accessed Mar. 21, 2019, https://www.fws.gov/help/about_us.html (“Our Mission is to [w]ork with others to conserve, protect and enhance fish, wild­life and plants and their habit­ats for the continu­ing bene­fit of the Amer­ican people.”).

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. foot­note95_wyilrg3 95 The recently intro­duced Scientific Integ­rity Act calls for agen­cies to have “the appro­pri­ate rules, proced­ures, and safe­guards . . . in place to ensure the integ­rity of the scientific process within the covered agency.” Scientific Integ­rity Act, H.R. 1709, 116th Cong. § 3 (2019); Scientific Integ­rity Act, S. 775, 116th Cong. § 4 (2019). 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. foot­note96_2z3h8cr 96 See, e.g., Jack Quinn, Coun­sel to the Pres­id­ent, “Contacts with Agen­cies” (offi­cial memor­andum, Wash­ing­ton, D.C.: The White House, Jan. 16, 1996), 3, 5, avail­able at https://clin­ton.pres­id­en­tial­lib­rar­ies.us/items/show/27001 (advising that White House staff should not commu­nic­ate with inde­pend­ent agen­cies about rule­mak­ing matters and, with respect to exec­ut­ive branch depart­ments, requir­ing White House contacts inten­ded to influ­ence the outcome of a pending rule­mak­ing to be pre-approved by the relev­ant assist­ant or deputy assist­ant to the pres­id­ent and coordin­ated with the admin­is­trator of OIRA for advice on the appro­pri­ate­ness of the contact); see also Donald Rums­feld, White House Chief of Staff, “Stand­ards of Conduct: Contacts with Regu­lat­ory Agen­cies and Procure­ment Officers” (offi­cial memor­andum, Wash­ing­ton, D.C.: White House, Oct. 10, 1975), 1–3, avail­able at https://www.ford­lib­rarymu­seum.gov/library/docu­ment/0204/1511945.pdf. 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. foot­note97_hn64ymu 97 See, e.g., 47 C.F.R. § 1.1200 et seq. (Federal Commu­nic­a­tions Commis­sion regu­la­tions govern­ing ex parte commu­nic­a­tions).

In addi­tion, schol­ars have called for similar reforms, foot­note98_jguinlm 98 See, e.g., Wendy Wagner and Tom McGar­ity, “Dereg­u­la­tion Using Stealth ‘Science’ Strategies,” Duke Law Journal 68 (2019): 1783–1800 (call­ing for fire­walling of scientific liter­at­ure review and analysis from policy input); Science for Policy Project, Improv­ing the Use of Science in Regu­lat­ory Policy, Bipar­tisan Policy Center, 2009, 4, avail­able at https://bipar­tis­an­policy.org/wp-content/uploads/sites/default/files/BPC%20Science%20Re­port%20fnl.pdf (call­ing for meas­ures to differ­en­ti­ate between ques­tions that involve scientific judg­ments and ques­tions that involve judg­ments about econom­ics, ethics, and other matters of policy); Angus Macbeth and Gary Marchant, “Improv­ing the Govern­ment’s Envir­on­mental Science,” New York Univer­sity Envir­on­mental Law Journal 17 (2008): 157 (propos­ing insti­tu­tional separ­a­tion of scientific assess­ments from the polit­ical envir­on­ment inher­ent to regu­lat­ory decisions); Doremus, “Scientific and Polit­ical Integ­rity,” 1644–45 (call­ing for contacts between polit­ical appointees and nonman­age­ment career tech­nical staff to be limited during the tech­nical stages of regu­lat­ory devel­op­ment and requir­ing agen­cies to estab­lish proced­ures for making science-intens­ive regu­lat­ory decisions, as well as for the prepar­a­tion of scientific reports to Congress and the public); Altern­at­ive Facts on the Rise in Federal Decision Records, Public Employ­ees for Envir­on­mental Respons­ib­il­ity, Jan. 31, 2019, https://www.peer.org/news/press-releases/altern­at­ive-facts-on-the-rise-in-federal-decision-records.html (link­ing to sugges­ted stat­utory clari­fic­a­tion, “Anti­dote to Altern­at­ives Facts Act,” which would require admin­is­trat­ive record to include “[c]ommu­nic­a­tions that the agency received from other agen­cies and from the public, and any responses to those commu­nic­a­tions,” “[m]inutes from meet­ings and the memori­al­iz­a­tion of pertin­ent tele­phone conver­sa­tions,” and “[n]on-prin­ted commu­nic­a­tions, not limited to e-mail, computer tapes, discs, and other elec­tronic records, as well as micro­film and microfiche”) 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. foot­note99_ghr5zcr 99 For instance, after the EPA’s Clean Air Science Advis­ory Commit­tee (CASAC) publi­cized the OMB’s changes to the commit­tee’s research, Senator Barbara Boxer reques­ted that the EPA provide her mater­ial show­ing the agency’s contacts with the OMB and repres­ent­at­ives of the mining and agri­cul­tural indus­tries. Janet Wilson, “EPA Panel Advises Agency Chief to Think Again,” Los Angeles Times, Feb. 4, 2006, https://www.latimes.com/archives/la-xpm-2006-feb-04-me-epa4-story.html.

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. foot­note100_ygp3yts 100 For examples of polit­ic­ally motiv­ated manip­u­la­tion of govern­ment research, and retali­ation against govern­ment scient­ists for their research, see “Retali­ation and Threatened Retali­ation Against Career Experts” in the Appendix.

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. foot­note101_wi0c9ua 101 65 Fed. Reg. 76,260 (Dec. 6, 2000). 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. foot­note102_23ss­nxs 102 Whis­tleblower Protec­tion Act of 1989, Pub. L. No. 101–12, 103 Stat. 16 (1989), amended by the Whis­tleblower Protec­tion Enhance­ment Act of 2012, Pub. L. No. 112–199, 126 Stat. 1465 et seq (2012). See also letter from Caro­lyn Lerner, special coun­sel, to Barack Obama, pres­id­ent (Sept. 27, 2016), avail­able at https://osc.gov/Public­Files/FY2016/16–60-DI-16–3709/16–60-DI-16–3709-Letter-to-the-Pres­id­ent.pdf (report­ing results of invest­ig­a­tion of whis­tleblower claim by scient­ist who was demoted after chal­len­ging govern­ment’s recom­men­ded Zika test); Lena H. Sun, “CDC Whis­tleblower Claims Agency Has Been Using Wrong Zika Test,” Wash­ing­ton Post, Sept. 28, 2016, https://www.wash­ing­ton­post.com/news/to-your-health/wp/2016/09/27/cdc-whis­tleblower-claims-agency-has-been-using-wrong-zika-test/. But the process for pursu­ing such whistle-blower claims is time-consum­ing, and claimants’ prospects for relief are low. foot­note103_fateoen 103 See, e.g., “Cases Received: FY2007–FY2017,” Whis­tleblower Protec­tion Programs, accessed Mar. 1, 2019, https://www.whis­tleblowers.gov/sites/default/files/3DCharts-FY2007-FY2017.pdf; Bruce Rolf­sen, “Whis­tleblower Complaints Up; Invest­ig­ator Count Down,” Bloomberg Envir­on­ment, Feb. 20, 2019, https://news.bloomber­gen­vir­on­ment.com/safety/whis­tleblower-complaints-up-invest­ig­ator-count-down; Anne Kates Smith, “The Elusive Rewards and High Costs of Being a Whis­tleblower,” Kiplinger, June 2013, https://www.kiplinger.com/article/busi­ness/T012-C000-S002-high-costs-of-being-a-whis­tleblower.html. Addi­tion­ally, discip­line is “almost unheard of” for the managers who retali­ate against whis­tleblowers. Joe David­son, “New Law Targets Managers Who Retali­ate Against Federal Whis­tleblowers,” Wash­ing­ton Post, Oct. 31, 2017, https://www.wash­ing­ton­post.com/news/power­post/wp/2017/10/31/new-law-targets-managers-who-retali­ate-against-federal-whis­tleblowers/; Chances of Whis­tleblower Success Remain Slim, Public Employ­ees for Envir­on­mental Respons­ib­il­ity, Sept. 9, 2013, https://www.peer.org/news/press-releases/chances-of-whis­tleblower-success-remain-slim.html. There are numer­ous propos­als from good govern­ment groups to improve whis­tleblower protec­tions. See, e.g., Protect­ing Science at Federal Agen­cies: How Congress Can Help, Climate Science Legal Defense Fund, et al., 2018, 26–30, avail­able at https://www.envir­on­ment­al­pro­tec­tion­net­work.org/wp-content/uploads/2018/11/Protect­ing-Science-at-Federal-Agen­cies-Report.pdf. 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. foot­note104_rszk6cs 104 See, e.g., U.S. Depart­ment of the Interior Office of the Inspector General, Alleg­a­tions Against Julie MacDon­ald; National Aero­naut­ics and Space Admin­is­tra­tion Office of the Inspector General, Alleg­a­tions That NASA Suppressed Climate Change Science. But their author­ity to invest­ig­ate wrong­do­ing often turns on agency-specific legis­la­tion and regu­la­tions foot­note105_g2fhg92 105 Ibid., 1 (citing the stat­utory and regu­lat­ory require­ment of “the widest prac­tic­able and appro­pri­ate dissem­in­a­tion” of inform­a­tion concern­ing the agency’s activ­it­ies and results). 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. foot­note106_tuj7lz4 106 5 U.S.C. app. 6 § 4(a)(5) (inspect­ors general have the respons­ib­il­ity to “recom­mend correct­ive action”).

Congress should enact legis­la­tion that makes it unlaw­ful for govern­ment offi­cials foot­note107_6h716bf 107 We believe that the term “govern­ment offi­cial” should be defined to include at least federal employ­ees and contract­ors who, inter alia, engage in or manage scientific activ­it­ies, analyze or publicly commu­nic­ate inform­a­tion result­ing from scientific activ­it­ies, or use scientific inform­a­tion in poli­cy­mak­ing. See Scientific Integ­rity Act, H.R. 1709, 116th Cong. § 3 (2019); Scientific Integ­rity Act, S. 775, 116th Cong. § 4 (2019). to

>> tamper with the conduct of feder­ally funded scientific research or data for personal, finan­cial, or partisan polit­ical gain; foot­note108_e23imge 108 As a point of compar­ison, the recently intro­duced Scientific Integ­rity Act would prohibit “dishon­esty, fraud, deceit, misrep­res­ent­a­tion, coer­cive manip­u­la­tion, or other scientific or research miscon­duct.” Ibid. § 4 (2019). See also Restore Scientific Integ­rity to Federal Research and Poli­cy­mak­ing Act, H.R. 839, 109th Cong. § 3(a) (2005); S. 1358, 109th Cong. § 3(a) (2005).

>> censor find­ings of such research or analysis for the same reas­ons; foot­note109_iqtb­mtz 109 As a refer­ence point, the Scientific Integ­rity Act would prohibit suppres­sion, alter­a­tion, inter­fer­ence, or other­wise imped­ing the timely release and commu­nic­a­tion of scientific or tech­nical find­ings, as well as the imple­ment­a­tion of insti­tu­tional barri­ers to cooper­a­tion and the timely commu­nic­a­tion of scientific or tech­nical find­ings. Scientific Integ­rity Act, H.R. 1709, 116th Cong. § 3 (2019); Scientific Integ­rity Act, S. 775, 116th Cong. § 3 (2019). See also Restore Scientific Integ­rity to Federal Research and Poli­cy­mak­ing Act, H.R. 839, 109th Cong. (2005); S. 1358, 109th Cong. (2005).

>> direct the dissem­in­a­tion of scientific inform­a­tion that the direct­ing offi­cial knows is false or mislead­ing; foot­note110_za4l95k 110 Of note, the 2005 Restore Scientific Integ­rity bill would have prohib­ited this conduct. H.R. 839, 109th Cong. § 3(a) (2005); S. 1358, 109th Cong. § 3(a) (2005). 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. foot­note111_kji45bf 111 See ibid. See also Scientific Integ­rity Act, H.R. 1709, 116th Cong. § 3 (2019); Scientific Integ­rity Act, S. 775, 116th Cong. § 4 (2019) (prohib­it­ing the follow­ing conduct: intim­id­at­ing or coer­cing an indi­vidual to alter or censor, or retali­ate against an indi­vidual for fail­ure to alter or censor, scientific or tech­nical find­ings).

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; foot­note112_2tp99fj 112 See 65 Fed. Reg. 76,262 (Dec. 6, 2000) (“A find­ing of research miscon­duct requires” that “[t]here be a signi­fic­ant depar­ture from accep­ted prac­tices of the relev­ant research community[.]”). the miscon­duct be commit­ted inten­tion­ally, know­ingly, or reck­lessly; foot­note113_h0epfd5 113 Ibid. The 2005 Restore Scientific Integ­rity bill would have required that the employee direct­ing the dissem­in­a­tion of scientific inform­a­tion know that the inform­a­tion was false or mislead­ing as a predic­ate for liab­il­ity. Restore Scientific Integ­rity to Federal Research and Poli­cy­mak­ing Act, H.R. 839, 109th Cong. § 3(a) (2005); S. 1358, 109th Cong. § 3(a) (2005). and the alleg­a­tion be proven by a prepon­der­ance of evid­ence. foot­note114_dpiho0s 114 See 65 Fed. Reg. 76,262 (Dec. 6, 2000) (requir­ing that an alleg­a­tion of scientific miscon­duct be proven by a prepon­der­ance of the evid­ence). The DOI’s Scientific Integ­rity Policy uses the same stand­ard for scientific integ­rity viol­a­tions. U.S. Depart­ment of the Interior, Scientific Integ­rity Proced­ures Hand­book (305 DM 3), Dec. 16, 2014, ch. 3, § 3.7(b)(3)(i)–(iii), https://www.doi.gov/sites/doi.gov/files/elips/docu­ments/305%20DM%203_%20Hand­book%20-%20Scientific%20In­teg­rity%20Pro­ced­ures.pdf.

Science Under Seige: Labor Market

This legis­la­tion would strengthen the long­stand­ing aims of several exist­ing exec­ut­ive branch proto­cols, foot­note115_fqslnwk 115 Many agen­cies’ scientific integ­rity policies have outlined proced­ures for hand­ling alleg­a­tions of scientific integ­rity viol­a­tions. See Gold­man et al., Preserving Scientific Integ­rity, Appendix B, avail­able at https://www.ucsusa.org/sites/default/files/attach/2017/01/preserving-scientific-integ­rity-appendix-b.pdf. as well as stat­utes that prohibit public employ­ers from retali­at­ing against employ­ees who assist in their admin­is­tra­tion or enforce­ment. foot­note116_ltbswa9 116 See Toxic Substances Control Act, 15 U.S.C. § 2622(a); Clean Water Act, 33 U.S.C. § 1367(a); Clean Air Act, 42 U.S.C. § 7622(a); Safe Drink­ing Water Act, 42 U.S.C. § 300j-9(i); Resource Conser­va­tion and Recov­ery Act, 42 U.S.C. § 6971(a); Compre­hens­ive Envir­on­mental Response, Compens­a­tion and Liab­il­ity Act, 42 U.S.C. § 9610(a). 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. foot­note117_z3aekk6 117 Scientific Integ­rity Act, H.R. 1709, 116th Cong. § 3 (2019); Scientific Integ­rity Act, S. 775, 116th Cong. § 4 (2019). 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. foot­note118_2k7c3lh 118 Restore Scientific Integ­rity to Federal Research and Poli­cy­mak­ing Act, H.R. 839, 109th Cong. § 3(b) (2005); Restore Scientific Integ­rity to Federal Research and Poli­cy­mak­ing Act, S. 1358, 109th Cong. § 3(b) (2005).

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, foot­note119_jpt91xb 119 “Advis­ory Commit­tees,” Consumer Finan­cial Protec­tion Bureau, accessed Aug. 12, 2019, https://www.consumerfin­ance.gov/about-us/advis­ory-commit­tees/; “Finan­cial Research Advis­ory Commit­tee,” Office of Finan­cial Researcher, accessed Aug. 12, 2019, https://www.finan­cialre­search.gov/frac/. 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. foot­note120_3m3a6wc 120 “Charter,” Pres­id­en­tial Advis­ory Coun­cil on Combat­ing Anti­bi­otic-Resist­ant Bacteria, accessed Aug. 12, 2019, https://www.hhs.gov/ash/advis­ory-commit­tees/paccarb/index.html. 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, foot­note121_pynxr4n 121 See, e.g., 5 U.S.C. app. 2 §§ 1–16. 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. foot­note122_3gdxm69 122 See examples under “Attacks on Science Advis­ory Commit­tees” in the Appendix.

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. foot­note123_fj1l3ry 123 Exec. Order No. 12,838, 3 C.F.R. 590 (1993); Exec. Order No. 13, 875, 84 Fed. Reg. 28,711 (June 14, 2019). The George W. Bush admin­is­tra­tion disban­ded advis­ory commit­tees when they attrac­ted oppos­i­tion from reli­gious and industry groups for their scientific conclu­sions foot­note124_z6id­srs 124 Rick Weiss, “HHS Seeks Science Advice to Match Bush Views,” Wash­ing­ton Post, Sept. 17, 2002, https://www.wash­ing­ton­post.com/archive/polit­ics/2002/09/17/hhs-seeks-science-advice-to-match-bush-views/cbe5071b-4426–403d-949b-e27769026780/. 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. foot­note125_5j4jh7u 125 Gerald Markow­itz and David Rosner, “Politi­ciz­ing Science: The Case of the Bush Admin­is­tra­tion’s Influ­ence on the Lead Advis­ory Panel at the Centers for Disease Control,” Journal of Public Health Policy 24, no. 2 (2003): 112–19. The revamped panel issued recom­mend­a­tions at odds with research show­ing seri­ous cognit­ive damage result­ing from lead expos­ure. foot­note126_eyhg6kg 126 “Lead Astray in Ohio: Bush Admin. Stymies Added Protec­tions,” Envir­on­mental Work­ing Group, May 3, 2004, https://www.ewg.org/research/lead-astray/bush-admin-stymies-added-protec­tions. 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 foot­note127_aee0icw 127 Michelle Diament, “Crit­ics Ques­tion Obama Choice for Disab­il­ity Commit­tee,” Disab­il­ity Scoop, Jan. 13, 2012, https://www.disab­il­ity­s­coop.com/2012/01/13/crit­ics-ques­tion-obama-choice/14766/. 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. foot­note128_on76s74 128 Matthew Mosk, Brian Ross, and Cho Park, “How Clin­ton Donor Got on Sens­it­ive Intel­li­gence Board,” ABC News, June 10, 2016, https://abcnews.go.com/Polit­ics/clin­ton-donor-sens­it­ive-intel­li­gence-board/story?id=39710624.

During the present admin­is­tra­tion, several commit­tees have not met, in viol­a­tion of their charters; foot­note129_hnkie89 129 See examples under “Attacks on Science Advis­ory Commit­tees” in the Appendix. See also Reed et al., Abandon­ing Science Advice, 5 (show­ing that as many as 70 percent of science advis­ory commit­tees at agen­cies such as the FDA and the EPA failed to meet as often as their charters direc­ted in 2017). admin­is­tra­tion offi­cials have failed to fill vacan­cies on science advis­ory commit­tees; foot­note130_0345mf5 130 For nearly six months in 2018, then secret­ary of labor Alex­an­der Acosta failed to fill vacan­cies on the Advis­ory Board on Toxic Substances and Worker Health, created to address the needs of work­ers at the nation’s nuclear facil­it­ies who developed work-related radi­ation- and chem­ic­ally-induced diseases. Rebecca Moss, “Injured Nuclear Work­ers Finally Had Support. The Trump Admin­is­tra­tion Has Moth­balled It.” ProP­ub­lica, Mar. 9, 2018, https://www.prop­ub­lica.org/article/injured-nuclear-work­ers-finally-had-support-the-trump-admin­is­tra­tion-has-moth­balled-it. See also Reed et al., Abandon­ing Science Advice, 8 (report­ing that, as of 2018, total member­ship of science advis­ory commit­tees at the Depart­ment of Commerce was down 13 percent from 2016). 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. foot­note131_3q1f­sre 131 See examples under “Attacks on Science Advis­ory Commit­tees” in the Appendix. See also Coral Daven­port, “E.P.A. Dismisses Members of Major Scientific Review Board,” New York Times, May 7, 2017, https://www.nytimes.com/2017/05/07/us/polit­ics/epa-dismisses-members-of-major-scientific-review-board.html (report­ing on dismissals of several advis­ory commit­tee members from academia). The EPA insti­tuted a rule to bar agency grant recip­i­ents from serving on advis­ory commit­tees, which has had the effect of limit­ing the parti­cip­a­tion of academic research­ers. Warren Corn­wall, “Trump’s EPA Has Blocked Agency Grantees from Serving on Science Advis­ory Panels. Here Is What It Means,” Science, Oct. 31, 2017, https://www.sciencemag.org/news/2017/10/trump-s-epa-has-blocked-agency-grantees-serving-science-advis­ory-panels-here-what-it; Lisa Fried­man, “E.P.A. to Disband a Key Scientific Review Panel on Air Pollu­tion,” New York Times, Oct. 11, 2018, https://www.nytimes.com/2018/10/11/climate/epa-disbands-pollu­tion-science-panel.html. 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. Reed et al., Abandon­ing Science Advice, 6. 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. foot­note132_10r6e55 132 Mark Hand, “Govern­ment Watch­dog to Invest­ig­ate Scott Pruit­t’s Shakeup of EPA Advis­ory Boards,” Think­Pro­gresss, Mar. 7, 2018, https://think­pro­gress.org/gao-invest­ig­at­ing-epa-advis­ory-boards-b615407c3644/ (“Normally, when candid­ates are nomin­ated to serve on advis­ory commit­tees, EPA’s career scient­ists and lawyers provide input to the admin­is­trator regard­ing which nomin­ees have the right scientific expert­ise and which have conflicts [sic] of interests. And normally, the admin­is­trator follows the career staff’s recom­mend­a­tions. But under Pruitt, polit­ical appointees are play­ing key roles in select­ing commit­tee members.”). A recent report from the Govern­ment Account­ab­il­ity Office found that the EPA did not follow agency proto­cols to docu­ment staff input on advis­ory commit­tee candid­ates and did not consist­ently ensure that commit­tee members met federal ethics require­ments. United States Govern­ment Account­ab­il­ity Office, EPA Advis­ory Commit­tees: Improve­ments Needed for the Member Appoint­ment Process, GAO-19–280 (Wash­ing­ton, D.C.: Govern­ment Account­ab­il­ity Office, 2019), https://www.eenews.net/assets/2019/07/15/docu­ment_gw_05.pdf. See examples under “Attacks on Science Advis­ory Commit­tees” in the Appendix.

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, foot­note133_bm11k69 133 This is already the prac­tice of some advis­ory commit­tees. For instance, the EPA’s Science Advis­ory Board (SAB) publishes the criteria for selec­tion of commit­tee members. See United States Envir­on­mental Protec­tion Agency, Reor­gan­iz­a­tion of the EPA Science Advis­ory Board: A Report of the EPA Science Advis­ory Board Staff Office, EPA-SAB-04–001 (Wash­ing­ton, D.C.: Envir­on­mental Protec­tion Agency, 2003), 7, 9, https://yosemite.epa.gov/sab/sabproduct.nsf/Web/Reor­gOf­SAB/$File/sab04001.pdf. allow­ing the public to comment on candid­ates, and releas­ing the names and roles of the key offi­cials involved in the selec­tion process. foot­note134_xuycye0 134 See, e.g., Federal Advis­ory Commit­tee Act Amend­ments of 2019, H.R. 1608, 116th Cong. § 2(b) (2019) (provid­ing for a public nomin­a­tion process, with public comment); Science for Policy Project, Improv­ing the Use of Science (call­ing for greater trans­par­ency in the selec­tion process); National Academies of Sciences, Engin­eer­ing, and Medi­cine, Optim­iz­ing the Process for Estab­lish­ing the Diet­ary Guidelines for Amer­ic­ans: The Selec­tion Process (Wash­ing­ton, D.C.: National Academies Press, 2017), 67–80, avail­able at https://www.nap.edu/read/24637/chapter/5 (discuss­ing ways to increase trans­par­ency in advis­ory commit­tee member nomin­a­tion and selec­tion process, includ­ing by allow­ing the public to comment on nomin­ees). In the case of discre­tion­ary advis­ory commit­tees, federal regu­la­tions require agen­cies to develop a member­ship balance plan that describes how the agency will attain fairly balanced member­ship. 41 C.F.R. § 102–3.60. 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). foot­note135_5labnkc 135 The EPA routinely seeks nomin­ees from the National Academies of Sciences, Engin­eer­ing, and Medi­cine as a matter of agency prac­tice. See United States Envir­on­mental Protec­tion Agency, Reor­gan­iz­a­tion of the EPA Science Advis­ory Board, 7 (“The Commit­tee [Desig­nated Federal Officer] has respons­ib­il­ity for devel­op­ing a list of candid­ates, based on recom­mend­a­tions from cred­ible sources, such as . . . the National Academy of Sciences[.]”). Finally, Congress could artic­u­late educa­tional and profes­sional require­ments for at least some of the members of specific advis­ory commit­tees. foot­note136_ea9b086 136 Congress has estab­lished similar require­ments in some circum­stances. See, e.g., Clean Air Act, 42 U.S.C. § 7409(d)(2) (requir­ing the EPA admin­is­trator to appoint “at least one member of the National Academy of Sciences, one phys­i­cian, and one person repres­ent­ing State air pollu­tion control agen­cies” to CASAC); Occu­pa­tional Safety and Health Act of 1970, 29 U.S.C. § 656(a)(1) (requir­ing the National Advis­ory Commit­tee on Occu­pa­tional Safety and Health to be composed of repres­ent­at­ives of manage­ment, labor, occu­pa­tional safety and occu­pa­tional health profes­sions, and the public, to be selec­ted upon the basis of their exper­i­ence and compet­ence in the field of occu­pa­tional safety and health).

>> 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, foot­note137_0zt07fl 137 The Envir­on­mental Research, Devel­op­ment, and Demon­stra­tion Act of 1983, S. 2577, 97th Cong. (1982); H.R. 6323, 97th Cong. (1982), would have required that the terms of board members be one to three years and be staggered so that the terms of no more than a third of the total member­ship of the board expires within a single fiscal year, and that each member of the board serve a full term unless such member were unable, for invol­un­tary reason, to discharge board duties or had viol­ated conflict of interest regu­la­tions. and a default selec­tion process in the event that vacan­cies are not filled promptly. foot­note138_zsyx0sq 138 See ibid. (requir­ing that, if a vacancy on the board were not filled by the admin­is­trator within 90 days, the nomin­at­ing commit­tee would appoint, within 60 days, a member to fill such vacancy from its list of recom­men­ded nomin­ees). See also Federal Advis­ory Commit­tee Act Amend­ments of 2019, H.R. 1608, 116th Cong. § 3(b) (2019) (estab­lish­ing process for filling vacan­cies occur­ring before sched­uled soli­cit­a­tion for nomin­a­tions by means of appoint­ing a member from among indi­vidu­als who were previ­ously nomin­ated for member­ship on the advis­ory commit­tee); Agri­cul­tural Market­ing Service, “Fruit and Veget­able Industry Advis­ory Commit­tee (FVIAC): Notice of Intent to Renew Charter and Call for Nomin­a­tions,” 82 Fed. Reg. 147 (Aug. 2, 2017) (“[T]he USDA is seek­ing nomin­a­tions to fill future unex­pec­ted vacan­cies . . . . These nomin­a­tions will be held as a pool of candid­ates that the Secret­ary of Agri­cul­ture can draw upon as replace­ment appointees if unex­pec­ted vacan­cies occur.”).

>> 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,” foot­note139_yhb7j6w 139 Advis­ory commit­tee parti­cipants include “special govern­ment employ­ees” (SGEs) and “repres­ent­at­ives.” See 18 U.S.C. § 202 (defin­ing “special govern­ment employee”). Advis­ory commit­tee parti­cipants who are categor­ized as SGEs are covered by the finan­cial disclos­ure provi­sions of the Ethics in Govern­ment Act of 1978. 5 U.S.C. app. §§ 101–111 (1978). A repres­ent­at­ive is not a govern­ment employee and is not subject to federal disclos­ure require­ments. “Advis­ory Commit­tee Members,” United States Office of Govern­ment Ethics, accessed Mar. 26, 2019, https://www.oge.gov/Web/oge.nsf/Resources/Advis­ory+­Com­mit­tee+Mem­bers. Many have long called for reforms to prevent abuse of repres­ent­at­ive status as a means to shield conflicts of interest from disclos­ure. See, e.g., United States General Account­ing Office, Federal Advis­ory Commit­tees: Addi­tional Guid­ance Could Help Agen­cies Better Ensure Inde­pend­ence and Balance, GAO-04–328 (Wash­ing­ton, D.C.: General Account­ing Office, 2004), https://www.gao.gov/assets/250/242039.pdf; “Memor­andum from United States Office of Govern­ment Ethics to Desig­nated Agency Ethics Offi­cials” (offi­cial memor­andum, Wash­ing­ton, D.C.: Office of Govern­ment Ethics, 2004), avail­able at https://www.oge.gov/web/OGE.nsf/0/2473B073CFCB­B70D85257E96005F­B­CF6/$FILE/04x9.pdf; Examin­ing the Federal Advis­ory Commit­tee Act — Current Issues and Devel­op­ments: Hear­ing Before the Subcomm. on Inform­a­tion Policy, Census, and National Archives of the H. Comm. on Over­sight and Govern­ment Reform, 110th Cong. 54 (2008) (state­ment of Sidney A. Shapiro, asso­ci­ate dean for research and devel­op­ment, Wake Forest School of Law, on behalf of the Center for Progress­ive Reform) (advoc­at­ing for greater clar­ity in char­ac­ter­iz­ing members as either SGEs or repres­ent­at­ives at the time of appoint­ment); Protect­ing Science, Climate Science Legal Defense Fund et al., 13–14 (call­ing for repres­ent­at­ives and nonvot­ing members to provide inform­a­tion on affil­i­ation and conflicts of interest). 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 foot­note140_3q4z0mb 140 See, e.g., Sidney Shapiro, Clos­ing the Door on Public Account­ab­il­ity, Center for Progress­ive Reform, 2009, http://www.progress­ivere­form.org/persp­FACA.cfm (propos­ing disclos­ure of the histor­ical affil­i­ations of advis­ory commit­tee members and sources of fund­ing); National Academies of Sciences, Engin­eer­ing, and Medi­cine, Estab­lish­ing the Diet­ary Guidelines, 83 (advoc­at­ing for policy to address biases and conflicts of interest); Berman and Carter, “Policy Analysis: Scientific Integ­rity” (call­ing for requir­ing both voting and nonvot­ing advis­ory commit­tee members to provide complete inform­a­tion on affil­i­ations and conflicts of interest); Daniel Schu­man, “Is It Time to Revisit the Federal Advis­ory Commit­tee Act?” Sunlight Found­a­tion, Sept. 23, 2009, https://sunlight­found­a­tion.com/2009/09/23/revisit-faca/ (propos­ing that all members of federal advis­ory commit­tees file finan­cial disclos­ure reports and conflict of interest forms and that there be regu­lar audits). — in order to better capture poten­tial sources of influ­ence. Congress should also require contem­por­an­eous disclos­ure of recus­als and conflict-of-interest waivers. foot­note141_y62n5gi 141 The stand­ard for grant­ing conflict of interest waivers for SGEs serving on FACA commit­tees is more leni­ent than the stand­ard for other federal employ­ees. Compare 18 U.S.C. §§ 208(b)(1) and 208(b)(3). See also Stephen D. Potts, Director, Office of Govern­ment Ethics, “Summary of Ethical Require­ments Applic­able to Special Govern­ment Employ­ees” (offi­cial memor­andum, Wash­ing­ton, D.C.: Office of Govern­ment Ethics, 2000), 14–15, avail­able at https://www.oge.gov/Web/OGE.nsf/0/DDABAE34F0273E5F85257E96005F­B­DDE/$FILE/00x1.pdf. There is substan­tial support among legis­lat­ors and experts for increased trans­par­ency around recusal agree­ments and conflict of interest waivers for advis­ory commit­tee members. See Federal Advis­ory Commit­tee Act Amend­ments of 2019, H.R. 1608, 116th Cong. § 4(a) (2019) (requir­ing disclos­ure of recusal agree­ments). See also Shapiro, Clos­ing the Door (advoc­at­ing public disclos­ure of “the exist­ence of a waiver and to explain the nature of the conflict of interest and the grounds for the waiver” at the time the waiver is made); Science for Policy Project, Improv­ing the Use of Science (call­ing for greater clar­ity in defin­ing conflicts of interest and public disclos­ure of waivers). 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. foot­note142_ea29amh 142 See Federal Advis­ory Commit­tee Act Amend­ments of 2019, H.R. 1608, 116th Cong. §§ 4(a)–(b) (2019) (requir­ing advis­ory commit­tee charters to contain the estim­ated number and frequency of meet­ings and requir­ing charters, notices of future meet­ings, and meet­ing minutes to be published on agency websites). This would be in addi­tion to the exist­ing require­ment that such inform­a­tion is published in the Federal Register. foot­note143_7g5i­hoz 143 5 U.S.C. app. § 10(a)(2).

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. foot­note144_fdu42lc 144 See, e.g., Letter from Dr. Peter S. Thorne, chair, Science Advis­ory Board, to Gina McCarthy, director, Envir­on­mental Protec­tion Agency, Review of Conclu­sions in Effic­acy of Ballast Water Treat­ment Systems: A Report by the Science Advis­ory Board (Dec. 20, 2016), avail­able at https://yosemite.epa.gov/sab/sabproduct.nsf/36a1ca3f683ae57a85256ce9006a32d0/C4BE173378D01F408525808F0059A321/$File/EPA-SAB+2017–002+Un­signed.pdf (report­ing find­ings of work group convened to respond to inquir­ies from some members of the former Ecolo­gical Processes and Effects Commit­tee Augmen­ted for the Ballast Water Advis­ory and a current SAB member that conclu­sions in the report required correc­tion). See also Hank Black, “Air Pollu­tion Panel, in Divis­ive Session, Asks EPA to Reverse Course and Provide Expert Help,” Birm­ing­ham Watch, Mar. 29, 2019, https://birm­ing­ham­watch.org/air-pollu­tion-panel-divis­ive-session-asks-epa-reverse-course-provide-expert-help/ (report­ing that CASAC asked EPA Admin­is­trator Andrew Wheeler to give it more expert help to review hundreds of recent scientific stud­ies on effects of micro­scopic particles of soot on human mortal­ity). NASEM has at times performed such inde­pend­ent peer review of scientific conclu­sions. foot­note145_a2flcfk 145 For instance, in 2001, the Bush admin­is­tra­tion asked the National Academy of Sciences to review the find­ings of the Inter­gov­ern­mental Panel on Climate Change (IPCC) and provide further assess­ment of climate science. The National Academy of Sciences’ panel affirmed the IPCC’s conclu­sions. National Research Coun­cil, Climate Change Science: An Analysis of Some Key Ques­tions (Wash­ing­ton, D.C.: National Academies Press, 2001), avail­able at https://www.nap.edu/read/10139/chapter/1. 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. foot­note146_e215qm6 146 See Exec. Order No. 12,838, 3 C.F.R. 590 (1993) (requir­ing that reas­ons be provided for the termin­a­tion of advis­ory commit­tees). Under FACA, the General Services Admin­is­tra­tion (GSA) is charged with perform­ing an annual review to determ­ine, among other things, whether advis­ory commit­tees should be abol­ished. 5 U.S.C. app. § 7(b)(4).

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. foot­note147_fx25bxl 147 See Examin­ing the Federal Advis­ory Commit­tee Act (state­ment of Sidney A. Shapiro, on behalf of the Center for Progress­ive Reform); Science for Policy Project, Improv­ing the Use of Science; National Academies of Sciences, Engin­eer­ing, and Medi­cine, Estab­lish­ing the Diet­ary Guidelines; Protect­ing Science, Climate Science Legal Defense Fund et al. 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. foot­note148_jb94jda 148 Federal Advis­ory Commit­tee Act Amend­ments of 2016, H.R.2347, 114th Cong. (2016); Federal Advis­ory Commit­tee Act Amend­ments of 2017, H.R. 70, 115th Cong. (2017); Federal Advis­ory Commit­tee Act Amend­ments of 2019, H.R. 1608, 116th Cong. (2019).

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. foot­note149_3jop1fs 149 Global Climate Change Research Act of 1990, Pub. L. No. 101–606, §§ 106–107, 104 Stat. 3096–3104 (1990). 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. foot­note150_53dcrba 150 Doyle Rice, “Buried? Feds to Release Major Climate Report Day after Thanks­giv­ing,” USA Today, Nov. 21, 2018, https://www.usat­oday.com/story/news/nation/2018/11/21/climate-change-report-released-friday-after-thanks­giv­ing/2080298002/; Umair Irfan, “Trump White House Issues Climate Change Report Under­min­ing Its Own Policy,” Politico, Nov. 26, 2018, https://www.vox.com/2018/11/26/18112505/national-climate-assess­ment-2018-trump. 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. foot­note151_3rknd86 151 Chris Cillizza, “Donald Trump Buried a Climate Change Report Because ‘I Don’t Believe It,’” CNN, Nov. 27, 2018, https://www.cnn.com/2018/11/26/polit­ics/donald-trump-climate-change/index.html. 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. foot­note152_m6ppyko 152 Benjamin J. Hulac, “Creation of a Panel Disput­ing Climate Change Causes White House Infight­ing,” Roll Call, Mar. 14, 2019, https://www.rollcall.com/news/congress/panel-dispute-climate-science-facing-debate-white-house; Juliet Eilperin, Josh Dawsey, and Brady Dennis, “White House to Set Up Panel to Counter Climate Change Consensus, Offi­cials Say,” Wash­ing­ton Post, Feb. 24, 2019, https://wapo.st/2TfwlXo. The panel would not have oper­ated under FACA. David Armiak, “Trump Taps Climate Denier to Lead a Secret White House Climate Panel,” PR Watch, Mar. 12, 2019, https://www.prwatch.org/news/2019/03/13454/trump-taps-climate-denier-lead-secret-white-house-climate-panel. As discussed in Proposal 4, FACA requires certain proced­ural safe­guards that help ensure high-qual­ity science advice. Noncom­pli­ance with these stat­utory require­ments raises doubts about the scientific integ­rity of this proposed panel. 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. foot­note153_rf84d8c 153 For instance, in 1813, Congress estab­lished the Federal Depos­it­ory Library Program to ensure the Amer­ican public’s access to govern­ment inform­a­tion, includ­ing govern­ment reports about health, nutri­tion, agri­cul­ture, science, and tech­no­logy. “FDLP: Free Docu­ment Dissem­in­a­tion through the Federal Depos­it­ory Library Program,” Govern­ment Print­ing Office, accessed Mar. 1, 2019, https://www.gpo.gov/how-to-work-with-us/agency/services-for-agen­cies/federal-depos­it­ory-library-program; 44 U.S.C. § 1901 et seq. The program is still in exist­ence. Library Tech­nical Services, Super­in­tend­ent of Docu­ments, “List of Classes of United States Govern­ment Public­a­tions Avail­able for Selec­tion by Depos­it­ory Librar­ies,” U.S. Govern­ment Publish­ing Office, Nov. 2015, https://www.fdlp.gov/file-repos­it­ory/collec­tion-manage­ment/list-of-classes/2682-list-of-classes-print-version-revised-11–2015. In 1950, Congress enacted legis­la­tion to make the results of tech­no­lo­gical research and devel­op­ment — both foreign and domestic — more read­ily avail­able to the general public, estab­lish­ing the Depart­ment of Commerce as a clear­ing­house for this tech­nical inform­a­tion. 15 U.S.C. § 1151 et seq.; 15 U.S.C. § 3704b. The clear­ing­house dissem­in­ated cata­logues of recently published research reports and tech­nical briefs; members of the public could request copies of specific reports. See 15 U.S.C. § 1151. Nowadays, these mater­i­als are avail­able in elec­tronic form on the clear­ing­house’s website. “Welcome to the National Tech­nical Reports Library,” National Tech­nical Inform­a­tion Service, accessed Apr. 26, 2019, https://clas­sic.ntis.gov/products/ntrl/. For instance, the CDC’s Morbid­ity and Mortal­ity Weekly Report (MMWR), an early version of which began public­a­tion in 1878, foot­note154_zfzr­grk 154 Centers for Disease Control and Preven­tion, “Public Health Then and Now: Celeb­rat­ing 50 Years of MMWR at CDC,” Morbid­ity and Mortal­ity Weekly Report 60 (2011): 2, https://www.cdc.gov/mmwr/pdf/other/su6004.pdf. is published to this day as a matter of agency prac­tice, not law. foot­note155_5jjh00u 155 Dr. Char­lotte Kent, acting editor in chief and exec­ut­ive editor, Morbid­ity and Mortal­ity Weekly Report (MMWR) Series, Chief, Scientific Public­a­tions Branch, Divi­sion of Public Health Inform­a­tion Dissem­in­a­tion, Center for Surveil­lance, Epidemi­ology, and Labor­at­ory Services, Office of Public Health Scientific Services, email message to Martha Kinsella, coun­sel, Bren­nan Center for Justice, Oct. 4, 2018. It has an inter­na­tional read­er­ship that consists predom­in­antly of health-care prac­ti­tion­ers, public health offi­cials, epidemi­olo­gists, research­ers, and educat­ors. foot­note156_orb2a6z 156 “About the Morbid­ity and Mortal­ity Weekly Report (MMWR) Series,” Centers for Disease Control and Preven­tion, accessed Mar. 1, 2019, https://www.cdc.gov/mmwr/about.html. Inter­na­tional distri­bu­tion of the MMWR was crit­ical in the history of AIDS research. For instance, Willy Rozen­baum, a doctor in Paris who was treat­ing patients with symp­toms of the then unknown disease and later became a renowned AIDS researcher, subscribed to the MMWR and read the edition that contained the first report of AIDS in a public­a­tion for medical prac­ti­tion­ers. Eric Faver­eau, “Juin 1981, L’Étrange Maladie des Gays,” Libéra­tion, June 8, 2006, https://www.liber­a­tion.fr/plan­ete/2006/06/08/juin-1981-l-etrange-maladie-des-gays_44030; Centers for Disease Control and Preven­tion, “Public Health Then and Now”: 2–3. 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. foot­note157_o8xe4f1 157 See examples under “Restric­tion of Public Access to Govern­ment Research and Data” in the Appendix. 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.” foot­note158_jpq9knb 158 Annie Snider, “White House, EPA Headed Off Chem­ical Pollu­tion Study,” Politico, May 14, 2018, https://www.politico.com/story/2018/05/14/emails-white-house-interfered-with-science-study-536950.

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. foot­note159_3rb31gc 159 “New Record for Censor­ing,” CBS News. Addi­tion­ally, inform­a­tion is often with­held improp­erly in FOIA responses. foot­note160_3w0b­t8y 160 Ibid. (“In more than one-in-three cases, the govern­ment reversed itself when chal­lenged and acknow­ledged that it had improp­erly tried to with­hold pages. But people filed such appeals only 14,713 times, or about 4.3 percent of cases in which the govern­ment said it found records but held back some or all of the mater­ial.”). Thus, FOIA does not guar­an­tee timely and complete access to research the govern­ment has histor­ic­ally shared with the public.

Build­ing on past efforts, foot­note161_95qz90o 161 See, e.g., 51 U.S.C. § 20112(a)(3) (provid­ing for “the widest prac­tic­able and appro­pri­ate dissem­in­a­tion of inform­a­tion concern­ing [NASA’s] activ­it­ies and the results thereof”). In 2015, Congress enacted legis­la­tion requir­ing the secret­ary of defense to “promote, monitor, and eval­u­ate programs for the commu­nic­a­tion and exchange of research, devel­op­ment, and tech­no­lo­gical data,” “through devel­op­ment and distri­bu­tion of clear tech­nical commu­nic­a­tions to the public, . . . and civil­ian . . . decision-makers that convey successes of research and engin­eer­ing activ­it­ies suppor­ted by the Depart­ment and the contri­bu­tions of such activ­it­ies to support national needs.” National Defense Author­iz­a­tion Act of Fiscal Year 2016, Pub L. 114–92, 129 Stat. 726, 768 (2015). At Congress’s behest, the Obama admin­is­tra­tion issued a direct­ive requir­ing federal agen­cies to create public-access plans to proact­ively make avail­able govern­ment-gener­ated scientific data and peer-reviewed, published research, includ­ing outside data and research funded by govern­ment grants. Amer­ica Competes Reau­thor­iz­a­tion Act of 2010, Pub. L. No. 111–358, § 103(a), 124 Stat. 3982, 3986–88 (2010). The Public Access Memo clari­fies that the push for disclos­ure does not extend to labor­at­ory note­books, prelim­in­ary analyses, drafts of scientific papers, plans for future research, peer review reports, or commu­nic­a­tions with colleagues. John Hold­ren, “Increas­ing Access to the Results.” 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. foot­note162_aguc8k5 162 This proposal is differ­ent from the “trans­par­ent science” rule announced at the EPA, “Strength­en­ing Trans­par­ency in Regu­lat­ory Science.” 83 Fed. Reg. 18,768 (Apr. 30, 2018). Our proposal seeks to stand­ard­ize and modern­ize the long­stand­ing prac­tice of making completed, peer-reviewed govern­ment-funded research and data avail­able to the public. For more inform­a­tion about the “trans­par­ent science” rule, see Proposal 1. 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. foot­note163_a66rm86 163 See Sarah Lamdan, “Lessons from DataRes­cue: The Limit­a­tions of Grass­roots Climate Change Data Preser­va­tion and the Need for Federal Records Law Reform,” Univer­sity of Pennsylvania Law Review Online 166 (2018): 242 (noting that the Free­dom of Inform­a­tion Act makes federal agency records access a right, part of which is the proact­ive disclos­ure of records of public import­ance, see 5 U.S.C. § 552(a)(1)–(2)(2012) (requir­ing proact­ive disclos­ure of many types of public records), and arguing that all federal records manage­ment rules should be craf­ted with this right in mind). The Fair Access to Science and Tech­no­logy Research Act (FASTR Act) would require public dissem­in­a­tion within six months after public­a­tion in peer-reviewed journ­als. H.R. 3427, 115th Cong. § 4(b)(4) (2017). Cf. FASTR Act, S. 1701, 115th Cong. § 4(b)(4) (2017). The Public Access Memo specifies a “twelve-month post-public­a­tion embargo period as a guideline for making research papers publicly avail­able.” Public Access Memo 3. To the extent prac­tic­able, and in compli­ance with applic­able legal restric­tions, priv­ileges, protec­tions, and author­it­ies, completed data foot­note164_7l9x­wbo 164 For a defin­i­tion of “data,” see Save Amer­ica’s Science Act, H.R. 1232, 115th Cong. § (2) (2017). and research find­ings, such as peer-reviewed research papers accep­ted for public­a­tion in journ­als, should be made avail­able to the public. foot­note165_rpb25ru 165 For a work­able scope of research to be proact­ively disclosed, see FASTR Act, H.R. 3427, 115th Cong. § 4(d) (2017); S. 1701, 115th Cong. § 4(d) (2017).

>> 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. foot­note166_x9h9bd8 166 Of relev­ance, under the Bayh-Dole Act (the Patent and Trade­mark Law Amend­ments Act), 35 U.S.C. §§ 200–212 (1980), small busi­nesses and nonprofit organ­iz­a­tions may elect to retain owner­ship of the inven­tions made under feder­ally funded research and contract programs, while also giving the govern­ment the license to prac­tice the subject inven­tion. In turn, the organ­iz­a­tions are expec­ted to file for patent protec­tion and to ensure commer­cial­iz­a­tion upon licens­ing for the bene­fit of public health. The legis­la­tion should also require that research and data repos­it­or­ies contain descrip­tions of avail­able mater­i­als writ­ten in plain language. foot­note167_gcj9bm5 167 Dating back to the 1950s, the exec­ut­ive and legis­lat­ive branches have estab­lished plain-language stand­ards for govern­ment commu­nic­a­tions. “Brief Timeline of Plain Language Move­ment,” National Confer­ence of State Legis­latures, accessed Mar. 1, 2019, http://www.ncsl.org/Portals/1/Docu­ments/lsss/Plain­Lang­Timeline.pdf. More recently, Congress passed the Plain Writ­ing Act of 2010, which applies to govern­ment commu­nic­a­tions about govern­ment bene­fits and services, as well as inform­a­tion about how to comply with require­ments the govern­ment admin­is­ters or enforces. Pub. L. No. 111–274, 124 Stat. 2861–63 (2010). Further, the legis­la­tion should put forth clear stand­ards delin­eat­ing the grounds for with­hold­ing govern­ment-funded research and data foot­note168_zroqpmc 168 The Public Access Memo indic­ates that national, home­land, and economic secur­ity are legit­im­ate grounds for with­hold­ing govern­ment research and data. Public Access Memo 3. The National Tech­nical Inform­a­tion Service is required to “respect and preserve the secur­ity clas­si­fic­a­tion of any scientific or tech­nical inform­a­tion, data, patents, inven­tions, or discov­er­ies in, or coming into, the posses­sion or control of the Depart­ment of Commerce, the clas­si­fied status of which the Pres­id­ent or his designee or design­ees certify as being essen­tial in the interest of national defense[] . . . .” 15 U.S.C. § 1155. 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, foot­note169_zyz96ti 169 See Paper­work Reduc­tion Act, 44 U.S.C. § 3506(d)(3) (1980) (requir­ing agen­cies to “provide adequate notice when initi­at­ing, substan­tially modi­fy­ing, or termin­at­ing signi­fic­ant inform­a­tion dissem­in­a­tion products”). See also Lamdan, “Lessons from DataRes­cue,” 244 (“A stat­utory solu­tion . . . would be to include expli­cit language requir­ing contin­ued access to and online archives for elec­tronic govern­ment records.”). includ­ing advance notice to the national arch­iv­ist of planned data removal. foot­note170_mwmhap1 170 See 44 U.S.C. § 3303a (requir­ing the arch­iv­ist to publish notice in the Federal Register before dispos­ing of federal records).

>> Create an enforce­ment mech­an­ism to ensure compli­ance with public access require­ments, along with remed­ies for noncom­pli­ance. foot­note171_6tr17at 171 A useful model is the Federal Records Act, pursu­ant to which agency heads and the arch­iv­ist can initi­ate actions through the attor­ney general for recov­ery or other redress. Federal Records Act, 44 U.S.C. § 3106 (1950). The Save Amer­ica’s Science Act contains the same mech­an­ism for recov­ery of removed data. H.R. 1232, 115th Cong. § (2) (2017). The FASTR Act does not have an enforce­ment mech­an­ism, but agen­cies are required to submit reports to Congress with inform­a­tion about the effect­ive­ness of their public access plans. H.R. 3427, 115th Cong. § (4)(f) (2017); S. 1701, 115th Cong. § (4)(f) (2017). 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. foot­note172_psly4os 172 See Public Online Inform­a­tion Act of 2017, S. 621, 115th Cong. § 7(e)(1) (2017). See also Lamdan, “Lessons from DataRes­cue,” 246–47 (advoc­at­ing to provide citizens with a cause of action when the govern­ment obstructs online access to govern­ment records or destroys online mater­i­als without creat­ing an access­ible histor­ical archive).

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, foot­note173_f635aj1 173 Found­a­tions for Evid­ence-Based Poli­cy­mak­ing Act of 2018, Pub. L. No. 115–435 (2019). and numer­ous other bills lawmakers have intro­duced to further codify the norm of public access. foot­note174_633ziwj 174 See, e.g., For the People Act of 2019, H.R. 1, 116th Cong. §§ 9301–9307 (2019); Public Online Inform­a­tion Act of 2017, S. 621, 115th Cong. (2017). The FASTR Act, intro­duced with bipar­tisan support, would require federal agen­cies to develop public access plans that follow common proced­ures for the collec­tion of research papers, emphas­iz­ing the import­ance of digital access to such resources. H.R. 3427, 115th Cong. (2017); S. 1701, 115th Cong. (2017). The Save Amer­ica’s Science Act, H.R. 1232, 115th Cong. (2017), was intro­duced to respond to reports of destruc­tion of and revoc­a­tion of public access to scientific data produced by the federal govern­ment. “McCol­lum Intro­duces Save Amer­ica’s Science Act to Safe­guard Federal Scientific Data,” Mar. 3, 2017, https://mccol­lum.house.gov/press-release/mccol­lum-intro­duces-save-amer­ica%E2%80%99s-science-act-safe­guard-federal-scientific-data. Addi­tion­ally, the National Academies of Sciences, Engin­eer­ing, and Medi­cine held a work­shop on trans­par­ency and repro­du­cib­il­ity in federal stat­ist­ics, which included panel­ists from the United King­dom and Canada, who spoke about trans­par­ency of govern­ment data in their coun­tries. Michael L. Cohen, Meth­ods to Foster Trans­par­ency and Repro­du­cib­il­ity of Federal Stat­ist­ics: Proceed­ings of a Work­shop (Wash­ing­ton, D.C.: National Academies Press, 2018), avail­able at https://www.nap.edu/read/25305/chapter/1. Guar­an­tee­ing public access to govern­ment-funded research and data would foster scientific progress, a more informed public, and greater account­ab­il­ity for poli­cy­makers.

Science Under Seige: Food

Proposal 6
Congress should enact legis­la­tion requir­ing disclos­ure of the nonpolit­ical expert regu­lat­ory analysis that under­lies agency rule­mak­ing. foot­note175_byem1ut 175 The term “nonpolit­ical expert regu­lat­ory analysis” refers to all factual inform­a­tion and data, not limited to tech­nical inform­a­tion, sampling results, survey inform­a­tion, and engin­eer­ing reports or stud­ies, used to support an agency’s regu­lat­ory actions. See Altern­at­ive Facts, Public Employ­ees for Envir­on­mental Respons­ib­il­ity (link­ing to sugges­ted stat­utory clari­fic­a­tion, “Anti­dote to Altern­at­ives Facts Act”); Exec. Order No. 13,563, 3 C.F.R. 215 (2011).

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. foot­note176_huamkil 176 See Sidney Shapiro, Eliza­beth Fisher, and Wendy Wagner, “The Enlight­en­ment of Admin­is­trat­ive Law: Look­ing Inside the Agency for Legit­im­acy,” Wake Forest Law Review 47 (2012): 472 (discuss­ing the belief that “[m]odern regu­lat­ory stat­utes can provide no more than the skel­eton, and must leave to admin­is­trat­ive bodies the addi­tion of flesh and blood neces­sary for a living body”). 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, foot­note177_apit­dpf 177 Admin­is­trat­ive Proced­ure Act of 1946, 5 U.S.C. §§ 551–559. agen­cies must publish a notice of a proposed rule; foot­note178_ywsm7fr 178 5 U.S.C. § 553(b). give the public a chance to submit writ­ten data, views, or argu­ments regard­ing the proposed rule; foot­note179_5930njq 179 5 U.S.C. § 553(c). consider all relev­ant matter presen­ted during the comment period; foot­note180_xz95zws 180 Ibid. and provide a state­ment of the basis and purpose for the final rule. foot­note181_z1wz5cx 181 Ibid. But exist­ing mech­an­isms are inad­equate to ensure real trans­par­ency. As discussed above, although litig­a­tion under the APA is possible, foot­note182_543tegp 182 See, e.g., Ben Penn, “Worker Attor­neys Plot Lawsuit to Block Trump Tip Pool Rule,” Bloomberg BNA, Jan. 26, 2018, https://news.bloomber­glaw.com/daily-labor-report/worker-attor­neys-plot-lawsuit-to-block-trump-tip-pool-rule (“Several worker rights’ groups are analyz­ing whether the new proposed rule’s absence of a quant­it­at­ive economic analysis may run afoul of the [Admin­is­trat­ive Proced­ure Act] . . . if the final version of the rule does in fact include the full analysis[] . . . . That’s because this might prove the DOL was capable of running a similar analysis in the proposed rule, but chose not to, render­ing the entire process ‘arbit­rary and capri­cious[.]’”). 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. foot­note183_h9yc01i 183 See Exec. Order No. 12,866, 3 C.F.R. 638, § 6(a)(3)(E)(ii)–(iii) (1993). Pres­id­ent Obama issued Exec­ut­ive Order 13,563, 3 C.F.R. 215 (2011), which supple­men­ted and reaf­firmed the prin­ciples of regu­lat­ory review estab­lished in Exec­ut­ive Order 12,866. Recent manip­u­la­tions of the rule­mak­ing process, foot­note184_xpmc­jau 184 See examples under “Polit­ic­ally Motiv­ated Inter­ven­tions in Nonpolit­ical Expert Regu­lat­ory Analysis Under­ly­ing Regu­lat­ory Actions” in the Appendix. such as on the issues of wetland protec­tion foot­note185_g6nhm33 185 See the example about the “waters of the United States” (WOTUS) rule under “Polit­ic­ally Motiv­ated Inter­ven­tions in Nonpolit­ical Expert Regu­lat­ory Analysis Under­ly­ing Regu­lat­ory Actions” in the Appendix. and food safety at slaughter­ing facil­it­ies, foot­note186_2lgpikm 186 See the example about the USDA’s Food Safety and Inspec­tion Service (FSIS) under “Polit­ic­ally Motiv­ated Inter­ven­tions in Nonpolit­ical Expert Regu­lat­ory Analysis under­ly­ing Regu­lat­ory Actions” in the Appendix. 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. foot­note187_1a7m7b8 187 Under the Admin­is­trat­ive Proced­ure Act, courts review the admin­is­trat­ive record to ensure that agency regu­la­tions are not arbit­rary and capri­cious. 5 U.S.C. § 706(2)(A). If agency offi­cials manip­u­lated or suppressed under­ly­ing scientific analysis of regu­la­tions, however, it would be diffi­cult for review­ing courts to prop­erly determ­ine whether the agency’s action was arbit­rary and capri­cious.

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 foot­note188_egfyn06 188 By “substant­ive alter­a­tions,” we mean changes to the prin­cipal conclu­sions reached in the regu­lat­ory analysis or the meth­od­o­logy used to reach those conclu­sions, includ­ing the discount­ing of scientific stud­ies relied upon in the analysis. It is not inten­ded to include changes concern­ing typo­graph­ical errors, or changes that do not alter data or conclu­sions reached in the under­ly­ing analysis. 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. foot­note189_opdtyxn 189 To the extent that pres­id­ents’ admin­is­tra­tions might assert exec­ut­ive priv­ilege to shield polit­ical decision-making from expos­ure, law professor Nina Mendel­son argues that commu­nic­a­tions from OIRA to agen­cies would not likely qual­ify as a priv­ileged “pres­id­en­tial commu­nic­a­tion” because it is not a commu­nic­a­tion to or by the pres­id­ent or a commu­nic­a­tion made for the purpose of assist­ing a direct decision made by the pres­id­ent. Nina A. Mendel­son, “Disclos­ing ‘Polit­ic­al’ Over­sight of Agency Decision Making,” Michigan Law Review 108 (2010): 1170 n. 210. We find this analysis persuas­ive. Cf., e.g., Center for Biolo­gical Diversity v. Norton, 336 F. Supp. 2d 1155, 1161 (D.N.M. 2004) (uphold­ing determ­in­a­tion that delib­er­at­ive process priv­ilege shields details of agency scientific recom­mend­a­tions from disclos­ure in litig­a­tion). It would stand­ard­ize a require­ment that is found in a vari­ety of exist­ing laws. foot­note190_q1yy6sf 190 For instance, the Clean Air Act requires the EPA to disclose the factual data on which proposed rules are based, as well as the meth­od­o­logy used in obtain­ing and analyz­ing the data. 42 U.S.C. § 7607(d)(3)(A)–(B). Simil­arly, pursu­ant to stat­ute, if the secret­ary of HHS receives a recom­mend­a­tion from the depart­ment’s Advis­ory Commis­sion on Child­hood Vaccines, the secret­ary must either conduct a rule­mak­ing in accord­ance with the recom­mend­a­tion or publish a “state­ment of reas­ons” for refus­ing to do so in the Federal Register. 42 U.S.C. § 300aa-14(c)(2). Moreover, the secret­ary may not propose a regu­la­tion without giving the commis­sion an oppor­tun­ity to provide recom­mend­a­tions and comments. Ibid., § 300aa–14(d). It is in line with legis­la­tion intro­duced recently to address related issues. foot­note191_s6it03z 191 For instance, the 2017 version of the Scientific Integ­rity Act would have required that each federal agency make publicly avail­able scientific or tech­no­lo­gical find­ings that are considered or relied upon in policy decisions and regu­lat­ory propos­als. Scientific Integ­rity Act, H.R. 1358, 115th Cong. § 6(a) (2017); Scientific Integ­rity Act, S. 338, 115th Cong. § 6(a) (2017). The Anti-Corrup­tion and Public Integ­rity Act would require agen­cies to disclose changes to draft rules made by the OMB and, in the event that rules are with­drawn after they are submit­ted to the OMB, to publish the reas­ons for the with­drawal. Anti-Corrup­tion and Public Integ­rity Act, S. 3357, 115th Cong. §§ 303–304 (2018). And it responds to calls from both the Admin­is­trat­ive Confer­ence of the United States and outside schol­ars for improved trans­par­ency in the regu­lat­ory process. foot­note192_co2n­a96 192 See Admin­is­trat­ive Confer­ence Recom­mend­a­tion 2013–3: Science in the Admin­is­trat­ive Process, Admin­is­trat­ive Confer­ence of the United States, 2013, avail­able at https://www.acus.gov/sites/default/files/docu­ments/Science%20Re­com­mend­a­tion%20AP­PROVED-FINAL_1.pdf; Mendel­son, “Disclos­ing ‘Polit­ic­al’ Over­sight,” 1164 (propos­ing to require agen­cies to summar­ize the content of regu­lat­ory review in issu­ing rule­mak­ing docu­ments); Science for Policy Project, Improv­ing the Use of Science (“[I]n review­ing stud­ies relev­ant to regu­lat­ory policy, . . . [agen­cies] should make their meth­ods for filter­ing and eval­u­at­ing those stud­ies more trans­par­ent.”); Holly Doremus, “A Chal­lenge for the Obama Team: Put Science and Federal Scient­ists to Better Use,” Ecology Law Currents 136 (2009): 157 (call­ing for disclos­ure of unvar­nished recom­mend­a­tions of agency scient­ists that feed into policy decisions); Sidney A. Shapiro, “‘Polit­ic­al’ Science: Regu­lat­ory Science After the Bush Admin­is­tra­tion,” Duke Journal of Consti­tu­tional Law and Public Policy 4 (2009): 42 (call­ing for public­a­tion of scientific docu­ments without edits or alter­a­tions by agency offi­cials); Wendy Wagner and Rena Stein­zor, eds., Rescuing Science from Polit­ics: Regu­la­tion and the Distor­tion of Scientific Research (New York: Cambridge Univer­sity Press, 2006), 293 (“Congress . . . should require mandat­ory disclos­ures of health and safety inform­a­tion used to formu­late public policy.”); Altern­at­ive Facts, Public Employ­ees for Envir­on­mental Respons­ib­il­ity (link­ing to sugges­ted stat­utory clari­fic­a­tion, “Anti­dote to Altern­at­ives Facts Act,” which would require admin­is­trat­ive record to include “all factual inform­a­tion and data, not limited to tech­nical inform­a­tion, sampling results, survey inform­a­tion, engin­eer­ing reports or stud­ies” and “[d]raft docu­ments that were circu­lated for comment either outside the agency or outside the author’s imme­di­ate office, if changes in these docu­ments reflect signi­fic­ant input into the decision-making process”).

End Notes

III. Accountable and Qualified Government Officials

Science Under Seige: Climate Change

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. foot­note1_q1b4m48 1 Congress recog­nizes the import­ance of this power and has histor­ic­ally deferred to the pres­id­ent’s judg­ment on import­ant appoint­ments, partic­u­larly at the cabinet level. In fact, only eight nomin­ees for cabinet posi­tions have ever been rejec­ted. Michael J. Gerhardt, “Norm Theory and the Future of the Federal Appoint­ments Process,” Duke Law Journal 50 (2001): 1690–91. 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.” foot­note2_q3s8i2s 2 Jeremy D. Bailey, Thomas Jeffer­son and Exec­ut­ive Power (New York: Cambridge Univer­sity Press, 2007), 157.

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.” foot­note3_uc9y­al7 3 “[The pres­id­ent] shall nomin­ate, and by and with the Advice and Consent of the Senate, shall appoint Ambas­sad­ors, other public Minis­ters and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appoint­ments are not herein other­wise provided for, and which shall be estab­lished by Law: but the Congress may by Law vest the Appoint­ment of such inferior Officers, as they think proper, in the Pres­id­ent alone, in the Courts of Law, or in the Heads of Depart­ments.” U.S. Const. art. II, § 2, cl. 2. 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.” foot­note4_l1tyzbm 4 The Feder­al­ist No. 76 (Alex­an­der Hamilton).

It did not always work out that way. Though every pres­id­ent after Wash­ing­ton has had occa­sional nomin­ees opposed by the Senate, foot­note5_3drf6n4 5 Michael J. Gerhardt, The Federal Appoint­ments Process: A Consti­tu­tional and Histor­ical Analysis (Durham: Duke Univer­sity Press, 2004), 38. without recog­nized stand­ards for eval­u­at­ing nomin­ees, pres­id­ents enjoyed substan­tial defer­ence. foot­note6_4jkyxhq 6 See Russell L. Weaver, “Advice and Consent in Histor­ical Perspect­ive,” Duke Law Journal 64 (2015): 1730. 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. foot­note7_441g­foc 7 See Harvard Law Review Asso­ci­ation, “Devel­op­ments in the Law: Public Employ­ment,” Harvard Law Review 97 (1984): 1623–25 (explain­ing that, although partisan patron­age in govern­ment appoint­ments was not routine at the repub­lic’s found­ing, it grew along with party polit­ics and found a cham­pion in Pres­id­ent Andrew Jack­son, who embraced a spoils system). 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. foot­note8_h4jtafc 8 See Harvard Law Review Asso­ci­ation, “Public Employ­ment,” 1626 (discuss­ing the civil service reform move­ment as a “moral crusade” that perceived an “inher­ent evil” in the spoils system).

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. foot­note9_upsgsku 9 Pendleton Civil Service Reform Act, ch. 27, 22 Stat. 403 (1883). For a discus­sion of the histor­ical context in which the Pendleton Act was imple­men­ted, see Gerhardt, The Federal Appoint­ments Process, 275–77 (explain­ing that the percep­tion of corrup­tion and cronyism under Pres­id­ent Grant, followed by a major cronyism scan­dal in New York and the assas­sin­a­tion of Pres­id­ent Garfield, led to the success­ful passage of civil service reform nation­ally). 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. foot­note10_yfqlypo 10 See Gerhardt, The Federal Appoint­ments Process, 143–53. And candid­ates for vacant posi­tions should be nomin­ated by the pres­id­ent, and have their nomin­a­tions considered by the Senate, in a timely manner. foot­note11_mkkeppc 11 Burdett Loomis, “The Senate and Exec­ut­ive Branch Appoint­ments: An Obstacle Course on Capitol Hill?” Brook­ings Insti­tu­tion, Mar. 1, 2011, https://www.brook­ings.edu/articles/the-senate-and-exec­ut­ive-branch-appoint­ments-an-obstacle-course-on-capitol-hill/ (discuss­ing the length­en­ing delay in the Senate for consid­er­a­tion of pres­id­en­tial nomin­ees).

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. foot­note12_1ytjko0 12 For instance, Pres­id­ent Nixon’s attor­ney general, John Mitchell, controlled a Nixon reelec­tion campaign fund prior to his resig­na­tion from the Depart­ment of Justice to serve on the offi­cial campaign commit­tee. Carl Bern­stein and Bob Wood­ward, “Mitchell Controlled Secret GOP Fund,” Wash­ing­ton Post, Sept. 29, 1972, https://www.wash­ing­ton­post.com/wp-srv/national/longterm/water­gate/articles/092972–1.htm. He was later found guilty of several crimes in connec­tion with the Water­gate scan­dal. G. Calvin MacK­en­zie and Michael Hafken, Scan­dal Proof: Do Ethics Laws Make Govern­ment Ethical? (Wash­ing­ton, D.C.: Brook­ings Insti­tu­tion Press, 2002), 28–30. 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. foot­note13_3blq7l3 13 Ethics in Govern­ment Act, Pub. L. No. 95–121, 92 Stat. 1824 (1978); Civil Service Reform Act, Pub. L. No. 95–454, §§ 101, 202 (merit system prin­ciples and system protect­ing employ­ees from polit­ical retali­ation), 402 (vest­ing broad author­ity in a senior exec­ut­ive service), 501 (incentiv­iz­ing perform­ance through merit pay), 92 Stat. 1111 (1978).

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. foot­note14_nu6hi9u 14 Career civil servants have also felt the impact, with career offi­cials report­ing declin­ing morale, polit­ic­ally motiv­ated harass­ment and forced retire­ments and relo­ca­tions. See, e.g., U.S. Depart­ment of State Office of the Inspector General, Review of Alleg­a­tions of Politi­cized and Other Improper Person­nel Prac­tices in the Bureau of Inter­na­tional Organ­iz­a­tions (Wash­ing­ton, D.C.: Depart­ment of State, 2019), avail­able at https://www.stateoig.gov/system/files/esp-19–05.pdf (conclud­ing employ­ees were harassed and retali­ated against for their perceived polit­ical views); Joe David­son, “Report Shows Sharp Drop in Federal Employee Morale Under Trump,” Wash­ing­ton Post, Dec. 12, 2018, https://www.wash­ing­ton­post.com/polit­ics/2018/12/12/report-shows-sharp-drop-federal-employee-morale-under-trump/; Ryan McCrim­mon, “Econom­ists Flee Agri­cul­ture Dept. After Feel­ing Punished Under Trump,” Politico, May 7, 2019, https://www.politico.com/story/2019/05/07/agri­cul­ture-econom­ists-leave-trump-1307146?cid=apn. Pres­id­ent Trump has put family members in key adviser jobs. He has been cred­ibly accused of politi­ciz­ing the secur­ity clear­ance process, risk­ing national secur­ity. foot­note15_b5ct­fgu 15 See, e.g., Aileen Xena­kis, “The Danger of Politi­ciz­ing Secur­ity Clear­ances,” News­week, Mar. 16, 2019, https://www.news­week.com/ivanka-trump-jared-kush­ner-secur­ity-clear­ance-opin­ion-1362891. 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.” foot­note16_1kg4cro 16 Brett Samuels, “Trump Learns to Love Acting Offi­cials,” The Hill, Apr. 14, 2019, https://thehill.com/home­news/admin­is­tra­tion/438660-trump-learns-to-love-acting-offi­cials.

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. foot­note17_zsx9rlx 17 Commit­tee on Home­land Secur­ity and Govern­ment Affairs, U.S. Senate, Report to Accom­pany S. 679 to Reduce the Number of Exec­ut­ive Posi­tions Subject to Senate Confirm­a­tion, S. Rep. No. 112–24, at 3 (2011) (“The expand­ing numbers of Senate-confirmed posi­tions to be filled and the delays in filling them have inex­or­ably led to a great increase in vacan­cies — a situ­ation that cannot help but yield signi­fic­ant consequences for govern­ment admin­is­tra­tion and policy making.”); Paul C. Light, “The Glacial Pace of Pres­id­en­tial Appoint­ments,” Brook­ings Insti­tu­tion, Apr. 4, 2001, https://www.brook­ings.edu/opin­ions/the-glacial-pace-of-pres­id­en­tial-appoint­ments/ (discuss­ing the burden­some processes that deter talen­ted indi­vidu­als from accept­ing pres­id­en­tial appoint­ments to exec­ut­ive branch posi­tions); “Public Trust in Govern­ment: 1958–2019,” Pew Research Center, Apr. 11, 2019, https://www.people-press.org/2019/04/11/public-trust-in-govern­ment-1958–2019/ (show­ing Amer­ic­ans’ trust in govern­ment continu­ing to hover near its all-time low).

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”). foot­note18_fxi8k06 18 This number has increased over time as PAS posi­tions are added. “When Pres­id­ent Kennedy entered office, he had 850 Senate-confirmed posi­tions to fill. That number had increased to 1143 by the time Pres­id­ent George W. Bush took office, and by the begin­ning of the Obama Admin­is­tra­tion, there were 1215 exec­ut­ive branch posi­tions subject to Senate confirm­a­tion.” S. Rep. No. 112–24, at 2. See also Maeve P. Carey, Pres­id­en­tial Appoint­ments, the Senate’s Confirm­a­tion Process, and Changes Made in the 112th Congress, CRS Report No. R41872 (Wash­ing­ton, D.C.: Congres­sional Research Service, 2012), 7, https://fas.org/sgp/crs/misc/R41872.pdf. 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. foot­note19_5daty9f 19 See Carey, Pres­id­en­tial Appoint­ments, 10–11.

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. foot­note20_a10u1wq 20 Doolin Sec. Sav. Bank, F.S.B. v. Office of Thrift Super­vi­sion, 139 F.3d 203, 211 (D.C. Cir. 1998), super­seded on other grounds by stat­ute, Federal Vacan­cies Reform Act of 1998, as recog­nized by Guedes v. Bureau of Alco­hol, Tobacco, Fire­arms and Explos­ives, 2019 WL 1430505 (D.C. Cir. Apr. 1, 2019). 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. foot­note21_efaz80j 21 Congress, in passing the 1868 Vacan­cies Act, sought to balance the need for “breath­ing room in the consti­tu­tional system for appoint­ing officers to vacant posi­tions” while recog­niz­ing that there are “polit­ical and legal consequences of staff­ing high posi­tions with non-appoin­ted ‘act­ing’ offi­cials.” Doolin, 139 F.3d at 211.

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. foot­note22_h0a5j5b 22 In August 2000, Pres­id­ent Clin­ton used a congres­sional recess to appoint Bill Lann Lee the assist­ant attor­ney general for civil rights at the Depart­ment of Justice. Reports indic­ate that Senate confirm­a­tion was unlikely due to Lee’s stance on affirm­at­ive action and other programs. Lee had been filling that role, albeit in an acting capa­city, for two and a half years prior to the recess appoint­ment. John M. Broder, “Clin­ton, Soften­ing Slap at Senate, Names ‘Act­ing’ Civil Rights Chief,” New York Times, Dec. 16, 1997, https://www.nytimes.com/1997/12/16/us/clin­ton-soften­ing-slap-at-senate-names-acting-civil-rights-chief.html; Chris­topher Marquis, “Clin­ton Sidesteps Senate to Fill Civil Rights Enforce­ment Job,” New York Times, Aug. 4, 2000, https://www.nytimes.com/2000/08/04/us/clin­ton-sidesteps-senate-to-fill-civil-rights-enforce­ment-job.html; “The Right Move on Bill Lann Lee,” Wash­ing­ton Post, Dec. 17, 1997, https://www.wash­ing­ton­post.com/archive/opin­ions/1997/12/17/the-right-move-on-bill-lann-lee/a6bd­ff9b-dfdd-4742–894f-bccb­c88a8741/. 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. foot­note23_ecjjmgg 23 See NLRB v. Sw. Gen., Inc., 137 S. Ct. 929, 936 (2017); Commit­tee on Govern­mental Affairs, U.S. Senate, Report Together with Addi­tional and Minor­ity Views to Accom­pany S. 2176, S. Rep. No. 105–250, at 3 (1998). Several stat­utes govern­ing the pres­id­ent’s abil­ity to appoint acting offi­cials preceded the FVRA. Its imme­di­ate prede­cessor, the Vacan­cies Act of 1868, had created a default rule that the “first assist­ant” perform the func­tions of a vacant office but allowed the pres­id­ent to appoint another PAS offi­cial to the vacancy. Act of July 23, 1868, ch. 227, 15 Stat. 168. The Vacan­cies Act author­ized only 10 days of service by an acting offi­cial, though it was later lengthened to 30 days. Act of Feb. 6, 1891, ch. 113, 26 Stat. 733. 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. foot­note24_qowslnq 24 Pres­id­en­tial Appoint­ment Effi­ciency and Stream­lin­ing Act of 2011, Pub. L. No. 112–166, 126 Stat. 1283 (2012); see S. Rep. No. 112–24, at 4–5.

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. foot­note25_22t2eiq 25 See John Kruzel, “Why Trump Appoint­ments Have Lagged behind Other Pres­id­ents,” Poli­ti­fact, Mar. 16, 2018, https://www.poli­ti­fact.com/truth-o-meter/state­ments/2018/mar/16/donald-trump/why-trump-appoint­ments-have-lagged-behind-other-pr/; Jenny Hopkin­son, “Trump Hires Campaign Work­ers Instead of Farm Experts at USDA,” Politico, Sept. 21, 2017, https://www.politico.com/story/2017/09/21/trump-agri­cul­ture-depart­ment-usda-campaign-work­ers-242951; Light, “Pres­id­en­tial Nomin­a­tions.” 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. foot­note26_5sxk­bgw 26 “White House Trans­ition Project,” accessed Mar. 29, 2019, http://white­house­trans­ition­pro­ject.org/. 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, foot­note27_8ne2tmk 27 Part­ner­ship for Public Service and Wash­ing­ton Post, “Track­ing How Many Key Posi­tions Trump Has Filled So Far,” Part­ner­ship for Public Service, updated Feb. 12, 2019, avail­able at https://web.archive.org/web/20190212124612/https:/ourpub­lic­ser­vice.org/polit­ical-appointee-tracker/. with less than half of the key posi­tions filled at the Depart­ments of Justice or the Interior. foot­note28_qasgtu9 28 Ibid. 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. foot­note29_4jt1dzg 29 “Appoint­ments,” White House Trans­ition Project, accessed Mar. 25, 2019, http://www.white­house­trans­ition­pro­ject.org/appoint­ments/.

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. foot­note30_mo7h­w7h 30 Anne Joseph O’Con­nell, “Vacant Offices: Delays in Staff­ing Top Agency Posi­tions,” South­ern Cali­for­nia Law Review 82 (2008): 921, 965. 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. foot­note31_xyq56pu 31 Thomas H. Kean et al., The 9/11 Commis­sion Report, National Commis­sion on Terror­ist Attacks upon the United States, 2004, 422, avail­able at https://9–11­com­mis­sion.gov/report/911Re­port.pdf. And with 15 months left in the Bush admin­is­tra­tion, a signi­fic­ant number of senior offi­cials vacated their posi­tions, foot­note32_a1ymepd 32 Philip Shenon, “Interim Heads Increas­ingly Run Federal Agen­cies,” New York Times, Oct. 15, 2007, https://www.nytimes.com/2007/10/15/wash­ing­ton/15in­terim.html (“While exact compar­is­ons are diffi­cult to come by, research­ers say the vacancy rate for senior jobs in the exec­ut­ive branch is far higher at the end of the Bush admin­is­tra­tion than it was at the same point in the terms of Mr. Bush’s recent prede­cessors in the White House.”). 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. foot­note33_5sk0qw6 33 Ibid. 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. foot­note34_4omc2io 34 Michael D. Shear, “Polit­ics and Vetting Leave Key U.S. Posts Long Unfilled,” New York Times, May 2, 2013, https://www.nytimes.com/2013/05/03/us/polit­ics/top-posts-remain-vacant-through­out-obama-admin­is­tra­tion.html. 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. foot­note35_xlg4sw8 35 Eric Lipton, “U.S. Struggles Anew to Ensure Safety as Gaps Are Revealed,” New York Times, Dec. 28, 2009, https://www.nytimes.com/2009/12/29/us/29screen­ing.html.

The Senate’s obstruc­tion is partly to blame. For example, senat­ors some­times tie polit­ical nomin­a­tions to unre­lated policy goals foot­note36_i5en­ffd 36 Thomas E. Mann and Norman J. Ornstein, It’s Even Worse Than It Looks (New York: Basic Books, 2016), 98–100. or use anonym­ous holds to stall key nomin­ees. foot­note37_x96qmrw 37 See e.g., David Welna, “Senat­ors Fed Up with Secret Blocks on Nomin­ees,” NPR, June 3, 2010, https://www.npr.org/templates/story/story.php?storyId=127368817. Though note that the Senate passed a meas­ure in 2011 to elim­in­ate secret holds and require holds to be made public within two days. S. Res. 28, 112th Cong. (2011). And the Senate now routinely holds pro forma sessions to prevent the pres­id­ent from making recess appoint­ments while Congress is adjourned. foot­note38_xxhymuw 38 A “pro forma” session is one where the Senate is tech­nic­ally in session but not conduct­ing busi­ness; it typic­ally inter­rupts a longer recess. See David Welna, “Congress Won’t Recess to Block Obama Appoint­ments,” NPR, Dec. 9, 2011, https://www.npr.org/2011/12/09/143458518/congress-wont-recess-to-block-obama-appoint­ments; Jordain Carney, “Senate Blocks Trump from Making Recess Appoint­ments over Break,” The Hill, Aug. 3, 2017, https://thehill.com/home­news/senate/345261-senate-blocks-trump-from-making-recess-appoint­ments-over-break; NLRB v. Noel Canning, 573 U.S. 513 (2014) (Pres­id­ent Obama exceed­ing his author­ity by making recess appoint­ments to the National Labor Rela­tions Board while Congress was in pro forma session). These tactics were deployed at unpre­ced­en­ted rates during the Obama admin­is­tra­tion when the Senate was controlled by the oppos­i­tion party. foot­note39_totg9si 39 From 2009 to 2013, during the Obama admin­is­tra­tion, the Congres­sional Research Service repor­ted there were 82 cloture motions on nomin­a­tions. Prior to 2009, there had only been 86 cloture motions ever filed on nomin­a­tions. The number of cloture motions filed by senat­ors is one way to approx­im­ate the number of times the Senate needed to vote to break a fili­buster on a nominee. Richard S. Beth and Eliza­beth Rybicki, “Nomin­a­tions with Cloture Motions, 2009 to the Present,” Congres­sional Distri­bu­tion Memor­andum, Nov. 21, 2013 (Wash­ing­ton, D.C.: Congres­sional Research Service), https://www.docu­mentcloud.org/docu­ments/838702-crs-fili­buster-report.html. In total, nearly one-third of Pres­id­ent Obama’s nomin­a­tions were returned or with­drawn. For those nomin­a­tions that were confirmed, the process took four months under Preis­dent Obama compared to two months under Pres­id­ent Reagan. Anne Joseph O’Con­nell, “Acting Lead­ers: Recent Prac­tices, Consequences, and Reforms,” Brook­ings Insti­tu­tion, July 22, 2019, https://www.brook­ings.edu/research/acting-lead­ers/.

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. foot­note40_gfztx8g 40 See Proposal 8. 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. foot­note41_niodml4 41 See Proposal 7. Pres­id­ent Trump publicly admit­ted he was “in no hurry” to fill PAS posi­tions with perman­ent staff. foot­note42_2mp8hn2 42 Liz Stark and Devan Cole, “Trump Says He’s in ‘No Hurry’ to Name Perman­ent Cabinet Replace­ments,” CNN, Jan. 6, 2019, https://www.cnn.com/2019/01/06/polit­ics/trump-acting-offi­cials-cabinet/index.html.

Other reas­ons are struc­tural. There are many more PAS posi­tions today than there were just a few decades ago. foot­note43_d77bx6f 43 See S. Rep. No. 112–24, at 2. 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. foot­note44_aj8nxcf 44 David J. Barron, “From Takeover to Merger: Reform­ing Admin­is­trat­ive Law in an Age of Agency Politi­ciz­a­tion,” George Wash­ing­ton Univer­sity Law Review 76 (2008): 1126–28. 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. foot­note45_nmw91zi 45 S. Rep. No. 112–24, at 2.

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; foot­note46_74x8kh1 46 Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017) (first iter­a­tion of the “travel ban”). There was not a confirmed commis­sioner of Customs and Border Protec­tion until March 19, 2018. Trump’s first two nomin­ees to serve as director of Immig­ra­tion and Customs Enforce­ment with­drew prior to a confirm­a­tion vote. Part­ner­ship for Public Service and Wash­ing­ton Post, “How Many Key Posi­tions.” that he embarked on a historic diplo­matic mission to North Korea without an ambas­sador to South Korea; foot­note47_ot12qu5 47 Ryan Sit, “Trump Still Hasn’t Appoin­ted a U.S. Ambas­sador to South Korea or Filled 56 Other Such Vacan­cies,” News­week, Mar. 8, 2018, https://www.news­week.com/donald-trump-north-korea-south-korea-no-united-states-ambas­sador-56-coun­tries-837029. 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. foot­note48_jx4b4sz 48 Steven Dilling­ham was not confirmed to lead the Census Bureau until Janu­ary 2, 2019, only one year before the start of the national head count and after signi­fic­ant decisions pertain­ing to it were made. Tara Bahram­pour, “Senate Confirms New Census Bureau Director as 2020 Survey Approaches,” Wash­ing­ton Post, Jan. 3, 2019, https://www.wash­ing­ton­post.com/local/social-issues/senate-confirms-new-census-bureau-director-as-2020-survey-approaches/2019/01/03/5599b2d2–0­fa0–11e9–831f-3aa2c2be4cbd_story.html. 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. foot­note49_lk4r­f0s 49 Follow­ing the death of then FWS director Sam Hamilton in Febru­ary 2010, Rowan Gould served as FWS’s acting director. April Reese, “Wild­life Toll Mounts as BP Oil Inund­ates Coastal Marshes,” E&E News, June 3, 2010, https://www.eenews.net/stor­ies/91691.

Research shows that long-term vacan­cies damage agen­cies in several other ways. foot­note50_o1s4xrn 50 See Elaine Kamarck, “Federal Vacan­cies Have Left Trump’s Govern­ment Home Alone,” Brook­ings Insti­tu­tion, Dec. 14, 2017, https://www.brook­ings.edu/blog/fixgov/2017/12/14/trumps-govern­ment-home-alone/. They can delay or hamper needed reforms to programs and services. foot­note51_0judcs1 51 O’Con­nell, “Vacant Offices,” 938–41. Oppor­tun­it­ies for effi­cien­cies or improve­ments are more likely to be ignored or put on the back burner. foot­note52_dxmdklz 52 Kamarck, “Federal Vacan­cies.” Agency morale gener­ally deteri­or­ates. foot­note53_6oq5at7 53 O’Con­nell, “Vacant Offices,” 941.

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. foot­note54_diw3tkm 54 Though the Senate is consti­tu­tion­ally required to provide advice and consent for some officers, Congress may deleg­ate appoint­ment author­ity for “inferior officers” to the pres­id­ent or agency heads. The major­ity of current PAS posi­tions are comprised of “inferior officers.” It is gener­ally recog­nized that the distinc­tion between “prin­cipal” and “inferior” officers rests on whether the officer has a super­ior other than the pres­id­ent. See U.S. Const., art. II, § 2, cl. 2; Morrison v. Olson, 487 U.S. 654, 669–77 (1988); Edmond v. U.S., 520 U.S. 651, 663 (1997) (“[W]e think it evid­ent that ‘inferior officers’ are officers whose work is direc­ted and super­vised at some level by others who were appoin­ted by Pres­id­en­tial nomin­a­tion with the advice and consent of the Senate.”). 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. foot­note55_h1t3krd 55 5 U.S.C. §§ 3345–3346. 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. foot­note56_tntc268 56 5 U.S.C. § 3345 et seq. The FVRA was inten­ded to resolve differ­ences between Congress and certain exec­ut­ive depart­ments in the inter­pret­a­tion of the 1868 Vacan­cies Act. Commit­tee on Govern­mental Affairs, U.S. Senate, Report to Accom­pany S. 2176 to Amend Sections 3345 Through 3349 of Title 5, United States Code (Commonly Referred to as the “Vacan­cies Act”) to Clarify Stat­utory Require­ments Relat­ing to Vacan­cies in Certain Federal Offices, and for Other Purposes, S. Rep. 105–250, at 4 (1998) (“The selec­tion of officers is not a pres­id­en­tial power. The Pres­id­ent may choose whom he wishes to nomin­ate, but the Senate has the power to advise and consent before those nomin­ees may assume office.”). See Patrick Hein, “In Defense of Broad Recess Appoint­ment Power: The Effect­ive­ness of Polit­ical Coun­ter­weights,” Cali­for­nia Law Review 96 (2008): 272 (“The Reform Act sought to ‘bring[] to an end a quarter-century of obfus­ca­tion, bureau­cratic intransigence, and outright circum­ven­tion’ through three primary amend­ments. First, the Reform Act was inten­ded to prevent another seem­ingly illegal appoint­ment like [Bill Lann] Lee’s by stat­ing expli­citly that the Vacan­cies Act is the exclus­ive stat­utory means for tempor­ar­ily filling vacant advice and consent posi­tions in the exec­ut­ive branch, unless Congress expli­citly legis­lates other­wise. Second, the Reform Act broadened the Vacan­cies Act’s applic­ab­il­ity by creat­ing a third category of indi­vidu­als who may serve in an acting capa­city. Finally, the Reform Act provided the Pres­id­ent with more time to nomin­ate a perman­ent replace­ment by increas­ing the length of an acting appoint­ment to 210 days.”).

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” foot­note57_ri9kjfz 57 The default rule under the FVRA is that the first assist­ant, typic­ally the deputy to the vacant office, serves as the acting offi­cial. “First assist­ant” is a term of art but not defined in the FVRA. Some stat­utes specific­ally identify a posi­tion as a first assist­ant, but some do not. Ibid., 9–10. 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. foot­note58_l6k4maa 58 The text of the FVRA limits the pres­id­ent to one of three classes of indi­vidu­als to fill vacant PAS posi­tions, when not super­seded by another stat­ute: (1) the first assist­ant to the vacant office, (2) another Senate-confirmed offi­cial in the exec­ut­ive branch, or (3) a senior offi­cial who has been serving in the same agency as the vacant office for at least 90 of the previ­ous 365 days. 5 U.S.C. § 3345(a). 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. foot­note59_inxuki9 59 See, Melissa Attias, “Uncon­firmed, but Slavitt Likely to Remain in Charge,” CQ Roll Call, July 30, 2015.; David Dayen, “Trump’s Acting Direct­ors Are Quietly Drop­ping ‘Act­ing’ from Their Titles,” Inter­cept, Nov. 29, 2017, https://thein­ter­cept.com/2017/11/29/trump-admin­is­tra­tion-acting-director-cfpb-mick-mulvaney/. 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. foot­note60_qel52a8 60 Todd Ruger, “Acting Civil Rights Head Still Awaits Nomin­a­tion,” Roll Call, May 11, 2015, https://www.rollcall.com/news/acting_civil_rights_head_still_awaits_nomin­a­tion-241734–1.html. See also Thomas Berry, The Illegal Tenure of Civil Rights Head Vanita Gupta, Cato Insti­tute, Legal Policy Bulletin No. 1, Jan. 19, 2017, https://object.cato.org/sites/cato.org/files/pubs/pdf/legal_policy_bulletin_1.pdf (arguing the attor­ney gener­al’s deleg­a­tion of the duties of the assist­ant attor­ney general for civil rights to the prin­cipal deputy assist­ant attor­ney general viol­ated the FVRA).

 

Pres­id­ent Trump has exploited the same loop­hole foot­note61_fr44htp 61 To cite a few examples of Pres­id­ent Trump’s acting offi­cials continu­ing to perform the duties of vacant offices beyond the 210-day time limit imposed by the FVRA: the former acting assist­ant secret­ary for energy effi­ciency and renew­able energy at the Depart­ment of Energy contin­ued lead­ing the office as the prin­cipal deputy assist­ant secret­ary after reach­ing the stat­utory time limit — his title modi­fied, but his role unchanged; the former acting director of the Office of Nuclear Energy led the office as the prin­cipal deputy assist­ant secret­ary; and at the Advanced Research Projects Agency-Energy, the former acting director led the office as its deputy director. Dayen, “Trump’s Acting Direct­ors.” 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, foot­note62_ft1d4g1 62 Eric Katz, “Trump Skirts Vacan­cies Law with Selec­tion of Acting Agency Director,” Govern­ment Exec­ut­ive, June 10, 2019, https://www.govexec.com/manage­ment/2019/06/trump-skirts-vacan­cies-law-selec­tion-acting-agency-director/157598/. 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. foot­note63_1tc8u54 63 Jordain Carney, “Repub­lic­ans Warn Cuccinelli Won’t Get Confirmed by GOP Senate,” The Hill, June 10, 2019, https://thehill.com/home­news/senate/447804-repub­lic­ans-warn-cuccinelli-wont-get-confirmed-by-gop-senate. Once in the role, Cuccinelli became the acting director of USCIS, in appar­ent compli­ance with the FVRA. foot­note64_dlef69u 64 Though several organ­iz­a­tions and civil rights groups have argued that Cuccinel­li’s appoint­ment is unlaw­ful, the Depart­ment of Home­land Secur­ity and the White House have said the appoint­ment is consist­ent with the FVRA. Letter from Demo­cracy Fund Found­a­tion, et al. to Attor­ney General William Barr, July 22, 2019, avail­able at https://demo­cracy­for­ward.org/wp-content/uploads/2019/07/Cuccinelli-Letter-final-to-send.pdf. 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. foot­note65_oenepxq 65 See also Steve Vladeck, “Ken Cuccinelli and Federal Vacan­cies Reform Act of 1998,” Lawfare, June 10, 2019, https://www.lawfareb­log.com/ken-cuccinelli-and-federal-vacan­cies-reform-act-1998 (“By this logic, noth­ing would prevent naming anyone, at any time, to run almost any senior agency for as long as the FVRA allows — a minimum of 210 days and perhaps more . . . .”).

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. foot­note66_wp3b­m1g 66 The stat­ute is triggered when an offi­cial “dies, resigns, or is other­wise unable to perform the func­tions and duties of the office,” and there is debate about whether the last category includes termin­a­tion. 5 U.S.C. § 3345(a). See Ben Miller-Goot­nick, “Bound­ar­ies of the Federal Vacan­cies Reform Act,” Harvard Journal on Legis­la­tion 56 (May 2019), avail­able at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3372389; Steve Vladeck, “The Federal Vacan­cies Reform Act and the VA: A Study in Uncer­tainty and Incom­pet­ence,” Lawfare, May 23, 2018, https://www.lawfareb­log.com/federal-vacan­cies-reform-act-and-va-study-uncer­tainty-and-incom­pet­ence. 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. foot­note67_jyf1zw8 67 Sessions submit­ted his resig­na­tion at the pres­id­ent’s request, and Trump desig­nated Whitaker acting attor­ney general. Laura Jarrett and Eli Watkins, “Jeff Sessions out as Attor­ney General,” CNN, Nov. 7, 2018, https://www.cnn.com/2018/11/07/polit­ics/sessions-resign/index.html.   The earlier depar­ture of former Secret­ary of Veter­ans Affairs (VA) David Shulkin serves as another example, where Trump desig­nated Robert Wilkie, a PAS offi­cial from the Depart­ment of Defense, to serve as the acting secret­ary of the VA after ostens­ibly firing Shulkin. See Vladeck, “Federal Vacan­cies Reform Act and the VA.” Trump reques­ted Session­s’s resig­na­tion, after relent­lessly attack­ing him in public, foot­note68_1rramk5 68 Sessions faced with­er­ing and repeated public criti­cism from Trump for recus­ing from the Russia invest­ig­a­tion and refus­ing to shut down the probe. See Cris­ti­ano Lima, “Trump Revives Criti­cism of Sessions’ Recusal in Russia Probe,” Politico, Apr. 9, 2018, https://www.politico.com/story/2018/04/09/trump-sessions-russia-probe-511115; Eric Lach, “Trump Fires Jeff Sessions, and Throws His Admin­is­tra­tion Back into Chaos,” New Yorker, Nov. 7, 2018, https://www.newyorker.com/news/current/trump-fires-jeff-sessions-and-throws-his-admin­is­tra­tion-back-into-chaos. despite the Senate’s contin­ued defense of Sessions. foot­note69_eq03qnk 69 See Jacob Pramuk, “Lind­sey Graham: ‘There Will Be Holy Hell to Pay’ If Trump Fires Sessions,” CNBC, July 27, 2017, https://www.cnbc.com/2017/07/27/lind­sey-graham-holy-hell-to-pay-if-trump-fires-jeff-sessions.html; Russell Berman, “The Demo­cratic Efforts to Keep Jeff Sessions in Office,” Atlantic, Aug. 24, 2018, https://www.theat­lantic.com/polit­ics/archive/2018/08/demo­crats-sessions-trump-attor­ney-general/568510/. The uncer­tainty over whether the FVRA is triggered when a pres­id­ent fires an offi­cial created doubt about whether Whitaker’s desig­na­tion was lawful. foot­note70_2hay­drd 70 Some posit that Sessions was construct­ively fired. See, e.g., David Voreacos and Andrew Martin, “Did Sessions Quit or Get Fired? Mueller’s Fate May Hang on the Answer,” Bloomberg, Nov. 7, 2018, https://www.bloomberg.com/news/articles/2018–11–07/did-sessions-quit-or-get-fired-mueller-fate-may-hang-on-answer.   Whitaker’s desig­na­tion was contro­ver­sial for other reas­ons, as well. Some argued that the desig­na­tion was uncon­sti­tu­tional under the Appoint­ments Clause because the attor­ney general, as prin­cipal officer, must be confirmed by the Senate. Jeff Barker, “In Federal Hear­ing, Mary­land AG Seeks to Preserve Afford­able Care Act, Opposes Acting U.S. Attor­ney General,” Baltimore Sun, Dec. 19, 2018, https://www.baltimore­sun.com/news/mary­land/polit­ics/bs-md-mary­land-whitaker-aca-20181218-story.html; Neal K. Katyal and George T. Conway, III, “Trump’s Appoint­ment of the Acting Attor­ney General Is Uncon­sti­tu­tional,” New York Times, Nov. 8, 2018, https://www.nytimes.com/2018/11/08/opin­ion/trump-attor­ney-general-sessions-uncon­sti­tu­tional.html. Others argued that the DOJ’s own succes­sion stat­ute — specify­ing that the deputy attor­ney general “may exer­cise all the duties” of the attor­ney general upon a vacancy in that office — super­seded the FVRA. 28 U.S.C. § 508. See John Bies, “Matthew Whitaker’s Appoint­ment as Acting Attor­ney General: Three Linger­ing Ques­tions,” Lawfare, Nov. 8, 2018, https://www.lawfareb­log.com/matthew-whitakers-appoint­ment-acting-attor­ney-general-three-linger­ing-ques­tions (consid­er­ing whether the FVRA supplants DOJ’s specific succes­sion stat­ute).

 

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. foot­note71_prpaqbd 71 See, e.g., letter from Thomas H. Armstrong, general coun­sel, Govern­ment Account­ab­il­ity Office, to Donald Trump, Pres­id­ent (May 9, 2018), avail­able at https://www.gao.gov/assets/700/692014.pdf (inform­ing the pres­id­ent that the acting general coun­sel of the air force had served beyond the stat­utory 300-day limit); Letter from Susan A. Poling, general coun­sel, Govern­ment Account­ab­il­ity Office, to Barack Obama, Pres­id­ent (Mar. 30, 2015), avail­able at https://www.gao.gov/assets/670/669447.pdf (inform­ing the pres­id­ent that the acting inspector general of the Depart­ment of Veter­ans Affairs had served beyond the stat­utory 210-day limit). 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. foot­note72_e1wn­lq9 72 See, e.g., Doolin, 139 F.3d 203 (D.C. Cir. 1998); Sw. Gen., Inc. v. NLRB, 796 F.3d 67 (D.C. Cir. 2015). 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. foot­note73_u2bcgsz 73 5 U.S.C. § 3349(b). However, the FVRA does not require the comp­troller general to make this determ­in­a­tion. See Valerie C. Bran­non, The Vacan­cies Act: A Legal Over­view, CRS Report No. R44997 (Wash­ing­ton, D.C.: Congres­sional Research Service, 2017), 20, https://fas.org/sgp/crs/misc/R44997.pdf.

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. foot­note74_d08x1fx 74 Given the unique role of inspect­ors general, we think Congress should include separ­ate provi­sions that dictate who may serve as an acting inspector general. See, e.g., Michael Strat­ford, “Trump Back­tracks on Replace­ment of Educa­tion Depart­ment Watch­dog,” Politico, Feb. 1, 2019, https://www.politico.com/story/2019/02/01/eliza­beth-warren-educa­tion-betsy-devos-1138082 (White House revers­ing appoint­ment of Educa­tion Depart­ment’s deputy general coun­sel as acting inspector general amidst protests that appoint­ment threatened office’s inde­pend­ence from depart­ment lead­er­ship); Miranda Green, “Trump Appoints Social Secur­ity Admin­is­tra­tion Watch­dog to Also Over­see Interior,” The Hill, June 1, 2019, https://thehill.com/policy/energy-envir­on­ment/447713-trump-appoints-social-secur­ity-admin­is­tra­tion-watch­dog-to-also (appoint­ment of Social Secur­ity Admin­is­tra­tion inspector general as acting inspector general of Depart­ment of the Interior, pending confirm­a­tion of perman­ent inspector general at depart­ment). 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. foot­note75_sn07mtr 75 Though we do not advoc­ate for a specific length of prior federal service, one option is the FVRA’s current tenure require­ment for senior offi­cials who may serve as acting officers: prior service within the agency for at least 90 of the previ­ous 365 days. 5 U.S.C. § 3345(a). 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. foot­note76_preg­b3i 76 Professor Stephen I. Vladeck has argued for a similar approach. Instead of allow­ing for a pres­id­ent to choose between the first assist­ant, any PAS offi­cial in the exec­ut­ive branch, or another senior non-PAS offi­cial in the same agency, he argues: “Congress should require the pres­id­ent first choose the ‘first assist­ant’; then, if that office is also vacant, any Senate-confirmed officer in the same agency; then . . . a non-Senate-confirmed senior offi­cial only if no Senate-confirmed officers from that agency remain; and finally . . . a Senate-confirmed officer from a differ­ent agency only if no qual­i­fy­ing senior offi­cials from the same agency remain. Steve Vladeck, “Trump Is Abus­ing His Author­ity to Name ‘Act­ing Secret­ar­ies.’ Here’s How Congress Can Stop Him.” Slate, Apr. 9, 2019, https://slate.com/news-and-polit­ics/2019/04/trump-acting-secret­ar­ies-dhs-fvra-senate-reform.html.

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 foot­note77_96oxunw 77 The default rule under the FVRA is that the first assist­ant, typic­ally the deputy to the vacant office, serves as the acting offi­cial. Some stat­utes specific­ally identify a posi­tion as a first assist­ant, but some do not. Commit­tee on Govern­mental Affairs, Report to Accom­pany S. 2176, 12. To avoid debate, Congress could specific­ally identify the first assist­ant to any PAS posi­tion where it is not already iden­ti­fied in the relev­ant stat­ute or regu­la­tion. to the vacant office at the time the vacancy arises, and who has served for a defined minimum period of time, foot­note78_0eqo8w7 78 Again, we do not advoc­ate for a specific length of prior federal service, but one option is the FVRA’s current tenure require­ment for senior offi­cials who may serve as acting officers: prior service within the agency for at least 90 of the previ­ous 365 days. 5 U.S.C. § 3345(a). 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. foot­note79_gs5tzga 79 The senior career offi­cial should satisfy the same tenure and pay require­ments required by the FVRA. 5 U.S.C. § 3345(a)(3) (The pres­id­ent may desig­nate a senior offi­cial to perform the duties of a vacant office within their agency if the senior offi­cial (1) has served in the agency for at least 90 of the last 365 days, and (2) receives a rate of pay at GS-15 of the General Sched­ule or above.).

>> 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. foot­note80_2didqs1 80 See Rebecca Jones, The Dangers of Chronic Federal Vacan­cies, Project on Govern­ment Over­sight, Aug. 6, 2019, avail­able at https://www.pogo.org/analysis/2019/08/the-dangers-of-chronic-federal-vacan­cies/; Liz Hempow­icz, Sean Moulton, Rebecca Jones, and Peter Tyler, Baker’s Dozen: 13 Policy Areas That Require Congres­sional Action, Project on Govern­ment Over­sight, 2019, 43–44, avail­able at https://docs.pogo.org/report/2019/Bakers-Dozen-2019_190212_151225.pdf; Miller-Goot­nick, “Federal Vacan­cies Reform Act.” 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. foot­note81_fg678bf 81 S. Rep. No. 112–24, at 4–5. It begins prior to the pres­id­ent’s nomin­a­tion, where the longest repor­ted delays occur. foot­note82_43oj3bw 82 Henry B. Hogue, Michael Greene, and Eliza­beth Rybicki, Filling Advice and Consent Posi­tions at the Outset of Recent Admin­is­tra­tions, CRS Report No. R40119 (Wash­ing­ton, D.C.: Congres­sional Research Service, 2017), 21, https://fas.org/sgp/crs/misc/R40119.pdf. 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). foot­note83_zabpops 83 The forms required by the exec­ut­ive branch include: the Stand­ard Form 86 Ques­tion­naire for National Secur­ity Posi­tions (SF 86), the Supple­ment to the SF 86, the Office of Govern­ment Ethics Form 278 Exec­ut­ive Branch Person­nel Public Finan­cial Disclos­ure Report (OGE 278), and consent forms submit­ted to the White House. Nomin­ees must also complete the appro­pri­ate Senate commit­tee ques­tion­naire(s). For addi­tional inform­a­tion on the vetting process, see Appoint­ment and Confirm­a­tion of Exec­ut­ive Branch Lead­er­ship: An Over­view, CRS Report No. R44083 (Wash­ing­ton, D.C.: Congres­sional Research Service, 2015), https://www.everycrsre­port.com/files/20150622_R44083_a0dcf1a87b­cf8965479aed­c61b­b776c7b4f16686.pdf, and Robert Kelner, Robert Lenhard, and Derek Lawlor, “A Primer on the Pres­id­en­tial Appointee Vetting Process,” Law360, Nov. 16, 2016, https://www.cov.com/-/media/files/corpor­ate/public­a­tions/2016/11/a_primer_on_the_pres­id­en­tial_appointee_vetting_process.pdf. These forms include duplic­at­ive and overly broad ques­tions that request inform­a­tion in vary­ing formats, creat­ing a madden­ing and time-consum­ing predic­a­ment for nomin­ees. foot­note84_sa0d25a 84 For instance, the SF 86 and the Senate ques­tion­naires ask differ­ently worded ques­tions about the nomin­ee’s crim­inal convic­tion history. Some ques­tion­naires require the nominee to provide inform­a­tion about any crim­inal convic­tion, whereas the SF 86 asks partic­u­lar ques­tions about differ­ent types of offenses and covers a differ­ent time period. Work­ing Group on Stream­lin­ing Paper­work for Exec­ut­ive Nomin­a­tions, Report to the Pres­id­ent and the Chairs and Rank­ing Members of the Senate Commit­tee on Home­land Secur­ity & Govern­ment Affairs and the Senate Commit­tee on Rules & Admin­is­tra­tion (Wash­ing­ton, D.C.: Exec­ut­ive Office of the Pres­id­ent, 2012), 18–22, 29–33, avail­able at https://www2.oge.gov/Web/OGE.nsf/0/2CE9B19C0F0ED82A85257EA600655818/$FILE/243ff5ca6d384f6f­b89728a57e65552f3.pdf.

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 foot­note85_8t72xb1 85 Work­ing Group on Stream­lin­ing Paper­work for Exec­ut­ive Nomin­a­tions, Stream­lin­ing the Back­ground Invest­ig­a­tion Process for Exec­ut­ive Nomin­a­tions (Wash­ing­ton, D.C.: Exec­ut­ive Office of the Pres­id­ent, 2013), 1. before their nomin­a­tion is submit­ted to Congress. foot­note86_4gthgxm 86 However, there are reports of Pres­id­ent Trump nomin­at­ing indi­vidu­als prior to the comple­tion of their back­ground invest­ig­a­tion. See Ed O’Keefe and Sean Sulli­van, “Ethics Offi­cials Warns Against Confirm­a­tions Before Reviews Are Complete,” Wash­ing­ton Post, Jan. 7, 2017, https://www.wash­ing­ton­post.com/polit­ics/ethics-offi­cial-warns-against-confirm­a­tions-before-reviews-are-complete/2017/01/07/e85a97ee-d348–11e6–9cb0–54­ab630851e8_story.html. 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. foot­note87_r29biy6 87 Work­ing Group on Stream­lin­ing Paper­work for Exec­ut­ive Nomin­a­tions, Stream­lin­ing the Process, 1. On aver­age it takes between six and eight weeks, and it requires a lot of resources. foot­note88_460pnbi 88 Ibid., 14.

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. foot­note89_f7e92mf 89 Pres­id­ent Bush’s proposal would have required the Senate Judi­ciary Commit­tee to hold hear­ings within 90 days of receiv­ing a nomin­a­tion, and for a full Senate vote within 180 days. Pres­id­ent Announces Plan for Timely Consid­er­a­tion of Judi­cial Nomin­ees, Oct. 30, 2002, https://georgew­bush-white­house.archives.gov/news/releases/2002/10/20021030–4.html. Pres­id­ent Obama made a similar proposal at the 2012 State of the Union, call­ing for a Senate rule that would require a vote on judi­cial and exec­ut­ive branch nomin­ees within 90 days. Remarks by the Pres­id­ent in State of the Union Address, Jan. 24, 2012, https://obamawhite­house.archives.gov/the-press-office/2012/01/24/remarks-pres­id­ent-state-union-address. The New York Times edit­or­ial board endorsed Pres­id­ent Obama’s plan. “Fili­bus­ter­ing Nomin­ees Must End,” New York Times, Jan. 28, 2012, https://www.nytimes.com/2012/01/29/opin­ion/sunday/fili­bus­ter­ing-nomin­ees-must-end.html. 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. foot­note90_oajk9sq 90 See S. Rep. No. 112–24, at 2. See also Zach Graves and Daniel Schu­man, “The Decline of Congres­sional Expert­ise Explained in 10 Charts,” Tech Dirt, Oct. 18, 2018, https://www.tech­dirt.com/articles/20181018/10204640869/decline-congres­sional-expert­ise-explained-10-charts.shtml (arguing that Congress struggles to fulfill its consti­tu­tional respons­ib­il­it­ies due to lack of staff).

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, foot­note91_nbnx74f 91 See Work­ing Group on Stream­lin­ing Paper­work for Exec­ut­ive Nomin­a­tions, Report to Senate Commit­tee on Home­land Secur­ity; Alvin S. Felzen­berg, “Fixing the Appoint­ment Process: What the Reform Commis­sions Saw,” Brook­ings Insti­tu­tion, Mar. 1, 2001, https://www.brook­ings.edu/articles/fixing-the-appoint­ment-process-what-the-reform-commis­sions-saw/; Paul A. Volcker et al., Urgent Busi­ness for Amer­ica: Revital­iz­ing the Federal Govern­ment for the 21st Century, National Commis­sion on the Public Service, 2003, avail­able at https://www.brook­ings.edu/wp-content/uploads/2016/06/01gov­ernance.pdf; Paul A. Volcker et al., Lead­er­ship for Amer­ica: Rebuild­ing the Public Service, National Commis­sion on the Public Service, 1989, avail­able at http://www.wash­ing­ton­post.com/wp-srv/opin­ions/docu­ments/Lead­er­ship_for_Amer­ica_Rebuild­ing_the_Public_Service.pdf; Robert Rizzi and Dianna Muth, “Delays in Pres­id­en­tial Appoint­ments Damage the Vetting System,” The Hill, Dec. 10, 2014, https://thehill.com/blogs/congress-blog/the-admin­is­tra­tion/226512-delays-in-pres­id­en­tial-appoint­ments-damage-vetting. 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. foot­note92_2ekqx3t 92 The Consti­tu­tion’s Appoint­ments Clause provides Congress with the power to vest the appoint­ment of “inferior officers, as they think proper, in the Pres­id­ent alone, in the courts of law, or in the heads of depart­ments.” U.S. Const. art. II, § 2, cl. 2. 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. foot­note93_72072w2 93 The confirm­a­tion process would have revealed the preclus­ive conflicts of interest that even­tu­ally led to the resig­na­tion of the former director of the CDC. Jennifer Haberkorn and Brianna Ehley, “CDC Direct­or’s Conflicts Keep Her from Testi­fy­ing,” Politico, Jan. 18, 2018, https://www.politico.com/story/2018/01/18/cdc-director-avoids-congres­sional-testi­mony-297284; Corky Siemaszko, “CDC Director Brenda Fitzger­ald Quits Follow­ing Reports She Bought Tobacco Shares,” NBC News, Jan. 31, 2018, https://www.nbcnews.com/news/us-news/cdc-director-brenda-fitzger­ald-quits-after-revel­a­tions-she-bought-tobacco-n843261.

>> 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. foot­note94_eyc56ml 94 In Novem­ber 2012, the Work­ing Group on Stream­lin­ing Paper­work for Exec­ut­ive Nomin­a­tions repor­ted that a stand­ard ques­tion­naire had already been adop­ted by several Senate commit­tees, includ­ing the Home­land Secur­ity and Govern­ment Affairs Commit­tee; the Rules Commit­tee; the Health, Educa­tion, Labor, and Pensions Commit­tee; and the Commit­tee on Veter­ans’ Affairs. Work­ing Group on Stream­lin­ing Paper­work for Exec­ut­ive Nomin­a­tions, Stream­lin­ing the Process, 2. See also Work­ing Group on Stream­lin­ing Paper­work for Exec­ut­ive Nomin­a­tions, Report to Senate Commit­tee on Home­land Secur­ity, 2.

>> 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 foot­note95_3srzgg4 95 A select group of senior posi­tions, includ­ing members of the cabinet, are typic­ally subject to an invest­ig­a­tion more intens­ive than the “full field” invest­ig­a­tion. Work­ing Group on Stream­lin­ing Paper­work for Exec­ut­ive Nomin­a­tions, Stream­lin­ing the Process, 5–6. 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, foot­note96_4ka0qdz 96 The require­ment was removed from posi­tions that gener­ally fell into four categor­ies: (1) legis­lat­ive and public affairs posi­tions; (2) internal manage­ment posi­tions (e.g., chief finan­cial officers and chief inform­a­tion officers); (3) offi­cials who repor­ted to another PAS offi­cial; and (4) members of part-time boards and commis­sions that play advis­ory roles. S. Rep. No. 112–24, at 6–7. For the full list of posi­tions no longer requir­ing Senate confirm­a­tion, see Carey, Pres­id­en­tial Appoint­ments, 19. shows there is an appet­ite for these reforms. foot­note97_ylzwxj3 97 Pres­id­en­tial Appoint­ment Effi­ciency and Stream­lin­ing Act of 2011, Pub. L. No. 112–166, 126 Stat. 1283 (2012). The bill garnered bipar­tisan support in the Senate and was cosponsored by senat­ors of both parties: Senat­ors Lamar Alex­an­der (R-TN), Harry Reid (D-NV), Mitch McCon­nell (R-KY), Joe Lieber­man (D-CT), Susan Collins (R-ME), Scott Brown (R-MA), Jeff Binga­man (D-NM), Richard Blumenthal (D-CT), Dick Durbin (D-IL), Mike Johanns (R-NE), Dick Lugar (R-IN), Jack Reed (D-RI), Shel­don White­house (D-RI), Tom Carper (D-DE), Jon Kyl (R-AZ), Michael Bennet (D-CO), and Patty Murray (D-WA). 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. foot­note98_91kwkqd 98 Commit­tee on Home­land Secur­ity and Govern­mental Affairs, 114th Cong., United States Govern­ment Policy and Support­ing Posi­tions (S. Print 114–26), avail­able at https://www.govinfo.gov/content/pkg/GPO-PLUM­BOOK-2016/pdf/GPO-PLUM­BOOK-2016.pdf. 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. foot­note99_86ihxgr 99 See, e.g., Fulbright Foreign Schol­ar­ship Board, 22 U.S.C. § 2456(a)(1). See also S. Rep. No. 112–24, at 7 (arguing that redu­cing the number of posi­tions requir­ing Senate confirm­a­tion should speed up the confirm­a­tion process).

The Senate would not reduce its influ­ence by elim­in­at­ing the confirm­a­tion require­ment from some posi­tions. foot­note100_zlzgggq 100 As the Senate Home­land Secur­ity and Govern­ment Affairs Commit­tee repor­ted in 2011, redu­cing the number of posi­tions subject to Senate confirm­a­tion would allow the Senate to more respons­ibly and effect­ively exer­cise its advice and consent powers. S. Rep. No. 112–24, at 7–8. 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. foot­note101_zf5grun 101 S. Rep. No, 112–24, 8 (2011).

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. foot­note102_n9a7qk3 102 Work­ing Group on Stream­lin­ing Paper­work for Exec­ut­ive Nomin­a­tions, Report to Senate Commit­tee on Home­land Secur­ity, 14. 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. foot­note103_z1et8ez 103 Ibid., 16.

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. foot­note104_246n0bo 104 Ibid., 5. 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. foot­note105_qdwrhwm 105 Ibid., 33.

The Work­ing Group also expressed support for a tiered back­ground invest­ig­a­tion system, foot­note106_9yq54uu 106 Work­ing Group, Stream­lin­ing the Process. Nonpar­tisan organ­iz­a­tions have also recom­men­ded estab­lish­ing a tiered system. See, e.g., Felzen­berg, “Fixing the Appoint­ment Process.” as have other experts. foot­note107_kiqhl3k 107 William A. Galston and E. J. Dionne Jr., A Half-Empty Govern­ment Can’t Govern: Why Every­one Wants to Fix the Appoint­ments Process, Why It Never Happens, and How We Can Get It Done, Brook­ings Insti­tu­tion, 2010, 5, avail­able at https://www.brook­ings.edu/wp-content/uploads/2016/06/1214_appoint­ments_galston_dionne.pdf (“We . . . suggest a tiered-system of back­ground checks, with the most strin­gent reserved only for top-level posi­tions.”); Elim­in­at­ing the Bottle­necks: Stream­lin­ing the Nomin­a­tions Process: Hear­ing Before the S. Comm. on Home­land Secur­ity and Govern­mental Affairs, 112th Cong. 101 (2011) (state­ment of Norman J. Ornstein, resid­ent scholar, Amer­ican Enter­prise Insti­tute) (“There is simply no need for . . . full back­ground checks for many non-secur­ity and non-major posts; a slid­ing scale from full invest­ig­a­tions for key posts down to simple computer back­ground checks for more minor posts would suffice.”); Part­ner­ship for Public Service and Boston Consult­ing Group, Pres­id­en­tial Trans­ition Guide, Third Edition, 2018, 230, avail­able at https://ourpub­lic­ser­vice.org/wp-content/uploads/2018/01/Pres­id­en­tial-Trans­ition-Guide-2018.pdf (“[A] new exec­ut­ive order could be issued to adopt a tiered clear­ance process based on the type of posi­tion to which an indi­vidual has been nomin­ated and whether an indi­vidual has previ­ously been cleared. Those appoin­ted to non-sens­it­ive posi­tions and those with previ­ous clear­ances, or who are moving between govern­ment posts, could qual­ify for more stream­lined back­ground checks. This change would reduce the time required to fill vacan­cies and save time and resources for the FBI.”). 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. foot­note108_pzfcief 108 S. Rep. No. 112–24, at 9. 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. foot­note109_pge3rys 109 There is at least one preced­ent for conduct­ing more limited back­ground invest­ig­a­tions for certain types of posi­tions. In the final year of the Obama admin­is­tra­tion, the Pres­id­en­tial Person­nel Office began request­ing more limited invest­ig­a­tions for nomin­ees to part-time posi­tions that did not require a secur­ity clear­ance and did not have national-secur­ity-related respons­ib­il­it­ies. We do not have evid­ence of this prac­tice continu­ing during the Trump admin­is­tra­tion.

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). foot­note110_e3yjfct 110 See, e.g., Ken Dilanian, Geoff Bennett, and Kristen Walker, “Limits to FBI’s Kavanaugh Invest­ig­a­tion Have Not Changed, Despite Trump’s Comments,” NBC, Sept. 30, 2018, https://www.nbcnews.com/polit­ics/polit­ics-news/white-house-limits-scope-fbi-s-invest­ig­a­tion-alleg­a­tions-against-brett-n915061; Rudy Mehrb­ani, “Take Stock of the FBI’s Role in Senate Confirm­a­tions after Kavanaugh,” Just Secur­ity, Oct. 9, 2018, https://www.just­se­cur­ity.org/60985/stock-fbis-role-senate-confirm­a­tions-kavanaugh/. Back­ground invest­ig­a­tion reports are shared, upon request, with the chair and rank­ing member of the Senate commit­tee consid­er­ing the nominee. See Coun­cil for Excel­lence in Govern­ment, A Surviv­or’s Guide for Pres­id­en­tial Nomin­ees, Brook­ings Insti­tu­tion, 2000, 35, avail­able at https://www.brook­ings.edu/wp-content/uploads/2016/06/1115gov­ernance.pdf; Carey, Pres­id­en­tial Appoint­ments, 5. 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. foot­note111_67e0i10 111 S. Rep. No. 112–24, at 7.

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. foot­note112_qhdqq2j 112 David Lewis, “Pres­id­en­tial Appoint­ments in the Obama Admin­is­tra­tion: An Early Eval­u­ation,” in The Obama Pres­id­ency: Change and Continu­ity, eds. Andrew J. Dowdle, Dirk C. van Raem­donck, Robert Maranto (New York: Rout­ledge, 2011) (arguing that policy “czars” and other advisers have less direct author­ity over agency person­nel and create recruit­ing chal­lenges because would-be agency person­nel feel disem­powered by the pres­id­ent’s desig­na­tion of such a point person).

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. foot­note113_s7ibpbr 113 The Federal Anti-Nepot­ism Stat­ute: Limits on Appoint­ing, Hiring, and Promot­ing Relat­ives, CRS Legal Side­bar (Wash­ing­ton, D.C.: Congres­sional Research Service, 2016), https://fas.org/sgp/crs/misc/nepot­ism.pdf (“Congress passed the prohib­i­tion in 1967 to address long-stand­ing criti­cisms of the prac­tice of some federal offi­cials, partic­u­larly some Members of Congress as well as certain postal offi­cials, placing relat­ives on the federal payroll.”). 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. foot­note114_zxh9aqf 114 Lydia Saad, “Amer­ic­ans’ Faith in Govern­ment Shaken but Not Shattered by Water­gate,” Gallup, June 13,1997, https://news.gallup.com/poll/4378/amer­ic­ans-faith-govern­ment-shaken-shattered-water­gate.aspx (“In 1972, before Water­gate became the scan­dal of the decade, more than half of Amer­ican adults gave the govern­ment very high marks, saying they could trust it all or most of the time, while 45% opted for the ‘only some of the time’ altern­at­ive. By 1974, high trust had dropped to 36% and has remained below 50% ever since.”); Ethics in Govern­ment Act of 1978, 5 U.S.C. app. 4 §§ 101–505; Civil Service Reform Act of 1978, 5 U.S.C. §§ 1101–7703. These laws sought to bolster public trust by creat­ing a more profes­sion­al­ized and ethic­ally account­able govern­ment. foot­note115_12uzrg5 115 Mark Stencel, “Water­gate Reforms,” Wash­ing­ton Post, June 13, 1997, https://www.wash­ing­ton­post.com/wp-srv/national/longterm/water­gate/legacy.htm; Robert Vaughn, “Civil Service Reform and the Rule of Law,” Federal Circuit Bar Journal 8 (1999): 2 (“The [Civil Service] Reform Act sought to protect federal employ­ees and by so doing to restrain the abil­ity of govern­ment offi­cials to abuse govern­mental power.”).

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. foot­note116_q299b42 116 Preet Bhar­ara, Christine Todd Whit­man, et al., Propos­als for Reform, National Task Force on Rule of Law & Demo­cracy, 2018, 4, avail­able at https://www.bren­nan­cen­ter.org/sites/default/files/public­a­tions/TaskFor­ceRe­port_2018_09_.pdf.

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. foot­note117_ih00exe 117 See, e.g., Marc Lacey and Raymond Bonner, “A Mad Scramble by Donors for Plum Ambas­sad­or­ships,” New York Times, Mar. 17, 2001, https://www.nytimes.com/2001/03/17/world/a-mad-scramble-by-donors-for-plum-ambas­sad­or­ships.html; Lori McCue, “Trump Appoints Mike Hucka­bee, Jon Voight to the Kennedy Center Board,” DCist, Mar. 27, 2019, https://dcist.com/story/19/03/27/trump-appoints-mike-hucka­bee-jon-voight-to-the-kennedy-center-board/. Pres­id­ents have under­stood that certain crit­ical posi­tions require special­ized skills or expert­ise or should be filled by people without partisan affil­i­ation. foot­note118_0kh2r61 118 See Peter Overby, “Trump’s Choice for Ethics Chief Wins Praise as ‘Some­body Who Plays It by the Book,” NPR, Feb. 9, 2018, https://www.npr.org/2018/02/09/584394977/trumps-choice-for-new-ethics-chief-wins-praise-some­body-who-plays-it-by-the-book; Rick Weiss, “NIH’s Varmus to Resign at End of Year,” Wash­ing­ton Post, Oct. 8, 1999, http://www.wash­ing­ton­post.com/wp-srv/WPcap/1999–10/08/047r-100899-idx.html (direct­or­ship of NIH considered nonpar­tisan posi­tion); “Trump Retains Collins as NIH Director,” Science, June 6, 2017, https://www.sciencemag.org/news/2017/06/trump-retains-collins-nih-director; Danny Vinik and Andrew Restuc­cia, “Lead­ing Trump Census Pick Causes Alarm,” Politico, Nov. 21, 2017, https://www.politico.com/story/2017/11/21/trump-census-pick-causes-alarm-252571 (noting long-stand­ing preced­ent of choos­ing a nonpolit­ical govern­ment offi­cial as deputy director of the U.S. Census Bureau). Certainly, friends and polit­ical allies of the pres­id­ent who are highly qual­i­fied for the posi­tions they hold are an asset to an admin­is­tra­tion, as are all highly qual­i­fied person­nel.

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. foot­note119_d4e46ca 119 Spen­cer S. Hsu and Susan B. Glasser, “FEMA Director Singled Out by Response Crit­ics,” Wash­ing­ton Post, Sept. 6, 2005, http://www.wash­ing­ton­post.com/wp-dyn/content/article/2005/09/05/AR2005090501590.html. 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. foot­note120_1fcjirp 120 At the time, FEMA’s top three lead­ers had ties to Pres­id­ent Bush’s 2000 campaign or to the White House advance oper­a­tion but little actual emer­gency manage­ment exper­i­ence. Spen­cer S. Hsu, “Lead­ers Lack­ing Disaster Exper­i­ence,” Wash­ing­ton Post, Sept. 9, 2005, http://www.wash­ing­ton­post.com/wp-dyn/content/article/2005/09/08/AR2005090802165.html.

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. foot­note121_cyw0ohc 121 Juliet Eilperin, “Obama Ambas­sador Nomin­ees Prompt an Uproar with Bungled Answers, Lack of Ties,” Wash­ing­ton Post, Feb. 14, 2014, https://www.wash­ing­ton­post.com/polit­ics/obama-ambas­sador-nomin­ees-prompt-an-uproar-with-bungled-answers-lack-of-ties/2014/02/14/20fb0fe4–94b2–11e3–83b9–1f024193b­b84_story.html. 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. foot­note122_st0hee1 122 Aaron Blake, “No, Obama’s Ambas­sador Picks Aren’t Qual­i­fied. But That’s Noth­ing New.” Wash­ing­ton Post, Feb. 14, 2014, https://www.wash­ing­ton­post.com/news/the-fix/wp/2014/02/14/no-obamas-ambas­sador-picks-arent-qual­i­fied-but-thats-noth­ing-new/ (noting that many past pres­id­ents have appoin­ted their polit­ical allies to ambas­sad­or­ships in stable, developed nations). Pres­id­ent Trump has gone further, appoint­ing more ambas­sad­ors based on personal connec­tions or polit­ical patron­age than any pres­id­ent in the past 40 years. foot­note123_lgp0zqe 123 Ryan Scov­ille, “Unqual­i­fied Ambas­sad­ors,” Duke Law Journal (forth­com­ing, Feb. 2019): 15, avail­able at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3333988.

Science Under Siege: Environment

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. foot­note124_1u88955 124 Andrew Buncombe, “Rick Perry: Energy Secret­ary Nominee Didn’t Know His Job Would Involve Managing Nuclear Weapon Stock­pile,” Inde­pend­ent, Jan. 19, 2017, https://www.inde­pend­ent.co.uk/news/world/amer­icas/rick-perry-enerhy-secret­ary-donald-trump-nominee-senate-hear­ing-not-know-nuclear-weapon-stock­pile-a7535876.html; Brad Plumer, “Rick Perry Once Wanted to Abol­ish the Energy Depart­ment. Trump Picked Him to Run It.” Vox, Dec. 13, 2016, https://www.vox.com/energy-and-envir­on­ment/2016/12/13/13936210/rick-perry-energy-depart­ment-trump. 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. foot­note125_7n1ee1r 125 Trip Gabriel, “Trump Chooses Ben Carson to Lead HUD,” New York Times, Dec. 5, 2016, https://www.nytimes.com/2016/12/05/us/polit­ics/ben-carson-hous­ing-urban-devel­op­ment-trump.html.

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. foot­note126_x3amoqz 126 See Lorraine Woellert, “Trump Party Plan­ner Promoted at HUD after Carson’s Troubled Tour,” Politico, June 26, 2017, https://www.politico.com/story/2017/06/26/lynne-patton-trump-party-plan­ner-new-york-federal-hous­ing-239963; Andrew Restuc­cia, “Husband of Former Trump House­hold Aide Scores Govern­ment Job,” Politico, Feb. 2, 2018, https://www.politico.com/story/2018/02/02/trump-house­hold-aide-govern­ment-job-386727.

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. foot­note127_382pow3 127 “DOE and EPA Team Announced by Obama,” Thorium Energy World, Aug. 4, 2013, http://www.thori­umen­ergy­world.com/news/doe-and-epa-team-announced-by-obama; Paul Guin­nessy, “Nobel Prize Winner to Head Depart­ment of Energy,” Phys­ics Today, Dec. 11, 2008, https://phys­ic­stoday.scit­a­tion.org/do/10.1063/PT.4.1190/full/. 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. foot­note128_hxq775m 128 Blake, “Obama’s Ambas­sador Picks. 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. foot­note129_48p2x5e 129 The legis­lat­ive history of the anti-nepot­ism stat­ute clari­fies that it would extend to “all persons, includ­ing the Pres­id­ent, Vice Pres­id­ent, and Members of Congress, having author­ity to make appoint­ments of civil­ian officers or employ­ees in the Federal service.” The Federal Anti-Nepot­ism Stat­ute. Uphold­ing the stat­ute against a consti­tu­tional chal­lenge, a federal court explained that the breadth of the law — expli­citly apply­ing to the pres­id­ent, members of Congress, and the judi­ciary — was not a vulner­ab­il­ity because it applies to only “specified kinship rela­tion­ships.” Lee v. Blount, 345 F. Supp. 585, 588 (N.D. Cal. 1972). 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. foot­note130_ln2x­grg 130 John M. Harmon, acting assist­ant attor­ney general, Office of Legal Coun­sel, “Possible Appoint­ment of Mrs. Carter as Chair­man of the Commis­sion on Mental Health” (offi­cial memor­andum, Wash­ing­ton, D.C.: Depart­ment of Justice, 1977), avail­able at https://www.justice.gov/olc/page/file/1009451/down­load; John M. Harmon, acting assist­ant attor­ney general, Office of Legal Coun­sel, “Appoint­ment of Pres­id­ent’s Son to Posi­tion in the White House Office” (offi­cial memor­andum, Wash­ing­ton, D.C.: Depart­ment of Justice, 1977), avail­able at https://static.politico.com/22/c2/624cf595485191d6­ab­c9b0810665/olcopin­ion.pdf. Pres­id­ent Reagan considered appoint­ing a family member to the Pres­id­en­tial Advis­ory Commit­tee on Private Sector Initi­at­ives. foot­note131_099ue3u 131 Robert B. Shanks, deputy assist­ant attor­ney general, Office of Legal Coun­sel, “Appoint­ment of Member of Pres­id­ent’s Family to Pres­id­en­tial Advis­ory Commit­tee on Private Sector Initi­at­ives” (offi­cial memor­andum, Wash­ing­ton, D.C.: Depart­ment of Justice, 1983). And more recently, in 2009, Pres­id­ent Obama considered appoint­ing his brother-in-law and his half-sister to two advis­ory commis­sions. foot­note132_21qm­c6l 132 David J. Barron, acting assist­ant attor­ney general, Office of Legal Coun­sel, “Applic­a­tion of 5 U.S.C. § 3110 to Two Proposed Appoint­ments by the Pres­id­ent to the Advis­ory Commit­tees” (offi­cial memor­andum, Wash­ing­ton, D.C.: Depart­ment of Justice, 2009). 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. foot­note133_58xja80 133 Harmon, “Possible Appoint­ment of Mrs. Carter”; Harmon, “Appoint­ment of Pres­id­ent’s Son”; Shanks, “Appoint­ment of Pres­id­ent’s Family”; Barron, “Applic­a­tion of 5 U.S.C. § 3110.” 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. foot­note134_xazp7ky 134 Asso­ci­ation of Amer­ican Phys­i­cians and Surgeons, Inc. v. Clin­ton, 997 F.2d 898, 904–05 (D.C. Cir. 1993) (“We see no reason why a Pres­id­ent could not use his or her spouse to carry out a task that the Pres­id­ent might deleg­ate to one of his White House aides. It is reas­on­able, there­fore, to construe [the stat­ute in ques­tion] as treat­ing the pres­id­en­tial spouse as a de facto officer or employee.”). See also In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 922 (8th Cir. 1997) (assum­ing for the sake of decision that the first lady enjoyed offi­cial status as a repres­ent­at­ive of the White House).

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. foot­note135_0kth1te 135 Applic­a­tion of the Anti-Nepot­ism Stat­ute to a Pres­id­en­tial Appoint­ment in the White House Office, 41 Op. O.L.C. 1 (2017). See also Norman Eisen and Richard W. Painter, “Can Donald Trump Hire Ivanka Trump?” New York Times, Dec. 29, 2016, https://www.nytimes.com/2016/12/29/opin­ion/can-donald-trump-hire-ivanka-trump.html; Aaron Blake, “Donald Trump’s ‘First Attempt to Ignore the Law,’” Wash­ing­ton Post, Jan. 10, 2017, https://www.wash­ing­ton­post.com/news/the-fix/wp/2017/01/10/donald-trumps-first-attempt-to-ignore-the-law/; “Nepot­ism and Conflicts of Interest – Jared Kush­ner and Ivanka Trump,” Citizens for Respons­ib­il­ity and Ethics in Wash­ing­ton, accessed Mar. 27, 2019, https://www.citizens­for­e­th­ics.org/nepot­ism-conflicts-interest-jared-kush­ner-ivanka-trump/. 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. foot­note136_ndeez4k 136 Reports indic­ate that Pres­id­ent Trump’s son-in-law, Jared Kush­ner, has been assigned or taken on respons­ib­il­ity for solv­ing the opioid crisis, bring­ing peace to the Middle East, reform­ing the crim­inal justice system, managing diplo­matic rela­tions with key coun­tries (includ­ing Saudi Arabia, Mexico, and China), improv­ing the govern­ment’s use of data and tech­no­logy, and reform­ing veter­ans’ care. He previ­ously ran his family’s real estate company, cofoun­ded an online invest­ment plat­form, and purchased a media publish­ing company. “Jared Kush­ner: The Son-in-Law with Donald Trump’s Ear,” BBC, Oct. 10, 2018, https://www.bbc.com/news/world-us-canada-37986429. 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. foot­note137_xckoyo3 137 See David Smith, “Ivanka Trump Under Fire After Taking Seat Among World Lead­ers at G20,” The Guard­ian, July 8, 2017, https://www.theguard­ian.com/us-news/2017/jul/08/ivanka-trump-g20-world-lead­ers-meet­ing; Choe Sang-Hun, “Ivanka Trump, in South Korea, Calls for Pres­sure on the North,” New York Times, Feb. 23, 2018, https://www.nytimes.com/2018/02/23/world/asia/ivanka-trump-south-korea.html.

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. foot­note138_6aohlr1 138 See “What Is the PDB?” Office of the Director of National Intel­li­gence, accessed Apr. 22, 2019, https://www.intel­li­gence.gov/publics-daily-brief/pres­id­ents-daily-brief; Mark Hosen­ball and Warren Strobel, “Kush­ner Loses Access to Top Intel­li­gence Brief­ing: Sources,” Reuters, Feb. 27, 2018, https://www.reuters.com/article/us-usa-trump-kush­ner/kush­ner-loses-access-to-top-intel­li­gence-brief­ing-sources-idUSKCN1G­B2VE. 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. foot­note139_eq4mu3o 139 Blake, “Donald Trump’s ‘First Attempt’.” 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, foot­note140_1916hxm 140 The OLC’s conclu­sion was largely based on a separ­ate stat­ute — 3 U.S.C. § 105 — that it inter­preted as super­sed­ing the anti-nepot­ism stat­ute. Applic­a­tion of the Anti-Nepot­ism Stat­ute. 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. foot­note141_u5xx­wh7 141 See 5 U.S.C. § 3110; Alan Dershow­itz, “Does Anti-Nepot­ism Law Bar Kush­ner Appoint­ment?” News­max, Jan. 11, 2017, https://www.news­max.com/alander­show­itz/jfk-rfk/2017/01/11/id/767981/. 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. foot­note142_rhl2qky 142 Laura Jarrett and David Shor­tell, “DOJ Releases Slew of Memos Lobby­ing Against Pres­id­en­tial Appoint­ments for Family,” CNN, Oct. 3, 2017, https://www.cnn.com/2017/10/03/polit­ics/doj-old-anti-nepot­ism-olc-memos/index.html. 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. foot­note143_i3c777b 143 So as not to disturb current staff­ing of exec­ut­ive branch projects and programs, the legis­la­tion could apply prospect­ively. 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. foot­note144_4xnr­b1b 144 See 5 U.S.C. § 7321 et seq.; 18 U.S.C. § 208; 5 C.F.R. § 2634; 45 C.F.R. § 73.735–904. See Ex parte Curtis, 106 U.S. 371, 373 (1882) (“The evid­ent purpose of Congress in all this class of enact­ments [regard­ing conduct of exec­ut­ive branch employ­ees] has been to promote effi­ciency and integ­rity in the discharge of offi­cial duties, and to main­tain proper discip­line in the public service. Clearly such a purpose is within the just scope of legis­lat­ive power, and it is not easy to see why the act now under consid­er­a­tion does not come fairly within the legit­im­ate means to such an end.”); United Public Work­ers of Amer­ica v. Mitchell, 330 U.S. 75, 99 (1947) (“Congress and the Pres­id­ent are respons­ible for an effi­cient public service. If, in their judg­ment, effi­ciency may be best obtained by prohib­it­ing active parti­cip­a­tion by clas­si­fied employ­ees in polit­ics as party officers or work­ers, we see no consti­tu­tional objec­tion. . . . To declare that the present supposed evils of polit­ical activ­ity are beyond the power of Congress to redress would leave the nation impot­ent to deal with what many sincere men believe is a mater­ial threat to the demo­cratic system.”).

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) foot­note145_ztwcpdp 145 A useful frame put forth by the White House Trans­ition Project (based on the National Commis­sion to Reform the Federal Appoint­ments Process) is that of the “crit­ical posi­tion” — one which is required to main­tain national secur­ity and import­ant govern­ment func­tions. Crit­ical posi­tions include “all the lead­er­ship in govern­ment agen­cies,” to include national secur­ity, economic manage­ment, crit­ical manage­ment posi­tions, and posi­tions that are key to the manage­ment agenda. “Appoint­ments,” White House Trans­ition Project. 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. foot­note146_oq5f79b 146 Congress gener­ally has author­ity to impose stat­utory qual­i­fic­a­tions on exec­ut­ive branch posi­tions, but the bound­ar­ies of the author­ity have not been conclus­ively drawn. See Henry B. Hogue, Stat­utory Qual­i­fic­a­tions for Exec­ut­ive Branch Posi­tions, CRS Report No. RL33886 (Wash­ing­ton, D.C.: Congres­sional Research Service, 2015), https://fas.org/sgp/crs/misc/RL33886.pdf. See recom­mend­a­tions below. 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. foot­note147_qf8p2y8 147 Depart­ment of Home­land Secur­ity Appro­pri­ations Act, 2007, Pub. L. No. 109–295, 120 Stat. 1355 (2006). 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. foot­note148_y599pk4 148 See, e.g., Consol­id­ated and Further Continu­ing Appro­pri­ations Act, 2015, Pub. L. No. 113–235, Divi­sion E, §704, 128 Stat. 2380 (2014). See also Henry B. Hogue, Stat­utory Qual­i­fic­a­tions.

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. foot­note149_oic9lgn 149 See, e.g., Inspector General Act of 1978, 5 U.S.C. app. § 3(a) (1978) (“There shall be at the head of each Office an Inspector General who shall be appoin­ted by the Pres­id­ent, by and with the advice and consent of the Senate, without regard to polit­ical affil­i­ation and solely on the basis of integ­rity and demon­strated abil­ity . . . .”); 42 U.S.C. § 2000e-4(a) (2012) (mandat­ing that the EEOC “be composed of five members, not more than three of whom shall be members of the same polit­ical party”); Brian D. Fein­stein and Daniel J. Hemel, “Partisan Balance with Bite,” Columbia Law Review 118 (2018): 31 n. 83 (list­ing agen­cies with partisan balance require­ments). 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.” foot­note150_ztwkzp6 150 19 U.S.C. § 2171. 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. foot­note151_pqioqzh 151 10 U.S.C. § 113(a). 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. foot­note152_56j9ywq 152 See “James N. Mattis,” Depart­ment of Defense, accessed May 7, 2018, https://www.defense.gov/About/Biograph­ies/Biography-View/Article/1055835/james-mattis/.

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. foot­note153_qsjala8 153 A secur­ity clear­ance repres­ents “a determ­in­a­tion that an indi­vidual — whether a federal employee or a private contractor perform­ing work for the govern­ment — is eligible for access to clas­si­fied national secur­ity inform­a­tion.” Except for consti­tu­tional officers (pres­id­ent, vice pres­id­ent, members of Congress, and federal judges), no one can access clas­si­fied inform­a­tion without a secur­ity clear­ance and a “need to know.” Michelle D. Christensen, Secur­ity Clear­ance Process: Answers to Frequently Asked Ques­tions, CRS Report No. R43216 (Wash­ing­ton, D.C.: Congres­sional Research Service, 2016), 1, 4, https://fas.org/sgp/crs/secrecy/R43216.pdf.   Reports and testi­mony indic­ate that at least 25 clear­ance decisions were over­ruled in the first two years of the Trump admin­is­tra­tion. Rachael Bade and Tom Hamburger, “White House Whis­tleblower Says 25 Secur­ity Clear­ance Deni­als Were Reversed During Trump Admin­is­tra­tion,” Wash­ing­ton Post, Apr. 1, 2019, https://wapo.st/2U7eW4c. In the previ­ous three years, there was only one incid­ent of similar over­rul­ing of secur­ity clear­ance determ­in­a­tions. Zack Ford and Ryan Koro­nowski, “Ex-White House Staffers Say Trump’s Decision to Over­rule Secur­ity Clear­ance Deni­als Is Unpre­ced­en­ted,” Think­Pro­gresss, Apr. 4, 2019, https://think­pro­gress.org/white-house-decision-over­rule-so-many-secur­ity-clear­ances-unpre­ced­en­ted-8a45f4b0598c/.

 

A signi­fic­ant number of senior White House staff have been permit­ted to oper­ate with interim secur­ity clear­ances for exten­ded peri­ods of time. foot­note154_ahru5sg 154 Jim Sciutto, Gloria Borger, and Zachary Cohen, “Dozens of Trump Offi­cials Still Lack Full Secur­ity Clear­ance,” CNN, Feb. 9, 2018, https://www.cnn.com/2018/02/09/polit­ics/trump-offi­cials-pending-secur­ity-clear­ances/index.html. 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. foot­note155_438w­fcw 155 Eliana John­son, “Kelly Knew Before Abuse Reports That Porter Would Be Denied Secur­ity Clear­ance,” Politico, Feb. 8, 2018, https://www.politico.com/story/2018/02/08/john-kelly-rob-porter-secur­ity-clear­ance-400987; Brian Naylor and Domen­ico Montanaro, “White House Secur­ity Clear­ance Trouble Shines Light on ‘High Risk’ Back­log Prob­lem,” NPR, Feb. 10, 2018, https://www.npr.org/2018/02/10/584375510/white-house-secur­ity-clear­ance-trouble-shines-light-on-high-risk-back­log-prob­lem; Kara Scan­nell, “Back­ground Check Chief Has ‘Never Seen’ Mistakes and Omis­sions at Level of Jared Kush­ner Forms,” CNN, Feb. 13, 2018, https://www.cnn.com/2017/10/12/polit­ics/jared-kush­ner-back­ground-check-form/index.html. And nomin­ees to cabinet and other senior posi­tions have been put forward for Senate confirm­a­tion without the comple­tion of their back­ground invest­ig­a­tions. foot­note156_wha1gep 156 Jennifer Stein­hauer and Eric Licht­blau, “Senate Confirm­a­tion Hear­ings to Begin Without All Back­ground Checks,” New York Times, Jan. 7, 2017, https://www.nytimes.com/2017/01/07/us/polit­ics/senate-confirm­a­tion-hear­ings-back­ground-checks.html; O’Keefe and Sulli­van, “Ethics Offi­cial Warns”; The FBI and the Senate Confirm­a­tion Process, Center for Economic and Policy Research, avail­able at http://cepr.net/images/docu­ments/fbi-and-senate-confirm­a­tion-process.pdf.

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. foot­note157_b9ui3n6 157 Alana Abramson, “Rob Port­er’s Resig­na­tion Raises Ques­tions About White House Vetting,” Time, Feb. 9, 2018, http://time.com/5139427/rob-porter-domestic-viol­ence-secur­ity-clear­ance/. He resigned when alleg­a­tions of domestic abuse — with accom­pa­ny­ing docu­ment­ary evid­ence — became public. foot­note158_jnnbcpq 158 Ibid. 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. foot­note159_21n5tq6 159 Sciutto et al., “Dozens of Trump Offi­cials.” 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. foot­note160_9o7dzen 160 See Laura Strick­ler, Ken Dilanian, and Peter Alex­an­der, “Offi­cials Rejec­ted Jared Kush­ner for Top Secret Secur­ity Clear­ance, but Were Over­ruled,” NBC News, Jan. 24, 2019, https://www.nbcnews.com/polit­ics/donald-trump/offi­cials-rejec­ted-jared-kush­ner-top-secret-secur­ity-clear­ance-were-over­ruled-n962221; Matt Apuzzo, “Jared Kush­ner Gets Secur­ity Clear­ance, Ending Swirl of Ques­tions over Delay,” New York Times, May 23, 2018, https://www.nytimes.com/2018/05/23/us/polit­ics/jared-kush­ner-secur­ity-clear­ance.html. Kush­ner’s top secret secur­ity clear­ance was reportedly rejec­ted by two White House secur­ity special­ists, but their super­visor over­ruled them and approved the clear­ance. foot­note161_yq5snag 161 Strick­ler et al., “Offi­cials Rejec­ted Jared Kush­ner.” 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. foot­note162_bnugyz6 162 Ibid.

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, foot­note163_uhct­nc6 163 In Depart­ment of the Navy v. Egan, the Supreme Court stated in dicta that “[the pres­id­ent’s] author­ity to clas­sify and control access to inform­a­tion bear­ing on national secur­ity and to determ­ine whether an indi­vidual is suffi­ciently trust­worthy to occupy a posi­tion in the Exec­ut­ive Branch that will give that person access to such inform­a­tion flows primar­ily from [the] consti­tu­tional invest­ment of power in the Pres­id­ent and exists quite apart from any expli­cit congres­sional grant.” 484 U.S. 518, 527 (1988) (citing Cafet­eria Work­ers v. McEl­roy, 367 U.S. 886, 890 (1961)). The Court further explained that the govern­ment has a compel­ling interest in with­hold­ing national secur­ity inform­a­tion from unau­thor­ized persons and that “[t]he author­ity to protect such inform­a­tion falls on the Pres­id­ent as head of the Exec­ut­ive Branch and as Commander in Chief.” Ibid. 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. foot­note164_mtknx4c 164 See John T. Bennett, “Kelly Admits Missteps with White House Aides’ Clear­ances,” Roll Call, Feb. 16, 2018, https://www.rollcall.com/news/polit­ics/kelly-admits-missteps-white-house-aides-clear­ances; “Rob Port­er’s Lack of Full Secur­ity Clear­ance Raises Concerns About Back­log,” CBS, Feb. 13, 2018, https://www.cbsnews.com/news/back­log-white-house-secur­ity-clear­ance-prob­lems-rob-porter/. It has a point. As of early 2018, approx­im­ately 700,000 people across the govern­ment were wait­ing to get their clear­ances approved or renewed. foot­note165_01fgym0 165 Brian Naylor, “Agency Conduct­ing Govern­ment Back­ground Checks Has Back­log of 700,000,” NPR, Feb. 9, 2018, https://www.npr.org/2018/02/09/584640379/agency-conduct­ing-govern­ment-back­ground-checks-has-back­log-of-700–000. 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. foot­note166_rqj3qdz 166 The Obama admin­is­tra­tion created the National Bureau of Back­ground Invest­ig­a­tions (NBIB) in 2016. See Exec. Order No. 13,764, 3 C.F.R. 243 (2017). NBIB created a divi­sion to over­see and monitor the contractor work­force perform­ing back­ground invest­ig­a­tions, added a new finan­cial office to over­see the agency’s budget, pricing, and fund­ing models, and looked for ways to stream­line and modern­ize the back­ground invest­ig­a­tion process, for instance by explor­ing the use of arti­fi­cial intel­li­gence. See Nicole Ogrysko, “NBIB Has Planned Improve­ments to Secur­ity Clear­ance Process, but DOD Trans­fer May Complic­ate Them,” Federal News Network, Dec. 28, 2017, https://feder­al­news­net­work.com/work­force/2017/12/nbib-has-planned-improve­ments-to-secur­ity-clear­ance-process-but-dod-trans­fer-may-complic­ate-them/; Nicole Ogrysko, “As NBIB Shrinks the Secur­ity Clear­ance Back­log, Other Person­nel Vetting Agen­cies Feel the Pres­sure,” Federal News Network, Mar. 13, 2019, https://feder­al­news­net­work.com/other-dod-agen­cies/2019/03/as-nbib-shrinks-the-secur­ity-clear­ance-back­log-other-person­nel-vetting-agen­cies-feel-the-pres­sure/.   The Govern­ment Account­ab­il­ity Office made addi­tional recom­mend­a­tions to improve the person­nel secur­ity clear­ance process. United States Govern­ment Account­ab­il­ity Office, Person­nel Secur­ity Clear­ances: Addi­tional Actions Needed to Ensure Qual­ity, Address Timeli­ness, and Reduce Invest­ig­a­tion Back­log, GAO-18–29 (Wash­ing­ton, D.C.: Govern­ment Account­ab­il­ity Office, 2017), https://www.gao.gov/assets/690/688918.pdf (propos­ing that Congress rein­state a require­ment for clear­ance timeli­ness report­ing and six addi­tional recom­mend­a­tions, includ­ing that a mile­stone be set for estab­lish­ing meas­ures for invest­ig­a­tion qual­ity, and that NBIB develop a plan to reduce the back­log and estab­lish goals for increas­ing total invest­ig­ator capa­city).   Plans are under­way to trans­fer the govern­ment-wide secur­ity clear­ance program from NBIB to the Depart­ment of Defense (DOD), which served as the govern­ment-wide secur­ity clear­ance provider until 2005. Nicole Ogrysko, “Trump Admin­is­tra­tion Takes Another Baby Step to Advance OPM-GSA Merger,” Federal News Network, July 30, 2019, https://feder­al­news­net­work.com/reor­gan­iz­a­tion/2019/07/trump-admin­is­tra­tion-takes-another-baby-step-to-advance-opm-gsa-merger/; Nicole Ogrysko, “Trump Admin­is­tra­tion Consid­er­ing Major Changes to Secur­ity Clear­ance Program,” Federal News Network, Apr. 9, 2018, https://feder­al­news­net­work.com/work­force/2018/04/trump-admin­is­tra­tion-consid­er­ing-major-changes-to-secur­ity-clear­ance-program/. Congress passed legis­la­tion direct­ing the DOD to trans­fer respons­ib­il­ity for conduct­ing back­ground invest­ig­a­tions on DOD person­nel from NBIB to DOD. See 2017 National Defense Author­iz­a­tion Act, Pub. L. No. 114–328, § 951, 130 Stat. 2371–74 (2016); 2018 National Defense Author­iz­a­tion Act, Pub. L. No. 115–91, § 925, 131 Stat. 1526–32 (2017).

 

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. foot­note167_ukkoozi 167 The secur­ity clear­ance process is currently governed primar­ily by the Coun­ter­in­tel­li­gence and Secur­ity Enhance­ments Act of 1994. 50 U.S.C. § 3161. The proced­ures estab­lished by the pres­id­ent are bind­ing on all depart­ments, agen­cies, and offices of the exec­ut­ive branch. 50 U.S.C. § 3161(a). An exec­ut­ive order in 1995 set out most of the secur­ity clear­ance frame­work in use today. Exec. Order No. 12,968, 3 C.F.R. 391 (1995). See also Eliza­beth Goitein and David M. Shapiro, Redu­cing Over­clas­si­fic­a­tion Through Account­ab­il­ity, Bren­nan Center for Justice, 2011, 1, avail­able at http://www.bren­nan­cen­ter.org/sites/default/files/legacy/Justice/LNS/Bren­nan_Over­clas­si­fic­a­tion_Final.pdf; Greg Cullison, “Are Secur­ity Clear­ances Useless?” Big Sky, https://www.bigsky­as­so­ci­ates.com/blog/how-did-we-get-here. 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. foot­note168_br4z0du 168 50 U.S.C. § 3161(a). Except as permit­ted by the pres­id­ent, no employee can be given access to clas­si­fied inform­a­tion unless a back­ground invest­ig­a­tion determ­ines that access is consist­ent with national secur­ity. The proced­ures must estab­lish uniform require­ments regard­ing the scope and frequency of back­ground invest­ig­a­tions. Employ­ees must allow an author­ized invest­ig­at­ive agency access to their relev­ant finan­cial records, consumer reports, travel records, and computers used in govern­ment duties as a condi­tion of access to clas­si­fied inform­a­tion. Employ­ees who require access to “partic­u­larly sens­it­ive clas­si­fied inform­a­tion,” as determ­ined by the pres­id­ent, must permit access to inform­a­tion about their finan­cial condi­tion and foreign travel. And there must be uniform stand­ards that provide reas­ons for deny­ing or termin­at­ing a clear­ance and that give the employee an oppor­tun­ity to respond before final action occurs. Ibid. The stat­ute permits agen­cies to act through proced­ures that are incon­sist­ent with the stat­utory stand­ards “pursu­ant to other law or [e]xecut­ive order to deny or termin­ate access to clas­si­fied inform­a­tion,” but only if the agency head determ­ines that the stat­utory stand­ards cannot be followed “in a manner that is consist­ent with the national secur­ity.” Ibid., § 3161(b).

Science Under Siege: Financial System

Follow­ing the revel­a­tions about Porter, Pres­id­ent Trump’s then chief of staff, John Kelly acknow­ledged the need for reform. foot­note169_fzqm­fq4 169 John F. Kelly, chief of staff, “Improve­ments to the Clear­ance Process” (offi­cial memor­andum: Wash­ing­ton, D.C., White House, 2018), avail­able at https://apps.wash­ing­ton­post.com/g/docu­ments/polit­ics/read-kellys-memo-of-proposed-changes-to-white-house-secur­ity-clear­ance-process/2777/. In fact, as an initial step, Kelly suspen­ded the issu­ance of interim clear­ances absent extraordin­ary circum­stances and his expli­cit approval, foot­note170_7lxuusj 170 Ibid., 2. and suppor­ted the revoc­a­tion of long-term interim clear­ances. foot­note171_honhw9m 171 Kelly’s memor­andum direc­ted other senior staff to “care­fully consider[] and imple­ment[] as appro­pri­ate” the discon­tinu­ation of long-term interim clear­ances that had been pending for approx­im­ately eight months or more. Ibid., 4. 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. foot­note172_o2y2ier 172 Ibid.

>> 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, foot­note173_xf85e7f 173 Egan, 484 U.S. at 527. it has also sugges­ted that Congress may regu­late that author­ity, foot­note174_sh77p3i 174 In Egan, the Court noted in dicta that “unless Congress specific­ally has provided other­wise, courts tradi­tion­ally have been reluct­ant to intrude upon the author­ity of the Exec­ut­ive in milit­ary and national secur­ity affairs.” 484 U.S. at 530 (emphasis added). And in Envir­on­mental Protec­tion Agency v. Mink, the Court stated that, for the purpose of determ­in­ing what national secur­ity inform­a­tion is exempt from the Free­dom of Inform­a­tion Act, “Congress could certainly [provide] that the Exec­ut­ive Branch adopt new [clas­si­fic­a­tion] proced­ures or [estab­lish] its own proced­ures — subject only to whatever limit­a­tions the Exec­ut­ive priv­ilege may be held to impose upon such congres­sional order­ing.” 410 U.S. 73, 84 (1973). and Congress has imposed restric­tions on both the interim foot­note175_8zeca7k 175 See 1964 Amend­ments to the Internal Secur­ity Act of 1950, 50 U.S.C. § 832 (prohib­it­ing employ­ment at the National Secur­ity Agency (NSA) without being cleared for access to clas­si­fied inform­a­tion and permit­ting the secret­ary of defense to grant access to clas­si­fied inform­a­tion on a tempor­ary basis, pending comple­tion of an invest­ig­a­tion, in certain circum­stances: during a period of war, national disaster, or “in excep­tional cases in which the Secret­ary . . . makes a determ­in­a­tion in writ­ing that his action is neces­sary or advis­able in the national interest”). and perman­ent foot­note176_gniumuc 176 See, e.g., Coun­ter­in­tel­li­gence and Secur­ity Enhance­ment Act of 1994, 50 U.S.C. § 3161; Bond Amend­ment, 50 U.S.C. § 3343. 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. foot­note177_j7z1­yar 177 See, e.g., Coun­ter­in­tel­li­gence and Secur­ity Enhance­ment Act of 1994, 50 U.S.C. § 3161(a) (direct­ing the pres­id­ent to estab­lish proced­ures govern­ing access to clas­si­fied mater­ial and requir­ing certain minimum due process stand­ards); 1964 Amend­ments to the Internal Secur­ity Act of 1950, 50 U.S.C. § 831–835 (direct­ing the secret­ary of defense to prescribe regu­la­tions regard­ing access to clas­si­fic­a­tion for NSA employ­ees); Bond Amend­ment, 50 U.S.C. § 3343(c)(1) (prohib­it­ing heads of agen­cies from grant­ing secur­ity clear­ances for access to certain categor­ies of inform­a­tion if the employee meets certain disqual­i­fy­ing criteria); Intel­li­gence and Terror­ism Preven­tion Act of 2004, Pub. L. No. 108–458, § 3001, 118 Stat. 3638 (direct­ing the pres­id­ent to select a single entity to over­see secur­ity clear­ance invest­ig­a­tions and develop uniform policies); Securely Exped­it­ing Clear­ances Through Report­ing Trans­par­ency (SECRET) Act of 2018, Pub. L. No. 115–173 (requir­ing submis­sion of reports to Congress about back­log of secur­ity clear­ance invest­ig­a­tions and process for secur­ity clear­ance invest­ig­a­tions for person­nel in the Exec­ut­ive Office of the Pres­id­ent and the White House Office and recom­mend­a­tions to improve govern­ment-wide continu­ous eval­u­ation programs, clas­si­fied inform­a­tion requests, and process for invest­ig­at­ing secur­ity clear­ances). 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. foot­note178_ukul­hil 178 Common­sense Legis­la­tion Ensur­ing Account­ab­il­ity by Report­ing Access of Non-Cleared Employ­ees to Secrets (CLEAR­ANCES) Act, H.R. 5019, 115 Cong. (2018). 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.

End Notes

IV. Checks and Balances to Safeguard Democracy and Rule of Law

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. foot­note1_lbcp3zl 1 See Peter M. Shane, Madis­on’s Night­mare: How Exec­ut­ive Power Threatens Amer­ican Demo­cracy (Chicago: Univer­sity of Chicago Press, 2009): 1–21. The Consti­tu­tion estab­lishes three coequal branches, foot­note2_43eldfw 2 The Feder­al­ist No. 51 (James Madison) (envi­sion­ing the three branches of govern­ment as “keep­ing each other in their proper places,” which is “essen­tial to the preser­va­tion of liberty”). inten­ded to blunt arbit­rary power and the poten­tial for tyranny. foot­note3_kn2wsys 3 The Feder­al­ist No. 47 (James Madison) (“The accu­mu­la­tion of all powers, legis­lat­ive, exec­ut­ive, and judi­ciary, in the same hands . . . may justly be pronounced the very defin­i­tion of tyranny.”). This system is threatened by both internal and external forces: Congress’s abil­ity to appro­pri­ately check abuse has atrophied, foot­note4_2jsal6j 4 See Norman Ornstein and Thomas E. Mann, “The Broken Branch: How Congress Is Fail­ing Amer­ica and How to Get It Back on Track,” Brook­ings Insti­tu­tion, June 27, 2006, https://www.brook­ings.edu/articles/the-broken-branch-how-congress-is-fail­ing-amer­ica-and-how-to-get-it-back-on-track/. the inde­pend­ence of the judi­ciary has been called into ques­tion, foot­note5_t22w0fb 5 See Johanna Kalb and Alicia Bannon, “Courts Under Pres­sure: Judi­cial Inde­pend­ence and Rule of Law in the Trump Era,” New York Univer­sity Law Review 93 (2018). and the integ­rity of the entire polit­ical system is jeop­ard­ized by the corros­ive influ­ence of money in polit­ics. foot­note6_rjpgyi0 6 See, e.g., Brad­ley Jones, “Most Amer­ic­ans Want to Limit Campaign Spend­ing, Say Big Donors Have Greater Polit­ical Influ­ence,” Pew Research Center, May 8, 2018, https://www.pewre­search.org/fact-tank/2018/05/08/most-amer­ic­ans-want-to-limit-campaign-spend­ing-say-big-donors-have-greater-polit­ical-influ­ence/; Wendy Weiser and Alicia Bannon, eds., Demo­cracy: An Elec­tion Agenda for Candid­ates, Activ­ists, and Legis­lat­ors, Bren­nan Center for Justice (2018), 19–26, avail­able at https://www.bren­nan­cen­ter.org/sites/default/files/public­a­tions/2018_05_Agen­das_DEmo­cracy_FINALpdf_0.pdf. 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.” foot­note7_jlwo9x4 7 1 Annals of Cong. 1515 (1790) (Joseph Gales ed., 1834) (quot­ing Repres­ent­at­ive James Madison of Virginia on the House’s first refer­ral to a select commit­tee). 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. foot­note8_xjq2qs6 8 Ornstein and Mann, “The Broken Branch.” 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. foot­note9_4hbrbh5 9 See, e.g., Jonathan Chait, “House Repub­lic­ans Have a Secret List of Trump Scan­dals They’re Cover­ing Up,” New York, Aug. 27, 2018, http://nymag.com/intel­li­gen­cer/2018/08/repub­lic­ans-congress-list-of-trump-scan­dals-cover­ing-up.html (detail­ing, among other things, House Repub­lic­ans’ refusal to invest­ig­ate the federal govern­ment’s response to Hurricane Maria in Puerto Rico); Jason Zengerle, “How Devin Nunes Turned the House Intel­li­gence Commit­tee Inside Out,” New York Times Magazine, Apr. 24, 2018, https://www.nytimes.com/2018/04/24/magazine/how-devin-nunes-turned-the-house-intel­li­gence-commit­tee-inside-out.html (citing the House Intel­li­gence Commit­tee under Devin Nunes invest­ig­at­ing “the F.B.I. and the Justice Depart­ment for supposedly abus­ing their powers in an effort to hurt Trump”); James M. Goldgeier and Eliza­beth N. Saun­ders, “The Uncon­strained Pres­id­ency: Checks and Balances Eroded Long before Trump,” Coun­cil on Foreign Rela­tions, Aug. 14, 2018, https://www.cfr.org/article/uncon­strained-pres­id­ency-checks-and-balances-eroded-long-trump (“Today, members of Congress reflex­ively support their own party. In peri­ods of unified govern­ment, this means extreme defer­ence to the pres­id­ent. In peri­ods of divided govern­ment, it means congres­sional grid­lock. Neither scen­ario yields much in terms of congres­sional over­sight.”). For instance, war powers are shared under the Consti­tu­tion, but Congress has appeared to defer to the exec­ut­ive instead of respond­ing when it over­steps. foot­note10_ou0s5h6 10 See, e.g., Zachary Laub, “Debat­ing the Legal­ity of the Post-9/11 ‘Forever War,’” Coun­cil on Foreign Rela­tions, Sept. 1, 2016, https://www.cfr.org/expert-roundup/debat­ing-legal­ity-post-911-forever-war; Eliza­beth Goitein, “Congress Is About to Decide Whether to Give Trump More or Less Power to Expand Wars,” Fortune, June 4, 2018, http://fortune.com/2018/06/04/bob-corker-tim-kaine-jeff-merkley-trump-wars/. See also Richard F. Grim­mett, War Powers Resol­u­tion: Pres­id­en­tial Compli­ance, CRS Report No. RL33532 (Wash­ing­ton, D.C.: Congres­sional Research Service, 2012), 23–26, https://fas.org/sgp/crs/natsec/RL33532.pdf (discuss­ing whether the War Powers Resol­u­tion is work­ing or should be amended). 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. foot­note11_nn6iq40 11 National Emer­gen­cies Act, Pub. L. No. 94–412, 90 Stat. 1255 (1976), 50 U.S.C. §§ 1601–1651. See Proclam­a­tion No. 9844, 84 Fed. Reg. 4949 (Feb. 15, 2019) (declar­ing a national emer­gency concern­ing the south­ern border of the United States). Congress failed to block the pres­id­ent’s national emer­gency declar­a­tion, foot­note12_wpod­w7x 12 Li Zhou, “Congress’s Latest Move to Stop Trump’s National Emer­gency Just Failed,” Vox, Mar. 26, 2019, https://www.vox.com/2019/3/26/18282410/national-emer­gency-trump-house-veto-over­ride. despite his expli­citly circum­vent­ing Congress’s appro­pri­ations power and strong public oppos­i­tion to his move. foot­note13_r3kx­t0k 13 Emily Guskin, “A Clear Major­ity of Amer­ic­ans Oppose Trump’s Emer­gency Declar­a­tion,” Wash­ing­ton Post, Mar. 15, 2019, https://www.wash­ing­ton­post.com/polit­ics/2019/03/15/clear-major­ity-amer­ic­ans-oppose-trumps-emer­gency-declar­a­tion/?utm_term=.55daec087094 (“By roughly a 2-to-1 margin, Amer­ic­ans oppose Trump’s decision to use emer­gency powers to build a border wall.”). Recently, however, the Article One Act, a bill to reform the National Emer­gen­cies Act, passed out of the Senate Home­land Secur­ity and Govern­mental Affairs Commit­tee with a strong bipar­tisan vote of 12 to 2. Tim Lau, “Progress Toward Reform­ing the National Emer­gen­cies Act,” Bren­nan Center for Justice, July 29, 2019, https://www.bren­nan­cen­ter.org/blog/progress-toward-reform­ing-national-emer­gen­cies-act.

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. foot­note14_ka6kewr 14 United States Consti­tu­tional Conven­tion, The Records of the Federal Conven­tion of 1787, Issue 2 (New Haven: Yale Univer­sity Press, 1911), 206, avail­able at https://books.google.com/books?id=atiFAAAAMAAJ&pg=PA206 (refer­en­cing George Mason’s state­ment at the Consti­tu­tional Conven­tion that members of Congress “are not only Legis­lat­ors” but also “possess inquis­it­orial powers” and “must meet frequently to inspect the Conduct of the public offices”). When used right, it can uncover fraud and waste in federal programs, protect the rights of minor­it­ies, or uncover abuses of power and corrup­tion. foot­note15_ojq52qw 15 Hurricane Katrina: Voices from Inside the Storm, Before the Select Bipar­tisan Commit­tee to Invest­ig­ate the Prepar­a­tion for and Response to Hurricane Katrina, 109th Cong. (2005); Michael D. Minta, Over­sight: Repres­ent­ing the Interests of Blacks and Lati­nos in Congress (Prin­ceton: Prin­ceton Univer­sity Press, 2011); The Final Report of the Select Commit­tee on Pres­id­en­tial Campaign Activ­it­ies, S. Rep. No. 93–981 (1973) (“Water­gate Commit­tee Report”); The State of VA Health­care, Before the Senate Commit­tee on Veter­ans Affairs, 113th Cong. (2014). 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. foot­note16_6nz672w 16 See, e.g., Ornstein and Mann, “The Broken Branch”; Tressa Guenov and Tommy Ross, “At a Cross­roads, Part I: How Congress Can Find Its Way Back to Effect­ive Defense Over­sight,” War on the Rocks, Mar. 9, 2018, https://waron­ther­ocks.com/2018/03/at-a-cross­roads-part-i-how-congress-can-find-its-way-back-to-effect­ive-defense-over­sight/; Cris­tian R. C. Kelly, “Full of Sound and Fury: Curb­ing the Cost of Partisan Oppor­tunism in Congres­sional Over­sight Hear­ings,” New York Univer­sity Law Review 90 (2015): 256 (“[I]n today’s polar­ized polit­ical envir­on­ment, congres­sional commit­tees have strong incent­ives to initi­ate and misuse public over­sight hear­ings for their own elect­oral bene­fit, rather than for purposes of good policy or good governance.”); Susan Milligan, “Drown­ing in Bitter Partis­an­ship,” U.S. News and World Report, June 23, 2017, https://www.usnews.com/news/the-report/articles/2017–06–23/partis­an­ship-drowns-out-bipar­tisan-over­sight. 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, foot­note17_6je9sk5 17 See Ornstein and Mann, “The Broken Branch.” and increased poten­tial for legis­lat­ors’ abuse of power and polit­ical grand­stand­ing when the pres­id­ent is of a differ­ent party. foot­note18_i9qiie9 18 See, e.g., Douglas Kriner and Liam Schwartz, “Divided Govern­ment and Congres­sional Invest­ig­a­tions,” Legis­lat­ive Stud­ies Quarterly 33, no. 2 (May 2008): 295–321.

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. foot­note19_472xezb 19 See, e.g., 18 U.S.C. § 208 (crim­inal conflict of interest stat­ute, prohib­it­ing officers and employ­ees of the exec­ut­ive branch, except for the pres­id­ent and vice pres­id­ent — but not members of Congress — from taking offi­cial govern­mental action on any matter in which they have any personal finan­cial interest); Office of Compli­ance, Recom­mend­a­tions for Improve­ments to the Congres­sional Account­ab­il­ity Act: An Analysis of Federal Work­place Rights, Safety, Health, and Access­ib­il­ity Laws That Should Be Made Applic­able to Congress and Its Agen­cies (Wash­ing­ton, D.C.: Office of Compli­ance, 2012), https://www.compli­ance.gov/sites/default/files/wp-content/uploads/2012/12/102B-Report_web.pdf (docu­ment­ing the numer­ous employ­ment, work­place safety, and whis­tleblower laws from which Congress has exemp­ted itself); Free­dom of Inform­a­tion Act, 5 U.S.C. § 551(1) (exempt­ing Congress from scope of stat­ute’s applic­ab­il­ity). Recent scan­dals involving insider trad­ing alleg­a­tions and the use of taxpayer funds for settling sexual miscon­duct cases high­light the defi­cien­cies in its ethics regime. foot­note20_ionocxq 20 See, e.g., Deirdre Walsh, “House Ethics Commit­tee Invest­ig­at­ing Rep. Chris Collins for Insider Trad­ing Alleg­a­tions,” CNN, Oct. 12, 2017, https://www.cnn.com/2017/10/12/polit­ics/chris-collins-invest­ig­a­tion-house-ethics-commit­tee/index.html; Donna M. Nagy, “Tom Price’s Stock Contro­versy Shows an Urgent Need for a New Law,” Wash­ing­ton Post, Jan. 24, 2017, https://www.wash­ing­ton­post.com/opin­ions/tom-prices-stock-contro­versy-shows-an-urgent-need-for-a-new-law/2017/01/24/37d26974-e1bc-11e6-a547–5f­b9411d332c_story.html; MJ Lee, Sunlen Serfaty, and Juana Summers, “Congress Paid Out $17 Million in Settle­ments. Here’s Why We Know So Little About That Money.” CNN, Nov. 16, 2017, https://www.cnn.com/2017/11/16/polit­ics/settle­ments-congress-sexual-harass­ment/index.html. 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. foot­note21_s3z04j1 21 See More Than 60 National Secur­ity Experts Urge Reform in Congres­sional Over­sight of Home­land Secur­ity, 2014, https://assets.aspen­in­sti­tute.org/content/uploads/files/content/upload/WSJ%20ad%20news%20re­lease%205–21–14.pdf (urging simpler over­sight to address partic­u­lar national secur­ity vulner­ab­il­it­ies); Neces­sary and Proper: Best Prac­tices for Congres­sional Invest­ig­a­tions, Project on Govern­ment Over­sight, 2017, 8–19, avail­able at http://www.pogoarchives.org/m/co/2017_pogo_neces­sary_and_proper_report.pdf (suggest­ing that congres­sional invest­ig­at­ive commit­tees display true bipar­tis­an­ship, have adequate tools and resources, main­tain a clear focus, and enjoy support of congres­sional lead­er­ship); Strength­en­ing Congres­sional Over­sight of the Intel­li­gence Community, R Street, Demand Progress, Free­dom Works, Elec­tronic Fron­tier Found­a­tion, 2016, avail­able at https://www.open­thegov­ern­ment.org/wp-content/uploads/other-files/Strength­en­ing_Congres­sional_Over­sight_of_the_IC_White_Paper_Sept_2016.pdf (suggest­ing improve­ments to oper­a­tion and trans­par­ency of House Perman­ent Select Commit­tee on Intel­li­gence). 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. foot­note22_y6wc8gm 22 See Eliza­beth Goitein, “The Alarm­ing Scope of the Pres­id­ent’s Emer­gency Powers,” Atlantic, Dec. 5, 2018, https://www.theat­lantic.com/magazine/archive/2019/01/pres­id­en­tial-emer­gency-powers/576418/ (call­ing for “repeal of laws that are obsol­ete or unne­ces­sary, revi­sion of other laws to include stronger protec­tions against abuse, issu­ance of new criteria for emer­gency declar­a­tions, requir­ing a connec­tion between the nature of the emer­gency and the powers invoked, a prohib­i­tion on indef­in­ite emer­gen­cies, and limit­a­tion of powers set forth in Pres­id­en­tial Emer­gency Action Docu­ments); Hear­ing on the National Emer­gen­cies Act of 1976, Before the H. Comm. on the Judi­ciary, Subcomm. on the Consti­tu­tion, 116th Cong. (2019) (testi­mony of Eliza­beth Goitein, codir­ector, Liberty & National Secur­ity Program, Bren­nan Center for Justice at New York Univer­sity School of Law) (propos­ing that Congress specify that: the pres­id­ent may declare a national emer­gency only if there exists a signi­fic­ant change in factual circum­stances that poses an immin­ent threat to public health, public safety, or other simil­arly press­ing national interests; an emer­gency declared by the pres­id­ent should end after 30 days unless Congress votes to continue it; no state of emer­gency should be allowed to continue for more than five years; the stat­utory author­it­ies invoked under a declared emer­gency must relate to the nature of, and may be used only to address, that emer­gency; emer­gency powers cannot be used to circum­vent Congress; and pres­id­ents should be required to publicly detail expenses incurred, as well as activ­it­ies and programs imple­men­ted). 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. foot­note23_kk6wg6b 23 Under the Article One Act, if a pres­id­ent declared a national emer­gency, Congress would be required to vote to approve it within 30 days, or it would auto­mat­ic­ally expire. Renew­ing an emer­gency declar­a­tion would also require congres­sional approval for every subsequent year. Lau, “Progress Toward Reform­ing.”

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. foot­note24_gsq9sr5 24 There are numer­ous propos­als for modern­iz­ing science and tech­no­logy expert­ise in Congress. See, e.g., Grant Tudor and Justin Warner, The Congres­sional Futures Office, Belfer Center, 2019, https://www.belfer­cen­ter.org/sites/default/files/2019–06/PAE/CFO%20Policy%20Brief_vF.pdf; Bianca Majum­der, “Congress Should Revive the Office of Tech­no­logy Assess­ment,” Center for Amer­ican Progress, May 13, 2019, https://www.amer­ic­an­pro­gress.org/issues/green/news/2019/05/13/469793/congress-revive-office-tech­no­logy-assess­ment/; Zach Graves, R Street Policy Study No. 152: Rebuild­ing a Tech­no­logy Assess­ment Office in Congress: Frequently Asked Ques­tions, R Street, 2018, https://2o9ub0417chl2l­g6m43em6p­si2i-wpen­gine.netdna-ssl.com/wp-content/uploads/2018/09/No.-152.pdf; Daniel D’Arcy et al., Congress Needs the Office of Tech­no­logy Assess­ment to Keep Up with Science and Tech­no­logy, Bipar­tisan Policy Center, 2019, avail­able at https://bipar­tis­an­policy.org/wp-content/uploads/2019/08/Congress-Needs-the-Office-of-Tech­no­logy-Assess­ment-to-Keep-up-with-Science-and-Tech­no­logy-002.pdf. A forth­com­ing National Academy of Public Admin­is­tra­tion report, expec­ted to be published in Octo­ber 2019, may discuss the optimal struc­ture for a congres­sional agency engaged in tech­no­logy assess­ment. “Science and Tech­no­logy Policy Assess­ment for the U.S. Congress,” National Academy of Public Admin­is­tra­tion, accessed July 22, 2019, https://www.napawash.org/stud­ies/academy-stud­ies/science-and-tech­no­logy-policy-assess­ment-for-the-us-congress.

Finally, Congress must seri­ously consider ways to reform its insti­tu­tional culture. There is no short­age of propos­als. foot­note25_hsr91ia 25 See, e.g., Make Congress Work, No Labels, 2011, avail­able at http://2o16qp9­prb­v3jfk0qb3y­on1a-wpen­gine.netdna-ssl.com/wp-content/uploads/2018/05/Make-Congress-Work.pdf; Commis­sion on Polit­ical Reform, Govern­ing in a Polar­ized Amer­ica: A Bipar­tisan Blue­print to Strengthen Our Demo­cracy, Bipar­tisan Policy Center, 2011, 51–69, avail­able at https://bipar­tis­an­policy.org/wp-content/uploads/sites/default/files/files/BPC%20CPR%20Gov­ern­ing%20in%20a%20Polar­ized%20Amer­ica.pdf; Kathy Gold­schmidt, State of the Congress: Staff Perspect­ives on Insti­tu­tional Capa­city in the House and Senate, Congres­sional Manage­ment Found­a­tion, 2017, avail­able at http://www.congress­found­a­tion.org/stor­age/docu­ments/CMF_Pubs/cmf-state-of-the-congress.pdf; “Select Commit­tee on the Modern­iz­a­tion of Congress,” accessed May 3, 2019, https://modern­ize­con­gress.house.gov/; Meredith McGe­hee et al., The Ethics Blind Spot: How the House and Senate Ethics Commit­tees Fail to Uphold High Ethical Stand­ards — And Solu­tions to Fix the Prob­lem, Issue One, 2018, avail­able at https://www.issueone.org/wp-content/uploads/2018/02/Ethics-Blind-Spot-Final.pdf; Victoria Bassetti, “Of Ceil­ing Tiles and Senate Commit­tee Reform,” in Demo­cracy and Justice: Collec­ted Writ­ings (New York: Bren­nan Center for Justice, 2014), 151–52; Marian Currinder et al., Why We Left Congress: How the Legis­lat­ive Branch Is Broken and What We Can Do About It, R Street and Issue One, 2018, 13–15, avail­able at https://www.issueone.org/wp-content/uploads/2018/12/Why-We-Left-Congress-Report.pdf. Hold­ing members of Congress person­ally liable for sexual harass­ment and retali­ation settle­ments was a good place to start. foot­note26_pm75in0 26 Susan Corn­well, “Congress Passes Bill to Make Members Pay Sexual Miscon­duct Claims,” Reuters, Dec. 13, 2018, https://www.reuters.com/article/us-usa-congress-harass­ment/congress-passes-bill-to-make-members-pay-sexual-miscon­duct-claims-idUSKBN1OC2V0. Extend­ing the Free­dom of Inform­a­tion Act and conflict-of-interest rules to Congress would substan­tially further the effort. foot­note27_e2dizxk 27 Busi­ness lead­ers have sugges­ted extend­ing blind trust require­ments to members of Congress, requir­ing recusal for partic­u­lar matters, and improve­ments to trans­par­ency to reduce the impact of conflicts of interest on the actions of Congress. See Aaron D. Hill, Jason W. Ridge, Amy Ingram, “The Grow­ing Conflict-of-Interest Prob­lem in the U.S. Congress,” Harvard Busi­ness Review, Feb. 24, 2017, https://hbr.org/2017/02/the-grow­ing-conflict-of-interest-prob­lem-in-the-u-s-congress. Good govern­ment advoc­ates have like­wise poin­ted out that Congress’s self-exemp­tion from FOIA is largely unfoun­ded and that greater trans­par­ency is needed for the legis­lat­ive branch. See JPat Brown, “Reminder That Congress Is (Increas­ingly) Exempt from FOIA,” Muck­rock, Oct. 4, 2018, https://www.muck­rock.com/news/archives/2018/oct/04/congress-foia-exemp­tion/. Momentum is grow­ing for reform, and we are confid­ent Congress can meet the chal­lenge, as it has before. foot­note28_n1i8wa2 28 In 1946, Congress passed the Legis­lat­ive Reor­gan­iz­a­tion Act with large bipar­tisan major­it­ies in both cham­bers. Ch. 753, 60 Stat. 812. This law reduced the number of stand­ing commit­tees and clari­fied their juris­dic­tions, upgraded staff support, strengthened congres­sional over­sight of exec­ut­ive agen­cies, and required lobby­ists to register with Congress and to file peri­odic reports of their activ­it­ies. Ibid. In the 1960s and 1970s, members of Congress worked to change commit­tee assign­ments and lead­er­ship, as well as for proced­ural reforms to allow legis­la­tion to pass more easily. Daniel Stid, Two Path­ways for Congres­sional Reform, William and Flora Hewlett Found­a­tion, 2015, 10–12, avail­able at https://hewlett.org/wp-content/uploads/2018/01/Two-Path­ways-for-Congres­sional-Reform_March-2015.pdf. In the 1970s, Congress increased trans­par­ency in commit­tee hear­ings and meet­ings, as well as votes, and expan­ded profes­sional staff. Legis­lat­ive Reor­gan­iz­a­tion Act of 1970, Pub. L. No. 91–510, 84 Stat. 1140 (1970). Congress also created expert bodies — the Office of Tech­no­logy Assess­ment and the Congres­sional Budget Office — to advise legis­lat­ors. Tech­no­logy Assess­ment Act of 1972, Pub. L. No. 92–484, 86 Stat. 797 (1972); Congres­sional Budget and Impound­ment Control Act of 1974, 2 U.S.C. § 601 (creat­ing the Congres­sional Budget Office).

Judi­ciary

Like­wise, our demo­cratic system depends on an inde­pend­ent judi­ciary. We believe the judi­ciary has held up as an effect­ive check on exec­ut­ive abuse, foot­note29_g02shqj 29 See, e.g., success­ful chal­lenges to Pres­id­ent Trump’s first “travel ban,” Exec. Order No. 13,769, State of Wash­ing­ton v. Trump, 847 F. Supp. 3d 1151 (9th Cir. 2017), and Aziz v. Trump, 234 F. Supp. 3d 724 (E.D. Va. 2017), and a success­ful chal­lenge to the pres­id­ent’s decision to termin­ate the Deferred Action for Child­hood Arrivals (DACA) program, Regents of the Univ of Cal. v. U.S. Dep’t of Home­land Sec., 279 F. Supp. 3d 1011, 1036–37 (N.D. Cal. 2018). 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. foot­note30_7373dbn 30 See, e.g., Kevin Judd and Keith Watters, “Trump’s Attacks on Courts Under­mine Judi­cial Inde­pend­ence,” Amer­ican Bar Asso­ci­ation Journal, June 28, 2018, avail­able at http://www.abajournal.com/news/article/trumps_attacks_on_courts_under­mines_judi­cial_inde­pend­ence (“A judi­ciary without the faith of the exec­ut­ive is a danger to a free and open soci­ety. . . . When citizens lose confid­ence with the branch of govern­ment respons­ible for inter­pret­ing the laws, all of our insti­tu­tions are dimin­ished.”); “In His Own Words: The Pres­id­ent’s Attacks on the Courts,” Bren­nan Center for Justice, June 5, 2017, https://www.bren­nan­cen­ter.org/analysis/his-own-words-pres­id­ents-attacks-courts. 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. foot­note31_sgxemkq 31 Ibid. For example, Pres­id­ent Trump sugges­ted that rulings halt­ing the admin­is­tra­tion’s first “travel ban” exec­ut­ive order were polit­ic­ally motiv­ated. Imme­di­ately after an Octo­ber 2017 terror­ist attack in New York City, the pres­id­ent described the judi­ciary as a “joke” and a “laugh­ing­stock.” In Janu­ary 2018, after a district court judge had tempor­ar­ily blocked the admin­is­tra­tion from ending the Deferred Action for Child­hood Arrivals (DACA) program, the pres­id­ent tweeted a complaint about “how broken and unfair our Court system is.” See ibid.

Such attacks can put judges’ safety at risk. They also threaten the legit­im­acy of the judi­ciary in the eyes of the public. foot­note32_tn9d6bq 32 Michael J. Nelson and Alicia Uribe-McGuire, “Confid­ence in the US Supreme Court Is Declin­ing, and That Puts Its Decisions at Risk from Congress,” LSE US Centre, July 24, 2018, avail­able at https://blogs.lse.ac.uk/usappb­log/2018/07/24/confid­ence-in-the-us-supreme-court-is-declin­ing-and-that-puts-its-decisions-at-risk-from-congress. 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. foot­note33_k8t9buw 33 In the first report issued by the National Task Force on the Rule of Law & Demo­cracy, we recom­mend that Congress “require writ­ten justi­fic­a­tions for pardons involving close asso­ci­ates and should pass a resol­u­tion expressly disap­prov­ing of self-pardons.” Bhar­ara, Whit­man et al., Propos­als for Reform, 19.

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. foot­note34_48j2h7i 34 Burgess Ever­ett, “Repub­lic­ans Trig­ger ‘Nuc­lear Option’ to Speed Trump Nomin­ees,” Politico, Apr. 3, 2019, https://www.politico.com/story/2019/04/03/senate-repub­lic­ans-trig­ger-nuclear-option-to-speed-trump-nomin­ees-1253118; Russell Wheeler, “Senate GOP Used ‘Blue Slips’ to Block Obama Judi­cial Nomin­ees, But Now Wants to Trash the Prac­tice,” Brook­ings Insti­tu­tion, May 25, 2017, https://www.brook­ings.edu/blog/fixgov/2017/05/25/blue-slips-and-judi­cial-nomin­ees-in-senate/; Jay Michael­son, “While You Weren’t Look­ing, the Senate Has Been Rubber-Stamp­ing Trump’s Extreme Judi­cial Picks,” Daily B