How Congress should repair the Vacancies Act

The Vacancies Act is a leaky, 19th-century vessel with a noble purpose: to quickly fill temporary agency leadership positions while maintaining the Senate’s advice and consent role over appointments. Over the past century, however, the act has run aground on an increasingly Byzantine assortment of agencies and presidential attempts at control.

Today, the act is untenable. The executive and legislative branches interpret parts of the act differently, resulting in wild variations in compliance across agencies and appointments. Congress needs to plug the act’s holes in order to shore up the integrity of the appointment process by establishing a clear set of rules and transparency.

Article II of the Constitution gives the president the power to appoint executive branch officials with the vaguely specified “advice and consent” of the Senate. The Framers were divided over whether the appointment power should belong exclusively to the president or be shared with Congress. Some framers argued that corruption would be more likely in a large, diffuse body in which no single person was accountable. Of course, as the recent example of the Illinois Gov. Rod Blagojevich suggests, vesting power in a single individual offers no guarantee of probity, either.

The Framers sought to design a U.S. Constitution that would counteract the inherent tendency of human institutions toward corruption and factional conflict. Recognizing this was no easy task, like much of the Constitution the advice and consent clause leaves much to interpretation. After more than two centuries an elaborate system of law and legal opinion now governs presidential appointments. Often, new rules come out of conflict between the branches, with each claiming constitutional prerogative. What happens when an unexpected vacancy occurs — perhaps an appointee quits or dies? If the president appoints a temporary official, how long may he or she serve without Senate confirmation?

The first Vacancies Act became law in 1869. The measure set forth rules to prevent presidents from avoiding Senate advice and consent through a succession of temporary appointments. Congress has revised the act since then, but recent conflict between the branches has driven the act badly off-course.

In 1972, the Nixon administration sought to expand presidential prerogative by claiming that the Vacancies Act was only one means of filling advice and consent positions. Subsequent administrations have ignored or sought to avoid these restrictions. In 1998, one-fifth of the positions in the Clinton Justice Department requiring Senate confirmation were held by “acting” officials, and of these almost one-fifth — 43 officials — had served beyond the statutory limit without a presidential nomination. The Vacancies Reform Act of 1998 was prompted by the Clinton administration’s failure to comply with the act in a few high-profile cases, particularly the appointment of Bill Lann Lee as acting head of the Justice

Department’s Civil Rights Division. Despite a presidential veto threat and concerns that provisions of the act may in fact be unconstitutional, the measure was attached as a rider to a massive supplemental appropriations bill and signed into law in 1999.

The act asserts itself as the sole vehicle for appointments, restricts temporary appointments to senior civil servants or appointees already serving, and limits the terms of temporary appointees. Critics have questioned the constitutionality of the act, however, because it appears to limit the president’s constitutional authority to make recess appointments. Furthermore, the act does not resolve the question of whether and how long agency leaders such as the attorney general can make temporary appointments. Finally, many vacancies go unreported, despite the act’s disclosure provisions.

The rules governing appointments have developed according to competition between the president and Congress for authority over the bureaucracy. The present system needs reform — not to eliminate competition between branches, since the separation of powers is a basic feature of our government, but to provide continuity and transparency to the bureaucracy.

Revisions to the Vacancies Act should focus on two priorities: reliability and transparency. We need a clear set of rules establishing who is eligible for a temporary appointment and for what period of service. These rules should be transparent to the public at large, and reform should also preserve the president’s constitutional authority to appoint executive-branch officers.

Finally, reform would require that the president disclose the number and length of vacancies. At present, individual agencies are required to report their vacancies, but few comply. Requiring the president to report vacancies to Congress and the public through a website should improve accountability. The president should report a vacancy as soon as it occurs, the name of the acting officer and the nominee, and the progress of the nomination. Mandating regular reporting satisfies the Senate’s advice role while not interfering with the president’s power to appoint.

Revising the act is important because vacancies affect the performance of public organizations.

Long-term uncertainty about who leads an agency harms performance by creating uncertainty about the policy objectives of political leadership. Career civil servants need to know agency leaders in order to implement political directives. Furthermore, many political appointees need time in office to learn about their jobs and policy areas, and the longer a position remains vacant the less opportunity an appointee has to become familiar with his or her agency.

Finally, reform of the Vacancies Act would bring a measure of clarity to a confusing system of rules, and it would bring further transparency, a critical democratic value. The ship of state is a ship, not a dinghy, and one step toward government accountability would be to make the rules governing vacancies clear and the status of vacancies easily available to the public.

Roberts and Dull are professors at Virginia Tech University. They have written extensively on trends in political appointees’ length of tenure, and on appointees’ biographical data.