Protect Democracy and Cross-Partisan Good-Government Groups Send Letter Supporting Vacancies Reform

On May 1, 2020, Protect Democracy and a cross-partisan group of good-government organizations sent a letter in strong support of Rep. Katie Porter’s (CA-45) Accountability for Acting Officials Act. The bill would close loopholes which have allowed an excessive number of acting officials to serve in leadership roles — skipping the required Senate confirmation process.

Protect Democracy’s Justin Vail explains, “The COVID-19 pandemic has shown why it is so important to have qualified officials in our government’s top jobs, and yet many roles critical to pandemic response are currently filled by temporary “acting” personnel who have essentially skipped their job interview with the Senate. Congresswoman Porter’s Accountability For Acting Officials Act would help restore functional leadership to federal agencies; it would discourage the president from bypassing the constitutionally mandated confirmation process while preserving the president’s ability to temporarily fill vacant positions with qualified individuals. Presidents of both parties have increasingly exploited loopholes or violated the current vacancies law. It’s time for Congress to act on a bipartisan basis to put an end to this abuse of power.”

Read the full letter below. Click here to view the PDF.

The Honorable Katie Porter
United States House of Representatives
1117 Longworth House Office Building
Washington, DC 20515

Dear Congresswoman Porter:

As nonpartisan organizations with an interest in good governance, we write to offer our strong support for the Accountability for Acting Officials Act, which would help to ensure the timely nomination and confirmation of qualified leadership across the Executive Branch by closing increasingly problematic loopholes in the Federal Vacancies Reform Act of 1998 (FVRA).

While our organizations represent broad-based communities with diverse priorities, we are united in our belief that an overreliance on acting leadership under any administration is damaging to the interests of taxpayers and all who rely on effective government.

We have seen an increasing and excessive use of temporary leadership in positions that require Senate confirmation. While it is critical to have a structure set up to temporarily fill the leadership vacuum upon a vacancy, that structure should only be used as a stopgap measure while awaiting a qualified nominee to be confirmed.

Excessive use of acting or non-confirmed leadership unconstitutionally circumvents the Senate’s Advice and Consent mandate, leaving these officials less accountable to both Congress and the American people. This may incentivize a president to rely more heavily on the use of acting leadership, as it permits a president to appoint someone based on their loyalty to the president, rather than based on his or her qualifications and ability to do the job. Further, acting officials may not feel empowered to make big but necessary decisions, potentially crippling agency operations.

We are particularly concerned that the leadership vacuum in key positions has stymied the government’s ability to effectively address the crisis caused by COVID-19. Currently, approximately 30 percent of high-level positions at the Department of Homeland Security and Department of Defense lack the Senate-confirmed leadership they are supposed to have.¹ This leaves these critical agencies lacking effective leadership during a time of national crisis.

The Accountability for Acting Officials Act would take major strides in solving long-standing problems with the Federal Vacancies Reform Act of 1998 by closing problematic loopholes. For example, your legislation would require a “first assistant” to have served in that position prior to a vacancy to be eligible to serve as the acting official and would clarify that the FVRA is superseded by agency-specific statutes that prescribe different procedures in the event of a vacancy.

Many of the reforms you include would further the original intent of the FVRA by encouraging timely nomination of qualified individuals from the White House and ensuring that a plan is in place to appoint permanent leadership. Importantly, your bill would address the unique circumstances facing vacant inspectors general offices to ensure that these critical watchdogs can operate effectively and ethically while waiting for a permanent inspector general to be confirmed.

Thank you for your leadership in introducing the Accountability for Acting Officials Act. We urge bipartisan, bicameral support for these critical reforms in this unprecedented time of crisis to ensure that our executive branch agencies are led by qualified, vetted leadership.

Sincerely,

American Oversight
Brennan Center for Justice
Citizens for Responsibility and Ethics in Washington (CREW)
Demand Progress
Democracy Fund Voice
National Federation of Federal Employees (NFFE)
Niskanen Center
Open The Government
Project On Government Oversight
Protect Democracy
Public Citizen
Public Employees for Environmental Responsibility (PEER)
Union of Concerned Scientists