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The Biden administration still has a lot of vacant positions. It’s a growing problem.

Delays in confirming successful nominations have doubled since the Reagan era

- October 26, 2021

Editor’s note: This article is part of a series on the challenges facing the federal bureaucracy from “Rethinking Our Democracy.” A joint initiative by the Center for Effective Government (@UChicagoCEG) at the University of Chicago and Protect Democracy (@protctdemocracy), “Rethinking our Democracy” produces a written series on key areas of institutional and democratic reform. All other articles can be found here.

The Biden administration has a lot of vacancies for politically confirmed appointments. At the nine-month mark, for the 805 positions being tracked by the Partnership for Public Service and The Washington Post, the Biden administration had only 155 confirmed leaders (and 209 term appointees or holdovers). Over 240 nominations were sitting with the Senate. But close to 200 jobs lacked a formal or announced nominee: For those positions covered by the Federal Vacancies Reform Act of 1998, the 300-day time limit for acting officials will run out in the middle of next month without a nomination, though almost all of their duties will then be carried out through delegation orders. The Trump administration accepted astounding numbers of vacancies, and staffing shortages are common across all modern administrations. But vacancies have consequences.

Making it harder to establish policies

Vacancies in the administration can foster problems. There is evidence that they contribute to agency delays and inaction in crises (as well as in normal times), foster unhappiness among career employees lacking adequate direction and undermine agency accountability. Sometimes vacancies even prevent agencies from doing their jobs at all. The Merit Systems Protection Board, for example, has been unable to function effectively since 2017, when it lost its quorum (though nominees are now pending). Its backlog at the start of the Biden administration stood at over 3,000 cases involving, among other matters, disciplinary actions against federal workers, including whistleblowers.

Acting officials can help fill the gaps, but many think of them as “substitute teachers.” Even though they have the same formal authority as confirmed leaders, acting officials are less able to wield it because they get less buy-in from the employees who work beneath them, relevant congressional committees and the public. In addition, their decisions may face increased legal risks. There is controversy over whether agencies can name first assistants (who are default acting leaders under the 1998 Vacancies Act, the statute that governs many vacancies) after a vacancy occurs and whether non-Senate-confirmed officials can temporarily serve in top agency positions. President Biden entered the White House with 13 acting Cabinet secretaries who had not been confirmed to another post, while President Donald Trump had nine such officials on his first day.

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Why are there so many vacancies?

One cause of vacancies is the lag in nominations. The last three completed administrations (George W. Bush, Barack Obama and Trump) did not submit a single nomination in their first two years, on average, for nearly 30 percent of vacant Senate-confirmed agency positions. Trump had the worst record, failing to submit a nomination in his first two years for 36 percent of empty posts. Obama also submitted far fewer agency nominations in his final two years than other recent two-term administrations. This sluggishness is in part the result of the Vacancies Act (and delegations of authority), which provides the White House with an easy alternative to Senate confirmation.

Sometimes, nominations fail. While the Senate almost never votes down an agency nominee, it often returns nominations. While 16 percent of both President Ronald Reagan’s and President George H.W. Bush’s agency nominations failed to get confirmed, that number climbed to 30 percent under Obama. And although individuals are often renominated after the Senate returns their nominations, the vacancy clock keeps ticking.

Finally, delays in confirming successful nominations have doubled, jumping from 56 days under Reagan to 112 days under Obama (and 117 days under Trump). Confirmations have become another manifestation of hyper-partisanship and gridlock. In his first year, President Bill Clinton had nearly 200 of his core agency nominees confirmed by unanimous consent; George W. Bush, Obama and Trump had none.

Many leaders are stand-ins

The result is that acting officials operate as stand-in leaders in many agencies, with the exception of the top positions of independent regulatory commissions and boards. In a 2019 “staffing snapshot” of 301 Senate-confirmed positions in Cabinet departments, I determined that confirmed officials filled 64.1 percent of these positions, while acting leaders sat in 13.3 percent. The functions of the remaining 22.6 percent were presumably being carried out through delegation orders, or not at all.

Another study examined all Senate-confirmed positions in Cabinet departments annually from 1977 to 2016: in approximately 11,000 position-year observations, just over 80 percent were filled by confirmed appointees, nearly 11 percent were filled by acting officials and about 9 percent had no one listed.

Civil servants are the last defense against a lawless president. It’s no wonder Trump didn’t trust them.

This may sometimes lead to more knowledgeable policymaking, when acting leaders are drawn from the agency’s senior career ranks, although at the cost of accountability. For example, interim ambassadors may know more about their post than appointed ambassadors (who may get their jobs thanks to political connections rather than relevant experience).

Some have proposed reforms to the system

The complexities of the current system have inspired calls for reforms. For example, many commentators (including recently the Partnership for Public Service) have pushed for cutting Senate-confirmed positions, in favor of direct presidential appointments, or candidates selected from the nonpolitical side of the Senior Executive Service. Congress, however, generally opposes such reforms, which would require it to relinquish power. Indeed, it has increased the number of Senate-confirmed positions by nearly 60 percent between 1960 and 2018. Though often disparaged, acting officials at lower levels functionally cut Senate confirmation for those positions.

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Alternatively, the process could be sped up, creating for example expedited procedures for critical positions, such as in the national security and financial regulation spaces, so that nominations won’t be stalled by individual senators. Some House members have reintroduced the Accountability for Acting Officials Act, which would make it harder for the White House to rely on temporary appointments at the highest levels by shortening the time they can operate and requiring stand-in leaders, such as inspectors general, to be qualified for their positions.

Evaluating the benefits and drawbacks of these and other proposed changes is difficult, because there is relatively little reliable public information about what does and doesn’t work now. For example, in response to a Freedom of Information Act request I recently submitted, one Cabinet department told me that it had no records of confirmed — let alone acting — deputy secretaries (and their service dates) since 2001. The proposed Periodically Listing Updates to Management (PLUM) Act could help to provide this and other useful information.

Anne Joseph O’Connell is the Adelbert H. Sweet Professor of Law at Stanford University.