By Charles S. Clark
September 1, 2013
When Senate leaders braving a July heat wave in Washington announced a breakthrough deal to curb filibusters, sighs of relief were felt in all ranks of government. Within days, the upper chamber would confirm nominees to run agencies whose staffs had been on tenterhooks for months, even years.
Newly freed from limbo were Richard Cordray for the Consumer Financial Protection Bureau; Gina McCarthy for the Environmental Protection Agency; Thomas Perez for the Labor Department; Fred Hochberg for the Export-Import Bank of the United States and Mark Gaston Pearce as chairman of the National Labor Relations Board. Later came the approval of B. Todd Jones to head the Bureau of Alcohol, Tobacco, Firearms and Explosives—an agency that had been without a confirmed leader since it was required to have one in 2006.
The welcome imprimatur of confirmed status followed Senate approval in May of Marilyn Tavenner to run the Centers for Medicare and Medicaid Services, which had muddled along with acting chiefs for seven years.
Still, some positions remain unfilled. The nonprofit watchdog Project on Government Oversight has highlighted multiple vacancies in the inspectors general community—in many cases without even a nominee. The State Department has lived with acting IGs for 2,000 days and counting.
The holdups stem from an unholy mix of the Senate’s partisan divide, chamber rules that decentralize power, White House indecision and reluctance among qualified candidates to endure the prolonged scrutiny that comes with a political appointment.
Meanwhile, political positions continue to come open. Many agency deputies, for example, decline to stay on for long after their bosses leave. Witness the January departure of Thomas Nides, State’s budget manager, soon after
Hillary Clinton said she was stepping down, and Neal Wolin’s July announcement that he’s leaving the Treasury Department’s No. 2 post after five months under Jack Lew. When Homeland Security Secretary Janet Napolitano in July announced her plan to quit, she created the 15th vacancy among her department’s 45 leadership positions.
Sometimes the White House is pressured to rob Peter to pay Paul, like the time it pulled experienced manager
W. Todd Grams from the Veterans Affairs Department to join the team created to reform the troubled Internal Revenue Service. The IRS’ list of commissioners since its creation in 1862 shows that 27 of 74 have been acting.
All such rounds of musical chairs bring uncertainty—to career staff, to acting leaders, to Congress and to citizens, in the form of frozen decision-making on spending, policy and personnel. “Not having a robust leadership most certainly affects one’s ability to cause change,” says Bradley Buckles, who was ATF director and then acting director when it moved to Homeland Security and is now a vice president at the Recording Industry Association of America. “It’s inconceivable you can have a billion-dollar operation without confirmed leadership for seven years.”
In some less visible agencies, vacancies can actually bring work to a halt. The Broadcasting Board of Governors, for example, suffered from the resignation of five members on its nine-member board within a year. It lacked a quorum until early August, when three new members were sworn in.
At the squabble-prone Federal Election Commission—where five of the six panel members are serving expired terms—investigations bogged down when the panel deadlocked over a proposal by its Republican majority to ban staff from sharing information with federal prosecutors without board approval.
Both the National Endowment for the Humanities and the National Endowment for the Arts have been operating for much of 2013 without chiefs, due
Each such delay is a sign that acting officials may be Scotch-taping family photos to bare walls of offices intended for permanent leaders.
It’s possible for acting leaders to thrive under such conditions—with the help of career civil servants. “I got 100 percent support from staff and the secretary’s office from the start and never felt for a moment [that I was] a decreased voice in the agency or department,” says Dr.
Donald Berwick, who spent 17 months as CMS administrator under a recess appointment and is now running for governor of Massachusetts. “I was treated with all the same conditions a Senate-
confirmed administrator would have had.”
Some say the notion that the wave of acting chiefs is a crisis is alarmist. “I don’t think we’re in dangerous territory, because the premise of the civil service is that you have capable careerists to step in,” says Mark Abramson, a longtime authority on the federal workforce and president of Leadership Inc. “A lot of these people have been acting before and have been in the jobs even longer than some political appointees. Sure, I wish the appointments would get made. But we do have a bench.”
Vacancies and interim leaders are common at the start of any presidential term. But many say the gridlock of Obama-era nominations seems especially intense. “It’s pretty clear there’s a substantial slowdown,” says Bill Galston, a Clinton administration domestic policy adviser who is now at the Brookings Institution.
“If someone’s in an acting position, unless you’re sure this person’s initiative represents a much broader determination and will be sustained no matter who is the next commandant, you’re tempted to say, ‘Well, this person doesn’t even have a year to run things,’ ” he says. “And you simply offer the kind of patent resistance that entrenched civil servants are capable of—not out of ill will but of genuine belief that the person is misguided.”
The acting executive, Galston adds, “is not likely to feel empowered to make new policies, but more likely to view the job as keeping the trains running. Not only will you have a hard time pushing policy, you have less credibility with people across the table in negotiations.”
Uncertainty for acting leaders is worsened by the current budget situation and “the virtual witch hunts and retribution” in Congress in response to recent scandals over lavish conferences at the IRS and the General Services Administration, says Carol A. Bonosaro, president of the Senior Executives Association. “It has got to feel like getting an appointment is putting a big target on your back,” she says.
Going through budget planning during furloughs and sequestration brings “a reluctance to make decisions and to avoid any risk-taking whatsoever—almost a paralysis,” Bonosaro says.
Analysts at POGO point to concrete examples of decisions thwarted by the absence of permanent inspectors general. In March 2011, Sen. Chuck Grassley, R-Iowa, demanded that an inquiry into a botched ATF gun-running operation be handled by an outside inspector general because acting IGs “are not necessarily equipped to take on an entrenched bureaucracy and challenge senior officials with the tough questions.”
At the Corporation for National and Community Service, the lack of a permanent IG left the office in a poor position to push back against proposed fiscal 2012 budget cuts, according to POGO.
Coherent management is impossible without a permanent leader, says Buckles, who atypically served as acting ATF director after having held the permanent job. He didn’t use the acting title and wasn’t perceived that way by his boss, the attorney general, Buckles recalls. “But leadership is about change, not maintaining things day to day, and there’s nothing harder in an organization than pushing change,” he says.
An acting leader’s effectiveness may vary by type of agency, or its maturity. “If an agency is stable, an acting person may not have an adverse impact,” says Christian Beckner, a former staffer on the Senate Homeland Security and Governmental Affairs Committee and now deputy director of the Homeland Security Policy Institute at The George Washington University.
His experience monitoring the decade-old Homeland Security Department taught him that leadership voids make it harder for Congress to hold people accountable. At the end of the George W. Bush administration, for example, there were numerous vacancies at the DHS Office of Intelligence and Analysis and “things were functioning on automatic pilot with no one close to the secretary,” Beckner says. That may have been why the agency failed to anticipate the leak and subsequent political criticism of a controversial report on a right-wing domestic terrorism threat.
Dan Blair, president and CEO of the National Academy of Public Administration, said the clout of temporary leaders hinges on their familiarity with the agency and the reason their predecessor left. “They may not have the same seat at the table within the administration or in dealing with Congress that a full-fledged secretary has,” he says. “And it’s important for continuity during transition times to have people who know the agency . . . especially right now since it would be difficult for acting people to have the flexibility needed to deal with the sequester and furloughs.”
Why would a skilled federal executive accept an acting position—especially since, by law, the jobs do not come with a pay raise?
Temporary leaders come in two flavors, according to Max Stier, president and CEO of the nonprofit Partnership for Public Service. “An acting leader who expects or wants to get the permanent position may feel constrained by worries about how decisions may influence their ability to be chosen or confirmed,” he says. The other variety, Stier adds, is the “caretaker, who isn’t going to have the tenure to see through difficult changes and is thus not incentivized.”
Weak incentives, in Stier’s view, are “the classic problem” of political appointees, whose typical tenure is two years. “But you do get fantastic acting people,” he says. Dan Tangherlini, now the confirmed administrator of GSA after 15 months in an acting role, “didn’t pull any punches. He went full throttle and got nominated,” Stier says.
Another issue is whether underlings will accept an acting leader. That depends on whether or not the employees like the provisional boss, says Rebecca Blank, who served twice as acting Commerce secretary and is now chancellor of the University of Wisconsin. “There’s always bemusement over how quickly you claim the mantle and redecorate the whole office,” she says. “There’s a trade-off between seeming presumptuous and letting the department know it has leadership.”
Blank’s two stints differed widely. When Secretary Gary Locke left to become ambassador to China in August 2011, Blank became acting chief knowing that Obama’s nominee, John Bryson, was likely to clear the Senate by October. “I was clearly temporary,” she says. “But I knew the department well, and everyone knew me.” She worked under self-imposed constraints. “I didn’t make long-term decisions,” she says. “The main goal was to set things up for the new secretary and keep things running smoothly.”
By contrast, Blank’s second tenure—which would last a year—unfolded with uncertainty after Bryson resigned for medical reasons in June 2012. It was the middle of a presidential election, complicating confirmation of a permanent secretary. “I was the main person making decisions, no constraints, and worked hard to build relations with the main Congress people,” Blank says. “I gave press interviews and traveled internationally. At no point was I
treated as anything other than Commerce secretary.”
The only entity that didn’t regard her as the real deal, she says, was the media. “I don’t know how many times I read that Commerce has ‘no one in charge.’ ”
When Berwick arrived at CMS to help implement Obamacare, the conditions of his recess appointment were made clear by the Health and Human Services Department general counsel. “I had full power, but the clock was ticking, a 17-month window,” he says.
Berwick says he decided to address his limited tenure and dependency on career staffers. “I told the staff on my first day that I cannot be successful without their stewardship, and that we have to have the same goals,” he says. “That produced a sense of collaboration.”
Eyeing the calendar and interim deadlines for health care reform provided great discipline, Berwick adds. “If I could go back in time and change my behavior, I would probably be more intense and ramp things up faster.” The looming exit also made him more conscious of senior staff appointments and choosing people who shared his vision for running the organization.
EASING THE BURDEN
One key to success for any agency leader
is carrying out the administration’s agenda—an especially tall order for an acting chief. It takes solid judgment, says Abramson, “to decide every day what
decisions to make now and what can wait.”
Having 4,000 federal jobs that require Senate confirmation “is frankly unnecessary,” says Stier. “All it does is create a slow, grueling process and chase away good talent.” First-term presidents move quickly to fill vacancies, but that expectation is missing for those in their second terms, Stier says.
Berwick says his time at CMS left him with renewed respect for federal civil servants. “Their general dedication, competence and technical abilities were impressive,” he says. But, he adds, “the current ethos of paralysis in Washington in which so many get to say no is sad and harmful. I hope the time will come when people who disagree will learn to sit down and problem-solve.”
By Charles S. Clark
September 1, 2013