As precious days are lost, experts agree that nothing prohibits the GSA administrator from ascertaining the apparent election winner.
To ensure “the orderly transfer of executive power” following presidential elections, Congress devised a system “to provide transition support to the winning candidates well before absolute certainty is reached by the Electoral College [in] December.” Despite the widely confirmed outcome of the 2020 Presidential Election, Emily Murphy, the administrator of the General Service Administration is frustrating Congress’ intent by failing to “ascertain” that Joe Biden is the successful presidential candidate and refusing to authorize the presidential transition. She remains silent on when she will do so, and many fear she’ll stall until the Electoral College convenes on December 14.
Sure, GSA continues to provide the same limited administrative support that all presidential candidates enjoy. But that’s insufficient for the Biden Transition Team to commence the kind of planning and coordination necessary for a smooth transition and continuity in governance.
As precious days are lost, experts agree that nothing prohibits Murphy from ascertaining the apparent election winner. Meanwhile, Murphy’s failure has real consequences. The coronavirus is spiking, and the trendline is deeply disturbing. The economy is reeling. National security risks abound, and the incoming team cannot receive classified briefings. Important work needs to be done.
Despite public unfamiliarity with the infrequent and short-lived transitions, the process is as complex as it is important. The Partnership for Public Service’s Center for Presidential Transition explains that, since 1963, the Presidential Transition Act tasks GSA with phased responsibilities commencing more than a year before the election, through the conventions, and, most relevant at the moment, after the election (when there is a change in administrations). In addition to making space and funds available,
GSA also serves a[s] liaison between transition teams and the federal government … to ensure that a president-elect’s “beach-head” team is cleared to enter each agency and be on the job immediately after inauguration of the new president. …[A] senior career official … coordinates transition planning across agencies … [and] compile[s] a report on modern transitions and develop a transition directory with comprehensive information on the officers, organization, and responsibilities of each federal agency.
Staggering numbers of new governmental officials need to be selected, vetted, hired, and onboarded. As the Brookings Institution explained:
During the pre-inauguration period, most presidents-elect try to choose the members of the Cabinet and perhaps a few other nominees for prominent positions …. This is the most personalized and ad hoc phase of the personnel selection process, where the president is usually deeply involved….
[But after] the inauguration … the president’s attention is pulled elsewhere …. [and] simply cannot commit much time to the selection of thousands of people who will fill positions in the new administration.
Michael Lewis’ The Fifth Risk and former Office of Government Ethics director Walter Shaub’s account of the “calamitous and chaotic presidential transition” from President Obama to Trump, bemoan how badly Trump misunderstood and disrespected the transition process. So it’s no surprise that, on the way out, he would undermine his successor’s transition.
It’s Over: There’s No Credible Dispute
Congress clarified that certainty need not precede the GSA Administrator’s “ascertainment.” Rather Congress specified that: “The terms “President-Elect” and “Vice-President-elect” ... shall mean such persons as are the apparent successful candidates.” (Emphasis added.)
There’s no credible dispute that Biden and Harris are the “apparent successful candidates.” Despite President Trump’s unsubstantiated claims to the contrary, no major news sources, polling services, projections, or credible analysts acknowledge any significant voter fraud or election irregularities that should cause concern. The New York Times reported that “top election officials across the country said … that the process had been a remarkable success despite record turnout and the complications of a dangerous pandemic.” A team of international election observers, invited by the State Department, generally praised the election process (and criticized President Trump’s unfounded allegations, which could undermine public confidence in the process.)
Trump’s flurry of lawsuits appear to be, in Macbeth’s words, “sound and fury, signifying nothing” and unlikely to change the result. Many were promptly dismissed, while others featured campaign attorneys conceding that little or nothing supported their cases—there has been no evidence of fraud, improper influence, nor late ballot acceptance. Even Republican consultant Karl Rove conceded in the Wall Street Journal that: “the president’s efforts are unlikely to move a single state from Mr. Biden’s column, and certainly they’re not enough to change the final outcome.”
This Isn’t 2000
At this point, even the most informed defense of Murphy’s inaction amounts to “whataboutism.” Sympathizers and Trump supporters point to delayed transition leading up to George W. Bush’s electoral college victory in 2000. That’s thin gruel.
Paul Light understood the legislative history to suggest that the 2000 transition should have been green-lighted despite “an exceedingly close popular vote, and … only a few electoral votes” ultimately separating Bush and Vice President Al Gore. Similarly, in his exhaustive analysis of the 2000 transition, Professor Todd Zywicki agreed, asserting that even “under the facts of the 2000 presidential election, the [GSA] Administrator had no statutory authority to withhold the transition resources.”
But 2020 is no 2000, where a razor-thin and hotly disputed outcome in Florida, ultimately resolved by the Supreme Court, produced a final electoral college margin of 271-266. Current projections envision Biden enjoying a 306-232 margin, a seemingly insurmountable margin for error.
In 2000, fewer than 600 votes—out of more than five million cast—separated Bush and Gore in Florida. That’s close! In 2020, Biden leads Trump by more than 10,000 votes in Arizona and Georgia, more than 20,000 in Wisconsin and Nevada, more than 50,000 in Pennsylvania—and, while Biden is projected to win all of these states, none are individually necessary for him to prevail. In 2020, the national popular vote margin was less than 545,000 (with Gore, not Bush, winning the popular vote). Currently, Biden is projected to win the popular vote by more than 5 million votes.
Time Is Fleeting
Neither waiting for the Electoral College on December 14 nor expecting President Trump to embrace longstanding norms for an orderly transition is justified. Whether she is affirmatively implementing Trump’s obstruction efforts or attempting to avoid controversy by doing nothing, Emily Murphy’s paralysis is affirmatively harmful. As Paul Light testified in December of 2000: “Time, not money, is the precious resource in a transition, which is why Congress allowed the Administrator to make a determination of the apparent successful candidates long before the electoral college meets.”
Similarly, Zywicki cautions us not to be distracted by the (relatively small sums of) transition funds, which, frankly, will get spent anyway. Rather, Congress sought to avoid the kind of wasteful delay we are currently experiencing, which is why it decided to authorize:
release of transition resources to the ‘apparent’ successful candidate, rather than awaiting an official announcement of a winner. Congress’s fears are a one-way street—the country will undoubtedly be harmed by delay in releasing the transition resources, but there will be minimal harm from releasing the resources to the apparent successful candidate. Money can be replaced; time cannot.
Ironically, Murphy finds herself at the center of this controversy because Congress specifically chose GSA with an eye towards avoiding the kind of political influence that so permeates the outgoing administration. As Light explained:
Congress believed that the decision was ministerial, not political, in nature, and viewed the General Services Administration as one of several federal agencies that would make such determinations as part of the ordinary exercise of discretion following even close elections.
It’s charitable for Professor Keith Whittington to suggest that it “cannot reasonably be expected that the head of the GSA will act contrary to the will of the president[,]” but it’s not persuasive. Murphy’s inaction undermines Congress’ intent. She would do well to remember that her oath of office references “the duties of the office” and not the whims of the president. And, besides, what’s in it for her? Even if she wasn’t chilled by this week’s leadership purge at the Pentagon, she’ll certainly be vacating her position within two months.
Murphy’s foot dragging isn’t a crime, and nothing suggests she could or should be prosecuted for her loyalty to the outgoing president. With time, most will forget that she tolerated GSA’s conflict-ridden, emolument magnet Trump International Hotel lease or that she may have been less than forthcoming when Trump scuttled the FBI’s exodus from its crumbling headquarters. But this unnecessary obstruction of the orderly transfer of power won’t reflect well on her when the history of this period is written.
Congress left no doubt that it wanted “appropriate actions be authorized and taken to avoid or minimize any disruption.” The votes have been cast and counted. Ascertain the election outcome. Serve the public interest. Let the Biden transition officially begin.
Steven L. Schooner is the Nash & Cibinic Professor of Government Procurement Law at the George Washington University (GW) Law School.