[Senate Report 115-386]
[From the U.S. Government Publishing Office]
Calendar No. 672
115th Congress } { Report
SENATE
2d Session } { 115-386
_______________________________________________________________________
PRESIDENTIAL TRANSITION ENHANCEMENT ACT OF 2018
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 3487
TO AMEND THE PRESIDENTIAL TRANSITION ACT OF 1963
TO IMPROVE THE ORDERLY TRANSFER OF THE EXECUTIVE POWER DURING
PRESIDENTIAL TRANSITIONS
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
November 26, 2018.--Ordered to be printed
______
U.S. GOVERNMENT PUBLISHING OFFICE
89-010 WASHINGTON : 2018
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona CLAIRE McCASKILL, Missouri
ROB PORTMAN, Ohio THOMAS R. CARPER, Delaware
RAND PAUL, Kentucky HEIDI HEITKAMP, North Dakota
JAMES LANKFORD, Oklahoma GARY C. PETERS, Michigan
MICHAEL B. ENZI, Wyoming MAGGIE HASSAN, New Hampshire
JOHN HOEVEN, North Dakota KAMALA D. HARRIS, California
STEVE DAINES, Montana DOUG JONES, Alabama
Christopher R. Hixon, Staff Director
Gabrielle D'Adamo Singer, Chief Counsel
Courtney J. Allen, Deputy Chief Counsel for Governmental Affairs
Margaret E. Daum, Minority Staff Director
Charles A. Moskowitz, Minority Senior Legislative Counsel
Katherine C. Sybenga, Minority Counsel
Laura W. Kilbride, Chief Clerk
Calendar No. 672
115th Congress } { Report
SENATE
2d Session } { 115-386
======================================================================
PRESIDENTIAL TRANSITION ENHANCEMENT ACT OF 2018
_______
November 26, 2018.--Ordered to be printed
_______
Mr. Johnson, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany S. 3487]
[Including cost estimate of the Congressional Budget Office]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 3487) to amend the
Presidential Transition Act of 1963 to improve the orderly
transfer of the executive power during Presidential
transitions, having considered the same, reports favorably
thereon with amendments and recommends that the bill, as
amended, do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History..............................................4
IV. Section-by-Section Analysis......................................4
V. Evaluation of Regulatory Impact..................................5
VI. Congressional Budget Office Cost Estimate........................5
VII. Changes in Existing Law Made by the Bill, as Reported............6
I. Purpose and Summary
The purpose of S. 3487 is to strengthen the presidential
transition process by clarifying responsibilities of the
General Services Administration (GSA) and other agencies during
a transition and by requiring a contractual relationship
between GSA and a transition team to guide the transition
process.
II. Background and Need for Legislation
To ``promote the orderly transfer of the executive power,''
Congress passed the Presidential Transition Act of 1963.\1\
This law and its successor statutes require the GSA to provide
the President-elect and the Vice-President-elect with office
space, equipment, staff, and communications services to prepare
for the assumption of their official duties as President and
Vice President.\2\ The Edward ``Ted'' Kaufman and Michael
Leavitt Presidential Transitions Improvements Act of 2015
(hereinafter the ``2015 Presidential Transitions Act'')
established the White House Transition Coordinating Council and
the agency transition directors council to ensure efficient
coordination between Federal agencies and transition teams when
conducting transition activities.\3\
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\1\Presidential Transition Act of 1963, Sec. 2, Pub. L. No. 88-277,
78 Stat. 153 (1964).
\2\Id. at Sec. 3; see also Pre-Election Presidential Transition Act
of 2010, Pub. L. No. 111-283, 124 Stat. 3045 (2010).
\3\Edward ``Ted'' Kaufman and Michael Leavitt Presidential
Transitions Improvements Act of 2015, Pub. L. No. 114-136, 130 Stat.
301 (2016).
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Trump for America, Inc. (TFA) was the organization
designated to carry out pre-election and post-election
transition activities for then-candidate Donald J. Trump.\4\ In
December 2017, the Committee received an allegation from TFA
that GSA had unlawfully disclosed its privileged
communications.\5\ Since the allegation raised concerns about
whether future presidential transition teams would trust GSA to
safeguard their confidential material, and as the committee
tasked by the Standing Rules of the Senate to oversee
presidential transitions, the Committee opened an examination
of the GSA's actions.\6\ The Committee received 6,400 of pages
of documents produced by GSA and conducted an interview with a
GSA attorney.\7\
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\4\Letter from Christopher J. Christie, Transition Chairman, Trump
for America, Inc., to Timothy Horne, Federal Transition Coordinator,
Gen. Serv. Admin. (Aug. 1, 2016) [GSA 004583].
\5\Letter from Kory Langhofer, Counsel, Trump for America, Inc., to
Senator Ron Johnson, Chairman, S. Comm. on Homeland Security and
Governmental Affairs (Dec. 16, 2017). Acting Attorney General Rod J.
Rosenstein appointed Robert S. Mueller III to serve as a Special
Counsel of the U.S. Department of Justice on May 17, 2017, and ordered
the Special Counsel to investigate ``the Russian government's efforts
to interfere in the 2016 presidential election.'' See U.S. Dep't of
Justice, Order No. 3915-2017, Appointment of Special Counsel to
Investigate Russian Interference with the 2016 Presidential Election
and Related Matters, available at https://www.justice.gov/opa/press-
release/file/967231/download.
\6\Letter from Senator Ron Johnson, Chairman, S. Comm. on Homeland
Security and Governmental Affairs, to Emily Murphy, Administrator, Gen.
Serv. Admin. (Dec. 19, 2017). See also S. Rule XXV(k)(10) referring to
the Committee matters relating to ``organization and reorganization of
the executive branch of the Government.''
\7\Letter from Emily Murphy, Administrator, Gen. Serv. Admin., to
Senator Ron Johnson, Chairman, S. Comm. on Homeland Security and
Governmental Affairs (Jan. 19, 2018).
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The information provided to the Committee demonstrated that
both GSA and transition teams need additional guidance and
protections in the event of third-party interest in the
activities and records of a transition team. Specifically,
there is no statutory requirement for GSA and transition teams
to enter into a memorandum of understanding (MOU) to lay out
the terms and responsibilities for each party regarding
transition services. There also is no statutory language to
ensure GSA is fully transparent with a transition team
regarding its maintenance and distribution of transition team
records.
This bill will address those deficiencies by requiring GSA
and transition teams to enter into a MOU that sets the terms
and conditions by which GSA will provide, and the transition
team will receive, transition-related services. In addition,
the MOU must designate a transition representative in the
transition team to whom GSA must direct all third-party
inquiries for transition team records. The bill also requires
GSA and transition teams to provide advance notice if any
deviation from the terms of the MOU is anticipated.
In addition to the issue regarding transition team records,
the non-partisan Partnership for Public Service (Partnership)
learned of other statutory obstacles transition teams faced
during the 2016 presidential transition through interviews with
transition officials.\8\ A main concern included differing
interpretations of the services GSA could provide a transition
team after inauguration day. According to the Partnership,
despite the fact that the 2015 Presidential Transitions Act
authorized GSA to continue providing services and facilities
for up to 180 days after inauguration day, GSA and the Trump
transition team negotiated an agreement whereby the transition
team paid a lease to remain in GSA building space through
February 2017.\9\ Transition officials also told the
Partnership that 60 days, rather than the 180 days authorized
under current statute, is a sufficient amount of time to allow
transition officials ``to focus on recruiting and filling key
positions while also transitioning incoming White House
personnel officials into their new physical quarters within the
Executive Office of the President.''\10\ Current statute also
caused unnecessary delays for transition teams onboarding
detailed congressional staff because statute requires an agency
head to approve the detail.\11\
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\8\E-mail from Partnership of Public Service to Committee staff
(Nov. 2, 2018, 16:39 EDT).
\9\Id. See also Edward ``Ted'' Kaufman and Michael Leavitt
Presidential Transitions Improvements Act of 2015, supra note 3 at
Sec. 2.
\10\Id.
\11\Id. See also Presidential Transition Act of 1963, supra note 1
at Sec. 3.
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The Partnership also identified potential areas of
improvement for transition activities within agencies during a
presidential transition. According to the Partnership,
transition officials viewed the agency transition directors
council, established under the 2015 Presidential Transitions
Act, ``as helping to build trust with the incoming
administration because almost all [council] members were the
senior career officials responsible for their agencies'
transitions.''\12\ However, a few agencies sent an official to
the council who was not the person responsible for their
agency's transition responsibilities, raising ``a risk of
undermining the cohesiveness of the transition strategy.''\13\
The Partnership also learned of confusion among agencies
regarding the statutory requirement to designate career
officials to serve in an acting role for vacant senior
political positions to be appointed by the incoming
administration.\14\
---------------------------------------------------------------------------
\12\Id.
\13\Id.
\14\Id. See also Edward ``Ted'' Kaufman and Michael Leavitt
Presidential Transitions Improvements Act of 2015, supra note 3 at
Sec. 2.
---------------------------------------------------------------------------
This bill also addresses these concerns identified by the
Partnership by clarifying that GSA can provide a transition
team with services and facilities for up to 60 days after
inauguration. This bill will reduce delays in detailing
congressional staff to transition teams by having the Member of
Congress for whom the staff works approve the detail rather
than an agency head. The agency transition directors council
will be required to be an agency employee whose job
responsibilities include implementing presidential transition
activities in order to prevent different individuals from
leading transition activities of each agency and clarifies the
requirement for agencies to establish a succession plan for
each outgoing senior political position.
III. Legislative History
Senator Ron Johnson (R-WI) introduced S. 3487 on September
25, 2018. The bill was referred to the Committee on Homeland
Security and Governmental Affairs on September 25, 2018.
The Committee considered S. 3487 at a business meeting on
September 26, 2018. Senator Johnson offered an amendment that
would allow GSA to provide services and facilities to a
transition team for up to 60 days after inauguration of the
President-elect and Vice-President-elect. The amendment would
also terminate the designation of a transition representative
under the MOU between a transition team and GSA either upon the
request of the transition team or 180 days after inauguration
of the President-elect and Vice-President-elect. The amendment
was adopted by voice vote with Senators Johnson, Portman, Paul,
Lankford, Enzi, Hoeven, Daines, McCaskill, Carper, Heitkamp,
Peters, Hassan, Harris, and Jones present.
Senator Tom Carper offered an amendment that would impose
new requirements on transition teams to develop an ethics plan
and to report to Congress on each transition team member who
applies for or receives a security clearance. It would also
impose new requirements on any individual involved with a
transition team to publicly disclose certain sources of their
private income, regardless of the duration of involvement or
the voluntary or compensated nature of the involvement. A voice
vote was held on the amendment, and the amendment was not
adopted. Senators Johnson, Portman, Paul, Lankford, Enzi,
Hoeven, Daines, McCaskill, Carper, Heitkamp, Peters, Hassan,
Harris and Jones were present for the voice vote.
The legislation as amended by the Johnson amendment was
passed by voice vote with Senators Johnson, Portman, Paul,
Lankford, Enzi, Hoeven, Daines, McCaskill, Carper, Heitkamp,
Peters, Hassan, Harris and Jones present.
IV. Section-by-Section Analysis of the Bill, as Reported
Section 1. Short title
This section gives the bill the short title of the
``Presidential Transition Enhancement Act of 2018''.
Section 2. Presidential transition enhancements
This section improves the operation of presidential
transitions for GSA and presidential transition teams.
Subsection (a) allows GSA to provide transition services to
a transition team for up to 60 days after the inauguration of
the President-elect and Vice-President-elect. This subsection
clarifies that congressional employees may be detailed to a
transition team and replaces the term ``computers'' with
``information technology.'' Under this subsection, transition
teams and GSA will be required to enter into a MOU that will
include the conditions by which transition teams will access
GSA staff, facilities, and agency documents. The MOU also
requires the transition team to designate a transition
representative to whom GSA will direct any inquiries or legal
instruments for transition team records. This designation ends
either upon the request of the transition team or 180 days
after the inauguration of the President-elect and Vice-
President-elect. GSA will be required to notify a transition
team at least three days in advance of taking any action that
deviates from the terms and conditions of the MOU.
Subsection (b) requires that an agency employee serving as
a senior representative in the agency transition directors
council must be serving in a career position at the agency.
This subsection also requires each agency to develop a
succession plan for each senior non-career position in the
agency by September 15 of a Presidential election year.
V. Evaluation of Regulatory Impact
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill and determined
that the bill will have no regulatory impact within the meaning
of the rules. The Committee agrees with the Congressional
Budget Office's statement that the bill contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA) and would impose no costs
on state, local, or tribal governments.
VI. Congressional Budget Office Cost Estimate
U.S. Congress,
Congressional Budget Office,
Washington, DC, October 23, 2018.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 3487, the
Presidential Transitions Enhancement Act of 2018.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Keith Hall,
Director.
Enclosure.
S. 3487--Presidential Transition Enhancement Act of 2018
S. 3487 would limit the period during which services and
facilities are provided to Presidential transition teams and
would authorize the executive branch to pay legislative
employees working for them. S. 3487 also would set a timeline
for the General Services Administration (GSA) to enter into
agreements with campaigns to prepare for possible transitions.
According to GSA, most of the bill's provisions would not
have a significant effect on the cost of a Presidential
transition. However, by reducing from 180 days to 60 days after
an inauguration the period in which a transition team may use
government services and facilities, the bill would reduce costs
for staffing and office space. CBO estimates that the decrease
in costs would be less than $500,000 annually over the next
five years.
Enacting S. 3487 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
CBO estimates that enacting S. 3487 would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2029.
S. 3487 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
The CBO staff contact for this estimate is Matthew
Pickford. The estimate was reviewed by H. Samuel Papenfuss,
Deputy Assistant Director for Budget Analysis.
VII. Changes in Existing Law Made by the Bill, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill, as reported, are shown as follows: (existing law
proposed to be omitted is enclosed in brackets, new matter is
printed in italic, and existing law in which no change is
proposed is shown in roman):
UNITED STATES CODE
* * * * * * *
TITLE 3--THE PRESIDENT
* * * * * * *
CHAPTER 2--OFFICE AND COMPENSATION OF PRESIDENT
* * * * * * *
SECTION 102--COMPENSATION OF THE PRESIDENT
* * * * * * *
Notes
* * * * * * *
Presidential Transition Act of 1963
* * * * * * *
SEC. 3. SERVICES AND FACILITIES AUTHORIZED TO BE PROVIDED TO
PRESIDENTS-ELECT AND VICE-PRESIDENTS-ELECT
(a) The Administrator of General Services, referred to
hereafter in this Act as ``the Administrator,'' is authorized
to provide, [upon request, to each President-elect and each
Vice-President-elect, for use in connection with his
preparations for the assumption of official duties as President
or Vice President necessary services and facilities, including]
upon request, to each President-elect, each Vice-President-
elect, and for up to 60 days after the date of the inauguration
of the President-elect and Vice-President-elect, each President
and Vice President, for use in connection with the preparations
for the assumption of official duties as President or Vice
President necessary services and facilities, including the
following:
(1) * * *
(2) Payment of the compensation of members of office
staffs designated by the President-elect or Vice-
President-elect at rates determined by them not to
exceed the rate provided by the Classification Act of
1949, as amended (chapter 51 and subchapter III of
chapter 53 of title 5), for grade GS-18: Provided, That
any employee of any agency of any branch of the
Government, or an employee of a committee of either
House of Congress, a joint committee of the Congress,
or an individual Member of Congress, may be detailed to
such staffs on a reimbursable basis with the consent of
the head of the agency, or in the case of an employee
in a position in the legislative branch, with the
consent of the supervising Member of Congress; and
while so detailed such employee shall be responsible
only to the employment without interruption.
Notwithstanding any other law, persons receiving
compensation as members of office staffs under this
subsection, other than those detailed from agencies,
shall not be held or considered to be employees of the
Federal Government except for purposes of the Civil
Service Reform Act (section 8301 et seq. of title 5),
the Federal Employees' Compensation Act (section 8501
et seq. of title 5), the Federal Employees' Group Life
Insurance Act of 1954 (section 8701 et seq. of title
5), and the Federal Employees Health Benefits Act of
1959 (section 8901 et seq. of title 5).
* * * * * * *
[(b) The Administrator may not expend funds for the
provision of services and facilities under this section in
connection with any obligations incurred by the President-elect
or Vice-President-elect--
[(1) before the day following the date of the general
elections held to determine the electors of President
and Vice President under section 1 or 2 of title 3,
United States Code; or
[(2) after 180 days after the date of the
inauguration of the President-elect as President and
the inauguration of the Vice-President-elect as Vice
President.]
(b) The Administrator shall expend funds for the provision
of services and facilities under this section--
(1) in connection with any obligation incurred by the
President-elect or Vice-President-elect, or after the
inauguration of the President-elect as President and
the inauguration of the Vice-President-elect as Vice
President incurred by the President or Vice President,
during the period--
(A) beginning on the day after the date of
the general elections held to determine the
electors of the President and Vice President
under section 1 or 2 of title 3, United States
Code; and
(B) ending on the date that is 60 days after
the date of such inauguration; and
(2) without regard to whether the President-elect,
Vice-President-elect, President, or Vice President
submits to the Administrator a request for payment
regarding services or facilities before the end of such
period.
* * * * * * *
(h) * * *
(1) * * *
(2)
(A) * * *
(B)
(i) * * *
(ii) shall, as appropriate, ensure
that any [computers] information
technology or communications services
provided to an eligible candidate under
this subsection are secure;
* * * * * * *
(i) Memorandums of Understanding.
(1) In general.--Not later than September 1 of a year
during which a Presidential election occurs, the
Administrator shall, to the maximum extent practicable,
enter into a memorandum of understanding with each
eligible candidate, which shall include, at a minimum,
the conditions of access to employees, facilities, and
documents of agencies by transition staff.
(2) Existing resources.--To the maximum extent
practicable, a memorandum of understanding entered into
under paragraph (1) shall be based on memorandums of
understanding relating to previous Presidential
transitions.
(3) Transition representative.--
(A) Designation of representative for
inquiries.--Each memorandum of understanding
entered into under this subsection shall
designate a representative of the eligible
candidate to whom the Administrator shall
direct any inquiries or legal instruments
regarding the records of the eligible candidate
that are in the custody of the Administrator.
(B) Change in transition representative.--The
designation of a new individual as the
transition representative of an eligible
candidate shall not require the execution of a
new memorandum of understanding under this
subsection.
(C) Termination of designation.--The
designation of a transition representative
under a memorandum of understanding shall
terminate--
(i) not later than 180 days after the
date of the inauguration of the
President-elect as President and the
inauguration of the Vice-President-
elect as Vice President; or
(ii) before the date described in
clause (i), upon the request of the
President-elect or Vice-President-
elect, or after such inauguration upon
request of the President or Vice
President.
(4) Amendments.--Any amendment to a memorandum of
understanding entered into under this subsection shall
be agreed to in writing.
(5) Prior notification of deviation.--Each party to a
memorandum of understanding entered into under this
subsection shall provide written notice, except to the
extent prohibited under another provision of law, not
later than 3 days before taking any action that
deviates from the terms and conditions agreed to in the
memorandum of understanding.
(6) Definition.--In this subsection, the term
``eligible candidate'' has the meaning given that term
in subsection (h)(4).
SEC. 4. TRANSITION SERVICES AND ACTIVITIES BEFORE ELECTION.
(a) * * *
* * * * * * *
(e)
(1) * * *
(2) * * *
(3)
(A) * * *
(B) * * *
(C) a senior representative serving in a
career position from each agency described in
section 901(b)(1) of title 31, United States
Code, the Office of Personnel Management, the
Office of Government Ethics, and the National
Archives and Records Administration whose
responsibilities include leading Presidential
transition efforts within the agency;
(D) a senior representative serving in a
career position from any other agency
determined by the Co-Chairpersons to be an
agency that has significant responsibilities
relating to the Presidential transition
process; and
* * * * * * *
(f)
(1) * * *
[(2) Acting officers.--Not later than September 15 of
a year during which a Presidential election occurs, and
in accordance with subchapter III of chapter 33 of
title 5, United States Code, for each noncareer
position in an agency that the head of the agency
determines is critical, the head of the agency shall
designate a qualified career employee to serve in that
position in an acting capacity if the position becomes
vacant.] (2) Acting officers.--Not later than September
15 of a year during which a Presidential election
occurs, and in accordance with subchapter III of
chapter 33 of title 5, United States Code, the head of
each agency shall ensure that a succession plan is in
place for each senior noncareer position in the agency.
* * * * * * *
[all]