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A Survivor's Guide for Presidential Nominees A complete source of information for navigating the nomination, clearance, and Senate confirmation process - as well as tips on compliance with ethics laws and financial disclosure rules. 2013 Edition EFTA01122521  Presidential Foreword and Acknowledgements I am pleased to present, on behalf of the National Academy of Public Administration this fourth edition of the Survivor's Guide for Presidential Nominees. For many Presidential appointees, navigating the waters of a Senate confirmation can be daunting. It is our hope to have this serve as a resource for aspiring and confirmed Presidential appointees as they prepare for their roles in the administration. As President Obama enters his second term, the Academy recognizes that even with a continuing Administration, hundreds of new appointees will be vetted, confirmed, and serve over the next four years. This revised version reflects changes in law and new Senate rules affecting Presidential nominees. I want to thank the Academy staff for their hard work in updating this important resource, particularly Allison Fahrenkopf Brigati and Jonathan Wigginton, as well as Terri Hauser who contributed to updating the Survivor's Guide. Also, the Academy gratefully acknowledges the generous support of Academy Fellow, Linda Springer and the firm ofF.rnst 14 Young, LLP in making this updated version possible. In addition, the Academy recognizes and thanks all those who contributed to the past editions, upon which the current Survivor's Guide draws heavily. Aer-Serat:r Dan G. Blair President and CEO National Academy of Public Administration EFTA01122522 Executive Summary It is an honor and a privilege to be asked to serve your country as a member of the President's administration. Before saying yes, however, ask yourself whether you want to face the demands and conflicts that come with a presidential appointment. Many who have served in senior positions attest that these were the most exciting and rewarding days of their life, and whatever sacrifices they had to make, and waits they had to endure, were worth it. That is what almost all say ... after their public service is over. For now, you have more questions than answers. You want to find out what joining the administration would mean for you and your family, and your career after government. You want a guide to navigate the maze of financial and personal disclosure forms and other steps on the appointment and confirmation process. That is where the Survivor's Guide comes in. This Survivor's Guide is intended to serve as a one-stop source of information every prospective nominee would need to know about taking one of the over 1,000 full-time presidential-appointed positions across the Executive Branch that requires Senate confirmation (PAS positions). Some of the Survivor Guide's information may also prove useful to presidential appointees whose jobs do not require Senate confirmation. But the special focus of this book is on those nominees who must first pass the White House's muster, and then convince the U.S. Senate that they are worthy of high government office. Washington can be a tough city; it can wreak havoc on family life with long, unforgiving hours. But it can also provide the experiences and memories of a lifetime, which explains why many who move to Washington never leave. We hope the Survivor's Guide will help you with that decision - and make the path smoother if you answer the call to service. EFTA01122523 The Five P's As you navigate your journey, let the five P's serves as your compass - Persistence, Patience, Preparation, Prudence, and Passion. Persistence - If you have your eye on an administration job, you need to work aggressively through the transition team, the White House Office of Presidential Personnel, and the Cabinet Secretary to secure it. Tap any connection you have, no matter how indirect; it helps to have a powerful promoter. There are far more people seeking presidential appointments than there are plum positions available - you must be your own strongest advocate. Chapter 1 (First Things First) provides information on finding a job that is the right fit, how to get noticed, and what to expect if the White House calls. Patience - Those who want to join a new or continuing presidential administration must be prepared to spend months in limbo, waiting for the White House to make up its mind, then waiting again to be confirmed. Chapter 2 (People and Places Along the Way) introduces you to the key officials you will be dealing with on your nomination and confirmation journey. Preparation - If you are not nervous going into your confirmation hearing, you should be. Chapter 3 (Navigating the Senate) provides insider advice on preparing for and surviving your confirmation hearing, including meeting with committee members beforehand, answering committee questions, and making sure you are fully knowledgeable about your agency or department ... and your own record. Prudence - Washington is a fishbowl where everything you do or say is on display, all the more so in the era of electronic information and social media. As a prospective high-level appointee, your actions and words will be under the microscope. Chapter 4 (Tread Carefully Before You Are Confirmed) discusses the restrictions you will encounter in interacting with your agency between nomination and confirmation, and looks at the pros and cons of joining an administration before the Senate confirms you. Chapter 5 (Dealing with the Media) offers guidance for handling the press and explains why nominees are well advised to refrain from talking with the news media, either on background or on the record, before they are confirmed. Passion - Anyone signing up to work for the President of the United States faces the nagging question of whether he or she really wants to put up with the hassles of government work. The Survivor's Guide will help prepare you to face the mountains of paperwork (Chapter 8: Forms and Financial Disclosures); ethics restrictions during and after your service (Chapter 7: The Ethics Rules and Life After Government); and even EFTA01122524 uprooting your family (Chapter 6: Moving to Washington). But you alone can supply the passion every successful appointee must have - passion for the job you take on, passion for serving the president, and passion for making a difference for our country. "Very few people ... get to serve at the highest levels of government. Public service is one of the highest callings in the land. You have an opportunity to make a positive impact on families, communities, states, and sometimes the world. And if you're not at the end of your career, you can greatly enhance your marketability after you leave the Federal Government." - Bob Nash, former Director of the White House Office of Presidential Personnel in the Clinton Administration. EFTA01122525  Table of Contents Presidential Foreword and Acknowledgements 1 Executive Summary 2 Chapter 1: First Things First 6 Chapter 2: People and Places Along the Way 17 Chapter 3: Navigating the Senate 29 Chapter 4: Tread Carefully Before You Are Confirmed....................................................38 Chapter S: Dealing with the Media 42 Chapter 6: Moving to Washington 45 Chapter 7: The Ethics Rules and Life After Government 50 Chapter 8: Forms and Financial Disclosures.. 55 Chapter 9: Resources 60 About the Academy 71 EFTA01122526  CHAPTER 1 First Things First The phone rings. It is the White House calling, or the Office of Presidential Personnel "We're looking to fill a senior position in the administration, and we understand that you are one of most knowledgeable people in this field. Are you interested? You are honored and flattered. You may have been on pins and needles waiting for this call, or it may have come out of the blue. Either way, the President wants you to take a job important enough to require Senate confirmation. But should you? If the White House comes calling, or you are eager to secure a presidential nomination, it pays to first ask yourself some hard questions. • Do I want this particular job? • Am I right for it? • What will it mean financially and personally? • Where can I find help getting through the long and sometimes precarious nomination and confirmation process? Do I want this job? It is not easy to say "No" to the President of the United States. But no matter who is asking, take a hard look at the pros and cons of public service: If you cannot convince yourself, you may have difficulty convincing the White House or the Senate that you deserve it. These are all-consuming jobs. The drawbacks include uprooting yourself and your family and subjecting yourself to intense public scrutiny. Any misstep in office can be unfairly magnified in the Washington fishbowl, potentially scarring your reputation. If there are hidden skeletons in your life - from unpaid taxes or debts to a padded r€sumE - they will be discovered. You must disclose them to the White House and be aware of the possibility that they may become EFTA01122527 7 Chapter 1: First Things First public. Even for sub-Cabinet positions that normally do not attract an intense spotlight, a nominee must be ready for the rough-and- tumble political life. "A Tough Skin" The stakes are highest for Cabinet officers, but every post that requires Senate confirmation comes with challenges. As Charles Jeffress, a former Occupational Safety and Health Administrator, put it, "Make sure you've got a tough skin." And be prepared to be knocked down a peg or two. Clay Johnson, former Assistant to the President for Presidential Personnel, warned, "You must remember the work you do while in service to our country is very important, but you are not." Getting Noticed A few nominees come to their posts from the pinnacles of careers in business, academia, or government, like Harold Varmus, the Nobel Prize winner in medicine who revitalized the National Institutes of Health, or Hilary Rodham Clinton, United States Senator, former First-Lady of the United States, and respected Secretary of State during President Obama's first term. Most nominees already have distinguished résumés, but some may be looking toward government service as a career builder. If the job you really have your eye on is the one awaiting you after your government stint, you could be in for trouble. Clay Johnson commented, "Some appointees want to 'do,' while others want to 'be.' Don't go to Washington to 'be' this or that. Go to 'do' what you understand the President wants you to accomplish while you're there. We need more 'do' and less 'be.'" Still, there are far more people seeking presidential appointments than there are positions available. You must be your own strongest advocate to land one of these plum positions. If you have waited until after the election to contact the President-elect and his team, you may have waited too long. The odds favor those who have already made themselves indispensable, or at least known, to the winning candidate. Bob Nash warned that if you wait until after the election to cold call the transition team, "you're going to be behind the eight ball as it relates to someone else equally capable and competent who has been connected with the new administration. Usually the only exception is a highly-technical position with no competent inside-the-team applicants. An example is the Chairman of the Nuclear Regulatory Commission." EFTA01122528  Chapter 1: First Things First 8 But do not give up. Instead, look to tap any connection you may have, no matter how indirect Perhaps your Congressman is close to an incoming Cabinet Secretary, or the Washington lobbyist of your professional organization raised money for the President's campaign. "It's very embarrassing to ask everybody you know to make phone calls on your behalf," said Gregory Baer, a former Assistant Secretary of the Treasury, but job seekers must "be absolutely shameless about it." Obviously, it helps to have a powerful advocate such as a Cabinet Secretary - but even that is no guarantee. Cabinet Secretaries usually don't get to choose who gets the other top posts in their departments. Am I the right person for this position? It is hard to look in the mirror and frankly gauge your weaknesses as well as strengths. But before the White House passes judgment on you, take a close look at whether your managerial experiences match up well with the challenge at hand. Examine what this government job entails as closely as the White House and others will be examining you. The Academy's Political Appointee Project is a good place to start: this website offers a wealth of information regarding the appointment process and the rigors and rewards of public service. Among the resources available through this portal is the Memos to National Leaders series, a project launched by the Academy and the American Society of Public Administration (ASPA) to inform incoming leaders about the policy and management challenges facing our nation. The focused memoranda outline these challenges and recommend solutions, representing a consensus of the best-thinking by public management practitioners and researchers throughout the nation. After every presidential election, Congress publishes the so-called Plum Book listing all the jobs that the President can fill. You may also browse the entire U.S. Government Manual online, which contains the names, titles, and phone numbers of senior officials and department heads across the government You might be interested in knowing where a particular position falls in the Executive Branch hierarchy and salary structure. To find out whether a position is classified as Executive Level I (Secretary rank), II (Deputy Secretary rank) Ill (Under Secretary rank), IV (Assistant Secretary rank) or V (Administrators, Directors, and Commissioners), you can EFTA01122529 9 Chapter 1: First Things First check out the Plum Book which shows what these jobs pay. The complete salary scale for Executive Schedule jobs appears on the Office of Personnel Management (OPM) website. Some jobs and talents are transferable. Someone who knows how to work Capitol Hill could be the Assistant Secretary for Legislation for the Department of Labor just as well as for the Department of Health and Human Services (HHS). The same may hold true for public affairs and general counsel positions. But most senior presidential appointments demand specific skills and expertise. Be sure the proffered position is right for you. Especially at the outset of an administration, a candidate may be considered for a number of openings. When one vacancy is filled, other candidates may be shopped around to various Cabinet departments. Do not let yourself be shuffled around to the point where the job in question makes no sense for you. And do not be swayed by grandiose titles. Find out if there is real work to be done, and room to do it. Playing to Strengths You may know an agency's programs inside out and upside down. Does that mean you can run them? Some appointees are taken aback by the management demands of what they thought would be strictly policy jobs. Hans Mark, a physicist and former Chancellor of the 15-campus University of Texas System who held top jobs at the Pentagon and NASA, said presidential appointees should be accomplished in something more "than working the Washington political system." He suggested candidates ask themselves, "Have you managed a project? Have you run an organization, been a university President, run a company? Can you fire somebody? Can you do the things that a manager has to do?" Too Deeply Involved? Another issue to consider is whether you are so deeply involved in a particular field or an issue that it could tie your hands from making key decisions once confirmed. If your law practice consists entirely of representing corporate clients in tax disputes with the Jnternal Revenue Service (IRS), you might be hamstrung by recusals if offered the job of IRS Commissioner. Likewise, if you came to the Food and Drug Administration (FDA) from the pharmaceutical industry, you might have to sit on the sidelines on major drug policy decisions. But many nominees work out sensible solutions on recusals with the U.S. Office of Government Ethics (OGE). The fact that your company or law firm was involved in EFTA01122530  Chapter 1: First Things First 10 a certain matter does not necessarily disqualify you from handling the issue once you enter government Learning AboutAgencies Weeks may pass between when the White House publicly announces the Presidents "intention" to nominate you to a senior post requiring Senate confirmation, and the actual submission of your nomination to the Senate. When your name does go up to Capitol Hill as a nominee, you will face a new battery of forms and detailed policy questions from the Senate committee taking up the appointment. Here you can count on help from your department's legislative affairs staff in answering Senators' written questions. You may get a thick briefing book from your department, but you should also do your own homework and be prepared for a tough grilling, even if that does not happen. There's a wealth of information at your fingertips, including: • Government Accountability Office (GAO) reports about federal programs that you can download from the web - www.gao.gov • Departmental websites, which include Inspector General reports about troubled programs; • Department and agency performance reports, which must be filed annually with Congress by March 31; • The Library of Congress' indispensable website - thomas.loc.gov - with links to Executive and Judicial as well as Legislative resources. Thomas, as the Library familiarly calls its portal, has a webpage devoted to presidential nominations where the public can find out details on every presidential nomination, broken down by state, date, and disposition; • The OpenCongress and GovTrack websites, and, nonpartisan websites that seek to make government and legislation information more readily available to citizens; • The Federal Register which is searchable and contains all rules and notices issued by each agency; • The Government Printing Office (GPO) website, which links to each Senate committee; • The White House website, www.whitehouse.gow EFTA01122531 11 Chapter 1: First Things First • The Congressional Research Service (CRS), which conducts public policy research for members of Congress, their committees, and staffs. Not all are made public, much to the frustration of open government organizations. You can request CRS reports through your member of Congress, or search for them through federal depository libraries and other sources online; and • The National Academy of Public Administration, "Reports and Publications." For more information, see Chapter 9. Resources. What Restrictions Will You Face on Post-Government Employment? As prestigious as a presidential appointment may be, it can have detrimental effects on your income. There are two issues to consider: salary and post-employment restrictions. As a government employee, your salary is set by law. The Executive Schedule pay levels in 2013 were scheduled to include a 0.5 percent increase, but Congress froze salaries for the third consecutive year. The Executive Schedule is as follows:1 Level I $199,700 Level II $179,700 Level Ill $165,300 Level IV $155,500 Level V $145,700 Level I, is the Cabinet and positions with Cabinet rank. Level IV jobs include assistant secretaries and general counsels, and Level V jobs are the rung below that. There are no stock options or bonuses for political appointees. Further, the Stop Trading on Congressional Knowledge Act (STOCK Act), signed into law on April 4, 2012, makes it clear that "insider trader" prohibitions apply to you as a public official.2 By Executive I Pursuant to Executive Order 13635, federal employees were scheduled to receive a 0.5% pay increase beginning in April 2013. At this writing, the House of Representatives has passed legislation (H.R. 273) that would continue, effective since 2010, to freeze federal pay, blocking the increase from taking effect. 2 On April 1S, 2013, President Obama signed into law legislation ensuring the provision requiring online posting of certain federal officials' financial information not go into effect. EFTA01122532  Chapter 1: First Things First 12 Order, Cabinet Secretaries, Deputy Secretaries, and certain other high-level officials cannot "receive any earned income for any outside employment or activity performed during that Presidential appointment," nor may they accept gifts from lobbyists. The prohibition includes speaking fees. Other rules and restrictions apply to those below this level. Political appointees do qualify for health insurance and other job benefits.3 Ethics officials may also decide that you have to divest stocks to avoid a conflict-of- interest. But do not divest prematurely. You may qualify for a certificate of divestiture from OGE allowing you to postpone payments of capital gains taxes when you sell the stocks and put the proceeds into an open-end, diversified mutual fund or U.S. Treasury notes or bonds. Taxes will eventually be due when you sell those assets, but this can spare you a hefty tax bill when you may be between jobs and incurring the expenses of moving to Washington. OGE only grants these certificates, however, after it reviews your financial disclosure statement and decides that certain assets pose a genuine conflict-of-interest. It will not issue one retroactively if you have already sold the stock or property. Employment Restrictions As for the post-government employment restrictions, here is what federal law requires. Further details are on the OGE website.4 The post-employment restrictions were extensively revised in July 2008 in the first major changes to those regulations since 1989. • Lifetime Ban: An employee is prohibited from representing anyone else before the government on any matter in which he or she participated personally and substantially. 3 Although the Ethics in Government Act of 1978 has long required the filing of publically-available annual financial disclosures by senior officials in all three branches of the federal government, a recent amendment added to the STOCK Act would require online posting of Executive and Legislative branch officials' financial forms, effective April 15, 2013, as well as the creation of a searchable, sortable, public database for these financial forms expected in October 2013. Concerns about the potential impact of the Act's online posting prompted Congress to delay certain of these online posting requirements and to direct the Academy to "examine the nature, scope, and degree ofrisk including risk ofharm to national security, law enforcement or other Federal missions and risk of endangerment, including to personal safety and security, financial security (such as through identity theft), and privacy, of officers and employees and their family members that may be posed by website and other publication offinancial disclosure forms and associated personal information." This report is publicly available on the Academy website. 4 A 2012 study conducted by the National Academy of Public Administration examines the impacts of these restrictions, specifically those affecting the Department of Defense (www.napawash.org/publications- realS). EFTA01122533 13 Chapter 1: First Things First • Two-Year Ban: An employee is prohibited for two years from representing another person or entity on a matter he or she supervised or was responsible for during the last year of government service. • One-Year Prohibition: Those who participated in trade or treaty negotiations cannot represent, aid, or advise parties on such matters for one year. • "Cooling Off" Period: Certain senior officials cannot represent anyone before their departments or agencies for a full year after leaving office. For certain very senior officials, the cooling off period is two years. • Additional Ban: Cabinet Secretaries and other very senior officials cannot represent anyone before any federal department or agency - not just their own department - for one year post-employment. In addition, under the STOCK Act, you will be required to report all negotiations or agreements for future private-sector employment within three days to your ethics officer. You may be required to recuse yourself from matters in which you have, or could appear to have, a financial conflict-of-interest as a result There are also restrictions on working as agents for foreign governments or parties. U.S. trade negotiators, for example, cannot work for foreign businesses. With the exception of the restrictions on working for foreign governments, the law does not bar you from working for anyone you wish after you leave Uncle Sam's payroll, including companies that you may have regulated or otherwise dealt with. But it imposes certain restrictions. There are special additional restrictions for procurement officers. The day after his Inauguration in 2009, President Barrack Obama signed Executive Order 13490 which every appointee in the Obama Administration must sign. That pledge bans members of the Obama Administration from working on matters on which they lobbied for two years, or in the agencies they lobbied during the previous two years. Anyone who leaves the Obama Administration is prohibited from lobbying the administration. The Order also institutes a ban on gifts by lobbyists to members of the administration. Under certain circumstances, parts of the pledge can be waived. As of January 2013, 28 officials in the Obama Administration have received waivers. Still, don't assume that the restrictions will be an albatross for you personally. There are blanket exceptions to the restrictions if you work for a state or local government, a college or other not-for-profit organization. Most officials returning to academia, the corporate EFTA01122534  Chapter 1: First Things First 14 world, medicine, the news media, and other walks of life will experience little, if any, impact on their work. What Sort of Help Will I Need to Get Through the Nomination & Confirmation Process? You will need to tackle a pile of paperwork at the outset of the appointments process. Every nominee for posts requiring Senate confirmation must complete: • The Public Financial Disclosure Report (SF-278) on income, assets, and liabilities; • The Questionnaire for National Security Positions (SF-861 used for the background investigation and security clearance; • The White House Personal Data Statement; and • A separate background questionnaire required by the appropriate Senate committee. In an attempt to simplify this morass, President Obama signed the Presidential Appointment Efficiency and Streamlining Act of 2011 112-166). As a part of this legislation, a working group chaired by Lisa Brown of the Office of Management and Budget (OMB), was established to create "smart forms" that would eliminate the need for nominees to fill out identical forms for multiple inquires. These smart forms, which are currently under development, would contain basic information like name and birthdate and would only have to be filled out once. They would then be shared by investigative parties. As intimidating as the paperwork is, it is just one aspect of the vetting process. You will also be investigated by the Federal Bureau of Investigation (FBI) (and, in some cases, questioned by Senate committee investigators as well). Embarrassing details of your life could become public. Have you ever used alcohol excessively? Has anyone ever filed a sexual harassment case against you? Do you belong to a club that excludes women or minorities? The Paper Maze The majority of nominees successfully tackle the financial disclosure and other paperwork on their own. But if you have complex or extensive financial holdings, you will need help— and it may cost you thousands of dollars out of your own pocket. EFTA01122535 15 Chapter 1: First Things First The most difficult form is the SF-278, the financial disclosure form for the Executive Branch, which you must update each year you stay in government. It is a complex form, demanding a level of detail of income, assets, and liabilities that few nominees have at their fingertips. Nominees with considerable wealth, complicated business holdings or severance arrangements should hire a private attorney or accountant to assist with the process. Regardless of the size of your portfolio, the important thing is to get these forms filled out expeditiously. If you let them gather dust on your desk or dresser, you are creating your own confirmation delay. Sticky Situations The financial disclosure form (SF-278) is reviewed by the White House Counsel's Office, by the department to which the nominee is headed, and by OGE prior to the confirmation hearing. OGE must certify the report before it is sent to the Senate. OGE lawyers will analyze the nominee's holdings, discuss potential conflicts, and propose remedies such as divestitures, recusals, setting up blind trusts and, in some instances, waivers. The nominee agrees in writing to carry out the recommended actions, usually within 90 days of being sworn in. It is important that all the "i's" are dotted and "t's" crossed on these forms. Not to sound alarmist, but it is a felony to knowingly falsify or conceal a material fact on the SF-86 questionnaire—which is used by the FBI as the basis for your background investigation and for granting your national security clearance. The penalty is a fine up to $10,000, five years in prison, or both. If the offense involves international or domestic terrorism, imprisonment can be as long as eight years. The Senate Once you are through with the White House vetting process, you still face the hurdle of Senate confirmation. James Baker, former head of the National Oceanic and Atmospheric Administration, said, "It isn't merit alone that gets you a job. You have to do a campaign. You have to get all the interest groups that are involved in that subject to support you, or as many as you can, and as many important people whose names would be recognized. That is also critical. Other people will be pushing their names and you have to do that, too." EFTA01122536  Chapter 1: First Things First 16 Hannah Sistare Academy Fellow and former Legislative Director for Senator Fred Thompson said, "Nominees should be as timely as possible in submitting information requested by the committee and staff. Be as accurate as possible because inaccuracies and mistakes can slow the process." Sistare added, "There will likely be a member of both the majority and minority committee staff assigned to handle your nomination. Establish a good relationship with these staff." Don't assume the White House will expend much energy pushing through a nomination. Bob Nash said, "Nominees need to take a lot of initiative. They can't just sit back and say, 'OK tell me which way to turn? How high do I jump?'" When to Move Those who want to join the new administration must be prepared to spend months in limbo, waiting for the White House to make up its mind, then waiting to pass clearance and waiting again to be confirmed. This poses special difficulties for those not already gainfully employed inside the Beltway. You may be able to join your future department as a full- time consultant, (see Chapter 4 for details) but you will have to decide when to move your family to Washington and where to live. These are problems that inside-the-Beltway rivals for the same job will not have to wrestle with. If you come on board as a full-time consultant before moving to Washington, your department may pay for your eventual move. Otherwise, the move is on you. A Fallback Strategy Once you go after a presidential appointment, prepare your fallback strategy. There is no job security in a presidential appointment "These jobs are all at the pleasure of the President and you can get into a political situation where you might have to leave," said James Baker. "There is no guarantee of a four-year term. You must know what you would do if it were clear that you are in an untenable situation. EFTA01122537  Chapter 2 People and Places Along the Way These are the key offices and officials you will be dealing with on your nomination and confirmation journey: • The President-elect's transition team; • White House Office of Presidential Personnel and the Director of Presidential Personnel; • Office of the Counsel to the President; • White House Chief of Staff; • U.S. Office of Government Ethics; • Federal Bureau of Investigation; • Internal Revenue Service; • U.S. Office of Personnel Management; • White House Office of Legislative Affairs; • Departmental Office of Legislative Affairs; • White House Executive Clerk; • Executive Clerk of the Senate; • Senators on the committee handling the nomination; and • Other Senators and Members of the House Stages of the Confirmation Process To understand how each of these offices and officials will affect your future, consider the four principal stages of the confirmation process: selection, clearance, nomination, and confirmation. EFTA01122538  Chapter 2: People and Places Along the Way 18 Stage One: Selection The White House Office of Presidential Personnel plays the lead role in preparing a list of candidates for each position that requires Senate confirmation. At the beginning of an administration, the office is customarily flooded with literally tens of thousands and even hundreds of thousands of resum€s. But even then, there are positions of such importance to the success of the new administration, and to the country, that the White House will seek out candidates best-suited to those challenges. Customarily, the Director of Presidential Personnel and the Cabinet Secretary or the departmental Chief of Staff will select and interview a list of finalists for the position. The Director of Presidential Personnel will recommend a top choice to the President. The candidate customarily makes a verbal agreement to accept the job before the President actually makes the offer. Bob Nash said, "We got recommendations from everywhere - Senators, Congressmen, White House staff, interest groups, and associations." Even before the formal background checks and vetting begins, the White House Personnel Office might make discreet calls to a prospective appointee's associates, seeking a candid assessment without even revealing what job that person is being considered for. This will be done for a number of candidates until finally there is a short list. Next, the Director of Presidential Personnel forwards to the President through the White House Chief of Staff's office a recommendation, with no more than a two-page description of the job, that candidate's qualifications and why the Director is recommending him or her. Often times, the Director of Presidential Personnel will briefly describe the other candidates that were considered for this position. Ninety-nine times out of 100, Nash said, the President would concur. Depending on the urgency of filling this President appointment, "Stage One" can take days, weeks or, as is common later in administrations, months. Stage Two: Clearance The clearance process - during which the White House carefully vets each prospective nominee before the President announces his intention to appoint him or her - can be long and frustrating. The prospective nominee, once he or she has completed all the disclosure forms, allowed the White House to check his or her tax records, and been subject to an FBI background check, may not know for weeks on end where things stand in the clearance process. The weeks can stretch into months if the person's financial holdings are large and complicated, and if there are potential conflicts-of-interest that White House and lawyers EFTA01122539 19 Chapter 2: People and Places Along the Way need to work out. Customarily, the White House says nothing to the other finalists for the job until the clearance process for the chosen one is complete. All this while, said former Secretary of the Army Louis Caldera, "You're in limbo. You can't go ask people for business. You can't develop new business in good conscience when in fact you're thinking about leaving. So your whole life is in limbo." White House lawyers will comb through the battery of forms and questionnaires you are required to complete (see Chapter 8: Forms and Financial Disclosures). The Office of the Counsel to the President will forward your SEZZB, the financial disclosure form, to the ethics office at your future department, with a copy sent as well to OGE. Ethics lawyers from all three offices will confer about whether any of your holdings pose potential conflicts-of-interest and, if so, what arrangements need to be made to avoid those conflicts. They will negotiate with you, if necessary, what steps you will have to take, such as divesting certain stocks, putting assets into a blind trust, or signing a recusal that restricts you from taking part in deciding certain matters. You will be required to sign an ethics agreement that the White House will forward to the Senate committee along with a letter from OGE certifying that you are in compliance with the conflict-of-interest laws and regulations. Stage Three: Nomination With the paperwork complete, the FBI background investigation finished, the financial forms scrubbed and any potential conflicts addressed, the Office of the Counsel to the President sends an email to the Director of Presidential Personnel stating that this person has been cleared. In most cases, that is all the email says. It does not elaborate on anything discovered in your background investigation or describe the arrangement agreed to by OGE. The Director sends a memorandum to the President through the Office of the Executive Clerk, which prepares a small nomination parchment with your name, home state, prospective position, and whom you will be replacing or succeeding. This document is placed in an envelope, sealed with wax and hand-delivered to the Senate while it is in session. You are now nominated. For many jobs requiring Senate confirmation, the White House already may have issued a short press release some time previously announcing the President's intention to nominate so-and-so to the position. These bare-bones announcements look like this: EFTA01122540  Chapter 2: People and Places Along the Way 20 The President intends to nominate David Kappos, of California, to be Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. Mr. Kappos currently serves as Vice President and Assistant General Counsel for Intellectual Property Law at IBM. In addition, he served on the Board of Directors of the American Intellectual Property Law Association, the Intellectual Property Owners Association, and the International Intellectual Property Society. Mr. Kappos received his bachelor's degree from University of California, Davis, and his law degree from the University of California, Berkeley. Kappos made his trip through the confirmation process almost at warp speed: he was nominated on June 18, 2009, and confirmed on August 7, 2009. About his quick trip through the process, Kappos said in an interview for Paths to Making a Difference: Leading in Government. "I was confirmed at 11:00 a.m. on a Friday and I was supposed to start work on the following Monday. There was no time to plan on where to stay." Stage Four: Confirmation The Executive Clerk of the Senate enrolls your nomination by entering your name in a log in the Senate computer system and assigning a number to the nomination. When President Bill Clinton nominated Alan Greenspan to a fourth term on Jan. 4, 2000, Executive Clerk Michelle Haynes wrote "BK PN729" by hand on the upper right corner of the nomination parchment. That meant Greenspan was the 729th presidential nominee (PN) in the 106th Congress, and the Senate Banking, Housing and Urban Affairs Committee (BK in Haynes' shorthand) had jurisdiction. Haynes - like all the clerks in Congress - is a nonpolitical appointee. She still serves as Executive Clerk of the Senate, where her duties include preparing the Executive Calendar as well as preparing the record of actions taken by the Senate during executive sessions on nominations and treaties. The Executive Clerk's count of civilian nominees submitted in the 112th Congress (2011-12) was 744, including part-time positions. If there is any doubt about which of the 17 Senate Committees that handle nominations has jurisdiction, the Executive Clerk confers with the Senate Parliamentarian and other staff before farming out the nomination. Usually there is no doubt. Sometimes, although rarely, more than one committee claims jurisdiction. Nominations may be referred to more than one committee either jointly (at the same time, in the case of relatively equal jurisdiction) or sequentially (passing to a second committee after the committee of primary jurisdiction has acted). EFTA01122541 21 Chapter 2: People and Places Along the Way In recent years (since the beginning of the 109th Congress in 2006), at least eight nominations have been jointly referred to two committees. They were: Under Secretary of Commerce for International Trade; Assistant Secretary of Commerce for Trade Promotion; Assistant Secretary of Energy for Environmental Management; Assistant Secretary of the Interior for Fish, Wildlife, and Parks; Assistant Secretary of Labor for Veterans' Employment and Training Service; Director of the Pension Benefit Guaranty Corporation, and the Director and Deputy Director of OMB. In addition, the Senate has agreed, by unanimous consent, to sequential referral of the Assistant Secretary of the Army for Civil Works, the Assistant Attorney General for the National Security Division, the Assistant Secretary of Homeland Security for U.S. Immigration and Customs Enforcement, and the Assistant Secretary of Homeland Security for the Transportation Security Administration, as well as most Inspector General positions.5 The committee of competent jurisdiction (or committees) gets copies of the nominee's SF- 278 financial disclosure form, the SF-86 questionnaire and any signed ethics agreement. The committee then sends nominees its own battery of questions, asking them to bare their life and career all over again. Apart from standard questions, the committee may pose a raft of detailed policy questions, crafted with advice from the Government Accountability Office (GAO), about key issues confronting that department. Normally you can count on help from the department in articulating responses to these puzzlers. Hannah Sistare said "Hearing questions will likely relate to your qualifications for the job for which you are being nominated. Hearing questions may also relate to issues the questioner may have with the President and his Administration." When asked about the nominee receiving guidance, Sistare said, "The Administration briefers should alert you to any controversies between the Administration and committee members." In the weeks or months before the confirmation hearing, it is customary for nominees to make courtesy calls to each member of the committee, regardless of party affiliation, as well as touching base with your home-state Senators. The Congressional liaison at your department may help arrange these meetings. If not, schedule them yourself. Generally a representative from Legislative Affairs will accompany you. They may not delve beyond pleasantries, but some Senators may probe you about your views and qualifications, or 5 Davis, Christopher M. and Marsfield, Jerry W. Congressional Research Service. Presidential Appointee positions Requiring Senate Confirmation and Committees Handling Nomination% November 15, 2012. EFTA01122542  Chapter 2: People and Places Along the Way 22 bend your ear about a pet peeve with the department. These private meetings can be cordial or test your mettle. Many Senators with whom you meet probably won't show up for your hearing, but they will vote on your confirmation. For an overwhelming majority of nominees, the hearing is blissfully uneventful. Often it is a joyous occasion for nominees and their families, listening to friendly Senators salute your accomplishments and willingness to serve the nation. Sometimes a home state Senator introduces the nominee to the committee. Each committee follows its own rules for handling nominations. Normally, there is a specified interval of days between the confirmation hearing and the committee vote to send the nomination forward. The full Senate considers nominations in executive sessions, which are public and can occur at any time the Senate is in session. Nominations customarily are approved by voice vote, not by roll call. When that vote finally is cast, the Senate Clerk notifies her counterpart at the White House that the