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RECORD TYPE: PRESIDENTIAL

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(NOTES MAIL)

CREATOR: Kate P. Donovan ( CN=Kate P. Donovan/OU=OMB/O=EOP [ OMB 1 )
CREATION DATE/TIME:21-JUL-1998 12:58:35.00
SUBJECT:

Need clearance: vacancies Letter

TO: William P. Marshall ( CN=william P. Marshall/OU=WHO/O=EOP@EOP [ WHO 1 )
READ:UNKNOWN
TO: G. Timothy Saunders ( CN=G. Timothy Saunders/OU=WHO/O=EOP@EOP [ WHO 1 )
READ:UNKNOWN
TO: Elena Kagan ( CN=Elena Kagan/OU=OPD/O=EOP@EOP [ OPD 1 )
READ:UNKNOWN
TO: Robert N. Weiner ( CN=Robert N. Weiner/OU=WHO/O=EOP@EOP [ WHO 1 )
READ: UNKNOWN
TO: Jessica L. Gibson ( CN=Jessica L. Gibson/OU=WHO/O=EOP@EOP [ WHO 1 )
READ: UNKNOWN
TO: Jose Cerda III ( CN=Jose Cerda III/OU=OPD/O=EOP@EOP [ OPD 1 )
READ: UNKNOWN
TO: Laura Emmett ( CN=Laura Emmett/OU=WHO/O=EOP@EOP [ WHO 1 )
READ: UNKNOWN
TO: Roger S. Ballentine ( CN=Roger S. Ballentine/OU=WHO/O=EOP@EOP [ WHO 1 )
READ: UNKNOWN
TO: Dorian V. Weaver ( CN=Dorian V. Weaver/OU=WHO/O=EOP@EOP [ WHO 1 )
READ: UNKNOWN
TEXT:
This is the latest version of the Vacancies letter with a senior advisers
veto recommendation to be signed by Erskine Bowles. WHLA plans to send
the letter c.o.b. today.
please provide comments/clearance no later than
4pm today.
Thank you.
Dear Senators Lott and Daschle:
I would like to take this opportunity to express the
AdministrationD,s views on S. 2176, the D&Federal Vacancies Reform Act of
1998". The Administration cannot support this legislation in its present
form.
If the bill is not amended to address the AdministrationD,s
concerns, the PresidentD,s senior advisers would recommend that he veto
the bill.
We believe that there are genuine differences of
about the
applicability of the Vacancies Act, but some of the changes proposed in
the legislation are acceptable. For example, we would agree to making it
generally the exclusive governing statute. We believe that this change
alone largely addresses the concerns raised most cogently by Senator Byrd.
Other aspects of this legislation, however, are extremely
problematic. Let me articulate a few examples of what we see as very
serious problems.

 "

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First, the legislation too narrowly limits who can serve in an
·O&acting08 capacity.
Limiting the acting officer to O&the first
assistantC8 or another D&PAS08 appointee will only result in leaving many
positions vacant, since many first assistant slots may also be vacant and
because of the impracticality of one PAS performing the duties of another,
in addition to or in lieu of (thus creating another vacancy) his own.
Given the constrained time period of the Act, this provision is too
narrowly drawn.
This legislation could actually prohibit a President or
agency head from appointing the most qualified person to the acting
position. For example, if the most qualified and appropriate person to
serve in an acting capacity is a career employee with vast experience at
the agency, then this bill would prevent the career employee from acting
in the position.
Second, this legislation could allow seriously harmful
situations. After 150 days, the bill requires that the position in
question be vacant, until a nomination is made.
For a position involving
critical duties pertaining to national security, criminal law enforcement,
public health and safety, or stability of financial markets, such a
vacancy could have perilous effects. The complicated procedures in the
bill that absolutely disable particular positions from taking binding
legal actions would have seriously disruptive effects on the functioning
of the Government.
Some workable safety valve should be provided so the
smooth functioning and effective continuity of government is assured.
Third, experience teaches us that at the beginning of an
administration, longer time periods than those provided for in the bill
are needed to fill the positions of the government. Without this change,
it could be extremely difficult for future administrations to get up and
running.
Finally, let me make one additional and serious point.
It is
impossible to evaluate fully the merits of this legislation without
considering the larger context of the nominations process.
It is
troubling that the Senate would so severely restrict the AdministrationO,s
ability to fill vacant positions and do the peopleD,s business while at
the same time confirming the PresidentD,s nominees at an astonishingly
meager pace. This President has made every effort to accommodate Senators
who have strong views about particular positions and nominees, and, in
addition, this President has used his constitutional authority to make
recess appointments much less frequently than his predecessors.
Nevertheless, a number of Senators have engaged in an unprecedented degree
of politics in delaying even our most qualified and needed nominees.
Nominations are routinely held O&hostageD8 for reasons totally unrelated
to a nomineeD,s qualifications.
In addition, undue delays are caused in
the nominations vetting process when Senators sometimes late in the
process voice opposition to a proposed nominee or support a previously
unconsidered candidate.
It is important that Senators consider this
larger context in evaluating the merits of S. 2176.
We understand the genuine interest
area and we would be willing to support a
cannot, however, support a bill that would
impact on the ability of the government to

in passing legislation in this
fair and workable bill. We
have a severe and damaging
do the peopleD,s business.
Respectfully,

Erskine Bowles

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