Report of Working Group on Streamlining Paperwork for Executive Nominations Final

7/30/2019 Report of Working Group on Streamlining Paperwork for Executive Nominations Final

1/60

N O V E M B E R 2 0 1 2

SREAMLININGPAPERWORK FOR

EXECUIVE NOMINAIONS

R h P h Ch R Mb h S C

H Sy & G A h

S C R & A

W G SP E N


2/60

D M. P, Ch Lb, Ch Sh, R Mb C, R Mb

A:

O A 10, 2012, h P h P A Ey S A

2011, hh h W G S P E N. T Wh H-

, b W G S; Wh H

, D h Wh H O P P; D

h O P M; h F B I h O

G Eh; h U S Ch hy O F Ch I O. I Ch

h A F Ch P O.

T P A Ey S A 2011 h W G b

y h . T , 90 y

h h A (Nb 8, 2012), h

q P h q S (PAS ). T , 180 y

(My 7, 2013), b q PAS . T W G

y h h h .

O P y b T Hbb b h

y bh h b h. O y h

b , y by , y . Wh h W G h h h

b h , h h

y b , h qy h h hy

by . O h h

h b b h Wh H h S. I , hy h

h y y.

w o r k i n g g r o u p o ns t r e a m l i n i n g p a p e r wo r k f o r

e x e c u t i v e n o m i n at i o n s

P B ObT Wh HWh DC 20500

T Hb Jh LbT Hb S CS C HSy & G A340 D SO B

Wh DC 20510

T Hb Ch ShT Hb L AS C R & A305 R SO B

Wh DC 20510

Nb 5, 2012


3/60

T W G h b bh h h b h

h bh. O b h bh bh h h b y

b. W h h h Wh H 17 h C C h

P . T P A Ey S

A 2011 b h h , h

h . W h A C z h

by y h h h h h

h y y, h h P .

Sy y,

L B

Chair


4/60

N O V E M B E R 2 0 1 2

SREAMLININGPAPERWORK FOR

EXECUIVE NOMINAIONS

R h P h Ch R Mb h S C

H Sy & G A hS C R & A

W G SP E N


5/60

Working Group on StreamliningPaperwork for Executive Nominations

The Honorable Lisa Brown

Chair o the Working Group

Federal Chie Perormance Ocer (Acting)

Oce o Management and Budget

The Honorable John Berry

Director

Oce o Personnel Management (Current)

The Honorable Joie A. Gregor

Director

Oce o Presidential Personnel (-)

The Honorable Nancy D. Hogan

Director

Oce o Presidential Personnel (Current)

The Honorable Clay Johnson III

Director

Oce o Presidential Personnel (-)Deputy Director or Management

Oce o Management and Budget (-)

Sean M. Joyce

Deputy Director

Federal Bureau o Investigations (Current)

The Honorable Edward E. Ted Kauman

United States Senator (2009-2010)

The Honorable Janice R. Lachance

Director

Oce o Personnel Management (-)

The Honorable Thomas F. Mack McLarty III

White House Chie o Sta (1993-1994)

The Honorable Todd Park

United States Chie Technology Ocer

Oce o Science and Technology Policy (Current)

Walter M. Shaub, Jr.

Deputy General Counsel

United States Oce o Government Ethics

(Current)

The Honorable Steven L. VanRoekelFederal Chie Inormation Ocer and

Administrator o the Oce o E-Government

and Inormation Technology

Oce o Management and Budget (Current)

The Honorable George V. Voinovich

United States Senator (1999-2011)


6/60

Table of Contents

Executive Summary

Background

The Working Groups Mandate

The Problem

The Forms Required or Nomination and Conrmation

Process and Findings

Recommendations

Eliminate Repetition and Reduce Overlapping and Duplicative Questions

Reduce Unnecessary Burden on Nominees

Vary the Paperwork Required or Candidates or Part-Time PAS Positions

Build an Electronic System with a Smart Form

Time Frame or Implementing Recommendations

Conclusion

Appendix A : Summary o Recommendations Regarding Each Form

Appendix B : Proposed Core Questions or Presidential Nominees Requiring Senate Conrmation

Appendix C : Major Points Raised in Interviews and Literature


7/60

Executive Summary

Observers o the nominations and conrmation process over the past three decades have, in the words o

the Senate Committee on Homeland Security & Governmental Aairs (HSGAC), consistently ound that

the process or identiying, nominating, and conrming an individual to a Senate-conrmed position hasgradually lengthened, become more burdensome, and has discouraged qualied individuals rom seek-

ing nominations1 Regardless o which party is in

power, we cannot aord to delay the appointment

o the most able and qualied public servants to

take up the challenges acing our country 2

To address problems with the nominations

and conirmation process, Congress passed

the Presidential Appointment Eiciency and

Streamlining Act o (the Act) The Act elimi-

nated the need or Senate conirmation o

nominees, thereby reeing Senate resources

to ocus on the remaining higher prole nominees and move them through the system at a aster

pace It also established the Working Group on Streamlining Paperwork or Executive Nominations,

which it directed to submit a report to the President, HSGAC, and the Senate Committee on Rules &

Administration (Rules) that would include:

(i) recommendations or the streamlining o paperwork required or executive nominations; and

(ii) a detailed plan or the creation and implementation o an electronic system or collecting and

distributing background inormation rom potential and actual Presidential nominees or posi-

tions which require appointment by and with the advice and consent o the Senate

In accordance with this mandate, the Working Groupa bipartisan group o current and ormer govern-

ment ocials with expertise in the nominations processis pleased to present the ollowing report

The basic orms to be lled out by Presidential nominees who require Senate conrmation (PAS nomi-

nees or candidates)3 have remained relatively consistent across recent administrations The major orms

include: the Standard Form Questionnaire or National Security Positions (SF), the Supplement

to Standard Form ( Supplement), the Oce o Government Ethics (OGE) Form Executive

Branch Personnel Public Financial Disclosure Report (OGE), sometimes a White House Personal

Data Statement (WHPDS), and Senate Committee questionnaires Since each o these orms has been

designed, in greater or lesser part, to assess the suitability o candidates or their potential positions in

S. Rep. No. -, at () Obstacle Course, A Report on the Twentieth Century Fund Task Force o the Presidential Appointment Process,Twentieth Century Fund Press, New York (), p This report uses the terms candidate and nominee to reer to individuals being considered or PAS positionsat dierent points in time A PAS candidate becomes a PAS nominee when the White House announces his or hernomination Thus, individuals are candidates when they complete the SF, Supplement and OGE during thevetting process, but are nominees when they nalize their Senate questionnaires

[I]ts time to have a bipartisan look at

the whole appointments process. It takes

too long to get somebody conrmed. Its too

bureaucratic. You have two and three levels

o investigation. I think its excessive.2

president william jefferson clinton


8/60

STR EAMLINING P AP ER WO R K FO R EX EC UTIVE NO MINATIO NS

government, they cover many o the same topics and are considerably duplicative Eighteen topics make

up an average o % o the total topics addressed by each o the major executive and Senate orms

currently in use4 While the topics are similar, the exact questions dier across orms, oten requiring

candidates to tailor their answers to account or small dierences in questions intended to elicit more-

or-less the same inormation relevant to

the candidates tness or oce In addi-

tion to duplicative questions, each o the

orms includes questions that appear

unnecessarily broad and burdensome

on nominees 5

This report makes concrete recommen-

dations or streamlining the paperwork

by eliminating this duplication and

unnecessary burden, and building an

electronic system with a Smart FormAll o the recommendations are essential

to achieving meaningul reorm While

technology can acilitate the process by

enabling nominees to answer identical

questions only once and reduce incon-

sistent answers, it cannot alone eliminate

the duplication and unnecessary burden built into the current system Fundamental streamlining o the

process will only be achieved i the White House and the various Senate Committees work together to

rene and implement all o the Working Groups recommendations, particularly the development o a

common set o core questions The result will benet all parties: the candidates experience will be less

onerous, and the executive branch and Senate Committees will get the inormation they need more

expeditiously

The Working Groups recommendations are summarized below, and a chart summarizing the recom-

mendations with regard to each orm is attached as Appendix A:

1. Eliminate Repetition and Reduce Overlapping Questions

A. Develop a common set o core questions or the executive branch and each Senate Committee

to use, while allowing each to ask supplemental questions. The single most important step

that the executive branch and Senate could take to expedite and streamline the nominations

paperwork would be to work together to arrive at a common set o core questions that each

would use in place o their varying questions on core topics Each could then judiciously supple-

The eighteen topics are: basic biographical inormation; education; employment; publications; memberships;political activity; criminal convictions; criminal investigations, citations, charges, and arrests; civil litigation andadministrative or legislative proceedings; breach o proessional ethics; tax compliance; outside positions; agreements orarrangements; assets; liabilities; income; and gits and travel reimbursements These topics make up between percentand percent o the topics covered on each o the orms, with an average o percent 157 CoNg. ReC. S, S (daily ed June , ) (statement o Sen Lamar Alexander)

We take some sel-respecting U.S. citizen, and the

President invites them to come take a position in

the Federal Government o honor and dignity, and

suddenly they nd themselves immersed in a series

o duplicative interrogations rom all directions in

which they must ll out orms that dene words

such as income in diferent ways, all o which is

designed to lead them beore a committee, not toreally assess their qualications but to see i they can

be trapped and turned into an apparent criminal.5

senator lamar alexander


9/60


ment the core with additional questions, including () questions on topics outside the core and

() questions on core topics that elicit inormation not captured by core questions that, upon

studied reection, it nds necessary to its inquiry Analogous to the common application

that hundreds o our-year colleges have adopted, this common set o core questions would

encompass the topics currently addressed in both the executive branch and the Senate orms

Just as individual colleges supplement the common application with additional essays tailored

to their specic needs, individual executive branch entities and Senate Committees could

supplement the core with questions tailored to their individual inquiries The Working Group

has developed a proposed set o core questions as a starting point or conversation, a copy o

which is attached as Appendix B The Working Group is currently discussing this proposed core

with Senate Committees and the response has been positive

B. Reduce the 86 Supplements and Senate questionnaires duplication o questions covered by

the nominees OGE278 and Ethics Agreement. I the White House and Senate Committees

could take one action right now to streamline nominations paperwork, even beore agreeing

on a common core, it should be to eliminate questions on their own orms that call or nancialdisclosure and conicts o interest inormation already provided by law on the nominees OGE-

certied OGE and accompanying ethics agreement We recommend that both the White

House and the Senate Committees simply request inormation they need that is not covered

by the nominees OGE and ethics agreement

C. Eliminate the use o a White House Personal Data Statement. The White House Oice o

Presidential Personnel has at times required candidates or PAS positions to complete a some-

times extensive questionnaire oten reerred to as the White House Personal Data Statement

(WHPDS) The WHPDS has typically contained questions that are duplicative o questions in the

SF and OGE The Obama Administration does not currently use a WHPDS, relying instead

on oral interviews and the other paperwork involved in the vetting process, and the WorkingGroup recommends that uture White House sta continue this practice

2. Review All the Forms and, Where Appropriate, Revise Questions to Reduce Unnecessary

Burden on Nominees

In addition to the duplicative questions that exist across orms and need to be rationalized through

the adoption o a common set o core questions, each o the executive branch orms and the Senate

orms includes broad questions that appear unnecessarily burdensome We recommend that the

White House, OGE, Senate Committees, and the executive branchs Suitability and Security Clearance

Perormance and Accountability Council (PAC) (which oversees the SF) each review their orms

careully to see i they can more narrowly tailor questions to elicit more directly the inormation they

need without imposing an undue burden on a candidate

A. SF86: The Working Group recommends that the PAC direct the Director o National Intelligence(DNI), as the Security Executive Agent, and the Director o the Oce o Personnel Management

(OPM), as issuer o the orm, to engage in a concerted process to examine the SF questions

with the goal o reducing, restructuring, or rewording questions where possible to reduce bur-

den on nominees while still gathering the inormation necessary to make an appropriate assess-


10/60


ment o the candidates suitability or employment and access to national security inormation

SF questions meriting review, or example, are those on oreign travel, past residences and

ormer employers The Working Group suggests, i consistent with national security interests,

narrowing the current questions requirement to provide the dates o all oreign travel along

with detailed inormation on attendance at various meetings abroad as well as the requirement

to provide street addresses o all past residences and ormer employers disclosed on the orm

B. OGE278: The Ethics in Government Act o established the current public inancial

disclosure requirements or PAS candidates, Congressional representatives and sta, and

approximately , additional executive branch lers The Working Group recommends that

Congress consult with OGE and amend the executive branch disclosure requirements to reduce

or eliminate requests or inormation that are unnecessary to the conict-o-interest analysis

Two areas particularly ripe or reorm are: () eliminating the requirement to report investment

income, because it is the ownership o the asset and not its dividend or the prot rom its sale

that creates the conict; and () raising and rationalizing minimum reporting thresholds across

reporting categories to exclude the disclosure o nancial items too insignicant to raise aconcern over conict o interest

C. 86 Supplement: The Working Group recommends that the White House reduce unnecessary

burden on candidates by reviewing and, where appropriate, revising questions on the

Supplement to obtain the necessary inormation in a more targeted way Two questions that

merit review, or example, are those on memberships and investigations The memberships

question could be narrowly tailored to extract inormation on only those memberships relevant

to the candidates suitability or a position, and the investigations question could be revised to

exclude investigations into an entity associated with the candidate that did not involve actions

taken by the candidate

D. Senate Questionnaires: The Working Group recommends that Senate Committees review thequestions they ask outside o the core to reduce unnecessary burden upon nominees Two

areas highlighted by experts, stakeholders, and ormer nominees as particularly burdensome

are the request or lists and copies o speeches and interviews and the request or a net worth

statement The Working Group recommends that Committees consider narrowing their requests

or speeches and interviews by subject matter or time rame, and consider asking questions

narrowly tailored to obtain necessary inormation not disclosed on the OGE instead o

requesting ull net worth statements

3. Vary the Paperwork Required or Candidates or Part-time PAS Positions Depending Upon

the Nature o the Position or Which They Are Being Considered

The Working Group recommends that, where appropriate, the executive branch and the Senate

tier levels o scrutiny based on whether a position is part- or ull-time While part-time positions on

boards and commissions are important and carry signicant responsibility, we do not believe they

should automatically require similar levels o scrutiny as cabinet members or other ull-time PAS

nominees The Working Group recommends that both branches tailor their paperwork and review o


11/60


these positions to reect the nature o the position and particularly its need or a security clearance

and legally required level o nancial disclosure

A. Background Investigation Paperwork: The SF is the standard orm created to help evaluate

whether someone can be trusted with classied inormation or to occupy a national security

sensitive position Many o the positions on boards and commissions are not sensitive and donot require access to classied inormation The Working Group recommends that candidates

or part-time positions on boards and commissions that do not require a security clearance

should ll out the ar less extensive SF or non-sensitive positions or the SFP or public

trust positions, along with a comparably pared down Supplement

B. Senate Questionnaires: Certain Senate committees have already taken steps to design a sepa-

rate questionnaire, more limited in scope, or nominees or particular part-time PAS positions,

and the Working Group recommends that this practice be expanded and more widely adopted

so that, where appropriate, both background and nancial disclosure questions reect the

part-time nature o the position at hand

. Build an Electronic System with a Smart Form

The Working Group has developed the requirements and design or an electronic system with a

Smart Form, which, when coupled with the adoption o a common set o core questions, would

enable a candidate to answer all vetting questions one way, at a single time6 and dramatically

streamline the PAS paperwork process Similar to tax ling sotware, the system would guide PAS

candidates through a series o questions that, when answered, would automatically populate the

various orms Assuming adoption o the set o core questions, we estimate that design and develop-

ment o the electronic system will take - months, and will cost $ million to develop, with annual

operating expenses o $ million This investment o time and money is eminently worthwhile i the

executive branch and a critical mass o the Senate Committees have agreed to adopt a common seto core questions, as there is no question that the combined impact o a Smart Form and a common

set o core questions would signicantly streamline the completion and delivery o the paperwork

required o PAS nominees

In this report, the Working Group makes recommendations that will streamline the process or nominees,

whatever their political party, and get necessary inormation to all o the decision makers more expedi-

tiously and eectively With concerted action, improvements can be implemented by both branches

soon and in time or the inevitable spate o nominations beginning in January , regardless o who

is elected We thereore recommend ocusing rst on the recommendations that both the White Houseand the Senate Committees individually or together can move on quickly, specically working to adopt

a common set o core questions, to tier the scrutiny applied to part-time positions on boards and com-

missions based on the nature o the position, and to revise individual White House and Senate questions

Presidential Appointment Eciency and Streamlining Act o , Pub L No -, , Stat , ()


12/60


to reduce unnecessary burden as soon as possible and no later than when the Senate convenes or

the th Congress Our meetings with Senate Committees make us optimistic about the prospect or

reorm, and we eel condent that the ongoing cooperative process will result in the improvement and

implementation o the Working Groups recommendations

We are at an important moment in the history o the Presidential nominations process When Congresspassed the Presidential Appointment Eciency and Streamlining Act o , and the White House

eliminated the Personal Data Statement, each did so with the simple, nonpartisan goal o lling leader-

ship positions in the Federal Government more eectively and expeditiously The Working Group oers

the recommendations in this report with this same goal in mind We urge all parties to consider, rene,

and adopt these recommendations, and we stand ready to assist in this ongoing process


13/60

Background

The Working Groups Mandate

The Presidential Appointment Eciency and Streamlining Act o , which the President signedinto law on August , , created the Working Group on Streamlining Paperwork or Executive

Nominations to recommend improvements to the paperwork and background investigations required

o Presidential nominees who require Senate conrmation The bipartisan measure directed the Working

Group to conduct two studies culminating in reports to the President, the Senate Committee on

Homeland Security & Governmental Aairs, and the Senate Committee on Rules & Administration The

rst report, due days ater the enactment o the Act (November , ), is to make recommendations

or streamlining paperwork; the second, due days later (May , ), is to review background inves-

tigation requirements or PAS nominees Senator Lamar Alexander, one o the Senators who introduced

the legislation, described the reports as:

an eort between the Senate and the Executive to take a look at streamlining the

process so that we can sta the government more quickly, so we can stop wasting so

much time here in duplicative ways, so we can stop the expense o that wasted time,

and so we can treat with respect the men and women any President invites to become

a member o the administration7

Congress set orth its expectations or this rst report with specicity, mandating that it include:

(i) recommendations or the streamlining o paperwork required or executive nominations;

and

(ii) a detailed plan or the creation and implementation o an electronic system or collectingand distributing background inormation rom potential and actual Presidential nominees

or positions which require appointment by and with the advice and consent o the Senate8

This rst report responds to these directives by making concrete recommendations to streamline the

paperwork and build an electronic system Both sets o recommendations are essential to achieving

meaningul reorm While technology can acilitate the process by enabling nominees to answer identi-

cal questions only once and reduce inconsistent answers, it cannot alone eliminate the duplication and

unnecessary burden built into the current system Fundamental streamlining o the process will only

be achieved i the White House and the various Senate Committees work together to reduce the cur-

rent duplication, overlap, and unnecessary burden o questions posed to PAS candidates Streamlined

questions and the creation o an electronic system will enable candidates to complete orms morequickly, the executive branch to nish its vetting process sooner, and the Senate to receive and consider

a nomination in less time All parties will benet: the nominees experience will be less unnecessarily

CoNg. ReC. S, S (daily ed June , ) (statement o Sen Lamar Alexander) Presidential Appointment Eciency and Streamlining Act o , Pub L No -, , Stat , -()


14/60


time-consuming and onerous, and the executive branch and Senate Committees will get the inorma-

tion they need more expeditiously

The Problem

As HSGAC stated in its June , , Report on the Presidential Appointment Eciency and StreamliningAct o , [t]he need or reorms in the ederal appointments process is not a new topic9 Indeed, it

is decades old The Committee noted that [i]n the past three decades, an abundance o commissions,

academics, think tanks, and good government groups have turned their sights on this problem10 The

Committee Report summarizes their consensus ndings as ollows: These groups have consistently

ound that the process or identiying, nominating, and conrming an individual to a Senate-conrmed

position has gradually lengthened, become more burdensome, and has discouraged qualied individu-

als rom seeking nominations11

Many have deemed this process a gotcha game, which Senator Alexander lamented quite succinctly:

Too oten the conrmation process has degenerated into a time-consuming, unair ordeal that creates

an innocent until nominated syndrome12 This is not a system designed to draw the best and the bright-

est into government service As Senator Joseph Lieberman remarked, i we dont x what is broken in

this system, I ear we risk discouraging some o our Nations most talented individuals rom accepting

nominations, thus leaving important positions unlled13

Our Nations interest demands that we sta the Federal Government promptly with the most able and

qualied public servants, regardless o which party is in power Two examples o ailures to do this at

critical times in the countrys recent history are oten cited in the literature First, President Obamas

Secretary o the Treasury had to operate without other senior appointees in the Treasury Department

at the height o the nancial crisis14 Second, as the / Commission recognized in its report, President

George W Bushs Administration did not have its national security team, including critical subcabinet

S. Rep. No, -, at () Id. at - (These include: the National Academy o Public Administration (in and ); the NationalCommission on the Public Service ( and ); the Presidents Commission on the Federal Appointments Process(); the National Academies o Sciences and Engineering and the Institute o Medicine (); the TwentiethCentury Fund (); the Brookings Institutions Presidential Appointee Initiative (co-chaired by ormer Senator NancyKassebaum and ormer Director o the Oce o Management and Budget Franklin Raines) () More recently,the Partnership or Public Service has looked closely at these issues, as has the Commission to Reorm the FederalAppointments Process, a joint eort o the Aspen Institute and Rockeeller Foundation, co-chaired by Clay Johnson,ormer Assistant to the President or Presidential Personnel, Mack McLarty, ormer White House Chie o Sta, and ormerSenators Bill Frist and Chuck Robb) Id. at

Schumer, Alexander, Lieberman, Collins Announce House Passage O Bipartisan Deal To Streamline Senate ConfrmationProcessLegislation Now Heads To Presidents Desk(July , ), available athttp://wwwliebermansenategov/indexcm/news-events/news/// CoNg. ReC. S, (daily ed March , ) (statement o Sen Joseph Lieberman) See id. at ; see alsoEliminating the Bottlenecks: Streamlining the Nominations Process: Hearing Beore the S. Comm.on Homeland Sec. and Governmental Aairs, th Cong () (statement o Max Stier, President and CEO, Partnershipor Public Service); William a. galStoNaNd e.J. dioNNe, JR., a Half-empty goveRNmeNt CaNt goveRN: WHy eveRyoNe WaNtSto fix

tHe appoiNtmeNtS pRoCeSS, WHyit NeveR HappeNS, aNd HoW We CaN get it doNe 1 (Brookings Institution, December , ),available athttp://wwwbrookingsedu/research/papers///-appointments-galston-dionne
http://www.lieberman.senate.gov/index.cfm/news-events/news/2012/7/http://www.brookings.edu/research/papers/2010/12/14-appointments-galston-dionnehttp://www.brookings.edu/research/papers/2010/12/14-appointments-galston-dionnehttp://www.lieberman.senate.gov/index.cfm/news-events/news/2012/7/


15/60


ocials, conrmed and on the job until at least six months ater the Administration took oce15 It is par-

ticularly unacceptable to have only a partially staed Federal Government during times o crisis, but there

is a need or senior leadership under any circumstances Important policies, decisions, and initiatives

in every ederal agency can be delayed, oten at great cost, pending the appointment o leadership16

The Presidential Appointment Eciency and Streamlining Act o was a signicant step in address-ing bottlenecks in the system Eliminating the need or Senate conrmation o nominees to lower

prole, part-time or junior positions reed Senate resources to move the remaining nominees through

the system at a aster pace Congress should be commended or taking this action

The next step is to streamline the process or the remaining estimated , PAS nominees17 A number

o actors inuence the pace o the PAS nomination and conrmation process Extensive paperwork,

the desire to obtain the maximum amount o inormation or ear o missing something that becomes

the newest scandal, resource constraints that limit the number o individuals who can be vetted at any

one time, and, o course, politics, all contribute to the lengthy timeline As Senator Charles Schumer

said in his remarks on the Act, the conrmation process has oten become dangerously close to being

gridlocked18 While a call on both branches to ratchet back the political gamesmanship involved in theappointment process might be in order, such a rallying cry is beyond the scope o the Working Groups

mandate Our role is to make recommendations or improving the oten unnecessarily onerous, time-

consuming process o lling out the numerous orms that the Senate and the White House require o

potential Presidential appointees, while ensuring that each receives the critical inormation it needs to

evaluate the suitability, character, and viability o candidates or our highest oces

By streamlining the nominations process, we can expedite delivery o essential inormation to execu-

tive branch and Senate ocials while saving some o the Nations most accomplished corporate and

civic leaders many o the countless rustrating hours answering duplicative and unnecessarily onerous

questions that can ollow the honorable decision to raise ones hand in service to the country We can

do better or our government and our public servants

The Forms Required or Nomination and Conrmation

The basic orms to be completed by a candidate or a PAS position have varied little across recent

administrations The major orms and their uses are as ollows:

Standard Form 8 Questionnaire or National Security Positions (SF8). All PAS candidates

currently complete the SF, which is used to evaluate a candidates tness to be trusted in a

position that may aect national security and could entail access to classied inormation19

Natl CommNoN teRRoRiSt attaCkS UpoNtHe U.S., tHe 9/11 CommiSSioN RepoRt, () See, eg, Anne Joseph OConnell, Vacant Oces: Delays in Stang Top Agency Positions, S Cal. l. Rev. , -() (Vacancies in key executive agency positions have several deleterious consequences or policymaking Theseeects include agency inaction, conusion among nonpolitical workers, and decreased agency accountability) The estimated total number o PAS positions excludes those that no longer require Senate conrmation pursuant tothe Presidential Appointment Eciency and Streamlining Act o , as well as nominees or judicial appointment, USAttorney, US Marshal, and military or oreign service ocer CoNg. ReC. S, (daily ed March , ) (statement o Sen Charles Schumer) PAS nominees are only a small portion o the government employees and contractors who must complete the SF;any government employee or contractor who needs a security clearance lls out the SF


16/60


Use o the SF began in ollowing President Dwight D Eisenhowers signing o Executive

Order , which instructed government agencies to investigate employees and prospective

employees to determine whether their employment in the ederal service is clearly consistent

with the interests o the national security20

The Suitability and Security Clearance Perormance and Accountability Council (PAC) overseesthe content o the SF Established by Executive Order in , the PAC is chaired by the

Deputy Director or Management in the Oce o Management and Budget and includes the

Director o OPM, who serves as the Suitability Executive Agent, and the DNI, who serves as the

Security Executive Agent21 As part o its mandate to oversee the investigative and adjudicative

processes or government employees and contractors in sensitive positions or with access to

classied materials, the PAC oversees changes to the SF

Candidates or non-PAS government positions who do not need a security clearance and

whose positions are not national-security sensitive may be required to complete an SF or

non-sensitive positions or an SFP or public trust positions These orms seek less inormation

rom the ler and require less time to complete than the SF The PAC also oversees changesto the SF and SFP

The SF, P, and are all automated Candidates ll out the relevant orm through the

Electronic Questionnaires or Investigation Processing (e-QIP) system operated by OPM The

e-QIP system allows candidates to complete the various security questions at their own pace,

storing their answers in a secure database beore electronically signing their completed orm

and submitting it to the FBI

The FBI uses the SF to conduct background investigations o PAS candidates Once the

background investigation is complete, the FBI prepares a background investigation report that

is delivered to the White House The background investigation report contains sensitive andpersonal inormation, and its distribution is very limited

Supplement to Standard Form 8 (8 Supplement). Several administrations have used an

Supplement to pose additional ocused questions to candidates regarding their suitability

or PAS positions Revised by dierent administrations, the Supplement is a White House

document used to vet candidates that is provided to the FBI to assist in their background inves-

tigation Topics addressed by the Supplement now and in previous administrations include,

among others, criminal history, memberships and associations, and civil litigation Candidates

ll out the Supplement using standard word-processing sotware

OGE Form 278 Executive Branch Personnel Public Financial Disclosure Report (OGE278).

In , Congress passed the Ethics in Government Act, which provided detailed instructions

or the disclosure o nancial inormation by certain executive branch employees, including all

ull-time PAS nominees The purpose o the disclosure is to identiy and rectiy any potential

conicts o interest that a ler might have, including personal assets that might be aected

Exec Order No ,, Fed Reg (April , ) Exec Order No ,, Fed Reg (July , )


17/60


by decisions made by the ler while in oce, arrangements or uture employment, and posi-

tions held outside the government The Oce o Government Ethics developed the OGE

to capture Congress detailed disclosure requirements in a orm, and almost any change to the

content o the orm would require legislation

PAS candidates or part-time positions (boards and commissions) who serve or days or lessduring a calendar yearnearly percent o PAS positionsare not required to ll out the

OGE22For those nominees, OGE requires the more limited OGE Form , Condential

Financial Disclosure Report

PAS candidates currently complete the OGE on a llable, savable PDF or Excel le Once

complete, they submit a scanned signature le via email or an original in hard copy While

several ederal agencies have employed various technology solutions to assist OGE lers,

no government-wide or EOP system currently exists to automate the OGE process or every

ler The Stop Trading on Congressional Knowledge Act o (STOCK Act) requires OGE to

develop systems to enable electronic ling o the OGE, and OGE is in the very early stages

o developing an electronic system available or use government-wide

The candidates drat OGE is reviewed by OGE, the Designated Agency Ethics Ocial in

the agency associated with the relevant PAS position, and the White House ethics team The

review process generally entails a number o communications with the candidate and revisions

o the orm The candidate will oten provide additional inormation and revise the drat while

nalizing an ethics agreement, addressed to the relevant agency and signed by the candidate,

which outlines the steps that the candidate has agreed to take in accordance with the Ethics in

Government Act in order to resolve all identied potential conicts Among other things, the

ethics agreement spells out the candidates agreement to divest any holdings that present a

conict o interest and identies any matters that require recusal due to the nominees aliations

or previous work The candidate then nalizes the OGE and it is certied by the agency eth-ics ocial and OGE I the candidate is nominated, OGE is required by law to send the certied

OGE to the relevant Senate Committee with a cover letter expressing the [OGE] Directors

opinion whether the nominee has complied with all applicable conict laws and regulations23

OGE includes the ethics agreement with its transmission to the Senate Committee

White House Personal Data Statement (WHPDS). Administrations have used various versions

o a WHPDS It has at times been the rst orm that a potential nominee is asked to complete

and has included a wide range o questions, including sensitive questions that could preclude

nomination Experts have cited the WHPDS as a signicant source o overlap in the executive

branch inquiry24 The Obama Administration does not currently use a WHPDS

Some appointees occupy a ull-time PAS position and a second part-time PAS position on a board or commissionBoth positions are included in this calculation where the two positions are separately conrmed CFR (c)() () Terry Sullivan, Repetitiveness, Redundancy, and Reorm: Rationalizing the Inquiry o Presidential Appointees, iniNNoCeNtUNtil NomiNated: tHe BReakdoWNoftHe pReSideNtial appoiNtmeNtS pRoCeSS 200-01 (Calvin G Mackenzie ed, )


18/60


Senate Committee Questionnaires. Each o the Senate Committees with jurisdiction over

PAS nominees has its own questionnaire, and some have created more than one orm to be used

or dierent positions Generally speaking, the Committee questionnaires cover a wide range

o topics rom biographical inormation to criminal history to nancial disclosure to honors and

awards, and are used by the Committees in their review o PAS nominees to determine their

suitability or conrmation Each individual Committee develops its own questionnaire, which

is made available to nominees in standard, savable word processing or PDF ormat

In addition to the orms discussed above, candidates must complete certain consent orms and,

or ull-time positions, an ethics pledge, along with providing ngerprints (oten taken at a local

police station) and, or some positions, copies o tax returns

Based on the review o all these documents and the results o the vet, the background inves-

tigation, and the ethics review, the White House decides whether to nominate a candidate I

a candidate is nominated, the White House makes a public announcement and noties the

relevant Senate Committee o the nomination The announcement typically includes a short

biography summarizing the candidates employment history and accomplishments Soon aterthe nomination, OGE delivers to the Committee the nominees OGE along with the signed

ethics agreement and OGEs letter opining that the nominee has complied with all applicable

conict laws and regulations25 The Committee also receives the answers to its questionnaire

soon ater the nomination once it has been completed by the nominee

Process and Findings

The Working Group is comprised o a bipartisan group o current and ormer government ocials with

expertise in the nominations process It includes representatives o every government stakeholder in the

processormer Senators, individuals who have run the personnel process in dierent administrations,current and ormer directors o OPM, representatives o the FBI and OGE, and current and ormer senior

sta in the Executive Oce o the President Several o the Working Group members have themselves

served in PAS positions

The Working Groups study o the paperwork required by the executive appointments process occurred

expeditiously due to the -day statutory deadline, encompassing a detailed analysis o the orms that

PAS nominees must complete; a review o major literature on reorming the appointments process;

interviews with experts who have written or spoken on the subject, including ormer Senators, ormer

White House sta, leaders o good government groups, and academics (a list o interviewees is attached

at the end o Appendix C); and extensive conversations with stakeholders, including consultation with

Senators and Senate sta, White House sta, and personnel at relevant agencies, including the FBI,OPM, and OGE26

Although there is no mandated timerame or OGEs transmission o the certied OGE and accompanyingdocuments, it is generally delivered within ve days or nominees or ull-time positions, although it occasionally takeslonger The Working Group did not review the nomination and conrmation process or judicial appointments, USAttorneys, US Marshals, or military or oreign service ocers, as these ollow a slightly dierent process rom otherPAS candidates However, the recommendations or streamlining set orth in this report should be considered or thoseprocesses where they are applicable


19/60


The observations o the experts and stakeholders we consulted were consistent with the points made

regularly in the literature Indeed the consensus on both the need or reorm and the steps necessary to

improve the process was striking While a number o suggestions or improving the nominations process

exceeded the Working Groups mandate, the consensus that drove our recommendations can be sum-

marized as ollows (Further detail is included in Appendix C) The current system seeks to eliminate risk

wherever possible, resulting in a tendency to add ever more broadly phrased questions or nominees so

as not to miss any potential issues Questions regarding common issues in a nominees background are

ramed slightly dierently across the orms, creating a potential gotcha scenario where the nominee

is orced to deend innocent or immaterial mistakes or dierences in answers In addition, some o the

questions seem unduly burdensome and not necessary to the inquiry at hand The Administration and

the Senate should work together to standardize the basic inormation requested on the various orms

and arrive at a common set o core questions tailored to provide each o the parties the basic inorma-

tion they need to assess the candidate Each o the players should evaluate each question on their

orms and ask whether it is phrased so as to elicit the inormation that they care about as opposed to

inormation that is either unnecessary to their inquiry or will not aect whether a candidate is nominated

or conrmed

The Working Group embarked upon an analysis o the major orms used in the appointments process in

order to understand in detail the level o overlap and redundancy The orms included the SF, the

Supplement, the OGE, and Senate Committee questionnaires (Agriculture, Nutrition, & Forestry;

Armed Services; Banking, Housing & Urban Aairs; Budget; Commerce, Science & Transportation;

Energy & Natural Resources; Environment & Public Works; Finance; Foreign Aairs; Health, Education,

Labor & Pensions; Homeland Security & Government Aairs; Indian Aairs; Intelligence; Judiciary; Rules

& Administration; Small Business & Entrepreneurship; Veterans Aairs)27 This analysis revealed some

overlap across executive branch orms and a substantial amount o overlap between the inormation

requested by the Senate questionnaires and that requested by the executive branch orms (SF,

Supplement, and OGE) This was not intentional; it is simply the result o each entity asking or the

inormation it needs All o the orms call or much the same basic biographical inormation (name, date

o birth, address, etc) In addition, a considerable number o questions ocus on the same topics (eg,

criminal convictions, tax compliance, memberships, etc) and seek essentially the same inormation,

although they are worded in slightly varying ways Our ndings on overlap across the orms can be

broadly summarized as ollows:

Overlap Between Diferent Executive Branch Forms.28 There is currently only minimal

overlap between the various executive branch orms29 The overlap between the SF and OGE

is almost exclusively in the area o basic biographical inormation (eg, name and address) Moreover,

since tens o thousands o non-PAS ocials complete either the SF or the OGE, but not both, the

Although some Committees use dierent questionnaires or dierent nominees, in each case the Working Groupanalyzed the orm used or nominees or most PAS non-judicial, civilian positions Overlap occurs when two questions call or some o the same inormation, thereby requiring the candidateto repeat some or all o the answer to one question in the answer to the other While identical questions overlapcompletely, other questions share only discrete areas o overlap Previous overlap across executive branch orms has been signicantly reduced by the current Administrationselimination o the White House Personal Data Statement As noted in the recommendation section below, the WorkingGroup urges uture Administrations not to re-adopt a Personal Data Statement or other similarly redundant orm


20/60


minimal duplication cannot be eliminated Similarly, limited overlap exists between the OGE and

the Supplement (largely on the topic o outside positions previously held by the nominee); while

eorts should be made to eliminate even this minimal overlap, it will have only a concomitantly limited

impact Finally, while both the SF and the Supplement have questions on a handul o similar topics

(eg, criminal convictions, charges, and investigations; civil litigation; tax compliance; and cohabitant

citizenship and immigration inormation), many o the Supplements questions augment (rather

than repeat) those on the SF, and any overlap helps protect a candidates privacy given the distinct

unctions and end users o the orms

Overlap Between the Executive Forms and the Senate Questionnaires.30 There is consider-

able overlap between inormation requested by the Senate in its questionnaires and that sought by

the executive branch in its SF, Supplement, and OGE The two branches ask almost identical

questions about basic biographical inormation as well as similar questions on additional topics that

all into two broad categories: suitability and conict o interest In act, basic biographical inormation

and the additional topics make up an average o % o the total topics addressed by each o the

major executive and Senate orms currently in use31 The substantive topics covered by both theexecutive orms and nearly all o the Senate questionnaires are:32

Biographical Inormation:

Name and maiden/ormer name(s), position to which nominated, date o nomination,

date and place o birth, residential and oce addresses, marital status, spouses name

and maiden/ormer name(s), childrens names and ages;33

education;

employment;

publications;

memberships;

political activities;

While there is considerable overlap across dierent Senate questionnaires, this overlap is not particularly relevant tostreamlining paperwork because only a ew nominees are required to appear beore more than one Committee and thuswill rarely have to enter the same inormation on more than one Senate questionnaire Depending on the particular orm, the core topics comprise between % and % o the topics addressed The

SF is the orm with the smallest percentage o topics in the core (%), which is unsurprising in light o its length andsecurity-related questions; one o the Senate questionnaires had % o its topics in the core To analyze overlap, the Working Group divided the questions on the orms into distinct topics which it thencompared, rather than simply comparing discrete questions because o the variation in how questions were posed onthe dierent orms For example, one orm would cover a topic by asking one question with numerous elements, whileanother would approach the same topic by phrasing the elements as individual questions themselves; we concludedthat the best way to determine how the two overlapped was to compare in the aggregate all o the questions regardinga particular topic The Working Group classied all o the individual questions in this bullet regarding name, date o birth, etc under asingle topic called basic biographical inormation


21/60


Suitability:

criminal convictions;

criminal investigations, citations, charges, and arrests;

civil litigation and administrative or legislative proceedings; breach o proessional ethics;

tax compliance;

Confict o Interest:

outside positions;

agreements or arrangements;

assets;

liabilities;

income; and

gits and travel reimbursements

The questions asked about each o these topics are similar but not identical across all o the orms, and

solicit slightly varying and overlapping inormation Consider, or example, the similar questions on

breach o proessional ethics posed by the Supplement and one o the Senate Committee question-

naires set orth in the ollowing table:

Breach o Proessional Ethics

86 Supplement Sample Senate Questionnaire

Have you ever been disciplined or cited or a

breach o ethics or unproessional conduct by,

or are you currently the subject o a ormal

complaint procedure in any court, administra-

tive agency, proessional association,

disciplinary committee, or other proessional

group? I so, please give ull details

Have you ever been the subject o a

complaint to any court, administrative agency,

bar association, disciplinary committee, or

other proessional group or a breach o ethics,

unproessional conduct or a violation o any rule

o practice? I so, provide ull details

The two questions in the table above are not identical, but they are nearly so, and they both appearaimed at eliciting the same essential inormation At a minimum, nominees answering both questions

must repeat inormation, but they must also determine where the questions dier and make sure their

answers are both consistent and individually accurate

Overlap can also be ound between questions that are not quite so similar To give just one example,

the questions in the table below on outside positions as posed by the OGE and one o the Senate

Committee questionnaires dier in both time rame and scope:


22/60


Outside Positions

OGE278 Sample Senate Questionnaire

For the preceding two calendar years and the

current calendar year, report any positions

held, whether compensated or not Positions

include but are not limited to those o an ocer,

director, trustee, general partner, proprietor,

representative, employee, or consultant o any

corporation, rm, partnership, or other business

enterprise or any non-prot organization or

educational institution Exclude positions with

religious, social, raternal, or political entities

and those solely o an honorary nature

List below all corporations, partnerships,

oundations, trusts, or other entities toward

which you or your spouse have duciary

obligations or in which you or your spouse have

held directorships or other positions o trust

during the past ve years

Both o the questions in the table above are intended to discover any positions outside the government

that may pose a conict o interest or a nominee But nominees will need to scrutinize the subtle dier-

ences between the questions to determine which positions to list on one orm but not the other Such

overlapping questions occur on numerous topics, leading one observer o the nominations process to

write that the need to customize answers to such overlapping questions gives [nominees] an impression

o the process as a senseless dance seemingly orchestrated merely or the sake o making them dance34

Clearly, introducing a standard set o core questions across executive and legislative orms would signi-

cantly streamlin[e] the paperwork involved in the nominations process35 Eliminating the wasted time

caused by making nominees retype answers on multiple orms, wrestle with exactly what inormationmay be asked or by one question but not another, and reconcile their answers on the various orms to

avoid specious suggestions o deliberate inconsistency will expedite the process and reduce unneces-

sary burden on nominees

The Working Group and White House sta have engaged in an ongoing dialogue with Senate Committees

to explore ways to reduce overlap across the Senate and executive orms Our rst Senate meeting was

with Senator Alexander and his sta, ollowed quickly by a meeting with senior sta or the Majority

and Minority Leaders as well as HSGAC and Rules Soon thereater, we met with three o the committees

that handle some o the greatest numbers o nominations: the Committee on Health, Education, Labor

& Pensions, the Finance Committee, and the Judiciary Committee At these initial meetings, we sought

input into the Working Groups process and recommendations Sta indicated their receptiveness toworking together to standardize common questions and expressed a desire or the Working Group

to come back to them with a proposed set o core questions We did just that, and then proceeded to

Terry Sullivan, Reducing the Adversarial Burden on Presidential Appointees: Feasible Strategies or Fixing thePresidential Appointments Process, pUB. admiN. Rev , () Presidential Appointment Eciency and Streamlining Act o , Pub L No -, , Stat , ()


23/60


schedule and hold meetings with all o the Committees that review PAS nominees to discuss our

proposed set o core questions, which Committee sta are in the process o examining and helping

to rene36 These encouraging meetings have begun an ongoing cooperative process between the

Working Group, the Senate Committees, and the White House, which we eel condent will result in the

improvement and implementation o the Working Groups proposed set o core questions

At the time that this report went to print on November , , the Working Group had met with o the Senate committees and had meetings scheduled with the remaining three prior to the November , , delivery othis report


24/60

Recommendations

In developing recommendations to streamline the paperwork involved in the executive nominations

process, the Working Group was guided by the ollowing principles:

Decision makers in both the executive and legislative branches must have access to the inorma-

tion necessary to evaluate a nominees qualications and suitability or a position;

The nomination and conrmation process should be expedited and minimize conusion and

redundancy;

Questions should be posed in plain language and in ways that avoid unnecessary burden on

nominees;

Recommendations to improve the process must not add complexity, conusion, or additional

burden into the process; and

Recommendations should include both short-term and longer-term reorms

While some o these principles can at times be in tension, the Working Group believes that the ollowing

recommendations promote a harmonious balance among them37

1. Eliminate Repetition and Reduce Overlapping Questions

A. Develop a common set o core questions or the executive branch and each Senate Committee

to use, while allowing each to ask supplemental questions.

The single most important step that the executive branch and Senate could take to expedite and stream-

line the nominations paperwork would be to work together to arrive at a common set o core questionsthat each would use in place o their varying questions on core topics Senator Susan Collins endorsed

this idea in her remarks on the Presidential Appointment Eciency and Streamlining Act o :

A second area ripe or reorm is to develop a consistent, common orm or

the nominees to complete in order to streamline the process, save time, and

increase accuracy This also would reduce the cost and burden on nominees

The White House, Oce o Government Ethics, and the Senate need to work

together to reconcile the various questions that are asked o nominees38

When this idea was raised with Senate sta, they asked the Working Group to develop a pro-

posed set o core questions or consideration, which we have done A copy o the Working

Groups proposed core is attached as Appendix B, and has been discussed at meetings between

the White House and Senate Committees The reception has been quite positive; with contin-

ued, concerted eort, the branches could reach agreement on a common set o core ques-

The Working Groups recommendations with regard to each orm are summarized in a chart in Appendix A CoNg ReC S, (daily ed March , ) (statement o Sen Susan Collins)


25/60


tions quite expeditiously Reducing unnecessary duplication will dramatically speed up the

paperwork process or everyone involved and largely address the gotcha game phenomenon We

recommend that the inter-branch meetings continue with a goal o having a common set o core ques-

tions in place as soon as possible, but no later than when the Senate convenes or the th Congress39

To be clear, the Working Group is not recommending a comprehensive set o questions to be used byeveryone in all instances The executive branch and the Senate Committees each need certain inorma-

tion that is unique to their inquiries We simply recommend that the branches agree on a subset o core

questions that cover the inormation that they both need Each could o course still pose additional

questions attuned to their individual needs Section A o each Senate Committee questionnaire, or

example, would include the common set o core questions, while Section B would include any additional

questions asked by the Committee40 Similarly, the Supplement would be revised to accommodate

the core while introducing any supplemental questions Supplemental questions could include addi-

tional questions on topics outside the core as well as any additional questions needed on core topics

themselves ramed in as narrow a manner as possible I, however, an executive branch entity or Senate

Committee were to simply supplement the core with all o the questions it currently asks on those top-ics that are not specically covered in the core, little streamlining would be accomplished The Working

Group recommends that the executive branch and each Senate Committee use the creation o the core

as an opportunity to think careully about what, i any, supplemental inormation they genuinely need

A common set o core questions is analogous to the common application that hundreds o our-year

colleges have adopted In the past, most colleges had their own applications, all with dierent questions

trying to elicit the inormation necessary to determine the qualications o prospective students Each

prospective student applying to more than one college had to spend signicant time tailoring essays

to accommodate the slight dierences between similar questions Now, most colleges have agreed to

accept one common application that each then supplements with additional questions particular to

their individual inquiry Similarly, the executive branch and the various Senate Committees could agreeto core questions that each could in turn supplement with additional questions necessary to their

particular evaluation o PAS nominees

The Working Group recommends that the set o core questions cover the biographical, suitability, and

conict o interest topics summarized above which are currently asked by both the executive branch

and all, or nearly all, Senate questionnaires: education; employment; publications; memberships; politi-

cal activity; criminal convictions; criminal investigations, citations, charges, and arrests; civil litigation

and administrative or legislative proceedings; breach o proessional ethics; tax compliance; outside

By recommending a common set o core questions, the Working Group does not intend to change the FBIsbackground investigation process Accordingly, when a core question asks or more inormation than that covered bythe SF, the executive branchs adoption o the core question would occur by modiying the Supplement ratherthan the SF itsel During meetings on the core, sta rom certain Senate Committees expressed a desire or nominees to deliver theiranswers to the core (Section A) as soon as possible and then send their answers to the remaining questions (SectionB) separately, while sta rom other Committees said they would preer to receive both Sections at the same time TheWhite House could accommodate either, and the creation o a Smart Form would make it even easier to deliver theSenate Questionnaires according to the preerences o the Committees Regardless, the questions would continue to bedivided into public and condential sections pursuant to Committee practice


26/60


positions; agreements or arrangements; assets; liabilities; income; and gits and travel reimbursements41

The executive branch and the Senate Committees would then revise their orms to include the core set

o questions, along with any additional questions Absent such revisions to the existing orms, the set

o core questions would simply add work and delay to the process; the benets will only accrue i each

party replaces the questions on these subjects in its current orms with the core questions, supplement-

ing with other questions uniquely pertinent to the requester

The Working Groups proposed set o core questions is intended to be a conversation starter, something

concrete that the White House and Senate Committees can use to develop an agreed-upon set o core

questions It is not intended to be a denitive answer; the right answer is simply what works or both

the White House and the Senate Committees that will reduce unnecessary duplication

In developing the proposed core, the Working Group attempted to crat questions that elicited the core

inormation sought by all o the entities The questions are not simply a comprehensive aggregation o

all the elements in the various questions on a particular topic Rather, recognizing that some Committees

need additional inormation because o the particular position at issue and that they will always be ree

to ask individualized questions, the proposed set is an eort to get at the basic inormation that appearedto be at the heart o the various questions

Looking at the etymology o one o the core questionscriminal convictionswill help demonstrate

our approach The SF, Supplement, and all but one o the Senate questionnaires address candidates

criminal convictions42 The questions that the nominees must currently answer on each o the orms vary

The SF asks, Have you been convicted o or sentenced or a crime in any court? In answering this

question, PAS candidates must go back teen years or, in the case o nominees to cabinet and certain

other high-prole positions, to age In addition, the SF asks whether candidates have ever been

incarcerated or one year or more, or i they have ever been convicted o an oense involving domestic

violence or a crime o violence (such as battery or assault) against your child, dependent, cohabitant,

spouse, ormer spouse, or someone with whom you share a child in common? By contrast, the Supplement and all o the Senate Committee questionnaires inquire about anycriminal conviction that

the nominee has evercommitted (with the exception o the one Senate Committee questionnaire that

does not address criminal convictions at all) In addition, one Senate Committee questionnaire requires

a nominee to disclose convictions or any partnership or closely held corporation or other entity in

which you have an interest Finally, some o the Committee questionnaires specically exclude minor

trac oenses

The Working Group proposes the ollowing core question: Since (and including) your th birthday,

have you been convicted o or sentenced or a crime in any court?

We believe that this proposed core question will harmonize the executive and legislative orms whilegetting all parties the inormation they need (and, in at least one case, more inormation than they

Also included in the proposed core is a topic on Honors and Awards Although the executive orms do not requirecandidates to list their honors and awards, it is included in the proposed core because all o the Senate Committeequestionnaires include a question on this topic In the core, as in nine o the questionnaires to address criminal history, convictions are treated separately rominvestigations, citations, charges, and arrests


27/60


currently require) The time ramelonger than that in the SF or some crimes but shorter than that

in the Supplement or most Senate questionnairesreects the act that most States restrict access

to juvenile criminal records while recognizing the relevance o adult criminal history without regard to

time rame We did not include convictions o entities associated with the nominee that did not explicitly

involve allegations regarding the nominee because only one Senate Committee requested that inorma-

tion That Committee could, however, include a supplemental question on entity convictions in Part B

o its questionnaire i it ound that inormation salient Finally, we interpret the modier in any court

to exclude any minor trac violations save those contested in court

The Working Group encourages the White House and Senate Committees to continue consulting on a set

o core questions with the goal o agreeing on and adopting a common core beore the Senate convenes

or the th Congress We are optimistic that, with good aith eort, they can quickly agree on a robust

set o core questions, and amend their orms accordingly As they implement the core, we hope they

will think careully about exactly what additional inormation they need and tailor their supplemental

questions to elicit targeted inormation that will impact a nominees selection or conrmation Nowhere

is this more true than in the area o conicts o interest

B. Reduce the 86 Supplements and Senate questionnaires duplication o questions covered by

the nominees OGE278 and Ethics Agreement

I the White House and Senate Committees could take one action right now to streamline nominations

paperworkeven beore agreeing on a common coreit should be to eliminate questions on their

own orms that call or inormation already disclosed by law on a nominees OGE-certied OGE and

accompanying ethics agreement In the words o the Bipartisan Policy Center in its letter praising the

Presidential Appointment Eciency and Streamlining Act o : [W]e hope that in the uture the

Senate will continue to work to improve the conrmation process by coordinating senate committee

nancial disclosure orms with the executive branch disclosure orms43As described above, the OGE is a creature o statute It embodies the strictures o the Ethics in

Government Act, requiring nominees to disclose inormation and conicts o interest specied by the

Act The ethics agreement between the nominee and the relevant agency details the actionssuch

as recusals, divestitures, or resignationsthat the nominee has agreed to take in order to remedy an

actual or potential conict o interest OGE is required by law to transmit the completed OGE to the

Senate along with a letter stating whether the nominee has complied with all applicable conict laws

and regulations OGE also includes the ethics agreement with this transmittal

Most o the conict o interest questions asked in the White Houses Supplement and the Senate

Committee questionnaires call or inormation that is already disclosed on the nominees OGE-certied

OGE and ethics agreement For example, the OGE, the Supplement, and most Senate question-

naires require candidates to list inormation about outside positions, agreements, and arrangements

And most Senate Questionnaires ask or detailed inormation about income, assets, and liabilities that is

largely covered by the OGE and ethics agreement During meetings with the Working Group, sta or

157 CoNg. ReC. S, S (daily ed June , ) (letter rom the Bipartisan Policy Committee)


28/60


more than one Senate Committee expressed exasperation over the time and eort required to reconcile

nominees nancial disclosures on the OGE with those on their own questionnaires

Regardless o the outcome o the core set o questions, we recommend that both the White House

and the Senate Committees revise their orms to eliminate questions that are encompassed by the

mandated OGE and ethics agreement, and simply ask or any additional inormation they need thatneither covers A number o committees have already adopted this approach Some ask nominees to

simply attach their OGE and ethics agreement in response to questions about conicts o interest

and nancial disclosure Others ask candidates to supplement the inormation disclosed on the OGE

with narrow additions relevant to their deliberations The Working Group encourages other Committees

to adopt one o these models

C. Eliminate the use o a White House Personal Data Statement

The White House Oce o Presidential Personnel has at times required candidates or PAS positions

to complete a sometimes extensive questionnaire oten reerred to as the White House Personal Data

Statement (WHPDS) The WHPDS has typically contained questions that are duplicative o questions inthe SF and OGE The Obama Administration does not currently use a WHPDS, relying instead on

oral interviews and the other paperwork involved in the vetting process Discontinuing the use o the

WHPDS eliminated much o the duplication and burden internal to the executive branch that experts

have cited,44 and the Working Group strongly recommends that uture White House sta continue this

practice and not require candidates or PAS positions to complete a personal data statement

2. The Executive Branch and the Senate Committees Should Review TheirRespective Forms and, Where Appropriate, Revise Questions to ReduceUnnecessary Burden on Nominees

In addition to the many questions across orms that are similar or identical and in need o rationaliza-

tion, each o the executive branch orms and most, i not all, o the Senate orms include broad ques-

tions that are oten burdensome to answer with unclear relevance to the inquiry at hand The Working

Group heard requent complaints about certain questions that require extensive time and resources

or candidates to answer where they did not see a clear need or the inormation We recommend that

the White House, the Suitability and Security Clearance Perormance and Accountability Council (PAC),

OGE, and the Senate Committees each review their orms careully to see i they can more narrowly

tailor questions to get vital inormation without imposing an undue burden on nominees Burden could

be mitigated, or example, by setting minimum disclosure amounts, limiting the time rames covered

by questions, rening the type o inormation requested, or asking narrow questions that would onlytrigger additional questions or candidates who answer armatively

The Working Group oers suggestions below on specic questions worthy o revision that interviewees

repeatedly cited as being amongst the most unnecessarily burdensome It is the responsibility o those

Terry Sullivan, Repetitiveness, Redundancy, and Reorm: Rationalizing the Inquiry o Presidential Appointees, iniNNoCeNtUNtil NomiNated: tHe BReakdoWNoftHe pReSideNtial appoiNtmeNtS pRoCeSS 200-01 (Calvin G Mackenzie ed, )


29/60


with authority or oversight over the orms to change each ormthe PAC and its Security Executive

Agent (SF), the White House ( Supplement), the Senate Committees (Senate questionnaires), and

OGE and Congress (OGE)to ensure that their orms are drated to elicit the specic inormation

they need, and no more In light o the numerous nominations sure to come in , it is particularly

important that the White House and the various Senate Committees revise their orms as soon as pos-

sible We stand ready to work with each o the parties in any way that would be helpul

A. SF86

The Working Group recommends that the PAC direct the DNI, as the Security Executive Agent on the

PAC, and the Director o OPM, as issuer o the orm, to examine the SF questions with the goal o

reducing, restructuring, or rewording questions where possible to reduce burden on nominees while still

gathering the inormation necessary to make an appropriate assessment o the candidates suitability

or employment in a national security sensitive position and/or access to national security inormation

SF questions meriting review, or example, are those on oreign travel and those asking or addresses o

ormer residences o the candidate and addresses o ormer employers Former nominees and experts on theappointments process requently queried whether the extensive inormation requested by these questions

was necessary to the suitability determination and vet

Foreign Travel: PAS candidates must list any travel outside the United States in the past teen years (or

since their th birthday or certain positions) on the SF They must detail dates o travel; any coner-

ences, trade shows or meetings attended; and any subsequent contact with any oreign national as a

result o any such conerences, trade shows or meetings In a global economy where requent, even

weekly, business travel is not unusual, answering these questions can literally take weeks or some

candidates Questions about oreign travel have been included in the SF since its inception in ,

when such travel was rare and thus an indication o potential espionagea ar cry rom today when

business and leisure routinely take people out o the country That international travel by itsel is nolonger suspect activity can be gleaned rom the SF itsel, which now asks lers a series o ollow-up

questions, such as, While traveling to or in this country, were you contacted by, or in contact with any

person known or suspected o being involved or associated with oreign intelligence, terrorist, secu-

rity, or military organizations? and While traveling to or in this country, were you contacted by, or in

contact with anyone attempting to obtain classied inormation or unclassied, sensitive inormation?

The answers to these ollow-up questions, or similar targeted questions, appear more relevant to the

background investigation than do the precise dates o travel or the contacts with oreign nationals

subsequent to conerences, trade shows, or meetings

The PAC should direct the DNI and the Director o OPM to revise the SF to reduce unnecessary burden

on lers Revisions could perhaps require lers to list the countries that they have visited along with an

estimate o the number o visits to each country and, i necessary, an estimate o the number o coner-

ences, trade shows, and meetings attended in each country Then, the ler could be required to answer

the current ollow-up questions on contact with oreign intelligence and the like Filers could be spared

the time-consuming exercise o detailing the dates o each trip, conerence, trade show, and meeting

and the subsequent contacts with oreign nationals The background investigator could request that

inormation during an interview with the ler i it is deemed relevantor example, i the ler reveals


30/60


contacts with oreign intelligence or travel to countries on the State Departments list o state sponsors

o terrorism At the very least, consideration could be given to exempting disclosure o travel to certain

countries, such as members o the North Atlantic Treaty Organization45

Addresses: Interviewees also cited as burdensome the SF requirement that lers list the addresses

o the places they have lived or the past teen years (or since age or certain positions) as well asaddresses or ormer employers, which oten requires digging through les to nd street addresses

or post-college apartments occupied or less than a year or trolling the internet or addresses o now-

deunct companies While this inormation may be o some value when attempting to identiy the ler

in certain databases or in reaching out to ormer employers, we recommend that consideration be given

to whether the exact address is required or all prior addresses and employers listed on the orm, or i

city and state would generally be sucient Again, the background investigator could request more

detailed inormation rom the ler i it became necessary

B. OGE278

The Ethics in Government Act o established the current public nancial disclosure requirementsor PAS candidates, Congressional representatives and sta, and approximately , executive branch

lers46 Those requirements stand largely unchanged today The OGE is the orm created by OGE to

capture this inormation rom executive branch employees Although Members o Congress disclose

the same inormation, the purpose o their orm is quite dierent rom the purpose o the OGE

Senators and Members o Congress need only disclose their conicts o interest Federal law does not

require them to remedy those conicts, leaving the voters to decide i a potential conict should stand

in the way o re-election Executive branch employees, on the other hand, including PAS candidates,

must remedy their actual or potential conicts o interest, primarily through divestiture, recusal, a waiver,

or resignation In short, Congress has created a transparency regime or the legislative branch and a

conict removal regime or the executive branchCongress has several times asked OGE to recommend changes to the OGE, including in two man-

dated reports that were submitted in and Each o these reports detailed changes that OGE

recommended to reduce burden by eliminating requests or inormation not necessary to their conicts

o interest analysis OGE has done what it can administratively to improve its disclosure orms and reduce

unnecessary burden on lers, but the remaining recommendations would require Congress to amend

the Ethics in Government Act We recommend that Congress consult with OGE and amend the executive

branch disclosure requirements to reduce or eliminate requests or inormation that are unnecessary

to the conict o interest analysisa reorm that would decrease unnecessary burden on nominees or

In addition to the United States, the members o NATO are Albania, Belgium, Bulgaria, Canada, Croatia, the CzechRepublic, Denmark, Estonia, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Lithuania, Luxembourg, theNetherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Turkey, and the United Kingdom See NATOMember Countries, available athttp://wwwnatoint/cps/en/SID-AAE-B/natolive/nato_countrieshtm In the executive branch, much attention, historically, has been given to the eect o the ling requirements onPresidential appointees Such lers, however, are only a small subset o the approximately , executive branchpublic lers offiCeof govt etHiCS, RepoRtto CoNgReSS evalUatiNgtHe fiNaNCial diSCloSURe pRoCeSSfoR employeeSoftHe exeCUtiveBRaNCH, aNd ReCommeNdiNg impRovemeNtStoit , n () According to inormation given to the Working Group by OGE, thenumber o non-PAS executive branch public lers has risen above ,
http://www.nato.int/cps/en/SID-67AA81E1-9B043315/natolive/nato_countries.htmhttp://www.nato.int/cps/en/SID-67AA81E1-9B043315/natolive/nato_countries.htm


31/60


PAS positions and help expedite the nominations process while still protecting the vital public interest

o ensuring that public ocials do not have conicts o interest

The Working Group highlights below two exemplary changes that would reduce unnecessary burden

on candidates or PAS posit

Report of Working Group on Streamlining Paperwork for Executive Nominations Final

Documents

Transcript of Report of Working Group on Streamlining Paperwork for Executive Nominations Final