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Whether There Is or Whether There Isn’t

October 31, 2020

Q: What rules govern a presidential transition?

A: The statutes governing presidential transitions date to 1963, including the most recent update, the Presidential Transition Enhancement Act of 2019 (signed into law by President Trump on March 3, 2020.) These require a series of progressive steps that begin 6 months before Election Day and end after the inauguration. These include designation of:

  • A White House Transition Coordinating Council,
  • Agency Transition Directors; and
  • Individuals to serve as “points of contact’ within each agency. 

As Election Day draws closer, the work escalates inside the Administration with preparation of briefing books, issue papers, and interactions with the non-incumbent candidate(s) transition groups.

Q: What is happening now?

A: Much of this activity is happening in the shadow of a hard-fought campaign and receives little attention from the general public. According to the statute, the General Services Administration (GSA) plays a coordinating role, providing funding and office space to the non-incumbent candidate(s) transition teams. In the era of Covid-19, however, that work is proceeding remotely.

By the end of September:

  • Agencies must complete succession plans for non-career positions in the agency.
  • The incumbent Administration must complete a Memorandum of Understanding (MOU) with the non-incumbent candidate(s) regarding a host of logistical items.
  • Campaigns must provide detailed ethics plans to govern their teams during the interim between Election Day and Inauguration Day.
  • OPM must provide quarterly reports on current political appointees attempting to “burrow in” (transfer to civil service status).
  • The Comptroller General of the United States (the leader of GAO) must identify “midnight regulations” (regulations created by executive branch agencies in the lame duck period of an outgoing president’s administration).
  • Agencies must identify key priority decisions needing to be made in the opening weeks of a new term and issues demanding immediate attention.

Q: Does any of this matter if the incumbent wins?

A: Yes. History shows that up to 50 percent of an Administration’s key political appointees leave in the period between the election and the first 6 months of a second term (year 5). At a minimum, the transition documents serve as a starting point for new political appointees coming on in year 5. Thoughtful transition plans also provide assessment of first term successes and failures, an update on priorities, and reevaluation of difficult issues that were not addressed during a first term.

Q: What happens if Biden wins?

A: “Landing parties” arrive at each agency before the Inauguration to plan the actual transfer of authority and begin the process for filling political appointments.

Editorial Note: The week’s Analysis and Commentary section was written by the Alliance’s law firm, Olsson, Frank, and Weeda.

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