Rocky Presidential Transition Prompts Calls for Changes in the Law 

In the wake of the tumultuous and unprecedented presidential transition, an academic research group is recommending that Congress strengthen transition laws to ensure that funding, resources and information sharing happen expeditiously after an election. 

Due to President Trump’s legal challenges to the results of the 2020 presidential election, the General Services Administration did not ascertain Joe Biden as the apparent winner until 16 days after the news outlets called the race, which legally delayed key transition resources and activities, and prevented funds from flowing to the Biden team. Various groups and individuals criticized GSA heavily for the delay, especially since the incoming and outgoing administrations' teams could not communicate about coronavirus vaccine distribution. 

A research group from the University of Notre Dame’s Keough School of Global Affairs tracked the transfer of power process and then published a report on Wednesday on its findings. Former White House Chief of Staff Denis McDonough, a university professor who is now the secretary-designate for the Veterans Affairs Department, oversaw the project. 

“Only 76% of the transition provisions have been fulfilled,” despite the fact that President Biden did take over on January 20, said the report. “Delays and uncertainty defined what was perhaps the most closely watched and politically fraught transition in modern United States history. Most of these disruptions stemmed from President Trump’s refusal to concede defeat. In particular, this refusal caused a delay in one of the most critical aspects of a smooth transition, the General Services Administration’s ascertainment of the election results.”

Based on their research, the analysts identified several areas for legislative reform to prevent similar issues going forward. Some of them include: 

• Decrease the time between Election Day and the final certification deadline. 
• Define a fixed time period for potential legal arbitration challenging election results.
• Possibly prohibit outgoing presidents from making pardons and appointments, firing political appointees and using “other unilateral executive powers.”
• Mandate that GSA ascertain an apparent winner “as soon as possible.” 
• Create clearer standards for cooperation between the outgoing and incoming administrations (such as creating specific information sharing processes and ordering “early and frequent meetings.”) 
• Establish an independent commission to review and promote the role of democratic norms for a smooth and peaceful transition. 

Besides the delay from GSA, other factors that put “the statutory provisions that govern presidential transitions to the test” were the “global pandemic, new voting systems, a contested election, pervasive disinformation campaigns, attempted foreign interference, President Trump’s refusal to concede, and an armed insurrection at the United States Capitol,” said the report. 

The group also gathered written feedback from transition experts, who said there were detrimental impacts of Trump’s rhetoric around the election and mobilization of his base to challenge the legitimacy of the election, which cannot just be captured in a quantitative study. 

Last month, Chris Liddell, Trump’s deputy chief of staff, said on the nonprofit Partnership for Public Service’s Center for Presidential Transition podcast that over 90% of the agencies cooperated on the transition, but there were some “uncooperative” ones. The delay in GSA’s ascertainment was “one of the most frustrating periods I’ve ever seen,” which put then-GSA Administrator Emily Murphy in a “terrible position,” he said. 

Going forward, Liddell said he believes there should be a law that “allows a provisional ascertainment to occur so that an incoming administration [and] the president-elect can get security briefings for a lot of the time-sensitive issues regardless of whether the formal election has been settled or not.”

In her letter green-lighting the transition to begin, Murphy also noted that transition laws might need to be amended to address the gray areas in the ascertainment processes.