Key agency posts remain empty

Woody Allen sagely observed that 90 percent of life is just showing up. At key federal offices, nobody is doing even that as upper-level positions go unfilled in the waning days of the Bush administration.

In February, President Bush chastised the Democratic-controlled Senate for failing to confirm his choices for posts in the executive branch and the federal judiciary. "I have nominated skilled and faithful public servants to lead federal agencies and sit on the federal bench," he said. "The Constitution also gives senators an important responsibility. They must provide advice and consent by voting up or down on these nominees."

On March 14, Bush and Senate Majority Leader Harry Reid, D-Nev., reached a deal approving some 40 nominees. But more than 200 are still awaiting Senate action, according to the White House.

Paul Light, a professor of public service at New York University and an expert on the executive branch, says that the vacancy rate is higher than usual for the last year of an administration. "The Bush administration has had trouble from the very beginning getting its nominees approved," he noted.

Blame it on bad blood. "Basically, the Bush administration, over time, has just pushed Congress and the Senate too far," Light said. "And at some point, the Senate was going to reassert itself in terms of its authority."

Further compounding the situation: Democrats have little incentive to confirm people to positions so late in a presidential term. If they hold off, the thinking goes, a Democrat may get elected to the White House and nominate someone more to their liking.

Even as the deal was being made in March, Reid said, "Republicans blocked some of the president's own nominees." Still, he expressed a desire to see more confirmed in the coming weeks. "I am hopeful that we will continue to make progress on nominations in April," Reid said.

Another problem is that many acting administrators are filling in for permanent appointees. When the Senate does not confirm them, appointees often don't have the full confidence of Congress -- or their own agencies. To gain a better understanding of the staffing problem and its ramifications, National Journal has identified several key agencies and commissions that have a vacancy or are being run by an acting appointee.

Securities and Exchange Commission

The SEC is operating with only three of its five commissioners, and all are Republicans. Reid and the White House have been tussling over the vacancies, which by statute must be filled by Democrats. In November, Reid recommended Luis Aguilar, of McKenna Long & Aldridge, and Elisse Walter, who is now with the Financial Industry Regulatory Authority. (The Bush administration formally nominated them on March 28.) Critics say that the commission has a markedly pro-business tilt. "When you have one party that has absolute control, and there is no other view, that is a terrible thing," a former SEC lawyer said. The lawyer added that the commission is operating without the input of its primary constituency -- investors.

The SEC declined to comment for this story, but a spokesman pointed to a February speech by Chairman Christopher Cox in which he laid out an ambitious agenda and promised strong regulatory enforcement. Among other things, Cox said he plans to "return the bulk of the remaining $5 billion we've collected from fraudsters and securities law violators to the investors they cheated." He also promised to combat insider trading and confront market manipulation by hedge funds.

However, Stephen Crimmins, a partner with Mayer Brown who spent 14 years at the SEC, said, "Having both Democratic seats vacant at the same time will probably inhibit the commission from taking decisive action on rule-making and other policy decisions."

National Labor Relations Board

Although the NLRB, an independent federal agency that handles union-employer disputes under the National Labor Relations Act, has only two of its five members, a spokeswoman insisted that the board is getting its work done.

"The majority of the cases filed with the NLRB are resolved before reaching the board members for decision," Patricia Gilbert said in an e-mail. "Since 1990, the cases pending before the board in Washington have represented only 1 to 2 percent of cases found to have merit that are filed with the agency nationwide."

But one former NLRB employee, who still follows the agency closely, says that even though regional offices handle most of the work, the board must deal with the high-profile cases. Board members, the source contended, will not make any major decisions this year until the vacancies are filled. One member, Peter Schaumber, is a Republican and the other, Wilma Liebman, is a Democrat, so "it's less likely that anything controversial would be agreed upon," the source said.

Former NLRB Commissioner John Raudabaugh agrees. "The board can continue to function well if it has at least three members," he said. "But when it's reduced to two, it's really going to [handle] only cases that have no issues, really. They're summary judgment cases."

In her e-mail, Gilbert said: "The board's primary objective is to operate as close to normal ... as possible with the two remaining board members. They are committed to issuing as many decisions as possible during this period and avoiding delays. They have indicated they will apply current board case law, rather than holding cases until there are more members who might want to overturn precedent."

The NLRB typically makes most of its decisions toward the end of the year, so any members who might be confirmed this summer will have to acclimate themselves quickly. "There are a lot of things that hit the desk; many of them are routine and some important ones are not routine," the former employee says. "But it takes time. And if they're recess appointees, they're typically not as aggressive as a confirmed appointee." A recess appointee serves without Senate confirmation and only until the current congressional session ends.

At the end of January, the White House nominated former NLRB Chairman Robert Battista, Gerard Morales, and Dennis Walsh to fill the open seats. Senate Democrats, who dislike Battista in particular, have yet to act on the names.

Surgeon General

Rear Adm. Steven Galson has been acting surgeon general at Health and Human Services since October. He succeeded Richard Carmona, who resigned in 2006 over what he called interference from the Bush administration on health issues.

The surgeon general serves as the nation's chief educator on public health issues, and critics wonder where Galson has been for the past six months. "You have not heard anything at all from him since he's been acting surgeon general," said Sidney Wolfe, the director of Public Citizen's Health Research Group.

Georges Benjamin, executive director of the American Public Health Association, says he has met with Galson and likes him. "I think he's been trying to get out there," Benjamin says. "I know he's been trying to push health literacy ... and he's made a push on underage drinking."

But Benjamin points out the limitations that Galson is facing. "Acting folks have the challenges of a couple things," he said. "No. 1, you can't get out too far, because you're acting.... No. 2, the bureaucracy responds to you as though you're acting, which is even more important. And so it makes it even more of a challenge for you to move any kind of agenda."

Spokeswoman Jennifer Koentop denies that Galson's status has been a problem. "We haven't cut back on his schedule or not sent him somewhere just because he's acting and not confirmed," she said. "Lately, he'll be speaking a lot because we're really moving full-fledge on this initiative to bring attention to childhood obesity. So his schedule is actually ramping up."

Galson's acting role is unlikely to change. The Bush administration nominated James Holsinger to be surgeon general in March 2007, but a 1991 paper he wrote on homosexuality proved controversial, and he remains unconfirmed.

Nuclear Regulatory Commission

The NRC is again active in federal policy-making. Tax breaks and loan guarantees in the Energy Policy Act of 2005, coupled with skyrocketing coal and oil costs, have revived the moribund nuclear power industry. In September, the commission received the first new application to build a nuclear power plant since the partial meltdown of a reactor at Three Mile Island in Pennsylvania in 1979.

The five-seat commission had been operating with three members since the death of Commissioner Ed McGaffigan in September. Kristine Svinicki joined the panel late last month; the fifth seat remains open.

Eliot Brenner, the NRC's director of public affairs, conceded that the vacancies have been an issue. "When we have five commissioners, everybody kind of finds a niche and goes into it in detail," he says. "This is important for nuclear energy, which is an extremely complicated field."

Critics say that the empty chairs have affected work on oversight and policy over the past seven months. Quorum rules limit what commissioners can talk about directly outside of public meetings.

"When you impede discussion, you generally slow things down," said David Lochbaum, director of the nuclear safety project at the Union of Concerned Scientists. "Or you push forward absent those discussions and you don't reach as fully informed a decision as you might otherwise."

Brenner said that because of the quorum rule, all NRC commissioners have executive assistants who can communicate with each other in an unofficial capacity on behalf of their bosses, so thorny issues do get discussed.

Assistant Administrator for Air and Radiation at the Environmental Protection Agency

EPA's Office of Air and Radiation oversees air-pollution issues and is increasingly involved in the climate-change debate.

"The position is one of the most important and most powerful ... of that rank in government because of the broad regulatory oversight that that position is entrusted with and the extensive reach of the Clean Air Act," said Paul Billings, vice president of national policy and advocacy at the American Lung Association.

Given that fact, critics say, it is troubling that the office has gone without a Senate-confirmed chief since mid-2005. Robert Meyers has served as acting assistant administrator since June 2007.

EPA spokesman Jonathan Shradar counters that the office is in good hands. "The preferable point is to have an actual Senate-confirmed assistant administrator in that post, but the work will continue to be done," Shradar said. Meyers is "part of the [EPA] leadership team. So he's been up to brief the Hill. For all intents and purposes, he's acting as the assistant administrator in that role, and he's doing a fine job."

Meyers has been less controversial than his predecessor, Bill Wehrum, although EPA's recent clean-air decisions have angered Senate Environment and Public Works Committee Chairwoman Barbara Boxer, D-Calif. She and other Democrats charge that the White House and EPA Administrator Stephen Johnson recently overruled agency scientists on new ozone standards.

In December, the White House nominated David Hill, the Energy Department's general counsel, to lead the air and radiation office. But it recently withdrew his name and instead nominated Hill to be EPA's general counsel.

Sources say that the air and radiation chief is frequently caught in the crossfire between the energy industry and environmentalists. The assistant administrator oversees an office of about 2,000 people, while working with other stakeholders in the executive branch and dealing with Congress.

Frank O'Donnell, president of Clean Air Watch, thinks that Meyers has done a reasonably professional job under the circumstances. "Bob Meyers is the interim guy and has taken a lot of the burden on. For reasons unknown -- I guess they thought he was too progressive -- [the Bush administration hasn't] offered him the job permanently," he said.

Undersecretary for Arms Control and International Security at the State Department

This post was the launching pad for John Bolton, who took the lead on nonproliferation issues related to Iran and later became a controversial U.S. ambassador to the United Nations. Acting Undersecretary John Rood, a former staffer at the National Security Council and a former top aide to Sen. Jon Kyl, R-Ariz., is now filling it.

A reorganization of weapons-proliferation duties at State has made the job more complex. Rood serves as the department's acting head of the Bureau of International Security and Nonproliferation. State responded to an inspector general's report in 2004 by merging the arms control and nonproliferation operations into a single bureau.

Rood, nominated by the White House last year but never confirmed by the Senate, has reportedly spent much of his time on issues related to the planned U.S. missile defense system in Poland and the Czech Republic. Daryl Kimball, executive director of the Arms Control Association, thinks that Rood's office is understaffed.

"It's my belief that they are stretched too thin," Kimball said. "They no longer have the expertise they need to evaluate certain issues. I would imagine [that] because [Rood] is an acting undersecretary, he may not have an ability to be a decider or to control the interagency process in a way that sees a decision through."

State Department spokesman Gonzalo Gallegos declined to comment on Rood directly. But speaking to the larger issue of overall vacancies at the agency, he said, "Change is inevitable in the system. The system is designed to work around change. And while obviously we would like to have all of the jobs filled 100 percent of the time, the goals and objectives of the administration and the secretary are known throughout the building."

Meanwhile, Daniel Fried, who heads the Bureau of European and Eurasian Affairs, is also serving as acting undersecretary for political affairs, the No. 3 post at State formerly held by Nicholas Burns. And the position of undersecretary for public diplomacy and public affairs is still vacant; James Glassman has been nominated but not confirmed.

The nagging reality is that the people best qualified for top government jobs often don't want them. "A lot of the problem is with the general process that any assistant secretary at that level has to go through," says Rosslyn Kleeman, who chairs the Coalition for Effective Change. "Not only isn't it interesting for someone to join an administration at this time, but to go through the paperwork and the security clearance is enough to turn people off even if it were a good time."

Kleeman does see a silver lining in acting appointments: "There is some good to using career civil servants. Many of them are very well prepared, probably much better prepared than anyone you might bring in."

But Raudabaugh, who served in the George H.W. Bush and the Clinton administrations, has a different take: "The fact that Harry Reid on behalf of the Democrats and the president and his group at the White House for some reason can't work this out, that's unacceptable. We vote for an operating government, and I think the American public has every right to expect it to operate."