Presidential Transitions Need a Stronger Foundation

(Bloomberg Opinion) -- In normal times, presidential transfers of power are not a great source of public drama. The outgoing president pledges to help the incoming one, and a transition team sets up shop next to the White House as it gets ready to assume power.

But these aren’t normal times. While an earlier generation of leaders anticipated the potential for the kind of mischief being practiced by President Donald Trump and his allies, it’s only now becoming clear that they also fell short. The price is measured in the hours and days between now and Inauguration Day, when President-elect Joe Biden is scheduled to take office.

For much of the nation’s history, presidents-elect steered clear of Washington prior to Inauguration Day. There wasn’t a transition so much as a turnover. One historian has characterized this as “not greatly different from the punctilio surrounding the surrender of a city to a victorious army commander.”

The reason was simple: The executive branch wasn’t all that big and the challenges of governance were rarely that pressing.  After defeating William Howard Taft in the 1912 election, Woodrow Wilson promptly boarded a ship for Bermuda. There he spent a month riding his bike on the island, writing thank-you notes to supporters, and getting a really good tan. 

Things began to change in 1932 with the election of Franklin Delano Roosevelt. The scale of the crisis confronting the nation led him and the many experts constituting his “Brain Trust” to take far more concrete measures. They studied the state of the union across dozens of areas, and Roosevelt and his advisers even met directly with Hoover and other high-ranking administration officials.

This might have created an immediate, enduring precedent, but something very strange happened: The presidency basically didn’t change hands for three decades. Roosevelt won four times, succeeded by his vice president, Harry Truman, who eked out a full term of his own. By the time Dwight Eisenhower finally won in 1952, the federal government had grown into a behemoth and the United States was the most powerful nation in the world.

At the very same time, Eisenhower’s election was the first to fall under the strictures of the 20th Amendment, which shifted Inauguration Day from March 4 to Jan. 20. President Truman, worried about getting his successor up to speed on everything from the nation’s nuclear arsenal to domestic programs, largely invented the customs that define presidential transitions: meetings between the president and president-elect; briefings of the government-in-waiting; and the formal commitment of subcabinet political appointees to stay on for a few weeks into the new administration.

But there was a problem: This kind of preparation took a good deal more money than Wilson’s vacation to Bermuda. At first, party officials took up the burden: Republicans paid over $200,000 to underwrite Eisenhower’s transition, while Democrats covered over $360,000 to pay John F. Kennedy’s costs after his election in 1960.

Kennedy came away from the experience concerned that the fate of the free world shouldn’t hang on the ability of the winning party to pay the costs.  He and his allies in Congress began contemplating a way to reform this system, turning what had become a custom into a formal mechanism. This would beget what became known as the Presidential Transition Act of 1963, which has become the template for modern transfers of power.

On the opening day of hearings, the bill’s sponsor, Representative Dante Fascell of Florida, cited the “size and complexity” of the federal government. But he also offered some words that now seem prescient, arguing that leaving “these matters to the discretion of the President and President-elect could conceivably have unfortunate results, especially if the incumbent was defeated by the President-elect in a hard-fought campaign. Let us guard against the possibility of noncooperation, as remote as it may be.”

Fascell’s bill became law the next year. Henceforth, every new president was entitled to federal funds and office space that could be used to create a government-in-waiting. While the legislation could not compel outgoing administrations to assist their successors, removing the funding question from political manipulation was an important step in the right direction. Congress has tweaked the legislation at various times since then, most recently in 2019.

But the passage of the act left one important point ambiguous: when, precisely, the president-elect could demand the funds and offices to which they are entitled by law. Fascell’s bill placed that decision in the hands of one of the lesser-known top executives in the federal government — the head of the General Services Administration. This was only natural: The GSA is the agency that supplies the government with everything from offices to desks to paper clips; it would now do the same to the incoming administration.

But the language was a bit ambiguous. The original legislation defines the president-elect and vice president-elect as the “apparent successful candidates … as ascertained by the [administrator of the GSA].” But the legislation gives no guidance as to precisely how this all-important-if-utterly-unknown individual would “ascertain” when, precisely, an unambiguous winner has emerged.

The failure to nail this down in 1963 may now loom large. In fact, the Trump appointee who heads the GSA — Emily Murphy — has refused to “ascertain” that Biden has won, stoking fears that Trump is going to thwart Biden’s transition by any means possible. 

That the GSA is dragging its feet is likely connected to the legal advice it’s getting. Ten days before the election, Trump installed a new general counsel at the GSA. This individual, Trent Benishek, had been serving as special assistant to the president. Now he’s in charge of providing legal opinions to Murphy.

Whatever the motive for this appointment, it’s clear that the current statutes governing the peaceful transfer of power are insufficient and could readily be corrupted by the outgoing administration. It’s time for for Congress to amend the original legislation once more — and come up with a more precise, predictable way for presidential transitions to take place.  

The catastrophe that Lincoln inherited is a notable exception.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Stephen Mihm, an associate professor of history at the University of Georgia, is a contributor to Bloomberg Opinion.

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