May 26, 2020

INSIGHT: It’s Not Too Early to Plan a Presidential Transition

It’s not too early for presidential transition planning to begin, Steptoe & Johnson LLP’s Robert Rizzi says. In 2008 and 2012, the respectful (if wary) relationship between the candidates, and the outstanding cooperation of the White House, allowed transition teams to approach most issues by following past norms.

By Bob Rizzi

Now that the nominee for the Democratic Party has effectively been determined, planning for a possible presidential transition is imminent. In May 2008, Obama’s transition office began secretly, with his Harvard Law School classmate, Chris Lu, starting a shoe-string operation in a nondescript store-front in Washington.

Then, the danger of being accused of “measuring the drapes” argued in favor of such a low-profile effort. In 2020, things are different.

First, changes in the law of presidential transitions since 2015 have encouraged candidates to begin planning early. The recently enacted Presidential Transition Enhancement Act contains additional incentives.

Accelerated pre-election security clearances and, eventually, federal funding, have made transitions more routine and reduced the political costs of seeming to anticipate victory in what will likely be a 50-50 election.

Second, nonpartisan good-government organizations, such as the Partnership for Public Service, have created resources as part of robust presidential transition projects. The PPS project addresses transition matters for a second term for President Donald Trump, as well as well as for Democrats.

Third, in the current crisis, a candidate who communicates competence in planning and organization could claim benefits from embracing a robust transition plan.

Lessons From Obama Transition

Structural problems hobble presidential transitions. A candidate’s staff is always focused on winning the election, with no time to worry about what happens after. Furthermore, almost no prior experience can prepare transition teams for the complexity of standing up a government during the 70+ days between the election and inauguration.

Different approaches have been tried; none of them has been completely successful. A study of the 2008 Obama transition effort by Professor Martha Kumar highlighted its achievements and was largely complimentary; I was a participant in some aspects of that transition, and had a somewhat more qualified experience.

The basic problem for the Obama transition was that it was trying to do many things at the same time—personnel, policy, and politics. Of these, the most important of course was politics, and tensions undeniably existed.

Getting to ‘No’ Quickly

However, an equally important challenge, and one that no doubt will impact the next transition for either party, was the difficulty of rapidly rejecting potential nominees because of flaws that surfaced during initial vetting. Delays in resolving issues with problematic candidates burned up valuable time and had repercussions that cascaded through the critical early months.

At the course we co-teach at Harvard Law School on presidential appointments, Charles Borden and I have described this as the problem of “fast to no.” The phrase reflects the importance of quickly sidelining weak prospects in order to conserve resources for stronger ones; the reality is that time spent agonizing over flawed candidates threatens the ability of the transaction to get the best people for the most positions as fast as possible.

Painful as this principle might be, both for potential nominees and their political sponsors, the transition must put in place a system of “getting to no” fast.

In 2008 and 2012, the respectful (if wary) relationship between the candidates, and the outstanding cooperation of the White House, allowed transition teams to approach most issues by following past norms. In 2020, everything may be different.

Alternatives such as “privatizing” some transition functions will be necessary. This approach has worked reasonably well in the past in vetting vice presidential prospects. As a veteran of one of those efforts (vetting prospective vice presidents for Sen. John McCain in 2008), I can attest to the benefits of looking outside the campaign for help.

For example, lawyers instinctively protect client confidences; in a transition, it is critical to avoid disclosure of sensitive matters, especially names of potential candidates. In three months of work for McCain in 2008, there were no leaks of any kind from the vetting team.

For individuals who have hopes of serving in a future administration, in order to avoid possible disappointment during the transition, it is necessary to get ready now. They should create a “shadow” vetting file, including paperwork (draft security clearance questionnaire, spreadsheets for financial disclosure reports) and backup materials (tax returns, publications, campaign contributions). Somebody who has already been “pre-vetted” will always have an advantage once a transition begins operating in earnest, possibly on Nov. 4.

Read more on Bloomberg