New laws have better prepared the government for this scenario than in 2000, the last time the results were significantly delayed.
The presidential election was too close to call early on Wednesday morning and it could take weeks to get the official results, cutting into the time for ensuring a smooth transfer of power by Inauguration Day should Democratic nominee Joe Biden win. However, unlike in 2000, the last time there was a delay in results, transition laws have evolved that give candidates more of a head start in preparations.
While Biden can’t name nominees and landing teams can’t come into federal agencies during this waiting period, as opposed to 2000 the Biden team has “the luxury of the pre-election transition work,” said Ed Ingle, president of the consulting firm New Lantern Partners who was the Cabinet coordination director for President George W. Bush’s transition in 2000, when the election results were delayed due to the Florida recount and ensuing Supreme Court case. “If Biden does ultimately win he’ll clearly have the benefit of the 2010” and the other recent transition laws, which is “good for the country.... [and] continuity,” Ingle said.
The new laws followed the September 11 terrorist attacks, which made many members of the public and government officials view the transition differently because “you can’t have times of great volatility” if the country is vulnerable to outside security threats, Martha Joynt Kumar, director of the nonprofit White House Transition Project, told Government Executive, “What you need [from a security perspective] is to have certainty and continuity in government.”
Some of the transition law updates since 2000 include: the General Services Administration provides office space and secure computer systems for candidates’ teams after the summer nominating conventions; candidates can submit transition team members’ names to the FBI to have them vetted for security clearances; and two coordinating councils composed of officials from the White House and agencies (established in the spring) help prepare briefing materials and resources for the potential incoming administration.
The most recent law further clarifies GSA’s responsibilities, requires agencies to create succession plans for senior non-career positions by September 15 and strengthens ethics requirements for candidates, among other things.
During the upcoming waiting period, Biden can also continue to develop and determine policy priorities, speak with external stakeholders on possible policy initiatives and research individuals for Cabinet positions. He can make use of information from outside groups as well, such as the transition center at the nonprofit Partnership for Public Service (established in 2001) and the Regulatory Studies Center at The George Washington University (established by former Office of Information and Regulatory Affairs Administrator Susan Dudley in 2009), according to interviews with various transition experts and former officials.
“Transitions tend to start earlier now,” however, teams “still grapple with the same issues” as they did years ago, said Alan Kessler, attorney at Duane Morris and a Democratic fundraiser, who served on President Clinton’s transition team in 1992. This includes “not giving away the impression that anybody’s counting on a victory while at the same time fundraising to cover staff and personnel costs.”
The current transition is “far more complicated than previous transitions” because the pandemic has forced many to work remotely at a time when agencies’ “strategic priorities” for the communities they serve are evolving, said Danny Werfel, head of the Boston Consulting Group’s public sector practice who was a former top official in the Office of Management and Budget. However, he believes civil servants, who have many operational transition responsibilities, are “resilient” and “absorb unexpected potholes in the road,” he said.
Chris Lu, former top Obama administration official and 2008 transition executive director, told Government Executive that if anyone can tackle the “complications or obstacles” with the transition it is Biden and his team. “This is a person who understands well how government works,” Lu said. “He has a lot of people who have spent a lot of time in government and so I’m confident that they can make a quick adjustment if they need to.”
Kumar agreed. “An advantage Biden would have coming into the presidency, even if delayed, would be that during the campaign he emphasized his preparation for office,” she said. “He has released information on his transition team and their work preparing to govern. He will be prepared to roll out his campaign priorities of, first, providing national guidance for dealing with the pandemic; second, economic recovery. His transition team is made up of people who have worked in legislative and executive branch operations as well as people he has had on his Senate and vice presidential staffs.”
When asked last week what GSA was planning to do in the event the election was not decided on November 3, a spokesperson reiterated the agency’s responsibilities under the transition laws. “Until the winner is clear (based on the Constitutional process) and an ascertainment can be made, the statute allows for the Biden transition team to continue to receive the pre-election services from the government (e.g., limited office space, computers, background investigations for security clearances),” said the spokesperson.
The Biden transition team declined to comment ahead of the election. OMB did not respond for comment.
There are other circumstances that make this year unique. Last Monday––with eight days until the election––the Senate confirmed Judge Amy Coney Barrett to the Supreme Court. During her confirmation hearings, she wouldn’t commit to recusing herself from potential cases regarding the election.
Also, in September the president refused to promise a peaceful transfer of power if he were to lose and indicated at his recent rallies that he would not cooperate with Biden on the transition if he wins. GSA did not respond on whether or not the agencies met the November 1 deadline to submit their briefing books for a potential new administration, but the Trump administration met all of its other statutory deadlines as the process began almost a year ago. Also, Robert O’Brien, national security advisor, told Politico on October 21 that Trump will accept the results if he doesn’t win. However, some have lingering concerns given the “unorthodox” approach the incoming Trump team had to the transition in 2016 and 2017.
Politico outlined the ways Trump could take destructive action in the lead up to Inauguration Day if he loses. Outside groups Feds for Democracy and Democracy Kitchen recently hosted a virtual meeting for 150 concerned federal employees about what to do in the event Trump refused to leave office.
The president’s remarks in September should be a “wake up call” for civil servants who might blow the whistle on possible “lawbreaking of the administration,” Mark Cohen, board member of the whistleblower protection and advocacy organization the Government Accountability Project and principal deputy at the Office of Special Counsel from 2011 to 2017, wrote in Government Executive last month.
During the disputed 2000 election, Republican strategist Roger Stone (who later became an advisor to Trump) and Matt Schlapp (now chairman of the American Conservative Union) led the infamous “Brooks Brothers riot” to shut down the recount in Miami-Dade County, Florida.
“We should expect that, given who Trump is, he would resort to similar efforts,” Cohen told Government Executive in a separate interview. “There is no evidence that Trump has a bottom, something he wouldn’t be prepared to do to keep his power.”