Just Fix the Fucking Vacancy Act Already
Bill Pulte, Senate-confirmed Director of the Federal Housing Finance Agency and Chairman of Fannie Mae / Freddie Mac, has been appointed by President Trump as Acting Director of National Intelligence.
This is stupid. Pulte has no experience in intelligence, will not give up his other roles, and is widely-seen as a Trump loyalist and/or hatchet man. Not surprisingly, this is going over like a lead zeppelin among Democrats in the Senate, and has gotten a cool reception from Senate Republicans.
Unfortunately, the law that authorizes Trump to install Pulte—the Federal Vacancies Reform Act (FVRA)—has been consistently abused by presidents of both parties. The underlying goal of the law—to allow presidents to temporarily get suitable officials into Senate-confirmed positions with vacancies while new nominees are being considered in the Senate—is unquestionably sound. But the structure of the law creates a ton of loopholes. Consider just five major ones:
Any Senate-confirmed appointee in the government can serve in any Acting role, unless a specific statute demands otherwise. That’s way too wide a pool. The Senate confirms all sorts of people to lower-level positions that they would not consider suitable to higher-levels. The FVRA lets presidents place just such people in just such places.
Statute-specific qualifications for nominees to certain positions likely don’t apply to Acting appointments. Pulte has no national security qualifications, which are statutorily-required for DNI nominees, but that is rendered moot by most readings of FVRA.
The Acting appointees can stay in their role far too long. FVRA provides for an Acting to serve 210 days. But that can be renewed twice if replacement permanently nominees fail in the Senate. And the clock doesn’t run while nominees are pending in the Senate. So Pulte could effectively serve the rest of Trump’s term, if POTUS desires.
FVRA allows the president to fill vacancies for positions of which he fired the previous officeholder. That’s dumb.
FVRA allows Actings to maintain their former role. In no world does it make sense for one person to be DNI and run the FHFA at the same time.
The result of all this is that FVRA has turned into a way for administrations to install a political leadership of the executive branch that the Senate would not otherwise allow. It was bad under previous presidents; this isn’t just about Trump. But nominations like Pulte’s make a mockery of the entire law, and really put a fine point on it. There’s no shortage of advocates for reforming FVRA, and there is legislation waiting to do so. Proponents should use a ridiculous appointment like Pulte to DNI to build momentum for it.
I think there’s a fair chance Pulte doesn’t survive and become Acting DNI. There’s already a lot of Senators speaking out about it, and private informal pressure on Trump and the White House could easily kill this appointment. And Trump is on one hell of a losing streak in Congress. A lot of Senate control over the president works that way. Especially with the leverage of FISA renewal on the short-term horizon.
But that’s no reason to not reform the FVRA. This is some low-hanging fruit for reining in some executive overreach. Congress should take action.