Newsletter 235: So What’s Up With The Vacancies Act?

Government staffing is complicated but crucial, and Dems can (and should) be strategic in their approach to the next administration.

With the election just a month away, and a change in administration looming in just three, many are once again asking a crucial question about the basic continuance of governmental function amidst the peaceful transition of power: How does government staffing work?

The short answer is that there are multiple statutes governing how vacancies can and can’t be filled, who can fill them, and for what amount of time. For high-level policy and leadership positions that are subject to Senate confirmation, this process can be complicated given that Senate approval is not always possible in the early days and months of an administration. Thankfully, there are procedures in place for filling these vacancies in the event of administration change, or any departure. The specifics largely depend on the government institution in question, which specific job needs to be filled, and whether that agency or position has unique orders of succession on the books. 

When an agency-specific statute doesn’t exist, filling vacancies (by and large) follows the process laid out by the Federal Vacancies Reform Act of 1998 (FVRA).

The Vacancies Act Summary Fact Sheet 

What is the FVRA? 

• The Federal Vacancies Reform Act is the primary mechanism by which federal vacancies are filled.

Who is eligible to fill a vacancy? 

• When a vacancy occurs, any officer that is a “First Assistant” to the vacant position by default fills that position. 

• The FVRA doesn’t provide definition for the “First Assistant,” and so if there is no designated “First Assistant” in any given office, who/what position may qualify for temporary acting status in the position may be up for debate. 

• Even if occupied by the “First Assistant,” the President can still designate other officials to fill the vacancy. Those officials must: 

• Have previously been confirmed by the Senate to another office, or

• Be a GS-15+ level (i.e., within the top compensation tiers) senior employee or officer that has been at the agency for more than 90 days before the vacancy began.

How long can someone be an acting official? 

• FVRA positions are time-limited, and the clock starts immediately following vacancy by the permanent officer, unless the vacancy occurs during or soon after a presidential inauguration. 

• Vacancies Occurring Not During A Presidential Transition: 

• A 210 day clock starts immediately when a vacancy occurs.

• If a candidate is nominated, the acting may remain acting until either the candidate is confirmed, or until the candidate is rejected, returned to, or withdrawn by the President. 

• If a candidate is rejected, returned, or withdrawn, the acting is given an additional 210 days from that date. If a second nomination is made, and subsequently rejected, returned, or withdrawn, the acting is eligible for another 210-day extension. Subsequent nominations, however, do not further extend this period.

• An acting official under these circumstances can remain in their acting role for 630 days, plus the amount of time that nominees are pending for. 

• Vacancies Occurring Before A Presidential Transition: 

• If a position was already vacant on the president’s inauguration day, the 210 day clock begins 90 days after the inauguration. 

• If a candidate is then nominated, the acting may remain acting until either the candidate is confirmed, or until the candidate is rejected, returned to, or withdrawn by the President. 

• If a candidate is rejected, returned, or withdrawn, the acting is given an additional 210 days from that date. If a second nomination is made, and subsequently rejected, returned, or withdrawn, the acting is eligible for another 210-day extension. Subsequent nominations, however, do not further extend this period.

• An acting under these circumstances can remain in their acting role for 720 days, plus the amount of time that nominees are pending for. 

• Vacancies Occurring During A Presidential Transition: 

• If a position is vacated within 60 days of a presidential inauguration, the 210 day clock begins 90 days after the date the vacancy occurred.  

• If a candidate is nominated, the acting may remain acting until either the candidate is confirmed, or until the candidate is rejected, returned to, or withdrawn by the President. 

• If a candidate is rejected, returned, or withdrawn, the acting is given an additional 210 days from that date. If a second nomination is made, and subsequently rejected, returned, or withdrawn, the acting is eligible for another 210-day extension. Subsequent nominations, however, do not further extend this period.

• At most, an acting under these circumstances can remain in their acting role for 780 days, plus the amount of time nominees are pending for. 

What agencies/positions does the FVRA not cover? 

• The Vacancies Act does not apply to: 

• Multi-member independent agency boards and commissions,
• Multimember boards of government corporations, 
• Officers in the Government Accountability Office, and 
• Federal judges 

• Further, there may be specific statutes on the books that designate a different line of succession for an agency, or allows the “the President, a court, or the head of an Executive department” to designate a line of succession. For example, at the Department of Labor the Deputy Secretary can perform the duties of the office until a successor is appointed, regardless of days since the vacancy. 

• Because of this, Acting Secretary Julie Su at the DOL is the only currently sitting cabinet-level acting Secretary who could retain her position indefinitely. By contrast, Housing and Urban Development’s Acting Secretary, Adrianne Todman, is vulnerable to FVRA’s time limitations given that HUD does not have a specific statute regarding succession. As such, Todman will have to vacate the acting-position before the end of the year unless another nomination is made soon, as she became Acting Secretary at the agency in March. 

Why Does The Vacancies Act Matter Right Now? 

Should Kamala Harris win the Presidency in November, she will almost certainly be faced with a hostile, obstructionist, Republican-controlled Senate. We already know, to an extent, what that will look like. 

A Republican minority in the Senate has spent the last four years doggedly opposing imminently qualified Biden nominees with racist, misogynistic, sexist, and homophobic slander that kept progressive leaders out of places like the Office of the Comptroller of the Currency and the Federal Communications Commission. 

These absurd protests wasted hundreds of hours of Senate floor time, when actual policy negotiations and attempts at basic governing could have occurred. Instead, they were spent captured by political grandstanding seeking to incapacitate the federal government’s basic function. Of course, these protests also continuously stalled or sabotaged important Biden-era policy priorities like restoring net neutrality and empowering watchdogs at the Equal Employment Opportunity Commission (EEOC) and Federal Energy Regulatory Commission (FERC). 

Under a Harris Administration and Republican Senate, this obstructionism would likely be even worse.

Aggressive use of the Vacancies Act, therefore, might be Harris’ only option for staffing some of the most important seats in the Executive Branch.

Republicans won’t like it, but as our Max Moran pointed out years ago, aggressive use of the Vacancies Act was a defining feature of the Trump administration’s approach to staffing the federal government, even when Trump was working with a Republican-controlled Senate. Of course, the Trump administration was also known for its disregard of the Act’s basic parameters (including qualification requirements and time limits), rendering many of its agents ineligible for their acting positions and their actions in office unenforceable. 

A Harris administration, should it face an obstructionist Republican Senate majority representing a minority of voters, should, of course, follow the strictures of the Vacancies Act. But Harris and her staff should not be afraid to use the Act enthusiastically to find a perfectly legal means to ensure that the government can keep functioning even if Republicans refuse to confirm any of its leaders.

What About A Second Trump Administration? 

In preparation for the potential of a second Trump Administration, by contrast, Senate Democrats and the White House should be working tirelessly to confirm all of its outstanding nominations and re-nominations.

As we said in September, at the independent agencies Dems should prioritize the confirmation of leaders like Christy Goldsmith Romero to be Chair of the Federal Deposit Insurance Commission (FDIC) and the re-confirmation of Caroline Crenshaw to her Commissioner position at the Securities and Exchange Commission (SEC), which expired in June. Though Crenshaw would not have to leave her seat until December 2025, Crenshaw’s re-confirmation would lend Democrats a majority at the SEC through June 2026. For more insight into what pending nominations Senate strategists should prioritize, check out our September addition to our Independent Agency Spotlight series.

Non-independent agency nominees that should be a priority for Senate and White House strategists include Ron Borzekowski to be the Director of the Office of Financial Research (OFR). Trump’s pick for the position, Dino Falaschetti, was ruinous for the Office’s productivity, corrupted its ability to accurately inform the Financial Stability Oversight Council (FSOC) of systemic financial risks, and otherwise functionally sought to gut the OFR from its helm. 

Another nominee who merits particular prioritizing is David Huitema to be Director of the Office of Government Ethics (OGE). OGE Directors serve five-year terms and direct the federal government’s ethics policy and the interpretation of existing ethics policies. Given the sheer degree of ethical lapses that defined the first Trump-era, this role could be crucial in holding accountable Trump officials for their impropriety this time around. 

The Judiciary

Regardless of what happens in November, though, especially with the possibility of a second Trump term looming, Biden and his Senate allies should seriously consider a judicial nomination strategy for filling the existing vacancies across the federal judiciary over the next few months. 
There are currently 29 federal judicial seats that Biden could nominate candidates to, but hasn’t. There are an additional 14 federal judicial nominees that Biden has nominated, but has yet to confirm. It is likely impossible for Biden to confirm judges to all of these available seats, but Biden and the current Democratically-controlled Senate should have a plan for filling some of these vacancies while it still can.