Blessings of Bureaucracy: Christina Kinane Talks Federal Vacancies, Presidential Strategy, and the Virtues of Government Service

Christina Kinane is an assistant professor of political science and a resident faculty fellow at Yale’s Institutions for Social and Policy Studies (ISPS). She is also the faculty coordinator of the Millstone Fellows Program, an ISPS-run program supporting undergraduate summer internships in federal, state, and local government. 

Who is running the federal government?

This seems like a simple question with a straightforward answer. Voters elect members of Congress and a president. The president appoints people to run departments and agencies as well as judges, who serve lifetime appointments on federal courts. Some of these presidential appointments, such as judges and cabinet members, require confirmation by the Senate. There are about 2 million people serving in federal government jobs. They are overseen by about 4,000 presidential appointees, about 1,200 of whom require approval by the Senate.

But transitions between presidential administrations typically see near wholesale turnover in these positions, as the new boss seeks to install a new team. Nominations for key positions are often prepared for rapid confirmation shortly after the inauguration, while other seats remain vacant. For many nominees, the confirmation process can be monthslong and intrusive, requiring background checks, financial disclosures, private interviews with senators, public hearings, and protracted votes as the Senate works through a cramped calendar. Nominees might drop out because of fatigue or political opposition. After confirmation, most leave around halfway through a president’s four-year term for various reasons, requiring the process to start all over again.

When Christina Kinane first investigated presidential appointments requiring Senate confirmation, she found that between 1996 and 2016, nearly 40% of vacant positions reported to the Government Accountability Office (GAO) went without subsequent nominations for a permanent appointee. And 60% of those vacant positions were temporarily filled by acting appointees.

Why?

“I would argue that protracted vacancies happen because the president and his administration want them to,” Kinane said. “What I have been learning is that presidents will engage in these appointment strategies to advance their agendas.”

Kinane, assistant professor of political science and a resident faculty fellow with Yale’s Institution for Social and Policy Studies (ISPS), is finishing a book on this topic and preparing a sequel. We sat down with her recently for a preview in which she discussed the importance of knowing who these acting appointees are, what they do, how long they do it, and what this all means for accountability and good governance.

ISPS: From previous conversations with you, I understand that researching political vacancies isn’t as simple as consulting the Yellow Pages or some unified, regularly updated federal government directory. Can you share a little about how you have collected the data for this book?

Christina Kinane: Each year the U.S. Government Publishing Office puts out a manual. It says what various bureaus and agencies do, what their missions are, and who are filling these positions. It will say if there is a vacancy or an acting appointee. Another source is known as the Plum Book, which lists most of the positions requiring presidential appointments, including those that don’t require confirmation, every four years. It includes the pay grade and who is filling the position at that time. For previous work, I pulled the digital files from all those archived publications dating back to the Carter administration, used optical character identification software to find what I was looking for, and then validated the data.

ISPS: So that at least gives you a yearly snapshot?

Kinane: Right. And what became immediately clear was that acting appointees were a considerable number of people serving in these positions. Not just blips in the radar or happenstance occurrences. Even with a conservative estimate based on these yearly snapshots, actings were making up 12% of positions.

ISPS: But that’s not the whole picture, right?

Kinane: Exactly. It doesn’t capture the status of these positions throughout the rest of the year or the total number of acting appointees who have served. Agencies are supposed to report to the Government Accountability Office whenever a position is vacant, if a vacancy gets filled by an acting appointee, if that person has started working, and if that person is no longer officially acting in that elevated role. So the GAO data offers some additional insight, but it only starts with the last years of the Clinton Administration. And agencies do not always report everything, particularly when someone new has filled a position. The government doesn’t have a comprehensive database of all the people who have served in these positions in an acting capacity.

ISPS: That seems unfortunate.

Kinane: It gets worse. You can have people transition from “officially acting” to a capacity considered not official but still performing the duties and authority of the position. You could think of it more like “acting except in name.” They don’t have an official designation, but they are still engaging in policymaking decision, still engaging in official business. So to be able to get a fuller picture of all the actings who have served in presidential appointments requiring Senate confirmation and for how long they did, I’ve compiled a comprehensive, continuous dataset of acting and confirmed appointees, empty positions, and nominations from 1981 to present day.

ISPS: Where did all the data come from?

Kinane: My original continuous dataset was constructed from hundreds of different sources. I started by making Freedom of Information Act (FOIA) requests for employment data from the U.S. Office of Personnel Management. I gathered data from the GAO and several government directories and then filled out all the remaining records from newspaper announcements, obituaries, and news reports of government activity.

ISPS: Wow. Is that all?

Kinane: No! I also used FOIA’d email communications and memos with official signatures and gathered records from the Federal Register and the Congressional Record, archived presidential documents, archived video from CSPAN, and archived agency websites. I collected primary sources as well, such as oral histories and interviews, biographies, and legal documents, including court filings and judicial orders. 

ISPS: How long can someone serve in an interim or acting capacity without Senate approval?

Kinane: The first law governing vacancies was passed in 1898, allowing presidents to fill open positions temporarily for 30 days. There was no enforcement, no ramification for exceeding that limit. It was basically a recognition that when you have political appointees with management duties and policymaking decisions, you need someone there to keep the government running. In 1988, Congress lengthened it to 120 days, recognizing the confirmation process can take a while and that the number of positions to fill had grown exponentially over the preceding 150 years. In 1998, the Federal Vacancies Reform Act (FVRA) extended the period to 210 days and included provisions that allow the clock to stop if there is a nominee waiting for Senate confirmation.

ISPS: What do you mean the clock stops? Someone can keep serving indefinitely while waiting for a permanent nominee to finish the confirmation process?

Kinane: Not indefinitely, but almost. Under the FVRA, an acting appointee can first serve up to 210 days. But if the president then submits a nominee to the Senate, the acting appointee can continue to serve while the nomination is under consideration. If that nomination is returned, rejected, or withdrawn by the president, the person in the acting role can serve another 210 days. If a second nomination is submitted, the clock stops and restarts for another 210 days when the nomination is returned, rejected, or withdrawn. Toward the end of the Trump administration, Chad Wolf had served as acting secretary of Homeland Security for well over a year, 425 days, before a federal judge ruled his appointment unlawful, and he resigned.

ISPS: Former President Trump famously said that he liked acting cabinet appointees because it gave him “more flexibility.” But even if he took this preference further than other presidents, you are saying that this is a practice common to many if not most presidents.

Kinane: Right. In 2019, The Administrative Conference of the United States printed a report written by Anne Joseph O’Connell, a professor and social scientist at Stanford Law School. She found that among the 316 cabinet secretaries serving from January 1981 through July 2019, 46% served in an acting capacity. Going back to George Washington’s administration, she tallied the percentage of interim leaders for each agency through the first term of President George W. Bush. Of the 124 secretaries of state, for example, 25% were acting.

ISPS: And this is intentional?

Kinane: My theory is that presidents strategically use vacancies in these positions to achieve their policy priorities. Either by deliberately leaving a position empty or by installing an interim appointee and circumventing the Senate. Notably, the Senate can deny a president’s nominee, but it cannot force him to make a nomination. My research suggests a need to focus less on the ideology or confirmation prospects of an individual nominee and more on the position itself.

ISPS: What do you mean by that?

Kinane: Political scientists, the media, politicians, and the public usually concentrate on who the nominees are. Who is going to sit in front of the Senate committee and answer the questions of senators? What might we learn about their experience or intentions? What I try to refocus attention on is that there is a lot of intermediary power given to acting appointees filling these positions. We should certainly care about who is filling positions in a permanent capacity but also about what authority the positions themselves carry and what policy outcomes can come out of these positions. That’s going to have a clear impact on what acting officials can do. And this dynamic challenges core constitutional principles of separation of powers and checks and balances among the branches of government. The direction of my research is to advocate for a better understanding of how positions themselves create or foster opportunities for presidents to advance their agenda.

ISPS: How did you become interested in this subject?

Kinane: Before graduate school, I did some policy research involving the rollout of the Affordable Care Act in California. I interacted with state officials, officials from the U.S. Department of Health and Human Services (HHS), and stakeholders in community groups. I saw how all these decisions that appointees were making at HHS had important ramifications for how we rolled out that law on the state and local levels. I started reading article after article about federal appointees and noticed how major newspapers would run stories with headlines about supposedly unprecedented vacancies. But it was almost the same for every president! It struck me that something can’t be unprecedented that has happened many times over.

ISPS: And this became the subject of your doctoral dissertation at the University of Michigan.

Kinane: What really made it interesting for me — there were clearly multiple outcomes at play. These acting appointments weren’t just for a few days or a few months. These people were filling positions before there was a nominee. After a nominee. Sometimes instead of a nominee. I sought to model a fuller picture of the appointment process that allows the president to make the choice explicitly to not fill a position with a confirmed person. And have an outcome intended by the president.

ISPS: You have recently been awarded funding from the Levin Center for Oversight and Democracy at Wayne State University Law School to advance your research. What does this work involve?

Kinane: I am in the process of collecting, cleaning, and processing congressional hearing data from 1981 until present. All congressional hearings in both houses, about everything from investigations to appropriations — more than 330,000 observations. My plan is to see how many acting officials show up to give testimony and how effectively Congress has overseen these unconfirmed officials. Do actings only appear before certain types of committees? Are they only from certain departments? Do they only appear before the Senate or maybe just the House? Or maybe there are a whole bunch of people serving with great power who have never even been questioned by the legislative body.

ISPS: What drew you to Yale and ISPS? What are you hoping to accomplish here?

Kinane: ISPS presents an incredible opportunity to engage in research with a community of incredible colleagues and scholars who get your brain thinking differently, opening new lines of thought. And the undergraduate students are so fun to teach. They are wicked smart, high-tuned learning machines. It’s exciting to watch them grow and present them with something they often haven’t seen.

ISPS: Like what?

Kinane: Like all the important things that the federal bureaucracy does. Regulating clean air and water. Maintaining national parks. Approving new medications. Ensuring safe streets, air travel, and food.

ISPS: We have had some serious breakdowns on several of those fronts recently.

Kinane: That’s true. Bureaucracy is like plumbing. It’s the pipes in our walls that get water in the house and sewage out. When it’s working, no one thinks about it. It’s only when it doesn’t work — when you have two inches of water covering your basement or dripping down through your ceiling — that you notice. But would you assume that an instance of flooding means every pipe in every house is bad? You would never draw that conclusion. To me, the biggest missing element about how voters think about government and government work is that there is just so much happening people don’t know about. And why would they? Most people aren’t going to know all the regulatory procedures put in place by, say, the Consumer Product Safety Commission so they can issue a recall of a child’s toy because of a choking hazard. But I would hope most people are glad someone is doing that work.

ISPS: You’ve recently been named the faculty coordinator for ISPS’s new Millstone Fellowship. What can you tell me about this program?

Kinane: I am so excited. What the Millstone Fellowship offers our amazing undergrads is a competitive public service option. For so many students at Yale, the difference in summer internship salary at a   public service job and one with a consulting firm or on Wall Street is tremendous. We need top-quality undergraduate students to see public service as an attractive career path. Millstone makes it financially viable for students to gain excellent experiences at the local, state, or federal level of government. Positions they might have overlooked or not accepted because they are low-paying or unpaid. If you are a Millstone fellow, you are also supported at ISPS with programming and networking. If you need resources, we can give them to you so you can do your best work and get the most out of your summer internship. We want to hold open the wide door to government service.

ISPS: Because, as you might say, bureaucracy is not a four-letter word.

Kinane: You’ve got it. We focus so much on the individuals running and winning presidential elections. One person’s biography, personality, and campaign promises. But presidents can literally do nothing by themselves. They aren’t out there building bridges or paving roads and controlling air traffic or monitoring the skies for weather balloons. Presidents have extraordinary powers and influence, but the vast majority of the work will be done by people they appoint. And what are those people doing? They are directing and shaping the decisions of thousands of civil servants and, ultimately, the actions of government. We need to pay attention to all the people the president appoints to top leadership positions, no matter how temporary they may appear. Who will the president select to make those decisions and guide the massive ship that is the government in the right direction?