- a ten-year tenure for NASA Administrators
- an eleven-member Board of Directors whose duties would involve nominating Administrator candidates and proposing the NASA budget
- a quadrennial review of all NASA programs
- "for cause" removal of Board members and Administrators.
The five Republican authors of the bill claim that the measure will reduce politicization of NASA and provide for long-term stability and predictability in NASA programs. (It is worth noting that at least one Democrat is apparently prepared to cosponsor the bill.) It should come as no surprise that all of the five representatives proposing the bill come from Texas (John Culberson, 7th District; Pete Olson, 22nd District; Lamar Smith, 21st District), Florida (Bill Posey, 15th District), and Virginia (Frank Wolf, 10th District).
Current NASA Administrator Charles Bolden spoke this week, and, although he didn't address the bill directly, it was obvious from his remarks that he was defensive of the current structure:
“Such talk undermines our nation’s goals at a very critical time. . . The truth is we have an ambitious series of deep space destinations we plan to explore and we are hard at work exploring the hardware and the technologies to get us there.”
It is easy to argue that NASA reform is necessary: over-budget and underfunded programs are frequently in the news, and the Administration's recent challenges have given it a lackluster reputation at best. However, this bill raises a lot of potential problems.
Constitutional Questions: The most important issue with this new bill is whether it is constitutional at all. I have my doubts. The proposed structure of the Board of Directors looks like this:
- three appointed by the President
- three appointed by the President pro tempore of the Senate (traditionally, the President pro tempore is the most senior member of the Senate majority party)
- three appointed by the Speaker of the House
- one appointed by the Senate Minority Leader
- one appointed by the House Minority Leader
- the NASA Administrator (ex officio non-voting member)
This should immediately raise red flags. There are some standards in the bill for qualifications, as well as a prohibition on related employment and a maximum of four consecutive three-year terms. But these appointments are not subject to any oversight or review. Eight of the eleven appointments are made directly by individual legislators. Four officials, representing a maximum of four different states (and, in theory, they could all be from the same state) would determine 73% of the Board's voting makeup, and the President (the nation's only nationally elected official) would be responsible only for the remaining 27%.
In addition, there is no provision in the bill for removal (with or without cause). This means that the President pro tempore and the House Speaker could, between themselves, appoint and control a majority of the Board of Directors, and those appointments could not be vacated apparently under any circumstances (except, naturally, voluntary resignation).
We might be tempted to acquiesce to this anyway. Shouldn't the legislature have some input in advising a federal agency? After all, we have Congressional oversight committees for that very reason. The proposed NASA Board of Directors, though, would be responsible for submitting a list of three candidates for NASA Administrator. The President would be required to select an Administrator from this list of three candidates, and the Administrator would sit for a mandatory ten-year term (after confirmation by the Senate) and be removable only for cause.
For-cause removal of federal officers has been litigated since at least 1935 (Humphrey's Executor v. United States, 295 U.S. 602), and it has recently become a hot academic issue in the context of the Sarbanes Oxley Act and the Public Company Accounting Oversight Board (Free Enterprise Fund v. PCAOB, 130 S. Ct. 3138). The PCAOB decision is muddled and much argued over, but the gist of it is this: "The President cannot 'take Care that the Laws be faithfully executed' if he cannot oversee the faithfulness of the officers who execute them."
Even though most principal federal officers require "advice and consent of the Senate", there is no constitutional role for the House of Representatives or individual legislators in the appointment process, and the President ultimately bears constitutional responsibility for the selection and nomination of officers. The proposed Board of Directors structure would be an unprecedented intrusion on the President's duty to take care that the laws are faithfully executed, in an even clearer way than in the PCAOB case.
It seems unlikely at best that this structure would be constitutionally permissible. (Without going into serious detail, I would bet on a 6-3 decision invalidating the law.)
Practical Questions: Even if this is all constitutional, its methods seem ill-suited to its purposes. It is not at all clear that for-cause principal officers result in less political departments. The FCC, for example, has been accused recently of highly political decisions, and it is supposed to be one of the most "technocratic" agencies in the federal government. There is merit to the claim that for-cause removal of principal officers actually leads to more political picks. (The short version of this argument is that, since the following President cannot remove a for-cause officer before his term expires, a highly political pick will ensure a lasting effect on the next administration's policies; in contrast, an officer serving at the pleasure of the President has an incentive to moderate his policy choices to avoid a backlash reaction by the next administration to immediately undo those policies.)
I am unaware of any for-cause principal officer with such a long term or of any federal agency run by a single for-cause officer. (Compare the FCC and SEC, which have rotating groups of for-cause Commissioners; even those Commissioners are nominated solely by the President with minimal restrictions.) In this case, the candidate for a ten-year term of office could be chosen solely by two legislators, and there is no guarantee that their choices would be apolitical. In fact, in a situation where the House and Senate were controlled by the opposition party, the Board of Directors would be likely to select three highly political opposition candidates -- from which the President would be required to select one -- any one of which would face an easy confirmation in a sympathetic Senate. Republicans currently control a majority of the House and Senate; if the "Space Leadership Act" were the law today, the Democratic President would likely have to choose his Administrator (and Deputy Administrator and CFO) for NASA out of solely Republican candidates.
In essence, this structure doesn't remove the political aspect of the Administrator's job, it simply removes the political influence from the President to the legislature. Rather than ensuring long-term apolitical leadership, this would turn administration of NASA into a constant, destructive battle between top NASA leadership and the President. (Picture a scenario where a President refused to accept any budgetary recommendations from an opposition-controlled Board of Directors, or sequestered funds to an opposition-controlled NASA in order to exert political pressure on its Board.)
The NASA Administrator has been a political appointee (with "advice and consent") since the positions inception in 1958. That includes the highly successful Kennedy-Johnson era, when the Administration was led by the incomparable James E. Webb. The Administrator and Deputy Administrator are important representatives of the agency to the President and top science advisors, and so the President needs officers whose policy and technical judgment he considers beyond question.
NASA does face serious challenges in the coming years, and a number of decisions under both President Bush and President Obama have been seen as destabilizing to the Administration. However, the best way to right these problems and ensure a successful future for NASA is to encourage policy alignment between the Administration, the President, and Congress. The "Space Leadership Act" would instead turn NASA into a political battleground with almost no accountability. It would be hard to propose a more efficient way of destroying the credibility and public capital of the Administration.
No federal agency is without flaws, and innovative reform is important to maintain an efficient and effective government. This initiative, however, appears to be more of a cynical attempt by the opposition party and legislators serving NASA employees to wrest control of the agency from the executive branch. It is probably unconstitutional and certainly unwise.
No comments:
Post a Comment