law of Presidential Transitions and the 2000 election, The

Brigham Young University Law Review, 2001 by Zywicki, Todd J

I. INTRODUCTION

The facts surrounding the 2000 presidential election are well known. On the night of the general election, the Republican ticket of George W. Bush and Richard Cheney claimed victory in the presidential election on the basis of a narrow victory in Florida. When combined with the other states claimed by Bush and Cheney, Florida's electoral votes gave them 271 votes, one more than necessary to claim the White House. Democratic rivals Albert Gore and Joseph Lieberman refused to concede the election and instead contested the Bush victory in Florida, initiated litigation, and requested recounts of various ballots in Florida. As a result of the narrowness of the Bush lead and the complexity of the litigation and recount issues, the election's final outcome remained in the balance for several weeks. The election was not finally settled until early December, when the Supreme Court ruled in favor of Bush in the case of Bush v. Gore.2 The next day Gore conceded the election to Bush.

In most presidential elections, the outcome of the election is known the day after the general election. The President-elect has only seventy-three days from the election date in November and the President's inauguration on January 20 of the following year to appoint senior policy analysts, prepare a budget for presentation to Congress, and begin making legislative priorities.3 Given the massive scope of the transition responsibilities and the relatively short time frame to conduct those activities, every day during the transition period is crucial. In fact, it usually takes several months into the President's term to complete the "transition" and to fill all of the necessary personnel appointments.

("GSA") is the federal agency assigned to administering the funds and office space allocated for the presidential transition. For fiscal year 2001, the GSA was authorized a total of $7.1 million for the upcoming transition: $1.83 million for the outgoing Clinton administration; and a total of approximately $5.3 million for the incoming administration, including $1 million appropriated under the 2000 amendments contained in the Presidential Transition Act of 2000. The Administrator of the GSA (the "Administrator") is the individual responsible for dispersing the money appropriated for the transition as well as executing the responsibilities of fitting the office for operation. The President appoints the GSA Administrator.

Following the certification of Florida's electoral votes in November 2000, George W. Bush and Richard Cheney requested that the Administrator, Clinton appointee David J. Barram, order the release of the resources allocated to be made available for the incoming administration, including the office space allocated to the transition as well as the funds appropriated for the transition. Under the terms of the statute, the Administrator is instructed to release the transition resources upon the request of the "President-elect."6 The "President-elect" and "Vice-President-elect" are defined by the Act as "such persons as are the apparent successful candidates for the office of President and Vice President, respectively, as ascertained by the Administrator following the general elections held to determine the electors of President and Vice President in accordance with title 3, United States Code, sections 1 and 2."7 The phrase "apparent successful candidates" is not defined in the Act.

resolution or whether he was empowered to use his judgment to declare the contests effectively concluded.11

Finally, in the waning days of the controversy he adopted a third position, that he was actually forbidden by the Act from releasing the transition resources in a "close" election while the final results remained in doubt.12 He made no attempt to square this position with his previous positions.13 To the extent that any consistency could be gleaned from these multiple twists and turns, it appears that the Administrator believed that he had the sole discretion to interpret the terms of the Act and the conditions under which the Act's release of funds was triggered, and that he could make the factual determinations required by the Act according to his plenary and unreviewable subjective assessment of the facts of the situation.

The effect of this delay placed a heavy burden on the Bush-- Cheney transition team. On one hand, they could have deferred their transition efforts indefinitely, until the Administrator decided to release the funds. On the other hand, they could rely solely on private funding for their transition, a result that the framers of the Act specifically sought to avoid.17 In the end, they chose the latter option, although they erected substantial safeguards to prevent conflicts of interest and the appearance of impropriety.18 Either way, the Administrator's denial of the transition resources heavily prejudiced the Bush transition efforts, cutting the official transition period in half and forcing Bush to rely for several weeks on purely private funds to effect his transition.