A new bipartisan bill aims to reform the presidential transition process

The presidential transition after the 2020 election was unprecedented not just because it happened amid the once-in-a-generation pandemic, but because of the actions of the outgoing administration. Now, a bipartisan group of senators are looking to reform the process to better ensure there is a peaceful transfer of power. 

President Trump promoted false claims that the election was “stolen,” and his campaign attempted legal challenges. Due to such challenges and the sitting president not conceding, Emily Murphy, then-administrator of the General Services Administration, waited several weeks to ascertain Biden’s victory and thus allow his team critical funds and resources. Then, as members of Congress were taking up the certification of the election on Jan. 6. 2021, which then-Vice President Mike Pence was preceding over, a mob attacked the U.S. Capitol after a speech by Trump, who continued to push for the results to be overturned. He was later impeached––for the second time––by the House for inciting an insurrection, then acquitted by the Senate.

“The Presidential Transition Improvement Act would help to promote the orderly transfer of power by providing clear guidelines for when eligible candidates for president and vice president may receive federal resources to support their transition into office,” said a fact-sheet on one bill introduced on Wednesday by 16 senators, after months of negotiations.

Specifically, the bill would allow for more than one presidential candidate to receive transition resources if there is a time period when the result of the election is “reasonably in doubt.” It then spells out what the GSA administrator should consider to decide the certainty of the election: whether or not legal challenges that could change the result are resolved; states’ certification of their election results and “the totality of the circumstances.” 

A candidate will be the only candidate eligible to receive transition resources when they receive the majority of pledged election votes and there aren’t any other legal or administrative actions pending and the majority of the electoral votes at the electors meeting in December after the election and they are formally elected during the joint congressional meeting on January 6. 

The proposed legislation also has new reporting requirements.

If neither candidate has conceded, then the GSA administrator has to report on the federal resources given to both candidates; provide Congress with weekly updates on the transition; and issue a written public opinion on the legal basis and reasons for a single candidate being ascertained the winner of the election. 

When Murphy ascertained Biden as the winner in 2020, more than two weeks after all major news outlets declared him the president-elect, she described the challenges she faced while under enormous pressure. 

“Unfortunately, the [transition] statute provides no procedures or standards for this process, so I looked to precedent from prior elections involving legal challenges and incomplete counts” she wrote. “I do not think that an agency charged with improving federal procurement and property management should place itself above the constitutionally based election process. I strongly urge Congress to consider amendments to the act.” 

Max Stier, president and CEO of the nonprofit Partnership for Public Service, which is highly involved in the transition process, said the proposed legislation, “would make meaningful improvements to the transition process by releasing resources on an equitable basis to the candidates in case there is no clear winner immediately after the election.” He also said that the 2020 transition illuminated the need to “reform and clarify ascertainment,” which this bill does. 

After the ascertainment, in December 2020, the executive director of Biden’s transition said that while many agencies and departments were working to share information with them, there were some “pockets of recalcitrance,” including the Defense Department. Then in April 2021, then-White House Press Secretary Jen Psaki blamed the Trump administration’s lack of cooperation during the transition in part for the delay in releasing the Biden administration’s budget preview.

The Partnership’s Center for Presidential Transition and Boston Consulting Group said in a report released earlier this year that, “while the Trump White House and federal agencies worked hard to meet the statutory transition planning requirements during the pre-election period, Trump’s doubts about the integrity of the election and, in some instances, the lack of cooperation from his administration after the election exposed areas where norms and precedents were not enough to ensure a seamless transfer of power.” 

According to a research group from the University of Notre Dame’s Keough School of Global Affairs that tracked the transfer of power process, “only 76% of the transition provisions have been fulfilled,” despite the fact that President Biden did take over on Jan. 20. The group was led by Denis McDonough, who later became the secretary of Veterans Affairs. 

The senators also introduced legislation to modernize the 1887 Electoral Count Act to “ensure that electoral votes tallied by Congress accurately reflect each state’s public vote for president,” said a fact-sheet. “It would replace ambiguous provisions of the 19th-century law with clear procedures that maintain appropriate state and federal roles in selecting the president and vice president of the United States as set forth in the U.S. Constitution.”

Evidence shown during the impeachment trial and hearings of the House committee investigating the attack on the Capitol has shown the lengths Trump and his officials went to disrupt the certification process by members of Congress.