The Law of Presidential Transitions and the 2000 Election
Zywicki, Todd J., Brigham Young University Law Review
The presidential election of 2000 raised a number of unprecedented legal and political issues. Among those were the issues raised by the Presidential Transition Act of 1963 (the "Act"), a heretofore obscure statute that took on massive importance in both the political framework of the election as well as the practical framework of George W. Bush's efforts to effectuate a smooth presidential transition.1 Like so many other issues raised by the election fall-out, the issues raised by the Presidential Transition Act of 1963 presented legal issues of first impression and crucial political questions. Fought against the backdrop of the contentious presidential election and the legal and public relations battles that swirled around it, the issues of the Presidential Transition Act of 1963 took on profound importance. Unlike other issues raised by the election that are likely to prove unique to the 2000 election, the issues surrounding the law of presidential transitions are likely to arise again in the future, especially because the way in which the Act was implemented raises substantial concerns of future mischief.
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.
Before 1963, presidential transitions primarily were staffed by volunteers and funded by the political party of the incoming President.4 In order to ease the difficulties of conducting a presidential transition, Congress enacted the Act. The Act provides a variety of resources for office space, staff compensation, communications services, and printing and postage costs associated to be made available for the presidential transition (collectively, the "transition resources" or "transition funds").5 The General Services Administration
("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. …