“The Legislative Clearance Process” by Bernard Martin


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Executive Summary

The legislative clearance process is an internal Executive Branch system designed to ensure that all statements made in a variety of legislative documents reflect the President’s policies. The process covers Executive Branch draft bills; bills introduced in Congress on which Executive Branch comments are sent to Congressional committees or subcommittees; some oversight testimony by Executive Branch witnesses; and letters and Statements of Administration Policy sent to the Hill. The process also includes memoranda sent to the President by the Director of the Office of Management and Budget (OMB). These memoranda describe the major provisions of authorizing legislation passed by the Congress, contain recommendations from agencies and OMB for action by the President, and, where appropriate, proposed signing statements and veto messages.

The legislative clearance process has not basically changed since 1939 when the then-Bureau of the Budget (BOB) was transferred from the Department of the Treasury to the Executive Office of the President. The paper describes the major features of the process and its past and present operating procedures.

The transition from BOB to OMB in 1970 shifted the locus of decision-making in this process from senior career staff to politically appointed policy officials. Some observers believe that this change has had unfortunate consequences. In their view, a career staff would be more concerned about the institutional presidency and would warn against legislation that may set bad precedents for future Presidents. Political appointees are much more likely, they contend, to focus on the immediate goals of the incumbent President and ignore worries about bad precedents. Some argue that the career staff used to provide their best independent judgment of an issue but now give politically oriented advice.

The author, who spent over 20 years as a senior career executive in OMB, including several years as the head of the legislative clearance process, says that all these accusations are false. He states that career staff continue to do substantive, not political, analyses of legislative, management and budget issues. He asserts that those who have been participants in internal OMB activities know that the relationship between career staff and political appointees is collaborative, not confrontational. The most common situation is one in which there is no “career” solution versus a “political” solution but a common search for a reasonable approach to seemingly intractable issues. He believes that one of the reasons for the inaccurate criticisms of OMB is the lack of access by outside commentators to relevant OMB documents, which are not available for public review.

Related Resources

EOM Panel Minutes:
Topic presented at EOM Panel on December 15, 2006.

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