10 minute read
By now it is clear that the transition to a new US administration will not be normal. My condolences to those who are surprised.
But what exactly is normal for US presidential transitions? And how does this compare with our own variant of the Westminster tradition here in Canada?
Two very different systems
Consistent with America’s exceptionalism in most aspects of public life, transitions from one “administration” (in US parlance) to another differ markedly from government transitions in Westminster parliamentary democracies like Canada. There are many reasons for this, but broadly they flow from differences in electoral machinery, in the respective offices of prime minister and president, and in the roles played by the public (or civil) service.
Let’s consider in turn the business of identifying a winner, the process of preparing for the transfer of power, and the constraints applicable to caretaker or lame duck governments.
Knowing who won
Differences in electoral machinery have a huge impact on the identification of a winner in our respective systems.
In our great northern monarchy, national elections are run by Elections Canada, which is headed by a highly independent, non-partisan Agent of Parliament called the Chief Electoral Officer. Permanent staff in the National Capital Region number in the hundreds, but this briefly blooms into the hundreds of thousands across the country during an election. Elections Canada, considered one of the world’s best electoral management bodies, determines the winner in each of Canada’s 338 national ridings, although media will typically project winners on the basis of incoming election results. Elections Canada does not declare who is prime minister, because Canadians don’t vote for such an office.
In the USA, the selection of a president involves fifty-one separate elections – one in each state and one in Washington, D.C., each with different rules, and no national electoral commission to say who wins. That’s where the news media come in, as they have since 1848, when The Associated Press declared that Zachary Taylor had been elected president. So when people who don’t like the results say that the media don’t declare who is president – well, actually they kind of do.
Of course, the media projection doesn’t legally install a president, any more than Elections Canada appoints a prime minister. But the similarities end there, largely because of the differences in the two offices.
The American president is head of state with a mandate independent of the legislature, and the process for presidential election are set out in the US constitution. A president is formally elected by the Electoral College – whose composition is what the election officially determines – several weeks after the election. The increasingly unrepresentative nature of the College, the creature of an 18th-century concession to states’ rights, has made it the subject of growing controversy. But this month-long gap helps explain why the ritual of the concession speech is so important: it tells the nation that the loser has accepted the reported results (or at least something close enough to make recounts and similar formalities moot) and thereby provides relative certainty in the weeks leading to the convening of the College.
In Canada, a prime minister is not strictly speaking elected, but rather appointed. The prime minister is head of government (our head of state being The Queen, represented by the Governor General); the office exists through convention, not our written constitution, and it derives its authority from the support (or “confidence”) of Parliament. Canadians elect their Members of Parliament and, based on parliamentary composition as determined by Elections Canada, the Governor General calls upon the party leader most likely to command the confidence of the House of Commons to form a government. This is rarely the source of much delay, although in a minority situation it may take a few days to establish who in fact is able to form a government, especially if the number of seats is close and recounts are needed in one or more ridings.[2]
Handing over the keys: The transfer of power
In Canada, the actual business of transition, like the office of prime minister, is governed by unwritten conventions. In the US, by unsurprising contrast, there is governing legislation, the Presidential Transition Act of 1963, although it reflects and is supplemented by a range of customary practices. As expressed by one of the bi-partisan sponsors of amendments to the Act in 2010, “Candidates taking deliberate steps to ensure a smooth transition should not be criticized as arrogantly ‘measuring the White House drapes’ before Election Day. Such planning should be encouraged and supported.”
Unfortunately, encouragement and support are in short supply just at the moment. A lot of things that should be happening under the transition legislation are currently stalled, starting with something called “ascertainment” by a comparatively obscure office called the General Services Administration (GSA). That clumsy word signifies an acknowledgement by the head of the GSA that there’s going to be a new president, unleashing money, facilities, and, perhaps most important, access to officials and classified information to help the new administration plan so it can hit the ground running on Inauguration Day, some 11 weeks after the election. However, given the incumbent president’s continued resistance to the election outcome, ascertainment has yet to take place.
In relative terms, transitions in Canada are rapid, rarely taking more than two weeks from the election date.
These different durations largely reflect differences in the way the two countries’ bureaucracies are conceived and the somewhat different roles they play. An incoming US administration must make many more appointments and is brought up to speed by the bureaucracy in a very different way.
In both countries, most of the work of the executive is conducted by a large career public (or in US parlance civil) service, governed by non-partisan staffing rules. Canadian practice largely insulates public servants from direct political influence and emphasizes corporate continuity and expertise over direct political responsiveness. In each of the government’s roughly 30 ministerially headed departments, public servants report to a non-partisan deputy minister who manages the relationship between the bureaucracy and the political side. Each minister is supported by a modestly sized partisan office, collectively amounting about 600 political staffers across the government, which provides a political lens on departmental advice but must observe a code of conduct that prohibits it from giving direction to departmental officials or seeking to shape their advice.
It is true that the prime minister or members of his Cabinet in principle select up to 2500 positions of varying seniority across the government, but most of these positions are structured to ensure government control over arms’-length organizations rather than political influence within the bureaucracy. Few if any change in the context of a transition, and many enjoy high security of tenure such that only a few hundred are likely to change on a staggered basis between elections.
In the US, by contrast, there are thousands of political appointments to be made in a transition (up to 9,000 depending on how they are counted), which are designed to reach well into the bureaucracy and ensure a high degree of political responsiveness, as well as an infusion of new blood from outside government into the senior and working levels of the bureaucracy. Among other considerations, this appointment process takes time.
A new prime minister’s political transition team is typically comprised of a handful of senior party members, usually with past governing experience and deep knowledge of how government works, and most of the work of the transition is conducted under the auspices of the country’s top public servant, the Clerk of the Privy Council. Senior officials within the Privy Council Office (PCO) will meet with the transition team to explain the kinds of choices that must be made for the transition and to receive the team’s direction on how the prime minister wishes to structure the machinery of government. The immediate work focuses heavily on the appointment of ministers, the structure of Cabinet and its decision-making processes, and arrangements for the swearing-in of the new ministry. Behind the scenes, political staffers and public servants will work together on the preparation of mandate letters, in which the prime minister sets out his or her policy priorities for each new minister. (It’s worth noting that in the UK, civil servants actually meet with opposition leaders months in advance to learn their structural preferences, and actual transitions literally take place in a single day.)
The new prime minister is also briefed on the key policy issues in play and on key decisions that must be made upon assuming power. Once ministers are appointed, they receive similar briefings for their portfolios. These briefings, led by their deputy ministers, are typically supported by massive briefing materials (now in digital format). However, they do not include the Cabinet documents of their predecessors. These are taken into custody by the Clerk and remain confidential for 25 years.
The Presidential Transition Actallows for the establishment of Agency Review Teams by the president-elect, whose job it is to go into each agency so that they can understand its workings, receive briefings, and determine what is needed to advance the new administration’s agenda. Incoming President Trump reportedly made quite limited use of such teams, but President-Elect Biden has named and impressive array of senior-level teams, comprised predominantly of volunteers, ranging in size from a few members to the dozens in the case of key organizations like the Department of Defense. At least some of these individuals are likely to be appointed to senior positions within the agencies.
Caretakers and lame ducks
No matter how extensive the preparations or how detailed the briefings, the new prime minister or president must stand by as their predecessor completes their term of office. Incumbents do so in full possession of their legal authorities, albeit subject to constraints reflecting variously high-minded principle and harsh political realities.
In Canada, the so-called caretaker convention is well-established, explicitly articulated, and increasingly understood to cover the entire election period. A prime minister who has lost an election is expected to limit the exercise of authority to matters that are so routine (such as the ordinary day-to-day business of government) or so urgent (such as responding to natural disaster or external crises) that they cannot wait till the transfer of power. And to the extent that an urgent decision may be controversial or hard to reverse there is an expectation of consultation with the incoming government. In particular, the outgoing government is not to make any non-routine expenditures, policy decisions, or appointments.
While the caretaker convention is not enshrined in any legislation, in an important respect it does have a means of enforcement beyond political reproach. In 1896, Governor General Aberdeen refused to grant a swath of senior appointments by the outgoing prime minister on the evident basis that, having lost the election the government could not longer give binding advice on such matters to the GG; and the preponderance of constitutional scholarship appears to support this decision.
The term “lame duck” used in the US does not refer to any well recognized principle of restraint, but rather to the practical reality that an outgoing president is perceived as having reduced political influence as decision makers turn from the setting to the rising sun. How true this is in practice varies according to circumstances. Certainly, outgoing presidents have been criticized for making late-term appointments or controversial pardons, but the impact of such criticism is debatable given that they no longer need to face the electorate.
The 2020 eve-of-election appointment of a Supreme Court Justice provided a rather extreme display both of the uncertainty of principles of constraint in the US system, and the entirely political processes available for their enforcement. Indeed, it raises the question of whether yet another amendment of the Presidential Transition Actmay be in order.
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[1] There is a national commission, the Federal Election Commission, responsible for monitoring election financing, which is only one aspect of Election Canada’s mandate.
[2] The most delicate situation occurs when a party without the largest number of seats claims that it has reached an understanding (up to and including a coalition) with a third party that will enable it to command confidence. The GG stands aloof from these deliberations to preserve her political neutrality and, nowadays, would make a decision only when presented with a written public agreement. Even then, an incumbent prime minister could resist ouster by demanding to “meet the House” and face its verdict.
[3] Until 1933, the inauguration did not take place until March.
