Nice But Tough

By Paul C. Light
Special to the Washington Post
Wednesday, November 12, 2008 12:00 AM

As the Bush administration is wont to say at every opportunity, it is working hard to promote maximum cooperation at this stage of the transition of power. The incoming and outgoing teams are saying all the right things about working together to show the world how a smooth transfer of power works.

Word from the White House is that President Bush sees a seamless transition as one legacy of his administration. It shows. The Bush administration has set aside office space for Barack Obama's team in every department and agency, and most departments and agencies have created their own transition councils composed mostly of senior career civil servants. The Bush administration has also "leaned forward," as it says, to educate the Obama team on basic administrative and policy-making procedures.

But the transition is not a tea party in which the incoming and outgoing administrations are nothing but nice. As one Obama spokesperson told The Washington Post, "It took eight years to get into this mess, and it will take a long time to get out of it. The next administration needs to look ahead. This transition team and the incoming administration gets that in a big way."

The Obama transition team wants access to more than just mechanical information on how the government works. Given all the information they collected during the campaign, there should be relatively few surprises when they actually drop-into departments and agencies like the 101st Airborne in World War II. The Obama team did a great deal of homework before the election and started writing briefing memos long before Obama announced his planning effort last July. Indeed, the outline of the transition's soon-to-be-published book of transition essays was set last April. If the Obama team needs a primer on what to do now, they did not do their jobs during the campaign.

This is where the conflict begins. Sooner or later, and likely sooner, the Obama team must ask for the list of new Bush initiatives designed to extend the outgoing administration's hold on power. As the Post also reported this past weekend, a secret group of Obama advisers has already identified dozens of Bush decisions that can be reversed on Inauguration Day. They will be looking for more. This is the kind of information the Bush administration is unlikely to give up without a fight.

The Obama team must be particularly watchful for last-minute regulations. The uptick in activity is already obvious in the Federal Register, which chronicles the rule-making process, and in internal memos leaked from the career civil service. As the Bush Administration discovered in trying to reverse the Clinton administration's arsenic rule in 2001, regulations that survive the formal rule-making process are nearly impossible to overturn without legislation or a new and elongated rule-making process that must establish some basis for starting anew. The way to stop new rules is to fight them before they are promulgated, which means now.

None of this means that the transition will turn nasty. Expect the teams to be civil and cooperative until the incoming administration starts asking for lists of pending decisions. The Bush administration's department and agency may be built around civil servants, but they are all led by chiefs of staff to secretaries and administrators who have regular conference calls with the White House. No doubt those calls are mostly concerned with the benchmarks of cooperation, but the chiefs of staff are also there to stop the Obama representatives from digging too deeply.

The transition can be eminently civil, but it will also be political. The Bush administration is hardly a paragon of transparency, and cannot be expected to open its vault of pending decisions for full inspection even if asked with sugar and spice. The Obama team will not pound the table, but it will be insistent. There is conflict ahead. Get ready.

Paul Light is a professor at New York University's Robert Wagner School of Public Service and author of "A Government Ill Executed." He is writing an occasional analyis for this page.

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