The most difficult questions concerned the composition of the department. If the small group could determine that certain functions, exercised by an existing agency, were a core part of homeland security, the group would move it to the new department. Hence, there was relatively little discussion about transferring FEMA (for disaster management), Secret Service (for protection of senior-level leadership), Customs, Coast Guard, and the newly created Transportation Security Administration (TSA, which played a central role in border security) into the new agency. In cases that were not as straightforward, the group decided to make a decision on the basis of “what was doable and digestible.”155 If an agency or program had numerous responsibilities unrelated to homeland security, the group would take a second look to determine if the homeland security functions would justify the transfer and outweigh the potential burden of these tasks.156 Another tough decision involved the department’s law enforcement functions.157 The group decided against moving the FBI’s capacities to the new agency. Both Andrew Card and Condoleezza Rice were opposed to concentrating too much power in one agency and agreed on the need to maintain a division of power.158
When President Bush announced the final plan on June 6, 2002, he proposed to merge a total of twenty-two agencies into the new Department of Homeland Security.159 Those agencies included FEMA, Coast Guard, TSA, Customs, INS (with Border Control), and Secret Service. In addition, the new department would absorb a number of offices cleaved from other agencies, such as the National Infrastructure Protection Center at the FBI. Reflecting the secrecy of the process, many cabinet officials first heard of the plan when it was announced. All in all, the proposed changes would go beyond the most far-reaching recommendations of the Hart-Rudman Commission and the Lieberman/Specter plan. With a total of 170,000 employees, the new entity would be the third largest cabinet department.
The initial response on the Hill was generally positive, and both Democratic leaders, Richard Gephardt (D-Mo.) and Tom Daschle, were optimistic that the proposal would pass both houses before the September 11 anniversary.160 Noting that the Bush proposal was “at least two-thirds similar” to the Lieberman proposal, Daschle also reminded the American public that “Democrats were for a homeland defense cabinet-level agency before it was cool.”161 From Congress’s point of view, the White House had succumbed to growing congressional pressure and decided to give up opposition to homeland security legislation so they could play a more active role in the process.162 Key officials at the White House remained convinced that the Lieberman legislation was not going anywhere,163 and later said they were inspired by the initial experiences of the HSC/OHS process, not a fear of being left behind by Congress.164
The Bush strategy of “thinking big” seemed to work. When the Republican House committee chairmen staked off their claims in their first meeting with President Bush, their demands appeared to be reconcilable with the proposal.165 Rep. Don Young (R-Alas.), chairman of the House Transportation Committee, noted he would not be opposed to losing the Coast Guard to the new department if the legislation contained a provision that would protect its traditional non-homeland security functions (including ice breaking and environmental controls in his home state of Alaska). Rep. Harold Rogers (R-Ky.), chairman of the House Appropriations Transportation Subcommittee, which held jurisdiction over the TSA, was willing to support the proposal if his committee would be able to expand its jurisdiction over the whole new department. While President Bush recognized that many “turf battles” lay ahead,166 cabinet members demonstrated a united front during subsequent congressional testimonies—in part due to stern marching orders they had received from the White House.167
But consensus was short-lived. Critics of the proposal immediately expressed concerns about the non-homeland security functions of the agencies selected for transferal.168 As these programs might find it difficult to identify with their new mission, the skeptics argued, they might also be considered of only marginal importance and not receive sufficient resources. Daalder had warned in 2001 that centralization was not the solution to the problem: “You cannot put the entire U.S. government under one roof. Too many agencies are involved in homeland security.”169
As it turned out, however, by far the most contentious sections of the proposal stemmed from a surprising, and arguably not even central, component of the legislation, provisions on management rules in the new department that, in the eyes of Congress, would result in the expansion of executive authority.170 Under the proposal, the president would not need Senate approval to specify the appointments and responsibilities of up to ten assistant secretaries for the department. Furthermore, the proposal allowed the head of the new department to transfer up to 5 percent of appropriations in any fiscal year among department accounts without congressional approval and unilaterally initiate certain reorganization measures he or she deemed necessary. But the section of the proposal that proved most controversial of all called for “significant flexibility in hiring processes, compensation systems and practices, and performance management to recruit, retain, and develop a motivated, high performance and accountable workforce.”171
In the view of federal civil service lobbyists and many Democrats, these provisions would amount to a veritable repeal of Title V protections of federal employees, which had historically shielded them from political retribution and unfair labor practices. The White House and its Republican allies saw it differently: Exceptions to such regulations had always existed in the national security field, and homeland security was an analogous activity.172 Richard Falkenrath explained the rationale behind the provision as follows: “We didn’t just want to move the boxes around … We wanted to make sure that the new Secretary … would have the ability to make it work better than it’s working right now. We didn’t just want a confederation of existing offices with a new super secretary sitting on top of it with no real power to make any difference.”173 In any event, White House officials signaled to the Hill an unwillingness to compromise and a refusal to decouple the issue from the homeland security legislation.174
According to an alternative view of the administration’s intentions, this one prominent among senior Democratic political leaders, the White House had not wanted a new department in the first place. Confronted with political momentum for reform—and the risk that the Democrats, notably Senator Lieberman, would garner major credit for the change—the administration had to throw a proposal into the ring. But it attached explosive management provisions that it knew would alienate major Democratic stakeholders (civil service unions) as a “poison pill” that would send the bill down to defeat, allowing the administration to get everything it wanted: no new department, and the ability to blame Democrats for the outcome.175
The administration soon secured a procedural victory, dealing with the mechanism by which the final version of the legislation would be handled in the House. While the initial Bush proposal would be reviewed by the standing committees, House Speaker J. Dennis Hastert and Minority Leader Richard Gephardt decided that the bill’s final version would be written by a newly assembled Select Committee on Homeland Security, in which the Republicans would have a one-seat majority.176 They assigned the chairmanship to House Majority Leader Richard Armey (R-Tex.), who was not seeking reelection and would, therefore, not have to suffer the scorn of his fellow chairmen who would be losing jurisdiction under the new arrangement.177 Since the select committee would have full jurisdiction and, therefore, final say over the legislation that would be sent to the House floor, the administration did not become overly concerned with the emerging voting patterns in the standing committees (determined to defend their turf).178 All these changes would be reshaped by the new select committee, which restored much of the administration’s original language.179
The White House launched a concerted lobbying campaign to garner support for the Bush proposal.180 While focusing