By Donald K. Sherman
February 19, 2020

Scandal-plagued Transportation Secretary Elaine Chao is facing intense scrutiny for her ethics issues, and now her husband, Senate Majority Leader Mitch McConnell, has a critical role in deciding who will succeed the Inspector General that was investigating her, including when (or if) that person could be confirmed. At least one of the scandals facing Chao is tied to the potential use of her cabinet post to bolster McConnell’s political fortunes. Now he is in a position as Majority Leader to protect them both by holding up a permanent replacement at the agency’s Office of Inspector General (OIG).

The vacancy at the Department of Transportation (DOT) OIG occurs at a time while Secretary Chao faces significant questions about her ethics and conduct. In May 2019, the Wall Street Journal reported that Secretary Chao’s financial disclosure forms revealed that she retained and significantly profited from shares in Vulcan materials, a supplier of construction materials, more than a year after the date she pledged to divest. She later sold the shares, worth between $250,001 and $500,000. Following public reports that Secretary Chao may have used her post to boost her family’s company’s standing with the Chinese government to receive hundreds of millions of dollars in loans, the House Oversight Committee launched an investigation. Last June, the Government Accountability Office found that the state’s largest transportation grant application under the Trump administration was awarded following a process that lacked “the assurance of fairness.” Most recently, in late 2019, House Transportation and Infrastructure Committee Chairman Peter DeFazio requested that OIG review allegations that Secretary Chao afforded McConnell’s constituents special treatment and helped steer millions of federal dollars to Kentucky at a time when he is facing low approval ratings and a tough reelection bid.

If and when the President nominates someone to succeed the recently retired Calvin L. Scovell, III as the permanent DOT IG, that person must face consideration by Leader McConnell’s Senate. The Senate Majority Leader determines the process and timing of floor votes for all Senate-confirmed positions like Inspectors General. As we saw with a Supreme Court nomination, Mitch McConnell is not above stonewalling presidential appointments for political benefit. 

Despite the troubling ethics questions surrounding the Department of Transportation, it is impossible to predict when there will be a permanent watchdog at the agency. President Trump has made little progress in addressing numerous long-standing vacancies at IG shops across the federal bureaucracy. Last year, a bipartisan group of senators wrote to President Trump urging him “to take swift action” to address the IG vacancies at multiple agencies. They noted that, “While many acting IGs have served admirably in the absence of permanent leadership, the lack of a permanent leader threatens to impede the ability of these offices to conduct the oversight and investigations necessary to ensure that taxpayer dollars are protected, public safety risks are identified, and that whistleblowers who expose waste, fraud, and abuse are protected.” Although DOT’s Acting Inspector General has nearly twenty years of experience, as the Senators explain, “the lack of a permanent IG can create the potential for conflicts of interest and diminish the essential independence of IGs.”

Throughout his presidency, Donald Trump has shown a disdain for ethics and accountability. While the President’s own misconduct generates significant public attention, his failure to fill the internal watchdog positions at federal agencies threatens to do even greater damage. One year ago, there were 12 inspector general positions left unfilled by President Trump. Despite the confirmation of three then-vacant positions, today that figure sits at 11, including 4 posts that have been vacant for the duration of Trump’s presidency. 

While we should all be concerned if the President decides to leave the DOT IG position vacant for an extended period, that’s not the worse case scenario. President Trump is notorious for filling government positions with inexperienced or conflicted individuals. Many of his Inspector General nominees have been exceptions to this trend, but the record is still mixed. Last year, for example, the President installed one of his political donors as the IG at the Social Security Administration and then as Acting Department of Interior. Even more troubling, the House Committee of Education and the Workforce reportedly uncovered evidence that the Acting Inspector General at the Department of Education was to be replaced because she refused to interfere with an investigation into Secretary DeVos. Displacing DOT Acting Inspector General Behm with a Trump or McConnell loyalist would threaten OIG’s independence even more than a prolonged vacancy.

The potential conflicts of interest at issue given Chao and McConnell’s respective positions are glaring. Leader McConnell gave an opening statement introducing his wife to the Senate Committee on Commerce, Science and Transportation during her confirmation hearing. However, he declined to vote in favor of her nomination, instead voting “present” on the Senate floor. OIG’s review of whether Secretary Chao used her position to provide improper benefits to Leader McConnell’s favored projects and political allies remains ongoing. Such conduct could violate the Hatch Act among other federal laws and regulations.  An unfavorable report could tarnish Secretary Chao’s tenure in the Trump Administration and also severely hamper Leader McConnell’s re-election effort. Both factors suggest that Leader McConnell has a significant personal and political stake in the IG’s work and the person who is leading it.

It’s unclear whether President Trump will move expeditiously to nominate a permanent watchdog to oversee the conduct of his embattled Transportation Secretary. Also unknown is how Leader McConnell would approach the confirmation process of a new DOT IG. Seven of the current 11 IG vacancies that require presidential nomination and Senate confirmation have been unfilled for more than a year. Currently, the DOT IG position has been vacant for less than a month. In the meantime, dedicated staff at OIG continue their work to ensure that the Federal Aviation Administration effectively oversees airline systems and that emergency relief funds for transportation infrastructure damaged in natural disasters are deployed as needed. 

Secretary Chao’s conduct suggests that her agency desperately needs an independent Senate-confirmed Inspector General to ensure that OIG’s ongoing investigations are overseen without delay or political pressure. Unfortunately, filling that post is left to a President who rejects accountability and his chief enabler in the Senate who has a vested interest in preventing a fully empowered DOT OIG.

Picture by Hudson Institute.