CPR Perspective: The Federal Advisory Committee Act

Closing the Door on Public Accountability

by Sidney Shapiro, July 2009

Background

The federal government routinely consults a wide variety of scientists, engineers, business people, and citizens about public policy. When

regular and organized consultations take place, the Federal Advisory Committee Act (FACA) requires the process to be open, accountable, and balanced, including stakeholders with a full range of views on the issues.  

FACA applies to any advisory group that is "established" or "utilized" by a federal agency and that has at least one member who is not a federal employee. Agencies must give advanced notice of meetings, keep minutes of meetings, permit interested persons to attend the meetings, allow them to appear before the committee or file statements, and make available to the public any records or documents received by the committee. An agency, however, can withhold documents if they fall within one of the exceptions for public disclosure under the Freedom of Information Act (FOIA), and it can close a meeting if it determines that one of the exceptions to the Sunshine Act applies, but these exceptions only apply in narrow circumstances. Finally, FACA prohibits agencies from stacking advisory panels with one point of view. According to regulations interpreting FACA, agencies must ensure that each committee is "fairly balanced in its membership in terms of the points of view represented and the functions to be performed."

What People Are Fighting About

Unfortunately, FACA, as implemented by the Executive Branch and overseen by the judiciary, has fallen far short of the legislative goals of open, accountable and balanced government. Instead, it has become relatively easy for agencies to create advisory committees that are not subject to FACA. Agencies have been able to avoid the open-government mandate of FACA because of four loopholes that have developed in response to judicial interpretation of the statute: 

• A “contractor” loophole permits agencies to avoid the statute by hiring private contractors to organize and operate an advisory committee.
• A “strict management” loophole invites agencies to avoid the statute by letting a regulated entity appoint the committee members and share joint control of the advisory committee's agenda.
• A “non-voting participant” loophole permits outsiders to take an active role in government committees, including attending meetings, providing information, offering advice, and possibly participating in committee deliberations, without the committee becoming subject to FACA.
• A “subcommittee” loophole allows agencies to avoid FACA by the simple expedient of creating subcommittees to do the real work of the committee.

The much-criticized National Energy Policy Development Group, chaired by then-Vice President Richard Cheney and better known as the Cheney Energy Task Force, illustrates the “non-voting participant loophole.” The task force, composed of federal officials, apparently met with various energy producers and trade associations but made no effort to meet with environmental or other public interest groups. Judicial Watch and the Sierra Club sued the government claiming that the task force violated FACA.  Abandoning past precedent, the D.C. Circuit Court rejected the organizations' claim by enunciating the new “non-voting participant” loophole mentioned earlier. 

When agencies concede that FACA applies, there are two additional problems. One is tendency of agencies to waive financial conflict of interest rules and permit outside advisors who have a financial interest in the outcome of a matter to sit on an advisory committee that addresses that issue. Another problem is that the public lacks an effective way to monitor whether advisory committees are balanced concerning conflicting points of view as FACA requires.

A Progressive Perspective

Congress should pass legislation that would close the loopholes that agencies have been using to avoid application of FACA, but unless and until this legislation becomes law, the President should adopt an Executive Order instructing agencies not to take advantage of them. These loopholes are inconsistent with Congress's intent to ensure that the public and the press, as well as Congress itself, can monitor the work done by advisory committees. Advisory committees have long functioned under the transparency provisions of FACA; there is no indication that secrecy is necessary or appropriate.

Congress should also act to respond to the problem of financial conflict of interest. Financial conflicts of interest are one potential source of such bias. If an agency empanels an advisory committee under FACA, its members normally serve as special federal government employees, who are subject to the same prohibitions on financial conflicts of interest as federal employees. These prohibitions, however, do not apply when agencies are not subject to FACA, which it is necessary to close the previous loopholes. When the provisions do apply, federal law permits waiver of the financial conflict of interest rules in certain circumstances. Thus, a person can serve on an advisory committee which is subject to FACA if “the need for the individual’s services outweighs the potential for a conflict of interest created by the financial interest involved.” There is no legal requirement, however, that the government give prompt public notice of such waivers. By comparison, Congress has required the National Academy of Sciences (NAS) and the National Academy of Public Administration (NAPA) to give such notice when these organizations undertake to advise the government. FACA permits these two organizations to waive an “unavoidable” conflict of interest, but the wavier must be “promptly and publicly disclosed.”

To permit effective monitoring of waivers, Congress should amend FACA to require agencies to disclose to the public the existence of a waiver and to explain the nature of the conflict of interest and the grounds for the waiver. This information should be available to the public at the time the waiver is made, as Congress has already required for NAS and NAP.

As noted, the public lacks an effective way to monitor how agencies implement the balance requirement of FACA. Congress should therefore require agencies to disclose the historical affiliations of advisory committee members (both agency and industry related) and the sources of funding that scientists and other researchers have received. As the U.S. Government Accountability Office (GAO) has observed, this approach gives the public information that can be used to evaluate the legitimacy of the advice being received because it indicates the degree of balance that the agency has obtained in its appointment of peer reviewers. Sometimes, agencies compile this information, but release it only after a candidate participates as a committee member. Congress should require an agency to gather and disclose this information at the beginning of the process, before committees members are appointed. Opponents of such procedures argue that disclosures might jeopardize the protections afforded panel members by the Privacy Act, especially with respect to financial matters. The Privacy Act permits individuals to waive such protections and, given the importance of achieving balance on such committees, it is reasonable for an agency to require candidates to execute such waivers as a condition of serving on a committee.