Federal Advisory Committee Act (FACA)

Closing the Door on Public Accountability

By Sidney Shapiro

Background

The Issue Whether FACA serves the goal of ensuring that the government has an open and accountable process for using advisory committees, such consultations are public, and advisory committees include a wide range of views.

The federal government routinely consults a wide variety of scientists, engineers, business people, and citizens about public policy. The Federal Advisory Committee Act (FACA) was enacted in 1972 to ensure that when regular and organized consultations take place, the process is 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."

Unfortunately, FACA, as implemented by the Executive Branch and overseen by the judiciary, has fallen far short in achieving the legislative goals of open, balanced, and accountable government. Instead, it has become relatively easy for agencies to create advisory committees that are not subject to FACA. Moreover, aspects of FACA limit its usefulness when it does apply. CPR therefore believes that Congress should amend FACA to address these limitations.

What People are Fighting About

FACA’s rules to promote the “good government” values of openness, balance and accountability, have come under sustained judicial attack. In 1989, the Supreme Court decided Public Citizen v. United States Department of Justice, holding that a committee of the American Bar Association set up to evaluate the legal abilities of persons nominated to be federal judges, was not an advisory committee under FACA. As noted earlier, FACA defines “advisory committee” as any committee which is “established or utilized” by an agency “in the interest of obtaining advice or recommendations.” According to Public Citizen, an agency “establishes” an advisory committee only if it actually forms the panel itself, and it “utilizes” an advisory committee only if the panel is “so closely tied to an agency as to be amendable to ‘strict management’ by agency officials.” Since the ABA committee did not meet these requirements, the Court held that FACA did not apply, despite the influential role the committee plays in helping the government select qualified nominees.

Public Citizen created a sizeable loophole because it enabled agencies to avoid FACA requirements altogether by simply asking a non governmental outside group to form the advisory committee. The lower federal courts have widened this “utilization test,” using it to exempt committees even if federal officials exert “significant influence” over the committee’s formation and participate actively in their deliberations. In Byrd v EPA, for example, the court exempted a peer review panel from FACA scrutiny even though it was created by a private consulting firm which worked for the Environmental Protection Agency (EPA) and even though EPA was heavily involved in its proceedings.

Taking full advantage of these loopholes, the Bush Administration has structured a number of important advisory committees to evade the Act’s requirements, including the President’s Commission on Intelligence on Weapons of Mass Destruction, the President’s Commission to Strengthen Social Security, and the Energy Project Streamlining Task Force. It has also successfully supported legislative exemptions for other advisory committees. For example, the Homeland Security Act gives the Secretary authority to exempt any committee from the FACA, whether or not the committee falls within the already established exception that allows agencies and departments to close meetings if necessary to protect national security.

Compounding these trends, the D.C. Circuit Court of Appeals blocked public interest groups from obtaining any documents that would support a lawsuit against the White House for FACA violations. Shortly after taking office in 2000, President Bush created the National Energy Policy Development Group (NEPDG) to recommend a national energy plan. The Group, which was comprised of federal officials, apparently met extensively with various energy producers and trade associations but systematically excluded the participation of environmentalists and consumer groups. Plaintiffs filed suit asking for disclosure of the circumstances surrounding NEPDG’s deliberations, but the court dismissed their claims, holding that the plaintiffs were not entitled to discovery because they had no evidence that the group was an advisory committee. The court defined a “committee” to require the presence of private members who have a vote in the process that determines the contents of the committee’s report. The court said it was compelled to adopt this narrow construction of the scope of FACA because of the “separation of powers” problems that were involved. The White House had claimed that the application of FACA to the Task Force would infringe on the President’s constitutional authority to receive confidential advice from department heads and to use that advice to propose legislation to Congress. The decision could mean that the president has the authority to exempt future committees from FACA simply by claiming that they exist to advise the president on legislative policy.

CPR's Perspective

These developments represent substantial drift from Congress’ original conception of FACA. The fact that FACA no longer applies if a private party is nominally in charge of the advisory process is difficult to justify. While Congress probably did not intend that FACA requirements apply any time an agency seeks advice from private individuals, there is a significant difference between private groups that offer episodic, unsolicited advice and situations where agencies ask for the advice and are actively involved in the creation of an ongoing group. Congress should amend FACA to make it clear that it applies even if an agency relies on a contractor or outside group to form an advisory committee.

It may be more difficult for Congress to overturn the refusal by the D.C. Circuit to permit any discovery concerning the Bush administration’s energy task force. While it is a time-honored tradition that the Chief Executive be given significant autonomy to receive confidential advice from his Cabinet and staff, the task force decision enables private interests to lobby the Executive with impunity without any public acknowledgment that such conversations took place. Nevertheless, the D.C. Circuit’s opinion regarding the NEPDG and related judicial decisions suggest that it would be a violation of the constitutional principle of separation of powers if Congress attempted to bring such consultations within the scope of FACA. The White House, however, could voluntarily make such consultations more transparent and CPR believes that the President should do so.

There is an additional problem that Congress should address. The open government provisions of FACA permit the public to hold an agency more accountable for its use of advisory committees, especially with respect to ensuring that such committees include a balanced group of representatives advocating a wide range of views. This requirement is important because of the potential for bias in the advisory committee process. 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 or when they do not hire committee members as special government employees.

Federal law, however, 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.

Besides a financial conflict of interest, the advice an agency receives may be colored by a reviewer’s bias. FACA addresses this problem, as discussed above, by requiring that committees be balanced concerning opposing viewpoints. The public, however, must have some way to monitor how agencies implement the balance requirement in order to ensure that it is not honored in the breach. 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.

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. Sometimes, agencies compile this information, but only after the candidate has been appointed, and has begun to serve, 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. Finally, Congress must require an agency to disclose the information at the same time it is obtained to give the pubic an opportunity to object the makeup of a committee if anyone so chooses.