Introduction
In the spring of 2006, Boeing paid one of the largest fines ever imposed on a U.S. company for violating the Arms Export Control Act. From 2000 to 2003, the aerospace and defense giant had defied State Department regulations and warnings about the unauthorized export of commercial aircraft equipped with a microchip that had military applications.
Some of those planes ended up in China, a country to which export of defense items was further restricted after the 1989 Tiananmen Square massacre. Boeing, which already had been fined three times for violations of arms exports laws, paid the U.S. government $15 million to settle the case and agreed to the appointment of an outside “special compliance official.”
Despite such transgressions, Boeing didn’t forfeit its role as adviser to the State Department on the very laws and regulations the company had flouted. For 16 years, at least one Boeing representative has sat on the Defense Trade Advisory Group, created in 1992 to help State reduce “impediments to legitimate exports” while safeguarding national security. DTAG’s members include representatives of prominent weapons manufacturers and suppliers, such as Lockheed Martin and BAE Systems, as well as defense industry lobbyists, lawyers, and consultants – but no outside critics.
Balance in membership – required under the Federal Advisory Committee Act of 1972, or FACA — has never been one of DTAG’s hallmarks. Scholars and think-tank analysts have traditionally held only one or two seats on the 40-to-50-member panel, and in 2006 they were dropped altogether.
DTAG isn’t an anomaly. There are more than 900 committees, commissions, boards, councils and task forces, with some 67,000 members, attached to the executive branch. Some, such as the National Coal Council, appear to be little more than corporate lobbying wings with special access to top agency officials. “What we need is openness and transparency in these advisory committees so that we can feel that what they tell us is credible,” said Rep. Henry Waxman, a California Democrat. “I don’t think FACA, as written, has gone as far as its framers hoped in diminishing the influence of industry,” agreed David Vladeck, a professor at Georgetown University Law Center.
Congressional Action
After years of paying scant attention to FACA abuses – imbalances on committees, unwarranted secrecy, agency interference — Congress is considering amendments to the 36-year-old law. Legislation sponsored by Waxman and another Democrat, William Lacy Clay of Missouri, would, in Clay’s words, “improve balance, transparency and independence” among panels. The proposed amendments would require that committee appointments be made without regard to political affiliation and would strengthen conflict-of-interest disclosure rules for panelists. They also would clamp down on efforts to circumvent FACA and avoid public disclosure.
The bill is expected to go to the House floor for a vote this spring. At a hearing on April 2, the day it was introduced, several witnesses pleaded for congressional intervention.
“[T]he courts have opened loopholes in FACA’s coverage and federal agencies have whittled away at its open government mandates,” Sidney Shapiro, an associate dean at the Wake Forest School of Law, told the House Subcommittee on Information Policy, Census, and National Archives. “Congress should arrest these trends before we witness more stories of secret, biased, or unaccountable advisory committees influencing national energy policy, food safety standards, or environmental protection requirements.”
The advisory system’s flaws transcend any one administration. But the Bush White House has left its own imprint, sometimes skirting FACA altogether by accepting “informal” advice from business leaders and lobbyists, as it did with Vice President Dick Cheney’s energy task force in 2001, and refusing to make records public. Critics say it has also tinkered with panels—most notably, those focused on science—in an apparent attempt to make them ideological clones of the White House. Some have been eliminated altogether, as in the politically charged case of the Advisory Committee on Energy-Related Epidemiology Research.
A “Shadow Government”
By the close of the 1960s, federal agencies were being counseled by at least 1,800 committees, comprising what Sen. Lee Metcalf, a Montana Democrat, called a “headless monster.” Most of these panels were invisible to the American public, although the President’s Commission on Obscenity and Pornography, created by Congress in 1967, gained widespread notoriety when it concluded—after spending three years and a then-unthinkable $2 million—that dirty books, films, and magazines probably weren’t harmful to society. Three commissioners—among them Charles H. Keating, Jr., who would become a key figure in the massive savings-and-loan scandal of the 1980s—issued their own report, condemning the panel’s findings as a “Magna Carta for the pornographer.”
The public also was fixated on a scandal that unfolded at the Department of Health, Education, and Welfare (predecessor to the Department of Health and Human Services) in 1968 and 1969. Agency officials had denied prominent scientists seats on advisory committees, ostensibly because they had failed security checks. In fact, Science magazine uncovered “several explicit cases of professors barred from HEW panels, seemingly for political reasons.” After an internal investigation, the agency agreed to stop “blacklisting” committee nominees deemed unpalatable by political appointees.
In January 1970, Rep. John Monagan, a Connecticut Democrat, declared that it was time to examine the entire advisory process and launched a high-profile investigation. Newspaper accounts told of a burgeoning “shadow government” larded with pointless or corrupt committees. In December of that year, having surveyed agencies and the White House and taken many hours of testimony, Monagan’s Special Studies Subcommittee announced its findings: Advisory panels had become a “fifth branch of government,” useful when properly managed but dangerous when left unsupervised. Monagan likened them to satellites: “They go out into outer space but they keep circling around, and no one really knows how many there are or what direction they are going in . . .”
In November 1971, Metcalf argued passionately for a law that would bring orbiting committees back to earth. “[W]e have been repeatedly assured that the legal function of advisory groups, as bodies of non-governmental members, is purely as kibitzer,” the senator declared at a hearing. “But in practice many have become internal lobbies. . . . Do we want information to freely flow through the government and society for all to critically examine, or do we want it hoarded and concealed by advisory committees until after decisions are foisted upon the public?”
The FACA legislation passed 11 months later. It declared that committees should be established “only when they are determined to be essential” and “terminated when they are no longer carrying out the purposes for which they were established.” Advisory panels, the law stated, should be balanced. With rare exceptions—the consideration of national security matters, for instance—meetings should be open and records publicly available. And committees should not be “inappropriately influenced by the appointing authority or by any special interest.”
With these guidelines in place, the number of panels plummeted. But critics say some of the same mischief and chicanery that inspired Congress to act has resurfaced—or, more likely, never went away. And as the years passed, the law’s imperfections have become increasingly evident. One glaring omission, say watchdogs, was Congress’s failure to include any penalties for noncompliance. The agency charged with overseeing advisory committees, the General Services Administration, can only offer guidance when disputes arise; anyone seeking actual relief—the release of records, the reconstitution of a panel—must sue.
Dozens of such lawsuits have been filed by groups like Public Citizen, but, ironically, decisions in some of these cases have actually weakened FACA. In 1983, for instance, an appellate court held that subcommittees of advisory committees did not have to follow FACA if they dealt only with technical subjects and didn’t make policy recommendations; this loophole has been routinely exploited, Shapiro and other legal authorities say.
Similarly, in 1989, a judge on the D.C. Circuit Court of Appeals asserted that it would be nearly impossible to enforce a provision of the act that requires panels to be “fairly balanced in terms of the points of view represented.” In 1993, the White House was able to fend off attempts to obtain records of Hillary Clinton’s short-lived Task Force on National Health Care Reform; the documents were released only after the group was disbanded. And in 2004, the Supreme Court held that records associated with Cheney’s energy task force were protected by executive privilege and therefore did not have to be released.
Congress has done its share of damage by exempting numerous committees from FACA, usually in the name of efficiency. Such was the case in 1996, when it gave the Federal Aviation Administration the authority to create single-topic safety panels composed solely of FAA and industry officials. These panels, known as Aviation Rulemaking Committees, have largely supplanted the bigger and older Aviation Rulemaking Advisory Committee, which holds public sessions and includes representatives of passengers’ groups. The smaller panels meet privately, often at corporate offices, putting companies like Boeing and United Airlines in the position of telling the FAA how they should be regulated.
“Real Experts in Minutiae”
The Defense Trade Advisory Group has similar traits. DTAG’s industry representatives argue that the panel’s one-sided nature is due to the need for “expertise.” DTAG’s chairman, Bill Schneider, a fixture in Washington defense circles who served in the Office of Management and Budget and the State Department under President Reagan, said the members are “real experts in the minutiae” of arms exports regulations. Panelist Joel Johnson, a longtime advocate for less stringent arms export controls, put it more bluntly: “We are the guys who make the stuff and sell the stuff and we can bring technical expertise to the table that the government can’t find anywhere else.”
DTAG put out a call for new members in August 2007 and a second notice in February of this year. A State Department official declined to disclose names or affiliations of the nominees and said that applications are still being reviewed.
All sales of U.S. weapons—from firearms to missiles—that aren’t government-to-government transactions must be cleared by the State Department through a licensing process the industry regards as overly bureaucratic. DTAG members say their goal is to streamline the process—something that may benefit their businesses directly. At stake: up to $100 billion a year in arms exports.
DTAG conducts its business in a way that doesn’t invite outside scrutiny. Only two public plenary sessions are held each year; in 2006, an assistant secretary at the State Department unsuccessfully tried to close these meetings. The rest of the discussions take place in working groups, which are not subject to FACA and therefore need not be open to the public. These meetings are sometimes held at defense companies’ offices in the Washington, D.C., area. “It’s very informal . . . like, ‘What are you doing Monday afternoon?'” said Edward C. O’Connor, a DTAG member who is a retired Army general and now heads his own consulting firm. “We are just a bunch of people trying to do something good.”
DTAG has advised the State Department on issues both narrow and broad. In the mid-1990s, for example, it recommended that the U.S. government lift a ban on sales of advanced weaponry to Latin America; in 1997, after intense industry lobbying outside of DTAG, the restrictions were indeed lifted. More recently, the group has recommended ways to soften a department proposal that would compel foreign brokers who work for American defense companies to register with State—a requirement, the industry argues, that puts it at a disadvantage to foreign competitors. Department officials counter that more vetting is necessary. They cite some recent cases to illustrate their point, such as a consultant in Asia who worked for a large U.S. defense company while he was also an agent for the Chinese government, and a broker in Latin America who had multiple felonies.
“They are arcane issues but they are all very significant,” said Rachel Stohl, a senior analyst at the Center for Defense Information, a Washington research group. “When you have the administration being able to alter the export control system without any oversight from Congress or the American public, that’s when sanctions are lifted or weapons are sent to human-rights-abusing militaries.”
It’s difficult to gauge the depth of DTAG’s influence. What’s clear, though, is that members get access to regulators and policymakers in ways that nonproliferation advocates and academics don’t. “You do have an occasion to keep nagging these people over and over” said panelist Johnson, a former vice president at the Aerospace Industries Association, the main lobbying group of U.S. aviation and defense manufacturers.
For her part, Stohl fears that DTAG will pressure the State Department into changing the rules in ways that could harm Americans. “You are talking about life-and-death systems with significant consequences for international security,” she said. “We are not talking about teddy bears.”
An Act in Disrepair
There are, to be sure, plenty of civic-minded advisory bodies. Among them is the Environmental Protection Agency’s Clean Air Scientific Advisory Committee, whose members have hectored the EPA to adopt stricter air pollution standards. But Georgetown’s David Vladeck, who litigated a number of FACA cases when he was with Public Citizen, worries that the evenhanded, open system envisioned by the act has fallen into disrepair.
“It’s not as though agencies aren’t calling on outsiders for help,” Vladeck said. “They’re just doing it in a less formal, less visible, less transparent, and less accountable way.”
Congressman Waxman agrees. He was an early critic of Cheney’s energy task force and has continued to denounce the Bush administration for what he calls excessive secrecy.
A 2004 report prepared by the Democratic staff of Waxman’s House Government Reform Committee charged that the administration had “acted to weaken and avoid FACA’s requirements.” It offered several examples, among them the President’s Commission on Intelligence on Weapons of Mass Destruction – better known as the WMD Commission – indirectly exempted from FACA by provisions the president placed in the executive order creating it.
The Bush White House, Waxman said, has shown a willingness to abolish panels “they think may be too honest” or alter the composition of committees “to get the people they want. . . . I think it becomes a process not to give us the best advice . . . but to be sure the government gets the advice they want to get.”
Scientific panels, in particular, have not fared well the past seven years.
In August 2007, for example, the EPA disbanded the National Pollution Prevention and Toxics Advisory Committee, created in 2002 to give the agency a cross section of input on issues such as nanotechnology and lead poisoning. After a promising start, the committee fell dormant after three scientists – all environmental advocates – resigned in protest in October 2006.
The scientists complained that the group had been stymied by representatives of the chemical industry, who resisted efforts to reach consensus on matters of chemical policy, and that the EPA had not done enough to resolve the conflicts. “It was basically an us-against-them dynamic, which didn’t allow real progress forward,” said one of those who quit, Joel Tickner, an assistant professor at the University of Massachusetts Lowell’s School of Health & Environment. In his letter announcing the committee’s breakup, EPA Assistant Administrator James Gulliford thanked the remaining members for their service and wrote that he had decided to “utilize a range of approaches to obtain stakeholder input, formal and informal, instead of reconstituting the [committee].”
The Bush administration has been accused not only of killing troublesome panels, but also of meddling in the advisory process – something FACA was supposed to prevent. The Union of Concerned Scientists has documented dozens of examples of such interference—from the appointment of people with lead industry ties to a CDC panel on childhood lead poisoning to the application of political litmus tests for nominees to committees that advise the National Institute on Drug Abuse and the Army. Richard Jackson, a former director of the CDC’s National Center for Environmental Health, said that, “In 2001, there were [administration] people calling members of committees, asking them who they voted for and whether they supported the president’s policies, which is unprecedented.”
Asked to respond to charges of panel manipulation, White House spokeswoman Christie Parell offered a clipped response: “We appoint qualified individuals to serve in administration positions,” she said.
Were he still alive, Sen. Metcalf would likely be appalled—but not terribly surprised—by the fate of FACA. During his 1971 testimony, he warned that industry held “a favored position” in the advisory process, raising the specter of a “corporate state.” And he posed a question that remains relevant: “Do we want the government to be open to all, or do we want it closed to all but elite industrialists?”
Researcher Henry Barmeier contributed to this story.
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