Network of 900 advisory panels wields unseen power

Introduction

They counsel the Department of Defense on terrorism, help the National Institutes of Health dispense billions of dollars in grants and vet proposed food safety rules for the Department of Agriculture. They weigh in on human rights, climate change, Medicare, Social Security, sexual assault in the military, prescription drugs, national parks, child abuse and countless other subjects.

At least 900 committees, boards, commissions, councils and panels give advice to federal agencies and the White House, forming a vast but largely unnoticed network that influences policy throughout the government. Collectively these bodies have some 67,000 members, meet more than 7,000 times a year and spend almost
$400 million annually.

Many do commendable work, offering expert opinions to the executive branch on topics both broad and arcane. There is evidence, however, that the open, even-handed system envisioned by Congress when it passed the Federal Advisory Committee Act of 1972 (FACA) has mutated into something less desirable.

Some panels are packed with industry representatives, ensuring that other viewpoints go unheard. Members are added or removed for what appear to be political reasons. Subcommittees – also known as subpanels or working groups – are created to discuss matters behind closed doors. Records are sealed.

“We may need to amend FACA to be more explicit about openness, about how people are selected [for panels],” said Rep. Brian Baird, D-Wash. Baird has studied the federal advisory process and spotted what he believes to be serious flaws: needless secrecy, the choosing of panelists based not on their expertise but on their loyalty to the administration or their views on issues such as abortion.

“If it turns out that the [panels] are intentionally biased by the selection of certain members with certain ideologies and the rejection of other members with other ideologies, we’re not getting objective information,” Baird said. “We’re getting deliberately tainted information.”

In the coming months, the Center for Public Integrity will examine the labyrinth of advisory bodies that extends from the Department of Energy (National Coal Council) to the Pentagon (Defense Policy Board), from the State Department (Advisory Committee on Democracy Promotion) to the Treasury Department (President’s Advisory Panel on Federal Tax Reform).

We’ll analyze the composition of panels, looking for imbalance. We’ll investigate allegations of meddling by agencies or the White House. We’ll question the propriety of closed sessions.

There’s much to learn. These things, however, we know:

• Crafted to ensure balance, independence and transparency on federal committees, FACA is riddled with loopholes. Court rulings have made it easier for agencies and the White House to receive advice from industry-dominated groups which are under no obligation to hold open meetings or make their records public. Experts say that legislation is needed to close the loopholes.

• While the number of panels has remained fairly static — drifting between 900 and 1,000 — the number of people serving on these panels has increased markedly, from about 52,000 in 2000 to 67,000 last year. It’s unclear why membership has gone up. One possibility, said David Vladeck, an associate professor of law at Georgetown University, is that committee appointments in some cases have become a form of “political payback. For many people, serving on an advisory committee is not a chore. It’s a plus.”

• Financial conflicts of interest among committee members are not uncommon. On March 21, the Food and Drug Administration announced new rules for its advisory panels, which have significant input on what drugs and medical devices enter the marketplace. The move is a tacit acknowledgment of FDA critics, who have complained for years that many scientists and physicians on the panels are linked to firms with products up for approval. From now on, anyone with $50,000 or more in financial ties, such as stock ownership, to pharmaceutical or device manufacturers during the previous 12 months will not be allowed to serve.

• The General Services Administration, which is responsible for collecting, maintaining and making public the records of panels covered by FACA, has no way to compel agencies to report data, although it gives guidance to them and believes most follow the law. It also has no way to track panels that should fall under FACA, but aren’t complying. Because there are no penalties for noncompliance, alleged FACA violations must be addressed in the courts. Litigants may spend years trying to force a panel to open its meetings, release its records or adjust its membership.

“The advisory committee process makes a lot of sense,” said Vladeck, who brought at least 10 FACA lawsuits on behalf of Public Citizen, a consumer advocacy group, before joining the faculty at Georgetown. “The government ought to have a way of tapping the expertise of academics, consumers and industry. But the law has not been implemented the way it was written.”

Legal wrangling over FACA began many years ago and has not let up.

A group called CREW — Citizens for Responsibility and Ethics in Washington — recently sued the Department of Education over the activities of 16 subpanels, which advised Education Secretary Margaret Spellings on how to distribute grants to states under the Reading First Initiative. The initiative has a $1 billion annual budget and was established by the No Child Left Behind Act of 2001.

CREW is trying to obtain minutes and other documents from the subpanels. “They did nothing to comply with FACA,” said CREW’s chief counsel, Anne Weismann. “They were imbalanced. They had closed meetings. They had rampant conflicts of interest.”

A spokeswoman for the Education Department declined to comment. In a report last September, the department’s inspector general found that the subpanels were not properly balanced. The IG said it reviewed the resumes of 25 panelists and identified six who had “significant professional connections to a teaching methodology that requires the use of a specific reading program.” Guided by the subpanels, the department, in possible violation of the law, influenced school curricula by directing funds to states that used this program, the IG said.

Earthjustice, a non-profit environmental law firm, is in litigation against the U.S. Trade Representative (USTR) over six Industry Trade Advisory Committees. The lawsuit contends that although the panels’ work on issues such as chemicals and pharmaceuticals affects public health, they are dominated by corporate interests. Suing on behalf of a coalition of five organizations, Earthjustice wants the USTR to name public health representatives to the panels.

“This lawsuit is about democracy, about making sure that when the government makes important decisions that affect the public, citizens have a voice in those decisions,” said Earthjustice lawyer Martin Wagner.

The case was dismissed by a federal judge but is being appealed. A USTR spokesman declined to comment on it. Earthjustice won a similar lawsuit against the trade representative four years ago, forcing it to comply with a previous settlement agreement and appoint an environmental representative to a chemicals panel.

A Move Toward Oversight

FACA — an attempt to slow the creation and enhance the accountability of advisory bodies that then numbered in the thousands — grew out of congressional hearings that began in 1970.

Sen. Lee Metcalf, a Montana Democrat, opened a hearing in November 1971 by observing, “Information is an important commodity in this capital. Those who get information to policymakers, or get information from them, can benefit their cause, whatever it may be. Outsiders can be adversely and unknowingly affected. And decision-makers who get information from special interest groups who are not subject to rebuttal because opposing interests do not know about meetings — and could not get in the door if they did — may not make tempered judgments.”

A law was needed, Metcalf said, to affirm “the rights of people to find out what is going on and, if they want, to do something about it.”

FACA was passed in September 1972. It decreed that advisory panels be “fairly balanced in terms of the points of view represented and the functions to be performed.” It said that committees should be created “only when they are determined to be essential,” and “terminated when they are no longer carrying out the purpose for which they were established.”

Panels should not be “inappropriately influenced” by outside interests, the law said. And meetings should be open, with certain exceptions — when sensitive national defense or foreign policy issues are being discussed, for example.

Just weeks after his inauguration in 1993, Bill Clinton concluded that the federal advisory system again had gotten out of hand. In an executive order dated February 10 of that year, Clinton instructed every department and agency to “terminate not less than one-third of the advisory committees subject to FACA” by the end of the fiscal year and provide justification for committees proposed for continuation. New panels should be created “sparingly,” Clinton said.

Clinton’s order — which was partly about saving tax dollars and partly about preventing panels from being formed to serve special interests — ended up reducing the number of “discretionary” committees created by agencies. It had no effect, however, on “non-discretionary” committees created by Congress or the White House.

The courts began chipping away at FACA even before Clinton took office, creating more and more loopholes.

In one case, the U.S. Court of Appeals for the D.C. Circuit held that subcommittees with narrow mandates did not have to be balanced or otherwise comply with FACA. Today, Georgetown’s Vladeck said, the law’s disclosure and balance requirements are routinely circumvented by the creation of working groups. In some cases, he said, such groups decide matters in secret and then send their “recommendations” to full committees, which hold pro forma public meetings. “Whatever’s been decided by the working group is simply adopted,” Vladeck said.

In another case, the D.C. Circuit held that an agency panel assembled by a contractor was not subject to FACA. In a third, the Supreme Court said the law did not apply to an energy task force chaired by Vice President Dick Cheney, even though Cheney was getting advice from industry representatives with a stake in energy policy.

An attempt by the Sierra Club and Judicial Watch to obtain task force documents was rebuffed by the court on the basis of executive privilege. A Sierra Club lawyer, David Bookbinder, questioned this outcome, telling the Center in an e-mailed statement, “The American public deserves to know who writes our nation’s policy before it becomes law.”

“The courts have littered the landscape with opinions unfavorable to public transparency,” said Sidney Shapiro, university distinguished chair in law at Wake Forest University. “But there’s no reason why Congress can’t identify these problems and amend FACA to take care of them.”

Congress Weighs In

In fact, Congress is sometimes part of the problem.

Several bills introduced this year include exemptions from all or parts of FACA for certain panels. Legislation designed to enhance the status of the National Oceanic and Atmospheric Administration (NOAA) within the Department of Commerce, for instance, proposes a change in the NOAA science advisory board: It would no longer be subject to FACA.

Jessica Schafer, press secretary for the bill’s sponsor, Rep. Sam Farr, D-Calif., explained in an e-mail that the authors of the legislation felt that the public notification requirements of the law were “burdensome for modern boards. We did, however, want to maintain the transparency and public input portions of FACA.”

But Vladeck said that committees exempt from FACA can go astray. “Suppose they are not fairly balanced. Suppose they don’t give notice of their meetings. Suppose they do not make their records available,” he said. “There is nothing you can do about it.”

Only a few lawmakers have shown an interest in the nuances of FACA, a lesser-known cousin of the Freedom of Information Act.

One of them is Baird, who, along with Rep. Eddie Bernice Johnson, D-Texas, requested a study of advisory committees by the General Accounting Office (now the Government Accountability Office) in 2004. The GAO reported that some agencies were inappropriately exempting panelists from conflict-of-interest reviews, a problem that could cause the government to receive biased advice. It also said that many agencies did not “systematically collect and evaluate information pertinent to determining the points of view of potential committee members, such as previous public positions or statements on matters being reviewed.”

Baird said he is convinced that some prospective panelists have been subjected to “political background checks,” involving research into such things as campaign contributions. Such checks should be banned, he said, and “there should be an explicit directive that advisory committees be made up of people with different perspectives.”

Asked to respond to Baird’s allegation, White House spokesman Blair Jones said, “We appoint qualified individuals to serve in administration positions.”

A few months after the GAO study came out in 2004, the Democratic staff of the House Government Reform Committee concluded in a report that the Bush administration had “acted to weaken and avoid FACA’s requirements” and had “supported legislative changes to carve out new exemptions to the law,” shrouding the work of bodies like Cheney’s energy task force, the President’s Commission on Intelligence on Weapons of Mass Destruction and the President’s Commission to Strengthen Social Security.

The report was prepared for Rep. Henry Waxman, D-Calif., an ardent proponent of open government and scientific integrity. In 2005, Waxman introduced a bill that would have prohibited political “litmus tests” for appointees to scientific panels and strengthened protections against conflicts of interest.

The bill didn’t make it out of the House. But Waxman, chairman of what is now the Oversight and Government Reform Committee, told the Center in an e-mail, “I will continue to look into the issue this Congress.”

Marina Walker Guevara contributed to this report.

Funding for this report was provided by the Popplestone Foundation and the David B. Gold Foundation.