Last spring the government technology newspaper Federal Computer Week highlighted the Health and Human Services Department for spending $1.6 billion on advisory committees over the last decade, which is half of the $3.2 billion total the federal government spent on these committees during the same time period.

These numbers were obtained using the General Services Administration's new eFACA website. The website was developed "to make information from the Federal Advisory Committee Act database easier to find, understand, and use," according to the main page. This sort of information has been collected by GSA since 1972, but until recently had been hosted in a notoriously hard-to-use database.

These advisory committees have come under fire for a lack of transparency in other areas as well as spending, such as influence and access. President Obama attempted to address some concerns in June 2010 with a Presidential Memo prohibiting federally registered lobbyists from serving on these committees.

Earlier this fall the House Oversight and Government Reform Committee passed legislation seeking to make these committees more accountable. The legislation then moved to the Ways and Means Committee but has not made any progress since then. GSA's eFACA website and a study being conducted by the Administrative Conference of the United States on FACA are two steps forward for increasing transparency in this regard, according to the Project for Government Oversight.

The FCW article goes on to list the agencies that have spent the most on advisory committees over the last decade. HHS tops the list, followed by the following:

• The Defense Department at $255 million.
• The Environmental Protection Agency at $137 million.
• The Interior Department at $88 million.
• The Energy Department at $74 million.
• The Veterans Affairs Department at $68 million.

Is the federal government getting biased advice from its advisory committees? Concerns about skewed advice and conflicts-of-interest prompted President Obama's September 2009 order banning lobbyists from executive-branch federal advisory committees and remedial legislation last Congress. No legislation was ultimately enacted, and the president's order barely scratched the surface of the issue.

A recent CRS report explains how advisory committees give advice to the government on a wide variety of issues and often help the government manage and solve complex or divisive issues. During FY 2010 there were 1,004 active committees with a total of 74,336 members, with total operating costs of around $400m. The committees are intended to gather and explore viewpoints from business, academic, governmental, and other interests.

Concerns about skewed advice led to the introduction of the Federal Advisory Committee Act Amendments of 2010, which passed the House unanimously but was not considered by the Senate. That bill was reintroduced this Congress by Rep. Cummings as part of the Transparency and Openness in Government Act, and appears to be co-sponsored by all the democratic members of the Committee on Oversight and Government Reform. Committee Chairman Issa has already publicly stated his willingness to hold a hearing on that bill -- the part of it that concern Federal Advisory Committees -- although a date has not yet been announced.

The proposed legislation has a number of good ideas.

• It significantly increases transparency about committee activities. As a general, 15 days prior to each meeting -- but no later than 48 hours in advance -- information about committee activities must be posted online, including how members are chosen, a list of current members, any member recusal agreements, a summary of how the committee makes decisions, notices of upcoming meetings, and a statement indicating when a meeting is closed to the public and the reason why. Transcripts or recordings of committee proceedings must be published online within 30 days of the meeting.
• It extends all advisory committee disclosure rules to subcommittees (and privately contracted committees) with the same force that they apply to the full committee. This way, committee work won't be shunted to subcommittees in an effort to avoid disclosure requirements.
• It allows the public to suggest who should serve as a committee member, so that the usual suspects aren't named to the board again and again.
• It closes a loophole that allowed government officials serving on the board to avoid making ethics disclosures.
• It requires people who regularly attend, participate, and otherwise act like committee members (except that they do not vote) be considered as committee members, and thus subject to committee disclosure rules.
• It provides for oversight of the committees by the Comptroller General, who must publish annual reports on the committees.
• It requires committee members to be selected without regard to partisan affiliation

These improvements go a long way towards making the advisory committee more open. We have additional suggestions.

• All information made available on the Internet shall be done so by state-of-the-art methods and in open formats. Information published online should be in user-friendly formats that machines can automatically gather for analysis.
• There should be a publicly-available online calendar that identifies all upcoming advisory committee meetings, and contains basic information about those meetings. The calendar should link to each committee's agenda.
• All information made available to the public (whether on the internet or otherwise) should be at no cost. Committees should not be able to charge for transcripts or other documents.
• Documents submitted to the Advisory Committee shall be made publicly available unless the Advisory Committee determines that those materials would disclose matters described in the FOIA exemptions listed in section 552(b) of title 5, United States Code. That determination should be appealable, and there should be a publicly-available summary of the contents at the time the materials are submitted.
• In addition to listing the names of its committee members, each committee should also make available brief biographies of its members.
• All members of each advisory committee shall file financial disclosure forms, which shall be made available on the committee website after redactions to remove personally identifiable information, such as social security numbers. This will help determine if there is a conflict of (financial) interest.
• All members of the Advisory Committee should declare and publicly disclose conflicts of interest. These statements must be updated whenever new conflicts arise or on an annual basis, whichever is more frequent. These disclosures shall be placed on the Internet. There should be random reviews to ensure that all proper disclosures are filed.
• The FACA main website should be updated and reworked. It's design is pretty bad.
• The underlying data behind the FACA database should continue to be made publicly available in a bulk format. For example, here's the raw file of members through 2008.

Federal advisory committees are a major way that the government gets advice from members of the public, especially expert advice. We need to make sure that the advice is not tainted by hidden agendas and reflects the best analysis available.

The Financial Reform bill contains a minor concession for transparency that we called for last year -- a small step for a more transparent accountable government.

Last September, I wrote about the new advisory committees that may be created as a result of the pending financial reform legislation. My concern was that these new advisory committees would be exempt from the normal disclosure requirements placed on them by the Federal Advisory Committee Act, either because the bill specifically exempts them, or because the new committees would fall under exempted agencies.

We called for disclosure requirements on new advisory committees:

Advisory committees created to support the Financial Services Oversight Council should be subject to disclosure requirements that can grant to members of the Council (and ideally to the public as well) confidence that their recommendations are prepared in good faith and without personal gain in mind. While not every Federal Advisory Committee Act requirement may be appropriate for financial oversight proceedings, the disclosure requirements so essential to our public trust and merit-based decision making should not be overlooked entirely, as they appear to have been here.

The version that passed the House, and now the version the Senate is considering, have both partially conceded this point.

Here's the House language:

(a) The Federal Advisory Committee Act shall not apply to the Financial Services Oversight Council, or any special advisory, technical, or professional committees appointed by the Council (except that, if an advisory, technical, or professional committee has one or more members who are not employees of or affiliated with the United States government, the Council shall publish a list of the names of the members of such committee).

...and here is the Senate language:

(g) Nonapplicability of FACA- The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to the Council, or to any special advisory, technical, or professional committee appointed by the Council, except that, if an advisory, technical, or professional committee has one or more members who are not employees of or affiliated with the United States Government, the Council shall publish a list of the names of the members of such committee.

This is a small, but significant, concession. A simple list of the names of any non-governmental advisory committee members is far better than nothing, which is what the initial drafts of the bill would have given us. The law wouldn't have even guaranteed public knowledge about whether such committees even exist. Now we'll know who is on them, if there are public members.

This concession, however, probably doesn't satisfy the condition I set in the September post, that the disclosure "grant to members of the Council (and ideally to the public as well) confidence that their recommendations are prepared in good faith and without personal gain in mind." The FACA goes well beyond this requirement, with procedural and ethics disclosures creating a far more accountable advisory structure.

The Senate bill also, unfortunately, has another section (Section 911) that specifically exempts the Investor Advisory Committee from the FACA disclosure requirements. If the requirement for listing members' names is good enough for the Financial Stability Oversight Council, they why not for the Investor Advisory Committee?

Exemptions to transparency requirements are often too easily abused, and expanded beyond reasonable bounds. The world of finance has complex incentives that make some disclosure requirements unwise, but that doesn't mean that proven methods for public accountability (like the FACA) should be abandoned altogether.

That the House and Senate financial reform bills make this concession means we're on the right track.

The disclosure requirements should go further, and apply to all of the advisory committees, not just those of the main council, but this is still an important concession.

President Obama's weekly address explained on his administration's efforts to combat influence peddling, and the steps it is considering taking in response to the Citizens United decision. It will be interesting to see to what extent these themes are reflected in the State of the Union speech this Wednesday, and how they translate into policy. The Sunlight Foundation will, of course, remain focused on the transparency implications.

Some highlights from the weekly address are after the jump.

First, the President described his lobbying reform efforts over the past year:

On my first day in office, we closed the revolving door between lobbying firms and the government so that no one in my administration would make decisions based on the interests of former or future employers. We barred gifts from federal lobbyists to executive branch officials. We imposed tough restrictions to prevent funds for our recovery from lining the pockets of the well-connected, instead of creating jobs for Americans. And for the first time in history, we have publicly disclosed the names of lobbyists and non-lobbyists alike who visit the White House every day, so that you know what’s going on in the White House – the people’s house.

He then talked about the effects of the Citizens United decision.

This [Citizens United] ruling opens the floodgates for an unlimited amount of special interest money into our democracy. It gives the special interest lobbyists new leverage to spend millions on advertising to persuade elected officials to vote their way – or to punish those who don’t. That means that any public servant who has the courage to stand up to the special interests and stand up for the American people can find himself or herself under assault come election time. Even foreign corporations may now get into the act.

And finally, he indicated that responding to Citizens United is a priority for the administration.

When this ruling came down, I instructed my administration to get to work immediately with Members of Congress willing to fight for the American people to develop a forceful, bipartisan response to this decision. We have begun that work, and it will be a priority for us until we repair the damage that has been done.

Yesterday, John and I met with the director of the fantastically-named Committee Management Secretariat, which oversees approximately 1,000 federal advisory committees. The Secretariat's job is to "monitor and report executive branch compliance" with the Federal Advisory Committee Act (FACA), the law that formalized the process for "establishing, operating, overseeing, and terminating" advisory bodies.

What was striking about our conversation was how interested they were in making these committees more transparent, and the steps that they have (or are considering taking) to do so.

Although there is room for improvement in the design and content of the Secretariat's website, I have been pleasantly surprised by the amount of information it contains. It has guidance to advisory committees is available for review; there's a digest of all the litigation involving FACA over the last 32 years; it contains a list all of the current committee management officers; and also available are interagency meeting minutes. Some of the information is old, or is in proprietary formats like MS Word, but the site is better than many in terms of substance.

One database that could be useful were it significantly revamped is the "FACA Database at FIDO," which is intended to help the executive branch and congress monitor activities of FACA committees. Unfortunately, the site's design is confusing and the data it provides is just about impossible to parse. That's not because it doesn't contain useful information. In fact, there are tons of useful nuggets, including each committee's charter, its reports, recommendations, costs, membership list, the committee charter, etc. Rather, the user interface violates just about every design principle I can think of.

In 2008, we had suggested that the data should be available for bulk download. Thanks to the new open government push (and efforts by the Secretariat), some of the information behind the FACA database is now available for download here. Of course, there's still much more that should be available, and there are many open questions about whether it's time for another look at FACA itself.

A September 21st news story in Roll Call reported that the Obama administration is “strongly considering limiting the ability of lobbyists to serve on federal advisory panels.” Specifically,

“the White House is likely to either tell agencies to ban lobbyists from the panels or to provide the agencies guidance . . . suggesting they avoid having lobbyists serve on the committees. Some sources said the effort to limit lobbyists’ participation would apply to all federal advisory bodies. . . .”

Were the administration considering such a move as a way to improve the reliability of advice issued by the committees, banning lobbyists would likely not achieve that goal. However, other measures may go a long way towards minimizing the appearance or occurrence of conflicts of interest. Here are some open questions.

Firstly, should federal law require all members of federal advisory committees to publicly file annual financial disclosure reports? Doing so may allow other members of the committee, government officials, and the general public to determine whether a committee member has a vested financial interest with respect to influencing recommendations made by the committee. It might also encourage the committee member making the filing to be mindful of potential conflicts.

Secondly, should federal law require all members of federal advisory committees to publicly file a conflict of interest form whenever a conflict is likely to occur? The form could describe the nature of the conflict, and be shared with other members of the committee as well as the public. For significant conflicts of interest, committee members could consider recusing themselves from voting on proceedings, if not from the entire deliberative process. The administration could create guidelines for when recusal is appropriate.

Thirdly, should there be regular audits of financial disclosure and conflict of interest filings to determine whether heretofore unidentified conflicts of interest exist, with the commensurate ability to impose appropriate remedial action when necessary? All filings could be maintained in real time in an online searchable database, with the audits also publicly available. In addition, GSA likely should implement rules to ensure that the documents are scrubbed of personally-sensitive information, such as home addresses, phone numbers, social security numbers, etc.

Although there may be some temptation to apply the financial disclosure or conflict of interest filing requirements to lobbyists only, in this context that doesn't make a lot of sense. It is likely that people who serve on advisory committees are those who are intensely interested in the issues that the committee addresses, and likely are engaging in related activities in their professional lives. Indeed, that nexus of involvement is exactly the point behind using federal advisory committees: they bring together people with diverse backgrounds to share their expertise in order to help the government craft better policies.

Consequently, removing lobbyists from the mix will likely remove a vital source of expertise for committees. Moreover, imposing disclosure requirements only on lobbyists, and not on everyone, doesn't make a lot of sense.

It is good that the administration is paying attention to federal advisory committees. It may be time to consider whether to update the Federal Advisory Committee Act in other respects. For example, FACA doesn't require that all committee minutes and other documents that are publicly available be also accessible to the public online. Additionally, the FACA online database needs serious upgrades.

For more information on FACA, see John's blogpost, this CRS report, and this backgrounder from GSA.

Update:

Thirty minutes after publishing the above post that explored questions surrounding whether it makes sense to ban lobbyists from serving on federal advisory committees, White House Ethics Counsel Norm Eisen wrote on the White House blog that “it is our aspiration that federally-registered lobbyists not be appointed to agency advisory boards and commissions.”

We recognize that there are many registered lobbyists who currently serve on these committees as a result of a prior appointment. When these appointments expire, it is our hope that agencies not reappoint anyone who is currently registered as a federal lobbyist at the time of their potential reappointment.

In the blogpost, the White House has indicated that it will make "adjustments" to the policy as appropriate to assure "all interested parties that their voices will be appropriately heard in the process." It will be interesting to see whether they allow waivers for lobbyists in certain instances.

Last month, I blogged about the Center for Public Integrity's brilliant expose' "Shadow Government," dealing with federal advisory committees, the secret, multi-layered and unaccountable bureaucracy that influences much of the federal government with precious little oversight and largely no record of their activities. There are over 900 committees, boards, commissions, councils and panels that advise the various agencies of the Executive Branch and the White House, meant to offer government expert opinions on various topics.

To recap, the Center's investigation found:

• committees packed with industry representatives;

• members are added or removed for political reasons;

• subcommittees and working groups are created allowing decisions to be made behind closed doors; and

-         records are sealed if they exist at all.

Steven Aftergood at Secrecy News blog reports that, on Wednesday, the House passed a bill that would amend the Federal Advisory Committee Act of 1972 (FACA).  The new reform is meant to strengthen the public disclosure provisions of FACA, which was itself a reform devised to bring more openness to the advisory committee process.

Aftergood quotes Rep. Henry Waxman, one of the bills sponsors, as saying the purpose of the bill is to put an end to White House task forces operating in total secrecy.  If passed, the bill will require the White House "...disclose whom they meet with and what recommendations they receive from special interests," Waxman said.  Specifically, "This bill says that task forces like the Vice President's energy task force must come out from the shadows." We'll keep an eye on this important piece of reform legislation as it heads over to the Senate.