Is It Time to Revisit the Federal Advisory Committee Act?

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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.

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