Introduction
Congress, Presidents, and executive branch agencies create federal advisory committees to gain expertise and policy advice from individuals outside the federal government. Federal advisory committees have historically been created on an ad hoc, provisional basis and are created to bring together various experts—often with divergent opinions and political backgrounds—to examine an issue and recommend statutory, regulatory, or other policy actions. Federal advisory committees are one of only a few formalized mechanisms for private-sector citizens to participate in the federal policymaking process.
Congress, the President, and executive branch agency heads may create advisory bodies. In 1972, the Federal Advisory Committee Act (FACA) was enacted to govern advisory committees established or utilized by the President or executive branch agency heads.1 FACA itself provides a detailed definition of a federal advisory committee. FACA-governed entities are statutorily defined as
any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof (hereafter in this paragraph referred to as "committee"), which is - (A) established by statute or reorganization plan, or (B) established or utilized by the President, or (C) established or utilized by one or more agencies, in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government, except that such term excludes (i) any committee that is composed wholly of full-time, or permanent part-time, officers or employees of the Federal Government, and (ii) any committee that is created by the National Academy of Sciences or the National Academy of Public Administration.2
It is unclear in some cases, however, whether FACA should apply to particular advisory committees.
Advisory bodies statutorily mandated may or may not be obligated to follow FACA requirements—often depending on whether Congress explicitly states in legislation whether FACA should apply. Otherwise, FACA's application can be determined by examining which branch of the federal government appoints committee members and to which branch of the federal government the committee reports its findings. Whether called commissions, committees, councils, task forces, or boards, these entities have addressed a gamut of public policy issues, offering policy recommendations on topics ranging from organ transplant practices3 to improving operations at the Department of Homeland Security.4
Pursuant to statute, the General Services Administration (GSA) maintains and administers management guidelines for federal advisory committees. In FY2011, 1,029 FACA committees with a total of 69,750 members reported total operating costs of $395,179,373 among 51 departments and agencies. Agency administrators, the President, and Congress are likely to continue creating federal advisory committees throughout the 112th Congress.
In the 112th Congress, one bill has been introduced that would affect FACA's implementation and administration. On October 6, 2011, Representative William Lacy Clay introduced H.R. 3124, the Federal Advisory Committee Act Amendments of 2011. H.R. 3124 would require the selection of advisory committee members without regard to their partisan affiliation and that advisory body subcommittees and privately contracted committees adhere to FACA requirements. Currently, such subcommittees and privately contracted committees are not covered by FACA. Among other changes, H.R. 3124 seeks to clarify the ethics requirements of committee members and increases records access requirements. On October 6, 2011, H.R. 3124 was concurrently referred to the House Committee on Oversight and Government Reform and the House Committee on Ways and Means. On October 13, 2011, the House Committee on Oversight and Government Reform ordered H.R. 3124 to be reported by unanimous consent. No further action has been taken on the bill.
H.R. 3124 may clarify certain advisory committee transparency requirements and increase public participation with and records access to federal advisory committees. The bill, however, could increase the time and costs associated with starting and administering advisory committees.
This report provides a legislative and executive-branch history of the Federal Advisory Committee Act. It then discusses a variety of studies about the design and utility of such advisory bodies. The report then offers possible considerations when designing an advisory committee and analyzes policy options related to advisory committee design and operations.
History
Although FACA committees did not exist until 1974, George Washington is often credited with initiating a tradition of presidential use of outside expertise when, in 1794, he appointed an ad hoc group of commissioners to investigate the Whiskey Rebellion.5 Since the 1840s, Congress has legislated control over federal advisory bodies—mostly by limiting funding and committee member pay. In 1842, for example, a law was enacted that prohibited payment to "any commission or inquiry, except courts martial or courts of inquiry in the military or naval service" without explicit "special appropriations."6 Similarly, in 1909, another law was enacted that prohibited appropriation to "any commission, council, board, or other similar body ... unless the creation of the same shall be or shall have been authorized by law."7 The law also prohibited the detailing of any federal employee to work on an unauthorized commission.
By the 20th century, some Members of Congress believed the executive branch's advisory bodies were inefficient and not accessible to the public. Some Members believed that the public harbored concerns that a proliferation of federal advisory committees had created inefficient duplication of federal efforts.8 Moreover, some citizens argued that the advisory entities did not reflect the public will, a point that was punctuated by many committees' policies of closed-door meetings. Congress was called on to increase committee oversight and gain some control over the proliferating advisory boards.9 Subsequently, Congress enacted the Federal Advisory Committee Act (FACA; 5 U.S.C. Appendix; 86 Stat. 770, as amended). The legislation was enacted in 1972 and requires advisory bodies that fit certain criteria to report annually a variety of information, including membership status and progress, to the General Services Administration (GSA). GSA then reports annually aggregated advisory body information to Congress.10 Greater detail on the actions of both the legislative and executive branches in FACA's development are provided in the Appendix.
The Federal Advisory Committee Act
FACA attempts to address many of the congressional and citizen concerns about federal advisory committees that were discussed in the section above. The law established the first statutory requirements for management of, access to, and oversight of federal committees. The act requires all advisory committees "be advisory only," and the issues on which they offered determinations are to be "determined, in accordance with law, by the official, agency, or officer involved."11 FACA allocates a variety of oversight and management responsibilities to the standing committees of Congress, the Office of Management and Budget (OMB), agency heads, and the President.
FACA requires congressional committees to review continuously whether existing federal advisory committees that fall under their legislative jurisdiction are necessary or redundant. Congress is also to determine if the committees are "fairly balanced in terms of the points of view represented and the functions to be performed."12 FACA committees are to be created with enough autonomy from the appointing power (Congress, the President, or an agency head) as to not be unduly influenced by it. Reporting requirements are to be clearly stipulated, and proper funding and staffing are to be provided. The 1972 statute charted OMB to oversee the management of advisory committees. The OMB director's first mandated task was to review, concurrently with Congress, existing advisory entities to determine whether they should be abolished. The director was to create operating policies for advisory committees, and provide "advice, assistance, and guidance" to entities "to improve their performance." The guidelines were to include pay rates for members, staff, and consultants—and catalog overall costs for the committees that were to be used for budget recommendations to Congress.13Agencies' heads were to ensure proper implementation of OMB's guidelines, and to "maintain systematic information on the nature, functions, and operations of each advisory committee within its jurisdiction."14 In December 1977, the duties charged to OMB were reassigned to the General Services Administration (GSA) by E.O. 12024. GSA now promulgates regulations related to FACA administration and performs annual reporting requirements to Congress.
The President is required to report to Congress—within one year of receiving advice from an advisory committee—his determination for action (or inaction) on the committee's recommendation. The President is also required to report annually to Congress the "activities, status, and changes in the composition of advisory committees in existence during the preceding year."15 FACA requires the President to exclude the activities and composition changes of advisory committees related to national security from the report.
The law authorizes only Congress, the President, or an agency head to create an advisory committee.16 FACA requires all committees file a charter prior to their operation. A charter is required to include the committee's objectives, the support agency, the committee's duties, the estimated operating costs, the estimated number of committee meetings, and the anticipated termination date, among other information. Most committee meetings are required to be advertised in the Federal Register and open to the public.
Contemporary FACA
In FY2009, 907 active FACA committees reported a total of nearly 82,000 members. In FY2009, the total reported operating costs for these committees were $361,493,408.17 During FY2010, 992 active committees reported a total of 74,289 members. The operating costs reported for those committees were $386,550,504. In FY2011, 1,029 active committees reported a total of 69,750 members. The FY2011 reported total operating costs were $395,179,373. In the past three years, the number of FACA committees has grown by 100 committees, while the number of committee members has dropped 12,190. Figure 1, Figure 2, and Figure 3 show the growth in the reported number of FACA committees, the decrease in the reported number of members serving on FACA committees, and the reported increase in costs (adjusted to 2011 dollars) for FACA committees.
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Figure 1. Reported Number of Active FACA Committees FY2009 – FY2011 |
Source: FACA Database at http://www.fido.gov/facadatabase/. |
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Figure 2. Reported Number of Members on FACA Committees FY2009 – FY2011 |
Source: FACA Database at http://www.fido.gov/facadatabase/. |
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Figure 3. Reported Operational Costs for FACA Committees (Adjusted to 2011 Dollars) FY2009 – FY2011 |
Source: FACA Database at http://www.fido.gov/facadatabase/. Notes: Adjusted to FY2011 dollars. Costs adjusted for inflation are calculated using Bureau of Labor Statistics Consumer Price Index (CPI) annual averages. To calculate the inflation adjustment values, CRS divided the 2011 CPI by the appropriate year's CPI rate (for example, the CPI rate for 2007 when calculating the constant dollar costs for 2007). CRS then multiplied that dividend by the nominal dollar amount spent on FACA committees as provided by the FACA Database. |
Data from the FACA Database demonstrate that the increase in the number of committees is prompted by the statutory creation of new committees. The impetus for the decrease in members, however, is more difficult to determine. At a June 21, 2011, meeting with GSA officials who administer the FACA database, the officials said that the increase in FACA committee membership in FY2009 was prompted largely by an increase in the membership on committees that made recommendations about where and how to distribute appropriations provided by the American Recovery and Reinvestment Act of 2009 (P.L. 111-5). 18
FACA requires that advisory committees make their recommendations accessible to the public. All committee meetings that are bound by FACA are presumed to be open to the public, with certain specified exceptions.19 Adequate notice of meetings must be published in advance in the Federal Register. Subject to certain records protections provided in the Freedom of Information Act, all papers, records, and minutes of meetings must be made available for public inspection. Membership must be "fairly balanced in terms of the points of view represented and the functions to be performed," and the committee should "not be inappropriately influenced by the appointing authority or by any special interest."20
All advisory committees that are subject to FACA must file a charter every two years.21 The charter must be sent to the appropriate Senate and House committee of jurisdiction, the agency head of the agency in which the committee is located, and the Committee Management Secretariat in GSA. It must include the advisory committee's mandate and duties, frequency of meetings, and membership requirements. GSA is required annually to review advisory committee accomplishments, respond to inquires from agencies that seek to create new advisory bodies, and maintain an online, publicly accessible database of FACA bodies that includes a variety of information about each entity.22
Pursuant to FACA, advisory entities that have at least one member who is not a federal employee are subject to the act.23 The act requires each agency with an advisory committee to have a committee management officer (CMO) who supervises "the establishment, procedures, and accomplishments of advisory committees established by that agency."24 Moreover, the CMO is required to maintain advisory committee "reports, records, and other papers" related to the entity's proceedings and ensure that the body adheres to the Sunshine Act (5 U.S.C. §552).25 Also pursuant to FACA, a "designated federal official" (DFO) must be present at committee meetings to call and adjourn meetings.26 According to OMB Circular No. A-135, FACA committees must be "essential to the performance of a duty or responsibility conveyed upon the executive branch by law."27 The circular then states the following:
Advisory committees should get down to the public's business, complete it and then go out of business. Agencies should review and eliminate advisory committees that are obsolete, duplicative, low priority or serve a special, rather than national interest.28
All committees created since FACA's enactment are required to sunset after two years, unless legislation creating the entity specifies otherwise or the entity is renewed by the power that created it.29
Studies on Federal Advisory Committees
Scholarship on the creation, operations, and effects of federal advisory committees is limited. One study examined ways Congress can design more effective committees30 and another explored whether advisory committees serve presidential interests.31 In addition to competing theories on which branch of the federal government advisory committees serve, scholars have not agreed on a single definition for the committees.32 Although the definition of an advisory committee can vary across the federal government, FACA-governed entities are defined specifically within the act as
any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof (hereafter in this paragraph referred to as "committee"), which is – established by statute or reorganization plan, or established or utilized by the President, or established or utilized by one or more agencies, in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government, except that such term excludes any committee that is composed wholly of full-time, or permanent part-time, officers or employees of the Federal Government, and (ii) any committee that is created by the National Academy of Sciences or the National Academy of Public Administration.33
Also pursuant to statute, FACA committees are prohibited from creating policy or issuing regulations. Their role is to remain strictly advisory.34
One researcher stated that advisory committees have traditionally allowed a President to
deflect blame, buy time, and give the appearance of action on issues that are too politically charged, too difficult, to solve. In addition, however, various scholars have noted that commissions are used by presidents to garner greater public support for a policy to which the president is already committed; show symbolic concern over a situation at the highest level of government; establish a fact base for others to use; respond to crises; deflect political heat from the president and allow passions to cool when issues become explosive; overcome the "stovepipes" and parochial thinking of the permanent bureaucracy; gather more information about a problem and its policy alternatives; forge consensus among the interests represented on the commission itself; and change the hearts and minds of men.35
That same researcher attempted to group commissions into three categories: agenda commissions, which aim to attract support and attention to presidential policy initiatives; information commissions, which are designed to give "new ideas, new facts, and new analysis to policymakers"; and political constellation commissions, which seek to "foster consensus, compromise, and cooperation in a policy domain."36
Another researcher who examined the impetus for committee creation found that some committees are created to acquire new ideas from outside experts. He added, however, that committees may be created to allow politicians to avoid blame for issues that are too cumbersome or too politically charged. Moreover, he stated that Members of Congress may create committees because of the immense workload of legislators. Creating an advisory committee can "pare down Congress's workload to more manageable dimensions or to handle and manage a problem in a timely manner."37
Another FACA study focused on how the structure and composition of a federal advisory committee may affect its deliberative process, and, therefore, its contribution to public policy.38 Researcher Mark B. Brown studied the requirement that FACA committee membership be "fairly balanced." He argued that the distinction between experts and laypeople in advisory committee membership is arbitrary, naïve, and artificial. Mr. Brown wrote: "… most current advisory committee guidelines rest on an untenable double-standard that directs agencies to evaluate potential expert members of advisory committees solely in terms of their professional qualifications and nonexpert members in terms of the political interests."39 It is not true, however, that "expert" members of advisory bodies are always treated as not having personal biases. Instead, the federal ethics requirements placed on certain "expert" members mandate that they make public certain biases. An expert member who is categorized as a special government employee, for example, is required by federal ethics codes to divulge any potential conflicts of interest and recues him or herself from any actions in which he or she would financially benefit.40
Since FACA's enactment, scholars and practitioners of government have debated whether advisory bodies, in fact, increase public interaction with the federal government.41 Other debates continue over whether advisory committees have a positive effect on the federal government,42 or if they are a symptom of a federal government that is not performing properly.43
In March 2012, the Government Accountability Office (GAO) released a report that examined FACA and non-FACA federal advisory committees within the Departments of Transportation and Education.44 GAO used FACA Database documentation and agency official interviews to examine whether the committees were duplicative and whether they were useful. GAO found that while advisory committees are "generally considered useful and cost efficient mechanisms for federal agencies to obtain advice and input from a range of stakeholders and experts," "the advisory group environment is fluid, and the potential for duplication exists both within and outside the agency."45 GAO made one recommendation to the Secretary of Transportation and the Secretary of Energy:
Identify and document specific steps that should be taken in periodically assessing potential duplication and the ongoing need for both FACA and non-FACA groups.46
In addition to the recommendation, GAO noted four practices that it stated can influence the usefulness of an advisory body. 47 The four practices are
- securing clear agency commitment;48
- finding a balance between responsiveness to the agency and independence;49
- leveraging resources through collaboration with similar groups;50 and
- evaluating the group's usefulness to indentify future directions for the group or action to improve its usefulness.51
When FACA Applies
As noted earlier, FACA defines an "advisory committee" as "any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof" that is "established by statute or reorganization plan," "established or utilized by the President," or "established or utilized by one or more agencies."52 All advisory bodies that fit this definition, however, are not necessarily entities that must adhere to FACA. The Code of Federal Regulations defines an advisory committee nearly identically to FACA's definition, but adds that the body must be created "for the purpose of obtaining advice or recommendations for the President or on issues or policies within the scope of an agency official's responsibilities."53 In short, FACA applies when an advisory committee is "either 'established' or 'utilized' by an agency."54 Pursuant to FACA, any advisory body that performs a regulatory or policy-making function cannot be a FACA entity.
Although both FACA and the Code of Federal Regulations define advisory committees, it may sometimes be unclear whether some advisory committees—especially those created by statute—must adhere to FACA requirements. Advisory committees created by the executive branch that fit FACA criteria are governed by FACA.55 Advisory committees that are created by statute, however, may or may not be obligated to follow FACA requirements—often depending on which branch of the federal government appoints committee members and to which branch of the federal government the committee must report its findings.56 If, for example, a statutorily created advisory committee reported only to Congress and to no one within the executive branch, FACA guidelines likely would not apply.57 If, however, the same committee reported to both Congress and the President, it is unclear whether FACA guidelines would apply. According to GSA, it is generally up to the agency that hosts the advisory body to determine whether FACA statutes are applicable.58 To avoid confusion over whether a committee is governed by FACA, Members of Congress can include a clause within committee-creating legislation to explicitly clarify whether a committee is to be subject to FACA.
While FACA may improve both the reality and perception of transparent governmental operation and accessibility, its requirements may also place a number of additional chartering, record-keeping, notification, and oversight requirements on the entity. In particular, agencies have claimed that compliance with the various FACA requirements are cumbersome and resource intensive, thereby reducing the ability of committees to focus on substantive issues in a spontaneous and timely fashion.59 Moreover, other scholars have argued that the scope of the openness requirements could have the practical effect of stifling candid advice and discussion within a committee.60 Congress may choose to exempt a congressionally-created advisory committee from FACA to allow it to operate more quickly than FACA would permit. For example, the requirement that all meetings be posted "with timely notice" in the Federal Register61 can slow down the daily operations of an advisory committee, which will typically not hold meetings until 15 days after the notice is published.
Committees that consist entirely of part- or full-time federal employees are explicitly exempted from FACA, as are committees created by the National Academy of Sciences or the National Academy of Public Administration.62 Committees created by or operating within the Central Intelligence Agency or the Federal Reserve System are also FACA exempt.63 Some specific committees—for example the Commission on Government Procurement—have been identified by statute as FACA exempt (P.L. 105-153).
FACA and the 112th Congress
On October 6, 2011, Representative William Lacy Clay introduced H.R. 3124, the Federal Advisory Committee Act Amendments of 2011. H.R. 3124 incorporates language from bills Representative Clay introduced in both the 111th and 110th Congresses. H.R. 3124 seeks to clarify some of the language in FACA and make the process of creating a committee and selecting members more transparent and participatory. The bill also incorporates parts of the proposed Transparency and Open Government Act (H.R. 1144) from the 112th Congress. H.R. 3124 seeks to increase public access to federal advisory committees, clarify ethics requirements of FACA committee members, and extend FACA requirements to federally contracted advisory committees that are currently not governed by FACA. H.R. 3124 was concurrently referred to the House Committee on Oversight and Government Reform and the House Committee on Ways and Means. On October, 13, 2011, the House Committee on Oversight and Government Reform ordered the bill to be reported by unanimous consent. No further action has been taken on H.R. 3124.
H.R. 3124 and FACA Membership
H.R. 3124 would modify the committee-member appointment process. The bill adds language requiring agencies to publish a request for comments in the Federal Register prior to making membership appointments. Pursuant to the bill, the public would be allowed to submit their recommendations electronically and the agency would be required to "consider" the comments when making appointments to the committee.
Additionally, H.R. 3124 would require the selection of members without regard to their partisan affiliation. The measure also requires a review of each committee member appointment to ensure that he or she is properly designated as either a special government employee (SGE) or a representative. Not all committee members must adhere to federal ethics codes, according to the Code of Federal Regulations.64 If a committee member is designated as an SGE, under 18 U.S.C. §202(a), then he or she is subject to federal ethics regulations. If, however, the employee is deemed a representative, federal ethics codes may not apply. The designation of whether a committee member is an SGE or a representative depends largely on whether the member was selected to provide his or her scientific or scholarly opinion or to serve as an advocate for a particular organization or outcome. Pursuant to FACA, each type of advisory committee member must be appointed under the proper designation, which would determine the ethical standards placed on each member. H.R. 3124 would require each member, at the time of appointment, be explicitly designated and be provided a summary of the ethics requirements associated with that designation.
H.R. 3124 and FACA Committee Transparency and Independence
H.R. 3124 would require that advisory body subcommittees and contracted committees adhere to FACA requirements. Currently, such subcommittees and contracted committees are not covered by FACA.
H.R. 3124 would require committees to provide a statement declaring their advice or recommendations were made "independent from the agency." The bill would require that any individual who "regularly attends and participates in committee meetings … as if [he or she] were a member" be regarded as a member of the committee—although they need not be provided a vote or veto power. Agencies would be required to put FACA committee meeting minutes as well as a transcript, audio, or video recording of each meeting on an agency website. In addition, H.R. 3124 would require agencies to put the following FACA committee information on an agency website:
- A description of the process used to establish and appoint the members of the advisory committee, which is to include:
- The process for identifying prospective members;
- The process of selecting members for balance of viewpoints or expertise;
- The reason each member was appointed to the committee;
- A justification of the need for representative members, if any.
- A list of all current members, including, for each member the following:
- The name of any person or entity that nominated the member;
- Whether the member is designated as an SGE or a representative;
- In the case of a representative, the individuals or entity whose viewpoint the member represents.
- A list of all special government employees members who acquired certification pursuant 18 U.S.C. §208(b), which permits them to provide advice as a committee member—even if there is a conflict of interest—in cases where a federal official determined that "the interest is not so substantial as to be deemed likely to affect the integrity of the services which the Government may expect from such officer or employee." The agency must also put online a copy of each such certification, a summary description of the conflict necessitating the certification, and the reason for granting the certification;
- Any recusal agreement made by a member or any recusal known to the agency that occurs during the course of a meeting or other work of the committee;
- A summary of the process used by the advisory committee for making decisions;
- Detailed minutes of all meetings of the committee and a description of committee efforts to make meetings accessible to the public using online technologies (such as video recordings) or other techniques (such as audio recordings);
- Any written determination by the President or the head of the agency to which the advisory committee reports, pursuant to section 10(d), to close a meeting or any portion of a meeting and the reasons for such determination;
- Notices of future meetings of the committee; and
- Any additional information considered relevant by the head of the agency to which the advisory committee reports.
The bill also details what information would be required in a FACA committee charter.
The Administrative Conference of the United States and FACA
On December 9, 2011, the Administrative Conference of the United States65 adopted recommendations that it believes would improve FACA.66 Some of the 11 recommendations are similar or identical to the reforms included in H.R. 3124, including a requirement that agencies invite public comment on potential members of a committee prior to member selection, that members' ethics requirements be made explicit prior to committee service, and that any waivers issued to members related to conflict-of-interest requirements be placed on the committee's website. Among other suggestions were removing the cap on the number of FACA committees agencies can create; webcasting meetings when not cost-prohibitive; posting relevant documents online prior to meetings; and requiring statutes that create FACA committees to include details on their mission, duration, membership balance, and budget.
Analysis
Congress has continued to use FACA as a way to gain greater control and oversight of committees created by the President or executive branch agency heads. FACA, however, can also be used to generate increased transparency and enforce consistent recordkeeping among all advisory committees—whether they are created by the legislative or the executive branch.
Clarifying Whether a Committee Is a FACA Committee
Despite FACA's public notice, public access, and other reporting requirements, some parts of the act remain unclear. Whether an advisory committee should adhere to FACA, for example, is often open to legal interpretation. Congress may choose to enact legislation that would more clearly define which advisory bodies are subject to FACA.
The applicability of FACA is most clear when the President or an agency head created a committee. If such a body performed only advisory duties, included at least one member who is not a federal employee, and reported its findings to either an executive branch agency or the President, FACA will, most likely, apply. If, however, that same committee was created by statute and reported to both Congress and the President, its FACA status would be less certain.
FACA was primarily created to provide the public and Congress greater access to the operations of certain, qualifying federal advisory committees. Congress may choose to pass legislation that would require all advisory committees to adhere to FACA statutes. Such an action could curb Congress's ability to create committees that have the flexibilities to act more quickly than a FACA committee—because non-FACA entities would not need to comply with all of the act's reporting and transparency requirements.
The 112th Congress could clarify whether any committees created by or reporting to Congress should be considered FACA committees, making it more clear to committees whether they must follow FACA's requirements. Additionally, Members of Congress could place certain desired FACA elements within a committee's statutory authority to tailor an advisory committee to the desired amounts of both flexibility and oversight. If Congress were to enact legislation exempting congressionally-created committees from FACA, concerns about transparency in government may arise. Congress may choose not to enact legislation, which would leave the FACA status of some advisory committees uncertain. This uncertainty could culminate in legal challenges.
Clarifying Ethics Requirements for Members
Congress may also choose to clarify whether federal advisory committee members must abide by ethics requirements that are placed on federal employees. Under current GSA regulations, "agency heads are responsible for ensuring that the interests and affiliations of advisory committee members are reviewed for conformance with applicable conflict of interest statutes and other Federal ethics rules."67 As noted earlier in this report, not all committee members must adhere to federal ethics codes, according to the Code of Federal Regulations.68 If a committee member is designated as a special government employee, under 18 U.S.C. §202(a), then he or she is subject to federal ethics regulations. If, however, the employee is deemed a "representative," federal ethics codes may not apply. Congress may choose to clarify whether FACA members are to adhere to federal ethics regulations. H.R. 3124 would require that committee members be explicitly designated as government employees or representatives prior to beginning service on an advisory committee. Such legislative language may increase trust in advisory bodies and prevent claims of bias or improper action. Congress, however, may determine that FACA already requires such member designations, and agencies that do not clearly and appropriately assign these designations to committee members is violating the act. Congress may determine that the language in H.R. 3124, therefore, would be unnecessary or redundant.
Requiring Public Participation in Committee Membership Selection
Congress may also have an interest in making the process for selecting FACA committee members more transparent and participatory. H.R. 3124 would require agencies to publish a request for comments in the Federal Register prior to making membership appointments seeking comments on possible potential members. Agencies then would be required to "consider" the comments when making appointments. Additionally, the Administrative Conference of the United States recommended that agencies "invite public nominations for potential committee members."69 Congress may consider requiring public comment on membership appointments to advisory committees. Such action may inject FACA committees with the ideas and opinions of new and creative members. Such a requirement, though, could slow down the process of standing up a federal advisory committee. For example, it may take considerable time to publish a solicitation for comment in the Federal Register. Then agencies would have to provide a comment period, review the comments, and determine a way to demonstrate consideration of the comments received.
Considerations When Creating a FACA Committee
Among the considerations pertinent to the creation of an advisory committee and to its composition, operation, and effectiveness are the following: defining the committee's purpose, establishing committee membership, defining committee duties, setting the committee's powers, allocating proper support staff and office space, and mandating the committee's reporting requirements.
Establishment and Mandate
Each committee must be given both a name and certain duties to fulfill. In many committee charters, the entity is introduced by name and then a brief statement of mission is offered. The charter's language may include highlights of agency, presidential, or congressional findings that prompted the committee's creation—but such findings are not required. The charter must identify the authority for the establishment of the committee, including any statutes or other executive branch documents that authorized or required its creation. Advisory committees can be authorized by statute, required by statute, created by executive order, or created by agency authority. The President's Board of Advisors on Historically Black Colleges and Universities, for example, was originally authorized by E.O. 13256 of February 12, 2002. Most recently, on February 26, 2010, Executive Order 13532 renewed the board through December 31, 2012. E.O. 13532 also explicitly rescinded E.O. 13256.70 In contrast, the Air Traffic Procedures Advisory Committee was created by agency authority. Its powers and mission are detailed in its charter, which is available in the FACA Database.71
Once committee authority is established, the charter often includes a section on "duties" and "function" specifying the committee's mandate or responsibilities. The Forestry Research Advisory Council within the Department of Agriculture, for example, has its duties delineated as "advisory."
The Council shall provide reports to the Secretary of Agriculture, on regional and national planning and coordination of forestry research within the Federal and State agencies, forestry schools, and the forest industries.72
A committee's powers and objectives are best stated in specific terms to guide the panel's members and staff in carrying out their responsibilities. Charters should authorize enough autonomy to ensure that the advisory body operates independently of its host agency as well as the authority that created it. The assigned objectives should be realistically achieved within the time constraints placed on the committee. The committee will also need time to acquire staff, find suitable office space, and address other logistical concerns. Upon completion of these objectives, the committee will need additional time to create a final report, file any required records, and vacate the office space.
Membership
There are few restrictions on the membership of FACA committees. As noted earlier in this report, all FACA committees must have at least one member who is not a "full-time, or permanent part-time" officer or employee of the federal government.73 Membership must also "be fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee."74 Federal ethics statutes and regulations also may affect committee membership.75
When designing an advisory committee, however, the entity should be designed to ensure completion of the intended mission. The size of the committee should be small enough to allow all members a chance to communicate their expertise and opinion, but large enough to maintain a quorum even when members are absent. Size and member appointment, therefore, will largely depend on the committee's functions and mandate. Members are often appointed on a staggered schedule to ensure that there are always a few continuing committee members serving at any given time. Some committees are designed to include specific members of the federal government or their designees. For example, the 15 committee members written into the charter of the U.S. Military Academy Board of Visitors are
- the chairperson of the Committee on Armed Services of the Senate, or designee;
- three other members of the Senate designated by the Vice President or the President pro tempore of the Senate, two of whom are members of the Senate Committee on Appropriations;
- the chairperson of the Committee on Armed Services of the House of Representatives, or designee;
- four other members of the House of Representatives designated by the Speaker of the House of Representatives, two of whom are members of the House Committee on Appropriations; and
- six persons designated by the President.
Other committee charters contain specific language in their charters that describe certain qualifications or expertise required for membership. The Exxon Valdez Oil Spill Public Advisory Committee Charter, for example, created a 15-member committee to be filled by members with the following areas of expertise or qualifications:
- aquaculturist/mariculturist (e.g., fish hatcheries and oyster/shellfish farming);
- commercial fisher (e.g., commercial fishing for salmon, halibut, herring, shellfish and bottom fish; including boat captains and crews, cannery owners/operators, and fish buyers);
- commercial tourism business person (e.g., promoting or providing commercial travel or recreational opportunities, including charter boating, guiding services, visitor associations, boat/kayak rental);
- recreation user (e.g., recreation activities that occur within the area, including kayaking, power boating, sailing, sightseeing);
- conservationist/environmentalist (e.g., organizations interested in the wise use and protection of natural resources);
- local government (e.g., incorporated cities and boroughs in the affected area);
- Native landowner (e.g., regional or village corporations in the affected area established by the Alaska Native Claims Settlement Act);
- tribal government (e.g., federally recognized tribes in the affected area);
- scientist/technologist (e.g., organizations, institutions, and individuals involved in, or with expertise in, scientific and research aspects of the affected area/resources and/or the effects of the oil spill and/or the technical application of scientific information);
- sport hunter/fisher (e.g., hunting and/or fishing for pleasure);
- subsistence user (e.g., customary and traditional use of wild renewable resources for direct personal or family consumption as food, shelter, fuel, clothing, tools, or transportation; for the making and selling of handicraft articles; and for customary trade);
- regional monitoring program operator (e.g., monitoring and reporting on environmental conditions in the affected area, including monitoring for pollution and the status of biological resources);
- marine transportation operator (e.g., transport of goods and services in marine waters, including piloting, tug operations, barge operations, oil tankers and pipelines, shipping companies); and
- public-at-large (e.g., representing the affected area of the oil spill and its people, resources, and/or economics).76
Still other charters include membership positions for Members of Congress, the President, or agency heads to appoint. By granting appointment powers to a variety of federal institutions and to those with a variety of viewpoints, a committee can gain a widespread base of support. With a varied membership, however, the entity that created the committee may lose some control over the actions or direction of the advisory body because the members may not reflect the desired ends of Congress, the President, or an agency head. A multifarious membership may also make the final report more difficult to create because there may be little agreement on what recommendations or advice should be given.
Compensation and Travel
Advisory panel members who are not employees or officers of the federal government may or may not receive compensation for their work on a committee. The authority that designs the committee also determines whether committee members are to receive pay, and—if they are paid—their pay level. Neither committee members nor staff may be paid more than the equivalent of Executive Level IV ($155,500 for 2011). Committee members and staff may also be paid for travel expenses as well as a per diem.77
Committee Staff
Advisory committee staff must be assembled quickly if the entity is to complete its mission in the time allotted. Generally speaking, most committees include an executive director, staff members, committee members, and—occasionally—outside consultants.78 While committee staff may draft most of what will become a committee's final report, committee members approve the final product.
Committee Reports
In addition to a final report, some committees may be required to make interim or annual reports to the President, Congress, or department heads. These reports are often listed in the "duties" section of a committee's charter. A committee's recommendations are strictly advisory and cannot make policy action by recipients of the report.
In the case of a presidential advisory committee,79 however, the President must submit to Congress—within a year of receiving a committee's final report—any actions he will take on the recommendations. If the President does not make policy changes resulting from the recommendations, he must explain his inaction.80
A statute that creates a FACA committee can include instructions for the entities that receive a final report. For example, a statute can require the President to send a report to Congress with policy suggestions that are based on the committee's recommendations. The effort the President might put into creation of that report, however, may largely correspond to the administration's interest in the committee and its findings. If the President is not particularly interested in the committee's issues or mission, he may not place much effort into a required report to Congress. He also may not give much attention to the advisory body's recommendations overall.
Committee Powers
Explicit authority may be needed to accomplish certain special duties for which an advisory body may be responsible. Many committees are granted authority to hold hearings, take testimony, receive evidence, use the franking privilege,81 accept certain donations, and permit volunteers to work on the staff. Vesting a committee with subpoena power, however, is done on a very selective basis—and is largely dependent upon the mission of the panel. A document search of the FACA Database found no current advisory committee charters that provide subpoena powers. One charter, however, explicitly denied the entity such authority.82
Bylaws and Procedures
Specific procedural requirements—like quorum qualifications—can often be found in committee charters. Other bylaws, including election procedures to determine a chairperson, to tally committee votes, to fill membership vacancies, and to produce reports may be included in the charter. Committee procedures may be included in the legislation that creates an advisory body. If committee procedures are provided by statute, Congress may have greater control over the body's operations, procedures, and outcomes. Conversely, if procedures are in statute, the advisory body may not have the autonomy to conduct meetings that provide for optimal opportunity to share candid advice and present new ideas.
Unless an advisory committee charter states otherwise, the General Services Administration's designated federal officer83 is responsible for approving or calling the meeting of the committee, approving the committee agenda (except for presidential advisory committees), adjourning meetings when it is determined to be in the public interest, and certifying minutes.84
Funding
Congress may directly fund a committee through the appropriations process, or it may carve out funding within an agency's annual appropriation. If a federal advisory body is not explicitly prohibited from doing so, it may also be funded through private donations. A committee charter may include a determination as to whether an entity may accept such private financial gifts. If a committee is permitted to accept donations or other, in kind, gifts, the authority that created the advisory body may require detailed recordkeeping of such donations in order to maintain transparency and to avoid the perception of undue influence.
Committee Termination
Unless statutorily mandated or otherwise extended by the President or a federal officer,85 an advisory committee will automatically terminate, pursuant to FACA, two years after its establishment. Consequently, most advisory committees must be rechartered with GSA every two years. Most national study committees created by statute are mandated to terminate 30 days after the submission of the final report, giving staff time to prepare the office for closing.
Appendix.
The Legislative and Executive Branch Background to FACA
Enactment of FACA occurred over many decades and included debates and hearings in many congressional sessions as well as actions by the executive branch. This Appendix provides details on both legislative branch and executive branch actions that culminated in enactment of FACA.
The Department of Justice
In the 1940s and 1950s private sector industries began creating advisory committees that attempted to influence federal government operations. In the 1950s, some of these entities were created under official auspices, using guidelines formulated by the Department of Justice (DOJ) in 1950.86 These entities operated without explicit legislative or executive branch authority, but attempted to affect federal policies and practices. Government officials—including both the legislative and executive branches—as well as members of the general public grew concerned that these ad hoc committees were overstepping their authority.
At various points within that era, DOJ released legal opinions on the creation, structure, and oversight of advisory committees. A 1944 statement by then-Attorney General Francis Biddle, for example, outlined limits to private industry's ability to form advisory committees that offered unsolicited policy advice to the government. According to Biddle's statement, "the responsibility for the formation of an industry committee to advise any particular department of the government is the responsibility of that department."87
A 1955 opinion released from the Office of the Deputy Attorney General created a five-pronged collection of guidelines for the creation of a valid federal advisory committee. They were as follows:
- 1. There must be either statutory authority for the use of such a committee, or an administrative finding that use of such a committee is necessary in order to perform certain statutory duties.
- 2. The committee's agenda must be initiated and formulated by the government.
- 3. Meetings must be called and chaired by full-time government officials.
- 4. Complete minutes must be kept of each meeting.
- 5. The committee must be purely advisory, with government officials determining the actions to be taken on the committee's recommendations.88
Congressional Action
On January 22, 1957, Representative Dante Fascell introduced a bill that would have made DOJ's five advisory committee requirements law (H.R. 3378; 85th Congress). 89 The bill included language noting "an increasing tendency among Government departments and agencies to utilize the services of experts and consultants as advisory committees or other consultative groups," but warned that "protection of the public interest requires that the activities of such committees and groups be made subject to certain uniform requirements."90
In addition to making the five DOJ standards law, the bill would have required the President to submit to Congress an annual report "detailing the membership of each advisory committee used by each Federal department of agency; the function of each such committee; and the extent to which the operations of the committees have complied with the Standards provided in this Act."91 The bill, as amended, passed the House on July 10, 1957. The bill was sent to the Senate and referred to the Government Operations Committee. No further action was taken.
The President and the Executive Branch
In 1962, President John F. Kennedy issued an executive order (E.O. 11007) that reinforced the DOJ advisory committee requirements.92 The executive order defined an advisory committee as
any committee, board, commission, council, conference, panel, task force, or other similar group ... that is formed by a department or agency of the Government in the interest of obtaining advice or recommendations ... that is not composed wholly of officers or employees of the Government.93
E.O. 11007 also limited the lifespan of all federal advisory committees to "two years from the date of its formation" unless special actions were taken by an agency or department head to continue the committee.
On March 2, 1964, the Bureau of the Budget issued Circular No. A-63, which laid out the executive branch's policies for creating, maintaining, and terminating advisory committees. The circular included guidelines that discouraged dual chairmanships, required annual status reports to the Bureau of the Budget, and compelled all advisory entities not created by statute to be called committees—not commissions, councils, or boards. Throughout the early 1960s and early 1970s, while Congress was holding hearings to determine effective ways to gain oversight and control over advisory committees, executive branch representatives maintained that legislation was unnecessary and used Circular No. A-63 as evidence of systematic oversight of advisory committees.
On June 5, 1972, just months prior to congressional passage of the Federal Advisory Committee Act, President Richard M. Nixon issued Executive Order 11671, which delineated new operating, transparency, and oversight standards for advisory entities. The order incorporated many of the elements within the bill that was to become FACA, including vesting the Office of Management and Budget (OMB—formerly the Bureau of the Budget) with oversight responsibilities for committee management.94
Congressional Reaction
Congress held a series of hearings to examine the executive branch's use of federal advisory committees throughout the late 1960s and early 1970s. During an introduction to one of the hearings, the Senate Committee on Government Operations' Subcommittee on Intergovernmental Relations Chairman Edmund S. Muskie stated that Congress was using the hearings to examine "two fundamentals, disclosure and counsel, the rights of people to find out what is going on and, if they want, to do something about it."95 More than 30 witnesses testified before the Senate Subcommittee on Intergovernmental Relations over 12 days of hearings—from June 10 through June 22, 1971.96 As a result of the hearings, some Members concluded that advisory committees were "a useful means of furnishing expert advice, ideas and recommendations as to policy alternatives" but "there [were] numerous such advisory bodies that are duplicative, ineffective and costly, and many which have outlived their usefulness, and that neither the Federal agencies, the Executive Office of the President, nor the Congress, have developed any effective mechanisms for evaluating."97
In December 1970, the House Committee on Government Operations' Special Studies Subcommittee issued a comprehensive report titled "Role and Effectiveness of Federal Advisory Committees," which compiled research and information gathered from federal agencies from 1969 through 1970.98 The studies included policy recommendations for advisory bodies. On February 2, 1971, Representative John Mongan introduced the Federal Advisory Committee Standards Act (H.R. 4383; 92nd Congress), which incorporated many of the study's recommendations.
The bill addressed the responsibilities of Congress, the director of OMB, the President, and agency heads to control and maintain federal advisory bodies. For example, congressional committees with legislative jurisdiction over particular issues were to review all advisory bodies related to that topic. The congressional committees were then to eliminate any statutorily created advisory bodies they believed were duplicative, clarify advisory body missions, and ensure that adequate staff and resources were assigned to advisory bodies under their jurisdiction. Additionally, the congressional committees were to make certain the ad hoc advisory committees had "a date established for termination and for submission of the committee report."99 The director of OMB was to conduct a "comprehensive review" of duplicative advisory bodies and recommend to the relevant authority whether they should be eliminated or merged into existing advisory entities. The director was to work with Congress and agency heads to "provide advice, assistance, guidance, and leadership to advisory committees."100
In the Senate, Senator William V. Roth, Jr., and others, introduced a similar bill (S. 1964)101 "to authorize the Office of Management and Budget to establish a system of governing the creation and operation of advisory committees throughout the Federal Government."102 During introductory remarks on the Senate Floor on May 26, 1971, Senator Roth acknowledged a lack of congressional oversight of the more than 2,600 such advisory entities operating in the federal government.
Advisory committees have contributed substantially to the effectiveness of the Federal Government in the past. But as the function of Government has become more complex and the decisions more difficult, numerous advisory committee have sprung up to advise the President and other decision-makers in the Federal Agencies and the Congress. Over 2,600 interagency and advisory committees exist today and it is possible that this figure could be as high as 3,200.
In spite of the large number of advisory committees and their participation in the process of government, Congress has neglected to provide adequate controls to supervise their growth and activity. As a result, the use of committees or advisory groups has come under strong attack in the press and other media as wastes of time, money, and energy. The creation of another committee is often viewed by the public as another indication of inefficiency and indecisiveness in Government.103
S. 1964 was referred to the Senate Committee on Government Operations. No further action was taken on the bill.
On May 9, 1972, Members of the House voted overwhelmingly (357 to 9) to approve H.R. 4383, with several amendments, including the addition of "openness provisions" that required public notice of advisory body meetings and public access to advisory body files under the Freedom of Information Act (5 U.S.C. §552). The bill was then sent to the Senate.
S. 3529, introduced on April 25, 1972, merged the goals of a number of pending advisory committee bills. According to the Senate report that accompanied the bill, S. 3529 aimed to make advisory committees less redundant and more accessible.
The purpose of S. 3529 is to: strengthen the authority of Congress and the executive branch to limit the use of Federal advisory committees to those that are necessary and serve an essential purpose; provide uniform standards for the creation, operation, and management of such committees; provide that the Congress and the public are kept fully and currently informed as to the number, purposes, membership, and costs of advisory committees, including their accomplishments; and assure that Federal advisory committees shall be advisory only.104
Within the Senate, debate on advisory committees centered on whether to make public participation and transparency of meetings and recordkeeping mandatory. S. 3529 required facilitating public information requests by making committee records subject to the Freedom of Information Act (FOIA). The bill, however, did not include explicit requirements for committee membership or participation. When the bill came up for vote on the Senate floor, an amendment was added exempting committees that furnish "advice or recommendations only with respect to national security or intelligence matters" from reporting requirements.105 Another amendment exempting the Federal Reserve Advisory Council was also added to the bill. S. 3529 passed the Senate by voice vote on September 12, 1972.106 The Senate then struck all the House language of H.R. 4383 and replaced it with that of S. 3529. The Senate then passed H.R. 4383 as amended.
A conference report that reconciled differences between the House and Senate versions of H.R. 4383 was published on September 18, 1972. The final bill included reporting requirements for advisory committees planning to hold meetings, and ensured public inspection of advisory committee materials would be possible. The conference report was adopted by the Senate on September 19, 1972, and by the House on September 20. President Nixon signed the Federal Advisory Committee Act into law (P.L. 92-463) on October 6, 1972. Following the signing of FACA, then-President Nixon rescinded E.O. 11671, which previously had been the primary document guiding the creation and operation of federal advisory bodies.107
Legislative and Executive Branch Efforts After FACA's Enactment
In the years since FACA's enactment, congressional oversight hearings have resulted in legislative and executive branch attempts to clarify the statute or streamline the number of FACA committees. One substantial amendment to FACA was the 1977 Federal Advisory Committee Act, which incorporated the Sunshine Act (P.L. 94-409) into the law.108 The Sunshine Act is specifically designed to make government agency meetings more publicly accessible and transparent. Another significant change in FACA's administration came in December 1977 when Executive Order 12024 transferred advisory committee oversight duties from the Director of OMB to the Administrator of General Services.109 Additional executive orders have been issued since the law's inception; many of them abolished particular federal advisory committees or lengthened the lifespan of others.110
From 1983 through 1989, legislation was introduced in Congress to strengthen FACA's management controls, as well as to establish new ethical, financial, and conflict-of-interest disclosure requirements for committee members.111 None of these bills were enacted.
On February 10, 1993, President William J. Clinton issued Executive Order 12838, which required each executive department to "terminate not less than one-third of the advisory committees subject to FACA (and not required by statute) ... by the end of fiscal year 1993."112 Agency heads were required to review all advisory committees under their jurisdictions and eliminate them or justify in writing why they were necessary to continue. Committees would need approval from the OMB director to continue operation. The following year, as part of the National Performance Review, Vice President Albert Gore issued a memorandum requiring all agencies to reduce advisory committee costs by 5%. The memorandum also stated that President Clinton would not support legislation that established a new advisory committee or exempted an advisory committee from FACA.113
On October 5, 1994, Alice M. Rivlin, then-acting director of OMB, released a circular detailing management policies for remaining FACA committees.114 The circular reinforced the Clinton Administration's decision to reduce the number of advisory committees and cut costs. It also laid out the criteria GSA was to use when evaluating the utility of existing advisory bodies, and it required GSA to create a variety of operating and reporting guidelines for advisory committees.
In 1995, two FACA-related laws were enacted. The first exempted intergovernmental advisory actions—official advisory efforts between federal officers and officers of state, local, or tribal governments—from FACA (P.L. 104-4). The second was a law that eliminated GSA's annual reporting requirements to Congress (P.L. 104-66). Pursuant to the law, GSA stopped creating its Annual Report to Congress in 1998, but GSA officials continue to collect and examine data on FACA committees and publish it in the Annual Comprehensive Review, an additional oversight document required by FACA. The Review is used to determine whether advisory bodies are executing their missions and adhering to statutes, or whether they are in need of revision or abolition.115
The Federal Advisory Committee Act Amendments of 1997 (P.L. 105-153) further provided for public comment of committee membership and public attendance at committee meetings for advisory bodies that existed within the National Academy of the Sciences or the National Academy of Public Administration.