On Friday, President Obama issued a memo directing the heads of executive departments and agencies not to appoint any new registered lobbyists to federal advisory committees, boards, and commissions.
The memo formalizes previous guidance in which the administration expressed its “aspiration” that lobbyists not serve on federal advisory committees, which have been called the “fifth arm of government” for the influential role they play in advising agencies, Congress, and the President on everything ranging from nuclear energy to oil and gas royalties. It also follows the spirit of previous rules issued by the administration, including its revolving door ban for lobbyists entering and leaving the government, and rules designed to limit the influence of lobbyists and outside parties on stimulus spending and bailout investments.
The White House blog states that registered lobbyists currently serving on advisory committees would be allowed to finish their term, but they can’t be reappointed once their term ends, and no new lobbyists can be appointed.
Not surprisingly, lobbyists have been fighting tooth and nail to keep their place at the table on advisory committees. Shortly after the White House first blogged about its new policy last year, a group of lobbyists serving as the chairs of the Industry Trade Advisory Committees wrote a letter protesting the administration’s proposal, arguing that a ban on lobbyists would “result in a policy making process that is less transparent and devoid of much of the expertise that US Government negotiators need to achieve a balanced trade agenda.”
Yet there’s reason to believe that industry will still have a strong presence on advisory committees, even without federally registered lobbyists. The federal advisory system is actually designed to incorporate the viewpoint of industry and other outside stakeholders. In contrast to special government employees (SGEs)—who are supposed to provide committees with their expertise on a certain topic, and are reviewed for potential conflicts of interest—representative members are expected to represent a known bias, such as that of industry. The Government Accountability Office (GAO) makes this point in its 2004 report on federal advisory committees:
Representative members and special government employees are supposed to serve different functions on advisory committees....Special government employees are appointed to federal advisory committees to provide advice on behalf of the government on the basis of their best judgment. Representative members, in contrast, are generally considered as those members of advisory committees who are “chosen for committee membership only to present the views of a private interest.”
In other words, there will still be plenty of opportunities for committees to benefit from industry’s expertise. The White House also argued that “phasing out those who simultaneously serve as lobbyists will have the added benefit of opening these boards up to fresh faces and engaging more Americans in our governing process.”
At the same time, some good government groups have raised concerns that the administration’s restrictions will simply result in lobbyists de-registering and serving on advisory boards in other capacities. This will almost certainly be one result of the administration’s new rule. But if anything, this provides a stronger argument for more complete and consistent disclosure of the financial interests and conflicts of interest for all committee members. Committees should also be more transparent in describing the specific criteria used to select and designate members.
There have also been concerns that the rule would bar lobbyists representing public interest groups from serving on advisory boards. However, there’s nothing preventing the administration from instituting a waiver process if there’s a compelling reason to allow a lobbyist to serve. The administration has already issued several waivers to its ethics pledge (William Lynn, anyone?), and it could surely do the same in select cases to allow public interest lobbyists to serve on advisory committees. In the case of advisory committees, all waivers and recusals would need to be disclosed and explained to the public so that outside stakeholders have a way to examine the balance of interests being represented.
All in all, we applaud the administration for taking decisive action to limit the pervasive role of industry in the federal advisory system. But additional reforms would go a long way toward making advisory committees more transparent, ethical, and accountable.
For example, the General Services Administration (GSA) and the Office of Government Ethics (OGE) both have important roles to play in issuing guidance on forming and managing advisory committees, and developing regulations for conflict-of-interest provisions that apply to committee members. These agencies need to do a better of job of issuing and enforcing formal standards for achieving balance on committees, collecting all relevant information on conflicts of interest, assigning the appropriate designation to committee members, etc.
In addition, Congress is currently considering legislation (H.R. 1320) introduced by Rep. Lacy Clay (D-MO) and House Oversight and Government Reform Committee Chairman Edolphus Towns (D-NY) to amend the Federal Advisory Committee Act (FACA) in several important ways, including: 1) requiring that committee appointments be made without regard to political affiliation; 2) prohibiting agencies from appointing members with relevant conflicts of interest, unless there’s a compelling need for a certain individual to serve; 3) requiring OGE and GSA to issue enhanced regulations on documenting and disclosing conflicts of interest; 4) preventing attempts to circumvent FACA through informal committee proceedings; and 5) requiring agencies to disclose more information on committee members’ conflicts of interest, to be more transparent about the process for selecting members with respect to balance, and to make more committee resources and documents available to the public. This is a vital piece of legislation, and we urge Congress to make it a top priority moving forward.
Stay tuned, as POGO will also be issuing its own recommendations on the administration’s proposed rule.