By MICHAEL SMALLBERG
The House Oversight and Government Reform Committee passed an important piece of legislation today that seeks to make federal advisory committees more transparent and accountable. POGO and other good government groups sent a letter to the Committee yesterday calling for passage of the "Federal Advisory Committee Act Amendments of 2011" (H.R. 3124), introduced by Representative Wm. Lacy Clay (D-MO) and Ranking Member Elijah Cummings (D-MD) along with several co-sponsors.
There are currently over 1,000 advisory committees that provide the government with guidance on critical policy issues ranging from the BP oil disaster to the approval of drugs and devices. The Federal Advisory Committee Act (FACA), passed in 1972, is designed to ensure that these committees operate in the open with opportunities for public input.
In recent years, however, agencies and committees have found ways to evade FACA’s disclosure requirements. For instance, the D.C. Circuit has ruled that FACA generally does not apply to committees that are organized and managed by private contractors, non-voting de facto committee members, and subcommittees; agencies have made appointments to advisory committees based on political and ideological factors and have failed to properly designate certain committee members as special government employees (SGEs) subject to conflict-of-interest rules; committees have been dominated by members representing special interests and members have neglected to disclose potential conflicts; and there has been significant variation in the disclosure of committee records.
H.R. 3124—which is nearly identical to legislation that passed the House with overwhelming support in the previous Congress—includes a host of sensible reforms to close these loopholes and ensure that committees are operating under a 21st-century disclosure regime. Specifically, the legislation would:
- Eliminate political litmus tests for potential members;
- Provide a mechanism for the public to nominate or comment on potential members;
- Clarify the distinction between SGEs and stakeholder representatives, prohibiting agencies from designating members as representatives in order to avoid federal ethics rules, and require greater oversight of designations by agency officials and the Office of Government Ethics (OGE);
- Close the loopholes for de facto members, subcommittees, and committees created under contract;
- Require agencies to publicly disclose committee records such as charters, plans for appointing members and achieving balance, lists of SGEs and representatives, conflict-of-interest waivers, recusal statements, detailed minutes of meetings, descriptions of the committee’s efforts to use technology to provide public access to meetings, written determinations to keep meetings closed, and notices of future meetings; and
- Require additional information to be included in committee charters.
POGO strongly supports these measures, which would go a long way toward making federal advisory committees more transparent and accountable. We commend Committee Chairman Darrell Issa (R-CA), Ranking Member Cummings (D-MD), and other Members for reaching bipartisan agreement on the need to enhance public oversight of these committees.
At the same time, we believe Congress could strengthen the legislation by requiring agencies to provide audio/video recordings of open committee meetings (as some already do). We understand that agencies have raised concerns about the potential cost of providing these recordings. In light of these concerns, we believe the General Services Administration (GSA) should provide agencies with guidance on affordable options for providing live webcasts, asynchronous virtual meetings, audio/video recordings, and transcripts, which will ensure that the public has unfiltered access to committee proceedings in their entirety. We hope this requirement is added to the final legislation.
Speaking of advisory committees, the Office of Management and Budget (OMB) released final guidance last week on a memorandum issued by President Obama calling on agencies to remove federally registered lobbyists from committees. Meanwhile, the Administrative Conference of the United States (ACUS) is formulating its own recommendations for improving public access to committees, focusing on issues such as public nominations, committee balance, and disclosure of committee records.
All told, these reforms will hopefully shed additional light on the important work of advisory committees and their members. We urge Congress to pass H.R. 3124 without delay.
Michael Smallberg is a POGO Investigator.