Forty years ago, Congress passed a law to make government agencies more accountable and transparent in how they sought advice from industry and the public. It was called the Federal Advisory Committee Act. But over the years, the way the law was implemented led to less citizen involvement and reluctance by agencies from seeking advice.
Fast-forward to 2012, where there’s an Administration promoting Open Government and citizen engagement via the internet and social media. The old law, affectionately called FACA by government insiders, is still in force and increasingly irrelevant as agencies look for ways around its strictures to seek citizen and expert input. But the original goals of the law are still very much a priority – to promote citizen participation and transparency, to ensure objectivity in advice to federal agencies and limit the influence of special interests, and to ensure efficiency in the use of resources by periodically reviewing committees to ensure they serve a useful purpose.
The Administrative Conference of the U.S. (ironically, a FACA committee itself!) took steps last month to begin bringing FACA into the 21st century. It sponsored research that surveyed the historical evolution of the implementation of the Act, surveyed some of the stakeholders involved in the Act’s implementation, and identified best practices in place in a number of agencies.
Tension Among the Goals of FACA. The tensions between the various goals of the Act were brought to light as a result of the research. For example, a symbolic Clinton-era executive order cut and capped the number of advisory committees. This directive focused on streamlining bureaucracy and gave great weight to the goal of efficiency, but reduced the opportunity for citizen and expert participation. The research noted that today there are 469 FACA committees created administratively and another 604 mandated by law or the president – a total of 1,071, with about 40,000 members.
An emphasis on efficiency might have been an appropriate goal in the past to limit what might have been seen as expensive, outdated committees. However, when viewed from today’s perspective, there is a greater emphasis on engaging the public in their government and technology can be used to efficiently streamline the administrative and transparency demands of a committee. There is also concern about the objectivity and openness of panels. For example, President Obama banned registered lobbyists from serving, and Congress is considering legislation to limit the ability of agencies to seek other means of gaining advice and to increase transparency of committee proceedings.
Research Results. The ACUS report found, not surprisingly, three sets of problems: “(1) procedural burdens that inhibit the effective using of advisory committees without substantially furthering the policies of the Act; (2) confusion about the scope of the statute that might discourage agencies from using committees or induce them to engage in ‘work-arounds’ to avoid triggering its requirements; and (3) agency practices that either undermine or fail to fully promote the transparency and objectivity of the advisory committee process.”
As a result, agencies felt that they had to develop strong cases for why they needed an advisory committee before they sought permission from General Services Administration (GSA) to create one, so they typically avoided creating one or tried to find ways around the requirements. In practice, it often took at least a year to create an advisory committee, with much of that delay at the agency level. GSA is responsible for administering a cap on the number of committees, so it apportioned the number of committees that could be formed among agencies, and agencies oftentimes did not want to seek permission for more.
So in general, there were few incentives and many barriers to seeking public and expert advice by government agencies. While technical panels exist, for example to provides statistical advice to the Census or medical advice on AIDS, there are few panels for citizens to contribute insights at the grassroots level, such as in national parks or veterans hospitals.
Recommendations. ACUS made a series of recommendations to address the problems uncovered in its research report, and which provide a new beginning to re-think how public input could be sought and used, including:
- Congress should amend FACA, and GSA should amend its regulations, to “eliminate any requirement that agencies consult with the Administrator of GSA prior to forming or renewing an advisory committee. . . “
- “The President and the Office of Management and Budget should eliminate the cap on the number of discretionary advisory committees established by Executive Order 12,838 and Circular A-135.”
- GSA should clarify that agencies “may host virtual meetings that can occur electronically in writing over the course of days, weeks or months on a moderated, publicly accessible web forum.”
- “Agencies should provide live webcasts of open committee meetings and/or post recordings following such meetings unless costs are prohibitive.”
- “Upon creation of a new advisory committee, agencies should . . . invite nominations for potential committee members, from the public, from expert communities with experience in the subject matter of the committee’s assignment, and/or from groups especially likely to be affected by the committee’s work.”
So while the recommendations don’t call for a clean slate, they do challenge the White House and Congress to re-visit the existing law and how it is implemented. Who knows, maybe we’ll see a move from 1,000 committees with 40,000 members to 10,000 committees with 400,000 members! But would that be seen as creating a more connected citizenry or a more bloated government? Like the 40 year history of FACA shows, that will be a value judgment to be sorted out by the White House and Congress. Nevertheless, as ACUS demonstrates through its recommendations, it is a conversation worth having.
Graphic Credit: Department of Commerce
It’s encouraging to see some thought being put into FACA as we move into an age of more open government. I’d be interested in whether existing FACA rules have tended to lead agencies to seek alternative ways of engaging stakeholders or to avoid it altogether.
Hi Steve — Informal surveys of agencies suggest they’ve sought alternative ways to seek advice, or just turned to other federal agencies to get it. In fact, the legislation pending in Congress is an effort to close down some of the alternative ways, which are seen as loopholes. So the effect of the pending legislation would be to make it harder for agencies to seek advice, not easier, as the Administrative Conference proposes. ACUS thinks that if it was easier for agencies to seek advice, and the advice-giving was more transparency (e.g., video-streaming of meetings), then there would be less incentive for agencies to try to circumvent the law.
Hello John, The discussion is much needed. Some of my experiences with seeking advice from public/private parties with interests in a particular regulation have turned out mostly those who can benefit/lose directly by a change in a regulation. It would be nice to be able to get more “average” taxpayers/consumers involved in the discussion. Considering many of the long term impacts (mortgage crisis, food safety, safe water/air, for example), the public needs a voice at these tables. Any strategies for getting those voices solidly in the mix?
Hi Denise! Once the White House repeals the cap on FACA committees, and once Congress devolves authority for creation of FACA committees to agencies, away from GSA, then agencies will have a lot more latitude for action. When this happens, then groups that promote citizen engagement, such as AmericaSpeaks and NCDD, can catalyze the outreach needed to engage citizens at the grassroots. I think you’re right, there’s a hunger to participate, but no easy path for making it happen.