Fixing FACA: the case for exempting presidential advisory committees from judicial review under the Federal Advisory Committee Act.

• Jurisdiction: United States
• Author: Mongan, Michael J.
• Date: 01 December 2005

INTRODUCTION I. THE BIRTH OF FACA II. THE PROBLEM A. Public Citizen v. United States Department of Justice and Its Progeny B. In re Cheney C. Ass'n of American Physicians & Surgeons, Inc. v. Clinton D. Northwest Forest Resource Council v. Espy III. MODELS FOR REFORM A. FOIA Model B. Presidential Records Act Model IV. THE FACA SOLUTION CONCLUSION INTRODUCTION

The D.C. Circuit's In re Cheney (1) decision, announced this May, was popularly viewed as the capstone on a bitter, five-year political catfight over government secrecy and the Bush Administration's energy policy. (2) But the decision also revealed something else: a federal open-government law that is broken and badly needs fixing.

Congress passed the Federal Advisory Committee Act (FACA) (3) in 1972 to regulate the ad hoc commissions and panels that periodically issue advice and recommendations to our federal government. The Act's goals were admirable enough. Prior to FACA, the advisory committee system was horribly inefficient, and the committees themselves were largely unaccountable to the public. The Act included a handful of commonsense regulations, intended to instill a modicum of economy, ideological balance, and openness into the advisory committee process. But unlike most open-government laws, which exempt the President, Congress drafted FACA to apply to the President in full force. This legislative choice was made prior to the denouement of the Watergate scandal--and, thus, prior to the Supreme Court's watershed separation-of-powers decisions in United States v. Nixon (4) and Nixon v. Administrator of General Services, (5) which instructed that Congress may violate the Constitution by disrupting the President's constitutionally assigned functions.

And therein lies FACA's flaw: In cases like Cheney, involving presidential advisory committees, the modern separation-of-powers doctrine permits the government to argue that the application of certain FACA provisions is unconstitutional. Eager to avoid this complicated constitutional issue, courts have narrowed, twisted, and contorted the Act in order to hold that it does not apply in these cases. These decisions achieve their intended short-term result of dodging the constitutional questions. But they also establish sweeping precedents that limit FACA's reach outside the presidential context--a realm where the vast majority of federal advisory committees exist and where applying FACA does not raise any separation-of-powers issues. In short, by trying to do too much, Congress did too little; by including presidential advisory committees in FACA, it unwittingly initiated the weakening of the Act through a gradual process of judicial erosion.

This Note surveys the history of FACA and the constitutional conflicts it provokes and recommends that Congress fix the Act by exempting presidential advisory committees from judicial review. Part I describes the evolution of efforts to regulate advisory committees over the past two centuries, which led to FACA's enactment in 1972. It demonstrates that in passing FACA, Congress was motivated almost entirely by practical policy considerations, but it did not consider separation-of-powers issues at all. Part II details the most prominent cases involving presidential advisory committees, which illustrate how Congress's decision to include these committees within FACA's reach has indirectly weakened the Act. Part III looks to other open-government laws--the Freedom of Information Act and the Federal and Presidential Records Acts--as potential models for reform. Finally, Part IV urges Congress to fix FACA by exempting presidential advisory committees from judicial review.

1. THE BIRTH OF FACA

   Starting with George Washington, Presidents have relied on advisory committees for information and guidance. (6) In the nineteenth century, Presidents used these groups sparingly, usually in response to unexpected crises such as the Whiskey Rebellion. (7) Modern Presidents employ advisory committees far more frequently to tackle problems as broad as physical fitness and bioethics. (8) These committees are generally temporary, ad hoc groups, created by the President or by Congress (9) and are charged with advising the President on a particular issue. (10) Their membership is usually appointed by the President himself and includes at least one nongovernment member. (11) Recent high-profile examples include two committees created in the aftermath of the September 11, 2001, terrorist attacks: the much-publicized "9-11 Commission" (formally known as the National Commission on Terrorist Attacks Upon the United States) (12) and the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction. (13) Significantly, presidential advisory committees are a small subset of a much larger group of federal advisory committees, most of which advise agencies or departments but not the President. (14)

   To some extent, advisory committees are a natural outgrowth of the President's constitutional obligations to report information and make recommendations to Congress. (15) Beyond this constitutional mandate, advisory committees serve a host of other key functions. Most importantly, they act as policy analysts, investigating a problem and recommending that the President adopt a particular solution. (16) Advisory committees also market existing policy proposals to the greater public (17) or raise public awareness of issues or problems that are not yet ripe for government action. (18) Other committees respond to a crisis: they reassure the public that the President is committed to taking action, even when action itself is not forthcoming. (19) And occasionally, Presidents employ advisory committees as a means of delay (20)--a precious commodity in Washington, D.C. (21) The presence of "outsiders" on advisory committees is important to all of these functions: beyond lending crucial expertise and insight that may not be available from the ranks of government officials, a committee can gain substantial credibility from the participation of prominent private citizens. (22) In sum, advisory committees are an important tool for the modern President. (23)

   For almost as long as federal advisory committees have existed, Congress has endeavored to regulate them. Early legislative initiatives erected a front-end check on presidential and agency advisory committees by regulating their funding. In 1842, after President Tyler appointed a group of private citizens to investigate allegations of misbehavior at the New York customhouse, Congress responded with legislation that limited the President's ability to fund advisory committees. (24) The 1842 Act prohibited the President from "pay[ing] any account or charge whatever, growing out of, or in any way connected with, any commission or inquiry," unless Congress itself specifically appropriated the funds. (25) Later, Congress responded to President Theodore Roosevelt's increased use of advisory committees by banning any use of appropriated funds for committees that were not authorized by Congress. (26) Then, during World War II, Congress forbade the executive from spending funds on advisory committees that had existed for more than a year. (27) All three of these measures remain in effect; (28) but because taxpayers do not have standing to sue under this type of law, they are not judicially enforceable. (29) And Presidents have largely skirted these laws "by using unrestricted funds allotted to the President, seeking outside funding, or utilizing privately funded groups as advisory committees." (30)

   Congress's funding-oriented initiatives did little to check the proliferation of presidential and agency advisory committees over the course of the mid-twentieth century. (31) After World War II, as the government regulated more and more areas of American life and the military-industrial complex swelled, the number of advisory committees exploded. (32) Many of these committees focused on business and economic matters and were composed largely of representatives from the very same industries they were studying. (33) This state of affairs prompted antitrust and conflict-of-interest concerns and a renewed interest in regulation. (34) Congressional hearings in 1957 cast a dim light on the state of the advisory committee system, revealing that "many existing advisory committees were not subject to any formal control during their creation, organization, or operation, and some had been formed without specific statutory authorization" (35) and that "many of these committees met without agendas and failed to keep records of their deliberations. Some also kept their existence concealed from public scrutiny, allowing internal conflicts of interest as well as domination by special interests to go unrecognized." (36)

   Although Congress's scrutiny of advisory committees during the 1950s never bore legislative fruit, (37) it seems to have encouraged self-regulation by the executive branch--which, in turn, laid the foundation for FACA. Throughout the 1950s, the Department of Justice had instructed executive branch officials about proper use of advisory committees. (38) These guidelines urged agencies to obtain congressional authorization before creating advisory committees and to ensure that the committees followed an agenda, kept full records, and remained purely advisory. (39) But the guidelines were not binding, and agencies often ignored them. (40) In the wake of the 1957 hearings, the Bureau of the Budget adopted many of these guidelines in a 1959 directive. (41) Then, in 1962, President Kennedy issued Executive Order No. 11,007, (42) which largely followed the Department of Justice guidelines. (43) Significantly, however, none of these executive branch initiatives extended to presidential advisory committees.

   Kennedy' s executive order may have placated Congress, but this effect was short-lived. In 1969, the House Committee on...