The justiciability of fair balance under the Federal Advisory Committee Act: toward a deliberative process approach.

• Author: Walters, Daniel E.

The Federal Advisory Committee Act's requirement that advisory committees be "fairly balanced in terms of the points of view represented and the functions to be performed" is generally considered either non justiciable under the Administrative Procedure Act or justiciable but subject to highly deferential review. These approaches stem from courts' purported inability to discern from the text of the statute any meaningful legal standards for policing representational balance. Thus, the Federal Advisory Committee Act's most important substantive limitation on institutional pathologies such as committee "capture" or domination is generally unused despite the ubiquity of federal advisory committees in the modern regulatory state.

This Note argues for a new reading of the Federal Advisory Committee Act's fair balance provision that would make the provision justiciable. Instead of reading the provision to require quantitative representational balancing of various interests--and thus asking courts to make political decisions--this Note contends that the text of the provision permits an alternative reading, which I call the "deliberative process" reading. Under this reading, courts would decide whether a committee's record airs all of the relevant viewpoints associated with the issue under the committee's consideration. This kind of review is familiar to courts in other administrative law contexts, so there would be no plausible argument that the provision is unreviewable for lack of meaningful standards. I argue that this deliberative process reading would enhance advisory outputs and ensure that this "fifth branch" of government is still under public control.

TABLE OF CONTENTS INTRODUCTION I. CIRCUIT TREATMENT OF THE JUSTICIABILITY OF THE "FAIRLY BALANCED" PROVISION A. Non justiciability B. Justiciability II. THE REPRESENTATIONAL READING: LEGAL AND POLICY IMPLICATIONS A. Unpredictability and Uncertainty B. Practical Unenforceability C. Perverse Incentives D. Dichotomization of Science and Politics III. BEYOND REPRESENTATION: A DELIBERATIVE PROCESS STANDARD A. The Deliberative Process Standard B. Consistency with the Purpose of FACA C. Postenactment History D. A Manageable Standard? E. Potential Problems CONCLUSION INTRODUCTION

In 2009, President Obama signed the Family Smoking Prevention and Tobacco Control Act, (1) which explicitly gave authority to the Food and Drug Administration ("FDA") to regulate tobacco. (2) The FDA took immediate action on a variety of fronts, including--seemingly least controversial of all--convening the Tobacco Products Scientific Advisory Committee ("TPSAC") (3) The Act provides for a variety of committee studies of the addictive qualities of nicotine and requires the committee to advise the FDA. (4) The committee includes seven healthcare professionals, one government employee, and one representative of the "general public," all of whom are to be voting members. (5) In addition, the Act provides for two nonvoting representatives of the tobacco manufacturing industry and one nonvoting representative of tobacco growers. (6)

By March 2010, the TPSAC was embroiled in controversy. First, Altria Group, Inc., the parent corporation of Philip Morris USA, submitted a letter to the FDA commissioner protesting the appointments of four voting members of the committee because of their alleged conflicts of interest. (7) While these members were experts, they were also routinely retained as expert witnesses by plaintiffs in civil cases against tobacco companies and as consultants by pharmaceutical companies that manufacture smoking cessation products. (8) Soon after Altria's challenges, the nonpartisan but left-leaning political watchdog group Citizens for Responsibility and Ethics in Washington became a strange bedfellow of Altria, criticizing the FDA for its failure to resolve longstanding problems with pharmaceutical industry capture. (9) While some commentators concluded that the TPSAC was a "virtual smorgasbord of tobacco and pharmaceutical financial interests" (10) which might make even Nick Naylor blush, (11) others defended the FDA, noting that "this is not Coke versus Pepsi.... The tobacco companies are promoting products that kill half a million people a year. The pharmaceutical companies are trying to promote health." (12)

Federal advisory committees like the TPSAC are ubiquitous, (13) and, as the TPSAC story shows, they raise critical issues of accountability, credibility, and neutrality in policymaking. Of chief concern is the question of balance and the avoidance of capture or domination by well-organized and overrepresented groups. (14) Advisory committees are frequently homogenous and draw from select demographics. (15) Even worse, committees may simply be so beholden to their parent agencies that they become back doors through which capture-hungry parties can wield disproportionate influence before the public even has an opportunity to comment. (16) Thus, while the establishment and staffing of committees like the TPSAC may seem innocuous, the danger of capture, domination, and unaccountability is acute in the absence of sufficient safeguards.

Congress recognized these dangers when it passed the Federal Advisory Committee Act of 1972 ("FACA"). (17) FACA was a response to the proliferation of federal advisory committees and to concerns about the unaccountability, bias, and costs of the advisory process. (18) FACA imposed a number of accountability mechanisms, including procedural constraints on committees as well as oversight and reporting requirements for congressional committees, the General Services Administration ("GSA"), and the President. (19) Today, many of the same concerns that prompted FACA persist; they are recognized in popular media, (20) studied in scholarly literature outside of law, (21) and raised in the halls of Congress. (22)

Surprisingly, federal courts have let perhaps the most important substantive check on capture and domination in FACA lie essentially dormant. Section 5(b)(2) requires that the membership of federal advisory committees be "fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee." (23) Several circuits have split on whether section 5(b)(2) provides any meaningful legal standard under which courts can police the representational balance of committees without making overtly political judgments: two circuits treat section 5(b)(2) as nonjusticiable (24) under the Administrative Procedure Act ("APA"), (25) while at least two other circuits treat the provision as justiciable. (26) Even where section 5(b)(2) is found justiciable, courts invariably hold that they must give agencies substantial deference in composing committee membership. (27) Underlying all of these decisions is an assumption that representation under section 5(b)(2) requires, if anything, direct representation by directly affected interests. (28)

This Note argues that the "fairly balanced" provision of FACA is justiciable under the APA, but under a different reading of the statute than the one currently used by courts. Part I examines the reasons offered by the differing circuits for their respective approaches. It argues that the unifying feature among section 5(b)(2) cases is the courts' representational reading of the statute. Part II then argues that this representational reading creates four difficulties that plague section 5(b)(2) cases and leaves the provision effectively unenforceable. Part III examines a potential alternative reading that would look to the robustness of the process of deliberation in advisory committees. It argues that this alternative reading is not only textually plausible but also accords with the overall purpose of FACA. Finally, Part III concludes by briefly addressing some of the most important concerns about the implementation of the deliberative process standard.

1. CIRCUIT TREATMENT OF THE JUSTICIABILITY OF THE "FAIRLY BALANCED" PROVISION

   The federal courts of appeals have failed to converge on a universal approach for dealing with section 5(b)(2). The courts are split on the issue of the justiciability of the provision under the APA. (29)

   1. Nonjusticiability

      The Court of Appeals for the District of Columbia Circuit had several early chances to resolve the question of the justiciability of section 5(b)(2) but failed to offer any definitive interpretation. The court at first noted in dicta that the question of fair balance might be justiciable, (30) but it divided deeply on that question when it was squarely presented in Public Citizen v. National Advisory Committee on Microbiological Criteria for Foods. (31) At issue in that case was the U.S. Department of Agriculture's CUSDA") staffing of its National Advisory Committee on Microbiological Criteria for Foods, a committee formed to assess the safety and wholesomeness of food. (32) The charter of the committee provided that members were to be selected for expertise in food service, microbiology, or other relevant disciplines. (33) The final committee roster included two academics, one state department of agriculture official, one consumer services official also from the state department of agriculture, two food researchers employed by research firms, six employees of federal agencies, and six individuals employed in the food industry. (34) The plaintiffs-appellants alleged that the committee was unbalanced under section 5(b)(2) because it did not have a consumer representative with public health expertise and was in fact stacked with members who had industry ties. (35) The court issued a per curiam opinion, and two of the three judges on the panel wrote separately to express their view that the district court did not err in dismissing the suit. (36)

      The lasting legacy of Microbiological Criteria is its articulation of the rationale for nonjusticiability. Judge Silberman, in his partial concurrence, claimed in stark terms that...