Restricting membership: assessing agency compliance and the effects of banning federal lobbyists from executive branch advisory committee service.

Author:Straus, Jacob R.
Position:Report
 
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Introduction

On his first full day in office, President Barack Obama issued Executive Order 13490. The executive order defined new executive branch ethics requirements, established an executive branch ethics pledge, and placed restrictions on former federally registered lobbyists serving in various administration positions. The limitations on lobbyist activity were rooted in campaign promises to limit influence on administrative decision making (Brown 2008; Kirpatrick 2008). (1)

In September 2009, the White House--through the Office of Management and Budget (OMB)--announced a new policy to prohibit the appointment of federally registered lobbyists to executive branch agency advisory committees. In a blog post that accompanied the policy announcement, Norm L. Eisen, then-special counsel to the president for ethics and government reform, characterized the administration's position on lobbyists serving on advisory committees as an effort to "reduce the influence of special interests in Washington" (White House 2009a).

In October 2009, Mr. Eisen posted two blog entries on the White House website to clarify the administration's position on federally registered lobbyists serving on advisory committees (White House 2009b, 2009c) and respond to both private sector and agency concerns about the new policy (Dale, Hoelter, and Petty 2009; Wenhold and Mayberry 2009). In his response, Mr. Eisen stated the following:

While we recognize the contributions some of those who will be affected have made to these committees, it is an indisputable fact that in recent years, lobbyists for major special interests have wielded extraordinary power in Washington, DC, resulting in a national agenda too often skewed in favor of the interests that can afford their services. It is that problem that the President has promised to change, and this is a major step in implementing that change. (White House 2009b)

Implementation of OMB's guidance was to be made by each agency during the recertification and reappointment process for each advisory committee and does not retroactively affect appointments. (2) The White House has stated that it is not attempting to stifle lobbyists' abilities to advocate on behalf of their clients, just that "industry representatives shouldn't be given government positions from which to make their case" (Eisen 2009).

This action and exchange was followed by the issuance of preliminary guidance in June 2010 and final guidance in October 2011 (OMB 2010, 2011). The guidance provides executive agencies with "instructions" on the appointment of advisory committee members. At the time of the White House's 2009 announcement, the overall number of registered lobbyists serving on federal advisory committees was not publicly available, and the possible effects of banning lobbyists from advisory committees was, therefore, difficult to discern.

This article examines the potential consequences of removing lobbyists from federal advisory committees. To conduct this analysis, we begin by defining federal advisory committees and lobbyists. We then survey the literature on influence to understand how public interest groups and lobbyists might affect public policy through membership on federal advisory committees. From this literature, we then develop five hypotheses to analyze the potential effects of removing federally registered lobbyists from advisory committees. They are change in public perception of advisory committees, change in information sharing within an advisory committee, change in representative membership of an advisory committee, change in committee advice, and change in the presidential control of bureaucracy.

Using this knowledge, we then examine data from the Federal Advisory Committee Act (FACA) Database and the Lobbying Disclosure Act (LDA) database to understand whether agencies followed the OMB guidance and removed federally registered lobbyists from advisory committees. (3) Next, we place the data in context by recounting interviews with former federal advisory committee members to assess their impressions of the ban and the committees' role in the agency decision-making process. Finally, we revisit the literature on influence to evaluate and assess the potential consequences of removing lobbyist and interest group influence from the advisory process.

Federal Advisory Committees

Presidents and executive branch agencies create federal advisory committees to gain expertise and policy advice from individuals outside the federal government. Federal advisory committees have historically been created on an ad hoc, provisional basis to bring together various experts--often with divergent opinions and political backgrounds--to examine an issue and recommend statutory, regulatory, or other policy actions. Federal advisory committees are one of only a few formalized mechanisms for private sector citizens to participate in the federal policy-making process.

Defining Advisory Committees

In 1972, the FACA formalized the creation and governance of advisory committees established or utilized by the president or executive branch agency heads (5 U.S.C. appendix). (4) Enactment of FACA addressed many congressional and citizen concerns about federal advisory committees. (5) The law established the first statutory requirements for management of, access to, and oversight of federal committees. The act, in section 2(b)(6), required advisory committees "be advisory only, and that all matters under their consideration should be determined, in accordance with law, by the official, agency, or officer involved."

Federal Advisory Committees and the Policy-Making Process

Scholarship on the creation, operations, and effects of federal advisory committees is limited. Existing work largely examines the ways Congress can design more effective committees (Balia and Wright 2001) or explores whether committees serve presidential interests (Wolanin 1975). Other studies found that advisory committees--both congressional and executive branch--have traditionally allowed political actors to "deflect blame, buy time, and give the appearance of action on issues that are too politically charged, too difficult, to solve" (Zegart 2004, 372; see also Campbell 1998). (6)

Zegart (2004, 374-76) attempts to group commissions into three categories: agenda commissions, which aim to attract support and attention to presidential policy initiatives; information commissions, which are designed to give "new ideas, new facts, and new analysis to policymakers"; and political constellation commissions, which seek to "foster consensus, compromise, and cooperation in a policy domain."

Campbell (1998) also argued that using a FACA committee to acquire outside ideas may offer a formal and transparent process that puts meetings and ideas on the public record in a way that holding individual meetings with outside experts might not accomplish. Moreover, Campbell (1998, 170) stated that members of Congress may create committees to "pare down Congress's workload to more manageable dimensions or to handle and manage a problem in a timely manner." In general, congressionally created advisory committees that solely advise Congress would not be subject to FACA. Subsequently, whether Congress's oversight or legislative workload would be reduced by a FACA committee is questionable.

Since FACA's enactment, scholars and practitioners of government have debated whether advisory bodies increase public interaction with the federal government (Mitchell 1997; Murphy 1982). Other debates continue over whether advisory committees have a positive effect on the federal government (Miller 1976; Schmitt 1989) or if they are a symptom of a federal government that is not performing properly (Rourke and Schulman 1989).

Only Brown (2008) has focused on how the structure and composition of a federal advisory committee may affect its deliberative process and, therefore, its contribution to public policy. He examines the representative balance requirement in FACA and argues that the distinction between experts and laypeople in advisory committee membership is arbitrary, naive, and artificial. Brown writes that "most current advisory committee guidelines rest on an untenable double-standard that directs agencies to evaluate potential expert members of advisory committees solely in terms of their professional qualifications and nonexpert members in terms of their 'political interests'" (2008, 548). (7)

Lobbyist Influence on Government

Since 1946, the federal government has attempted to regulate lobbyist contact with government decision makers by requiring registration and disclosure of activities. (8) Pursuant to the LDA, federally registered lobbyists are individuals who represent a client for financial compensation, make more than one lobbying contact, and spend at least 20% of their time engaged in lobbying activities over a three-month period (2 U.S.C. sec. 1602).

Individuals who meet this basic definition are required under the LDA to register with Congress and to file quarterly disclosure statements. (9) Lobbyists register and disclose their activities in an effort to

make lobbying more transparent. A lobbyist's ability to contact government decision makers is not restricted by LDA.

In contrast to the intent of statutory lobbying laws, the Obama administration has created a system to restrict lobbyist access to executive branch decision makers. Because it would likely be unconstitutional to legally limit the speech of lobbyists, the administration has instead worked to create guidelines that restrict federal employees from interacting with lobbyists.

The Obama administration has attempted to limit federal employee and lobbyist interaction through the issuance of Executive Order 13490 that, among other items, revives a Clinton administration--era requirement that bans gifts from lobbyists to federal employees and restricts former lobbyists from being appointed to administrative...

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