APPENDIX F
POLITICAL AND PROFESSIONAL CONSIDERATIONS IN THE APPOINTMENT OF ADVISORY COMMITTEE MEMBERS

Russell Moy

Whenever agencies solicit the help of government outsiders to participate in the policy-development process, the Federal Advisory Committee Act (FACA) potentially applies. If an agency’s anticipated actions are subject to FACA, the agency is obliged to follow particular procedures—procedures best appreciated in light of the act’s history and general purposes. Passed in 1972, FACA seeks in large part to promote good-government values, such as openness, accountability, and balance of viewpoints.1 Those goals reflect previous worries that advisory committees had become a hidden vehicle for special-interest access to agency decision makers. At the same time, FACA seeks to promote other good-government values associated with administrative efficiency and cost reduction. Those aims reflect a separate set of previous concerns about the number, costs, and usefulness of advisory committees and specifically about whether the federal government was getting its money out of advisory committees, especially those with long lives. Jurisdiction for administering FACA lies with the General Services Administration (GSA), which has promulgated regulations for advisory committees codified in the Code of Federal Regulations.2

1  

Pub. L. 92-463 (1972).

2  

41 C.F.R. § 102-3.



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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments APPENDIX F POLITICAL AND PROFESSIONAL CONSIDERATIONS IN THE APPOINTMENT OF ADVISORY COMMITTEE MEMBERS Russell Moy Whenever agencies solicit the help of government outsiders to participate in the policy-development process, the Federal Advisory Committee Act (FACA) potentially applies. If an agency’s anticipated actions are subject to FACA, the agency is obliged to follow particular procedures—procedures best appreciated in light of the act’s history and general purposes. Passed in 1972, FACA seeks in large part to promote good-government values, such as openness, accountability, and balance of viewpoints.1 Those goals reflect previous worries that advisory committees had become a hidden vehicle for special-interest access to agency decision makers. At the same time, FACA seeks to promote other good-government values associated with administrative efficiency and cost reduction. Those aims reflect a separate set of previous concerns about the number, costs, and usefulness of advisory committees and specifically about whether the federal government was getting its money out of advisory committees, especially those with long lives. Jurisdiction for administering FACA lies with the General Services Administration (GSA), which has promulgated regulations for advisory committees codified in the Code of Federal Regulations.2 1   Pub. L. 92-463 (1972). 2   41 C.F.R. § 102-3.

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments Congress, the president, and the executive agencies can establish advisory committees.3 FACA clearly requires that a committee established by Congress be “fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee”4 (emphasis added) and that there be some assurance “that the advice and recommendations of the advisory committee will not be inappropriately influenced by the appointing authority or by any special interest, but will instead be the result of the advisory committee’s independent judgment.”5 The act specifies that those guidelines apply to executive branch advisory committees “to the extent they are applicable” but fails to define what that extent is.6 Nevertheless, GSA regulations make it clear that agencies will comply with the congressional advisory committee requirements.7 This paper will address issues that apply to executive branch advisory committee appointments by the agencies involved with science and technology issues. Specifically, it will focus on the role of professional credentials and political-party affiliation in the recruitment of committee members and the balance of the committee as a whole. FACA does not define what constitutes a “fairly balanced” committee. Later legislation creating particular advisory committees has required that members be “composed of experts selected by the National Academy of Sciences, qualified in the subject matter referred to the committee and of adequately diversified professional background”,8 that members selected be “distinguished” experts9 nominated by professional societies,10or that the committee mem- 3   See e.g., 5 U.S.C. Appendix §§ 5(b), 5(c). 4   5 U.S.C. Appendix §§ 5(b)(2). 5   5 U.S.C. Appendix §§ 5(b)(3). 6   5 U.S.C. Appendix §§ 5(c). 7   41 C.F.R. § 102-3.60(b)(3). 8   21 U.S.C. § 379e(a)(5)(D). 9   22 U.S.C. § 4356(a)(3)(A). 10   22 U.S.C. § 4356(a)(3)(B).

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments bers include experts in specific technologies and representatives of state government, industry, unions, and the public.11 In other instances, the legislation creating advisory committees has called for public solicitation of advisory committee nominees.12 That kind of congressional guidance on the nomination of advisory committee candidates is not common. An imposition of more stringent requirements by Congress on the executive’s selection of advisory committee members could be a violation of the Appointments Clause13 or other provisions of the Constitution.14 In some instances, executive agencies have developed procedures on their own initiative to facilitate their identification of potential advisory-committee members. Those regulations generally call for a public solicitation for nominees. Like FACA, the GSA regulations require an agency convened advisory committee to be “fairly balanced.”15 The regulations contain no definition or standards for what constitutes balance but instead include the more general statement that “advisory committees requiring technical expertise should include persons with demonstrated professional or personal qualifications and experience relevant to the functions and tasks to be performed.” (emphasis added) Technical Qualifications of Advisory-Committee Members Agencies involved with science-policy issues may convene federal advisory committees to enhance their technical competence. Some issues addressed by federal agencies can be decided on the 11   42 U.S.C. § 13478(e)(3) called for a committee consisting of “experts in possible human health effects of electric and magnetic fields, experts in the measurement and characterization of electric and magnetic fields, experts in the assessment and management of electric and magnetic fields, State regulatory agencies, State health agencies, electric utilities, electric equipment manufacturers, labor unions and the public.” 12   14 U.S.C. § 193. 13   US Constitution Article II, Section 2, par. 2. 14   Jay S. Bybee, Advising the President: Separation of Powers and the Federal Advisory Committee Act, 104 Yale L.J. 51 at 108-27 (1994). 15   41 C.F.R. § 102-3.60.

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments basis of knowledge alone. That occurs in agency priority setting when available information is so compelling that no question exists whether to allocate resources. In the risk assessment and analysis of regulatory options, a knowledge-based decision is appropriate when the relevant scientific and engineering information is sufficiently complete and unambiguous for conclusions to be reached without the exercise of discretion to answer questions.16 Such issues can be resolved by personnel selected only for their technical competence. However, those “operational” decisions would probably not be appropriate subject matter for a federal advisory committee.17 Agencies rarely have the luxury of deciding an issue on the basis of complete and unambiguous information. Knowledge alone is almost never a sufficient basis for an agency’s actions. Almost always, agencies must supplement knowledge with the exercise of discretion which embodies their policy orientation. This need to exercise discretion derives from intrinsic deficiencies in the scientific and engineering knowledge that are beyond the agencies’ ability to correct in the short run, and from the agencies’ need to set agendas, interpret statutes, and balance conflicting values…. The boundary between knowledge and discretion—particularly in answering scientific and engineering questions in the face of deficient knowledge—is very fuzzy… What one person calls knowledge based on scientific judgment, another may call the exercise of discretion based on values or policy preferences.18 Unfortunately, panels of experts often do not admit when they go beyond science or engineering knowledge in reaching their conclusions. 16   Ted Greenwood, Knowledge and Discretion in Government Regulation, Praeger Scientific, New York, 221-48 (1984). Hereinafter Greenwood. 17   Steven P. Croley and William F. Funk, The Federal Advisory Committee Act and Good Government, 14 Yale J. on Reg 451 at 486 (1997); Indian Towing Co., 350 U.S. 61 at 64 (1955). 18   Greenwood at 243.  

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments Moreover, the credentials of their members and often the terms of their mandate imply that their conclusions are based purely on knowledge. The result is to obscure the distinction between knowledge and discretion.19 In some instances, “committee advice can be biased if a committee is only composed of persons with similar backgrounds and experiences. For example, persons employed in the same scientific subspecialties develop similar biases.”20 That results in “tunnel vision,” “a malady that obstructs the ability of highly trained professionals to view proposals from different perspectives.”21 Scientific or technical advisory committees also have the potential for issuing uneducated advice by departing the confines of science, where technical expertise is critical, and wandering into the realm of policy, where technical expertise has no particular virtue. A good example is the level of certainty demanded before drawing a conclusion that a possible cause is associated with a particular effect. Scientists are generally unwilling to draw cause-effect conclusions from statistical data absent a high degree of confidence that the observed association did not occur by chance. For purposes of publishing scientific papers and establishing scientific reputations, this degree of conservatism is entirely appropriate. But an [agency] may decide not to demand such a high degree of confidence when the lives of hundreds of people are at stake. Instead, the policy maker may decide to err on the side of safety. Another [agency] implementing a less protective policy might require a greater degree of confidence. Whatever degree of confidence is chosen, however, is a question of policy, not of science.22 19   Greenwood at 229. 20   Sidney A. Shapiro, Public Accountability of Advisory Committees, 1 Risk: Issues Health & Safety 189 at 190-192 (1990). 21   Thomas O. McGarity, Peer Review in Awarding Federal Grants in the Arts and Sciences, 9 High Tech. L.J. 1 at 6 (1994). 22   Sidney A. Shapiro, Public Accountability of Advisory Committees, 1 Risk: Issues Health & Safety 189 at 190-192 (1990).  

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments Other than advisory committees created by legislation that calls for members to have specific technical training,23 there appears to be little authority to compel an agency to populate its advisory committees with members based solely on expertise in the relevant science and engineering disciplines. FACA and associated regulations require a “fairly balanced” committee membership whose qualifications and experience are selected to be “relevant to the functions and tasks to be performed.”24 (emphasis added) Thus, one could make the case that unless the issues addressed by the advisory committee could be resolved on the basis of knowledge alone without the exercise of discretion, fair balance might even require the inclusion of some members whose strengths lie outside the relevant science and engineering disciplines to provide the committee with the competence to address questions of policy. Political Affiliation FACA and GSA regulations do not mention the selection of advisory-committee members although the regulations specifically provide that unless otherwise provided by statute, Presidential directive, or other establishment authority, advisory committee members serve at the pleasure of the appointing or inviting authority. Membership terms are at the sole discretion of the appointing or inviting authority.25 There is no specific provision in FACA or GSA regulations 23   42 U.S.C. § 13478(e)(3). 24   41 C.F.R. § 102-3.60(b)(3). 25   41 C.F.R. § 102-3.130(a). 26   Editor’s note: As this report was going to press in November 2004, the General Accountability Office issued a document entitled Legal Principles Applicable to

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments that bans the consideration of a potential advisory-committee member’s political affiliation.26 In other instances, Congress has known, at least with regard to executive branch appointments to nonadvisory panels, how to ensure balance with regard to political affiliation.27 The absence of that requirement under FACA seems to imply that the requirement for fair balance does not apply to political affiliation. At least one commentator believes that excessive restrictions on the ability of the executive branch to appoint advisers may not be consistent with the Article II powers of the Constitution.28 In some circumstances, the consideration of political affiliation may violate a public employee’s First Amendment rights. In Branti v. Finkel, the Supreme Court addressed the discharge of two county assistant public defenders on the basis of their political affiliation: If the First Amendment protects a public employee from discharge based on what he has said, it must also protect him from discharge based on what he believes. Under this     Selection of Federal Advisory Committee Members (available at http://www.gao.gov/decisions/other/303767.htm)tp://www.gao.gov/decisions/other/303767.htm) that discusses the legality of asking advisory committee members about political party affiliation. For more details, see Appendix E. 27   See e.g., 2 U.S.C. § 437c, 5 U.S.C. § 901, 5 U.S.C. § 1101, 5 U.S.C. § 1201, 10 U.S.C. § 942, 12 U.S.C. § 1812, 12 U.S.C. § 1818, 12 U.S.C. § 2279aa-2, 15 U.S.C. § 1, 15 U.S.C. § 1, 15 U.S.C. § 41, 15 U.S.C. § 657b, 15 U.S.C. § 657c, 15 U.S.C. § 4804, 15 U.S.C. § 7107, 19 U.S.C. § 1330, 19 U.S.C. § 2211, 20 U.S.C. § 2004, 20 U.S.C. § 2103, 20 U.S.C. § 4502, 20 U.S.C. § 4703, 20 U.S.C. § 5603, 22 U.S.C. § 262r, 22 U.S.C. § 287, 22 U.S.C. § 1465c, 22 U.S.C. § 2511, 22 U.S.C. § 4605, 22 U.S.C. § 6203, 25 U.S.C. § 2704, 28 U.S.C. § 455, 28 U.S.C. § 591, 28 U.S.C. § 991, 33 U.S.C. § 982, 36 U.S.C. § 152603, 39 U.S.C. § 202, 39 U.S.C. § 3601, 41 U.S.C. § 251,42 U.S.C. § 401, 42 U.S.C. § 415, 42 U.S.C. § 903, 42 U.S.C. § 907a, 42 U.S.C. § 1320b-19, 42 U.S.C. § 1395b, 42 U.S.C. § 1395i, 42 U.S.C. § 1395t, 42 U.S.C. § 1973, 42 U.S.C. § 1975, 42 U.S.C. § 2000e-4, 42 U.S.C. § 2210, 42 U.S.C. § 2286, 42 U.S.C. § 2996c, 42 U.S.C. § 5841, 42 U.S.C. § 10703, 42 U.S.C. § 15323, 44 U.S.C. § 3318, 45 U.S.C. § 154, 47 U.S.C. § 154, 47 U.S.C. § 396, 49 U.S.C. § 701, 49 U.S.C. § 49106, 50 U.S.C. § 401. 28   Jay S. Bybee, Advising the President: Separation of Powers and the Federal Advisory Committee Act, 104 Yale L.J. 51 at 122-23 (1994).  

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments line of analysis, unless the government can demonstrate “an overriding interest,” “of vital importance,” requiring that a person’s private beliefs conform to those of the hiring authority, his beliefs cannot be the sole basis for depriving him of continued public employment.29 There is no requirement that dismissed employees prove that they, or other employees, have been coerced into changing, either actually or ostensibly, their political allegiance. To prevail in this type of an action, it [is] sufficient…to prove that…discharge [was] solely for the reason that [the public employee was] not affiliated with or sponsored by [a particular political party].30 [Supreme Court] opinions…recognize that party affiliation may be an acceptable requirement for some types of government employment. Thus, if an employee’s private political beliefs would interfere with the discharge of his public duties, his First Amendment rights may be required to yield to the State’s vital interest in maintaining governmental effectiveness and efficiency.31 It is…clear that party affiliation is not necessarily relevant to every policymaking or confidential position. The coach of a state university’s football team formulates policy, but no one could seriously claim that Republicans make better coaches than Democrats, or vice versa, no matter which party is in control of the state government. On the other hand, it is equally clear that the Governor of a State may appropriately believe that the official duties of various assistants who help him write speeches, explain his views to the press, or communicate with the legislature cannot be performed effectively unless those persons share his political beliefs and party commitments. In sum, the ultimate inquiry is not whether the label “policymaker” or “confidential” fits a particular position; rather, the question 29   Branti v. Finkel, 445 U.S. 507 at 515-16 (1980). 30   Branti v. Finkel, 445 U.S. 507 at 517 (1980). 31   Branti v. Finkel, 445 U.S. 507 at 517 (1980). 32   Branti v. Finkel, 445 U.S. 507 at 518 (1980).  

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.32 (emphasis added) Later Supreme Court decisions have made it clear that the First Amendment protection afforded to discharged public employees articulated in Branti also “extends to promotion, transfer, recall, and hiring decisions based on party affiliation”33 “involving low-level public employees”34 and to independent contractors.35 This line of cases seems to suggest that consideration of the political affiliation of advisory-committee members would not be constitutionally barred, at least when the work of the committee involved discretionary rather than operational functions.36 Conduct cannot be discretionary unless it involves an element of judgment or choice…. Thus, the discretion [does] not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. In this event, the employee has no rightful option but to adhere to the directive. And if the employee’s conduct cannot appropriately be the product of judgment or choice, then there is no discretion in the conduct…37 Because the Supreme Court has found “discretionary acts of the Government” to include “legislative and administrative decisions grounded in social, economic, and political policy,”38 (emphasis added) consideration of political affiliation of advisory-committee members would not be constitutionally barred when the committee is asked to exercise judgment or choice in the recommendations it issues. That reasoning could not be used to justify the inclusion of an advisory-committee member who lacked any credentials relevant 33   Rutan v. Republican Party of Illinois, 497 U.S. 62 at 79 (1990). 34   Rutan v. Republican Party of Illinois, 497 U.S. 62 at 65 (1990). 35   O’Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712 at 721 (1996). 36   Indian Towing Co., 350 U.S. 61 at 64 (1955). 37   Berkovitz v. US, 486 U.S. 531 at 536 (1988). 38   United States v. Varig Airlines, 467 U.S. 797 at 814 (1984).

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments to the functions and tasks to be performed. (emphasis added) When the functions and tasks of executive branch advisory committees address social, economic, political, and other policies beyond the mere technical analysis of available data, it is unclear what standards could be applied to objectively determine relevancy of credentials.39 Challenges to Advisory-Committee Membership Unless otherwise provided by statute, GSA regulations for the administration of a federal advisory committee seem to leave little room for administrative challenges to the committee’s composition.40 Advisory-committee composition has been challenged in the courts with little success.41 The leading case on this issue is Public Citizen v. National Advisory Committee on Microbiological Criteria for Foods,42 in which the court stated that “the determination of how the ‘fairly balanced’ membership of an advisory committee, in terms of the points of view represented and the functions the committee is to perform, is to be achieved, necessarily lies largely within the discretion of the official who appoints the committee.” In his concurring opinion, Judge Silberman could not “discern any meaningful standard that is susceptible of judicial application in the formulation ‘fairly balanced in terms of the points of view represented and the functions to be performed,’” and he believed “that judicial review is unavailable”:43 39   See e.g., Sanchez v. Pena, 17 F.Supp.2d 1235 at 1238 (1998). 40   41 C.F.R. § 102-3.130. 41   See e.g., Public Citizen v. National Advisory Committee on Microbiological Criteria for Foods, 886 F.2d 419 (U.S. App.DC 1989); Public Citizen v. Dept. Health and Human Services, 795 F.Supp. 1212 (D.D.C. 1992); Doe v. Shalala, 862 F. Supp. 1421 (D. MD 1994); Fertilizer Institute v. U.S. Environmental Protection Agency (D.D.C. 1996). 42   Public Citizen v. National Advisory Committee on Microbiological Criteria for Foods, 886 F.2d 419 (U.S. App.DC 1989). 43   Public Citizen v. National Advisory Committee on Microbiological Criteria for Foods, 886 F.2d 419 at 266-27 (U.S. App.DC 1989).

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments The relevant points of view on issues to be considered by an advisory committee are virtually infinite and, therefore, the judgment as to what constitutes an appropriate or “fair” balance of those views must be a political one…Even before the points of view on an advisory committee can be balanced at all–“fairly” or otherwise–it must first be determined which points of view should be balanced. And I can conceive of no principled basis for a federal court to determine which among the myriad points of view deserve representation on particular advisory committees. Perhaps if one could hypothesize a situation in which only two or three points of view were relevant to a particular advisory committee, and if we could define those points of view with the requisite clarity, the question whether they were “fairly balanced” might be judicially reviewable–although I even have my doubts about that. Would the inclusion of one representative of a particular viewpoint be “fair” or would an even split between opposing viewpoints be required? Would a single representative of a viewpoint be enough if he were particularly persuasive? But surely, given the possible range of points of view on virtually any subject, an effort to reduce points of view to a few categories–as if they were political parties–is quite artificial and arbitrary. And once one recognizes that, it follows that judicial review of the application of this phrase is not available.44 Most other courts have similarly ruled that advisory-committee composition is nonjusticiable: In the case now before the Court, there are no meaningful standards by which the Court can review whether the FDA Advisory Committee is “fairly balanced in terms of the points of view represented and the functions to be performed.” [In the present case] the Committee’s purpose is to examine “the mission, responsibilities and structure of the FDA according to its legislative mandate and to make recommendations on how the Agency can be strengthened to fulfill its mission.” …This is a broad purpose for which 44   Public Citizen v. National Advisory Committee on Microbiological Criteria for Foods, 886 F.2d 419 at 266-27 (U.S. App.DC 1989).  

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments there is no doubt a broad range of viewpoints. For the Court to become entangled in determining which viewpoints must be represented is for the Court to arbitrarily substitute its judgment for that of the Agency. No meaningful standards are available to assist the Court in making such political and ideological determinations.45 Some courts have ruled that the question of whether a federal advisory committee is balanced is justiciable but that the analysis is subject to a deferential standard of review.46 Under that standard of review, a court will defer to an agency’s decisions “unless they are arbitrary, capricious, or manifestly contrary to [a] statute.”47 Whether the issue of an advisory committee’s composition is nonjusticiable or is justiciable under a deferential standard of review matters not unless a committee member lacks any position or competence relevant for the committee or members are selected without expertise called for in a congressionally mandated advisory committee. Policy decisions–including the selection of advisory committee members–made by the political branches are not to be challenged through the judiciary: When [there is a challenge to]…the wisdom of [an] agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges–who have no constituency–have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public 45   Public Citizen v. Dept. of Health and Human Services, 795 F.Supp. 1212 at 1221 (D.D.C. 1992). See also Doe v. Shalala, 862 F. Supp. 1421 at 1430 (D. MD 1994); Fertilizer Inst. v. United States E.P.A., 938 F.Supp. 52 at 54 (D.D.C.1996) (“judgment regarding what constitutes a ‘fair balance’ of views ‘must be a political one.’”); Sanchez v. Pena, 17 F.Supp.2d 1235 at 1238 (D. NM 1998). 46   Cargill, Inc. v. U.S., 173 F.3d 323 at 334 (5th Circuit 1999). 47   Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 at 844 (1984). 48   Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 at 865 (1984). See also Pauley v. Bethenergy Mines, Inc., 501 U.S. 680 at 696 (1991),  

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Science and Technology in the National Interest: Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments interest are not judicial ones: “Our Constitution vests such responsibilities in the political branches.”48 Openness and public involvement in the selection of federal advisory committee members may be desirable to some and would probably help to increase the credibility of the committee. However, there seems to be no authority to compel that kind of involvement in advisory committees created by the executive branch.

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