Science and Technology in the National Interest Ensuring the Best Presidential and Federal Advisory Committee Science and Technology Appointments (2005) / Chapter Skim
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Appendix F Political and Professional Considerations in the Appointment of Federal Advisory Committee Members
Appendix F Political and Professional Considerations in the Appointment of Federal Advisory Committee Members
Pages 151-164
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From page 151... ...
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.
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From page 152... ...
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,10 or that the committee mem 3See e.g., 5 U.S.C. Appendix §§ 5(b)
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From page 153... ...
Those regulations gener ally 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)
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From page 154... ...
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.
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From page 155... ...
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 perspec tives."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.
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From page 156... ...
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.
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From page 157... ...
that discusses the legality of asking advisory committee members about political party affiliation. For more details, see Appendix E
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From page 158... ...
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.
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From page 159... ...
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 33Rutan v.
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From page 160... ...
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 creden tials.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 compo sition.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 repre sented and the functions to be performed,'" and he believed "that judicial review is unavailable":43 39See e.g., Sanchez v.
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From page 161... ...
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 reviewablealthough I even have my doubts about that.
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From page 162... ...
No mean ingful 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.
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From page 163... ...
Science and Technology in the National Interest 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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