Bills
| 3.23.22

Should Federal Advisory Committees Face More Stringent Ethics Requirements? (H.R. 1608)

Do you support or oppose this bill?

What is H.R. 1608?

(Updated March 27, 2019)

This bill would modify and expand requirements for federal advisory committees to comply with federal ethics laws, and require federal agencies to disclose more information about committee activities to the public. The Federal Advisory Committee Act (FACA), which this legislation amends, defines a federal advisory committee as a provides the government with independent advice and recommendations.

Any person appointed to an advisory committee who isn’t a full-time or permanent part-time officer or employee of the federal government could be designated as either a special government employee or a representative. Special government employees would be providing advice based on their personal experience or expertise, while representatives represent the views of a non-federal entity.

Federal agencies would be prohibited from designating committee members as representatives to avoid subjecting them to federal ethics rules. A designated ethics official of each agency would be required to review the designation of each member of an advisory committee has an appropriate designation, and could redesignate members if appropriate. A person would be considered to be an advisory committee member if they regularly attend and participate in meetings, even if they have no voting rights over committee affairs or are part of a subcommittee.

Appointments to federal advisory committees would be required to be made without regard to political affiliation or political activity unless required by federal law. The head of a federal agency making an appointment to an advisory committee must give interested persons an opportunity to suggest potential members in the Federal Register or on the committee’s website. Agencies must consider all comments submitted in the process of making selections of advisory committee members.

For each advisory committee, federal agencies would be required to make available the following:

  • The committee’s charter;
  • The member appointment process;
  • A list of all current members, including designations as representatives or special government employee;
  • Any recusal agreement made by a member to avoid a conflict of interest;
  • Committee processes for making decisions;
  • Detailed meeting minutes; and
  • Notices of future committee meetings.

Argument in favor

The public should have access to information about who the experts advising federal agencies are, and how they are chosen. Because their position carries significant influence, all advisory committee and subcommittee members should comply with federal ethics laws and conflict of interest rules.

Argument opposed

There should continue to be a distinction between advisory committee members and subcommittee members when it comes to compliance with federal ethics laws. Political appointees to advisory committees aren’t likely to allow political pressure to alter their recommendations.

Impact

Citizens interested in federal advisory committees; members of federal advisory committees and subcommittees; federal agencies; and ethics officials in federal agencies.

Cost of H.R. 1608

The CBO estimates that implementing this legislation would cost $70 million over the 2016-2020 period.

Additional Info

In-Depth: Sponsoring Rep. Wm. Lacy Clay (D-MO) reintroduced this legislation from the 115th Congress to increase transparency and remove political influence within federal advisory committees:

“This bill opens up the Federal Advisory Committee selection and oversight process by providing greater transparency and ensuring real independence for appointees. The act also imposes much tougher standards to ensure that committee members are insulated from political pressure to influence their recommendations. Finally, my act would require any FACA appointee selected by the President or an agency to provide expert advice to fully comply with all conflict of interest rules and federal ethics laws.”

After this bill passed the House in 2016, Rep. Clay said in a House floor speech:

"I have introduced this bill in each of the last four Congresses and I am hopeful that this time the bill will make it to enactment. The Federal Advisory Committee Act is one of our core open government laws....Over time, however, agencies have implemented FACA inconsistently and judges have created loopholes in the law. This bill closes the loopholes that allow agencies to get around the act. Currently, agencies can avoid the requirements of FACA by conducting committee business through subcommittees. This bill makes it clear that FACA applies to subcommittees as well as parent committees."

This bill doesn't have any cosponsors in the current session of Congress. In the 115th Congress, it passed the House, then the Senate Homeland Security and Government Affairs committee, but didn't receive a vote in the full Senate. Last Congress, this bill had three Democratic cosponsors.

Of Note: A number of previous high-profile panels in the past, including President Barack Obama's now-expired Economic Recovery Advisory Board and Jobs Council, relied on subcommittees that met without public notice or access in most instances. This bill would prohibit such meetings.

Media:

Summary by Eric Revell
(Photo Credit: Flickr user ITU Pictures)