White House Moves to Limit Lobbyists on Federal Advisory Committees

The White House announced [1] Sept. 23 that it informed executive branch agencies and departments that federally registered lobbyists are not to be appointed to federal agency advisory boards and commissions. This is the latest attempt at removing the influence of federally registered lobbyists within the executive branch.

The blog post announcing the policy was written by Norm Eisen, Special Counsel to the President for Ethics and Government Reform, and did not clearly ban federally registered lobbyists from advisory committees. Instead, Eisen used rather ambiguous language, saying it is "our aspiration that federally-registered lobbyists not be appointed to agency advisory boards and commissions." Many nonprofit advocates say this narrow focus on federally registered lobbyists remains misguided, and some are concerned that qualified experts will be excluded from participating in advisory panels.

Executive branch agencies use Federal Advisory Committees (FACs) as a means of furnishing expert advice, ideas, and diverse opinions to the government on a variety of public policy matters. The Federal Advisory Committee Act (FACA) was enacted to ensure that the advice to government is open, time-limited, and objective. FACA requires that committees be fairly balanced in their views, that the public is given notice of meetings, and that advice given to government is properly disclosed. Information about people serving on FACs must also be disclosed. According to the General Services Administration, in Fiscal Year 2007, 52 government agencies used 915 advisory committees with a total of 65,000 members.

Eisen promoted the policy statement as "the next step in the President's efforts to reduce the influence of special interests in Washington." President Obama's Jan. 21 executive order on ethics [2] banned federally registered lobbyists – for two years – from working in an agency they previously lobbied, but the order did not apply to advisory boards. Eisen's post states, "Keeping these advisory boards free of individuals who currently are registered federal lobbyists represents a dramatic change in the way business is done in Washington."

Craig Holman of Public Citizen told The Hill [3] that it "would be a natural extension of the existing revolving-door prohibitions that prevent administration officials from working on issues on which they recently lobbied. It makes sense that the same conflict of interest concerns would apply to the panels, which administrations often rely upon to develop policy."

This decision will likely affect the make-up of some agency committees, and some experts suggest that it may negatively impact discussions about important policy matters. Others note that the policy could backfire and not reduce the influence of special interests but reduce useful information that is publicly logged.

A way around the administration's "suggestion" is to have someone who is not a federally registered lobbyist, but who is from the same industry that such a lobbyist would represent, sit on an advisory panel. This would meet the White House’s newest objective but certainly would not reduce the influence of special interests in the executive branch.

The "suggestion" also provides no distinction between lobbyists working for nonprofit public interest organizations and those working for for-profit concerns. Additionally, the "suggestion" would mean the expertise that the federally registered lobbyist might have would be lost to the committee. Finally, the "suggestion" does not address the fact that many agencies already provide online disclosure of FAC members or that some have strict guidelines about conflict of interest.

As occurred after the order was issued on executive branch hiring, many observers questioned whether or not there would be an increase in the number of lobbyists deregistering. Recently, Reuters [4] reported that restrictions on lobbyists have resulted in "unexpected consequences with some lobbyists giving up their formal registrations and finding other ways to influence policy as they try to maintain access to key agencies or hope for future government jobs."

Additionally, lobbyists on the committees are not the only ones who exert influence within government. For example, those who make large contributions to lawmakers have not been included in attempts to reduce influence on government agency decisions. Influence exists, whether it comes from a federally registered lobbyist or those who do not quite meet the definition of "lobbyist."

Currently, there is no other specificity or guidance related to the new policy besides Eisen's blog post. Therefore, whether or not the announcement about lobbyists on advisory committees should be taken as policy is questionable at this time.

Government watchdogs note that FAC panels may need to be reformed in a way that can allow lobbyists with subject-matter expertise to serve while addressing existing deficiencies. For example, during the 110th Congress, the House passed a bill that would have resulted in stricter conflict of interest disclosure requirements on advisory committee members and prohibited the practice of outsourcing advisory duties. Open government advocates supported those disclosure requirements and noted that making public the identities of advisory committee members would go a long way toward neutralizing the special interest effect on advisory committees. The bill died in the Senate.

In November 2008, a diverse group of regulatory experts and advocates [5] coordinated by OMB Watch made the following recommendations [6] to the incoming Obama administration that would strengthen FACA and the advisory committee system in several ways:

• Require agencies to appoint to scientific advisory committees individuals from the disciplines relevant to the charge of the advisory committees. Such appointments should be made without consideration of political affiliation or activity.
• End the practice of hiring private contractors to develop advisory committees to avoid FACA requirements. This practice has been used by some agencies to claim under a legal loophole that they do not have strict management over the committees.
• Extend FACA requirements to all subgroups of covered advisory committees.
• Make the processes by which committees operate and by which their members are selected fully transparent.