Advisory committees and Federal Advisory Committee Act (FACA)
Advisory Committees and the Federal Advisory Committee Act (FACA)
What Are Advisory Committees?
Advisory committees are groups established by government agencies to provide expert advice, recommendations, or guidance on specific issues or policies. They do not have decision-making power but help inform government decision-makers.
Examples: scientific advisory panels, ethics committees, or economic advisory boards.
What is the Federal Advisory Committee Act (FACA)?
Enacted in 1972, the FACA regulates the formation and operation of federal advisory committees.
It aims to ensure transparency, accountability, and balanced advice from these committees.
Key provisions include:
Open meetings: Advisory committees must conduct meetings in public.
Public notice: Meetings require advance public notice.
Records and minutes: Committees must keep detailed records accessible to the public.
Balanced membership: Committees should be fairly balanced in terms of viewpoints and expertise.
Charter requirements: Committees must be formally chartered and renewed every two years.
Why FACA is Important?
Prevents secret policymaking behind closed doors.
Encourages public participation and scrutiny.
Ensures committees reflect diverse perspectives.
Detailed Case Law Explanation
1. Public Citizen v. Department of Justice (1989) — Supreme Court
Facts: Public Citizen challenged the Department of Justice for excluding representatives of the press from advisory committee meetings.
Issue: Does FACA require advisory committee meetings to be open to all members of the public, including the press?
Held: The Court ruled that the meetings must be open to the public, including the press, to comply with FACA.
Significance: This case reinforced the transparency mandate under FACA, emphasizing public and media access to advisory committee meetings.
2. American Federation of Government Employees, AFL-CIO v. FLRA (1990)
Facts: A dispute arose over whether certain advisory bodies constituted "advisory committees" subject to FACA.
Issue: How broadly does FACA apply to different types of advisory groups?
Held: The Court adopted a broad interpretation of what constitutes an advisory committee under FACA, covering any group established or utilized by federal agencies to provide advice.
Significance: This case clarified that FACA’s reach is extensive, applying to any group with advisory functions created or used by federal officials.
3. Weinberger v. Catholic Action of Hawaii (1978)
Facts: Plaintiffs challenged the formation of a Presidential advisory committee on aging, arguing it violated FACA.
Issue: Whether a committee created by the President is subject to FACA.
Held: The Supreme Court held that Presidential advisory committees are exempt from FACA’s requirements.
Significance: This is a major exception in FACA; advisory committees directly established by the President or his immediate office are exempt.
4. Ass’n of American Physicians & Surgeons, Inc. v. Clinton (1994)
Facts: The plaintiff challenged the appointment and functioning of an advisory committee on health policy.
Issue: Whether failure to comply with FACA’s notice and open meeting requirements invalidates committee recommendations.
Held: Courts held that non-compliance with FACA’s procedural requirements can lead to invalidation of the committee’s actions.
Significance: Emphasized that procedural compliance with FACA is critical for the legitimacy of advisory committee recommendations.
5. Croplife America v. Environmental Protection Agency (2005)
Facts: Croplife America challenged EPA’s advisory committee operations regarding pesticide regulations.
Issue: Whether EPA’s advisory committee violated FACA’s balanced membership requirement.
Held: The court found that the EPA had failed to ensure balanced representation, violating FACA.
Significance: Stressed the importance of balanced committee membership reflecting diverse viewpoints as mandated by FACA.
6. In re American Federation of Government Employees, AFL-CIO (D.C. Cir. 1994)
Facts: The AFL-CIO alleged that the Federal Labor Relations Authority (FLRA) created advisory groups without adhering to FACA.
Issue: What constitutes “use” of an advisory committee by a federal agency under FACA?
Held: The Court ruled that if a federal agency relies on or uses advice from a group, even if not formally established, it can be subject to FACA.
Significance: Expanded the scope of FACA to include informal advisory groups “used” by agencies, ensuring transparency.
Summary Table of Key FACA Cases
| Case | Jurisdiction | Key Issue | Principle Established |
|---|---|---|---|
| Public Citizen v. DOJ (1989) | US Supreme Court | Public access to meetings | Advisory meetings must be open to the public |
| AFGE v. FLRA (1990) | US Courts | Definition of advisory committee | Broad interpretation of FACA’s scope |
| Weinberger v. Catholic Action (1978) | US Supreme Court | Applicability to Presidential committees | Presidential committees exempt from FACA |
| AAPS v. Clinton (1994) | US Courts | Compliance consequences | Non-compliance can invalidate committee actions |
| Croplife America v. EPA (2005) | US Courts | Balanced membership | Committees must reflect diverse viewpoints |
| In re AFGE (1994) | US Courts | “Use” of advisory groups | Informal advisory groups used by agencies covered |
Conclusion
The Federal Advisory Committee Act (FACA) is a critical statute that ensures advisory committees operate transparently and fairly, balancing input from diverse perspectives and providing the public with access to government advisory processes.
Key takeaways:
Most advisory committees are covered by FACA unless exempt (e.g., presidential committees).
Meetings must be open and publicly noticed.
Records and minutes must be kept.
Membership must be balanced.
Non-compliance with FACA can invalidate committee actions.
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