ticular field, which means they may be an officer of a large corporation that manufactures something. So for that kind of conflict, we really do not need anything more than knowing what the affiliation of the person is.

The particular example you just gave, you put on somebody as a representative of the consumers who has a conflict. That is another matter.

Senator LEVIN. Well, but that is a problem, because we do not require them, as I understand it, to file financial disclosure forms. But there could be an appearance, at least, of a conflict of interest. Mr. CARDOZO. That is right. But there is another point here and that is, the Department of Defense has been asking for conflict of interest statements from all of their advisory committees and they have lost the services of some committee members because they were not in a position where they wanted to reveal their financial position.

That is the problem. You get some people who just will not serve if they have to do that.

Senator LEVIN. Which is the chilling effect issue. But is it not worth it? That is the question. I mean, we have to decide that issue. It seems to me it is a pretty fundamental issue as to whether or not we want the conflict of interest statutes and regulations to apply to these people who are serving on advisory committees.

Mr. DEMBLING. Of course, in some cases advisory committee members are considered special Government employees and they do come under the conflict of interest statute; many of them do not, however, and it can be recognized.

Senator LEVIN. Do you recommend that we apply the conflict of interest statutes to advisory committee members or not?

Mr. DEMBLING. Well, I would not-I am troubled by whether it would have, as I say, a chilling effect. If it would eliminate the availability of many experts, then I think that it would not serve a useful purpose.

Perhaps what can be done is that the agency itself, would assure itself of conflicts. There might be a self-certification of no conflict by the individuals concerned. That is a possibility. Balancing of advisory committee membership is another possibility. And then if you do apply the conflict of interest statute, there is a provision in 18 USC 208 that provides for a waiver by the head of the agency. So if it were a case where the services were needed and it was important enough and it was not a real conflict, a waiver could be granted.

Senator LEVIN. Thank you. Senator Roth?

OPENING STATEMENT OF SENATOR ROTH

Senator ROTH. Mr. Chairman, unfortunately I have to attend a meeting of the Finance Committee on the budget deficit so I cannot participate.

I do have a statement which I would ask to be included as if read, and I do want to congratulate our Chairman for holding these hearings. I think they are timely. I think they will provide a valuable service and I would just like to go back and say that I think

Senator Metcalf who played such a key role would be pleased at the proceedings today.

Thank you, Mr. Chairman.

[Senator Roth's prepared statement follows:]

STATEMENT OF SENATOR ROTH

As one of the coauthors of the Federal Advisory Committee Act in the 92nd Congress, I said then that "there is a role for [advisory committees] to play in our government. Advisory Committees provide an opportunity for citizens to participate and become involved in our Government."

But, as one of the other authors of the Act, Rep. John Monagan, said, “. . . by not having the proper management and control we demean that role."

I think it is worth taking a moment to recall the situation that Congress faced in 1971. First, we didn't know how many advisory committees there were or how much they cost-and we couldn't find out. There were educated guesses that ranged from 1,800 to over 3,000. No agency had the responsibility to keep track of the creation, operation, or termination of advisory committees.

Second, there were no guarantees of public access to the deliberations of these advisory committees. Some met in closed sessions. And, there was no requirement that public notice be given of advisory committee meetings that were open to the public. Accordingly, many were concerned that special interests could exercise undue influence on government decisions without scrutiny.

So, we addressed these concerns in the Federal Advisory Committee Act. First, we required OMB to commence annual reviews of all advisory committees, whether created by the Executive Branch or the Congress. With this review, we would have an accounting of all advisory committees. This responsibility was transferred to GSA by President Carter in 1977.

Second, we required that advisory committee deliberations be in public, with some exceptions tied to the Freedom of Information Act.

And, we required that advisory committees be terminated after two years unless rechartered by the parent agency. As I said at the time of Senate passage of the bill, this was intended to slow the proliferation of unneeded and overlapping advisory committees which was perceived at that time to be the most immediate problem. So now, 15 years later, I think it is fair to say that great strides have been made in regulating Federal advisory committees. And, yet, over that period, we can see that problems remain to be addressed. Congress creates a lot of advisory committees as we did, for example, in the trade bill. And, questions of interpretation and implementation of several provisions have been raised, such as one-time meetings, membership balance, and the closing of meetings. These ought to be reviewed by the Committee.

On a couple of occasions this year, our Chairman has recalled the leadership of our late colleague, Senator Lee Metcalf, to bring some order to federal advisory committees, including rooting out and eliminating the unnecessary ones. I am sure that he, too, would be pleased that this hearing was convened.

In these times of budget austerity, every dollar counts. Where advisory committees are inactive or have fulfilled their mandate, we should be diligent in withdrawing their charters. If a redoubled effort toward this goal and the clarification of certain provisions of the Act result from this hearing, we indeed will have made a positive contribution to the Federal advisory committee system.

Senator LEVIN. Thank you, Senator Roth. Of course, your statement will be made part of the record. I also have a statement which I will indicate at this point I would like to be made part of the record.

[The statement referred to follows:]

OPENING STATEMENT OF SENATOR LEVIN

Mr. Chairman, I am pleased that you have begun hearings on the Federal Advisory Committee Act. Given the large number of advisory committees and the recent penchant we seem to have for Congressional and Presidential Commissions as the answer to some of our thorniest problems, it is important for this Committee to make sure that the requirements of the Act are being followed and that the purposes behind the establishment of advisory committees are being achieved.

While strict compliance may be somewhat uneven, on the whole, the statute appears to have worked well over the past 15 years. For the most part, as a result of FACA, the public is able to know who is advising government and what advice is being given. Moreover, I suspect that the quality of advice given to government is better than it was before the Act for the mere fact that it is subject to public scrutiny. But that doesn't mean FACA is a perfect statute. To the contrary, over the years there have been many law review articles pointing out the deficiencies in the statute, and a good number of disputes concerning the application of FACA have ended up in court.

Just this year there have been several court challenges to advisory committees on the basis that they did not comply with FACA, the most recent involving the establishment of the AIDS Commission by the President, which will be discussed today. Because the statute is so important and because there has been recent controversy about its administration and enforcement, this is good time to revisit the statute to determine if it should be amended or clarified.

One problem that is of particular concern to me is the area of conflict of interest. There is language in Section 5 of FACA that says advisory committee members shall not be unduly influenced by the appointing authority or by special interests, but there is nothing beyond that. Questions have been raised about the extent to which certain advisory committee members, particularly with the Department of Defense, may in fact be economic beneficiaries of the very decisions that the advisory committee makes. For example, frequently defense contractor representatives serve on DOD advisory committees which endorse certain activities or procurements with those very same contractors. My staff has been looking into this issues with regard to the Star Wars program, in particular. Several of our witnesses will testify to some extent about the conflicts problem this morning. However, as you and I have discussed, it is a thorny issue that deserves fuller attention, and we expect to have a full Committee hearing on that aspect of FACA early next year.

I am interested in FACA and this hearing this morning for another reason, Mr. Chairman. As you know, I have introduced a bill this session that encourages agencies to use the process of negotiated rulemaking. That is the process where an agency intending to issue a rule invites the major parties that will be affected by the rule to form an advisory committee to sit down with agency officials to develop the rule. The process has been successfully employed by EPA and several other agencies within the last several years on a number of rules. The process promises a better rule when the parties affected by the rule have a hand in its development. Likewise, they are less likely to challenge a rule which they helped create.

I mention the bill because the necessary ingredient to a negotiated rulemaking is that the negotiating committee is balanced—that is, composed of representatives of all the major identifiable interests that will be affected by the rule under consideration. What we have learned in the area of negotiated rulemaking about achieving balance may be useful in reviewing the requirements of FACA.

Thank you, again, Senator Glenn, for convening this hearing. I look forward to the testimony of today's witnesses.

Senator LEVIN. I just have a few additional questions for this panel and then we will move on to our other panel.

Mr. Cardozo, you have mentioned the controversy over one-time meetings and whether they should be covered by FACA. It seems to me that the chartering requirement may be burdensome and time consuming for a one-time meeting. Would you favor an amendment of FACA that would exempt those one-time meeting panels from the chartering requirement but still require them to comply with the notice and the open meeting requirements of FACA?

Mr. CARDOzo. I believe that what I would advocate is that the one-time meetings not be covered, but I think it can be done by the regulations. If there is no structure, if there is no continuing membership of the group, so that it really is a one-time gathering of a few advisers to the President or to a head of a department, for example, they just are not within the definition of a committee because it has no structure and no continuing role.

So I do not think an amendment is necessary unless the regulations come out and say differently. Then, I suppose if the Congress thought that was wrong, they should amend it.

Senator LEVIN. My last question of Mr. Dembling would be this. You have recommended doing away with the consultation requirement. Would you still keep the secretariat to provide guidance to agencies and to see that the agencies comply with the act?

Mr. CARDOZo. Yes, I would.

Senator LEVIN. Would you suggest that the secretariat be beefed up to exercise more clout?

Mr. CARDOZO. I think so, and I think that that might be the place where, if you were going to assign a responsibility for monitoring, that that would be the place where it could monitor.

Senator LEVIN. Thank you, gentlemen.

Chairman GLENN. Thank you. Sorry I had to be away so long. It takes a little while to get over to the floor and back and I was delayed a bit there.

The Federal Advisory Committee Act places administrative burdens on agencies which seek advice from groups of outside experts. The GSA's final rule on advisory committees contains a number of examples of advisory meetings or groups deemed not subject to the act.

Mr. Dembling, do you think that the agencies might increasingly invoke these exemptions to avoid chartering bona fide advisory committees? Is this a hindrance that we should get away from?

Mr. DEMBLING. I do not know whether they do it deliberately. I I think that the topic is addressed occasionally when a committee is sought to be established and there is a feeling that there is a great deal of administrative hurdles to overcome. Various approvals are required and so forth. The thought then arises wouldn't it be easier to accomplish it in some other fashion. So I think that that is the route that may be taken on some occasions.

Chairman GLENN. Professor Cardozo, FACA requires there be an annual review of all advisory committees. Do you believe this review needs to be done every year or could there be another different cycle established? Should the review be performed by us as our oversight function? Or should GSA or somebody else do this? Mr. CARDOZO. There are two aspects of review, of course. One is whether the committee should be continued in existence, and the other is the question as to whether its recommendations should be carried out in some way.

On the question of whether they should continue in existence, I think that the OMB's regular survey of the needs and appropriations for agencies is sufficient review to determine whether they should be continued in existence. Incidentally, if they do continue in existence but do not perform any function, they probably do not involve expenditure. So it is not a matter of great concern whether they continue in existence or not.

But on the other part as to whether the recommendations of important committees and commissions and so forth are being followed. There it seems to me that somebody should review as to whether it is being done, and Section 6-B that was cited by Senator Levin shortly ago would be the kind of review that somebody should see what is done.

But I do not think legislation will make it any better. It requires the executive branch to set up a system of doing that.

Chairman GLENN. Well, this Committee cut out quite a number of Committees in the past. One of the things I was going to put in my opening statement and then decided to leave out is that every year approximately 10 percent of all advisory committees are terminated but about the same number get created every year, too. We have a 2-year sunset for all advisory committees unless they are specifically authorized to continue for a more lengthy period of time or unless Congress has created one of them as a standing committee.

Incidentally, through some of the charts and preparation that we did for this hearing, we found that one of the biggest offenders as far as the proliferation of committees is the Congress itself. Back years ago during the Carter Administration we got into a zerobased review of all Advisory Committees which you may recall. We were effective on this Committee in cutting out some 468 committees. At that time I think there were about 1,600 or 1,700, committees altogether.

We cut out 468-60 of them by merger, 239 by just being abolished, and 169 by expiration, for a total of 468. But during that same time period, 184 committees were created. So although almost 500 committees almost were eliminated, the net decrease was 284. Well, we cut out a lot of deadwood at that time and I thought it was an effective thing to do. We do not, however, want to carry this idea to the point where we stop getting the good information that some of these committees provide and at a very cheap cost. Mr. CARDOZO. Senator, if I might just comment on that. It always looks good when some part of the Government is cut out so that it looks as though you are saving money. But in the advisory committee system, cutting them out does not necessarily save money, and if there is too much enthusiasm for that you can cut out some committees that are doing a lot of good.

Chairman GLENN. Mr. Dembling, FACA does not contain any explicit enforcement provisions. As a result, in the pending court case over the composition of the President's AIDS Commission, the Justice Department claimed that Congress may not have intended that there be a private right of action to enforce the balanced membership requirement of FACA.

Do you think the act should be amended to clarify the intent of Congress on this issue of enforcement?

Mr. DEMBLING. Yes. I think that Congress should speak on this matter and determine once and for all whether there is such a private right of action in this instance.

Chairman GLENN. Mr. Cardozo, what do you think?

Mr. CARDOZO. Well, I am not sure that you need any legislation. As Mr. Glitzenstein, who is here, will testify, they have succeeded in bringing actions in courts, somewhat similar to the action that is expressly authorized under the Freedom of Information Act, to require an agency to stop conducting meetings unless they balance them or unless they follow the act in some way.

It seems to me that the courts have held that they have jurisdiction to order the agencies to abide by the act, so it may not be nec