In 1986 alone over 24,000 individuals served on advisory committees, as I said, 1,000 committees in existence at any one time. It has gone considerably above that in the past and this Committee was active in the mid-1970's in believing we had formed too many committees. We had a zero option base that we pushed at that time and some 400 committees were cut out.

The total committee costs have fluctuated, rising from $25 million in 1972 to over $82 million in 1986. However, when we convert these cost figures to 1972 dollars to account for inflation, the increase is much smaller-from $25 million in 1972 to only $31 million in 1986, a very modest increase.

Though the nominal cost of each expert's advice per year has risen from $1,800 in 1974 to $3,400 in 1986, when we discount these figures for inflation, the cost per expert in real dollars has actually decreased to only $1,300 in 1986.1

However, the story of the Federal Advisory Committee Act is not contained in the number of committees or their costs or the numbers of people involved. We need only look as far as the President's AIDS Commission to see that there is still, even after 15 years, considerable confusion concerning the interpretation of the most fundamental provisions of the act.

I am disturbed to find continued litigation over basic questions such as whether a specific group is an advisory committee as defined in the act or whether the group meets the act's balanced membership requirement. Over the years portions of the act have been criticized by several Federal Court judges called upon to interpret its provisions and Congress' legislative intent.

Indeed, one Federal judge in commenting on FACA said the following, that it was:

Obscure, imprecise, and open to broad interpretations. If more expertise were applied to such enactments to ensure that Congress states with more precision what it intends, the rules of the game would be more sharply drawn and court involvement could be less.

That tosses the ball back in our court a little bit to make sure that we correct those difficulties that are inherent in the act itself. I realize that no law can ever cover every possible situation, and I do believe that the original architects of FACA did a fine job in creating the advisory committee system.

Senator Roth-who I understand will be here in a little while this morning-Senator Roth, who is our distinguished ranking member of this Committee, has had a very, very longstanding interest in this subject. He has been a leader in bringing some order to what was a completely chaotic situation prior to FACA. I am sure Senator Roth will want to join me in seeking to determine whether the act needs to be redrafted, even, at this time to provide clearer guidance to those charged with its interpretation and administration.

Let me say just a few words here about the use of the AIDS Commission as part of our ongoing study of FACA. The President created this advisory group as a result of strong pressure from the Senate to do so.

214 for charts and data on advisory committee cost and composition.

As a result, we have a very real desire to see that the appointed AIDS Commissioners devote their full time and attention to developing a plan for responding to the complex social and medical problems that AIDS presents. The urgency of this task was clear from the day the Commission was created 5 months ago.

What we are concerned with today is the fact that the Commission has had difficulty establishing a working environment which would allow it to complete its task. The public record suggests that this Commission for months has been distracted and confused and the Chairman of the Commission himself has been quoted as saying that the Commissioners have not done the job they were tasked to do. I know they came out with their first report, their interim report, yesterday, and we are glad to see some progress being made there.

Today we will hear testimony on how the Governmental Affairs Committee could clarify FACA to improve the functioning of important advisory groups such as the AIDS Commission.

I am pleased to learn the Commission has completed its interim report 5 days ahead of schedule. Although the report will not be the focus of our hearing today the particular policy recommendations that may emerge from the work of the AIDS Commission are things that we will look forward to hearing about at some point in the future.

So, with those words of introduction I am glad to welcome everyone here this morning. We have five different panels this morning, so it will be a long morning. We will try and move through as expeditiously as we can.

We had a choice of trying to put five panels together and have the hearing all in one morning or to try and do this in several hearings and have fewer panels per hearing. We decided that since the holidays were coming upon us and there was going to be a gap in our ability to have hearings and get people into town, or to get members together, that we would try and get as much as we could crammed into 1 day. So we will appreciate everyone's cooperation in making their points succinctly and to the point so we can move along and get to as many people as we can.

The first panel on our witness list consists of Mr. Michael H. Cardozo, former executive director, Association of American Law Schools; and Paul G. Dembling, senior partner in Schnader, Harrison, Segal & Lewis, who was a former general counsel of GAO and of NASA.

Gentlemen, we welcome you this morning and we look forward to your statements, either in a summarized version or in their entirety. In either event, the statements will be included in our record in their entirety as you presented them to the Committee. So we welcome you this morning, and Mr. Cardozo, if you would lead off, we would appreciate your testimony.

Thank you.

TESTIMONY OF MICHAEL H. CARDOZO, FORMER EXECUTIVE DIRECTOR, ASSOCIATION OF AMERICAN LAW SCHOOLS;1 AND PAUL G. DEMBLING, SENIOR PARTNER, SCHNADER, HARRISON, SEGAL & LEWIS 2

Mr. CARDOZO. Thank you, Senator Glenn.

To introduce myself a little more, my involvement in the Federal Advisory Committee Act started with serving as a consultant to the Administrative Conference of the United States, and I prepared a report which has been published. Since then I have been involved in various ways with the act and the various committees to determine what should be done about it. There are a number of other reports that have been published, too, and all of them have helped to clarify the problems.

The importance of the act is exemplified by the continual establishment of new committees dealing with emerging problems and crises and by the strength of feeling on issues arising out of operations under the act. Some of these facts have been brought out by Senator Glenn's statement and I will try not to repeat them.

Right now there is litigation involving, both the operation and the status of the Presidential Commission to study AIDS and also the Committee on Judicial Selection of the American Bar Association, showing the kind of problem that arises under the act. I will discuss those a little further on.

In the recent past, the Commission on the Three Mile Island accident and two commissions on obscenity and pornography have dealt with critical subjects. And only last month the President created a task force to advise on the stock market situation.

The act was introduced and enacted because of a perception that important Government decisions were often being made on the strength of advice received from representatives of powerful special interests without the benefit of views from other persons, especially those who would be representative of the public interest. In other words, without balance.

Committees with members from major industries had been organized without public announcement and had been meeting with Government officials involved in supervising or regulating the industries represented. It was evident that in 1972 that hundreds of committees were advising almost every Government department and agency. Most of them did not have the dangerous characteristics of the industry-oriented ones described above, but there was concern that they were costing the Government more than was justified and might not be serving a function that warranted their continuance.

Senator Metcalf of this Committee at that time was the one who led the way to having hearings and eventually the act going through. Senator Roth, as has already been pointed out, was on that Committee and it is quite welcome to find that after all these years another Senator and Senate Committee are showing interest in the act.

1 See p. 65 for Mr. Cardozo's prepared statement.

2 See p. 76 for Mr. Dembling's prepared statement.

The principal provisions of the act call for registration with a designated Government office of a charter stating the functions of the committee and the area of its advisory responsibility; a proper balancing of membership among various interests; meetings announced in the Federal Register; and, with specified exceptions, the meetings open to the public. Preparation and making public reports of all meetings and activities were required, including keeping all standing committees of Congress informed of those activi

ties.

The congressional committees that introduced the act said that the committees can provide a means by which the best brains and experience available in all fields of business, society, Government and the professions can be made available to the Federal Government at little cost. In other words, the Committee was pointing out that advisory committees are good for the Government and our society. They were characterized as a contribution by the governed to the Government.

Very few members of the advisory committees receive any compensation, and therefore the cost is far less to have advisory committees of this kind than having experts put on the Government payroll or brought in as consultants.

There is a problem, however, because of the number of committees that continue in existence where they do not seem to be performing any functions, such as a few of those that have been required by acts of Congress. Nobody is entirely sure as to how those can be terminated. Senator Glenn has already told of the numbers that are involved. I will not repeat that, but it is in my statement which will be in the record.

The act has improved the system of advisory committees. The filing of charters enables the public to know when a committee has been created. Published notices of meetings assures some public access to the proceedings. The requirement of balance in the membership prevents excessive influence by single special interests. In the overwhelming number of instances, the entire system works in the public interest without undue burden on the agencies.

However, there have been some problems in the administration of the act. For example, in the peer review system where people are applying for grants, for example, from a Government agency and the committee is set up to decide who should receive the grants, those meetings almost always are closed even though they are advisory committees. And the result is that the people—the applicants cannot find out what was said about them. People do not know why they were denied, for example, on an application. This is one of the problems.

However, on the other side, many people-members of the advisory committees-say that they would not be able to have a candid discussion of applicants if what they were saying were open to the public. However, in the case, for example, of the American Bar Association Committee on Judicial Selection, it also means that the judges who get an adverse recommendation do not necessarily know why it was that they got the adverse outcome.

One of the most troublesome questions has been the definition of an "advisory committee." A difference of opinion, for example, has existed over the problem of one-time meetings. Would a gathering

of a few selected individuals at the instance of an agency head to discuss the handling of an immediate emergency confronting the agency be a committee? Could the Attorney General, without chartering and public notice, invite three or four law professors to his office to discuss the ramifications of an incident involving criminal law and the Constitution? People who come in one day, and there is no continuing membership, no structure and so forth-many people feel that that kind of a meeting is not a meeting of an advisory committee. Others, however, have argued that even that kind of a meeting should be under the act. That is an unresolved problem, but at the present time the regulations seem to exempt most of that kind of one-time meeting.

A group of individuals affiliated with some organizations such as a university, for example, that prepare a report and send it to a Government agency which then reads the report and acts on it: the question is whether that group's report is "utilized" by the Government agency, since the act says that any group "that is established or utilized by the Government agency" should be under the act. That definition has given a great many problems. But, of course, if private people form a group and send a report in, to say that they must be under the act would put an impossible burden on many organizations such as universities if they had to follow all of the requirements of the act.

Another kind of group that is considered outside the act is the so-called “operational committee," those that make decisions and do something such as, again, selecting applicants for a program such as the Fulbright program or something like that. The Bicentennial Commission on the Constitution was declared to be an "operational committee" and therefore not under the act. That also has raised some problems, because it is not quite clear why that kind of group should be outside of the act.

One problem that is quite important and should be interesting to this Committee, of course, is the question of oversight. That is, why should not there be some agency or somebody to see that the recommendations, for example, of presidential commissions are followed up and have some way to see that the recommendations of these experts are carried out.

Lloyd Cutler, when he testified on the committees when the act was being considered, said that, "the Presidential commissions burst on the scene and then pass from public view like comets, only to appear again in much the same form years or even decades later." He alluded to the successive commissions created to consider crime and law enforcement: Wickersham in 1930; Katzenbach in 1965; Milton Eisenhower in 1969; and nothing was done about them.

The commissions on pornography and obscenity are the same thing in 1970 and 1985. The President in 1970 threw it in the waste basket because he did not like the outcome, and so they had another one in 1985 which other people thought was inadequate and, again, nothing was done.

The question is, should there be some part of the Government which would each year, perhaps, report on what progress is being made to see that the recommendations are being considered and to a proper extent being carried out. It may be that congressional