and the Secretary of HHS and many of the other officials at HHS. I believe that meeting was open to the press. We were not there at that time, but we have understood that they only discussed some of the content or the subject matter and we have been told that the HHS lawyers told them not to interact, that this was not a meeting. So I believe at that time, they did get some preliminary information about the AIDS subject matter itself. We also found that services contracted to handle travel and other expenses did send notices to each one of the commissioners about allowed travel and other expenses. Other than that, I am not sure. Did any of the interviewers say that they got any other information? Mr. ZIOMBRA. No. I think that pretty much covers it, according to what we were told. Chairman GLENN. I do not know whether you got into it in this kind of depth or not, but I was interested, in reviewing some of this material in preparation for the hearing today, that Dr. Meyers, who was the vice chairman, in his letter back to us in response to our questions of him, had a suggestion that, and I quote out of the middle of his letter here: "It would have been helpful to me as a member of the Presidential Commission to have had an outline of the relevant provisions within the act"-referring to the FACA"perhaps in the form of a handbook that would describe the role of a presidential commission, including answers to some of the common questions about how the group could subdivide the tasks involved, appointment of officers within the commission, travel reimbursement guidelines, perhaps common pitfalls to be avoided. It also would have been quite helpful to know the full range of options available to a commission in achieving its mandate; or in lieu of such a list, a description of those options that are specifically unavailable for a commission to use. Such items should include the dependence and/or independence that a commission should have with respect to the relevant Federal agencies, ability or lack thereof to subcontract specific tasks, definitions of public meetings versus private," and so on. Then he goes on to explain why he feels these things are important. I thought that was a very good suggestion perhaps because people coming on a commission like this have a lot of questions. They want to perform a job. They are coming in because they feel it is their duty to their country and yet they are sort of lost on how you go through this maze of laws and regulations here in Washing ton. From your look at it, do you think that is a good idea? Ms. KLEEMAN. It sounds like an excellent suggestion. I do know that in our interviews, when we did ask questions related to administrative activities, most of the commissioners were not aware of some of the administrative provisions. It sounds like a very good idea. Chairman GLENN. The President announced the selection of the Commission members on July 23. Now, FACA provides that an advisory committee cannot meet or take any action until its charter has been filed with GSA. The AIDS Commission's charter was not filed with GSA until July 28. Did the Commissioners meet or take any action prior to July 28? Ms. KLEEMAN. Maybe our general counsel can answer that. Chairman GLENN. Good. Ms. GIBSON. As I understand it, and I think Ms. Kleeman mentioned previously, they did have a briefing during meetings with the White House and NIH on July 23. I understand that their role was essentially that of an audience listening to speeches and lectures and some discussion of the rules that would be applicable to them, and that they were advised on several occasions by counsel that they could not conduct business, they could not take action as a committee because their charter had not yet been filed. So the indication that we have is that they did not take committee action or conduct business before the charter was filed. Chairman GLENN. The meeting you mentioned out in Rockville, I think, that was one that was rather interesting because I guess they were advised by the lawyers, as you say, not to, "interact." In other words, you can go out there but you are supposed to drink your drink and eat your cookie, or whatever they were doing at this reception, and not discuss anything of any substance whatsoever so it could not be considered a meeting, I guess, which seems a little ludicrous but— Ms. KLEEMAN. Several of the members did tell me they were very impressed with the array of notables who were collected there and they felt that this was going to be a very important advisory committee. Chairman GLENN. Why didn't HHS file the AIDS Commission charter by July 23? What was the hold up on that? That is what was holding up the start of operations, wasn't it? Ms. KLEEMAN. We were not able to find out why. I suspect it is probably just bureaucratic activity. I am not sure. Perhaps GSA would know. The charter is filed with them. Chairman GLENN. Well, the 13 Commission members were finally sworn in on September 9. Why was there so much of a delay from July to September? Ms. KLEEMAN. We have no idea. There were activities during that time but we found nothing to give us any hint on that. Chairman GLENN. Well, this whole Commission is being brought together to develop consensus recommendations on ways for the Government to respond to the AIDS crisis, and it is a crisis. From your observation do you think they are going to be able to do that? Ms. KLEEMAN. We did not look at the content of their work at all so I am not sure that Chairman GLENN. You looked at it as to whether it complied with FACA. Ms. KLEEMAN. We were looking at the administrative provisions. I would say that given the controversial subject matter that they are dealing with and the controversies that we have heard about so far, it will be a difficult matter at best. Chairman GLENN. Well, thank you. We want to do whatever we can to help you get the information you need and I hope the White House will take today's hearing as a sign that we do want to follow through on this. Ms. KLEEMAN. We will follow through for you. Chairman GLENN. The work of the Commission is very important and we are trying to follow through and make certain that FACA is complied with and that we are doing our job in facilitating their work and making sure they keep on the right track. We are not just heckling people. We want to make sure that this stays on the right track and we can get the information. We have a system where the right people can get in. They can be brought together expeditiously, do a job and do it well. That is all we are trying to do and if the law gets in the way of that, then we want to change the law. The law should facilitate that and make sure that this thing stays on track. That is all we are trying to do and I hope the White House will see this as a way to cooperate with us. We should not be playing any games with something as important as this AIDS Commission. We are using it as an example of FACA because it is the most recent, the most visible, and has had the most problems getting off the ground and getting started. And it is important for every one of us in this room that we get that thing underway. So that is the reason that we are using it as an example. Ms. KLEEMAN. We know they are under a tight deadline and we have tried to be as careful about our requests as possible, but we will continue to follow-up and I believe we will have some recommendations for you on possible changes to the act. Chairman GLENN. All right, good. We will look forward to getting those. Thank you very much. Ms. KLEEMAN. Thank you. Chairman GLENN. Our next panel is Mr. Eric R. Glitzenstein of Public Citizen Litigation Group, accompanied by William B. Rubenstein of the American Civil Liberties Union, and Dr. Robert F. Murray, Jr., professor of Pediatrics, Medicine, and Oncology of Howard University College of Medicine. We welcome you to our hearing today and would welcome either a summary version or the entire report. In either event, your entire testimony will be included in the record. Mr. Glitzenstein, if you will lead off, we would appreciate your testimony. TESTIMONY OF ERIC R. GLITZENSTEIN, PUBLIC CITIZEN LITIGATION GROUP;1 ROBERT F. MURRAY, JR., M.D., PROFESSOR OF PEDIATRICS, MEDICINE, AND ONCOLOGY, HOWARD UNIVERSITY COLLEGE OF MEDICINE; 2 AND WILLIAM B. RUBENSTEIN, AMERICAN CIVIL LIBERTIES UNION 3 Mr. GLITZENSTEIN. Thank you, Senator Glenn. I have submitted a rather lengthy statement for the record which covers various aspects of the Advisory Committee law. Chairman GLENN. It will be included in its entirety. Mr. GLITZENSTEIN. Thank you. I will try to distill down for the Committee the essential points in the testimony, starting out with an observation. 1 See p. 110 for Mr. Glitzenstein's prepared statement. 2 See p. 130 for Dr. Murray's prepared statement. FACA, the Advisory Committee Act, is a statute which functions largely in obscurity a good deal of the time. Just leafing through one of the recent reports from the General Services Administration, one would note that such committees as the Advisory Council on Native Hawaiian Education, the West Carson National Forest Raising Advisory Board, the Magnetic Fusion Advisory Committee, although they may be important in a local, narrow community, they are not the kind of committees that are likely to generate widespread public scrutiny and interest. It is essentially when advisory committees are established to deal with major public problems and controversial issues that suddenly the statute becomes of far greater concern to the public and to the Congress, and it certainly seems, as Professor Cardozo noted, that of late we have had more and more advisory committees dealing with major problems. For example, advisory committees have been established to address social security problems, the acid rain issue, the Iran/Contra affair, cutting costs in the Federal Governmentotherwise known as the Grace Commission-pornography, privatization of Federal functions, the stock market challenge, the Challenger disaster and, of course, the central concern here today, the AIDS Commission. The Advisory Committee Act, of course, must have procedures that can apply to committees, the committees ranging from the more mundane, technical committees to these broad, blue-ribbon commissions, and I think that is one of the sources of difficulties in legislating in this area. But these big committees, as you just noted, Senator Glenn, can also serve as a useful framework for analyzing problems with the statute, and they can likewise help to illustrate why the statute is very important. Public money is used to allay public concerns about a major problem; the public is told, in essence-we are not acting now because we need time to study the matter and we need an expert committee to come up with recommendations. If such a committee is not open, accountable, and balanced, then not only is public money wasted, but a great disservice is done to the public and to the Congress because a crucial issue has been put on the back burner. Unless the Advisory Committee Act functions in such a way as to safeguard against the misuse of committees and to insure that there is public accountability, then everyone will suffer the public will suffer because important issues will not be addressed as soon as they could be, commissioners themselves will suffer because they do not have rules that are clear and precise, and, of course, ultimately the government itself will suffer because it will not get the kind of advice and recommendations that may be needed to address various issues. Unfortunately, the predominant ways in which advisory committee problems have been analyzed and thrashed out has been through the cumbersome process of litigation. As Senator Glenn noted in his opening remarks, many important advisory committees have engendered litigation, and there is no way of guaranteeing that such litigation would never occur, even with a statute that seemed to be very clear and Congress's intent seemed to be absolutely unequivocal. However, many of the cases that have come before the courts, including the AIDS Commission case, result from a statute that is not entirely clear on some very basic questions. I hope to very briefly address two of those questions, namely, the balanced representation provision, which is currently at issue in litigation involving the AIDS Commission, and the statute's open government provisions. The balanced representation provision is absolutely essential to the statute. Without a cross-section of views, and without expertise on a committee reflecting various segments of the scientific or technical community that is implicated, then the whole point of the committee is defeated. Either the government will be obtaining recommendations which are not informed on the issues, or the recommendations will be skewed as to some crucial issues. In either event, the whole purpose of developing an advisory committee is undermined. Several things can be done in order to deal with such problems. One of the things that needs to be done is to clarify that members of affected public groups can sue to enforce the balanced representation requirement. In the AIDS Commission case and, previously, in the case involving the Grace Commission, the Justice Department argued that the Advisory Committee Act does not even provide the public with the right to go into court and insure that there is balanced representation. Thus, it would be very helpful if the statute were clarified so that the public would not have to overcome those threshold problems in litigation. A more substantive concern relates to the representation of affected groups. It seems absolutely clear that an advisory committee which is established to prepare recommendations that could have a direct and possibly adverse effect on various public groups should have representation of those groups. In the AIDS Commission example, it is hard to see how an advisory committee can come up with recommendations dealing with, for example, the development of new drugs to address the AIDS problem, or, perhaps, relating to the testing of people for the AIDS virus, unless it has some representation of those who carry the virus or are in more advanced stages of the disease. We believe that such representation is crucial not only to fundamental fairness, but it also makes fundamental common sense that those who have suffered the most and have dealt the most with a problem will bring unique experiences to bear on how to resolve the problem. That leads to my next point-unless you actually insure that people who have expertise in the relevant areas to be studied, it is impossible to fathom how a commission can be expected to develop appropriate recommendations. By way of comparison, it is useful to refer to the relatively recent Space Shuttle Challenger Accident Commission. There seems to be widespread agreement that the composition of that commission included the people who knew the most about the problems under study-including one of the top experts in rocket engines, a Nobel Prize winning physicist who conducted impromptu experiments to determine what had gone wrong with the Challenger, an Air Force general in charge of military space programs, et cetera. Moreover, the Commission was assigned |