committees concerned with the legislation involved would be the ones to do some of that kind of oversight. Possibly it should be the Office of Management and Budget and, of course, GSA now is the agency that is charged with some kind of control and oversight of the committees. Some people think that legislation is needed in order to resolve all of these problems and questions. Others feel that legislation is not needed, that it can all be done by regulation and by executive order. And the testimony of the people who are here this morning is to help this Committee to decide that question. Thank you. Senator LEVIN [presiding]. Thank you, Mr. Cardozo. Mr. DEMBLING. Thank you, Mr. Chairman. My name is Paul Dembling. I am presently a partner in the Washington law firm of Schnader, Harrison, Segal & Lewis. During my Government service I served as general counsel of several agencies and first was confronted with the Federal Advisory Committee Act and its operations. My interest was peaked again when I served as president of the Federal Bar Association and appointed a committee to study and consider the operations of the Federal Advisory Committee Act. This balanced committee made its report and we hope that it contributed to the thinking in connection with the operations of the advisory committee system. In order to save time, I think I will summarize my statement and hope that the entire one will be inserted in the record. Senator LEVIN. It will be. Mr. DEMBLING. As has been pointed out, advisory committees are an important and cost-effective part of the Federal Government. As the Chairman indicated in his opening statement, there are over 20,000 individuals serving as advisors and operating through approximately 1,000 separately organized committees. FACA is an extremely important statute. It provides the structure whereby public officials can balance the need for the Government to obtain advice, and yet obtain that advice in open fashion. Over the years there have been some uneven spots and I listed some of them: (a) what constitutes an advisory committee; (b) the applicability of the act to subcommittees, task forces, and working groups; (c) the requirement for balanced membership in terms of committee purposes and affected interests; (d) the extent of independence and (e) the manner in which agency support services should be provided to presidential committees. FACA now permits a great deal of flexibility in interpretation. This has resulted in differences in approaches and operations by various agencies. I believe that the requirement for a central governmental agency consultation on the decision of a Cabinet officer or agency head to create an advisory committee should be eliminated. The Congress reposes a great deal of authority and responsibility in agency heads. The agency head can be held accountable for the action within his or her agency, and consequently, I feel that there is not a need for consultation to establish an advisory committee. If there is any central Government function, it should be to review the actions taken as a result of the committee's recommendations and to determine the general compliance with the provisions of the act regarding openness of the process, balanced membership, and freedom from undue influence, either by outside interest groups or by particular agencies or officials within the Government. There is a comprehensive report required by the act at the present time. In some fashion this can be utilized to accomplish the oversight review purpose, in addition to the factual reportorial. FACA should also provide for agencies to obtain a definitive interpretation of the act from a centralized, recognized source. The Department of Justice has generally occupied this position in the Government but it has not performed this function for FACA. GAO continues to exercise its role where a question of the expenditure of funds is involved. However, there ought to be an authoritative legal interpretative office for the agencies to call on for rulings. There is a need for greater clarity in the act's provision that an assigned agency will provide support services to a Presidential advisory committee-those with a charge to advise the President. Specific duties to be exercised by an agency with responsibility to provide support services to a committee assigned to it has been ambiguous and it appears that the Congress may wish to speak to this matter. The question to be addressed is whether the support services should be ministerial or should have a control function in that activity. Lastly, the FACA's ambiguities have led to different interpretations regarding what may or may not be exempted from coverage and it appears that if the Congress desires another result, it should clarify the language of the act. Thank you, Mr. Chairman. Senator LEVIN. Mr. Dembling, thank you. First, Mr. Cardozo, you have alluded to a problem that has troubled me, and that is the question of followup. As a matter of fact, both of you have alluded to the question of followup of these reports from advisory groups and any recommendations that they might make. Section 6(b) of the act says that within a year after a presidential advisory committee has submitted a public report to the President, the President or his delegate shall make a report to the Congress stating either his proposals for action or his reasons for inaction with respect to the recommendations contained in the public report. Do either of you know whether or not that requirement has been consistently complied with? Mr. CARDOZO. I think it has not very well. There is a report to Congress that is prepared in the name of the President. It tells what has been happening in connection with advisory committees, but a great deal of it has been statistical, about the number of committees and so forth. It is not quite clear-maybe sometimes there has been that kind of followup, but I do not think it has been very often. I do not know what other reports there are. Some of the people directly concerned with the Administration might be able to answer that better than I can. But there is one thing that is important to bear in mind, and that is that the Office of Management and Budget in its annual review of the needs and activities of the agencies is in a position to look to see whether this kind of thing has been carried out, whether the committees are doing their work, whether the recommendations are being followed, and whether the committee should be continued. So to a certain extent there is an automatic checking of the committees through the OMB. Of course, when the administration of the act was shifted from the OMB to the General Services Administration, that particular kind of monitoring and supervision became much more difficult. Whether the General Services Administration is in a position to do that kind of monitoring because of the number of people involved is not quite clear. Senator LEVIN. Mr. Dembling, do you know whether or not that provision, 6(b), is being complied with? Mr. DEMBLING. I do not know whether it has been complied with in all instances, no, sir. I do know that the Congress on occasion has tasked various agencies. For example, after the Commission on Government Procurement rendered its report, the Congress asked the GAO to followup and to render reports to the Congress on the activities and implementation of the recommendations made by that Commission. There have been other instances of that type. Senator LEVIN. That is an ad hoc requirement. But the law is generic; 6-B is generic and requires that the President or his delegate must make a report. It says, “shall make a report." And the law's requirement may or may not have been complied with consistently. I kind of doubt that it has been, too. But in any event, do you believe that 6-B is a good requirement? Should we continue to require the President to tell us within a year after an advisory committee—a presidential advisory committee has submitted a public report to the President, whether or not he is going to act on those recommendations and if not, why not? Do you both believe that is a good requirement? If not, should we drop it? Mr. DEMBLING. I certainly think it is good. As a matter of fact, the proper administration of this act depends a great deal on the enthusiasm of the executive branch for seeing to it that it works properly. It would be very difficult for any additional provisions to make it clearer. Mr. CARDOZO. If the executive branch has some part of it, someone in the executive branch that is concerned with this, in a way, in a sense that Senator Metcalf was concerned with it when he was around. The congressional committees, you see, concerned with the legislation affected by the work of the advisory committees can ask for this kind of thing. And one of the ways to check up, of course, is for those congressional committees to say to ask the agencies and the departments, what have you done about this. Senator LEVIN. Well, that of course is a way of doing it, but the question is whether it should be in the statute as something that they should do on their own initiative, and I gather you both believe that this requirement is a good one. 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. 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 activities. 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 |