e-Prints

Background and History

Congress enacted the Federal Advisory Committee Act (FACA) in 1972 to establish "a system governing the creation and operation of advisory committees in the executive branch of the federal government." As a legislative response to the growing dependence of the executive branch on external advice, the central purpose of FACA is to "control the advisory committee process and to open to public scrutiny the manner in which government agencies obtain advice from private individuals and groups." FACA imposes a number of requirements on the advisory process, including advance notice of meetings, public access to records, and viewpoint balance in the composition of advisory bodies.

One of the most difficult challenges in the implementation of FACA continues to be statutory interpretation of the Act's definition of "advisory committee." In 1992, Congress amended Section 3(2) of FACA to provide the following definition:

The term "advisory committee" means any committee, board, commission, council, conference, panel, task force or any similar group which is---

(A) established or authorized by statute

(B) established by the President, or (C) established by one or more agencies

in the interest of obtaining advice or recommendations for the President or one or more agencies, officers or employees of the President or one or more agencies, officers or employees of the Federal Government, except that such

term excludes---

(i) the Advisory Commission on Intergovernmental Relations;

(ii) any committee established or utilized by the Central Intelligence Agency;

(iii) any committee established or utilized by the Federal Reserve System;

(iv) any committee composed wholly of full-time officers or employees State or local governments acting in their official capacities who are directed by statute to meet which Federal officers and employees regarding programs that are shared by Federal, State and local governments, or which are administered by State and local governments;

(v) any committee which is composed wholly of full time officers or employees of the Federal Government;

(vi) any local civic group whose primary function is that of rendering a public service with respect to a Federal program; and

(vii) any State or local committee established to advise or make recommendations to State or local officials or agencies.

The exact scope of the definition of "advisory committee" has been the subject of much litigation since 1972, as journalists, public interest groups, and others have sued under FACA to gain access to the deliberations of advisory groups participating in executive policy-making process. In the context of ballistic missile defense, Congress has taken the initiative to tighten FACA compliance, holding hearings in 1988 to investigate DOD's adherence to the Act's provisions.

During these hearings, Senator Levin noted that "SDIO's compliance has been dismal and requires a major overhaul," and that "SDIO has repeatedly violated FACA by using advisory committees without chartering them as required by law." An investigation by the Senate Committee on Governmental Affairs specifically found five unchartered committees advising SDIO in violation of FACA; "kinetic energy, lethality, national test bed, sensor steering group, and Eastport." Sparta, Inc. was involved in the latter group, submitting a proposal in 1987 to provide SDI modeling and simulation support to the Eastport panel.

In the present context, Sparta appears to have become involved in an another advisory group, the "analysis validation team" (AVT) at BMDO, that pushes the limits of FACA. The following breakdown is designed to show how the AVT team may have operated as an unchartered federal advisory committee in violation of FACA, through its ongoing collaboration with Sparta on projects relating to ballistic missile defense footprints,

Is BMDO's AVT an "advisory committee"?

To be covered by FACA, advisory bodies must be a "preferred" source of advice to executive agencies. In the area of footprint methodology, AVT appears to satisfy this requirement, conducting footprint "methodology briefings," footprint "workshops," and producing a "footprint methodology paper" that serves as the technical standard for all missile defense footprint analysis conducted by the agency. In considering amendments to FACA in 1992, Congress indicated that such "technical and standard setting" groups fall under the scope of FACA.

By participating in the AVT's formulation of this standard, Sparta, Inc. may have triggered FACA. In Food Chemical News, Inc. v. Davis, the D.C. District Court held that two separate "informal" meetings with consumer and distilled spirits industry representatives with respect to the drafting of proposed regulations of the Bureau of Alcohol, Tobacco and Firearms of the Treasury Department were meetings of advisory committees.

In Northwest Forest Resource Council v. Espy, the D.C. District Court considered the status of the Forest Ecosystem Management Assessment Team (FEMAT), an advisory body set up to assist President Clinton and Vice-President Gore in their efforts to craft a long-term forest management policy. Although the government argued that FEMAT was not an "advisory committee" because it made only a "technical assessment" of various management options, but did not provide "policy advice," the Court found that "... there is nothing in the statutory language or case law to support the defendants' assertion that FACA should not apply to 'advisory committees' consisting only of technicians who supply the decision makers with data. To the contrary, several courts have applied FACA in just such circumstances." Sparta's technical assessment of Gronlund et al's footprint analysis exceeds the informal advice subject to the FACA in Davis and bears a close resemblance to the advice furnished by FEMAT to the executive branch in Espy.

Two additional features of the Espy decision seem to parallel the relationship between BMDO, AVT and Sparta. First, FEMAT "was composed of six subteams whose participants admittedly included private contractors paid with federal funds." Sparta, like these FEMAT participants, is a private contractor, paid by BMDO. Second, BMDO's AVT, like FEMAT, bore the label "team;" the Espy court found that the label "team" did not preclude its classification as an "advisory committee."

Do exemptions to FACA apply?

To qualify as an "advisory committee" under FACA, an advisory body must not only meet the definition set out in Section 3(2)(a-c), but it must also not fall under any of the exclusions outlined in Section 3(2)(c)(i-vii). Of these exclusions, the only one that could apply in the case of BMDO's AVT would be Section 3(2)(c)(v), which states, "any committee which is composed wholly of full time officers or employees of the Federal Government" is exempt.

While it is likely that a majority of the AVT members are BMDO analysts (and employees of the Federal Government), it is also likely that Sparta analysts are non-Federal employees. As the framework in Davis suggests, even informal consultations for the purpose of developing technical standards are sufficient to bring private actors into the ambit of advisory bodies and trigger FACA.

Further, it is likely that BMDO's AVT has engaged in significant consultations with non-Federal employees besides Sparta, such as Dr. Keith Payne of the National Institute for Public Policy. Thus, the exception set forth in Section 3(2)(c)(v) probably does not apply to BMDO's AVT.

Courts have held that FACA does not apply to government contractors. However, in the present case, this exception does not appear to be controlling, since the BMDO AVT is clearly not a government contractor, but an advisory team that has solicited advice from private non-Federal employees on a contractual and informal basis. Congress has further qualified this exception to the extent that "only bona fide contractual relationships are exempt from FACA. Agencies cannot avoid the application of FACA by entering into sham contracts where the contractor clearly serves as nothing more than an intermediary for a federal agency in creating what would otherwise be a covered advisory committee."

This approach is supported by the analysis in Association of American Physicians and Surgeons v. Clinton, which provides that a privately contracted consultant "may still be properly described as a member of an advisory committee if his involvement and role are functionally indistinguishable from those of the other members. Whether they exercise any supervisory or decisionmaking authority is irrelevant.

If a 'consultant' regularly attends and fully participates in working group meetings as if he were a 'member,' he should be regarded as a member." Under the Clinton framework, the intimate involvement of Sparta analysts in BMDO's AVT work suggests that such analysts should be considered members of the AVT. General Services Administration has warned executive agencies of this, stating "... agencies are cautioned that the group can become subject to the Act if a pattern or 'track record' develops whereby an agency seeks advice from the group in such a way that it becomes a preferred source of advice."

Finally, one might argue that the BMDO AVT is exempt from FACA's openness requirements on the grounds that public disclosure of AVT deliberations would compromise national security. However, such a finding would not affect the status of the AVT as an advisory committee; it would only free it from public notice and open meeting requirements, and other provisions of FACA would still apply. In addition, such a finding would have to be justified in writing by the President or agency head, and consistent with Section 13(4)(e), the finding could not function as a blanket policy but would have to be justified for each meeting on a case-by-case basis. Not only was such advance finding not made in the case of BMDO's AVT, but statements by a senior member of the Arms Control and Disarmament Agency suggest that such a finding would be difficult to justify given the lack of sensitive information contained in Sparta's briefing on footprints to the ACDA.

Does Sparta's relationship with BMDO's AVT violate FACA? If BMDO's AVT an "advisory committee," as defined by FACA, when it promulgated uniform standards for footprint analysis methodology and solicitation of Sparta for a study of Gronlund et al's article on footprints for theater missile defense, it contravened FACA on several counts.

First, AVT appeared to violate Section 4(b), by providing advice to the executive branch as an advisory committee without securing a charter. Second, AVT appeared to violate Section 5(c)(1), by operating without a plan to assure balance of viewpoints in committee membership. Third, by failing to publicly release documents related to the Sparta footprint study, AVT appeared to violate Section 7(e) calling for openness and transparency in meetings. Fourth, by holding meetings without providing advance notice in the Federal Register, AVT appeared to violate Section 11(c)(6).

Among these violations, AVT's disregard for Section 5(c)(1) appears to have most seriously offended the spirit of FACA. BMDO's objective in commissioning the footprint study from Sparta, to "[u]nderstand why the conclusions they [Gronlund et al] reached were at odds with the BMD community," and discussions leading up to the decision to commission the study suggest that the motivation for this advisory action was to insulate the internal BMDO footprint methodology from outside criticism. This interpretation receives support from the fact that no person from Sparta or BMDO contacted the authors of the Arms Control Today article, prior to completion of the Sparta study. The failure to contact subjects of the study is in direct tension with FACA's legislative history which indicates that in pursuing balanced inquiry, "consideration shall be given to including members representing interests that would be directly affected by the committee's work and to obtaining technical and other relevant expertise."

Possible remedies

However, as the Court observed in Espy, "FACA does not itself prescribe remedies for violations of its requirments. Thus, the Court must exercise its general equitable powers ... to fashion any relief that would represent an appropriate remedy for plaintiff's injuries caused by the violation of FACA." Given that the conclusions of Sparta's study may still be guiding policy formation on missile defense, "failure to correct the record would result in the DoD knowingly misleading policy makers in the executive branch and Congress about an important finding related to demarcation issues associated with the ABM Treaty." Thus, a more appropriate remedial step in this case may be a mandated objective review of the Sparta study by an independent assessor such as the Inspector General.

Conclusion

As one commentator has noted, "Congress recognized the importance of public participation in the decisionmaking process when it enacted FACA and required that advisory committees meetings be open to the public." In the case of the controversy over TMD footprint methodology, it appears that the attempts by four reputable analysts to participate in the public debate and shape national policy have been frustrated by BMDO's secret efforts to use a preferred private advisor, Sparta, Inc., to internally discredit their analysis. In terms of compliance with FACA, BMDO appears to have picked up where it's predecessor agency, SDIO, left off during the Cold War. The Senate Committee on Governmental Operations provided badly needed oversight of SDIO's advisory practices during the Cold War, and in the present milieu, it appears that such supervision is needed again to assure that BMDO adheres to the model of democratic decision-making codified in FACA.