Office of Management and Budget
Office of General Counsel
Eisenhower Executive Office Building
1650 Pennsylvania Avenue, NW
Washington, DC 20500
To Whom It May Concern:
The Project On Government Oversight (POGO) provides the following public comment on the Office of Management and Budget’s (OMB) “Proposed Guidance on Appointment of Lobbyists to Federal Boards and Commissions” (75 Fed. Reg. 67397, November 2, 2010). The proposed rule seeks input from interested parties on OMB’s final guidance regarding the implementation of a Presidential Memorandum signed by President Obama on June 18, 2010, which directs executive departments and agencies not to appoint or re-appoint any federally registered lobbyists to advisory committees, boards, or commissions (hereinafter “committees”). As an independent watchdog that champions good government reforms, POGO supports any efforts to limit the pervasive influence of special interests on federal advisory committees, which have been called the “fifth arm of government” because of the powerful role they play in advising agencies, Congress, and the President on a wide range of public policy issues.
In recent years, the Government Accountability Office (GAO) and various outside watchdog groups have raised concerns about a lack of balance, both real and perceived, between private and the public’s interests on federal advisory committees across the government. The undue influence of industry on many committees raises questions about the quality of advice being provided to the government, and could undermine the public’s confidence in policies that are implemented based on the committees’ recommendations. Especially since committee members designated as representatives are not subject to federal ethics laws, there is a concern that certain members could be serving with an undisclosed financial interest in the committee’s work.
OMB’s proposed rule would prohibit the appointment or re-appointment of federally registered lobbyists on federal advisory committees after June 18, 2010. Federally registered lobbyists who are currently serving on committees can finish out their term, but cannot be re-appointed so long as they remain federally registered lobbyists.
POGO supports many aspects of OMB’s proposed rule. For instance, the proposed rule would apply to “any committee, board, commission, council, delegation, conference, panel, task force, or other similar group (or subgroup) created by the President, the Congress, or an Executive Branch department or agency to serve a specific function to which formal appointment is required, regardless of whether it is subject to the Federal Advisory Committee Act” (emphasis added). This broad application is important because some committees are not explicitly governed by the Federal Advisory Committee Act (FACA), even though they advise the federal government on significant public policy issues.
In addition, the proposed rule would apply to all committee members who are not full-time federal employees, including members designated as representatives and special government employees (SGEs). It is important to cover both representatives and SGEs because federally registered lobbyists could potentially serve in both positions, and different committees use different criteria in determining how to designate their members. Similarly, the proposed rule would apply to federally registered lobbyists serving on subcommittees and working groups, which will ensure that the rule is applied consistently across the various entities that contribute to the work of the main advisory committee.
POGO also supports the provision in the proposed rule requiring appointing officers or their delegates to ensure, on at least an annual basis, that no federally registered lobbyists are serving on advisory committees. If members on certain committees are required to certify that they are not federally registered lobbyists, we recommend that these certifications be posted on the committee’s website and in the online FACA database.
OMB’s proposed rule also states that “[t]he policy makes no provisions for waivers, and waivers will not be permitted under this policy.” Although POGO believes that waivers to the rule should be limited to the greatest extent possible, an outright ban on waivers could have negative unintended consequences. For instance, an outright ban would prevent federally registered lobbyists representing public interest groups from serving on advisory committees. We recommend that OMB revise this provision to allow for waivers only in cases where committee members and the entities they work for have no pecuniary interest in the work of the committee or the agency. Any waivers to the rule should be posted on the committee’s website and the online FACA database.
Another concern is that OMB’s rule may simply result in lobbyists de-registering and serving on advisory committees in other capacities. In order to address these and other concerns, we encourage OMB and the Obama Administration to take additional steps to make federal advisory committees more transparent, balanced, and accountable. We urge OMB to issue additional rules and guidance to ensure that the following reforms are implemented:
- Agencies that use contractors to form advisory committees should manage these committees under FACA
- Agencies should not designate members as representatives in order to circumvent federal ethics laws
- Agencies should solicit suggestions from the public for new members to serve on advisory committees
- Agencies should publicly disclose information about each member’s qualifications, background, former employers, and funding sources
- When conflicts of interest arise related to a particular matter before the committee, agencies should require members to recuse themselves from voting. Any recusal statements should be made publicly accessible on the committee’s website and in the online FACA database.
- Designated ethics officials should obtain signed and dated confirmation from all members that they understand their designation on the committee and the obligations they have under that designation
- Agencies should also be required to post additional information on the committees’ websites, including:
- The committee charter
- The process used to identify prospective members
- The process used for selecting members
- The designation of each member
- In the case of representatives, the group or entity that is represented
- The committee’s decision-making process
- The name of the designated ethics official
- Any agency actions taken in response to the committees’ recommendations
- An explanation when the agency decides to reject a committee’s recommendation
- Notices of meetings, posted at least 15 calendar days before the meeting
- A full transcript or audio recording of each meeting, posted no later than 30 calendar days after the meeting
- Any written determination to close a meeting and the reasons for doing so.
Thank you for your consideration of this comment. If you have any questions, please contact POGO Director of Public Policy Angela Canterbury at (202) 347-1122.
 The White House, “Presidential Memorandum—Lobbyists on Agency Boards and Commissions,” June 18, 2010. (Downloaded November 30, 2010)
 Government Accountability Office, Federal Advisory Committees: Additional Guidance Could Help Agencies Better Ensure Independence and Balance (GAO-04-328), April 2004. (Downloaded November 30, 2010); OMB Watch, “Detailed Recommendations: Integrity and Accountability,” December 9, 2008. (Downloaded November 30, 2010); Center for Public Integrity, “The Shadow Government: An investigation of federal advisory committees.” (Downloaded November 30, 2010); and Union of Concerned Scientists, “Ensuring the Independence of Scientific Advisory Committees,” August 5, 2009. (Downloaded November 30, 2010)