Research note by Brian Feinstein based on the paper Brian D. Feinstein and Daniel J. Hemel, Outside Advisers Inside Agencies, Georgetown Law Journal, 2020 (forthcoming), available online at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3443131
Advisory committees—i.e., groups convened by federal agencies and comprised of experts from industry, academia, and elsewhere outside of government—wield influence over numerous aspects of American life. For instance, an advisory committee drafts the dietary guidelines for federal school breakfast and school lunch programs that feed more than thirty million children. Advisory committees help to determine the acceptable levels of arsenic in drinking water and ozone are in the air. And, according to several accounts, the Defense Policy Board Advisory Committee played an important role in President George W. Bush’s decision to invade Iraq in 2003.
This year alone, more than seventy-five thousand individuals serve on over one thousand committees, where they counsel administrative agencies on programs and policies, provide technical and scientific advice, and engage in negotiated rulemakings, among other functions. The federal government spends almost $400 million annually on these outside advisers. Yet, despite their prevalence across the U.S. regulatory state, little is known about the composition and functioning of these committees.
We consider advisory committees as a key arrow in the quiver for agency heads in their intra-agency rivalry with civil servants. Specifically, we argue that advisory committees enable agency heads to draw expertise from beyond the administrative state, reducing agency heads’ reliance on civil servants with political preferences that may differ markedly from their own.
To test our theory, we gather data on the political orientations of over one thousand advisory committee members across four presidential administrations. We find that these committees lean left during Democratic administrations and right during Republican ones—in contravention of the statutory requirement that their memberships be “fairly balanced in terms of the points of view represented.” Expanding our analysis to all advisory committees in cabinet departments over a 21-year span, we find that agencies are more likely to utilize advisory committees as the preferences of civil servants and their political principals diverge.
Next, we examine the political circumstances at the time of creation for each policy-related advisory committee established over the same time period (excluding those committees whose creation is statutorily mandated). We find that Republican presidents establish these bodies markedly more frequently than Democrats. Given that the federal workforce leans left overall, greater Republican interest in advisory committees may constitute an attempt to reduce political leaders’ reliance on their nominal agents.
Finally, we empirically examine the impact of appointees’ partisan affiliations and civil servants’ ideological preferences on appointees’ decisions to create advisory committees. We find that during Republican administrations, agencies with more liberal civil service workforces are more likely to establish advisory committees. Likewise, during Democratic administrations, the presence of relatively more conservative civil servants in an agency is positively correlated with the creation of new advisory committees within that agency.
These findings suggest that agency heads use advisory committees as a counterweight to potentially oppositional civil servants—i.e., the so-called “deep state” of career officials who check the political leaders from within the executive branch. Thus, if the federal government’s two million-plus civil servants constitute a “deep state,” then its tens of thousands of advisory committee members might be seen as a sort of “shallow state” existing alongside.
The “shallow state” sobriquet captures at least two significant aspects of this phenomenon. First, while civil servants are protected by the federal merit system and often hold their jobs for decades, the memberships of federal advisory committees ebb and flow with the political tides. Members—or even entire committees—can be fired at the whim of an agency head, and as we show, new administrations often seize the opportunity to stock these advisory panels with ideologically sympathetic individuals.
Second, the shallow state offers a counterbalance to the deep. Federal advisory committees provide political appointees with an alternative source of knowledge and manpower when career civil servants might otherwise thwart the appointee’s agenda. Indeed, we demonstrate that political appointees rely more on advisory committees when they are ideologically at odds with the career bureaucrats in their agencies than when they are in sync with the civil servants beneath them. In other words, it is precisely when relations between political appointees and the deep state are most tempestuous that the shallow state is most likely to be utilized.
In the end, then, advisory committees deserve a place on conceptual maps of American administration not only because of the independent significance of these panels but also because of their importance to the federal government’s other elements. These tens of thousands of eyes and ears significantly augment the executive branch’s capacity to gather and synthesize information while also undermining the civil service’s informational monopoly. As the administrative state endures growing criticism from scholars and judges who question the immense influence of unelected agency officials, defenders of the status quo can point to advisory committees as one more mechanism that checks the power of careerists and connects agency decisonmaking to electoral outcomes. In addition to providing agencies with subject-matter expertise and technical advice, then, advisory committees can offer agencies a measure of political accountability as well. For an “administrative state under siege” from those who question its democratic legitimacy, this may now be precisely what agencies most need.
Read the full paper at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3443131.
Brian D. Feinstein is Assistant Professor of Legal Studies & Business Ethics at University of Pennsylvania, The Wharton School