Advisory committees are a ubiquitous, yet understudied feature of the administrative state. More than seventy-five thousand experts from out-side the federal government serve on over one thousand committees across the Executive Branch, providing agencies with informed “second opinions” to complement their in-house experts in the civil service. By law, these committees must be “fairly balanced in terms of the points of view represented.” Yet little is known about whether advisory committees live up to this standard, under what circumstances agencies utilize these panels, and how advisory committees influence agency decisionmaking.
This Article sheds light on the composition and operation of advisory committees. We begin by gathering data on the campaign contribution histories of more than one thousand randomly selected advisory committee members over twenty-one years and across four administrations. We find—notwithstanding the statutory fair-balance requirement—that these committees lean left during Democratic administrations and right during Republican ones.
We then examine agency engagement with advisory committees over the same timeframe. Combining these data with information on the political preferences of career civil servants, we find that agencies are more likely to create and convene committees when the preferences of civil servants and the presidential administration diverge. In other words, Democratic administrations appear to rely more on advisory committees at agencies with relatively conservative career staffs (such as the Pentagon), whereas Republicans rely more on these outside panels at agencies with liberal-leaning careerists (such as the Environmental Protection Agency).
Feinstein, Brian D. and Hemel, Daniel J., "Outside Advisers Inside Agencies" (2020). Public Law and Legal Theory Working Papers. 778.