Volume 108
Issue 5
May '20

Outside Advisers Inside Agencies

Written By: Brian D. Feinstein & Daniel J. Hemel

Abstract

Advisory committees are a ubiquitous, yet understudied feature of the administrative state. More than seventy-five thousand experts from outside 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).

We supplement our quantitative analysis with case studies of four advisory committees across four different agencies and presidential administrations. Our case studies show how the political appointees at the helms of agencies use advisory committees as substitute sources of information and expertise when career civil servants at their agencies resist the administration’s agenda.

These results point to a new view of advisory committees as important instruments of presidential administration. In contrast to the so-called “deep state” of career civil servants who persist at agencies across presidencies, we suggest that advisory committees constitute a “shallow state” whose composition ebbs and flows with the political tides. This “shallow state” presents both a contrast with and a counterweight to the “deep state” of agency careerists. At the same time, advisory committees serve a legitimating function for the administrative state, increasing agency responsiveness to electoral politics. We conclude by considering the implications of this account for judicial review of agency action and for long-running separation-of-powers debates.

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