The Justiciability of Fair Balance under the Federal Advisory Committee Act: Toward a Deliberative Process Approach

Abstract

The Federal Advisory Committee Act’s requirement that advisory committees be “fairly balanced in terms of the points of view represented and the functions to be performed” is generally considered either nonjusticiable under the Administrative Procedure Act or justiciable but subject to highly deferential review. These approaches stem from courts’ purported inability to discern from the text of the statute any meaningful legal standards for policing representational balance. Thus, the Federal Advisory Committee Act’s most important substantive limitation on institutional pathologies such as committee “capture” or domination is generally unused despite the ubiquity of federal advisory committees in the modern regulatory state.

This note argues for a new reading of the Federal Advisory Committee Act’s fair balance provision that would make the provision justiciable. Instead of reading the provision to require quantitative representational balancing of various interests — and thus asking courts to make political decisions — this note contends that the text of the provision permits an alternative reading, which I call the “deliberative process” reading. Under this reading, courts would decide whether a committee’s record airs all of the relevant viewpoints associated with the issue under the committee’s consideration. This kind of review is familiar to courts in other administrative law contexts, so there would be no plausible argument that the provision is unreviewable for lack of meaningful standards. I argue that this deliberative process reading would enhance advisory outputs and ensure that this “fifth branch” of government is still under public control.