Outside Advisers Inside Agencies

82 Pages Posted: 31 Aug 2019 Last revised: 26 Sep 2019

See all articles by Brian D. Feinstein

Brian D. Feinstein

University of Pennsylvania, The Wharton School

Daniel Jacob Hemel

University of Chicago - Law School

Date Written: 2019

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.” The administrative law literature fails to reveal, however, whether advisory committees live up to this standard and how these panels influence agency decisionmaking.

This Article sheds light on the composition and operation of advisory committees, applying a mix of quantitative and qualitative methodologies. 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 the formation, utilization, and funding of advisory committees over the same timeframe. Combining this data with information on the political preferences of career civil servants, we find that agencies create, convene, and finance committees at higher rates 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 (e.g., the Pentagon), while Republicans rely more on these outside panels at agencies with liberal-leaning careerists (e.g., 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.

Taken together, 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.

Keywords: advisory committees, public administration, administrative agencies, principal-agent

JEL Classification: H10, H11, K23, L32

Suggested Citation

Feinstein, Brian D. and Hemel, Daniel Jacob, Outside Advisers Inside Agencies (2019). Georgetown Law Journal, Forthcoming; University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 885. Available at SSRN: https://ssrn.com/abstract=3443131

Brian D. Feinstein (Contact Author)

University of Pennsylvania, The Wharton School ( email )

3730 Walnut Street
Suite 600
Philadelphia, PA 19104-6365
United States

Daniel Jacob Hemel

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

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