Interview transcript

Terry Gerton You’ve been tracking and reporting on the Trump administration’s cuts to advisory panels. Before we get into the details of what you’ve found, I’d love for you to just say, what are these panels? What are they supposed to do? How are they created?

Robert Iafolla Across the federal government, it’s something like 1,000 different federal advisory panels and they’re staffed by experts in the particular field. Some of them can be quite wonky and quite precise in the subject matter that they’re dealing with and they typically meet a few times a year. They help agencies develop their rulemaking agendas, you know, depending on the agency, Their, sort of, research agendas, the agency might task them with specific questions. Can you help us understand how to approach issue X, Y, or Z in a better fashion, a more efficient fashion? They will sometimes include members of the public on them. The meetings they hold are open to the public. But I think the most important thing when you think about these expert panels is that they bring expertise to agencies that agencies don’t have already and they do so for essentially free.

Terry Gerton And so what has your reporting turned up in terms of how the Trump administration is handling these and how many of them have been terminated?

Robert Iafolla Yeah, myself and a few colleagues dove into some data on a federal database called the FACA database. It’s named after the Federal Advisory Committee Act, which is the federal law that sort of governs these committees. And what we found was the Trump administration is terminating these committees at a historic clip. Essentially, there’s been about 160 of these committees formally terminated during the Trump administration so far. There’s data in the database going back to, I think, 1997. Past administrations would cull this herd of advisory committees as they became obsolete, but it would be more on the order of, say, 40 a year, whereas here we have 160. And then in addition to those that were formally terminated, we found that some of the expert panels were basically emptied out. All their members were either fired or those that their terms had expired and they were not renewed. Some are just sitting idle. And, you know, it is of a piece with sort of the administration’s approach towards the administrative state, sort of hacking at it at a rate that we hadn’t seen before.

Terry Gerton You mentioned that a number of these panels exist to provide technical expertise that might not be present in an agency itself. Are there particular departments in the executive branch that have a lot of these relative to some who have very few?

Robert Iafolla Yes. So the Department of Health and Human Services has the most. Some of these agencies are created by statute. Sometimes the agencies themselves will create them. With HHS, they have — or had — a load of panels that were in charge of reviewing grant applications for research or for continuing education and other matters. But I think it’s something like 50 or so agencies [that] have at least one advisory committee. You know, I think a good example of this is, at the Labor Department, the Bureau of Labor Statistics has a few technical panels. One of them specifically helps the BLS figure out how to keep on top of [the] changing economy and also the intense funding shortfalls that the agency faces and helps them with, you know, statistical models and things like this on how to, how to to keep good data. The BLS, one of the — actually both of these BLS technical committees were among those terminated.

Terry Gerton I’m speaking with Robert Iafolla, he’s principal legal reporter for Bloomberg Law. Your reporting shows that a lot of these cuts happened despite agency opposition, like agencies wanted to keep them and the Trump administration terminated them anyway. What was the conflict there and why did they get terminated instead?

Robert Iafolla About a third of the terminated expert panels were ended over the advice of the agencies involved. As far as why these agencies were terminated, whether it be over the advise of the agency or not, there was a lot of different justifications given. We’re not exactly sure sometimes, like with HHS, the HHS secretary said that some of these panels had conflicts of interest. In other instances, members of these boards were told that it was a cost-cutting measure. In other instances, like with [one of] the BLS technical committees, they were told their mission was done. They were no longer needed. So we asked the White House directly for some more information on this and they were not forthcoming with that information.

Terry Gerton As agencies lose this expert advice, what happens to their internal decision-making? Does that shift to other panels or committees? Does it fall more to political appointees or other members of the organization?

Robert Iafolla Yeah, yeah, I mean, again, the design of these committees is to give expert advice. The agencies were never required to accept the committee’s advice. So this is not a group of outsiders telling the agencies what to do, but instead, looking over the information and giving them insight on what may be the best policy, what may be the most feasible way forward as far as generating consensus around something, reducing the litigation risk, providing justifications that would make agency action more durable in court. So the political folks that are going to be making the decisions instead of doing it without that guidance will be doing it without it. I talked to some people who suggested perhaps you don’t want expert committees that might contradict what you already want to do. You know, when you have your mind set on something, you don’t want somebody telling you it’s a bad idea to do that. It’s unclear whether that’s the reason for these committees getting chopped, but it certainly seems feasible.

Terry Gerton You mentioned that some of these panels are statutorily created. Have we seen any legal challenges to any of these terminations?

Robert Iafolla I’m not aware of any legal challenges. I’m also not aware of the administration, as they have in other areas, going ahead and countermanding the will of Congress and trying to do something by executive fiat that actually needs legislation in order to do it. So there are some committees, like I said earlier, that have been emptied out or have been idled rather than formally terminated.

Terry Gerton As you look at this past, and if past is prolog, what are you expecting in the future? Will this trend continue?

Robert Iafolla That’s a great question. The data shows that there are sort of these periodic spikes in these committees being terminated, so we don’t know if there are more that are going to be on the chopping block. The administration has created a handful of new committees. It’s on a much smaller scale than previous administrations have done as far as creating new committees to deal with emerging issues. The pattern is certainly one of shrinking and generally hacking away at the administrative state and not necessarily placing a premium on expertise or experience. So it seems reasonable to think that this may continue a pace.

Terry Gerton You also mentioned that most of these panels are covered under FACA, and there’s a lot of reporting requirements and transparency requirements that go along with that law, reporting on the deliberations of the panels and sharing that. What does this administration’s approach to these panels and the termination of them mean for transparency and public access to this kind of information?

Robert Iafolla Yeah, you’re going to lose that guarantee of public access. In one sort of tranche of these committees that have been terminated at HHS, as I mentioned before, there’s a group of these HHS expert panels that review grant applications. And what our reporting told us was that the department has terminated some of these committees that had to comply with the strictures of FACA, including the transparency requirements. They didn’t get rid of the grant review process, but have instead shifted that work over to these more ad hoc working groups that are reviewing them that apparently are not subject to the same transparency requirements. So that is suggestive of work that’s being done in the public interest out of a place where the public can find out what’s going on and into something that’s more of a black box.

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