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Rep. Brian Baird Letter to Attorney General Requesting Investigation of Improper Review of Advisory Committee Candidates

Oct 26, 2004

October 26, 2004

The Honorable John Ashcroft
Attorney General of the United States
Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530

Dear Attorney General Ashcroft,

You are certainly aware that there has been widespread discussion in the scientific community and the media about a perception that the Bush Administration has politicized the scientific advice it gets and the information it releases. One aspect of these charges has been the effort by political appointees to ascertain the political allegiance of potential appointees to scientific advisory panels.

With my colleague, Eddie Bernice Johnson, I requested the Government Accountability Office (GAO) examine best practices for appointing experts to scientifically-oriented Federal Advisory Committees. GAO came back with a series of very practical steps that could be implemented through actions by the General Services Administration (GSA) and the Office of Government Ethics (OGE) that would reduce some of the opportunities to play politics with Federal Advisory Committee appointments. While GSA has endorsed those recommendations, OGE and the White House have rejected the other recommendations as unnecessary - in effect claiming there are no problems with the way the Federal Advisory Committee process has been run. (See attached report: GAO, Federal Advisory Committees: Additional Guidance Could Help Agencies Better Ensure Independence and Balance, GAO-04-328, April, 2004).

A new opinion out of GAO suggests that this attitude is simply wrong.

In a letter report to me from the General Counsel of GAO, their characterization of the law surrounding the Federal Advisory Committee process suggests that the law has been broken in at least two cases at the Department of Health and Human Services. In both cases, there were press reports from scientific experts contacted by HHS officials in which those experts reported they were asked about their political affiliation or asked political litmus test questions as part of the vetting process for composing advisory panels. (See attached letter report: Legal Principles Applicable to Selection of Federal Advisory Committee Members, October 18, 2004.) The questions were coming from an official in the HHS Office of White House liaison - a strange office in which to center efforts to put together experts on meaty, difficult scientific issues.

GAO Counsel notes that the Public Health Service Act, 42 U.S.C. §§ 201 et. seq. prohibits agencies from using political affiliation in selecting members for advisory committees. This law provides the legal underpinning for both the National Advisory Council on Drug Abuse and the National Advisory Council for Human Genome Research. In both cases there have been reports of political affiliation or values being used as a filter by political appointees at HHS.

GAO Counsel specifically notes that they have not reviewed all the facts and circumstances surrounding these cases. GAO is not in a position to carry out that work or come to a final determination. However, the Justice Department is uniquely positioned to carry out such an investigation, and it has the responsibility to enforce the law. By this letter, I ask you to undertake a thorough investigation of the facts and circumstances surrounding both of the cases cited above. If you determine a violation of law has occurred, I ask that you inform the Secretary of Health and Human Services of your findings and that you instruct him to either dissolve the panels or vacate any appointments made in violation of the law and reappoint members to these panels in a way consistent with the law. I trust that you will carry this investigation forward; this action will send a clear signal to the scientific community and the public at large that the Administration is committed to cleaning up abuses in its appointments process.

The government must wrestle with many technically complex issues. In doing that, we need to gather the best expert advice we can find. When the Advisory process is perceived to be dominated by political calculations, scientists and engineers begin to wonder whether it is worth their time and effort to even advise the government. The costs to the public, and to the government’s ability to make good policy, of politicizing the advisory process may be incalculable, but we know they are high. You have the opportunity, and responsibility, to ensure HHS is complying with existing law. I encourage you to exercise this authority to determine whether the Administration is violating the law in its Federal Advisory Committee member appointment process.

Brian Baird

The Honorable Bart Gordon, Ranking Member, Committee on Science
The Honorable Sherry Boehlert, Chairman, Committee on Science
The Honorable Eddie Bernice Johnson, Ranking Member, Subcommittee on Research, Committee on Science
The Honorable Tommy Thompson, Secretary of Health and Human Services

108th Congress