Yesterday Representative Brian Baird (D-WA) sent a letter to Attorney General John Ashcroft asking for a Justice Department investigation into allegations that the Bush Administration violated the law when appointing some members to presidential science advisory panels. The allegations seem to hinge on whether or not prospective candidates to the advisory panels were asked about their political affiliation.

Baird’s letter states:

“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… 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.”

Baird’s letter is based on a GAO letter report prepared at his request on the legality of asking prospective advisory panel members about their affiliations.

My reading of the GAO report, and note that I am no lawyer, suggests the following conclusions:

1. The use of the phrase “political affiliation” by GAO may refer to specific questions about membership in a political party. It is not clear to me that this phrase encompasses questions such as ‘Do you support the president?” Baird in his letter seeks to conflate the two sorts of questions but the GAO report does not lend itself to such ambiguity using the phrase “political affiliation” throughout.

2. The GAO report clearly distinguishes the appointment of government officials from non-governmental officials. It appears that the rules against inquiring about political affiliation are much stronger in the case of government officials. The GAO report notes:

“Agencies are prohibited under the federal personnel laws from discriminating on the basis of political affiliation when considering regular federal employees in the competitive service for membership on advisory committees. Such discrimination is deemed to be a prohibited personnel practice under 5 U.S.C. 2302(b)(1)(E). Federal advisory committee members generally are representative or SGE members, however, rather than regular federal employees, and 2302(b)(1)(E) generally allows agencies to ask about and consider political affiliation when selecting representative or SGE members.”

3. Finally, footnote 15 of the GAO report seems to be quite relevant here. It states in its entirety:

“As discussed in our report, the Federal Advisory Committee Act requires that committee memberships be “fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee.” 5 U.S.C. app. 2, 5(b)(2). The political affiliation of members of particular committees has been deemed relevant in achieving such balance. See, e.g., 47 U.S.C. 303 note (certain Federal Communications Commission advisory committee must be “fairly balanced in terms of political affiliation”); United States Coast Guard, Commandant Instruction 5420.37, Attach. 3 at 1 and 3 (Sep. 23, 1993) (political affiliation information sought for purposes of balance). See also OPM Letter, above (achieving requisite committee member balance may be difficult in some circumstances without considering political affiliation or philosophical positions).”

This suggests to me that for the most part, in the empanelment of presidential advisory panels consideration of political leanings as well as affiliations is allowed, and in some cases required. There are however several instances in which such consideration is formally off limits, particularly when the member of the panel is a government employee, and on particular panels for which such consideration is explicitly prohibited.

Off course, as we’ve written here earlier, from the standpoint of effectively connecting science and policy, it is not so much how a panel is empanelled as what it is they do in practice.