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

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.INTRODUCTIONIn 2009, President Obama signed the Family Smoking Prevention and Tobacco Control Act,1 which explicitly gave authority to the Food and Drug Administration ("FDA") to regulate tobacco.2 The FDA took immediate action on a variety of fronts, including-seemingly least controversial of all-convening the Tobacco Products Scientific Advisory Committee ("TPSAC").3 The Act provides for a variety of committee studies of the addictive qualities of nicotine and requires the committee to advise the FDA.4 The committee includes seven healthcare professionals, one government employee, and one representative of the "general public," all of whom are to be voting members.5 In addition, the Act provides for two nonvoting representatives of the tobacco manufacturing industry and one nonvoting representative of tobacco growers.6By March 2010, the TPSAC was embroiled in controversy. First, Altria Group, Inc., the parent corporation of Philip Morris USA, submitted a letter to the FDA commissioner protesting the appointments of four voting members of the committee because of their alleged conflicts of interest.7 While these members were experts, they were also routinely retained as expert witnesses by plaintiffs in civil cases against tobacco companies and as consultants by pharmaceutical companies that manufacture smoking cessation products.8 Soon after Altria's challenges, the nonpartisan but left-leaning political watchdog group Citizens for Responsibility and Ethics in Washington became a strange bedfellow of Altria, criticizing the FDA for its failure to resolve longstanding problems with pharmaceutical industry capture.9 While some commentators concluded that the TPSAC was a "virtual smorgasbord of tobacco and pharmaceutical financial interests"10 which might make even Nick Naylor blush,11 others defended the FDA, noting that "this is not Coke versus Pepsi. . . . The tobacco companies are promoting products that kill half a million people a year. The pharmaceutical companies are trying to promote health."12Federal advisory committees like the TPSAC are ubiquitous,13 and, as the TPSAC story shows, they raise critical issues of accountability, credibility, and neutrality in policymaking. Of chief concern is the question of balance and the avoidance of capture or domination by well-organized and overrepresented groups. …