President Donald Trump, lacking trust in the speed, skill or loyalty of the government workers he inherited, is shifting the task of writing U.S. policy to a network of advisory groups stacked with business executives that operates outside of public view.
It’s a move that could be cheered by the voters who sent Trump to Washington to clean house. But it’s also one that might be breaking the law.
In a growing number of cases, the administration has been accused of violating a federal requirement that these advisory groups – working on everything from jobs training to environmental policy – open their meetings, release their documents and announce their members’ names. Three lawsuits have been filed in recent weeks accusing the administration of failing to disclose information about groups charged with investigating voter fraud and devising a plan to upgrade the nation’s crumbling roads and bridges.
The Public Employees for Environmental Responsibility, which describes its mission as protecting employees who protect the environment, expects to file suit as soon as this month over the group Trump set up to examine the Environmental Protection Agency’s program to clean up toxic waste. That Superfund group turned over 42 recommendations two weeks ago to EPA Administrator Scott Pruitt, who used them to issue 11 new directives.
“These are big kahunas that are supposed to be abiding by basic transparency rules,” said Stephen Spaulding, chief of strategy and external affairs at Common Cause, a nonpartisan group. “It’s as if they are being dragged kicking and screaming into sunshine.”
Presidents of both parties have long deployed advisory groups to help develop policy, occasionally running into criticism for failing to disclose more. President Bill Clinton faced a lawsuit over his wife’s health care task force. President George W. Bush’s vice president was sued over his committee designed to develop a national energy policy. President Barack Obama faced criticism about some of his working groups examining his economic stimulus package.
In fiscal year 2015, the most recent year for which statistics are available, 287 committees advised the president and agencies, according to a Congressional Research Service report. That number gradually dropped from 460 in 1998, according to a presidential report to Congress on the issue.
But what’s different now is that Trump aides more often state that they do not need to abide by the Federal Advisory Committee Act or that the law doesn’t require as much information to be disclosed as has been in the past. In at least one instance, they said they were following the law — but that they didn’t have to.
“To be sure, the commission has agreed voluntarily to abide by the provisions of FACA,” Department of Justice attorneys wrote July 13 in the administration’s response to a pair of lawsuits filed against Trump about his Presidential Advisory Commission on Election Integrity.
Trump hasn’t made keeping Americans informed a top priority: He won’t reveal who is visiting the White House, he won’t release his tax returns, and he won’t release who he is meeting with or what he’s doing for hours at a time.
The White House also did not respond to requests for comment on this story.
Americans are entitled to know who outside of government is influencing and helping in the formulation of administration policy on issue that directly affect them
Noah Bookbinder, executive director of Citizens for Responsibility and Ethics in Washington
Since Trump was inaugurated in January, his aides have been warned about abiding by the law: In February, Citizens for Responsibility and Ethics in Washington sent a pair of letters to White House Counsel Don McGahn criticizing the failure to disclose information about Trump’s groups of CEOs and conservative thinkers helping select a nominee to the Supreme Court. In July, House Democrats sent a letter to Vice President Mike Pence accusing him and Kansas Secretary of State Kris Kobach, who leads the election commission, of violating the law.
Presidents have been using advisory groups since George Washington appointed a committee to investigate the Whiskey Rebellion tax protest in 1794.
Critics worry the advisory groups’ secrecy is leaving Americans in the dark about what the federal government is doing and if the people crafting policy will benefit from the proposals. They hope agency inspectors general will launch investigations.
Trump created the Strategic and Policy Forum, comprised of business leaders and led by Stephen Schwarzman, chairman of Blackstone, to develop his economic agenda. He established the Manufacturing Jobs Initiative, made up of business executives and headed by Andrew Liveris, chairman of the Dow Chemical Company, to develop a jobs plan. And he formed the American Technology Council to upgrade the federal workforce; it’s made up of government employees, but at least one of its working groups is made up of tech leaders.
This reliance on business leaders makes sense, given Trump was elected in part by selling Americans on his business credentials.
“This is a president whose first instincts are to turn to outside, non-government people,” said Anne Weismann, chief FOIA Counsel for CREW.
Trump’s groups have varied in how well they abide by the broad 1972 law on federal advisory committees — sometimes called commissions, councils, task forces or working groups — that give advice, solve issues or develop policy. They are mandated to list meetings in the Federal Register, open meetings to the public, release records, including meeting minutes and information considered by members, even though some argue they can be time-consuming tasks. In addition, their membership is supposed to be balanced.
Some Trump administration groups have opened their meetings — or part of their meetings — released documents and announced the names of their members. But others have not. At least some of the time that Trump met with them behind closed doors, a handful of reporters have been briefly allowed in.
In at least one case, a group appeared to abide by all requirements: Trump’s advisory group to combat drug addiction and the opioid crisis led by New Jersey Gov. Chris Christie. That group issued an interim report last week.
Chris Calabrese, vice president for policy at the Center for Democracy & Technology, said there’s nothing unusual in a president bringing together executives to talk, especially tech executives who hope they can help the administration increase cybersecurity and modernize federal agencies. “Obviously we believe the president needs to follow the law,” he said.
Jeff Ruch, executive director of Public Employees for Environmental Responsibility, wants to find out who the EPA appointed to the Superfund task force. Some names have been released by EPA but his group has submitted a public records request for all the names and hopes to hear back by Aug. 24. It plans to file a lawsuit — which is already written — if it does not get answers. “Our concern is that agencies of EPA-regulated industry are allowed to write their own rules,” he said.
Theresa Lee, a staff attorney at the ACLU Voting Rights Project, said the ACLU’s lawsuit spurred some transparency — including the creation of a website — at the election commission that Trump created after claiming without evidence that millions of people had voted illegally and deprived him of a popular-vote victory.
Their documents were posted online, though not all of them. Their second meeting was announced in the Federal Register, but some say it did not provide enough notice.
Just before the second meeting, a federal judge ruled that the commission had done enough; it did not have to produce more documents or allow the public to attend the meeting in person.
The lawsuit itself was a perfect example of partisan special interest groups looking to prevent a bipartisan commission from conducting a public meeting to discuss how best to improve our election system
Kris Kobach, Kansas secretary of state and vice-chairman of election commission
While their first meeting was held by phone, the second one was live-streamed, though the equipment was not working properly, according to a statement on Kobach’s Facebook page, which has since been removed.
Last week, Food & Water Watch sued the president for not opening up the Infrastructure Council, made up of builders and engineers and led by two New York real estate developers and Trump friends, Richard LeFrak and Steven Roth, who could benefit from the council’s decisions and recommendations.
“The present administration has adopted a pattern and practice of establishing advisory committees, largely populated by President Trump’s business associates and friends, to advise him and agency secretaries on economic and business-related matters,” according to the July 25 lawsuit. “This practice, in effect outsourcing policy making to private individuals who are unfettered by conflict-of-interest rules and other public accountability standards, raises a host of ethical and transparency concerns.”