“DOGE is not exempted from FACA’s requirements,” the lawsuit states. It was written by Kel McClanahan, executive director of the public interest law firm National Security Counselors. NSC’s website says it “was founded to further the twin ideals that the public needs to be as informed as possible, and that people entangled in legal matters in this field should have reasonable access to knowledgeable legal assistance, regardless of income.”
“All meetings of DOGE, including those conducted through an electronic medium, must be open to the public,” the lawsuit adds.
Some supporters of DOGE disagree.
“DOGE isn’t a federal advisory committee because DOGE doesn’t really exist. DOGE is a branding exercise, a shorthand for Trump’s government reform efforts,” claims Sam Hammond, senior economist at the Foundation for American Innovation. “The president is allowed to take advice from external experts without creating a formal advisory committee.”
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But some government ethics experts say DOGE should be considered a federal advisory committee.
“DOGE must comply with the transparency requirements of the Federal Advisory Committee Act. Public access to records, public meetings, etc.,” former Bush 43 White House chief ethics lawyer Richard Painter, a professor of law, said last week.
“Congress does not want federal agencies or presidents setting up advisory committees of wealthy businesspeople, or anyone else, who provide advice in secret without being subject to conflict of interest rules binding on government employees,” Painter wrote in a November op-ed.
“Conflict-laden outside ‘advisers’ can still advise the president, but if the advisory role is formalized and regular, as DOGE will be, it must be conducted through a transparent and regulated entity called a federal advisory committee. Under FACA, such committees must keep publicly available records, have public meetings and allow for public participation,” he noted.
“This shift of DOGE to outside the government was probably motivated by Musk and Ramaswamy both seeking to avoid the divestiture of financial assets that would be required for them to comply with ethics rules inside the government,” Painter added. “Establishing DOGE as a department inside the government would have required these two men, and everyone else working for DOGE, to comply with the criminal conflict of interest statute, 18 U.S. Code 208, which prohibits any federal employee from participating in a government matter, including industrywide regulations, federal contracts and other matters, that has an effect on their financial interest.”
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