Judge Affirms Ban on Lobbyists Sitting on Agency Boards

Updated 1:19 p.m.

A federal district judge in Washington on Wednesday threw out a suit six lobbyists brought against the government over the Obama administration's ban on federal lobbyists sitting on agency boards and commissions.

The lobbyists, who sought appointment or reappointment to Industry Trade Advisory Committees (ITAC) overseen by the Commerce Department and U.S. Trade Representative, alleged that the prohibition infringed on their constitutional right to petition the government and used an unlawful classification that penalizes them. They sued for "a declaration that this policy is unconstitutional" and for the consideration of their ITAC applications, according to the complaint.

The plaintiffs are Erik Autor, who represented the National Retail Federation on an advisory board; Nate Herman, who represented the Travel Goods Association on an advisory board; Cass Johnson, who represented the National Council of Textile Organizations on an advisory board; Stephen Lamar, who represented the American Apparel & Footwear Association on an advisory board; William Reinsch, who was "interested in applying to represent the National Foreign Trade Council" on an advisory board; and Andrew Zamoyski, who represented the Society of Chemical Manufacturers and Affiliates on an advisory board, according to the complaint.

U.S. District Judge Amy Berman Jackson found that the lobbyists failed to make their case.

"In the Court's view, the plaintiffs have not supplied the necessary predicate for their First Amendment argument because the allegations in the complaint do not establish that service on an ITAC is a valuable government benefit that an individual committee member could receive," Jackson, with the U.S. District Court for the District of Columbia, wrote in a 31-page opinion. "But even if it is, plaintiffs have not been denied that benefit on a basis that infringes upon their constitutionally protected rights and they have not been penalized for or inhibited in the exercise of their rights."

Mayer Brown associate Joseph Minta, who represents the lobbyists with firm special counsel Charles Rothfeld, didn't have an immediate comment.

A U.S. Justice Department lawyer handling the case, Jean Lin, a senior trial counsel in the Civil Division, directed a request for comment to DOJ spokesman Charles Miller, who wasn’t immediately reached for comment.

The White House in June 2010 issued a memorandum that directed federal agency heads to stop appointing or reappointing federally registered lobbyists to advisory boards and commissions.

The final guidance, which went into effect in November 2011, only concerns individuals who meet registration requirements specified by federal lobbying disclosure law. It doesn't pertain to state or former federal lobbyists. Individuals who work for organizations that lobby, but do not engage in government advocacy work themselves also are exempted from the prohibition. The guidance says agencies can use congressional lobbying disclosure databases to determine whether an individual is a lobbyist.

Lobbyists can serve out the remainder of their terms on boards or commissions if they were appointed before June 18, 2010. But agencies had to request the resignation of appointees who weren't lobbyists before that date and later started lobbying. Lobbyists cannot obtain a waiver to sit on a board or commission.

"Special interests exert this disproportionate influence, in part, by relying on lobbyists who have special access that is not available to all citizens," President Barack Obama said in the memorandum. "Although lobbyists can sometimes play a constructive role by communicating information to the government, their service in privileged positions within the executive branch can perpetuate the culture of special interest access that I am committed to changing."

Comments

[Evelynn Brown, J.D., LL.M]

Excellent story. Lobbyists do exert undue influence and often do not inform the people they represent what they are bargaining away up on the Hill. There must be an arms length relationship between government and special interest groups. Openness and transparency means shining a light not just on government but also on lobbyists. NGO's should be watched for their undue influence in advising agencies how to make rules and regulations. Their close ties with members of Congress and staff should also be transparent when crafting a piece of legislation up on the Hill.