A half-dozen lobbyists are appealing the dismissal of their suit against the government over the Obama administration's decision to prohibit federal lobbyists from sitting on agency boards and commissions. The case is being appealed to the U.S. Court of Appeals for the D.C. Circuit.
The lobbyists, who sought appointment or reappointment to Industry Trade Advisory Committees overseen by the Commerce Department and U.S. Trade Representative, filed a notice of appeal on Monday, two months after U.S. District Judge Amy Berman Jackson in Washington affirmed the Obama administration's ban.
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 lobbyists' September 2011 complaint.
In their complaint, the lobbyists 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, the complaint says.
According to Jackson, the lobbyists didn't 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 wrote in her September 26 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."
The White House in June 2010 issued a memorandum that ordered federal agency heads to stop appointing or reappointing federally registered lobbyists to advisory boards and commissions.
The final guidance, which took effect in November 2011, only pertains to individuals who meet registration requirements specified by federal lobbying disclosure law. It doesn't concern 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 ban. 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.