Laying out their case to the U.S. Court of Appeals for the D.C. Circuit for the first time, lawyers for a half-dozen lobbyists contend the Obama administration's prohibition on federal lobbyists from sitting on agency boards and commissions has "punished" their clients.
U.S. District Judge Amy Berman Jackson in Washington got it wrong when she upheld the Obama administration's ban in September, Mayer Brown special counsel Charles Rothfeld and associate Joseph Minta wrote in their opening brief, filed Monday night, in the appellate court.
The lobbyists, who sought appointment or reappointment to Industry Trade Advisory Committees (ITAC) overseen by the Commerce Department and the Office of the U.S. Trade Representative, appealed the ruling in November.
"It would seem self-evident that the ability to serve on a government advisory committee is a desirable and beneficial opportunity that many would regard as valuable," the lawyers for the lobbyists wrote. "And that opportunity is withheld from plaintiffs here solely because they engage in the constitutionally protected activity of petitioning the government, thus both punishing and discouraging that constitutionally protected activity."
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.
The lobbyists said in their complaint in Washington federal district court that the ban 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.
Jackson disputed their claims.
"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. The guidance says agencies can use congressional lobbying disclosure databases to determine whether an individual is a federal 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."