A federal appeals court opened the door for registered lobbyists to serve on agency boards and commissions, contravening President Barack Obama's 2010 order banning lobbyists from such positions.
The U.S. Court of Appeals for the D.C. Circuit reversed and remanded a lower court decision upholding the ban, ruling that it violates the lobbyists' First Amendment right to petition the government.
"Appellants have pled a viable First Amendment unconstitutional conditions claim," Judge David Tatel wrote for the unanimous panel. “That is, they allege that the government has conditioned their eligibility for the valuable benefit of [committee] membership on their willingness to limit their First Amendment right to petition government.”
Tatel was joined by Judge Janice Rogers Brown and Senior Judge Harry Edwards.
Six lobbyists represented by Mayer Brown special counsel Charles Rothfeld sued the government in 2011, challenging the Obama administration’s lobbying directive. “My administration,” Obama wrote in the June 18, 2010 order to agency heads, “is committed to reducing the undue influence of special interests that for too long has shaped the national agenda and drowned out the voices of ordinary Americans.”
The plaintiffs in Autor v. Pritzker all sought to be unpaid members of industry trade advisory committees—there are 16 industry-specific ones, which issue recommendations on proposed trade agreements to the Commerce Department and U.S. Trade Representative.
U.S. District Judge Amy Berman Jackson in Washington dismissed the suit in September 2012, ruling that committee membership was not a valuable government benefit. The lobbyists, Jackson wrote, “have not been penalized for or inhibited in the exercise of their rights."
The D.C. Circuit disagreed. The committee members “are able to play a significant role in shaping national trade policy: they consult with top-government officials before, during, and after the conclusion of trade negotiations,” Tatel wrote.
Besides, Tatel continued, the issue “does not turn on whether the benefit has economic worth. Even if it has none, so long as it has value to those who seek it, as [committee] membership does to Appellants, then the government can use its power to withhold the benefit to pressure Appellants to forgo constitutionally protected activity.”
The court found that the lobbyists “plausibly alleged that the ban pressures them to limit their constitutional right to petition.”
Tatel also questioned just what the ban was supposed to accomplish in this context. The trade committees “exist for the very purpose of reflecting the viewpoints of private industry,” Tatel wrote.
On remand, he suggested that the lower court “ask the government to explain how banning lobbyists from committees composed of representatives of the likes of Boeing and General Electric protects the ‘voices of ordinary Americans.’”
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.