12 August 2014
Some lobbyists can serve once again on federal agency committees and boards after the Obama administration changed a White House rule that barred them from the panels, according to guidance released by the U.S. Office of Management and Budget on Tuesday.
The revised policy, which will take effect Wednesday, would let the six lobbyists fighting the ban in Autor v. Pritzker apply for membership on the Industry Trade Advisory Committees. The 16 panels, overseen by the U.S. Department of Commerce and the Office of the U.S. Trade Representative, are intended to bring together the business community and the government to create U.S. trade policy.
The ban, which covers hundreds of advisory boards and commissions, now "does not apply if [lobbyists] are specifically appointed to represent the interests of a nongovernmental entity, a recognizable group of persons or nongovernmental entities (an industry sector, labor unions, environmental groups, etc.), or state or local governments," a seven-page OMB notice says.
Erik Autor and the five other lobbyists sued in 2011 in Washington federal district court for appointment or reappointment to the Industry Trade Advisory Committees. Autor, Nate Herman, Cass Johnson, Stephen Lamar, William Reinsch and Andrew Zamoyski all were federally registered lobbyists who sought to represent trade associations on the panels. Autor advocated for the National Retail Federation.
Mayer Brown special counsel Charles Rothfeld, who represents the lobbyists with associate Joseph Minta, welcomed the new guidance, which is intended to resolve the case.
"This change vindicates the First Amendment rights of these individuals, while also allowing trade agencies to benefit from their technical expertise," Rothfeld said in a written statement. "The administration’s policy not only deprived these committees of valuable expertise and advice, but also violated the First Amendment and Fifth Amendment equal-protection rights of the plaintiffs. The government offered no substantial justification for denying these individuals the right to serve on industry trade advisory committees, and the rules actually harmed the public interest in transparency by driving many lobbyists to de-register."
Representatives of the OMB and the U.S. Department of Justice didn't respond immediately to requests for comment.
The revision to the ban came after the U.S. Court of Appeals for the D.C. Circuit in January reversed U.S. District Judge Amy Berman Jackson's September 2012 decision affirming the prohibition, giving the lobbyists a second chance to argue their claims.
"Reading the government's brief and listening to oral argument … one might get the impression that this case is about the president's ability to select his chief of staff or White House counsel," D.C. Circuit Judge David Tatel wrote for the unanimous panel. "Nothing could be further from the truth."
Reprinted with permission from the August 12, 2014 edition of The National Law Journal © 2014 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.