Lawyers for six lobbyists fighting what they call a “constitutionally problematic” Obama administration policy want a federal appeals court in Washington to revive their lawsuit. The challengers, represented by a team from Mayer Brown, argue in the U.S. Court of Appeals for the D.C. Circuit that a judge got it wrong when she upheld the administration’s ban on lobbyists serving on agency boards and committees.
“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,” Mayer Brown special counsel Charles Rothfeld and associate Joseph Minta, representing the lobbyists, wrote in a brief filed on May 6. “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.”
Jean Lin, a senior trial counsel in the U.S. Department of Justice’s Civil Division, wrote in a February 2012 court filing that the lobbyists’ First Amendment claim lacks merit. Membership on a trade committee — unlike government funding and tax benefits — isn’t a benefit recognized under the doctrine of “unconstitutional conditions,” Lin wrote.
Kenneth Gross, the Skadden, Arps, Slate, Meagher & Flom partner in charge of the firm’s political law practice, said he sympathizes with the lobbyists. But he said it’s a privilege — not a right — to serve on an agency board or committee. “I think this is an uphill battle,” said Gross, who is staying out of the dispute.
LOBBYING FOR TRADE GROUPS
The plaintiffs — Erik Autor, Nate Herman, Cass Johnson, Stephen Lamar, William Reinsch and Andrew Zamoyski — have lobbied for trade associations. Autor, the name plaintiff, represented the National Retail Federation on an advisory board. Zamoyski advocated for the Society of Chemical Manufacturers and Affiliates.
The lobbyists sought appointment or reappointment to industry trade advisory committees (ITAC) overseen by the U.S. Commerce Department and the Office of the U.S. Trade Representative. The committees, which provide links between the government and the private sector, advise the president on trade policy.
But their ability to serve is blocked. The White House in 2010 issued a memorandum ordering federal agency heads to stop appointing or reappointing federally registered lobbyists to advisory boards and committees.
“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.”
The plaintiffs said in their September 2011 U.S. district court complaint that the administration’s ban infringed on their constitutional right to petition the government and applied an unlawful classification that penalizes them. They sought “a declaration that this policy is unconstitutional” and for the consideration of their ITAC applications.
U.S. District Judge Amy Berman Jackson rejected the claims, ruling that they “do not establish that service on an ITAC is a valuable government benefit that an individual committee member could receive.” Jackson said the plaintiffs have not been “penalized for or inhibited in the exercise of their rights.”
The government, she continued, “could reasonably believe that excluding lobbyists from ITAC services would increase public confidence that government is not being overtaken by insiders.”
Mayer Brown’s Rothfeld, a veteran U.S. Supreme Court advocate, and Minta called membership on a trade advisory committee “a desirable and sought-after” position. “These individuals both have an opportunity to influence the development of government policy and gain valuable experience and expertise in matters of trade negotiation and policy,” Rothfeld and Minta said in their brief.
Michael Raab and Mark Stern, lawyers in the Justice Department’s Civil Division appellate section, are scheduled to file the government’s brief with the D.C. Circuit by June 5. No argument date is set.
Monte Ward, president of the American League of Lobbyists, called the administration’s prohibition misguided. “ALL agrees with the plaintiffs in this case that they are being unjustly treated for following the law and their right to exercise their First Amendment rights are being infringed,” Ward said via email. “We hope that they are vindicated in court and that lobbyists can return to public service as soon as possible.”
Andrew Ramonas can be contacted at email@example.com.