Lobbyists sue Obama administration after being booted from boards

Lobbyists who were booted from federal advisory committees by the Obama administration are suing the government to reverse the ban on their service.

In a 16-page complaint filed in the U.S. District Court for the District of Columbia, six lobbyists argue the administration’s ban against lobbyists on advisory committees violates the First Amendment.

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The lobbyists challenging the ban were either serving or seeking to serve on one of the Industry Trade Advisory Committees (ITAC) that are jointly managed by the Commerce Department and the Office of the U.S. Trade Representative (USTR).

Lawyers working with the lobbyists said the ban flies in the face of the Constitution.

 “The administration can appoint people to the ITACs, but they can’t bar people from the ITACs from exercising their constitutional rights,” one of the lawyers told The Hill. “You can’t say you’re going to ban someone on account of them being Jewish, for exercising their right to freedom of religion. This is their right to petition.

“I can tell you from the standpoint of the plaintiffs, they’ve been interested in vindicating their legal rights but not interested in making this a public-

relations campaign,” the lawyer said.

In the complaint filed against Commerce and USTR on Sept. 2, 2011, the lobbyists “contend that excluding federally registered lobbyists from these committees violates the First Amendment to the U.S. Constitution and denies [them] equal protection of the laws.” 

They are seeking a declaration that the policy is “unconstitutional,” along with an injunction ordering Commerce and USTR not to deny their applications for membership on the advisory boards because of their status as registered lobbyists. They also want the government to pay back their legal fees.

The six lobbyists suing the government are Erik Autor of the National Retail Federation; Nate Herman, who represented the Travel Goods Association on an advisory board; Cass Johnson of the National Council of Textile Organizations; Stephen Lamar of the American Apparel & Footwear Association; Bill Reinsch of the National Foreign Trade Council, and Andrew Zamoyski, who represented the Society of Chemical Manufacturers and Affiliates on an advisory board, according to the complaint.

Five of the plaintiffs are registered to lobby for their respective trade groups, according to lobbying disclosure records. Zamoyski is registered to lobby for Clariant at his firm Zamoyski and Co., but represented a different entity on an advisory board.

With the exception of Reinsch, all of the lobbyists were kicked off a federal advisory panel, according to the complaint. 

The law firm Mayer Brown is representing the group in court, and several of the lobbyists referred questions about the lawsuit to the firm.

A USTR spokeswoman declined to comment on pending litigation.

The White House announced the policy to ban lobbyists from advisory committees in a September 2009 blog post by Norm Eisen, who was then serving as the White House ethics czar.

“The president made a commitment to the American people to reduce the influence of lobbyists in Washington out of a belief that lobbyists have too often in the past achieved disproportionate impact on government decisionmakers at the expense of broader voices from the public at large,” Eisen wrote. “If we are going to change the way business is done in Washington, we need to make sure we are not simply continuing the practices of the past.” 

Since his 2008 campaign, Obama has often positioned himself against K Street. He has banned lobbyists from contributing to or fundraising for his presidential campaigns and prohibited them from serving in his administration. 

The White House did, however, institute a waiver process that allowed several lobbyists to join the administration.

K Street protested the ban on advisory committees, with some appealing for a similar waiver process, but to little avail. In October 2011, the Office of Management and Budget (OMB) issued its final guidance on the policy.

The lobbyists suing the government take issue with how the policy applies only to individuals registered under the Lobbying Disclosure Act (LDA). Registration under LDA is required when a person spends at least 20 percent of client hours lobbying the government.

“Excluding registered lobbyists from advisory committees creates an incentive for individuals to structure their work so as to avoid the LDA’s 20 percent threshold, undermining the policy’s stated goal of increasing transparency,” the complaint said.

In addition, the lobbyists’ complaint says that those who are registered under the LDA pose less of a threat to “exercise undue influence over the executive branch.” 

“To the extent there is any risk of an appearance of undue influence, it would come from involvement in the formation of executive branch policy by unregistered individuals who were campaign contributors, bundlers or campaign activists,” the complaint says.

In December 2011, the Justice Department filed a motion to dismiss the complaint, according to court records. The lobbyists failed to show “that they have been deprived of a ‘legally protected interest’ ” or injured in any monetary or other “concrete” way, the motion says.

Further, the government does not have to hear the view of “every interested member of the public” on every policy, Justice argued.

“The president is not required to facilitate [the lobbyists’] lobbying efforts by affording them privileged positions on an executive branch advisory committee,” the administration declared in its motion. “Again, [they] remain free to petition the government, like any member of the general public, and the advisory board policy does not directly or substantially interfere with that freedom.”

The lobbyists countered the government’s motion to dismiss with a memo in opposition filed late last month.

The government will likely offer a reply soon, which could lead to oral arguments or a final decision by the court on whether to hear the  case.

— This story was updated at 5:54 p.m. to clarify Andrew Zamoyski's service on an advisory board.

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