District Court Upholds Ban on Lobbyists Serving on Industry Trade Advisory Committees

A U.S. District judge upheld Commerce Department and U.S. Trade Representative policy prohibiting federally registered lobbyists from serving on Industry Trade Advisory Committees (ITACs), which help provide trade policy advice to the President. The Sept. 26 opinion from Judge Amy Berman Jackson of U.S. District Court for the District of Colombia dismissing the complaint said the lobbyists were unable to adequately make the case of First and Fifth Amendment rights infringement, which the suit alleged. Email documents@brokerpower.com for a copy of the decision or the Sept. 2, 2011, compliant.

The plaintiffs, most of which had previously served on an ITAC, were: Erik Autor, of the National Retail Federation; Nate Herman, of the Travel Goods Association; Cass Johnson, of the National Council of Textile Organizations; Stephen Lamar, of the American Apparel and Footwear Association; William Reinsch, of the National Foreign Trade Council; and Andrew Zamoyski, of the Society of Chemical Manufacturers and Affiliates (SOCMA). The suit said Reinsch wanted to apply for a ITAC position but knew an application wouldn't be accepted. In 2010, the White House issued a memo instructing "executive departments and agencies not to make any new appointments or reappointments of federally registered lobbyists to advisory committees and other boards and commissions." The memo is (here).

Suit Alleged Constitutional Violations

The lobbyists' suit alleged the Commerce and USTR policies deprive them of First Amendment protections for the right to petition the government for a redress of grievances. The Justice Department asked the judge to dismiss the suit for failure to state a claim. While the court found that some plaintiffs have a standing to bring their claim, the suit "failed to state a claim that the policy unconstitutionally infringes upon the right to petition the government or that it employs an unlawful classification," the opinion said.

The lobbyists' constitutional arguments fail to "support a finding that service on an ITAC is a valuable government benefit," such as tax exemptions and public employment, which can't be withdrawn as a result of an individual's exercise of First Amendment rights, the judge said. The plaintiffs argued that ITAC membership "carries with it a whole constellation of not easily quantifiable but very real benefits," such as experience, resume enhancement and expertise. But past court decisions have found there's no need for a court to accept assertions of benefits without facts to back it up, said the opinion. "At bottom, plaintiffs seem to suggest that being able to tout their status as government insiders and advisors will enhance their ability to attract lobbying clients in the future and advance their goals," it said.

The policy also doesn't deny the right to petition the government, as there are no allegations that the lobbyists "were asked to leave or avoid the ITAC because of the content of anything they expressed, who they lobbied for, or any particular position they advanced on behalf of their clients," the opinion said. The complaint alleges the policy is against the First Amendment in that those "whose exercise of the right to petition triggers" federal lobbyist registration requirements, who then would not be able to serve on an ITAC. But the policy doesn't prohibit lobbying and, as the complaint said, non-registered lobbyist ITAC members can engage in more lobbying activity, said the opinion. "Because the DOC and USTR policy does not offend the Constitution, and it is rationally related to a legitimate government aim," the suit was dismissed.

Private Sector's Voice

SOCMA disagreed with the ruling. "The court's decision insults individuals and organizations whose legitimate mission it is to ensure that the private sector's voice, especially those of small businesses, is sufficiently articulated to our government," said Bill Allmond, SOCMA vice president-government and public relations. "The court minimizes service on these advisory boards referring to it as a privilege, but, in fact, it is a right and, in many cases, a necessity. The decision is also a blow to government transparency because, unlike lobbyists who must publicly disclose in detail their activities, the court has sided with secrecy over sunshine." The other trade groups, the USTR and Commerce Department didn't comment. Charles Rothfeld, a Mayer Brown lawyer who represented the trade groups, also didn't comment.