Click here to join POGO's Un-Do Influence campaign.
By MICHAEL SMALLBERG
It's now been several months since the Obama Administration finalized its policy to remove registered lobbyists from federal advisory committees. But on K Street, the battle is far from over.
The Hill reported last week about a lawsuit filed by several lobbyists who are challenging the Administration’s policy on constitutional grounds. The complaint was filed in September 2011 by six lobbyists, most of whom were serving on Industry Trade Advisory Committees (ITACs) run by the Commerce Department and United States Trade Representative (USTR).
The plaintiffs in the case are Erik Autor from the National Retail Federation; Nate Herman, who had represented the Travel Goods Association; Cass Johnson from the National Council of Textile Organizations; Stephen Lamar from the American Apparel and Footwear Association; Andrew Zamoyski, who had represented the Society of Chemical Manufacturers and Affiliates; and William Reinsch from the National Foreign Trade Council.
The lobbyists contend that the Administration’s ban violates their First Amendment rights by
denying the benefit of committee service to individuals whose exercise of the right to petition triggers the [Lobbying Disclosure Act’s] registration requirement, while also interfering with the ability of the entities that seek the services of these lobbyists to communicate their views to the government.
In addition, the plaintiffs claim, the ban will reduce transparency and exacerbate perceptions of undue influence because lobbyists will simply de-register in order to evade the LDA requirements. They also argue that the ban is “squarely inconsistent” with the Trade Act of 1974, under which the Administration is required to “seek information and advice from representative elements of the private sector” regarding trade issues.
One of the lawyers working with the lobbyists told The Hill that the Administration’s ban is akin to excluding committee members because of their religious beliefs:
The administration can appoint people to the ITACs, but they can’t bar people from the ITACs from exercising their constitutional rights….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.
In December, the Administration responded with a motion to dismiss the lobbyists’ suit. The government argues that “the President is not required to facilitate Plaintiff’s lobbying efforts by affording them privileged positions on an Executive Branch advisory committee.” The goal of the Administration’s policy, in other words, was to prevent lobbyists from serving on advisory committees—where they routinely have access to “sensitive business, trade and other information not available to the general public”—since these lobbyists already have many unique channels for petitioning the government on behalf of their clients.
In fact, the government contends, the plaintiffs can still communicate with trade officials through stakeholder meetings, trade road shows, and private meetings with trade officials. To illustrate this point, the government cites a recent stakeholder meeting on Trans-Pacific Partnership (TPP) trade negotiations in which two of the plaintiffs—Herman and Johnson—made presentations. (Public Citizen and other groups have raised concerns about the special access granted to hundreds of “official trade advisors” as part of the TPP negotiations.) The government also points to a slew of public comments submitted by the plaintiffs on a wide range of trade policy issues.
Finally, the government contends that trade associations can still be represented on ITACs by individuals who aren’t registered lobbyists. In fact, two of the trade associations named in the lawsuit—the National Council of Textile Organizations and the Society of Chemical Manufacturers and Affiliates—are currently represented by non-lobbyists serving on ITACs.
Along these lines, we would point out that the trade associations can still spend millions on lobbying efforts to influence trade policy decisions. The National Retail Federation, for example, spent $3.3 million on lobbying last year, according to the Center for Responsive Politics (CRP). Trade associations can also still benefit by hiring or retaining former government officials who go through the revolving door. In fact, many of the plaintiffs in this case are included in CRP’s revolving door database. Erik Autor used to be a trade counsel on the Senate Finance Committee. Nate Herman used to work for the Commerce Department’s International Trade Administration. Stephen Lamar is a former Commerce employee. And William Reinsch used to be the head of the Bureau of Export Administration.
The lobbyists filed another memo last month in response to the government’s motion to dismiss. The plaintiffs state they are claiming a First Amendment right to lobby the government in general, not a right to ITAC participation. They claim the Administration’s lobbyist ban imposes an unconstitutional burden by forcing lobbyists to either “abandon their right to petition the government or forfeit similarly valuable ITAC membership.” Furthermore, they argue, the ban discriminates against registered lobbyists, since it's possible for two people to do the same amount of lobbying even if only one of them is required to register under the LDA.
The case is currently pending before the U.S. District Court for the District of Columbia.
In December 2010, POGO submitted a public comment that supported many aspects of the Administration’s policy. At the same time, we have also urged the Administration to give agencies the option to waive the lobbyist ban for qualified committee members if the members and their employers have no financial interest in the committee’s work. After all, the Administration has repeatedly granted waivers to lobbyists such as William Lynn exempting them from provisions of the ethics pledge for President Obama’s political appointees. Yet under the Administration’s advisory committee policy, an agency cannot even grant a waiver to a lobbyist who works for a non-profit public interest group.
POGO also believes that Congress and the Administration need to take additional steps to mitigate the undue influence that special interests often exert on federal advisory committees. Registered lobbyists certainly aren’t the only voices representing special interests on advisory panels. Last month, for instance, we raised concerns about undisclosed financial ties between FDA advisory panel experts and the pharmaceutical industry. That’s why POGO is supporting legislation to make advisory committees more transparent and balanced by eliminating political litmus tests for potential members, providing a mechanism for the public to nominate or comment on potential members, prohibiting agencies from improperly designating committee members as a way to evade federal ethics rules, closing loopholes that have allowed de facto members, subcommittees, and contractor-managed committees to circumvent the Federal Advisory Committee Act (FACA), and requiring agencies to publicly disclose important committee documents such as members’ conflict-of-interest waivers and recusal statements.
Even with the Administration’s lobbyist ban in place, federal agencies—along with the Office of Government Ethics (OGE) and General Services Administration (GSA), which share oversight responsibilities for federal advisory committees—will need to remain vigilant to prevent special interests from unduly influencing the process. As if to underscore to this point, The Hill also reported last week that some committee members are simply de-registering as federal lobbyists. The Hill examined the membership rosters of 16 ITACs, and found that at least 22 of the 300-plus members who serve on these committees have de-registered in the wake of the Administration’s lobbyist ban. Some claimed that the nature of their work had changed. Others said they had originally registered out of an “abundance of caution” but did not end up doing any lobbying work.
The Administration’s lobbyist ban was an important first step to limit the undue influence of special interests on advisory committees. But the government still has a long way to go to fully root out this influence and to ensure that advisory panels are operating with true independence and transparency.
Michael Smallberg is a POGO investigator.