Immediately after being sworn into office in 2009, President Obama issued Executive Order 13490, which barred federal lobbyists from service in his administration (on issues or in agencies they had formerly lobbied).  Then, in September 2009, the White House announced that it was encouraging federal agencies to follow this practice for appointments the agencies controlled, such as for advisory boards and commissions.  Two years later, several registered lobbyists who were denied reappointment to trade advisory committees challenged this policy as a violation of their constitutional rights.*

This past Wednesday, September 26, 2012, Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia issued an opinion dismissing the legal challenge. 

As a preliminary matter, the court concluded that the plaintiffs could bring the case because they suffered an injury by “being forced to make a choice” between committee service and the First Amendment right to petition the government.  The court also found a Fifth Amendment (equal protection) injury because the policy “puts those who are exercising their right . . . on a different footing than those who are not.”

On the merits, however, the court held that the policy was constitutional, citing four principal reasons:

  • Service on an industry trade advisory committee was not a “valuable government benefit.”  The plaintiffs in this case managed to show only that committee service was “desirable” and a “resume-booster,” which is different from past cases involving tax exemptions, welfare payments, or employment.  Because the government was taking away something of no value, it could do so by restricting constitutionally protected activity.
  • Past cases providing First Amendment protections for government volunteers are not applicable because, in those cases, the government sought to retaliate for specific views expressed by the speakers.  The Administration’s policy on lobbyists bars all registered lobbyists.  It is not based on the positions expressed by the lobbyists.
  • There is no Fifth Amendment violation because the policy does not really create two classes based on protected activity.  Because the Lobbying Disclosure Act has many exemptions, it is possible to lobby and not be registered.  The Administration’s policy bars only those who need to register, not those who engaged in the protected activity.
  • The Administration’s policy is rationally related to the government’s legitimate purpose in reducing the influence of special interests.  It is reasonable for the government to “single out federally registered lobbyists as particularly captured by special interests.”

With the court’s strong endorsement, the Administration’s policy will certainly continue, and it may even expand into additional areas of the government.  Because of this policy, many in Washington have increasingly sought to make fine distinctions concerning the triggers in the Lobbying Disclosure Act.  This can lead to problems, however, when companies and individuals make those distinctions without a comprehensive understanding of the LDA triggers, guidance, and precedents, or the implications of parallel statutes such as the Foreign Agents Registration Act or state pay-to-play laws that have different triggering criteria.

* Autor v. Blank, Civil Action No. 11-1593 (D.D.C.).  In addition to the lobbyists denied reappointment, one of the plaintiffs was an aspiring committee member who expected to be denied appointment because he was a registered lobbyist.

Tags: advisory committees, Executive Order 13490, litigation, lobbying
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Photo of Brian D. Smith Brian D. Smith

Brian Smith assists clients with challenging public policy matters that combine legal and political risks and opportunities.

Brian represents companies and individuals facing high-profile and high-risk congressional investigations and hearings, and other criminal, civil, and internal investigations that present legal, political, and public…

Brian Smith assists clients with challenging public policy matters that combine legal and political risks and opportunities.

Brian represents companies and individuals facing high-profile and high-risk congressional investigations and hearings, and other criminal, civil, and internal investigations that present legal, political, and public relations risks. He assists companies and executives responding to formal and informal inquiries from Congress and executive branch agencies for documents, information, and testimony. He has extensive experience preparing CEOs and other senior executives to testify before challenging congressional oversight hearings.

Brian develops and executes government relations initiatives for clients seeking actions by Congress and the executive branch. He has led strategic efforts resulting in legislation enacted by Congress and official actions and public engagement at the most senior levels of the U.S. government. He has significant experience in legislative drafting and has prepared multiple bills enacted by Congress and legislation passed in nearly every state legislature.

Prior to joining Covington, Brian served in the White House as Assistant to the Special Counsel to President Clinton. He handled matters related to the White House’s response to investigations, including four independent counsel investigations, a Justice Department task force investigation, two major oversight investigations by the House of Representatives and the Senate, and several other congressional oversight investigations.

Brian is a Professorial Lecturer in Law at the George Washington University Law School.

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