August 13, 2014

Obama Administration Backtracks on Key Lobbyist Restrictions

Holland & Knight Eyes on Washington Blog
Christopher DeLacy | Andy Emerson

Today, the Obama Administration issued revised guidance regarding federal lobbyists serving on federal advisory boards and commissions. Now, instead of a total ban, federal lobbyists will be able to serve in a "representative" but not an "individual" capacity, meaning that lobbyists must be representing a specific entity and not themselves as individuals. This revision appears to have been made in response to a pending federal lawsuit and represents a set-back for an Administration that, at one point, placed heavy emphasis on reducing the power of lobbyists.    

New Advisory Committee Lobbyist Rules

Under the revised guidance from the Office of Management and Budget (OMB), federally registered lobbyists may serve on an advisory committee, board, or commission so long as they are not acting in an "individual capacity." In this Revised Guidance, the term "individual capacity" refers to individuals who are appointed to committees to exercise their own individual best judgment on behalf of the government, such as when they are designated as Special Government Employees as defined in 18 U.S.C. 202. The lobbyist ban does not apply to lobbyists who are appointed in a "representative capacity," meaning that they are appointed for the express purpose of providing a committee with the views of a nongovernmental entity, a recognizable group of persons or nongovernmental entities (an industry sector, labor unions, or environmental groups, etc.), or a state or local government. Federally registered lobbyists are individuals listed on their employer's lobbying registration or reports submitted pursuant to the Lobbying Disclosure Act of 1995, as amended (LDA). 

Previous Advisory Committee Lobbyist Ban

On October 5, 2011, OMB issued final guidance prohibiting registered lobbyists from being appointed or reappointed to serve on federal boards and commissions. This guidance was based on a June 18, 2011, Presidential Memorandum and September 23, 2009, White House blog entry from then White House special counsel Norm Eisen. In the memo, President Obama stated: "I hereby direct the heads of 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 ban covered all individuals listed as lobbyists under the LDA and prohibited service on any committee, board, commission, council, delegation, conference, panel, task force, or other similar group (or subgroup) created by the president, the congress, or an executive branch department or agency to serve a specific function to which appointment is required. Any person who was not a registered lobbyist at the time of appointment to a board or commission, but who became a registered lobbyist during their term of board service, was required to resign or, would otherwise be removed from the body.

Court Challenge

A group of lobbyists and former advisory committee members challenged the ban on First and Fifth Amendment grounds in the U.S. District Court for the District of Columbia. Although initially dismissed by the district court for failure to state a claim, the U.S. Court of Appeals for the District of Columbia Circuit reversed on appeal, and this case remains pending before the district court.1 This case appears to have led directly to today's revised guidance from OMB. 

Anti-Lobbyist Agenda

President Obama consistently emphasized lobbying reform as a key component of his policy agenda and messaging throughout his 2008 campaign and during his first term. On his first full day in office, the President signed an executive order (EO) prohibiting political appointees in his administration from accepting most gifts from lobbyists, restricting (but not banning) lobbyists from serving in his administration, and imposing new post-employment lobbying restrictions on members of his administration. The EO was followed by policies restricting lobbyist communications with the executive branch during deliberation over distribution of federal American Recovery and Reinvestment Act of 2009 and Emergency Economic Stabilization Act of 2008 funding. Next, the Office of Government Ethics (OGE) engaged in a now stalled rulemaking to extend the EO by restricting lobbyist gifts to all federal employees. Finally, President Obama implemented the now revised ban on lobbyist participation on federal advisory committees. It is unclear if the Administration plans any further lobbyist restrictions, but it seems unlikely at this point.       

1 Autor v. Pritzker, 740 F.3d 176 (D.C. Cir 2014)

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