Federal Ban on Lobbyists’ Service on Advisory Committees May Violate the First Amendment

[UPDATE: Whoops, Jonathan beat me to it; I’m turning off comments, so people can post on that thread instead.]

So holds Autor v. Pritzker (D.C. Cir. Jan. 17, 2014), a very interesting D.C. Circuit decision just handed down today. (Congratulates to my Mayer Brown LLP colleagues Charles Rothfeld and Joseph Minta, who represent the plaintiffs.) An excerpt (one paragraph break added):

President Obama, seeking to reduce the “culture of special interest access,” directed executive agency heads to bar federally registered lobbyists from serving on advisory committees. Appellants, federally registered lobbyists wishing appointment to one type of advisory committee — Industry Trade Advisory Committees (ITACs) — challenge the constitutionality of the presidential ban. Because the ban requires Appellants to limit their exercise of a constitutional right — in this case, the First Amendment right to petition government — in order to qualify for a governmental benefit — in this case, ITAC membership — we reverse the district court’s premature dismissal of the complaint and remand for that court to determine in the first instance whether the government’s interest in excluding federally registered lobbyists from ITACs outweighs any impingement on Appellants’ constitutional rights.

Created by the Trade Act of 1974, which requires the President to “seek information and advice from representative elements of the private sector … with respect to” trade policy, ITACs play a significant role in shaping international trade agreements. The sixteen industry-specific ITACs run the gamut of industrial interests from Aerospace Equipment to Consumer Goods to Service and Financial Industries. In addition to meeting “at the call of the United States Trade Representative,” ITACs prepare reports for the President, Congress, and the Trade Representative on whether proposed trade agreements provide for “equity and reciprocity within” the committees’ sector. Although ITAC advice is non-binding, the Act requires the Trade Representative to “inform the advisory committees of significant departures from such advice or recommendations made.”

Unlike many advisory committees, ITACs exist for the very purpose of reflecting the viewpoints of private industry. According to the Trade Act, the “committees shall, insofar as is practicable, be representative of all industry, labor, agricultural, or service interests.” Applicants for ITAC membership must be sponsored by a firm or organization engaged in trade or trade policy. ITAC members serve in a “representative capacity presenting the views and interests of a U.S. entity or U.S. organization.” It should thus come as no surprise that[, for example,] the Aerospace Equipment ITAC includes representatives of Boeing, Pratt & Whitney, Gulfstream, General Electric, Lockheed Martin, and Bell Aerospace….

Although Congress created ITACs to represent the views of the private sector, President Obama directed “the heads of executive departments and agencies not to make any new appointments or reappointments of federally registered lobbyists to advisory committees.” In so directing, the President sought to further his commitment to change “the culture of special-interest access” that is furthered by lobbyists’ “service in privileged positions within the executive branch.” “My administration,” the President explained, “is committed to reducing the undue influence of special interests that for too long has shaped the national agenda and drowned out the voices of ordinary Americans.” Pursuant to the President’s directive, and setting the stage for this litigation, the Commerce Secretary and the Trade Representative prohibit federally registered lobbyists from serving on ITACs.

The court notes that lobbying is generally constitutionally protected by the Petition Clause, discusses the various precedents involved in the case, and concludes:

To sum up, then, Appellants have pled a viable First Amendment unconstitutional conditions claim. That is, they allege that the government has conditioned their eligibility for the valuable benefit of ITAC membership on their willingness to limit their First Amendment right to petition government.

But this does not end our inquiry. The Supreme Court has long sanctioned government burdens on public employees’ exercise of constitutional rights “that would be plainly unconstitutional if applied to the public at large.” Although ITAC service differs from public employment, the government’s interest in selecting its advisors implicates similar considerations that we believe may justify similar restrictions on individual rights. As the Supreme Court explained in Pickering v. Board of Education [a leading government-as-employer precedent], the “problem in [these cases] is to arrive at a balance between the interests of the [individual] … and the interest of the State.” And where, as here, the government imposes a “blanket” ban on protected activity, its “burden is greater” than in an ordinary Pickering case.

The government justifies the ban on the grounds that it “directly relates to the purposes and efficacy of the ITACs as advisers” by “enabl[ing] the government to listen to individuals who have experience in the industry but who are not registered lobbyists, and are thus not otherwise as actively engaged in the political and administrative process.” This rationale, Appellants respond, is “barely intelligible” because ITAC members “serve in a representative capacity.” … [G]iven that the issue is virtually unbriefed, that the district court dismissed the complaint pursuant to Rule 12(b)(6), and that the challenged ban represents a major presidential initiative, we believe the wisest course of action is to remand for the district court to develop a factual record and undertake the Pickering analysis in the first instance.

In so doing, the district court should ask the parties to focus on the justification for distinguishing, as the lobbyist ban does, between corporate employees (who may represent their employers on ITACs) and the registered lobbyists those same corporations retain (who may not). The court may also want to ask the government to explain how banning lobbyists from committees composed of representatives of the likes of Boeing and General Electric protects the “voices of ordinary Americans.”

As I said, a very interesting case, both to those who are interested in government-industry relations, and to those interested in the special First Amendment rules applicable to the government acting in a managerial capacity (such as with respect to its employees). Read the whole opinion.

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