Challenge to Ban of Lobbyists on Trade Advisory Committees to Continue as D.C. Circuit Reverses Dismissal
The U.S. Court of Appeals for the D.C. Circuit on Jan. 17 reversed the dismissal of a challenge to the ban on registered lobbyists serving on Commerce Department and U.S. Trade Representative Industry Trade Advisory Committees (ITACs). The lawsuit from lobbyists representing several trade groups, including the National Retail Federation and the American Apparel & Footwear Association, argues the ban is unconstitutional because it encourages them to limit their First Amendment right to petition the government to be able to serve on the ITACs.
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The plaintiffs, most of whom had previously served on an ITAC, are: Erik Autor, formerly of the National Retail Federation; Nate Herman, formerly of the Travel Goods Association and now with AAFA; Cass Johnson, of the National Council of Textile Organizations; Stephen Lamar, of the AAFA; William Reinsch, of the National Foreign Trade Council; and Andrew Zamoyski, of the Society of Chemical Manufacturers and Affiliates (SOCMA). They challenge a 2010 directive from President Barack Obama that federal agencies not appoint registered lobbyists to serve on the 16 ITACs. Lobbyists must register if they spend at least 20% of their time lobbying for a single client. The lawsuit alleges that the policy encourages lobbyists to remain under that 20% threshold so that they can serve on ITACs, in effect incentivizing lobbyists to limit their exercise of their right to petition.
In September 2012, the District of Columbia U.S. District Court dismissed the lawsuit (see 12092724). District Judge Amy Berman Jackson found that, under a Supreme Court ruling from 1984, the government is not required by the Constitution to listen to every member of the public when making policy decisions. In any case, the government said service on ITACs is not a “valuable government benefit” that would encourage lobbyists to limit their activities, said the district court.
The D.C. Circuit disagreed with the lower court’s interpretation of the Supreme Court precedent, and reversed. Although “the Supreme Court has found that the government can choose to hear from some groups at the expense of others, it never addressed whether the government may also limit the constitutional rights of those to whom it chooses to listen,” said Circuit Judge Tatel in the opinion. And ITAC membership carries many important benefits, like playing a role in shaping trade policy, said the appeals court, so the government cannot limit participation in a way that infringes constitutionally-protected rights.
Whether the ban is justified by policy considerations is another matter, said the D.C. Circuit. The government argued that the ban on registered lobbyists makes the committees more effective because it allows the government to listen to people with experience in the industry, but that are not otherwise actively engaged in politics. The D.C. Circuit said the lower court didn’t address that issue, and it ordered the D.C. District Court to look into that issue on the next go-around.
(Erik Autor et al. v. Pritzker, D.C. Cir. No. 12-5379, dated 01/17/14)