Obama Administration scales back ban on lobbyists serving on federal advisory committees

by DLA Piper
Contact

The Obama Administration, which has proudly touted its restrictions on the activities of federal lobbyists, has taken a small step toward rolling back one such provision. The Office of Management and Budget released new guidance, published in the Federal Register on August 13, that narrows the application of a 2010 Presidential Memorandum barring lobbyists from serving on federal agency advisory boards and commissions.

OMB’s new guidance appears to have been prompted by an appeals court decision earlier this year that gave new life to a lawsuit brought by a group of lobbyists who served on Industry Trade Advisory Committees. The lobbyists argued that the Obama policy violated the First Amendment by denying them the benefits of service on the committees as a result of exercising their right to petition the government.

The case, now known as Autor v. Pritzker, was dismissed by a district court judge in 2012, but this year, the D.C. Circuit Court of Appeals reversed the lower court’s decision, reinstating the case.

The D.C. Circuit concluded that the lobbyists had argued a viable First Amendment claim and emphasized the fact that certain advisory committees, such as those on which the lobbyists in question served, were created specifically to reflect the views of private industry. Under the Obama policy, the committees still welcomed the view of private industry – but not if expressed by lobbyists. The circuit court directed the lower court to reconsider this distinction.  Subsequently, the government was reported to be in negotiations to settle the case, and today’s announcement will likely resolve the matter.

The revised guidance seems to address squarely the concerns raised by the D.C. Circuit. Rather than ban lobbyists from these panels outright, the new policy would allow them to serve on federal committees, board, and commissions so long as they are doing so in their representational capacity. In other words, a lobbyist appointed to provide the agency with the views of his or her client may serve. At the same time, a federal lobbyist may not serve on a committee in an “individual capacity” – i.e., one who is appointed to exercise his or her own personal best judgment on behalf of the government.

This change will hearten lobbyists who feel advisory panels can be an effective way to advocate for their clients and to improve government policies. But the new guidance may also result in some confusion, as both lobbyists and agencies consider whether particular appointments are “representational” or “individual.”

OMB’s guidance offers little assistance in making this distinction. Instead, readers are directed to look to the enabling documents that created a particular federal panel and that sets forth its membership.  OMB also references advice from the Office of Government Ethics, which has previously debated similar questions in the course of considering the application of government ethics rules to advisory panel members.

We will continue to monitor developments with respect to the Obama’s policies toward lobbyists. 

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© DLA Piper | Attorney Advertising

Written by:

DLA Piper
Contact
more
less

DLA Piper on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!