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 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.