September 27, 2012
District Court Dismisses Challenge to Ban on Lobbyist on ITACs
Judge Amy Berman Jackson (D.D.C.) ruled in Autor v. Blank that the federal ban on registered lobbyists serving on Industry Trade Advisory Committees did not violate the First and Fifth Amendments. The ruling dismisses the lobbyists' case and lets the ban stand.
Federal law bans federally registered lobbyists from serving on ITACs--commissions that provide advice on trade policy to the President through the USTR and the Secretary of Commerce. A group of federally registered lobbyists claimed that the ban violated their First and Fifth Amendment rights--in particular, that the bar forced them to forgo their First Amendment protected activity (lobbying) in order to receive a government benefit (membership on an ITAC).
The plaintiffs pitched their case this way--as an unconstitutional condition--because, as Judge Jackson ruled, Minn. State Bd. for Cmty. Colls v. Knight blocked their more direct claim. In Knight, the Court ruled that the Constitution doesn't grant members of the public any particular right to be heard by public bodies making policy decisions. Knight thus prohibited the plaintiffs from successfully arguing that the ban violated their right to petition the government through membership on an ITAC. The plaintiffs tried to navigate Knight by arguing that the ban was an unconstitutional condition--an invalid requirement that they relinquish a constitutional right in order to receive a government benefit.
Judge Jackson rejected this claim. She wrote the complaint did not sufficiently allege that service on an ITAC was a valuable government benefit, and the plaintiffs failed to show that service amounted to anything more than an opportunity to "fatten [their own] rolodex[es]" (and thus their paychecks). Moreover, Judge Jackson held that the plaintiffs failed to allege that they were denied ITAC membership because of their lobbying activity. She said that the ban didn't impose a penalty; instead, it simply prohibited the plaintiffs from receiving a benefit. ("[T]he government is not required to help plaintiffs 'realize all the advantages' of their lobbying activity.'") And she noted that the plaintiffs themselves seemed to concede that one's lobbying activities could even increase while serving on an ITAC, so long as one isn't a federally registered lobbyist (by, e.g., restructing one's lobbying activities to stay under the LDA's radar).
Judge Jackson also rejected the plaintiffs' claim that ban treated those who exercised the right to petition the government differently from those who didn't. She said that the ban allows service on an ITAC and simultaneous petitioning of the government--just not by a federally registered lobbyist. She said that this distinction--between federally registered lobbyists and everybody else--was rationally related to the government's interest in reducing special interests in government.
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