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White House Eases Ban on Lobbyists Serving on Advisory Committees

Friday, August 15, 2014
Sandler, Travis & Rosenberg Trade Report

Effective Aug. 13, the Office of Management and Budget has eased a ban on the appointment of federally registered lobbyists to advisory committees and other boards and commissions, including those dealing with trade policy. Specifically, OMB has issued a revised guidance to clarify that this ban only applies to federally registered lobbyists serving in an individual capacity; i.e., appointed to exercise their own individual best judgment on behalf of the government. The ban no longer applies to lobbyists who are appointed in a representative capacity, meaning that they are appointed for the express purpose of providing the views of a non-governmental entity, a recognizable group of persons or non-governmental entities (an industry sector, labor unions, environmental groups, etc.), or a state or local government. OMB notes that the ban also does not apply to individuals who are registered as lobbyists only at the state level.

The revised lobbyist policy applies to any committee, board, commission, council, delegation, conference, panel, task force or other similar group (or subgroup) created by the president, Congress or an executive branch department or agency to serve a specific function to which appointment is required, regardless of whether it is subject to the Federal Advisory Committee Act. Delegations organized to present the United States’ position to international bodies are considered to be committees for the purposes of this policy. The policy also applies to established committee workgroups and subcommittees that may or may not require formal appointment. It does not, however, restrict the participation of lobbyists as witnesses or experts who appear before or submit advice or materials to committees. OMB states that the purpose of the policy is to prevent lobbyists from being in privileged positions in government, not to prevent lobbyists or others from petitioning their government.

The revised guidance states that any individual who previously served as a federally registered lobbyist may be appointed or re-appointed to an advisory committee, board or commission in an individual capacity only if (s)he has (a) filed a bona fide de-registration or (b) been de-listed by his/her employer as an active lobbyist, reflecting the actual cessation of lobbying activities, or not appeared on a quarterly lobbying report for three consecutive quarters as a result of his/her actual cessation of lobbying activities.

The White House imposed the ban in 2010 in an effort to “reduce the influence of lobbyists in Washington out of a belief that lobbyists have too often in the past achieved disproportionate impact on government decision makers at the expense of broader voices from the public at large.” The ban was immediately challenged by the trade community, which argued that it could have negative effects on the development of policies and procedures within key agencies such as U.S. Customs and Border Protection, the International Trade Administration and the Office of the U.S. Trade Representative. The revised OMB guidance was issued as part of a settlement of a lawsuit that sought to overturn the ban for violating constitutional safeguards of free speech and equal protection.

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