Obama Administration Backtracks On Key Lobbyist Restrictions

Christopher DeLacy is a Partner and Andrew Emerson is an Associate in the Washington D.C. office

Today, the Obama Administration issued revised guidance regarding federal lobbyists serving on federal advisory boards and commissions. Now, instead of a total ban, federal lobbyists will be able to serve in a "representative" but not an "individual" capacity, meaning that lobbyists must be representing a specific entity and not themselves as individuals. This revision appears to have been made in response to a pending federal lawsuit and represents a set-back for an Administration that, at one point, placed heavy emphasis on reducing the power of lobbyists.

New Advisory Committee Lobbyist Rules

Under the revised guidance from the Office of Management and Budget (OMB), federally registered lobbyists may serve on an advisory committee, board, or commission so long as they are not acting in an "individual capacity." In this Revised Guidance, the term "individual capacity" refers to individuals who are appointed to committees to exercise their own individual best judgment on behalf of the government, such as when they are designated as Special Government Employees as defined in 18 U.S.C. 202. The lobbyist ban does not apply to lobbyists who are appointed in a "representative capacity," meaning that they are appointed for the express purpose of providing a committee with the views of a nongovernmental entity, a recognizable group of persons or nongovernmental entities (an industry sector, labor unions, or environmental groups, etc.), or a state or local government. Federally registered lobbyists are individuals listed on their employer's lobbying registration or reports submitted pursuant to the Lobbying Disclosure Act of 1995, as amended (LDA).

Previous Advisory Committee Lobbyist Ban

On October 5, 2011, OMB issued final guidance prohibiting registered lobbyists from being appointed or reappointed to serve on federal boards and commissions. This guidance was based on a June 18, 2011, Presidential Memorandum and September 23, 2009, White House blog entry from then White House special counsel Norm Eisen. In the memo, President Obama stated: "I hereby direct the heads of executive departments and agencies not to make any new appointments or reappointments of federally registered lobbyists to advisory committees and other boards and commissions." The ban covered all individuals listed as lobbyists under the LDA and prohibited service on any...