For many years, we've talked about the very questionable practice by the USTR to set up "Industry Trade Advisory Committees" (ITACs), who had full access to the various documents concerning the trade agreements that were being negotiated. Obviously, for big companies, being one of the very small group of people on the inside, helping to shape trade agreements, is enormously powerful -- especially since industries long ago learned that you can "launder" policy changes that Congress doesn't want to make via the international trade agreement process, thereby putting pressure on Congress to act. It's why we've pointed out that it seems rather unfair that the RIAA has direct access
to the TPP agreement, but Senate staffers (including experts on international trade) have been refused access.
Of course, one of the lame responses from the USTR and others is that, technically
President Obama's ethics rules forbade "lobbyists" from being on those and other committees. But that was already very narrowly focused just on people who met the official definition of lobbyist. And, you could still have other people who work directly with lobbyists on the committee. So, for example, Neil Turkewitz, a VP with the RIAA is currently on the IP
advisory committee. He can do that because he's not technically a "lobbyist" -- he just happens to work for an organization where the main function is lobbying, and where most of his colleagues are lobbyists.
Apparently, that sort of looseness wasn't enough. The White House has now changed the rules to make them even friendlier to lobbyists
In new guidance issued Tuesday, the administration said registered lobbyists will once again be allowed to serve on the boards so long as they are representing a client.
The new rules
Under the Memorandum and this Revised Guidance, federally registered lobbyists may
not serve on an advisory committee, board, or
commission (hereinafter, “committee”) 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 do
es 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
state or local government.
The original ban was one of President Obama's apparent "sweeping" changes, and which the President insisted
showed how he was reducing the influence of lobbyists in government. Here's what he said back in 2010 about this:
My Administration is committed to reducing the undue influence of special interests that for too long has shaped the national agenda and drowned out the voices of ordinary Americans. Special interests exert this disproportionate influence, in part, by relying on lobbyists who have special access that is not available to all citizens. Although lobbyists can sometimes play a constructive role by communicating information to the government, their service in privileged positions within the executive branch can perpetuate the culture of special interest access that I am committed to changing.
Apparently, the administration is a little less committed to changing that these days. Admittedly, the White House was somewhat pressured into this by a lawsuit from some lobbyists who (I'm not joking) argued their First Amendment rights were being violated. While a lower court rejected this argument, earlier this year, the DC Circuit appeals court claimed it was a legitimate First Amendment issue
and that "the ban pressures them to limit their constitutional right to petition."
Frankly, that's ridiculous. Almost no one is allowed on these advisory committees. The Intellectual Property Advisory Committee has a grand total of 16 people. I'm sure there's no way in hell I
would be allowed on it. Does that mean that my
constitutional right to petition the government has been denied? Of course not, because that's a ridiculous
interpretation of the First Amendment.
The Appeals Court ruling wasn't the end of the case, as it was was sent back to the lower court for further review -- but it appears that the Obama administration has effectively thrown in the towel and will allow the lobbyists back onto the committees that none of us are likely to ever be allowed on. Because that process wasn't corrupt enough already...