In September 2012, we reported that Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia dismissed a complaint filed by several registered lobbyists that challenged the Obama Administration’s policy barring lobbyists from federal advisory boards and commissions.  Although Judge Jackson acknowledged potential implications for rights guaranteed by the First Amendment (“the right . . . to petition the Government”) and the Fifth Amendment, she concluded that the policy was constitutional because it did not withhold a government “benefit,” retaliate for a specific viewpoint, or improperly classify individuals based on constitutionally protected activity.

This week, the lobbyists appealed.  In a brief filed in the D.C. Circuit Court of Appeals, the lobbyists argued that the ban is unconstitutional because the government is precluded from “denying a person a benefit because the person engaged in constitutionally protected activity.”

In their brief, the lobbyists disputed each of the District Court’s core conclusions.  First, the lobbyists contended that service on an advisory board was enough of a government benefit to confer constitutional protections.  The brief analogized to volunteer opportunities and participation in adopt-a-highway programs, which had both received constitutional protections in other cases.  Second, the lobbyists argued that the lack of viewpoint discrimination was immaterial because the right to petition the government has separate and distinct First Amendment protections, regardless of the right of free speech.  The lobbyists also argued that the ban should receive heightened scrutiny by the court because it draws distinctions based on constitutionally protected activity.

The Department of Justice is expected to file the government’s reply brief in the coming weeks.