On January 17, 2014, the D.C. Circuit Court of Appeals reinstated a legal challenge to President Obama’s ban on lobbyists serving on advisory boards and commissions in federal agencies.  The appellate decision overturned a lower court judgment, issued in September 2012, that dismissed the claims of several lobbyists who alleged that the ban violated their First and Fifth Amendment rights.  (We previously reported on the lower court’s decision and the lobbyists’ appeal.)

The appellate decision is noteworthy because the court squarely rejected arguments advanced both by the government in support of the ban and by the lower court in dismissing the lobbyists’ lawsuit.

The court rejected the government’s argument that the case was controlled by prior decisions holding that the government is free to choose its advisors, and individuals do not have a constitutional right to force the government to listen to their views.  The difference here, the court concluded, was that the government had created the advisory committees specifically to hear the views of private industry.

Citing the doctrine of “unconstitutional conditions,” the appellate court concluded that, once the government established advisory committees to hear industry’s views, it could not deny any particular individual the right to participate “based on [the individual’s] exercise of the constitutional right to petition government.”  The unconstitutional conditions doctrine provides that the government cannot deny a benefit on a basis that infringes a constitutionally protected interest.

Next, rejecting the lower court’s conclusions, the appeals court found that participation in the advisory panels was valuable, and the ban burdened the lobbyists’ First Amendment right to petition the government.

The court remanded the case to the lower court to undertake a balancing test, assessing whether the burden on the lobbyists’ First Amendment rights was justified by some other interest of the government.  The court cautioned, however, that the government’s “burden is greater” than normal in justifying the restriction because the policy “imposes a ‘blanket’ ban on protected activity.”

Finally, the appeals court reinstated the lobbyists’ Fifth Amendment claim.  Rejecting the district court’s conclusions, the appellate court held that the ban on lobbyists “denies them a benefit available to others on account of their exercise of a fundamental right.”

The appellate court’s conclusions largely sided with the legal theories advanced by the lobbyists.  Nonetheless, on remand, the lower court may still conclude that the ban is justified under the balancing test, even though it violates protected constitutional rights.