Federal lobbyists have won revival of a lawsuit arguing that an Obama administration rule barring them from serving on federal advisory panels violates their free-speech rights.
The U.S. Court of Appeals in Washington today sent the case back to the trial judge, who dismissed the lawsuit, to consider whether the government’s interest in the restriction outweighs any effect it might have on the lobbyists’ First Amendment protections. U.S. District Judge Amy Berman Jackson had ruled there was no first amendment issue.
“The ban requires appellants to limit their exercise of a constitutional right — in this case, the First Amendment right to petition government — in order to qualify for a governmental benefit,” the appeals panel ruled.
President Barack Obama in June 2010 directed executive branch agencies and departments not to appoint or reappoint federally registered lobbyists to government advisory committees and other boards and commissions. The administration adopted the policy in October 2011 over opposition from the AFL-CIO, the national labor union federation, and about a half-dozen other organizations with offices in D.C.
Six federally registered lobbyists seeking to serve on government advisory units known as international trade advisory advisory committees, or ITACs, sued to block the plan.
In dismissing the case, Jackson ruled in September 2012 that the ban neither deprived the lobbyists of a valuable government benefit nor infringed their constitutional rights
The appeals court today disagreed.
The lobbyists have made a “viable” First Amendment unconstitutional conditions claim, the court ruled.
“The Supreme Court has long sanctioned government burdens on public employees’ exercise of constitutional rights ‘that would be plainly unconstitutional if applied to the public at large,’” the appeals panel ruled. “Although ITAC service differs from public employment, the government’s interest in selecting its advisors implicates similar considerations that we believe may justify similar restrictions on individual rights.”
Created by the Trade Act of 1974 to represent the views of the private sector, 16 industry-specific ITACs cover industrial interests from aerospace equipment to service and financial industries, according to the ruling.
ITAC members, who serve as volunteers, play a significant role in shaping national trade policy, according to the ruling.
They consult with government officials before, during and after the conclusion of trade negotiations and submit reports assessing the impact of trade agreements on industry.
The case is Autor v. Pritzker, 12-5379, U.S. Court of Appeals.