(CN) - The D.C. Circuit revived a challenge to Obama's executive order banning lobbyists from serving on government committees and advisory councils.
The day after the he was inaugurated, Obama signed an executive order that put strict limits on the ability of lobbyists to serve in government positions related to their prior lobbying activities.
Following up on a campaign promise, the order forbids departments and agencies from appointing registered lobbyists to committees, boards and advisory councils, and reappointing currently sitting lobbyists.
Lobbyists wishing to sit on the Industry Trade Advisory Committees (ITACs) challenged under the First Amendment, but a federal judge dismissed the complaint.
A three-judge panel of the D.C. Circuit reinstated the case Friday.
"Because 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 - in this case, ITAC membership - we reverse the district court's premature dismissal of the complaint and remand for that court to determine in the first instance whether the government's interest in excluding federally registered lobbyists from ITACs outweighs any impingement on appellants' constitutional rights," Judge David Tatel wrote for the three-judge panel.
While the Constitution imposes "very, very few restrictions," on the president's power to choose his own advisors, the government may not deny lobbyists "the benefit of ITAC service based on their exercise of the constitutional right to petition the government," the 15-page opinion says.
Obama enacted the ban to reduce the "culture of special interest access," and the government justified the order as enabling it to "listen to individuals who have experience in the industry but who are not registered lobbyists."
But the D.C. Circuit found this argument vague, and ordered the lower court to determine whether excluding lobbyists will improve the committees' policymaking.
"The District Court should ask the parties to focus on the justification for distinguishing, as the lobbyist ban does, between corporate employees (who may represent their employers on ITACs) and the registered lobbyists those same corporations retain (who may not)," Tatel said (parentheses in original). "The court may also want to ask the government to explain how banning lobbyists from committees composed of representatives of the likes of Boeing and General Electric protects the 'voices of ordinary Americans.'"