Can the Government Exclude Lobbyists from Advisory Committees?

Today the U.S. Court of Appeals for the D.C. Circuit issued an interesting opinion in Autor v. Pritzker.  Here’s how Judge Tatel summarized his opinion for the court:

President Obama, seeking to reduce the “culture of special interest access,” directed executive agency heads to bar federally registered lobbyists from serving on advisory committees. Appellants, federally registered
lobbyists wishing appointment to one type of advisory committee—Industry Trade Advisory Committees
(ITACs)—challenge the constitutionality of the presidential ban. 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.

While the government may be able to defend this policy on remand, the court accepted the appellants claim that the policy effectively conditions eligibility for a valuable benefit (in this case, ITAC membership) on an individual’s willingness to restrict their exercise of his or her First Amendment rights.  On remand, the question will be whether the government can assert interests to justify this imposition.