GavelOne of the ways that President Obama tried to restrict the influence of lobbyists in Washington was to ban all registered lobbyists from serving on federal advisory committees. A group of lobbyists who wanted to serve on some Industry Trade Advisory Committees (“ITAC”), a specific type of federal advisory committee, sued the administration. They argued that the government was infringing on their constitutionally protected right to lobby. The trial court rejected their arguments and dismissed the case.

Undeterred, the lobbyists appealed. The D.C. Circuit reversed the lower court’s decision and remanded the case for further factual development and analysis. On remand, the district court will have to evaluate whether the government can justify its decision to exclude lobbyists from the ITACs. This balancing test will require the court to look at the interests of the individuals affected by the ban versus the interests set forth by the government. The court said that the parties should focus on the justification for distinguishing between lobbyists and non-lobbyists from the very same company. Suggesting it did not see the logic in the government’s position, the court noted that the government should explain how banning lobbyists from large well-known companies “protects the voices of ordinary Americans,” as the administration claimed it would.

Thus, it is take-two for the lobbyists back in the trial court. They will get to present evidence to make their case, and the government will have to demonstrate that the ban justifies the restrictions placed on those lobbyists. Given the D.C. Circuit’s skeptical tone, it will probably be an uphill battle for the government.