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Aug 15, 2014 - 12:00pm

A White House Policy Runs Into The First Amendment


Senior Vice President, Chief Legal Officer & General Counsel
Executive Vice President, U.S. Chamber Litigation Center

wikimedia_commons_whitehouse_southlawn_800px.jpg

South lawn of the White House.
South lawn of the White House.
South lawn of the White House.

The Obama administration sometimes has problems complying with the limits set by the Constitution.  Earlier this week, under pressure from a court challenge based on the First Amendment, the White House announced a significant retreat from its blanket prohibition against lobbyists serving as members of federal advisory committees.

The lobbyist ban has frequently been criticized for depriving the government of valuable expertise and advice.  Intentionally or not, the policy has had the effect of disproportionately blocking talented individuals with business experience. 

Six individuals who were booted off the government's trade advisory committees solely because they were registered lobbyists filed suit in 2011, arguing that the policy violated their First Amendment and equal protection rights--penalizing them for helping employers and/or clients to exercise their constitutionally-protected right to petition government. The lawsuit culminated in a unanimous U.S. Court of Appeals ruling against the administration earlier this year indicating that the lobbyists had a strong First Amendment claim, and expressing skepticism about the legitimacy of the administration's policy.  As the court put it, how could the government justify "distinguishing, as the lobbyist ban does, between corporate employees (who may represent employers on [the advisory committees]) and the registered lobbyists those same corporations retain (who may not)."

Apparently recognizing the problems in explaining why the policy complied with the First Amendment, the government capitulated. Effective immediately, the administration will no longer bar lobbyists from committees where they are appointed to represent the interests of nongovernmental entities or groups, including trade groups, corporations, labor unions, and public interest groups. As the administration has now realized, their policies cannot be "designed to prevent lobbyists or others from petitioning their government."

Complying with that First Amendment can be a pesky problem, can't it?

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About the Author

Senior Vice President, Chief Legal Officer & General Counsel
Executive Vice President, U.S. Chamber Litigation Center

Lily Fu Claffee is senior vice president, chief legal officer, and general counsel of the U.S. Chamber of Commerce and executive vice president of the U.S. Chamber Litigation Center.

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