Will the United States Supreme Court Stand Up For Lawyers’ First Amendment Rights?

Jan 6, 2020 | Blog | 0 comments

“To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.”

Oklahoma law requires attorneys to join and pay dues to the Oklahoma Bar Association in order to practice their occupation. The folly of this this requirement lies not just in the financial burden imposed on lawyers, but in its affront to their First Amendment rights. This is because the Oklahoma Bar Association (OBA) routinely uses the money it receives in mandatory dues payments to support political causes. As a result, attorneys are forced to subsidize political activity and opinions they may disagree with.

Over the Christmas holiday I filed an amicus (“friend of the court”) brief urging the United States Supreme Court to weigh in. You can read my brief here.

The case in question involves a North Dakota attorney, Arnold Fleck, who sued North Dakota’s mandatory bar association for using his mandatory dues to engage in the same type of activity the OBA engages in. The North Dakota Bar used its members’ dues money to advocate the defeat of a state ballot measure Fleck had personally supported with his own time and money. In essence, North Dakota’s mandatory bar law required Mr. Fleck to fund both the “yes” and “no” sides of the ballot question.

Similar fact patterns repeat all the time in the 30 states with mandatory bar laws. In Oklahoma, as I pointed out in the brief, the OBA has actively lobbied against bills carried by legislators who also happened to be attorneys, and thus were required to subsidize the OBA’s lobbying activity. From the brief: “several of the legislators carrying such reform measures in recent years were, themselves, dues-paying members of the OBA. The proposals were uniformly opposed by the OBA, creating the spectacle of attorney-legislators being required to fund the opposition to their own legislation.”

I am a walking example of the pernicious absurdity of the mandatory bar setup: I regularly write about the problems with Oklahoma’s judicial selection scheme and propose to change it. In my view, it is one of the most important public policy issues facing the state. And yet, just last week I was required to pay my $275 annual dues to the OBA, which will then use some portion of that money to advocate the exact opposite position (as well as a host of other political positions I disagree with). As I have noted many times, nothing mobilizes the OBA to political activism like a proposal to modify Oklahoma’s judicial selection method. They maintain a full-fledged public relations operation dedicated to making sure no such reform proposal ever gains traction.

The OBA’s activism regarding judicial selection is bad enough, but at least if you squint you can kind of, sort of, see its relation to regulation of the practice of law and the “administration of justice” (a nebulous concept used to justify all manner of bar association activity). But the OBA doesn’t limit itself to that issue. As I note in my brief, the OBA promotes a wide variety of political causes that have, at best, a tenuous connection with regulating the court system and the practice of law.

Check out this (somewhat) recent cover of the Oklahoma Bar Journal, the official publication of the OBA, featuring a smorgasbord of left-wing causes and imagery. Or this article written by the then-OBA President, claiming that the oil and gas industry (the state’s most important industry and source of tax revenue) has corrupted the government. Or this article, where the same OBA President criticizes the state legislature for not regulating oil and gas companies, whose injection wells he claims cause earthquakes. Or the multiple articles inaccurately describing the Supreme Court’s recent First Amendment cases, including alleging they “have allowed unlimited campaign contributions by political action committees that do not have to identify contributors” (they allow no such thing). This theme, pursued throughout the 2016 presidential election, is particularly rich given the current First Amendment litigation that threatens the OBA.

Or my personal favorite, the OBA-sponsored cruise to communist Cuba.

Or this article, praising Al Gore for “advocating that our environment and climate suffered from a failure of our government to regulate the fossil fuel industry.” I suspect most Oklahomans regard Mr. Gore’s activities as environmental radicalism, not world-saving advocacy. Or this article, accusing then-Attorney General Scott Pruitt of “uninformed bias” because of a brief he filed.

The OBA hosted Jane Mayer of the New Yorker as the keynote speaker at the OBA Annual Meeting, held days before the 2016 general election. If you are not familiar with Mayer, she is a journalist who specializes in attacking conservatives, often with questionable tactics. She authored a series of articles during the Brett Kavanaugh confirmation drama that became famous (nay, notorious) not so much for the allegations they contained, but for the lack of journalistic standards exhibited by the authors. One article revolved around the hazy memory of a source who required “six days of carefully assessing her memories and consulting with her attorney” to recollect that she had been at a party with the now-Justice Kavanaugh. To be fair, Mayer had not yet written these articles at the time she was invited to address the OBA meeting, but she was a known quantity. Back then she was promoting her book, Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right, which the OBA made sure to use my mandatory dues money to promote throughout the year, here, here, here, and here.

I could go on, but you get the idea.

Oklahoma is not alone. Litigation is currently pending in 7 states (including Oklahoma) over similar mandatory bar activity. The Wisconsin Bar may be my favorite example because it seems to have never met a “woke” cause it didn’t embrace. You can read about its activities here. But all the lawsuits are essentially the same: lawyers have no choice but to fund bar associations, and the associations use the money to promote political causes the lawyers oppose.

And it’s completely unnecessary. In 18 states, membership in the state bar association is completely voluntary. In those states, ranging from large states like New York and Ohio to small states like Kansas, lawyers still must pass the bar exam, are still regulated by the state, and still pay for the cost of that regulation in the form of licensing fees. There is no evidence that lawyers in these states are of poorer quality or commit more ethical lapses because they aren’t required to join the state bar association.

Fortunately, the Supreme Court has indicated in recent years that it considers the mandatory association arrangement to be unconstitutional. In 2018 the Court handed down a landmark decision in Janus v. AFSCME, where it struck down laws forcing public employees to subsidize public-sector unions as a condition of their employment. The case closely parallels the situation attorneys in mandatory bar states face, and recent actions of the Court have been interpreted by some as a hint that the Court will apply the same logic in the context of mandatory bar laws. As I note in my brief, the last time mandatory bar associations were challenged in the late 1980s and early 1990s, the Court directly analogized them to public-sector unions. If the Court takes the Fleck case and applies Janus’s logic to it, mandatory bar associations will become a thing of the past.

And not a moment too soon for this dissenting attorney. I’m growing tired of opening my wallet to fund political causes I oppose.

Benjamin Lepak is Legal Fellow at 1889 Institute. He can be reached at blepak@1889institute.org.