Ever since the Supreme Court decision in Janus v AFSCME we’ve seen one union after another take a hit to the purse from workers who were having dues (or “fees”) forcibly withheld from their paychecks. We’ve covered quite a few of those stories here and it’s been almost entirely good news for people who don’t believe their pay should be used to fund the political speech of such organizations without their permission. But a more interesting case hit the Supreme Court this week dealing with state bar associations for attorneys.
In Fleck v. Wetch, attorney Arnold Fleck challenged a North Dakota law forcing lawyers to join their state bar association as a condition of employment and pay dues. That money, he contended, was put to political purposes and violated his rights to free speech. The Eighth Circuit sided with the state in that case, but now the Supremes have refuted them, sending the case back for review. (Free Beacon)
The Supreme Court on Monday ruled in favor of free speech, throwing out a lower court ruling that allows states to force lawyers to subsidize state bar associations and their political activities.
The justices ordered the U.S. Eight Circuit Court of Appeals to reconsider its decision in Fleck v. Wetch in light of the Janus case in which SCOTUS ruled mandating union fees as a condition of employment violates workers’ free speech rights.
“This is an important first step towards extending Janus protections to attorneys,” said Goldwater Institute senior attorney Jacob Huebert, who was on the legal team that won the Janus case. “The same principles apply here that applied there: The government can’t take people’s money to pay for other people’s political speech without asking first.”
I found this case to be somewhat different than the others, primarily because I hadn’t really thought of state bar associations as “unions” per se, when it comes to organized labor. Rather than engaging in collective bargaining or setting fees, bar associations are generally charged by the state with regulating lawyers licensed to practice there, writing ethics opinions and investigating violations of the rules.
When Janus was being considered back in January, there was a good piece published by Stephen Embry at TechLaw Crossroads examining both sides of the question which is well worth a read. There were multiple opinions cited, some of which expressed alarm at the disruption this could cuase in the legal community while others thought it might be a welcome “crack in the dam” of power that the bar associations hold over the industry.
So given all this, it’s no wonder 21 former Presidents of the District of Columbia Bar Association in an Amicus Brief stated, overruling Abood “would have a profoundly destabilizing impact on bars all over the country.” The Presidents argue that overruling Abood would likely spawn additional time-consuming and expensive lawsuits by bar members who do not want to pay their mandatory bar dues. Such lawsuits would severely distract this country’s thirty-two integrated bars from their critical work “serv[ing] the ‘State’s interest in regulating the legal profession and improving the quality of legal services.’”
I suppose the real question here is how much politicking the various state bar associations actually do. Do they donate directly to candidates’ campaigns? A quick search at Open Secrets doesn’t have any of them showing up in that regard, but that’s probably not a comprehensive analysis. (To be clear, lots of individual law firms and attorneys donate a ton, but not so much the bar associations.) Some of the bar associations do write “friend of the court” submissions in controversial cases, but that’s also a bit unclear in terms of what sort of “political speech” they’re engaging in.
I’m going to need more information on this one. If the bar associations are clearly engaging in political speech using the fees from their members, a change is needed. But was this the right solution?