Should Bar Associations be Able to Use Mandatory Dues for Lobbying?
What do volunteer dental hygienists, civics classes, and midwives have to do with the legal profession? It’s not a trick question. The answer is, “nothing.” However, that did not stop the Louisiana State Bar Association (LSBA) from using mandatory membership dues to advocate for or against legislation related to those topics.
Since at least 2007, the LSBA has taken a position on more than 500 bills filed in the Louisiana legislature. Attorneys are required to join the organization to practice law in Louisiana, and the LSBA uses these mandatory dues for its advocacy. In 2019, the Pelican Center for Justice filed a lawsuit on behalf of Louisiana attorney Randy Boudreaux alleging that the mandatory membership requirement and use of compelled dues for political and ideological speech violates Randy’s First Amendment rights.
Since 2019, attorneys in several states have filed lawsuits challenging their bar associations’ mandatory membership requirement. The U.S. Supreme Court may hear one of those challenges soon. Oregon attorney Daniel Crowe challenged his state’s mandatory membership requirement after the Oregon Bar used membership dues to print political statements in its journal. In Oklahoma, attorney Mark Schell filed a similar challenge because his state bar used member dues to oppose tort reform legislation and to print political statements in its bar journal. In both cases, the appellate courts ruled that their claims could proceed to trial because neither the Supreme Court nor the circuit courts have ever considered whether mandatory bar membership violates the First Amendment’s guarantee of freedom of association.
However, both courts ruled that they were bound by Keller v. State Bar of California, a Supreme Court decision that determined that the First Amendment allows bar associations to use dues for activities relevant to the legal profession. In Keller, the Court held that bar associations must follow the same constitutional rule for compelled dues as public sector unions. Abood v. Detroit Board of Education provided the rule for the Keller decision, but Abood was recently overruled by the 2018 Janus v. AFSCME decision, which requires dues to be subjected to exacting First Amendment scrutiny.
Since Abood was overruled by the Janus decision, the basis for the Keller decision is no longer applicable, so Keller is now on a collision course with the recent Janus ruling.
Mr. Crowe filed a petition for writ of certiorari with the U.S. Supreme Court. He asks the Court to consider whether compelling lawyers to subsidize bar associations’ political speech should be subject to exacting First Amendment scrutiny as required by Janus. We filed an amicus brief in support of Mr. Crowe’s petition. In our brief, we outline the many ways in which the LSBA has used member dues for its political and ideological speech to illustrate for the Court that attorneys’ First Amendment rights are harmed in states where bar membership is mandatory to practice law.
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