In every state and the District of Columbia, there is a bar association that regulates the practice of law. Some state bar associations, however, go beyond administering the bar exam and other licensing requirements and require attorneys to be dues-paying members of the bar association. In many of those states, the bar association spends attorneys’ forced-dues on various political and ideologically charged issues. That’s a problem under the First Amendment, especially after the Supreme Court’s 2018 decision in Janus v. AFSCME.
In Janus, the Court overturned a 41 year-old precedent that allowed public-sector unions to collect mandatory dues even from those who didn’t want to be part of the union. The Court ruled that, because public-sector unions are inherently political entities, taking dues from nonmembers was a form of forced political speech. Making someone financially support a group’s political actions violates the First Amendment.
After Janus, the question remained whether other types of forced dues might violate the First Amendment. Many challenges were filed against mandatory state bar associations, and the Court now seems interested in these challenges. In Jarchow, a case challenging Wisconsin’s mandatory bar dues which Cato also supported, Justice Thomas and Justice Gorsuch dissented from the Court declining to hear the case.
McDonald is another challenge to a mandatory-dues bar association, this time in Texas, and one of the petitioners is columnist Josh Hammer. Like the previous cases, the petitioners allege that the bar association has spent the attorneys’ compelled dues on various political and ideological causes. Unlike previous cases, however, the petitioners partially won in the circuit court. In its decision, the Fifth Circuit analyzed the Texas bar association’s activities under a “germaneness” test, asking essentially whether the plaintiffs’ forced dues were being spent on things germane to the practice of law.
Despite their limited victory, McDonald and his fellow petitioners are now asking the Supreme Court to take their case. While the Fifth Circuit’s opinion was an important victory in some ways, the circuit court felt constrained by Keller, a 30-year-old Supreme Court precedent upholding mandatory bar dues. This case presents the Court with an opportunity to clarify how Keller and Janus fit together, if they do at all. And the Court seems interested because it called for a response from the bar associations in both this case and Schell, which is a strong indication the Court is considering taking the cases.
Cato has again joined the Pacific Legal Foundation, the Atlantic Legal Foundation, and the Reason Foundation on an amicus brief supporting McDonald and his fellow petitioners. We argue that state bar associations obviously use mandatory dues on political speech, and such practices clearly violate the holding Janus. The Supreme Court should take the case and hold that mandatory bar dues used for political advocacy violate the holding in Janus.
