by Timothy Sandefur
December 3, 2018
This morning, the U.S. Supreme Court issued one of its first decisions applying the First Amendment in light of 2018’s Janus v. AFSCME decision, reversing a lower court ruling that allowed states to force lawyers to subsidize state bar associations against their will. The Goldwater Institute sued North Dakota on behalf of attorney Arnold Fleck, arguing that the Constitution prohibits the state from forcing him to pay to support political activities he disagreed with. The Eighth Circuit disagreed, holding that forcing lawyers to join the state bar association was a legitimate way to regulate the practice of law—and that Fleck had really “opted in” to being forced to pay, since, after all, he wrote the check and sent it to the state.
That holding contradicts the protections afforded in the Janus case, which held that the government must never presume that someone’s willing to subsidize speech they disagree with. For one thing, there are plenty of states that regulate the practice of law without forcing lawyers to join a bar association. (These states separate the “bar association” from the bar itself—the “bar association” is a trade association and participates in political debates—as opposed to the state bar, which is a regulatory body.)
The Court agreed. In today’s order—which was issued without an accompanying opinion—the Supreme Court reversed the Eighth Circuit’s decision and ordered the judges there to reconsider their ruling in light of Janus. This decision—which marks the Goldwater Institute’s second victory at the U.S. Supreme Court, and is only the second case to apply the Janus protections—makes clear that lawyers, just like the government employees who were involved in Janus, have First Amendment rights that must be respected.
The Court has long held that the government may not “presume acquiescence in the loss of fundamental rights.” Yet that’s just what North Dakota’s system does. Lawyers are sent a bill every year that lists not only their bar dues, but also additional fees that are spent on political lobbying. In tiny fine print, they’re told that they can deduct this if they want. That, the Eighth Circuit had said, was enough—it proved that Fleck and other lawyers were being given the opportunity to “opt in.” But that’s not an “opt in” system at all. It’s an “opt out” system that assumes that—unless you figure out how to get out of it—you’re compelled to support political activities by the State Bar.
And that’s not something only lawyers have to worry about. Bar associations wield disproportionate power in our society. Lawyers are influential members of their communities, with significant influence in local, state, and national government. Associations of lawyers—like the public employee unions at issue in Janus—have a powerful influence over the nation’s politics. That influence is distorted, however, by rules that don’t let lawyers as individuals decide whether or not to be a part of it. The North Dakota system is precisely designed to restrict individual choice and maximize the political influence of the State Bar itself.
Today’s victory is a critical step in applying Janus protections. It’s wrong to force people to subsidize political statements they disagree with—lawyers no less than others. We look forward to presenting our case again to the Eighth Circuit—and, if necessary, to the U.S. Supreme Court again.
Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.