by Timothy Sandefur
January 8, 2019
Last summer, the U.S. Supreme Court made clear that government can’t force public employees to subsidize the activities of public-sector unions. Nor can it presume that they’re willing to support these unions and give workers a refund option. Instead, the government must ask first if workers are willing to devote their money to subsidizing these groups. That’s because the First Amendment forbids the government from compelling people to contribute money to the propagation of political arguments that they disagree with.
The same principles should apply to attorneys. We’re currently litigating two cases—one in North Dakota and another in Oregon—arguing that the First Amendment forbids states from forcing lawyers to join bar associations. Don’t confuse bar associations with the state bar: The bar itself is a licensing requirement that requires lawyers to pass the bar exam, while the bar association is a club, like any other trade association. And, like public-sector unions, bar associations wield a disproportionate influence in our democracy. They’re powerful lobbyists who exercise effective influence over everything from tort reform to judicial appointments—and they do it with the money that lawyers are forced to pay them every year in those 32 states that have mandatory bar associations.
That’s why we’ve filed this petition with the Arizona Supreme Court, asking that it eliminate the mandatory bar association requirement in the Grand Canyon State. If attorneys want to join the bar association, contribute their funds to it, and have it speak on their behalf in public political debates, that’s perfectly fine—that’s their right. But to force others to do so who don’t want that is wrong—and unconstitutional. As Thomas Jefferson put it in another context, “To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical.”
Not only does mandatory bar association membership violate the First Amendment—and Arizona’s own constitutional protections for freedom of speech and freedom of association—but it also violates the state’s right to work rule. Under state law, no person may be “denied the opportunity to obtain or retain employment because of non-membership in a labor organization.” Yet the bar association membership requirement violates that law. And it’s not necessary. Eighteen states currently have no law forcing lawyers to join a bar association, including New York, which has one of the largest populations of lawyers in the country. Yet these states manage to protect consumers against malpractice or bad actions by lawyers anyway.
In addition to asking that the court make association membership voluntary, we’re also asking the court to order an independent audit of the Arizona bar association’s expenditures. Although the state bar currently releases this information, it doesn’t submit to an independent audit that reports itemized expenditures so that bar members can know whether or not their money is being spent in ways that violate the law. Without that information, attorneys in Arizona can’t really be certain that the numbers the bar reports are accurate.
The bottom line is simple: Government shouldn’t force anyone to join an organization or subsidize the political activities of an organization if they don’t want to. Mandatory bar association membership isn’t necessary—and it’s unconstitutional. The Arizona Supreme Court should make membership voluntary and make the bar’s activities more transparent.
Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.