May 7, 2019
By Timothy Sandefur
Texas Attorney General Ken Paxton filed a brief in late April in a case challenging the constitutionality of the state’s mandatory bar association. The Goldwater Institute also filed a brief in the case.
An article in The Texas Tribune suggests that Paxton’s filing is somehow a sneaky plot by conservatives, and uses alarmist language such as “existential threat to the state bar,” and “could force the organization to splinter“ and “force regulation of the legal profession into the Legislature’s hands”—but such language is all overblown. By “splinter,” the article just means that the state would have to divide the bar into a mandatory regulatory side—which does nothing more than ensure that lawyers follow the law, and punish lawyers when they don’t—and a voluntary side that can do other things like lobby the state legislature. Many states already make this distinction, including California and New York, which have the largest populations of lawyers in the country. As for “forcing regulation of the legal profession into the Legislature’s hands,” well, the legislature is responsible for regulating every other trade and profession already, from doctors to plumbers. That’s just how it works—for everyone except lawyers.
Actually, the Attorney General’s brief makes a modest, principled, and clear argument that the state bar violates the First Amendment when it forces lawyers to pay for its political activities and political expression. That’s obviously so. It’s wrong to force Republicans to pay for political speech or political activism by Democrats, and vice versa. That’s not an extreme position—it’s what the Supreme Court said in Janus—and it’s a rule the Texas bar currently violates. That should stop.
In our brief, we point out that even aside from that, the mandatory membership also violates the right of free association. That is a constitutional right in itself, distinct from the right not to be forced to subsidize someone else’s speech, because it’s a right rooted in the principle of privacy. So even if the Texas bar were to cease spending bar dues on political activities, forcing people to join a club still violates the Constitution.
The Texas Tribune points to various purportedly shady connections between the Republican AG’s office and—gasp!—conservative organizations and individuals, but of course it’s to be expected that conservatives would the ones who object to being forced to foot the bill for liberal political activities. If the shoe were on the other foot, then, well…the shoe would be on the other foot. This case simply isn’t some sort of conspiracy—it’s about the principles of free speech and freedom of association, regardless of one’s political persuasion. It’s about the constitutional rights of all.
Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.