June 6, 2019
By Timothy Sandefur
The U.S. Supreme Court’s decision last year in Janus v. AFSCME—striking down laws that force government employees to pay annual fees to support public-sector unions—has set the stage for a round of lawsuits challenging the constitutionality of laws that force attorneys to join and to subsidize bar associations. Just like the law at issue in Janus, these mandatory bar association rules force lawyers to become members of, and to send hundreds of dollars a year to, organizations that often take political positions that their own members disagree with. That’s a violation of the First Amendment—and it’s politically important, too, given the strong influence that bar associations have in state and federal legislatures. The U.S. Supreme Court indicated its interest in that argument last year, when it reversed a federal appeals court that had ruled against us in our case on behalf of North Dakota attorney Arnold Fleck. The Justices ordered the court to reconsider the case in light of the Janus decision—and we’ll be arguing that case next Thursday in St. Paul.
Since the Supreme Court’s order, we’ve filed lawsuits in Oregon and Oklahoma challenging the constitutionality of their mandatory bar associations, and in other states, including Arizona, we’ve filed petitions asking that mandatory bars be made voluntary. If lawyers want to join these associations, that’s fine, but forcing them to do so is unconstitutional and wrong. As we put it in our filing with the Arizona Supreme Court:
Even aside from the question of legal precedent, the voluntary route is best. It is both wrong and unwise to force people to join an association against their will. First, it is wrong because it inflicts an injustice on a person to force that person to become a member of an organization that the person does not wish to join. Freedom of association is a right distinct and separate from freedom of speech, though often related to it…. Freedom of association is best understood as “associational autonomy,” a right that is “neither expressive nor intimate, but one largely of privacy.” People who simply wish to have nothing to do with the activities of an association have that right, even aside from concerns about speech.
The voluntary model isn’t anything new or radical. Twenty states, including New York and California (which have the largest populations of lawyers in the country) already have voluntary bar associations. They regulate lawyers the same way they regulate doctors—by enforcing laws that protect people, but not compelling doctors to join an organization and pay it annual dues. There’s no reason to think other states can’t do the same.
Next Thursday, we’ll be arguing Arnold Fleck’s case once more. We contend that the Janus case makes two important points: Not only is it unconstitutional to compel people to join unions or similar organizations against their will, but it’s also illegal for the government to presume that people are willing to subsidize such an organization, and force them to “opt out” if they aren’t. Instead, people should be presumed not to support an organization, unless they say so.
That rule is just common sense. It would be wrong to take someone’s money, and then claim that you hadn’t harmed them because you gave them an opportunity to get it back. And it’s more than common sense—it’s constitutional law. The Supreme Court has long said, “we do not presume acquiescence in the loss of fundamental rights.” Assuming people are okay with supporting a union or a bar association unless they actively “opt out” violates that rule. That’s why Janus said that public-sector unions can’t take money from people unless those people “clearly and affirmatively consent before any money is taken from them.”
But the North Dakota bar association, and others, violates this rule not only by forcing people to join the association, but also by sending them an annual dues bill that lists the total amount they must pay, including the amount spent on political activities—and then in fine print, telling people they can deduct a small amount if they want to “opt out” of subsidizing the bar’s lobbying. That unfair billing practice violates the Janus rule because it doesn’t ensure that lawyers “clearly and affirmative consent before” they’re required to pay—and because it presumes lawyers are willing to support the union unless they take action to “opt out.”
Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.