Why Should Lawyers Be Forced to Fund Their Political Adversaries?
North Dakota lawyer Arnold Fleck practices family law. So it made sense that he’d be interested when a ballot initiative was proposed to change how courts handle child custody cases. He supported the initiative and even donated $1,000 to the “yes” campaign.
Unfortunately, he was also donating to the “no” campaign.
That wasn’t his choice. But, like all North Dakota lawyers, Fleck was required to join the state’s bar association and pay it hundreds of dollars per year for membership dues. The Association then used some of that money to oppose the measure — just as it often takes positions on political issues and even lobbies the state legislature. So in the same campaign in which he supported the “yes” side, Fleck was also forced to chip in for the Bar Association’s $50,000 donation to the “no” side.
It’s unconstitutional to force people to subsidize a political campaign they disagree with — and now, Fleck is asking the Supreme Court to take his case to vindicate his First Amendment rights.
Just two years ago, the Court’s Janus decision struck down laws that forced government employees to pay union fees that were inevitably used for political advocacy. Quoting Thomas Jefferson’s observation that “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves” is “tyrannical,” the justices ruled that if unions want workers’ money, they have to ask first.
Invoking the same principle, Fleck sued the Bar Association, arguing that it was equally unconstitutional to force him to join and to pay dues that it could spend on political activities. A federal appellate court ruled against him, however, holding that states can require lawyers to join bar associations because such associations help educate lawyers and ensure they follow the law.
Fleck appealed that decision in 2018, just before the justices announced the Janus ruling, which made clear that courts must be more protective than they had been before of people’s right not to join unions or contribute to union political activities. Days later, the justices ordered lower courts to reconsider their previous ruling against Fleck in light of Janus.
The signal should not been clear: Forcing lawyers to join bar associations violates their First Amendment rights. Last summer, however, the lower court ruled against Fleck again, declaring that the Janus precedent only applies to unions, not bar associations. The difference, said the judges, is that the employees in Janus weren’t required to join the union, but lawyers like Fleck are forced to join bar associations.
That makes no sense. If anything, forcing lawyers to join these groups makes the constitutional violation even worse. Nobody should be compelled to join political groups or support their political activities. And there’s no good reason to treat lawyers differently from the workers involved in the Janus case. Twenty states — including those as big as California and New York — already either have no compulsory bar associations or don’t let them engage in political advocacy, and lawyers in those states are just as professional, ethical, and educated as those in states where membership is mandated.
Now, Arnold Fleck is asking the Supreme Court to consider his case a second time, to vindicate his rights to freedom of speech and association once and for all. The First Amendment protects everybody’s right to speak or remain silent — or to join or not join political organizations. Letting the North Dakota Bar Association put its thumb on the scale of a ballot initiative — and to do so with money taken from Fleck’s pocket — is not only wrong, but it also distorts the political process. And that has severe consequences because state bar associations wield extraordinary influence with lawmakers, who often view them as the official voice of the legal profession.
The Supreme Court should hear Fleck’s case — and make clear that no one can be forced to surrender his First Amendment rights just to do his job.
Timothy Sandefur is the Vice President for Litigation at the Arizona-based Goldwater Institute. He represents Arnold Fleck.