Goldwater Urges Supreme Court to End Mandatory Bar Associations

The government should never require people to join an organization or pay for someone else’s politics to do their jobs. But in most states, lawyers are being forced to do just that—in violation of the First Amendment’s free speech and free association protections, and despite recent Supreme Court precedent that makes it clear similar requirements in the union context are unconstitutional. That’s why the Goldwater Institute filed a brief today in support of a Wisconsin attorney, urging the Supreme Court to hold that mandatory bar associations flout the Constitution.

In 30 states, attorneys must join and pay dues to a state bar association to be allowed to practice law. Many compulsory bar associations use attorneys’ mandatory dues to advocate for and against legislation and public policies, and to publish other political and ideological speech. They aren’t regulatory bodies; they don’t just ensure attorneys are qualified and behave ethically. Instead, they’re trade associations, which means they should not be able to force lawyers to pay for their political and ideological speech.

The Goldwater Institute has filed several First Amendment lawsuits on behalf of lawyers who were forced to join and pay dues to a bar association. So far, all of those cases have come up against the Supreme Court’s 1990 decision in Keller v. State Bar of California, a case that some judges say upheld the constitutionality of mandatory state bars.

The Keller case was based on an earlier precedent called Abood, which the Supreme Court overruled in 2018 in Janus v. AFSCME. In saying that it was unconstitutional for states to require government employees to pay fees to public sector unions against their will, the Janus ruling overturned the Abood decision. And that makes it all the more important for the justices to explain whether Keller is still the law.

The Goldwater Institute‘s brief today comes in a Wisconsin case where the plaintiffs say it’s unconstitutional to force lawyers to fund bar associations, or even to force them to join those associations at all. The Seventh Circuit Court of Appeals rejected both claims based solely on the Keller precedent, wrongly holding that Keller upheld mandatory bar associations. In reality, the Supreme Court explicitly said in Keller it was not deciding that question. And in many of the Goldwater Institute’s ongoing challenges to the constitutionality of mandatory bars, the federal courts have said that this question remains unanswered.

The brief urges the Court to take the opportunity to end forced association with and forced subsidies for state bar associations. The Supreme Court has already essentially overturned Keller. It should take this opportunity to do so officially and protect the First Amendment rights of attorneys across the country.

Adam Shelton is a Staff Attorney at the Goldwater Institute.