For more than 20 years, state bar associations have known that they must tread carefully around constitutional restrictions against using mandatory member dues as a slush fund for ideological advocacy. Thirty-one states and the District of Columbia require membership in the bar as a precondition to practicing law, and the Supreme Court has said that such compulsory dues may only be used for two purposes: (1) the regulation of the legal profession; and (2) improving the quality of legal services. After all, if a state can force people to pay for the privilege of doing business in the state, then use the dues for whatever political activities suit its fancy, the state is unconstitutionally forcing people to advocate for causes that they disagree with.
Despite these restrictions, political forces (attracted by access to member dues and the state bar’s appearance of neutrality) sometimes capture the state bar and take a flying leap into ideological activity. In Michigan, for instance, the state bar recently began to use compulsory dues to promote regulations stifling speech in judicial elections, a favorite cause of some on the left. Because many Michigan attorneys object to this sort of political activity, however, several Michigan legislators introduced a bill that would turn state bar membership into the voluntary association that exists in 19 other states. At this point, with its access to member dues under mortal threat, the state bar persuaded the Supreme Court of Michigan to create a task force to review the activities of the Michigan state bar for constitutionally impermissible activities.
The Supreme Court of Michigan should be lauded for ordering review of these activities. But the task force is stacked with current and former state bar officials, making this whole exercise a bit like asking the fox to do a security audit of the hen house. One wonders why the state bar couldn’t be trusted to simply stop the unconstitutional ideological activities by itself.
Of course, Michigan is only one of many states where lawyers engage in this sort of self-dealing. The state bars of Missouri and Oklahoma, both of which require compulsory dues, fight hard to retain their strangleholds on judicial selection. Missouri uses part of its $10 million annual budget (obtained mostly from compulsory bar dues) to promote its continued control of state judicial selection in major bar publications and on its website, and Oklahoma state bar officials have vigorously opposed reform of Oklahoma’s lawyer-controlled judicial-selection process.
In any event, Michigan’s task force will have plenty to review. A quick search of Michigan lobbying disclosure reports indicates that over the last several years, the Michigan State Bar has spent hundreds of thousands of dollars in spending on state-level lobbying. In addition to lobbying in its own name, the $87,000 spent on lobbying in 2013 was spread out over several different “Sections” of the State Bar, such as the Negligence Law Section, Real Property Law Section, and so forth. And projects listed on the Michigan Bar’s website, like the Justice Initiatives Committee and the Diversity and Inclusion Advisory Committee, need to be thoroughly examined to ensure that they are not simply using member dues for left-wing social causes. It will be interesting to follow the task force’s work, and I hope it results in reform for the lawyers who are tired of being forced to subsidize political activity they disagree with.