TPPF to Paxton: It’s unlawful to force attorneys to abandon First Amendment rights in order to practice law

By David Yates | Feb 20, 2019

AUSTIN – Another line in the sand has been drawn, as the Texas Public Policy Foundation recently asked Attorney General Ken Paxton to affirm that the use of mandatory State Bar dues for political advocacy is unconstitutional.

In January, Joe Longley, president of the State Bar of Texas, made an opinion request, tasking Paxton to determine if 76,000 “senior” lawyers around the state have the right to vote on the election of Texas Young Lawyers Association officials.

The opinion request also questioned the constitutionality of collecting mandatory dues from State Bar members in light of two recent U.S. Supreme Court decisions, Janus v. AFSCME and Fleck v. Wetch.

In Janus, the high court found in favor of Mark Janus, a child support specialist, returning First Amendment rights to public sector workers and essentially finding that millions of public servants no longer have to pay a government union as a condition of employment.


Henneke  

Fleck challenged the mandatory fees attorneys pay to state bars. The case was remanded to the Eighth Circuit Court of Appeals for reconsideration because of the Janus ruling.

TPPF, a non-profit research institute, submitted its response to the opinion request on Feb. 15, contending that the State Bar acts as a political advocacy organization by taking positions on a wide-range of legislation. 

TPPF argues the Supreme Court's decisions in Janus and Fleck eliminated the “tenuous” basis under which the State Bar's system of using mandatory bar dues for “political advocacy could have been held constitutional.”

“Accordingly, it is unlawful to force attorneys to abandon their First Amendment rights in order to practice law,” the response states. “Therefore, the Attorney General should make clear that State Bar's current dues collection practices are unconstitutional.”

To be an actively licensed attorney in Texas, annual dues ranging from $68 to $235 must be paid to the State Bar, which acts in both a governmental and private capacity.  

“Because money is fungible, these dues fund both the governmental and political advocacy activities of the Bar,” the response states. “In fact, because the Bar argues that its legislative advocacy ‘relates to the regulation of the legal profession, improving the quality of legal services, or the administration of justice,’ there is no limitation on the use of Bar dues for that purpose.”

The response states that the AG should explain further that because it is difficult to draw the line between germane and non-germane political advocacy, any political advocacy by the State Bar triggers First Amendment protections and renders its requirement of mandatory dues unconstitutional.

Robert Henneke, the general counsel and director of the Center for the American Future at TPPF, authored the response.

Opinion request No. 48487

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