Amicus Brief: McDonald v. Firth
163253273 © Wutthichai Luemuang |

Amicus Brief

Amicus Brief: McDonald v. Firth

Subjecting mandatory bar associations to “the same constitutional rule” as public sector unions now means subjecting them to exacting scrutiny that reveals unjustifiable violations of attorneys’ First Amendment rights by the bar associations.

In the Supreme Court of the United States

TONY K. McDONALD, et al., Petitioners,


SYLVIA BORUNDA FIRTH, et al., Respondents,

On Petition for Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit

Brief Amicus Curiae of Pacific Legal Foundation, Cato Institute, Atlantic Legal Foundation, and Reason Foundation in Support Of Petitioners

Introduction and Summary of Reasons to Grant the Petition

Petitioners are attorneys licensed to practice in Texas. As required by state law, they are members and pay annual dues and fees to the State Bar of Texas as a condition of practicing law. Tex. Gov’t Code § 81.051(b) (membership requirement); id. § 81.054 (dues requirement); id. § 81.054(j) (legal services fee applicable to some licensed attorneys); App. 4. State law permits the State Bar of Texas to engage in political and ideological speech through lobbying efforts, support of affinity groups such as sections and local bar associations, communicative forums, and publications distributed to the entire membership. App. 3–5, 9. The authorization permits speech related to “the administration of justice,” App. 3, or that furthers the “purposes, expressed or implied,” of the State Bar Act. App. 6. Paraphrasing the statutory list of authorized activities, the State Bar of Texas defines its mission broadly as

to support the administration of the legal system, assure all citizens equal access to justice, foster high standards of ethical conduct for lawyers, enable its members to better serve their clients and the public, educate the public about the rule of law, and promote diversity in the administration of justice and the practice of law.

This Court has to date assumed that that integrated, mandatory bar associations efficiently, effectively, and (for the most part) non-controversially manage the core functions related to regulation of the legal profession. See Lathrop v. Donohue, 367 U.S. 820, 843 (1961); Keller, 496 U.S. at 5, 13. This assumption was reasonable in light of the fact that the Keller petitioners conceded that Lathrop was controlling on the constitutionality of the integrated bar, eliminating any need for the Court to consider that question in 1990. However, the history of mandatory bar associations since Keller demonstrates that the assumption now is unwarranted and should be reconsidered in light of Janus

State bar associations—Texas’s being no exception—perceive their role as general guardians of the legal system and often extend their reach into political and ideological activities while couching their involvement under innocuous-sounding phrases. App. 3–4. Yet virtually all matters involving the legal system, occupational governance and public policy are inherently and “overwhelmingly” political “matters of great public concern” because they involve the allocation of public money and collateral policy matters. See Janus, 138 S. Ct. at 2475–77, 2480. Ideological activities extend even further to social and cultural concerns. Given the sheer breadth of such political and ideological activities, many attorneys have abundant reasons to resent subsidizing mandatory bar associations, just as public employees may not want to subsidize public employee unions. 

Overruling Abood, Janus held that laws requiring non-union members to pay public-sector union fees are subject at least to “exacting scrutiny.” 138 S. Ct. at 2465. Keller relied on established clear parallels between public sector unions and state bar associations when it held that attorneys regulated under state law are subject to “the same constitutional rule” that applies to public employees. 496 U.S. at 13. Therefore, subjecting mandatory bar associations to “the same constitutional rule” as public sector unions now means subjecting them to exacting scrutiny that reveals unjustifiable violations of attorneys’ First Amendment rights. This Court should grant the petition and direct federal courts to review compelled subsidies for bar association speech under exacting scrutiny regardless of germaneness.

Full Amicus Brief: McDonald v. Firth