The Oklahoma Bar Association has gone half way towards respecting its members’ First Amendment rights. It should go the rest of the way.
Lawyers in Oklahoma are forced to join and pay dues to the OBA in order to keep their license to practice law. The OBA uses that dues money for many things, including political activity like advocating for or against public policy proposals. The result is that lawyers are forced to fund political speech they may disagree with as a condition of continuing to earn a living as a lawyer. This is called a mandatory bar association, and many of us contend that it fundamentally infringes lawyers’ First Amendment rights.
The United States Supreme Court agrees. About 30 years ago in a case called Keller v. State Bar of California, the Supreme Court held it unconstitutional for a bar association to use compelled dues from lawyers to engage in political speech without providing meaningful procedures for lawyers to “opt out” of funding the speech. Exactly what type of opt out procedures Keller required, however, was open for debate.
The so-called Keller procedures adopted by mandatory bar associations across the country in response to the ruling are largely uniform. The problem is, in practice, they have been mostly meaningless for dissenting lawyers.
It typically works like this. The lawyer pays his annual dues early in the year (mine for Oklahoma this year were $275; for Texas, $235). The bar association takes the money and funds all of its activities, from lawyer discipline to continuing legal education to political activity. The lawyer can file an objection with the bar association for political expenditures he believes are not “germane” to the legitimate purposes of a mandatory bar, which according to the Supreme Court is limited to improving the quality of the practice of law and regulating the legal profession. In theory, the lawyer is refunded the portion of his dues that went towards the non-germane activity.
Here’s the problem: in practice, the Keller procedures are extremely difficult to access, not well publicized to lawyers, and put all of the burden on objecting lawyers. Lawyers mostly either don’t know they have the right to receive a refund, or don’t have the time or resources to navigate the cumbersome objection system bar associations have constructed. More importantly, for those who do object, the deck is stacked against them and bar associations take a very narrow view of what actually qualifies as non-germane, meaning that lawyers typically receive an infinitesimally small refund (literally a few dollars, usually). The bar associations are the judge of their own expenditures, and there is no review by an independent decision-maker.
In short, Keller procedures as constituted in nearly every mandatory bar state look nothing like meaningful due process. Lawyers’ First Amendment rights are protected only in theory, not in reality.
Last year, a Tulsa lawyer named Mark Schell filed a federal civil rights lawsuit challenging the OBA’s Keller procedures (he also challenged compulsory bar membership, itself; that issue is working its way through the appellate process). Mr. Schell’s lawsuit highlighted some significant flaws in the OBA’s Keller procedures. For starters, the OBA’s rules only permitted lawyers to object to expenditures outside of the OBA’s rules and bylaws, meaning political speech that fell within the rules and bylaws was not refundable. Considering that the OBA’s rules and bylaws authorize nearly all of its lobbying and political advocacy through its “Legislative Program,” there is no meaningful avenue to opt out of the activity an objecting lawyer finds most objectionable. Such a rule is plainly contrary to the constitutional standard established in Keller.
Similarly, the OBA procedures required lawyers to have a crystal ball. Not literally, of course, but the rules required objections to any actual or proposed expenditures within 60 days of approval of the OBA’s budget, or January 31st, whichever was earlier. But the OBA’s budget does not include line item proposed expenditures (understandably), it only gives broad categories. Not surprisingly, none of the categories is titled “non-germane political activity.” There is no way while examining the budget to even get a hint of the ways the OBA will spend money outside of its legitimate purposes. And by requiring objections to be made at the beginning of the budget year, the rules required lawyers to object to expenditures that hadn’t been made yet.
Other problems with the OBA’s Keller procedures involved a stacked adjudication process with no neutral decision-maker, needlessly tight deadlines, and unnecessary hoops to jump through. It shouldn’t be surprising, then, that very few lawyers in Oklahoma took advantage of these procedures, especially when doing so was likely to only result in a miniscule refund.
But a funny thing happened after Mr. Schell filed his lawsuit. In March of this year, apparently in response to the lawsuit, the OBA Board of Governors quietly amended their rules for allowing lawyers to opt out of directly funding the OBA’s political activities. I say “quietly” because I am a dues paying member of the organization who pays pretty close attention to this issue, and I didn’t find out about the rules change until a few weeks ago. Apparently, the OBA isn’t eager to publicize that its members can get some of their money back.
But, hey, at least we are heading in the right direction.
Actually, I should give credit where credit is due. With the rules change, the Oklahoma Bar Association now has some of the best Keller procedures in the entire country. Under the new rules, when a lawyer objects, the OBA will set aside the attorney’s full dues amount until the dispute is resolved, and attorneys’ objections will be decided by a neutral mediator. Lawyers will be able to get more details about individual expenditures, rather than just broad budget categories, in order to look for non-germane spending. Best of all, Oklahoma lawyers can now categorically opt out of paying for the OBA’s lobbying activity—even on issues related to legal services and the legal profession.
This is a sea change, but only if lawyers take advantage of it. They have to know about it first (Lawyers, read the new rules here; review the 2020 budget and objection form here).
I started by saying the OBA has gone half way, so what would “all the way” look like? As I have advocated many times, bar association membership should be entirely voluntary as it is in 18 other states. But I am under no illusion that the OBA will come around to my way of thinking on their own. That issue will ultimately be settled, if ever, by the U.S. Supreme Court.
However, a few mandatory bar associations have created what is known as a “bifurcated bar.” Essentially, all regulatory functions of the bar association (lawyer discipline, ethics rules, etc.) are housed in the mandatory part of the bar. Lawyers are required to join and pay dues for that part to keep their license. Everything else—the stuff that looks like things a private trade association might do (lobbying, political advocacy, conferences, etc.)—is completely voluntary, and—here’s the key—lawyers have to affirmatively opt in. In sum, no one gets charged for activities they might find objectionable unless they sign up for it.
It’s not my ideal, but it sounds like a reasonable compromise. It would keep the OBA intact and protect the things advocates of the mandatory bar say is most important to them. But it would also go a long way toward protecting lawyers’ First Amendment rights.
If there are any takers at the OBA, I’d be happy to help them write the new rules.
Benjamin Lepak is Legal Fellow at the 1889 Institute. He can be reached at blepak@1889institute.org.
The opinions expressed in this blog are those of the author, and do not necessarily reflect the official position of 1889 Institute.