Bar Dues or Bar Don’t? Compelled Fees and the First Amendment
Legal Sidebari
Bar Dues or Bar Don’t? Compelled Fees and
the First Amendment
December 19, 2018
Do mandatory dues imposed by compulsory professional associations violate the First Amendment’s Free
Speech Clause? The Supreme Court was recently presented with this question in Fleck v. Wetch, an appeal
from the United States Court of Appeals for the Eighth Circuit (Eighth Circuit). The Eighth Circuit ruled
against an attorney who argued that the State Bar Association of North Dakota’s mandatory membership
fees operate in violation of the First Amendment. But on December 3, 2018, the Supreme Court vacated
the Eighth Circuit’s decision and remanded the case to that court “for further consideration in light of”
last term’s decision in Janus v. American Federation of State, County, and Municipal Employees, Council
31 (AFSCME). Janus held that states and public-sector unions may not “extract agency fees from
nonconsenting employees.” This Sidebar briefly explains the legal issues implicated by Fleck—including
why compulsory bar dues may be more constitutionally suspect post-Janus—and looks forward to other
cases that may clarify the broader implications of Janus.
Legal Background
The Supreme Court first upheld the constitutionality of mandatory bar dues in 1961 in Lathrop v.
Donohue. The State of Wisconsin had adopted an integrated bar system, under which attorneys were
required to enroll in the state bar association and pay dues in order to be licensed to practice law. (This is
sometimes also described as a “unified bar” or simply a “mandatory bar.” Today, there are over 30
integrated bars in the United States. These types of bar associations are generally authorized by statute or
by the state’s court system, creating the state action necessary to implicate the First Amendment.) The
plurality opinion in Lathrop rejected a lawyer’s argument that compelling him to join and pay dues to the
State Bar of Wisconsin violated his First Amendment right to freedom of association. Four members of
the Court held that, “in order to further the State’s legitimate interests in raising the quality of professional
services,” the state could “constitutionally require that the costs of improving the profession . . . should be
shared by the subjects and beneficiaries of the regulatory program, the lawyers, even though the
organization created to attain the objective also engages in some legislative activity.” The plurality
opinion, however, only ruled on the challenger’s freedom of association claims, and declined to address
“whether his constitutional rights of free speech are infringed.” Three additional members of the Court
agreed that the integrated bar was constitutional. At least two of these concurring Justices would have
reached the free speech claim and resolved it in favor of the state.
Congressional Research Service
https://crsreports.congress.gov
LSB10233
CRS Legal Sidebar
Prepared for Members and
Committees of Congress
Congressional Research Service
2
The Court again considered the constitutionality of mandatory bar dues in 1990 in Keller v. State Bar of
California. This time, the Court believed that it was squarely confronted with the free speech claim it
declined to resolve in Lathrop. Members of the State Bar of California argued that the bar’s “use of their
membership dues to finance certain ideological or political activities to which they were opposed violated
their rights under the First Amendment.” California, like Wisconsin in the Lathrop case, employed an
integrated bar. In evaluating the attorneys’ free speech and association claims, the Keller Court drew on
the Supreme Court’s 1977 decision in Abood v. Detroit Board of Education. Abood had approved of
public-sector “agency shop arrangements,” in which all employees represented by a union were
essentially required to pay union dues—so long as the fees were used to finance certain collective-
bargaining activities, rather than “ideological causes not germane to [the union’s] duties as collective-
bargaining representative.” The Court in Abood recognized that these compelled fees did implicate the
First Amendment, but concluded that, with respect to fees used for activities that were germane to
collective bargaining, “important government interests” nonetheless justified the “impingement upon
associational freedom.”
The Keller opinion applied Abood, notwithstanding the fact that, unlike the government employees in
Abood, the bar association involved private-sector employees. The Court concluded in Keller that “the
compelled association and integrated bar are justified by the State’s interest in regulating the legal
profession and improving the quality of legal services.” As in Abood, the Court held that the bar could use
mandatory member dues to “fund activities germane to those goals,” but could not use mandatory dues to
fund non-germane ideological activities. The Court noted that while, for example, the bar could not use
compulsory dues “to endorse or advance a gun control or nuclear weapons freeze initiative,” it could
spend funds “for activities connected with disciplining members . . . or proposing ethical codes for the
profession.” Abood—and Keller—therefore created a line between germane and non-germane activities,
raising questions regarding whether various expenditures were germane. After Abood, litigants also
challenged the procedures that unions and state bars used to ensure that objecting members’ dues were
only spent on germane expenses.
In Janus, issued on June 27, 2018, the Supreme Court overruled Abood, holding that public-sector agency
shop arrangements “violate[] the free speech rights of nonmembers by compelling them to subsidize
private speech on matters of substantial public concern,” regardless of how the fees were spent. (For more
on this decision, see this prior Legal Sidebar.) The Court ruled that “States and public-sector unions may
no longer extract agency fees from nonconsenting employees” even if those fees are used for collective-
bargaining activities, noting that “a union . . . ‘takes many positions during collective bargaining that have
powerful political and civic consequences.’” The majority opinion rejected Abood’s conclusion that
certain government interests—promoting labor peace and preventing free riders—could justify the
compelled subsidization of a public employee union. Going forward, under Janus, public employee
unions may not collect payments from nonmembers “unless the employee affirmatively consents to pay.”
Writing in dissent, Justice Kagan argued that overruling Abood would have significant disruptive
consequences, because the Court had “relied on that rule when deciding cases involving compelled
speech subsidies outside the labor sphere”—including in Keller. Similarly, a group of past Presidents of
the District of Columbia Bar had filed an amicus brief in Janus noting that the Court’s cases upholding
state bars’ mandatory dues requirements relied on the rationale of the Court’s “union-shop decisions.”
Fleck v. Wetch
The Eighth Circuit relied on Abood in its opinion in Fleck v. Wetch, which the court issued prior to the
Supreme Court’s Janus decision. Arnold Fleck, an attorney and member of the State Bar Association of
North Dakota, had challenged the bar’s use of member dues to oppose a state ballot measure, arguing that
the procedures for allowing members to object to non-germane expenditures and to opt out of certain
expenditures were insufficiently protective of his First Amendment rights. (The Supreme Court cast doubt
Congressional Research Service
3
on the constitutionality of “opt-out” procedures in a precursor to Janus, Knox v. SEIU, Local 100.) The
Eighth Circuit rejected his challenge to the bar’s procedures, concluding that the system was in fact one
where attorneys “‘opt[ed] in’ to subsidizing non-germane expenses.” Fleck also preserved a challenge to
the constitutionality of the integrated bar scheme as a whole, while conceding in the Eighth Circuit that
this argument was foreclosed by Keller.
Fleck appealed this decision to the Supreme Court. His petition was submitted prior to the Court’s Janus
decision, but he nonetheless asked the Court to overrule Lathrop and Keller and hold that mandatory bar
association dues compelled his speech and association in violation of the First Amendment. Fleck also
challenged Abood itself, arguing that the line drawn in both Abood and Keller between germane and non-
germane activities was constitutionally “indefensible.” He claimed that the line was “arbitrary” and that
state bars “routinely” violate the germaneness standard by “spend[ing] coerced dues on” impermissible
activities. In early December, the Supreme Court granted Fleck’s petition, vacated the Eighth Circuit’s
judgment, and remanded the case to that court “for further consideration in light of” Janus.
At least one commentator suggested that this action signals that the Court “doubts the constitutionality of
requiring lawyers to support a private bar association.” On remand, Fleck is likely to revive his challenge
to the constitutionality of the mandatory bar system. Prior to the Court’s action in Fleck, two prominent
First Amendment scholars argued that Janus would likely “forbid compelled funding of other forms of
private speech,” including prohibiting state bar dues. Quoting from Janus, they said: “speech by the state
bar is as likely as speech by unions to ‘touch fundamental questions of . . . policy,’ and more broadly to
‘have powerful political and civic consequences,’ even when it just has to do with regulating the legal
profession.” Thus, in their view, mandatory state bar dues would seem to raise the same First Amendment
concerns that the Court highlighted in Janus. Further, not only Janus, but other recent cases of the
Supreme Court (like Harris v. Quinn and Knox) have cast some doubt on non-Abood labor law cases
relied on in both Lathrop and Keller.
The Eighth Circuit, however, might again reject Fleck’s claim and uphold the North Dakota bar’s dues
scheme—although now, it may not rely on Abood to do so. Significantly, the Eighth Circuit is still bound
by Lathrop (a pre-Abood case) and Keller, neither of which has been expressly overruled. Although, as
legal scholars have pointed out, Keller relied heavily on Abood to uphold California’s dues system, the
Keller opinion invoked distinct governmental interests to justify the mandatory bar dues than those
interests that were rejected in Janus. Keller said that the dues were justified by the state’s “interest in
regulating the legal profession and improving the quality of legal services.” The Supreme Court appeared
to recognize this difference in Harris, a 2014 case limiting Abood’s reach to “full-fledged public
employees.” In Harris, the Court suggested that Keller could be distinguished from its decision to limit
Abood because of the state’s regulatory interests in Keller. Specifically, the Harris Court noted that the
bar rule in Keller “requiring the payment of dues was part of” a larger “regulatory scheme,” including the
promulgation and enforcement of ethics rules, and said that states “have a strong interest in allocating to
the members of the bar, rather than the general public, the expense of ensuring that attorneys adhere to
ethical practices.” And in his petition to the Supreme Court, even Fleck suggested that the First
Amendment does not prohibit states from charging attorneys for “the cost of their regulation”—which
would include “activities connected with proposing ethical codes and disciplining bar members.”
The majority opinion in Janus did not address the implications of its decision for state bar associations—
or any other mandatory associations in the private sector. But the Court did state that a “very different
First Amendment question arises” when a government merely authorizes private organizations to coerce
dues payments, as opposed to “when a State requires its employees to pay agency fees.” Moreover, the
Court said that collective bargaining is inherently more political in the public sector than in the private
sector. These statements might provide further ways to distinguish Janus from Keller and hold that
mandatory bar associations are constitutional.
Congressional Research Service
4
Further Legal Developments and Implications for Congress
For now, it is up to the lower courts to determine whether mandatory bar associations violate the First
Amendment in a post-Janus landscape. And Fleck is not the only attorney challenging the
constitutionality of bar dues. In the meantime, the Supreme Court may hear other cases challenging the
constitutionality of union representation and fees. For example, a professor has recently filed a petition
asking the Supreme Court to hold that the mandatory appointment of a union as her exclusive
representative—regardless of whether she is required to pay dues—violates her First Amendment rights,
in Uradnik v. Inter Faculty Organization. If the Supreme Court further alters the state of First Amendment
law in the labor sphere, it would create additional questions regarding the ripple effect on other
mandatory associations.
Although bar associations are largely regulated at the state level, Fleck raises First Amendment questions
that are relevant to Congress—even setting aside the large number of Members who may themselves be
members of a bar association. There are a number of other statutes that compel third parties to subsidize
other private entities, or authorize third parties to compel such payments, and Abood provided the starting
point for the First Amendment analysis of those statutes. The Court’s overruling of Abood may place such
statutes into jeopardy. To take one example, the Court has relied on Abood to analyze the constitutionality
of federal regulatory schemes that compel certain producers to fund generic advertising—upholding one
such scheme in Glickman v. Wileman Bros. & Elliott but striking down another in United States v. United
Food. Another consideration for Congress is that Janus did not question the government’s ability to itself
fund or otherwise directly support unions or other professional organizations. Post-Janus, commentators,
while acknowledging the constitutional legitimacy of such schemes, have debated the wisdom, from a
policy standpoint, of direct government support for unions.
Author Information
Valerie C. Brannon
Legislative Attorney
Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United
States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However,
as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the
permission of the copyright holder if you wish to copy or otherwise use copyrighted material.
LSB10233 · VERSION 2 · NEW