That was an unwise decision by the U.S. Supreme Court a few weeks ago. In the case of Janus v. American Federation of State and County Municipal Employees, No. 16-1466 (6/27/2018), the court ruled that employees who are not members of a union cannot be compelled to pay reduced dues, even though they accept the benefits of the union bargaining. See the Janus decision here. It was a legal theory that had kicked around for decades. If a non-member is compelled to pay dues at a reduced rate, is the non-member being forced to support activity for which s/he does not believe? Over time, unions dealt with that concern by reducing the dues for non-members and by ensuring the money devoted to political advocacy came from a different pot of money. Even so, the U.S. Supreme Court ruled in Janus that compelling dues violated the First Amendment.
I say the decision was unwise, because that same reasoning has permeated groups and associations for decades. The U.S. Supreme Court did not just overturn decades of precedent, but it also unsettled accepted norms. Now, just a few weeks later, two members of the Oregon Bar Association have filed suit arguing that being forced to pay dues to a state bar association violates their First Amendment rights, as well. The bar association, the plaintiffs say, advocates for political and ideological speech with which they disagree. There is probably some truth to that argument. Every state bar association advocates for some political goals, even if the goals are generally accepted. They advocate for goals like maintaining a bar association, for preventing unlawful practice of law, and more. While most of us see the benefit of preventing non-licensed persons practicing law, some may not. Yet, every state requires bar membership. The plaintiffs point out in their lawsuit, however, that while state licensing is necessary, state bar membership need not be necessary. See ABA BarJournal report about the Oregon lawsuit here.
And, of course, a few months ago, the Oregon Bar Association published a statement accusing Pres. Trump of catering to white nationalists and a second statement which condemned white nationalism. The bar association refunded the dues for members who requested a refund. One of the plaintiffs in this lawsuit did receive a refund, while the other did not seek a refund. But, even apart from those political statements, every bar association engages in some small measure of political advocacy. What happens when some members disagree? When a boy joins the boy scouts, is he required to agree with every political view taken by the Boy Scouts of America?
The Supreme Court may have opened a Pandora’s box. We will see how this evolves.