Amicus Curiae Brief — Keller v. State Bar of California

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Supreme Court, U.S,

FILED

vec 16 1988

JR.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

EDDIE KELLER, et al.,

Petitioners,

STATE BAR OF CALIFORNIA, et al.,

Respondents.

On Writ of Certiorari to the

California Supreme Court

BRIEF FOR THE AMERICAN FEDERATION OF LABOR

AND CONGRESS OF INDUSTRIAL ORGANIZATIONS

AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS

MARSHA S. BERZON

177 Post Street

San Francisco, CA 94108

LAURENCE GOLD

(Counsel of Record)

815 16th Street, N.W.

Washington, DC 20006

(202) 637-5390

WiLeon - Eras Printing Co., Inc. - 789-0096 - WasHincron, D.C. 20001

TABLE OF CONTENTS

* SUMMARY OF ARuuEr rr

Aοuu . rr

- I. Government Supported Speech Generally .......

. Il. Applying the Abood Standard...

TABLE OF AUTHORITIES

CASES: Page

Abood v. Detroit Board of Education, 431 U.S. 209

6... ͤ———̃ passim

A.L.A. Schecter Poultry Corp. v. United States,

III» A 16

Anderson v. City of Boston, 380 N. E. 2d (Mass.

1978), appeal dismissed, 439 U.S. 1060 (1979) 9

Arrington v. Taylor, 380 F. Supp. 1348 (M. D. N. C.

1974), aff'd mem., 526 F. 2d 587 (4th Cir. 1975) 12

Blum v. Yaretsky, 457 U.S. 991 (1982 5

Board of Education v. Pico, 457 U.S. 853 (1982) 11, 13,

Board of Education v. Barnette, 319 U.S. 624

. 7, 10, 14, 15

Branti v. Finkel, 445 U.S. 507 (1980) 26

Buckley v. Valeo, 424 U.S. 1 (197) 8, 11, 13,14

Cahill v. Public Service Commission, 69 N.Y.2d

265, 506 N.E.2d 187 (N.Y. Ct. App. 1986) 12

California Medical Association v. Federal Election

Commission, 453 U.S. 182 (1981) 14

Chicago Teachers Union v. Hudson, 475 U.S. 292

— c · 8. 23

Citizens to Protect Public Funds v. Board of Edu-

cation, 13 N. J. 172, 98 A.2d 673 (NJ. S. Ct.

— — «

Communications Workers v. Beck, —— U.S. ——,

GQ EEE passim

Consumers Union of United States, Inc. v. Califor-

nia Milk Producers Advisory Board, 82 Cal.

III... .. 12

Cornelius v. NAACP Legal Defense & Ed. Fund,

CLI... 11. 13

Cumero v. Public Employment Relations Board,

CLI. 6. 29

Ellis v. Railway Clerks, 466 U.S. 435 (1984) 5. 22

Elrod v. Burns, 427 U.S. 347 (1976) 23

Everson v. Board of Education, 330 U.S. 1 (1947) —

FCC v. League of Women Voters of California,

468 U.S. 364 (1980) 11. 14. 15. 19

iii

TABLE OF AUTHORITIES—Continued

Page

Federal Election Commission v. Massachusetts

Citizens for Life, —— U.S. ——, 107 S. Ct. 616,

S r 14, 26

Federal Election Commission v. National Right to

Work Committee, 459 U.S. 197 (1982) 26

First National Bank of Boston v. Bellotti, 435 U.S.

r ˙ .... 13, 26

Hudgens v. NLRB, 424 U.S. 507 (197) 5

In Re Integration of Bar, 5 Wis. 2d 618 (1958) 18

Lathrop v. Donahue, 367 U.S. 820 (1960) 17, 18, 30

Machinists v. Street, 367 U.S. 740 (19600) passim

Minnesota State Board v. Knight, 485 U.S. 271

e scssssnnemnenarecseneees 29

Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971) 25

Pacific Gas & Elec. Co. v. Public Util. Comm’n, 475

r ˙ “].... 10

Perry Ed. Assn. v. Perry Local Educators'“ Assn.,

. 11

Pipefitters v. United States, 407 U.S. 385 (1957) 26

Pruneyard Shopping Center v. Robins, 447 U.S. 74

e . 10, 15

Railway Employes’ Dept. v. Hanson, 351 U.S. 225

e _____neremunnnontoonesengeces 6,7

Regan v. Taxation With Representation of Wash.,

e 11, 12, 13

Rendell-Baker v. Kohn, 457 U.S. 830 (1982) 5

Reynolds v. Sims, 377 U.S. 533 (19643) 17

Roberts v. Jaycees, 468 U.S. 609 (1984) 23

San Fran. Arts & Athletics, inc. v. U.S.O.C., 483

r cencesnnennecs 5

Schneider v. Colegio de Abogados de Puerto Rico,

682 F. Supp. 674 (D.P.R. 1988) 27, 28

Supreme Court of New Hampshire v. Piper, 470

r cceneeee 18 21

United States v. Frame, 885 F.2d 1119 (3rd Cir.

ED 4,12

Veed v. Schwartzkopf, 353 F. Supp. 149 (D.

Neb.), aff'd mem., 478 F.2d 1407 (8th Cir.

1973), cert. denied, 414 U.S. 1135 (1974) .......... 12

TABLE OF AUTHORITIES—Continued

Page

Webster v. Reproductive Health Services, ——

US. , 109 S. Ct. 3040 (19899)97 11

Wooley v. Maynard, 430 U.S. 705 (19777 7, 10, 14

Wygant v. Jackson Board of Education, 476 U.S.

SET IIIT cricconsnianiessisnestinecilabisaalaadeneasaaladnndaieiamecaanies 6

STATUTES:

,, subineeehenaeemenaienmadel 12

e Y 11

, . 11

, ̃ T.... 12

MISCELLANEOUS:

A. Bickel, The Least Dangerous Branch (1962) 25

T. Emerson, The System of Freedom of Expres-

1 ——— tial, 25

Jaffe, Law Making by Private Groups, 51 Harv.

Bias Ms I a 17

Liemann, Delegation to Private Parties in Amer-

ican Constitutional Law, 50 Ind. LJ. 650

r ——. ˙—˙—— titled tab 17

M. Olson, The Logic of Collective Action (1964) 16

Schiffrin, Government Speech, 27 UCLA L. Rev.

r atin 9, 17, 25

L. Tribe, American Constitutional Law (1988) 4,9

M. Yudof, When Government Speaks (1983) 11, 25

BRIEF FOR THE AMERICAN FEDERATION OF LABOR

AND CONGRESS OF INDUSTRIAL ORGANIZATIONS

AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS

This brief amicus curiae of the American Federation

of Labor and Congress of Industrial Organizations

(“AFL-CIO”)—a federation of 90 national and inter-

national labor organizations having a total membership

of approximately 14 million working men and women—is

filed with the consent of the parties as provided for in

the Rules of this Court.

SUMMARY OF ARGUMENT

I. We first demonstrate that when the government

requires individuals to subsidize the activities of an en-

tity, the nature of the governmental action and its effect

on individual rights is the same whether the entity desig-

nated to collect and to spend the exacted moneys is a tra-

ditional, geographically based governmental entity, an in-

novative governmental entity composed of and responsive

to a non-geographically based group with inherent com-

mon interests, or a private entity charged with serving

the common interests of a group of individuals. Since

there is such a requirement here, the issue is not whether

Abood v. Detroit Board of Education, 431 U.S. 209

(1977), applies but what the principle stated there en-

tails, both in general and in this case particularly.

II. A. Abood, properly understood, simply cabins gov-

ernment expenditures on, or subsidy of, expressive activ-

ity, whatever the nature of that expenditure or subsidy,

in two very limited respects: First, Abood establishes a

“germaneness” test limiting the government’s ability in

all contexts to require that individuals contribute to ex-

pressive activities. That standard preserves the ability

of traditional, geographically-defined governmental en-

tities to spend tax-derived funds for speech purposes upon

the subjects entrusted to that particular entity. And that

standard also allows legislatures to devise novel stat-

utory schemes that provide for democratic decisionmaking

among groups defined by common interests that are n-

geographical, such as a common endeavor (e.g., study-

ing at the same university), a common commercial inter-

est (e. g., selling apples or producing beef) or a common

occupation (e.g., practicing law or teaching in public

schools). Second, Abood, and other cases of this Court,

erect an absolute prohibition upon expending mandated

fees of any kind in a partisan fashion upon candidates for

elective office.

B. Thus, under Abood, the State Bar may use manda-

tory contributions to fund any expressive activities ger-

mane to the legislative purposes carried out by the Bar,

whether “ideological” or not. And there is no require-

ment under Abood that the legislative purposes be nar-

rowly drawn, or strictly regulatory. An important legis-

lative purpose of California’s State Bar Act is to obtain

the combined expertise of the State’s attorneys on matters

relating to the administration of justice and the science

of jurisprudence. The challenged activities involving

lobbying, the filing of amicus curiae briefs, and the Con-

ference of Delegates are constitutional, because these ac-

tivities relate to the Bar’s broad administation of jus-

tice functions, and do not entail an impermissible in-

volvement in partisan electoral policies.

ARGUMENT

Introduction

This case concerns the petitioners’ First Amendment

challenge to certain expressive activity of the State Bar

of California. In ruling on that challenge, the California

Supreme Court held that the State Bar is an integral

part of the State government. That state law ruling is,

of course, authoritative.

The First Amendment—like the balance of the Bill of

Rights—was proposed and was made part of the Con-

stitution as a check on the government. Indeed,-no rule

of constitutional law is more firmly established than that

the Bill of Rights applies only to state action and not to

private action.

In this litigation, however, the determination that the

entity whose expressive activity is alleged to be prohibited

by the First Amendment is a governmental actor has

been held to defeat the constitutional claim. According

to the California Supreme Court, because the State Bar

is a governmental entity, the Bar is entitled to exact fees

and to spend the moneys so collected free of any First

Amendment limitations, although, were the Bar a private

entity, the First Amendment’s limitations would apply.

The California Court came to this paradoxical conclu-

sion as its reconciliation of two lines of authority in this

Court: On the one hand, this Court’s jurisprudence in-

dicates that, as general matter, the First Amendment

does not limit government speech on secular issues of

public importance financed through compulsory taxation,

and that taxpayers do not have any constitutional right

to a pro-rata reduction of their taxes because the tax-

payers disagree with one or more of the uses to which

those taxes are put, expressive or otherwise. On the

other hand, Abood v. Detroit Board of Education, 431

U.S. 209 (1977), and its progeny place some limitation,

albeit a narrow one, upon the authority of purely private

entities to spend fees that individuals are compelled,

through any form of state action, to contribute: Such

an association may not expend exacted fees “on behalf

of political candidates, or towards the advancement of

other ideological causes not germane to” the “cause which

justified bringing the group together.” See id. at 222-23

& 235.

The California Court was of the view that these two

lines of authority are reconcilable only upon the startling

premise that the more direct the governmental involve-

ment in collecting compelled payments and expending the

resulting fund on expressive activity, the /ess the First

Amendment limits those expenditures.

Petitioners’ solution to this apparent anomaly—and the

solution proposed in the concurring and dissenting opin-

ion below—is to agree with the California Court that gov-

ernmental entities of some kinds are not limited by the

First Amendment in their expenditure of exacted pay-

ments, collected in the form of taxes, for expressive pur-

poses, but to maintain that both private entities and cer-

tain governmental entities of which the State Bar is one,

are subject to limitations of the kind imposed in Abood.

On this view, there is a fundamental difference of con-

stitutional dimension between the compulsory payment

of taxes to support expressive activity by traditional,

geographically-based governmental units and all other

forms of governmental compulsion to support expressive

activity. The difference does not inhere, however, in the

governmental or non-governmental nature of the spend-

ing entity, but, instead, upon some critical difference be-

tween taxes and other forms of dues and fees that the

government requires to be paid. See Petitioners’ Opening

Brief at 20-23; see also, e.g., Pet. App. A-46—A-50

(Kaufman, J., concurring and dissenting) ; United States

v. Frame, 885 F.2d 1119, 1132-33 (3rd Cir. 1989); L.

Tribe, American Constitutional Law 807-808 n.14 (1988

We agree with the State Bar that the proffered distinc-

tion between taxes and other forms of governmentally-

compelled payments for purposes of determining whether

First Amendment interests are implicated by the com-

pelled payment will not bear close analysis. And we agree

as well that the Bar is permitted by the Constitution to

spend funds derived from exacted fees upon all the ac-

tivities the Bar is authorized to engage in by the appli-

cable state law as construed by the California Court.

We propose, however, an alternative analytical frame-

work for reaching these eminently sensible results that

is consistent with the basic understanding that the First

Amendment regulates government action. In essence,

we submit that all the various forms of governmental

support for expressive activity and for association to en-

gage in expressive activity, implicate the same First

Amendment interests, while the result of balancing those

interests against the proffered governmental justifica-

tions for compelled financial support of expression will

differ depending upon the strength of that justification.

I. Government Supported Speech Generally.

A. “It is, of course, a commonplace that the constitu-

tional guarantee of free speech is a guarantee only against

abridgment by government, federal or state.” Hudgens

v. NLRB, 424 U.S. 507, 513 (1976). It is equally

plain that [a] government ‘normally can be held

responsible for a private decision only when it has exer-

cised coercive power or has provided such significant en-

couragement, either overt or covert, that the choice must

in law be deemed to be that of the government! . San

Fran. Arts & Athletics, Inc. v. U.S.O.C., 483 U.S. 533,

546 (1987) (quoting Blum rv. Yaretsky, 457 U.S. 991,

1004 (1982) and Rendell-Baker v. Kohn, 457 U.S. 830,

840 (1982

Consistent with this understanding of the First

Amendment’s limited, albeit critical, office in our gov-

ernmental scheme, this Court’s cases on the status of

union security agreements (viz., agreements requiring

all covered employees to pay dues and initiation fees to

the labor organization selected as the exclusive bargain-

ing representative of a particular employee group

turn on the conclusion that the compulsion to pay union

dues and fees is a governmental compulsion, although the

entity spending the fees is private.

In several cases under the Railway Labor Act (“RLA”) and

National Labor Relations Act (“NLRA”), this Court has held that

Congress has, as a statutory matter, restricted the expenditure of

mandated fees (Machinists v. Street, 367 U.S. 740 (1960); Ellis

Railway Clerks, 466 U.S. 435 (1984) Communications Workers v.

Beck, U.S. ——, 108 S. Ct. 2641 (1988)), and has emphasized

that the statutory limitations do not hinge upon “constitutional con

cerns”, but are valid “regardless of whether the negotiation of

union security agreements under the [particular statute) partakes

In the RLA cases, although the decision to require a

mandatory fee is made by two private entities, a pri-

vate employer and a union, and although decisions about

the expenditure of the mandatory fees are made en-

tirely by a private entity, the union, the state action

derives from the RLA’s preempticn of state law forbid-

ding union security agreements. Railway Employes’

Dept. v. Hanson, 351 U.S. 225 (1956). In the public em-

ployee cases, the state action is found in the fact that

the compulsory fee requirement is set in part by a gov-

ernmental entity, the public employer, as one party to a

collective bargaining agreement. Abood, 431 U.S. at

218 & n.12; Wygant v. Jackson Board of Education, 476

U.S. 267, 273 n.4 (1985). And under the NLRA, because

neither of these circumstances pertain, this Court has

explicitly left open the question whether the First Amend-

ment in any way limits the collection or expenditure of

mandatory fees under union security provisions. Com-

munications Workers v. Beck, supra.

Indeed, in Abood, supra, the major point of disagree-

ment between the majority and the dissenters was

whether the nature of the governmental involvement un-

der the RLA, a statute regulating only private employees,

and the governmental involvement under a state statute

governing the employment of public employees is suffic-

ciently different to mandate a different result under the

First Amendment in the latter situation, more restrictive

of the right of a private entity to spend mandated fees.

The dissent maintained that

of governmental action.” Communications Workers v. Beck, 108

S. Ct. at 2657. Similarly, the California Supreme Court, in Cumero

v. Public Employment Relations Board, 49 Cal. 3d 575 (1989), re-

cently held, without regard to the First and Fourteenth Amend-

ments, that the California statute governing collective bargaining

for educational employees forbids unions operating under that

Statute to spend compelled fees for “most lobbying and electioneer-

ing expenses as well as the costs of recruiting new members.” /d.

at 582.

The arguments we make in this brief do not, of course, directly

affect those statutory holdings.

The State in this case has not merely authorized

union-shop agreements between willing parties; it

has negotiated and adopted such an agreement it-

self.... Accordingly, the Board’s collective bargain-

ing agreement, like any other enactment of state law,

is fully subject to the constraints that the Constitu-

tion imposes on coercive governmental regulation.

Because neither Hanson nor Street confronted the

kind of governmental participation in the agency shop

that is involved here, those cases provide little or no

guidance for the constitutional issues presented in

this case. [431 U.S. at 253-54.

The majority, however, found this proposition “somewhat

startling.” 431 U.S. at 227 n.23. Maintaining instead

that the applicable First Amendment principles are trig-

gered by governmental compulsion generally, and do not

vary depending upon whether “the governmental action

operate ls] less directly”, id., the Abood majority agreed

with Justice Douglas that

Since neither Congress nor the state legislature

can abridge [First Amendment] rights, they cannot

grant the power to private groups to abridge them.

As I read the First Amendment, it forbids any

abridgement by government, whether directly or in-

directly. Id., quoting Machinists v. Street, 367 U.S.

at 777 (Douglas, J., concurring) .]

Further, the precedent upon which Abood placed its

main reliance in finding that there are at least some

limitations upon the uses to which mandated union fees

may be devoted is a case limiting the government’s au-

thority to compromise freedom of conscience by compell-

ing allegiance to a governmentally-prescribed message:

Board of Education v. Barnette, 319 U.S. 624 (1943).

In Barnette, the Court stated that

If there is any fixed star in our constitutional con-

stellation, it is that no official, high or petty, can

prescribe what shall be orthodox in politics, national-

ism, religion, or other matters of opinion, or force

citizens to confess by word or act their faith therein.

Id. at 642}.

See also Wooley v. Maynard, 430 U.S. 705 (1977).

Abood went on to conclude that an individual’s free-

dom of conscience may, in some circumstances, be com-

promised not only by requiring the kind of direct, per-

sonal affirmation of belief at issue in Barnette, but also

by requiring an individual “to make . . . [financial] con-

tributions for political purposes. . . 431 U.S. at 235. The

language in Abood to this effect is general; there is noth-

ing in the opinion indicating that the principle derived

from Barnette applies only when the government compels

financial support of a private entity’s speech and not

when the compelled payment supports governmental speech.

Abood and its progeny repeatedly quote James Madi-

son’s proclamation that “the same authority which can

force a citizen to contribute three pence only of his prop-

erty for the support of any one establishment, may force

him to conform to any other establishment in all cases

whatsoever”, and Thomas Jefferson’s statement that “to

compel a man io furnish contributions of money for the

propagation of opinions which he disbelieves is sinful and

tyrannical.” 431 U.S. at 234 n.31. See also Chicago Teach-

ers Union v. Hudson, 475 U.S. 292, 305 n.15 (1986

Again, these very general statements of the freedom of

conscience ideal on which Abood rests make no distinction

between government compelled payments to government

itself which are used for the support of government ex-

pressive activities and government compelled payments to

private entities which are used for the entity’s expressive

activities.

2 As the context of the Madison and Jefferson statements demon-

strates, the form of compelled funding with which the founding

fathers were most concerned was the funding of religion. That

concern, of course, found expression in the Establishment Clause

of the Constitution, a clause with no direct counterpart as to speech

in general. See Buckley v. Valeo, 424 U.S. at 91-92. Under the

Establishment Clause, no distinction is made between mandated

direct contributions to religious institutions and mandated contribu-

tion through the expenditure of tax-generated revenues for reli-

gious purposes. F.. Everson v. Board of Education, 330 U.S. 1

(1947).

Thus, the Abood line of cases does not rest, as the Cali-

fornia Supreme Court supposed, upon the notion that the

First Amendment necessarily places greater restrictions

on expenditures of government mandated fees by private

entities to finance expressive activities than the Amend-

ment places upon the government when it funds its own

speech (a notion that, as we stressed at the outset, would

be entirely incompatible with the state action doctrine).

Rather, Abood’s premise is that the government may not

escape First Amendment strictures by providing a private

entity the means to do what the government may not

itself do. Abood, in other words, begins the process of

ascertaining and articulating the basic First Amendment

principles concerning the very limited way in which the

Constitution cabins the government’s authority to finance

expression generally. Accord, L. Tribe, American Con-

stitutional Law, 807-808 n.14; Schiffrin, Government

Speech, 27 UCLA L. Rev. 565, 588-95 (1980).*

There is one major way in which the impact of Abood differs

significantly depending upon whether the entity expending com-

pelled funds is governmental or nongovernmental :

Where the entity is governmental, the authority of that entity

to engage in a certain activity at all, expressive or otherwise,

is subject to legislative control, and to the strictures of the Con-

stitution. Cf. Anderson v. City of Boston, 380 N.E. 2d 628 (Mass.

1978), appeal dismissed, 439 U.S. 1060 (1979) (holding that legis-

lative prohibition upon expenditure of tax-generated funds by a

city to propagate views on an initiative measure is valid as protec-

tive of the interests of citizens in not funding ideas with which

they disagree); Pet. App. A-26-A-30 (holding that in conducting

certain of the protested activities the States Bar “exceeded its

statutory authority”).

In contrast, where the entity expending mandated fees or taxes

is private, the entity has First Amendment interests of its own,

which the legislature and the courts are bound to respect; any

legislative or constitutional inhibitions upon the expenditure of

compelled fees must, therefore, be remedied in a way that does not

constrain the ability of the organization to carry on its chosen

activities with voluntary funds. Machinists v. Street, 367 U.S. at

772-773; Abood, 431 U.S. at 238.

The consequence may well be that in the fare case where the

complaint upheld is that a governmental entity is spending man-

B. The conclusion that Abood states a unitary prin-

ciple applicable at its broadest level to any and all govern-

ment actions that enhance speech is reinforced by giving

closer consideration to the different ways in which the

government supports expression, and to the precise nature

of the interference with First Amendment interests worked

by requiring monetary support for the resulting speech

in each context. As a general matter, there are at least

four different ways in which the government may require

an individual to contribute money to the propagation of

ideas with which the individual may disagree.*

First, the government can spend tax-derived funds

upon the direct expression of ideas, political or otherwise.“

dated fees or taxes in a way that infringes the First Amendment

interests of dissenting feepayers or taxpayers, a simpler remedy

than the complicated pro rata reduction used in the union security

cases could be devised.

For simplicitly sake, we discuss here the circumstances in which

the only sense in which an individual is being compelled to lend

support to the propagation of ideas in which he or she disbelieves

is by the payment of money into the fund from which the objec-

tionable expenditure is made, directly or indirectly. There are, as

well, other forms of compelled support of expression; for example,

those which involve mandatory use of either governmental or pri-

vate physical property to enhance the speech activity of the govern-

ment or of private persons. See, e. g., Pruneyard Shopping Center

v. Robins, 447 U.S. 74 (1980) (requirement that a shopping center

owner permit use of his property by groups wishing to communicate

with shoppers); Pacific Gas & Elec. Co. v. Public Util. Comm'n,

475 U.S. 1 (1986) (requirement that a company permit certain

groups to use the company’s billing envelop to communicate their

views).

F. g., Citizens to Protect Public Funds v. Board of Education,

13 N.J. 172, 98 A. 2d 673 (NJ. S.Ct. 1953) (circulation of both

information upon and governmental entity’s opinion upon a schoo!

bond election); Board of Education v. Barnette, 319 U.S. at 640

(contrasting “[n)ational unity as an end which officials may foster

by persuasion”, presumably financed by tax revenues, with the direct

affirmation of belief involved in that case); Wooley v. Maynard,

430 U.S. at 717 (state may communicate “an official view as to

Second, the government can contract with a private

entity for the payment of tax-derived funds for a public

service that involves expression on the condition that the

private party in carrying out that service follow the

same line as the government would take.“

Third, the government can subsidized private entities

speaking on their own behalf, rather than on behalf of

the government.

proper appreciation of history, state pride, and individualism .. .

in any number of ways”).

Many instances of governmental expression on its own behalf

upon controversial political issues are so commonplace, and so ac-

cepted, that disputes concerning the validity of such expression

simply do not arise. For example, the executive branch of govern-

ment is certainly expected to present its views to the legislature

upon questions before the legislature. See generally M. Yudof.

When Government Speaks (1983).

*E.g. Webster v. Reproductive Health Services, —— US. ——,

109 S. Ct. 3040 (1989) (conditioning receipt of government funds

upon promotion of the government's views about abortion).

F.., Regan v. Taxpayers with Representation of Wash., 461

U.S. 540 (1983) (tax deduction for lobbying activities of certain

private organizations); Board of Education v. Pico, 457 U.S. 853

(1982) (selection of books for a public school library); FCC r.

League of Women Voters of California, 468 U.S. 364 (1984) (gov-

ernment financial assistance to noncommercial, educational broad-

casting) ; Buckley v. Valeo, 424 J.S. 7 at 90 et seq. (public funding

of presidential election campaigns) ; see also id., at 93 n.127 (“Our

statute books are replete with laws providing financial assistance

to the exercise of free speech, such as aid to public broadcasting

and other forms of educational media, 47 U.S.C. §§ 390-299, and

preferential postal rates for newspapers. 39 CFR § 132.2

(1975)"); Perry Ed. Assn. v. Perry Local Educators Assn., 460

U.S. 37 (1980) (tax-funded internal mail system, available to carry

government messages and those of selected private groups); Cor-

nelius v. NAACP Legal Defense 4 Ed. Fund, 473 U.S. 788 (1985)

(government-sponsored fund raising campaign, accessible to selected

private groups).

Other examples of government subsidy to private groups and

individuals for expressive activity include the National Endowment

for the Humanities (20 U.S.C. § 956 et seq.), the National Science

Foundation (42 U.S.C. § 1861 et seq.) and the National Endowment

And. fourth, the government can require that certain

expressive activities as determined by the group.

1. The core situation at issue is the one in which the

plaining its reasoning in great depth, that as a general

matter, the First Amendment does not limit the govern-

ment’s authority to expend tax-derived revenues on stat-

ing the government’s own position on public issues, and

D enti-

large

for the Arts (20 U.S.C. § 954 et seq.), all of which operate in

part by providing grants to private individuals and groups for

scholarly or artistic work, and the federal Lega! Services

tion, which provides funds for legal advocacy to private

organizations (42 U.S.C. § 29960).

grated bar association, and the union security arrangements in-

volved in Abood and Hudson. See also, %. Consumers Union of

United States, Inc. vw. California Milk Producers Advisory Bd.

82 Cal.App.3d 433, 438 (1978) (noting existence of 92 state beards

in California funded through fees imposed upon individuals and

(M.D.N.C. 1974), aff'd mem. 526 F.2d 587 (4th ;

funded through student activity fee Nee

versity); Veed v. Schwartzkopf, 353 F

mem. 478 F.2d 1407 (8th Cir. 1973), cert. denied, 414 U.S. 1135

(1974) (same). Cf. Cahill v. Public Service Commission, 69 N_Y.

9d 265, 506 N.E. 2d 187 (N.Y. Ct. App.1986) (charitable contribu-

tions funded through utility charges

* Where the government is subsidizing the speech of others

rather than speaking directly on its own behalf, the First Amend

ment does place some limits upon the government's discretion

choose among the speakers to be subsidized.

For example, Congress has the power to appropriate

money to finance election campaigns according to neutral

eriteria without permitting taxpayers to designate par-

ticular candidates as recipients of their money.“ Buckley

v. Valeo, 424 U.S. at 92. In rejecting the claim that this

infringes on the First Amendment rights of taxpayers

who do not wish their money to go to a particular candi-

date, the Buckley Court said

The fallacy of appellants’ argument is . . . appar-

ent; every appropriation made by Congress uses pub-

lic money in a manner to which some taxpayers ob-

ject. IId. at 96.]

Moreover, Congress does not run afoul of the First

Amendment by subsidizing through a tax deduction

lobbying activity by certain private groups but not others.

Regan v. Taxation with Representation of Wash., supra.

Nor do taxpayers have any constitutional right to object

to the expenditure of tax funds by private organizations

for the purpose of editorializing on publically-funded

radio stations:

This argument is readily answered by our decision

in Buckley v. Valeo, [supra]. As we explained in

that case, virtually every congressional appropriation

will to some extent involve use of public money as

to which some taxpayers may object. . . . Neverthe-

Primarily, the government may not, in choosing which groups or

ideas to subsidize, “discriminate invidiously in such a way as to

‘aim at the suppression of dangerous ideas“ Regan v. Taxation

with Representation of Wash., 461 U.S. at 548. See also Board of

Education v. Pico, 457 U.S. at 871 (plurality opinion) id. at 879

(opinion of Blackmun, J.) . Cf. Cornelius v. NAACP Legal Defense

& Ed. Fund, 473 U.S. at 811 (in choosing which organizations to

admit to a “nonpublic forum,” the government has wide discretion

by may not engage in “viewpoint-based discrimination.“

For present purposes, what is significant about these limitations

is that they are grounded not in concern for the freedom of con-

science of taxpayers but, instead, in the impact of the govern-

mental decision upon need to protect the “public access to discus-

sion, debate and the dissemination of information and ideas.“

First National Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978).

less, this does not mean that those taxpayers have a

constitutionally protected right to enjoin such ex-

penditures. [FCC v. League of Women Voters of

California, 468 U.S. at 385 n.16.]

The government may, moreover, “communicate to others

an official view as to proper appreciation of history, state

pride, and individualism ... in any number of ways.”

Wooley v. Maynard, 430 U.S. at 717; see also Board of

Education v. Barnette, 319 U.S. at 640.

As these cases recognize, upon even the briefest con-

sideration it is apparent that where the only sense in

which there is a requirement of compelled support for

expression is that some small amount of money paid into

a general fund will be used for that purpose, the individ-

ual making the payment has a most limited First Amend-

ment interest. The interest in contributing money to

others for speech-related purposes is marginal. . since

the expression rests solely on the undifferentiated sym-

bolic act of contributing. and since “the transforma-

tion of contributions into political [or ideological] debate

involves speech by someone other than the contributor.”’

Buckley v. Valeo, 424 U.S. at 20-21.”

Further, where the objection is to compelled association

or to compelled support of expression only in the form of

exacted payments to a general fund, “the broader con-

cept of individual freedom of mind” that underlies the

First Amendment protection of the right not to speak and

the right not to associate, Board of Education v. Barnette,

319 U.S. at 633-34, 642, is implicated only in an attenu-

ated sense. As this Court has observed, “unlike Wooley

1 This Court has in the years since Buckley repeatedly recog-

nized that monetary payments for expression, as “speech by proxy,”

involve only “some limited element of protected speech” California

Medical Association v. Federal Election Commission, 453 U.S. 182,

196 & n.16 (1981) (plurality opinion, cited with approval in Federal

Election Commission v. Massachusetts Citizens for Life, — U.S.

——, 107 S. Ct. 616, 629 (1988)), and has “consistently held that

restrictions on contributions require less cempelling justification

than restrictions on independent spending,” 107 S. Ct. at 629.

v. Maynard,” where the government sought to require an

individual to directly facilitate such expression, there is

not a case in which an individual taxpayer is forced in

his daily life to identify with particular views. FCC

v. League of Women Voters of California, 468 U.S. at

385 n.16, where the only connection between an individ-

ual and ideas with which he or she disagrees is that the

speech in question is funded with a share of the individ-

ual’s tax payments.

Since there is no such mandatory intimate connection,

the government is not directly “invad[ing] the sphere of

the intellect and spirit which it is the purpose of the First

Amendment to reserve from all official control,” Board of

Education v. Barnette, 319 U.S. at 642. See also Prune-

yard Shopping Center v. Robins, 447 U.S. at 85-88 (no

infringement of right not to speak or not to associate

where the only required connection between an individual

and the expressive activities of others is use of the indi-

vidual’s property generally open to the public).

2. Mandatory subsidization of speech through general

taxes of the kinds involved in the cases just discussed is

based on “membership” in a particular geographical unit:

As a condition of living in a particular country, state, or

city, an individual may be required to assist in financing

programs of common interest to the residents of that

area, including expressive conduct with which he may dis-

agree. The geographical political subdivision may be a

large state with broad authority, or it may be a small

town of several hundred people, perhaps, with very

limited responsibility in the overall governmental scheme.“

11 The breadth of the common interests in geographically-based

governmental units will vary with the geographical and substantive

breadth of the unit. Thus, the national government is concerned

with the common interest in defense, but, because of substantive

determinations made in the Constitution, state governments are

not. New York concerns itself with transportation into and within

New York, but has no direct role in determining bus routes in

California. Public utility districts are concerned only with the

common needs of the populace they serve for water or electricity,

In addition, some traditional governmental entities funded

through taxes are geographically defined but limited in

their substantive purview; school boards and other special

districts, such as park districts, public utility districts,

and transportation districts, exemplify this category.

A geographical definition of commonality is the most

concrete, defined as it is by physical boundaries, and the

most traditional. But, as Justice Douglas recognized in

his concurrence in Machinists v. Street, supra (upon

which the Abood majerity relied, 431 U.S. at 223),

often “in an industrial society . . . an association with

others is compelled by the facts of life,” 367 U.S. 740,

775-76 (Douglas, J., concurring). Thus, lawyers in a

state, students in a state university, and employees in an

industry constitute what social scientists denominate a

“latent” group—viz., “a number of individuals with a

common interest,” M. Olson, The Logic of Collective Ac-

tion (1964) p. 8—whether or not the individuals are

bound to a formal organization. By aiding in the expres-

sion of the interests and the abilities of a “latent group”

through a formal, democratically-organized entity charged

with representing the group as a whole—such as an in-

tegrated bar association—the government provides the

same kind of limited self-determination for subgroups of

citizens as a traditional local, geographically based sub-

division, with limited but important responsibilities and

prerogatives, provides.”

and not with other aspects of the lives of the people who live

within the district’s geographical boundaries.

12 Certain of the amici curiae supporting petitioners appear to

contest the government’s authority to establish non-geographically

based entities for any purpose, contending that the Constitution

commands that no governmental powers may be delegated to entities

formed along occupational or industry lines. See Brief Amicus

Curiae of Trayton L. Lathrop, at 3-6; Brief Amicus Curiae of the

National Right to Work Foundation, at 7 n.8, 14-19. For this

proposition these amici curiae rely on cases as diverse—and as far

from the instant case—as A.L.A., Schecter Poultry Corp. v. United

Concomitantly, from the point of view of the complain-

tng individual, there is no self-evident difference in prin-

ciple between the compulsion to pay taxes to a geograph-

ically defined governmental entity, where some of the re-

ceipts are used for expressive activity with which the in-

dividual disagrees, and a government requirement—im-

posed by a geographically defined governmental entity—

to pay fees to an interest-based governmental entity or to

a private entity, where the latter engage in expressive

activity as one among many activities. In either case,

the individual is in some way, albeit a rather removed

one, aiding the expression of ideas with which he or she

disagrees, and in either case, there is no substantial con-

nection between the individual and the positions he or she

would prefer not to support other than the payment into

a fund from which the expression is financed. See gen-

erally Schiffrin, Government Speech, 27 UCLA L. Rev.

565, 588-94 (1980).

In particular, there is no reason to believe that the

degree of either actual or perceived identification between

compelled taxes or fees and government-assisted speech

would necessarily differ according to whether the speaker

States, 295 U.S. 495, 537 (1935) and Reynolds v. Sims, 377 U.S.

533 (1964).

Justice Harlan, in his concurring opinion in Lathrop v. Donchue,

367 U.S. at 854-55, fully exposed the multiple and fatal errors in

this line of argument. See also Jaffe, Law Making by Private

Groups, 51 Harv. L. Rev. 201 (1937); Liemann, Delegation to

ptm Parties in American Constitutional Law, 50 Ind. L. J. 650

1975).

In this case, however, the challenge is not to any regulatory

powers that the State Bar may have but, instead, solely to the

Bar's authority to communicate with those governmental entities

that retain traditional governmental authority, principally the legis-

lature and the courts. Petitioner’s Opening Brief, at 24. Insofar

as the Bar simply communicates its views to other entities with

the power to decide issues of law and policy, the Bar is not legis-

lating in any sense whatever, and no delegation concepts pertain.

Further, since the decision to exact fees was made by the State

Legislature, that decision, also, has in no sense been delegated to

the Bar.

is a geographical governmental entity, a non-geographical

governmental entity, or a private entity. Most people

know that the position of a group, especially a large

one, on an issue cannot possibly reflect the unanimous

opinion of all members, any more than the position of a

city council on an issue reflects the unanimous views of

all citizens of a city. See Lathrop v. Donahue, 367 U.S.

at 859 (Harlan, J. concurring) (“Surely the Wisconsin

Supreme Court is right when it says that petitioner can

be expected to realize that ‘everyone understands or should

understand’ that the views expressed are those ‘of the

State Bar as an entity separate and distinct from each

individual’”) (quoting Jn Re Integration of Bar 5 Wis.2d

618, 623 (1958

Further, the State Bar of California (or, for that

matter, a diversified national union of several hundred

thousand people, such as the one involved in Communica-

tions Workers v. Beck, supra) has considerably more

members, and is considerably more multifaceted and

complex in its goals, activities, and internal operations,

than a small town schol district (see Citizens to Protect

Public Funds v. Board of Education, supra) or than

many other traditional geographically-based governmental

units.

There is consequently no basis for drawing a line be-

tween traditional governmental entities and other entities

supported by exacted fees on the basis that the individual’s

contribution is converted more directly, or more per-

ceptibility, into the entity’s expression in the one instance

than in the other. Rather, in all these instances, the

individual contributes to a general fund, where his or her

contribution is commingled with all other exacted contribu-

tions and where the fund is then devoted to those projects,

expressive and otherwise, that the entity as a whole has

decided to pursue.“

13 Where government is funding speech through traditional taxa-

tion, there may be several decision-making junctures before the

allocation of funds to speech activity is determined. For example,

when the government funds public broadcasting, it is the broad-

Nor is the line of demarcation suggested by Justice

Powell in his dissent in Abood a viable one for distinguish-

ing between the First Amendment implications of taxation

to finance expressive activities and of other government-ex-

acted fees to finance expressive activities.“ Justice Powell

recognized that “a local school board does not need to dem-

onstrate a compelling state interest every time it spends

a taxpayer’s money in ways the taxpayer finds abhorrent”

but maintained that

the reason for permitting the government to com pel

the payment of taxes and to spend money on contro-

versial projects is that the government is representa-

tive of the people. . . and [not] only of one segment

of the population, with certain common interests.

431 U.S. at 259 n. 13].

caster, not the government, that decides upon the programs to be

broadcast and the ideas to be expounded. FCC rv. League of Women

Voters of California, 468 U.S. at 367-69.

We cannot fathom how any difference of constitutional dimen-

sion turns upon whether one or two layers of decisionmakers oper-

ate upon the commingled funds before those funds are devoted to

expressive purposes. Indeed, when a traditional governmental en-

tity is speaking directly, or when exacted fees are collected by a

non-geographical governmental entity, or by a private entity, the en-

tity deciding upon speech allocation is the same one that collects

the exacted fees initially. The State Bar, for example, divides

exacted fees between the activities within its purview in precisely

the same way as a local school board treats tax revenues.

Thus, if direct payment to the entity in whose name the speech

occurs raised the constitutional stakes, then the most traditional

form of governmental speech, that conducted by a geographically-

based governmental entity in its own name, would be subject to

heightened scrutiny.

Given the degree of reliance placed upon Justice Powell's in-

sistence that there is a difference of constitutional dimension be-

tween taxes and any other form of governmentally-exacted fees

used for expressive purposes (see Pet. App. A-50-51: Petitioner's

Opening Brief at 21), it bears emphasis that Justice Powell was

in dissent in Abood, and was offering the proffered distinction to

explain why, in his view, the majority opinion was insufficient! y

protective of First Amendment rights. See 431 U.S. at 255-59

(Powell, J., concurring in the judgment).

Neither side of this abstract equation is correct.

government, representative of the 5 a com-

plex set oy tm — of governmental bodies with differ-

ent geographical and substantive jurisdictions. The na-

tional government represents “the people” as a whole,

in some sense, but only as to those substantive matters

committed to the national government in the Constitu-

tion, while the states and their various subdivisions are

restricted to representing “only one segment of the popu-

lation, with certain common interests.” As to traditional

tal entities, those common interests arise be-

cause individuals who live in a contiguous area are com-

monly affected by questions concerning the provision of

common services for that area.

On the other hand, while it is true that traditional gov-

ernmental entities are “representative” of the individuals

within their sphere of authority in the sense that the gov-

ernors are elected by those individuals (or at least by

such of them as are citizens and of voting age), the

common interesis and authorized to compel the payment

of fees are also typically set up in accord with demo-

cratic ideals. And the group of individuals entitled to a

the ired to pay exacted fees. us,

aan ae: are — Arw that their funds are being

used for expressive purposes with which those individuals

disagree had the opportunity, if they cared to use it,

to vote for a member of the State Bar Board of Governors,

and through that vote to influence the position taken by

the Bar with the use of those funds on issues before the

legislature and the courts.” Their complaint, then, is

18 The State Bar of California is unusual, perhaps, in that some

of the members of its Board of Governors are nonlawyers, ap-

pointed by the Governor rather than elected by the States lawyers.

identical to that of dissenting taxpayers; viz., that the

dissenters failed to prevail in the political process, and

now wish to succeed by crippling the financial ability of

the Bar to carry out the program approved through the

internal, democratic political process.

Finally, the line suggested in the concurring and dis-

senting opinion below between taxation and other forms

of government-mandated financial support—such as that

involved in this case—is equally unpersuasive. That

opinion suggests that the principles established in

Abood depend on the precise sense in which fees are com-

pulsory: Where the fee-paying requirement is a condition

of pursuing one’s chosen means of earning a livelihood,

special scrutiny is necessary, while, apparently, a gener-

ally deferential standard applies where the financial re-

quirement—taxation—is merely enforced by criminal sanc-

tions. Pet. App. A-46-A-49. Merely to state this propo-

sition is to refute it; plainly, if the issue is comparative

coercion, the level of coercion involved in levying and col-

lecting taxes is greater than the level of coercion involved

in requiring that an individual who has voluntarily chosen

to practice law in California pay the requisite mandatory

fee for doing so.“

Pet. App. A-9. Surely, however, insofar as the Bar is governed by

individuals directly responsible to the state government itself, the

attempt to distinguish the Bar from traditional state entities

funded through taxation becomes all the more ephemeral.

In addition, the case upon which the concurring and dissenting

opinion relies for the proposition that the right to practice law is

a “fundamental” right (as well as, apparently, for the broader

proposition that “the pursuit of one’s livelihood” generally is con-

stitutionally fundamental (Pet. App. A-48-49)) clearly does not

hold that restrictions on the practice of law are “fundamental” in

the sense that those restrictions are subject to particularly strin-

gent jud eial scrutiny. Supreme Court of New Hampshire v. Piper,

470 U.S. 274, 281 (1985) was a case decided under the Privileges

and Immunities Clause, and determined only that in terms of the

purpose of that clause—preserving the interchange of commerce

among the several states—protecting the right to pursue a profes-

sion is “fundamental”. Neither Piper nor any other case of this

In short, there is no principled basis for subjecting to

strict judicial scrutiny legislative determinations that re-

quire or permit the exaction of fees from members of

groups with common interests and responsibilities, while

at the same time permitting the government wide author-

ity to expend tax-generated funds for purposes of direct

or subsidized expression of ideas. And as we now show,

this Court has not in fact sanctioned such a dichotomy.

II. Applying The Abood Standard.

A. Contrary to what one would suppose from a read-

ing of petitioners brief or the opinion below, Abood does

not hold that each expenditure made by an entity through

the use of exacted fees is subject to a separate, tra-

ditional First Amendment strict scrutiny analysis, any

more than the Court has ever held that “a local school

board.. . needs] to demonstrate a compelling state in-

terest every time it spends a taxpayer's money in ways

the taxpayer finds abhorrent,” 431 U.S. at 259 n. 13.“

Court holds that, as a general matter, regulation that impinges upon

an individual's ability to pursue an occuaption is, without more,

subject to strict scrutiny.

17 Indeed, the disagreement between the majority and the dissent

in Abood focussed precisely upon the fact that, as the dissent

pointed out, the majority did not subject either the overall justifi-

cation for union security agreements nor the specific union expendi-

tures financed by exacted fees to traditional First Amendment

strict scrutiny. Compare, 431 U.S. at 222 (“the judgment clearly

made in Hanson and Street is that such interference as exists is

constitutionally justified by the legislative assessment of the im-

portant contribution of the union shop”), with id. at 255 (“the

State should bear the burden of proving that any (exacted) union

dues or fees are needed to serve paramount government inter-

ests”). (Emphasis supplied).

There are two later cases in which this Court has applied the

general First Amendment analysis of Abood. The first, Ellis v.

Railway Clerks, supra, does characterize the First Amendment

interests affected by the exacted payment requirement as “signifi-

cant,” 466 U.S. at 455, but then goes on to hold that where justified

by a governmental interest, even expenditures that “have direct

communicative content and involve the expression of ideas” are

Nor did Abood rule that expenditures on expressive activ-

ity generally, or, on “ expression such as com-

municating with the courts or the legislature, particularly,

must be independently justified. Indeed, any such rule,

would have been difficult to square with the basic holding

of the case, that fees for the purpose of collective bar-

gaining may be exacted; there is simply no difference of

constitutional dimension between being required to con-

“well within the [constitutionally] acceptable range,” id. at 456-57.

Thus, Ellis does not hold that the justifying governmental interest

must be compelling, and does not subject even expenditures to

finance the communication of ideas to a least restrictive alternative

analysis; rather the “germaneness” test of Abood applies. Whether

or not the passing characterization of the First Amendment inter-

est as “significant” is precisely square with Abood’s language or

with the treatment of the same kind of interest in the cases in-

volving government speech financed by taxation, the approach of

Ellis—allowing fairly free reign to government-aided speech— is

consistent with the analysis developed in the text.

Similarly, Chicago Teachers Union v. Hudson, supra, does cite

cases in which infringements on much more substantial freedom of

association and expression interests were subject to strict scrutiny,

but does not indicate that the interest in not being subject to a

government requirement of financial support for expressive ac-

tivity is for all purposes the equivalent of those other interests.

In this regard, Hudson, 475 U.S. at 302-304, cites both Roberts v.

Jaycees, 468 U.S. 609 (1984) and Elrod v. Burns, 427 U.S. 347

(1976). Roberts, of course, did not involve the interest of an

individual in not associating with others at all claimed here but

the interest of a group joined together for expressive purposes to

define its own rules regarding the group's composition. Thus, in

that case the right of nonassociation was a direct adjunct of- and

drew its strength from—an affirmative associational right. And

Elrod involved the rights of association and expression concerning

partisan support of a political candidate. As we explain in the text,

those rights do involve heightened First Amendment concerns, for

reasons of democratic theory that go well beyond the concern with

safe-guarding each individual's freedom of belief. Further, both

Roberts and Elrod involved more direct infringements on associa-

tional interests than the required payment of funds without more.

Hudson did not treat expressly with these important differences

one way or the other, but did characterize the “infringement on

nonunion employees constitutional rights” in the union security

context as “limited.” 475 U.S. at 303 (emphasis added).

tribute over objection to communications with a school

board or other public entity at the bargaining table, and

being required to contribute over objection to communi-

cation on the same subject with other public officials.

Rather, Abood imposed only two limitations upon the

expenditure of exacted fees, both of which apply generally

to government entities expending, or providing for the ex-

penditure of, exacted funds. First, such funds may not be

spent “to contribute to political candidates.” 431 U.S. at

234. And, second, such fees may not be used “to express

political views unrelated to [the ‘cause which justified

bringing the group together’|”. d.

1. The first Abood limitation has ne direct application

here. It is worth noting, nonetheless, in the interest of sus-

taining our basic proposition that Abood states only nar-

row limiting principles applicable to government-assisted

speech generally, that the limitation upon partisan as-

sistance to candidates is one that applies across the board

for reasons that go far beyond protecting an individual's

freedom of conscience."

The First Amendment interest in autonomy in candi-

date support involves a different concern than applies

with respect to any other form of communication. “The

In Abood, of course, the “cause which justified bringing the

group together” was “collective bargaining,” and that is the phrase

that appears in the opinion itself. More generally, however, the

opinion recognized that the use of exacted fees is constitutionally

justified “as long as [used] to promote the cause which justified

bringing the group together.” 431 U.S. at 222-23, quoting Machin-

ists v. Street, 367 U.S. at 778 (Douglas. J., concurring).

In one respect, the limitation upon the contribution of com-

pelled fees to political candidates is a variation on the germaneness

test. A candidate, even one who has taken positions similar to the

group's positions on issues that directly affect the group, cannot

be bound to forward the interests of those who support him, and

will surely be called upon while in office to act upon matters having

nothing to do with that group's interests. Thus, campaign contribu-

tions entail by necessity a substantial spillover effect into issues as

to which the group has no common interest whatever.

constitutional [free speech] guarantee has its fullest and

most urgent application precisely to the conduct of cam-

paigns for political office.” Monitor Patriot Co. v.

Roy, 401 U.S. 265, 272 (1971). The reason is that the

election process is the base for our entire democratic

system:

[Nothing can finally te the central

tice to the electoral process, nor can it be denied that

Thus, the fundamental principle at work is that

granting the government any authority to encourage

the involuntary aggregation of political campaign sup-

port tends to distort, in at least a symbolic way, the basic

precept of free majority consent from which the re-

mainder of democratic theory derives. This heightened

sensitivity to any official governmental! intervention in

the balance of partisan political power is the reason, it

appears, why if a Democratic school board, motivated

by party affiliation, ordered the removal of all books writ-

ten by or in favor of Republicans, few would doubt that

the order violated the constitutional rights of the students

ad ey 4 * Board of Education v. Pico,

S. at 1; see also id., at p. 907 (Rehnquist, J.,

dissenting ) 1") on Gentilly cath... Oh. on

treme example! lt is also the reason why the other-

wise diverse recent commentary on government speech

issues is unanimous in the conclusion that direct, unam-

biguous partisan candidate support is the one area the

First Amendment definitely makes off limits for the gov-

ernment. Schiffrin, Government Speech, 27 UCLA I.

Rev. at 613; M. Yudof, When Government Speaks,

170-173; T. Emerson, The System of Freedom of r-

pression (1970) 699 The government would not be

empowered to engage in direct support of a particular

candidate for office. It is not the function of government

to get itself reelected.”).

expended for the benefit of one political party simply

because that party has control of the government.”

Branti v. Finkel, 445 U.S. 507, 517 n.12 (1980).”

2. The second limitation imposed by Abood upon ex

penditures from compelled fees generally is simply a

“germaneness” requirement; viz., a requirement that the

distinction between the interest in not financing partisan political

campaigns and the interest in not financing other kinds of speech

on public matters (including issue referenda).

In enacting the ban upon the use of corporate and union treasury

funds for federal campaign contributions and expenditures, Con-

gress was concerned in part with eliminating a “threat to the po-

litical marketplace” by insuring that “ ‘the money collected is that

intended by those who contribute to be used for political purposes

and not money diverted from another source Federal Election

Commission vt. Massachusetts Citizens for Life, 107 S. Ct. at G28,

quoting Pipefitters vo. United States. 407 U.S. 385, 423-24 (1972)

and United Siates vr. Automobile Workers, 352 U.S. 567, 582 (1957)

In the context of candidate campaign contributions, this Court

has recoenized the legitimacy of that concern, and of the related

concern in “prevent/ing! an organization from using an individ-

vals monew for perpeses that the individual may net support.”

Federal Election Commienon vc Massachusetts Citizens for Life,

lors Ct at 629: FedPral Election Commission c. National Right

te Work Committee. 459 U.S. 197, 208 | 1982)

Where. howewer. the question ie the validity of a broader pro-

scription upen corperate speech om public issues generally, this

Court wlewed the interest in protecting shareholders from un-

de<ired aseoiation with a public iesue commanication the individual

does pot wish to supmert as insubstantial Firet Netienal Benak rv.

Relletti. 495 US. at 7% 234: ove olee i at 812-822 (White, J.

dissenting

dues are used [by a union] to promote or

trol, to repeal or increase the taxes

on cosmetics [or] to promote or oppose the admission

of Red China into the United Nations. . then the

group compels an individual to support with his

money causes beyond what gave rise to the need for

group action. [Machinists v. Street, 367 U.S. at 777

(concurring opinion) }.

As these examples demonstrate, the “germaneness’ stand-

ard is neither toothless, nor does it interject the courts

into fine judgments about whether this or that expendi-

ture with exacted fees, is essential to, or necessary for

achieving the legislative purpose.“ And in most instances

it is the standard that the legislature itself has followed.“

21 Schneider v. Colegio de Abogados de Puerto Rico, 682 F. Supp.

674, 679-81 (D. P.R. 1988), illustrates the kind of expenditures

that are beyond the bar’s legitimate concern, however broadly that

concern is articulated, because those expenditures are simply

unrelated to the common legal profession that binds the “latent

group” brought together as the state bar. There the Bar Associa-

tion expended compelled fees upon activities relating to Puerto

Rican nationalism, the Samoza regime in Nicaragua, the Russian

invasion of Afghanistan, the Olympic Games, Haitian democracy,

condemnation of the draft as a “blood tax”, and activities of the

Puerto Rican Socialist Party. Id. at 679-80. These activities relate

to neither the common interest of lawyers in a regulated profession,

nor the common expertise of lawyers in the drafting and imple-

mentation of laws.

As this example illustrates, where the germaneness standard is

not met, government-compelled support for expression on issues of

public importance does come more closely to resemble recognized

instances of infringement of individual freedom of mind, in that

the only available government justification then becomes the i

legitimate one of compelling support of ideas in which one dis-

believes. At the same time, the government justification for ex-

acting fees from a limited group, and not from the population as

a whole, becomes unpersuasive, since there is no sense in which the

limited group bears some special relationship to the expenditure in

question.

22 This case is a good illustration of this general point: The

California Supreme Court determined, on statutory grounds, that

certain expressive activities were, as a matter of leg ive intent,

beyond the authority of the State Bar. Consequently, there was no

The germaneness standard applies as well to the com-

municative activities of traditional governmental entities.

A government, federal, state or local, is formed to promote

the common interests of its citizens in all areas of life.

Its range of discourse is necessarily equally broad and

can be expected to encompass many “political or ideolog-

ical” issues. Nonetheless, as we have seen (pp. 15-19 su-

pra), even geographically-based governmental entities vary

widely in their physical and substantive scope. And,

where a governmental entity expends funds on matters

plainly beyond the collective interests the entity was cre-

ated to serve, the same heightened First Amendment con-

cern exists, and the same lack of legislative justification

comes to the fore.“

B. In Abood, the governmental interest fostered by

Congress was the maintenance of labor-management peace

through union collective bargaining. Here the state in-

terests advanced by the Legislature are the regulation of

attorneys and the improvement and advancement of

jurisprudence and the administration of justice. Those

need to examine as a constitutional matter whether those activities

were “germane” to a legitimate legislative purpose relating to some

common interest or responsibility of the lawyers in California.

This “ultra vires” approach is likely, where governmental en-

tities are involved, to catch most instances in which the connection

between the “cause which justified bringing the group together”

and the expressive activities engaged in by the resulting formal

organization is tenuous. And, as the case law indicates, where the

exacted fees are spent by private organizations, whose overall orga-

nization purposes and activities are beyond governmental control,

the connection between the group’s activities and exacted fees likely

to come up as a constitutional issue is often dealt with in terms of

a statutory limitation. See pp. 5-6 n. I. supra.

28 Thus, for example, if a government representing a limited

geographic entity and a defined substantive jurisdiction, such as

a school board, undertook extensive advocacy of ideological posi-

tions respecting foreign policy, it would appear that the affected

taxpayers have a constitutional complaint as valid as that of the

members of the integrated bar in Schneider v. Colegio de Abogados

de Puerto Rico, supra.

functions constitute the State Bar’s raison d’etre and form

the framework against which the petitioners’ constitu-

tional challenge must be judged.

The petitioners’ complaint in this case relates not to

the regulatory functions of the Bar, but to its activities

regarding the advancement of jurisprudence. It is true,

of course, that “advancement of jurisprudence” is a broad

concept, and that, as a result of the California Supreme

Court’s construction of the Bar’s authority in this re-

gard, exacted fees may be spent upon commentary on,

and participation in, the legislative and judicial creation

and interpretation of the law generally. That is an en-

tirely sound result.

Members of the bar share not only a common occupa-

tional interest, involving such matters as fees, legal ethics,

client relations, and so on but, in addition, a common

_ expertise—and a common professional obligation—con-

cerning certain matters which are, inherently, matters

of public interest.“ Consequently, the state legislature has

determined that lawyers as a group have not only a

common self-interest, but also a common responsibility to

see that their collective expertise is available to the public

through a system that provides for the reasoned review

** This reasoning may apply in the union context as well. For

example the represented employees may be members of a profession,

with policy-related expertise, such as teachers, engineers, or nurses:

indeed, the unions that represent such employees for collective bar-

gaining purposes often began as professional groups. There is no

inherent constitutional limitation that precludes the legislature

from seeking to draw upon that common expertise. The legislature

is free also to choose instead to confine the area of activity financed

with exacted fees to those resolving around the employment rela-

tionship. See Minnesota State Board v. Knight, 485 U.S. 271

(1988) (state scheme for involving community college instructors

in policy-related questions through the union chosen for collective

bargaining purposes); Cumero v. Public Employment Relations

Board, supra (teachers’ union is entitled under state law to con-

sult on policy matters, but only with the local school board, not with

the legislature).

of law-related questions by as many of the state’s lawyers,

in the aggregate, as can be persuaded to participate.”

Were this system funded through general taxation, it

would seem plain, on the principles explored in Part I,

supra, that there could be no First Amendment complaint

on the part of either taxpayers in general, or lawyers in

particular. Thus, if there is any legitimate First Amend-

ment interest implicated here, it would have to inhere in

a total lack of “fit”’—of germaneness—between the spe-

cial characteristics of the subgroup required to provide

the funding and the subject matter of the funding so

that compelled support of ideas becomes the only recog-

nizable governmental purpose behind the exaction. But as

long as the expenditures do remain focused upon the

cause which justified bringing the group together—in this

instance, on the expertise of lawyers on the lawmaking and

law interpretation process—the sense in which the fund-

ing requirement represents a compelled affirmation of be-

lief is as attenuated and as insubstantial in constitutional

terms as in the traditional taxation context.

CONCLUSION

For the reasons stated above, the judgment of the Cali-

fornia Supreme Court should be affirmed.

25 This judgment is one which underlies not only the California

State Bar, but the integrated bar concept generally. See, e. g.,

Lathrop v. Donohue, supra, 367 U.S. at 862 (Harlan, J., concur-

ring), quoting the Wisconsin's Supreme Court's assessment of the

purposes justifying the integrated bar:

[T]he public welfare will be promoted by securing and pub-

licizing the composite judgment of the members of the bar of

the state on measures directly affecting the administration of

justice and the practice of law. The general public and the

legislature are entitled to know how the profession as a whole

stands on such type of proposed legislation.

Respectfully submitted,