A. Voting With Their Feet.
The Michigan State Bar Experience With Dues Deductions
In 1991, the first year in which the Michigan State Bar allowed dissenting members to deduct dues pursuant to the Keller decision, 24 percent of the Bar's members exercised this right. In 1992, a year in which the State Bar conducted a major campaign to persuade members not to exercise their right to deduct dues, 22 percent of members still took the deduction. In 1993, the percentage of the state's attorneys exercising their option to deduct dues leaped to 48 percent. 44 In other words, by 1993, nearly half of Michigan's lawyers disassociated themselves from positions taken by the State Bar.
One might speculate as to the reasons for the increase in the number of attorneys refusing to support the Bar's lobbying activities, and indeed Bar leaders have done so. Writing in the Michigan Bar Journal, Executive Director Michael Franck argued that while "a significant number of members object generally to our lobbying and other ideological activities . . ., [t]he available data also suggests, however, that a significant rationale for exercising the deduction/diversion option is simply a desire to reduce the amount which must be paid to retain active membership in the State Bar of Michigan."45 Franck has also deplored the practice adopted by some employers of limiting their payments of Bar dues on behalf of their attorney employees to the amount for which mandatory dues could be collected under Keller, leaving it to the individual attorney to pay the optional portion of the dues from his or her own pocket. Franck has attacked such individuals and employers for converting First Amendment rights into "a business opportunity."46 While Franck's position almost certainly applies to some attorneys claiming the dues deduction, the complaint ultimately seems misguided.
First, there is reason to believe that as members learned more about the State Bar's lobbying and ideological activity, they became more likely to request a dues deduction. After the Bar's campaign against deductions in 1992, the percentage of attorneys requesting dues deductions doubled in 1993. As State Bar Vice-President Jon Muth stated, "the more information we gave, the higher the rate of deductions."47
Furthermore, the percentage of lawyers deducting dues was not the only sign of wide-spread lawyer dissatisfaction with State Bar legislative activities. For example, a non-scientific, mail-in poll conducted by Michigan Lawyers Weekly found that 69 percent of those responding favored a voluntary bar over the mandatory State Bar. The primary reason for this preference was not economic, but opposition to the Bar's ideological advocacy.
Lawyers responding to the survey attacked the State Bar as, "shills for plaintiffs," "an-other inflated bureaucracy," and an "old buddies" network. Others wrote that the Bar "does not represent the consensus of its members," that it is "dominated by the Negligence Section and other special interests," and that it "does [not] strive to present a balanced recitation of facts or law to the issues." Complained one member, "I am embarrassed at the positions the State Bar takes."48
While one should avoid placing too much emphasis on a relatively small and self-selected sample, the mail poll supports the conclusion that the steady increase in dues deductions arose out of significant dissatisfaction with the State Bar's positions, not a desire to save the $15 portion of dues supposedly earmarked to lobbying and political activity.
Franck's emphasis on the refusal of some employers to pay the full dues for their attorneys seems equally misplaced. One such employer is the Michigan Attorney General's Office. As Christopher Dewitt, a spokesperson for the Attorney General's Office, says, "If our attorneys want to pay the legislative portion, that's their choice."49 The fact that those lawyers were unwilling to pay even the deductible portion of the dues—an amount which never exceeded $25—indicates that those lawyers did not support the Bar's ideological activities.
Indeed, just as Franck assumed that some members choose to deduct dues for economic, rather than political, reasons, we may safely assume that many attorneys did not deduct dues even though they opposed the Bar's legislative positions. Some of these attorneys paid their full dues from a sense of obligation-after all, voluntary bars in other states routinely claim membership of 70 to 90 percent of the state's lawyers, many of whom stay in the association despite disagreement with the bar's legislative stands.
Certainly, many Michigan lawyers paid their bar dues without paying attention to the deduction option, especially lawyers whose bills were routinely paid by a secretary, book-keeper, or spouse who may not have discussed with the attorney whether or not to take the deduction. Finally, there were undoubtedly some lawyers still unaware of the deduction option available pursuant to Keller.
From a Constitutional standpoint, these reasons for paying the full dues amount despite opposition to particular ideological activity may not create a problem. However, the argument that the high percentage of dues-deducting members was a product of economic incentive rather than true opposition to State Bar ideological positions must be tempered with the possibility that opposition to the Bar's activities actually exceeded 50% in 1993.
In any event, by the spring of 1993 it was clear that the Michigan State Bar was careening towards crisis. Half of the bar's members were "voting," through the dues deduction option, not to support the bar's activities. Even if many members were deducting dues for economic rather than ideological reasons, the number was an embarrassment to the bar and bar leaders, for it indicated that members did not feel that the bar's activities were worthy of support at the existing dues rate. Changes had to be made, lest the Bar find itself with a majority of its members on record as disassociating themselves from the official legislative positions of the Bar.
After considering the Bar's options, the Board of Commissioners decided effectively to abandon most of the lobbying field by adopting an approach first pioneered by Florida's compulsory bar association.
B The "Florida" Solution
In 1984, the Florida Bar Association, a compulsory bar, took a public position against a state ballot initiative to limit state spending. This prompted a lawsuit challenging the Bar's use of compulsory dues for such ideological activity. Taking the position later adopted by the U.S. Supreme Court in Keller, the U.S. Court of Appeals for the Fifth Circuit held that while the bar could lobby for any purpose, it could not use the involuntary dues of dissenting members to support ideological activity unrelated to the administration of justice.50
Further litigation then arose over the procedure adopted by the Florida Bar to comply with the Court's ruling, with dissenting members claiming the right to an advance dues deduction, and the Bar arguing that it was only required to calculate and rebate dues spent on ideological activity after the fact.51 Nine months after deciding Keller, the U.S. Supreme Court granted certiorari to hear the case.
However, before the case was heard, the Florida Supreme Court issued an order limiting the Florida Bar's lobbying activities to five areas: 1) questions concerning the regulation and discipline of attorneys; 2) matters relating to the improvement of the functioning of the courts, judicial efficacy, and efficiency; 3) increasing the availability of legal services to society; 4) regulation of attorneys' client trust fund accounts, and 5) the education, ethics, competence, integrity and regulation of the legal profession.52 As a result of this order by the Florida Supreme Court, the Florida Bar argued that it could not legally engage in any Keller prohibited activities. Therefore, it followed that no mechanism for advance dues deductions was necessary as all its activities could be lawfully supported by compulsory dues. The U.S. Supreme Court then dismissed the writ of certiorari as "improvidently granted."53
In March of 1993, the Michigan State Bar Board of Commissioners, following the Florida example, recommended that the Bar discontinue all so-called Keller activities.54 The Bar would no longer engage in ideological activity that would require a Keller dues deduction option. At two stormy meetings of the Bar's Representative Assembly, in April and June, 1993, the proposals were debated.
Those opposed to adopting the "Florida solution" generally argued that the Bar's involvement in a broader legislative agenda was important to the public and to lawyers. Former Michigan State Bar President Donald Reisig argued, "Why—when we as a profession are threatened—would we get out of the legislative business?" Reisig went on to argue that if other members chose to exercise their Keller deduction, "I'll gladly carry my fellow lawyers' load."
Against these arguments, those favoring the "Florida solution"—including most of the Bar's leadership—argued that the Bar could not continue with just 52% of its members supporting its legislative activities. The only alternative to the Florida solution, they argued, was a voluntary bar. A voluntary bar, one argued, "would really eviscerate the state bar." Said another, "at stake is the continued existence of this organization."55
These hysterical assertions seem laughable in light of the existence of vibrant, active voluntary bars in 19 states, including the neighboring states of Minnesota, Illinois, Indiana, and Ohio. Arguing that few or no lawyers would remain members of the Michigan State Bar absent state compulsion, the speakers seemed unaware of the damning indictment this argument made of their own leadership, of the benefits of membership in the State Bar, and of the professional commitment of their fellow lawyers.
Reisig, and others opposed to adopting the "Florida" solution, never seriously considered the obvious alternative—a voluntary bar. From the start, the most vocal supporters of continued Keller lobbying assumed, as did their opponents, that the compulsory bar must continue.
In the end, "an overwhelming majority" of the Assembly approved the proposal to abandon Keller lobbying and to seek an order from the Michigan Supreme Court essentially identical to that governing the Florida Bar, specifically prohibiting the Michigan State Bar from engaging in Keller prohibited lobbying. On July 30, 1993, the Michigan Supreme Court issued the requested order, and the Michigan State Bar embarked on a new era of limited legislative activity and, it hoped, peace with its dissenting members.
44 Franck, supra, n. 6 at 277. The State Bar actually allowed members either to deduct the amount spent for impermissible lobbying from their dues or to divert that amount to the Michigan State Bar Foundation, a non-profit foundation started by the bar some years previous. In 1991, four percent of the members chose the diversion option. Two percent chose to divert dues in 1992 and seven percent in 1993. The remainder of those who objected to the Bar's lobbying activites simply deducted the amount from their total dues. In 1993, the amount of the Keller deduction was $15, or 7.5 percent of total Bar dues. Id.
45Id. at 276.
47Marcia McBrien, Representative Assembly Puts End to Keller Lobbying Activity by State Bar, Mich LW, June 28, 1993, at 3.
48McBrien, Poll Respondents, supra n. l, at 1.
49 Marcia McBrien, Bar Commissioners to Ask for End to Keller Lobbying, Mich LW, March 8, 1993.
50 Gibson v. The Florida Bar, 798 F2d 1564 (5th Cir. 1986).
51 Gibson v. The Florida Bar, 906 F2d 624 (5th Cir. 1990).
52 The Florida Bar re Schwarz, 552 SW2d 1094, 1095 (Fla. 1989).
53 Gibson v. The Florida Bar, 112 SCt 633 (1991).
54 McBrien, supra n. 35.
55 Marcia McBrien, supra n. 33 (quoting State Bar Vice-President Jon Muth and President-Elect Michael Dettmer, respectively).