As noted in this post, yesterday's U.S. Supreme Court decision on the unionization of home health care workers, Harris v. Quinn, was watched closely by mandatory state bars, given the potential for the decision to unsettle the reasoning of Keller v. State Bar of California, the case defining what mandatory state bars are allowed to do with mandatory dues. The decision expressly addressed that concern:
Licensed attorneys are subject to detailed ethics rules, and the bar rule requiring the payment of dues was part of this regulatory scheme. The portion of the rule that we upheld served the “state’s interest in regulating the legal profession and improving the quality of legal services.” Ibid. States also 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. Thus, our decision in this case is wholly consistent with our holding in Keller.
But, what, then, to make of the pronouncement in Harris, without citation, of a "bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support"? Does such a "bedrock principle" have implications for the public advocacy that mandatory state bars across the country have been carrying out under the imprimatur of Keller?
At Volokh Conspiracy, conservative legal scholar Eugene Volokh questions both the Harris reasoning and the validity of the "bedrock principle":
[A] unanimous Court in Keller v. State Bar (1990), defended the government’s ability to express its views with tax money by saying, “Government officials are expected as a part of the democratic process to represent and to espouse the views of a majority of their constituents. With countless advocates outside of the government seeking to influence its policy, it would be ironic if those charged with making governmental decisions were not free to speak for themselves in the process. If every citizen were to have a right to insist that no one paid by public funds express a view with which he disagreed, debate over issues of great concern to the public would be limited to those in the private sector, and the process of government as we know it radically transformed.”
... If there indeed were a “bedrock principle that, except perhaps in the rarest of circumstances, no person … may be compelled to subsidize speech by a third party that he or she does not wish to support,” then “the government is representative of the people” wouldn’t be an adequate argument for an exception when the “third party” is the government. That the government can indeed compel us to subsidize speech by it (and by its employees, contractors, and grant recipients) that we don’t wish to support, it must be because there really is no First Amendment problems with compelling any funding of third-party speech — not that there’s a bedrock principle against such compelled funding, and compelled funding of government speech just gets a bye from that principle. It’s true that government officials should be able to espouse the views of a majority of their constituents; but the permissibility of such government speech simply reflects the fact that taxpayers’ First Amendment rights aren’t really burdened by the government’s using their taxes for speech that the taxpayers disagree with.
