Keller v. State Bar of California Page 16

Keller v. State Bar of California general information

Media for Keller v. State Bar of California

Audio Transcription for Oral Argument - February 27, 1990 in Keller v. State Bar of California

Antonin Scalia:

I'm sort of asking you that.

Do you think it meets the constitutional requirements of this Court?

Seth M. Hufstedler:

--I would think you'd have to know what it was about.

If you established a... an agency which was to campaign on any issue that came along--

Antonin Scalia:

Yeah.

Not partisan campaigns but... but on any... on any issue--

Seth M. Hufstedler:

--Well, let me broaden--

Antonin Scalia:

--whether it's armor-piercing bullets or capital punishment or abortion, or whatnot, tax funds are going to fund this agency which intervenes in the... in the political process by... by lobbying with legislators and by campaigning with the public.

Seth M. Hufstedler:

--Well, let me... let me broaden the question just a bit and then narrow it back to your question.

If the state should come up with an agency which said on every issue which comes up before the public we want you to examine it, examine what the issues are on both sides, and publish what those issues and analyses are so the voters can view them, I would say, yes, no doubt about it at all.

Now, if the State Bar said... or, if the state said, we're going to pass a statute and you're going to go out and pick one side of every issue and then go out and campaign only for that side, I would have serious doubts that that was a legitimate public issue and would pass original constitutional muster for a legitimate government purpose.

William H. Rehnquist:

Yet the governor of California may go from place to place in the state and take positions on just one side of issues and certainly no one can challenge the fact that the state may be paying for his trips.

Seth M. Hufstedler:

Absolutely certain that elected officials can do so and can endorse any issue they wish to do so, and that's paid for by taxes and you can't demit, you can't refuse to pay taxes or get part of it back because somebody did.

Anthony M. Kennedy:

In Justice Scalia's hypothetical with this do-good agency that can lobby on any issue, could only the lawyers be compelled to pay dues to that to support its activities?

Seth M. Hufstedler:

Well, I would suppose it would have to have a fairly close relationship to lawyers.

But I have no doubt that without being confiscatory the state can impose a tax upon lawyers for the right to practice law and then use those funds however it sees fit for any legitimate purpose.

I think--

Byron R. White:

Well, if they couldn't, though, it wouldn't be a speech or association issue, would it?

Seth M. Hufstedler:

--No, it wouldn't be at all.

It wouldn't be at all.

Byron R. White:

It would be something else.

Seth M. Hufstedler:

I think that's right.

John Paul Stevens:

When I asked you about the lobbying for capital punishment you said there were two answers, one was the state agency answer and you never told us your second.

Seth M. Hufstedler:

You're quite right and I do want to tell you the state answer, and I appreciate the opportunity to do so.

Under the Abood, the labor union-type cases, which is the basic authority that's relied on here by the petitioners, it seems to us that you reach the same result.

And let me see if I can't say it in four or five sentences and then to the extent we need to discuss it further we can.

But the Abood and their... and its progeny are quite clear, that the first thing you look at is what is the government interest that justifies compelling membership in the labor union.

And in the labor union cases it's collective bargaining and labor peace, and that's clear.

And the test is not a compelling interest test but quite clearly is the activity germane then to collective bargaining.

And if it is germane, the compelled duties may be used for it.