In Oklahoma, the liberal Oklahoma Bar Association has a substantial role in state judicial selection. And the members of the Oklahoma Supreme Court who owe their appointments, in part, to the Oklahoma Bar Association in turn have the authority to determine if the bar association can hike the mandatory dues state law requires all practicing attorneys to pay.

The ethical concerns raised by that incestuous relationship are among the reasons officials in Oklahoma and elsewhere have argued that membership in state bar associations should not be mandatory and that the role of the associations should be made more akin to that of other special-interest groups.

“The bar, it’s left of center,” said Skylar Croy, associate counsel with the Wisconsin Institute for Law & Liberty. “There’s no other way to say it. If you just look at the average lawyer, the average lawyer does not have the same political feelings that the average member of the public does. I get concerned when the bar gets an outsized influence on some of this stuff because I think it actually affects the outcomes of cases and makes states that are quite red and traditionally conservative have bluer judiciaries or judiciaries that are more liberal.”

The Wisconsin Institute for Law & Liberty is representing an attorney who opposes mandatory bar membership as a condition of employment in that state. In August, a federal judge ruled that the challenge may proceed, denying the Wisconsin State Bar’s motion to dismiss the lawsuit.

In 2018, the U.S. Supreme Court ruled in Janus v. American Federation of State, County, and Municipal Employees, Council 31 that states and public-sector unions cannot “extract agency fees from nonconsenting employees,” declaring that workers’ First Amendment right to free speech is “violated when money is taken from nonconsenting employees for a public-sector union.”

Since the U.S. Supreme Court’s Janus decision, conservative attorneys in several states have filed lawsuits challenging laws that make membership in a state bar association a conditional of licensure. In many states, bar associations take an active role in political affairs, including lobbying state lawmakers on various issues. In some cases, bar associations advocate for liberal political policies, including in areas far afield from the legal profession. In Wisconsin, Croy said the bar has supported so-called “diversity, equity, and inclusion” programs, for example.

“If a public teachers’ union can’t force people to pay dues, and if that’s a compelled speech issue that violates the First Amendment, it seems odd that the bar could do exactly the same thing,” Croy said.

While bar membership is mandatory in 31 states, including Oklahoma, the remaining states use different models that do not raise similar concerns about violating attorneys’ free-speech rights.

Unlike Wisconsin, however, the Oklahoma Bar Association is not only involved in political issues but also has significant power in judicial selection.

Where judges in Wisconsin are chosen through elections, in Oklahoma judicial nominees are selected by the secretive Judicial Nominating Commission (JNC). The JNC selects up to three nominees for court positions, including the Oklahoma Supreme Court, and the governor then makes an appointment from that list.

The JNC’s membership is substantially determined by the Oklahoma Bar Association, and public records show that 22 of the 32 individuals elected to the JNC by the Oklahoma Bar Association from 2000 to today (nearly 69 percent) have directed most of their campaign donations to Democrats, including to presidential candidates like Barack Obama and Hillary Clinton. Only one bar appointee to the JNC since 2000 overwhelmingly donated to Republican candidates.

The JNC’s structure tilts Oklahoma’s judicial nominating process in favor of more liberal judges.

And the justices appointed to the Oklahoma Supreme Court, in turn, have the final say on whether the Oklahoma Bar Association can increase the mandatory dues imposed on all practicing attorneys in the state.

At the end of September, the Oklahoma Supreme Court signed off on a double-digit percentage increase in mandatory bar dues following a request from the Oklahoma Bar Association. Only two of the nine justices dissented.

While mandatory bar membership remains a problem in Wisconsin, Croy noted that Oklahoma’s system shows things could be worse.

“In Wisconsin, the bar is a very political organization,” Croy said. “It’s not literally appointing judges—thank God.”