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  5. Board Issue Paper – Political Activities of The Florida Bar

Board Issue Paper: Political Activities of The Florida Bar

On This Page
I. Introduction
II. Florida Bar Policy
III. Judicial History
IV. The Legislative Program
V. Conclusion

I. Introduction

Political and ideological activities of The Florida Bar are primarily influenced by the Rules Regulating The Florida Bar as promulgated by the Supreme Court of Florida, by operational policies of The Florida Bar Board of Governors, and by court decisions that have explored the First Amendment rights of individual members of unified state bars or other mandatory membership organizations.

Within those confines, The Florida Bar works to advise and assist the courts and all other branches of government on a variety of law-related matters. Through its officers, volunteer sections, professional staff and retained counsel, The Florida Bar presents a visible and respected presence within the political arena at both the state and federal levels.

II. Florida Bar Policy

The Rules Regulating The Florida Bar authorize the Board of Governors to establish, maintain and supervise “a program for providing information and advice to the courts and all other branches of government concerning current law and proposed or contemplated changes in the law.” (RRTFB, 2-3.2(d)(4))

Bylaws to the Rules Regulating The Florida Bar specify that official legislative positions are effected by vote of the board, by the executive committee or by the singular act of the president. (RRTFB 2-9.3(a)) Standing Policies of the Board of Governors (the 900 Series) provide greater detail on this process and other procedural aspects of legislative and political activities of the Bar.

Proposed legislative action by The Florida Bar is usually first considered by the Legislation Committee, a nine-member group chaired by an incumbent board member and composed of at least five people who were board members at the time of their appointment. The committee generally advises the leadership on all legislative or political matters affecting the Bar, its committees and its sections.

The Florida Bar may advocate only legislative or political positions that are true to its chartered purposes “to improve the administration of justice, and to advance the science of jurisprudence.” (RRTFB 1-2) Case law has further refined those general terms and has more specifically shaped the scope of the Bar’s legislative authority.

Consideration of possible legislative or political activity by all of the Bar’s various reviewing authorities involves a two-step analysis. Any potential position of The Florida Bar or Bar committee must undergo a threshold analysis to verify whether the matter is within the scope and purposes of the Bar, followed by a second determination of the merits of the issue as proposed. For the Board of Governors to formalize a proposal as an official Bar position, a two-thirds margin on both these votes is required of those governors present at a regular meeting of the board.

The role of the Executive Committee in such matters is defined by board policy acknowledging that certain political issues can arise quickly and can require action between meetings of the Board of Governors. A majority of the Executive Committee members acting on a matter must initially confirm that the requested action could not reasonably have been submitted to the board, or that there has been a significant material change in circumstances since the board’s last meeting, to necessitate Executive Committee action on behalf of the Bar.

For the Executive Committee to formalize a proposal as an official Bar position, two-thirds of the committee must vote that the issue is within the scope and purposes of the Bar. Any subsequent action on the merits of the measure similarly requires a two-thirds vote.

During a legislative session or other political emergency when it is not feasible to convene the Executive Committee, the president may act upon proposed legislation or other pending issues. Board policies state that such emergency action should be in consultation with the president-elect and chair of the Legislation Committee, if possible.

Once adopted, legislative positions of the Bar are published in The Florida Bar News for official notice to every member. Within 45 days of the date of publication, any Bar member may file a written objection to a specific legislative position. Upon receipt of a timely objection, dues money allocated to the advocacy of any contested issue is immediately escrowed for possible rebate. The Board of Governors has an additional 45 days to decide whether to authorize a pro rata refund to the objecting member, or to refer the matter to arbitration.

Legislative positions of Bar sections evolve via a similar procedure, in that they usually are first considered by the Legislation Committee and then by the board. To accommodate Bar sections with active political agendas, board policies provide for an expedited review of section submissions upon request. Procedures reflect a “notice and estoppel” type philosophy, which acknowledges a section’s basic authority to lobby a matter unless prohibited by the Bar within specific timelines, or affected by court action.

The Bar may prohibit a section from advocating a particular legislative or political position only if at least one of the following criteria is met: (1) The issue is not within a section’s subject matter jurisdiction as reflected in its bylaws; (2) the issue is either beyond the scope of The Florida Bar to advocate, or is within the Bar’s scope but is inconsistent with an existing Bar position; or (3) the issue presents the potential of deep philosophical or emotional division among a substantial segment of the Bar’s membership.

Legislative positions advocated in the name of The Florida Bar and underwritten by mandatory dues are distinct from those advanced and supported by volunteer section funds. Any presentation of a Bar section’s position to governmental officials or others is required by Florida Bar policy to be clearly identified as a section position – and not a matter advocated by The Florida Bar – unless the board votes to make the issue a Bar position as well.

III. Judicial History

In re Florida Bar Board of Governors’ Action, 217 So.2d 323 (Fla. 1969): Political activity by the Board of Governors on behalf of The Florida Bar was first challenged in the Supreme Court of Florida in 1969. Although the court summarily denied a petition for review of the Bar’s advocacy of a proposed revision of the state constitution – and a membership referendum on the measure – Justice Hopping issued a special concurrence. After reciting the history of Florida’s unified bar, Justice Hopping noted as to “political” advocacy: “The test as to whether or not The Florida Bar should engage in a particular activity is not whether the activity is ‘political’ in nature or directly connected with the administration of justice. The true test is whether the matter is of great public importance, and whether lawyers, because of their training and experience, are especially fitted to evaluate the same. If a matter vitally affects the public, and lawyers are peculiarly fitted to evaluate it, it is not only the right but the duty of the Bar as a professional organization to make such evaluation and advise the public of its conclusions.”

The Florida Bar, 439 So.2d 213 (Fla. 1983): The Florida Bar’s “political activities” were again called into question in a 1983 proceeding wherein 25 members petitioned for a Florida Supreme Court amendment of Bar rules, to read: “The Board of Governors shall not engage in any political activity on behalf of The Florida Bar nor expend money or employ personnel for such purpose.” After reviewing the Bar’s history of advocacy among the various branches of state and federal government, the court held that The Florida Bar’s political activities – particularly as limited by operational policies of its governing board – were germane to compelling state interests. The petition was denied.

Gibson v. The Florida Bar, 798 F.2d 1564 (11th Cir. 1986): In Gibson, a member challenged The Florida Bar’s opposition to a state constitutional proposition. Gibson argued that his First Amendment rights of free speech and association were violated by such use of his compulsory dues to advocate political and ideological positions. The court held that: (1) The Bar could use compulsory dues to finance its lobbying efforts only to the extent that its legislative positions were germane to the Bar’s stated purposes; and (2) the Bar had the burden of proving that its lobbying expenditures were constitutionally justified, by showing that its past positions were sufficiently related to the Bar’s purpose of improving the administration of justice. A footnote indicated that the difficult task of discerning proper lobbying positions could be avoided by either of two methods: a voluntary program allowing lawyers to contribute to the legislative program as they wished; or a refund procedure allowing dissenting lawyers to object to a Bar position and to then receive that portion of their dues allotted to lobbying.

The Florida Bar re Schwarz, 526 So.2d 56 (Fla. 1988): In Schwarz I, a member sought appointment of an ad hoc committee to study the legality, propriety, scope and procedure through which the Supreme Court of Florida should exercise its political power via delegation to its “official arm,” The Florida Bar. The court declined to appoint a special committee but referred the matter to the Judicial Council of Florida for comment.

Judicial Council of Florida, Special Report to the Florida Supreme Court: Legislative Activities of The Florida Bar (December 1988): In response to Schwarz I, the Judicial Council of Florida recommended that the following subject areas be recognized as clearly justifying legislative activities by the Bar: (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 accounts; and (5) the education, ethics, competence, integrity and regulation, as a body, of the legal profession. The Judicial Council recommended that, when a matter appears to fall outside the five specifically identified areas, the following criteria be used to determine whether the Bar could become actively involved in its advocacy: (1) that the issue be recognized as being of great public interest; (2) that lawyers are especially suited by their training and experience to evaluate and explain the issue; and (3) the subject matter affects the rights of those likely to come into contact with the judicial system.

The Florida Bar Re. Amend. to Rule 2-9.3, 526 So.2d 688 (Fla. 1988): In view of the developing law in this area, the Bar sought amendments to its rules to set forth a procedure and potential remedy for members who would question the propriety of the use of their Bar dues to support legislative positions. The procedures, as adopted then, remain the heart of the Bar’s current rule on member dissent and dues rebates. The court’s opinion adopting the rule included this additional observation: “Although the pecuniary recovery may be limited, members of the Bar should still be able to bring injunctive actions seeking to prevent unauthorized Bar activities and expenditures.”

The Florida Bar re Schwarz, 552 So.2d 1094 (Fla. 1989), cert. denied 498 U.S. 951, (1990): In Schwarz II the recommendations of the Judicial Council requested after Schwarz I were approved by the Supreme Court of Florida for determining the scope of permissible lobbying activities of The Florida Bar. The court added: “In any event, we also wish to make clear that any member of The Florida Bar in good standing may question the propriety of any legislative position by the Board of Governors by filing a timely petition with this Court.” The court suggested two refinements of Rule 2-9.3, regarding burden of proof and the confidentiality of objecting Bar members’ names. Both were later codified.

Keller v. State Bar of California, 496 U.S. 1 (1990): The most definitive U.S. Supreme Court pronouncement in this area came after members of the California State Bar challenged their bar’s use of mandatory dues to finance a variety of political activities. In extending a labor union analogy to unified bars, the high court ruled that a compulsory state bar association may constitutionally fund with mandatory dues only those political or ideological activities “germane” to its purpose: namely, “regulating the legal profession or ‘improving the quality of the legal service available to the people of the State'” The opinion further acknowledged that, with appropriate member notification and dissent procedures in place, an even broader range of political activities (if within the organization’s basic authority) can be funded from mandatory dues of nonobjecting members.

Gibson v. The Florida Bar, 906 F.2d 624 (11th Cir. 1990), cert. dismissed, 502 U.S. 104, (1991): Gibson II continued one member’s challenge of The Florida Bar’s use of his compulsory dues to fund political lobbying. Gibson appealed the denial of his original claim in Gibson I, for declaratory and injunctive relief, after the district court judge reviewed the 1988 revisions to Rule 2-9.3 on member objections to legislative positions. The Eleventh Circuit Court of Appeals held that, with the exception of one minor feature since corrected, the escrow/rebate procedures in Rule 2-9.3 were sufficient under U.S. Supreme Court guidelines. In so doing, the court rejected Gibson’s claim that an advance dues deduction scheme was mandated for the portion of dues that the Bar knows it will use for political activity. As to the amount of interest on any dues refunds paid, the court faulted Rule 2-9.3’s plan for calculations “as of the date the written objection was received.” The opinion observed that, in order to protect against the danger that a dissident’s dues could be used to finance questioned advocacy, “the Bar would have to calculate interest as of the date that payment of the members’ dues was received.” That concept is now incorporated into the current objection procedures.

The Florida Bar re Frankel, 581 So.2d 1294 (Fla. 1991): After the U.S. Supreme Court’s opinion in Keller, a member challenged The Florida Bar’s authority to lobby several “children’s” issues, both under Keller and the Florida Supreme Court’s Schwarz II holdings. In its application of the three additional Schwarz II standards, the court determined that, while the contested matters were of great public interest, they failed to satisfy the second Schwarz II criterion – that lawyers were especially suited by their training and experience to evaluate and explain the issues. Taking its first opportunity to comment on the intervening Eleventh Circuit Court of Appeals ruling in Gibson II, the Florida Supreme Court agreed that The Florida Bar need not recognize generalized member objections to legislative matters, and that the Bar’s codified objection procedures were not overly burdensome.

The Florida Bar Re: Authority of a Voluntary Section to Engage in Legislative Action, No. 79,321, Final Order (Fla. May 1, 1992): This case ensued after the Board of Governors of The Florida Bar prohibited the Public Interest Law Section of The Florida Bar from advocating the repeal of Florida’s prohibition against adoptions by homosexuals. The board’s action was premised on a belief that the issue would be divisive within the Bar’s membership at large. The section petitioned the Supreme Court of Florida to verify whether the Frankel opinion authorized section lobbying essentially without any restraints by The Florida Bar. The section’s petition was summarily denied after the Bar submitted pleadings noting that the issue of section lobbying was neither briefed nor argued in Frankel, and that lobbying by sub-units of a mandatory membership organization – especially on topics that may be divisive within the general membership of the umbrella group – raised particularly unique freedom of association issues.

The Florida Bar, Re: Harvey M. Alper, Joseph W. Little and Henry P. Trawick, 666 So.2d 142 (Fla. 1995), cert. denied 515 U.S. 1145 (1995): Petitioning Bar members sought a Florida Supreme Court order clarifying that The Florida Bar was without authority “to employ any funds, personnel, property, symbols or other evidences of Bar involvement in promoting or advocating any change in the means by which judges are selected in Florida” or “in promoting or publicizing the merit retention elections of incumbent justices and judges.” Petitioners asserted that a legislative position of the Bar to eliminate the popular election of trial judges and the Bar’s distribution of printed materials – allegedly favorable toward incumbent merit retention candidates – to the public media and local bar associations were divisive political and ideological activities outside the limits of the Bar’s authority clarified in Schwarz and Frankel. The Supreme Court of Florida summarily denied the petition. Petitioners thereafter sought a writ of certiorari from the United States Supreme Court. Following the submission of briefs, the Court denied the petition without opinion.

Liberty Counsel v. The Florida Bar Board of Governors,12 So.3d 183 (Fla. 2009): Two Bar members and their nonprofit public interest law firm petitioned the Florida Supreme Court for injunctive and other relief based on The Florida Bar’s governing board’s allowing the Family Law Section to file an amicus curiae brief in support of a circuit judge’s invalidation of a state statute that prohibited homosexuals from adopting. Petitioners claimed that such action violated their First Amendment rights under Keller, Schwarz and Frankel, was contrary to applicable Bar policies and created an ethical conflict for judicial members of the Family Law Section and anyone who might appear before those judges with similar legal issues. In a 5-2 opinion, the Florida Supreme Court concluded that the Bar’s actions in permitting the Family Law Section to file an amicus brief did not violate the First Amendment rights of the petitioners, because membership in the section is voluntary and any such advocacy by that group is not funded with compulsory Florida Bar dues. The court further emphasized that the standards and restrictions it had adopted subsequent to Keller address only the activities of The Florida Bar and not the activities of its voluntary sections. The court added that it would not interfere with or micromanage the activities of the Bar’s sections, or the approval of such activities by the Bar, unless the Bar’s actions regarding the scope of the activities of its voluntary sections were clearly outside the Bar’s authority.

These court opinions merely delineate the legislative authority and political agenda of the organization known as The Florida Bar. They do not foreclose additional advocacy throughout the state’s legal profession – whether by individual lawyer licensees of the Bar, or by separately funded voluntary groups of attorneys.

IV. The Legislative Program

The Governmental Affairs Office of The Florida Bar administers the legislative program for the Bar. The office is staffed by Booter Imhof, general counsel, and Joni Wussler, his assistant. Their primary functions include: coordination of the legislative and political activities of The Florida Bar and various sub-groups; staffing the Legislation Committee; advising elected leaders and outside consultants on various governmental issues; and serving as general information resources to all members of The Florida Bar on legislative and political matters. In addition, legislative counsel and advisers are retained to advocate the official positions of The Florida Bar in the Legislature.

Every proposal for a legislative position must be reviewed and considered by the Legislation Committee. The committee meets before Board of Governors meetings, usually on Thursday afternoons. In order for proposals to be placed on the committee’s agenda, a Legislative Position Request Form must be submitted to the Governmental Affairs Office at least 21 days before the meeting of the committee.

Standing Board Policy 9.50(d) requires a section or committee to circulate its legislative proposals to other sections or committees that may have an interest in the matter before the presentation of the request to the Legislation Committee. In order to ensure that all interested parties have an opportunity to comment on the proposal, the Legislative Position Request Form specifically requires a listing of the groups (both inside and outside the Bar) from whom your section or committee has solicited comments.

It is also suggested that a person who is familiar with the substance of a legislative position request be present and available for questions during consideration by the Legislation Committee (and by the Board of Governors, if the matter is controversial). If a knowledgeable representative does not appear before the Legislation Committee, the committee may defer the matter because of inadequate information.

Once a legislative position has been favorably acted upon by the Board of Governors, it is recorded on The Florida Bar’s master list of positions, maintained by the Governmental Affairs Office. Legislative positions are considered active for the two-year period coinciding with the legislative biennium. The master list is revised after each new position is approved.

Consistent with the distinction between “big bar” and section lobbying, many sections of The Florida Bar have developed separate grassroots lobbying programs. Some sections retain their own outside advisers, who further assist volunteer members in advocating particular positions in the Legislature or before other governmental bodies.

Through the Bar’s “key contact program,” lawyers who have access to or a personal relationship with state and federal officials can help present the views of the Bar. Volunteers are kept informed on the Bar’s political agenda and serve as localized components of an influential statewide network that augments the Bar’s Tallahassee-based legislative resources. Such localized efforts by attorneys and lay volunteers have been effective in defending the Florida Supreme Court’s regulation of the legal profession, and in explaining selected aspects of the Bar’s political platform.

The Governmental Affairs Office assists all Bar leaders in keeping abreast of issues concerning the legal profession as well as significant political developments that may affect the Bar.

Throughout the legislative session, each bill is reviewed for its potential interest to groups within The Florida Bar. Within “Legislation of Interest to the Legal Profession” are bill reports specific to each section, division and committee. These reports provide real-time updates on the progress of legislation and allow members to access copies of any bill, amendment or legislative analysis.

To facilitate the tracking of bills throughout regular and special sessions, the Bar utilizes a commercial online governmental information service. That bill-tracking service includes a governmental directory, committee information, statute tracking, daily agendas and voting records.

Additionally, the official website of the Florida Legislature — “Online Sunshine” — provides a wealth of useful information. The site also provides an alert service for intense bill tracking. The system supplies the full text of bills, their parliamentary history, proposed amendments, up-to-date vote information, all state statutes, House and Senate rules, legislator information, House and Senate calendars and lobbyist information.

The Department of State posts new laws to its website one day after action by the governor. Those postings can be found in the “Laws of Florida” section of the department’s website.

V. Conclusion

Many political challenges face Florida’s lawyers. The legal profession is often unpopular with the public, and there is too little understanding of the role of the judiciary, the rule of law and the significance of attorneys within our democratic society.

The Florida Bar has nevertheless represented the profession’s unique perspective in political debate and helped to preserve and enhance the rule of law and the independence of the judiciary.

Prepared by The Florida Bar Department of Public Information and Bar Services with assistance from the Governmental Affairs Office.

[Revised: 3/15/17]