accident claims at issue in this case i think it's important to start with too broad principles that cut across all three claims and i think have to inform the court's decision on all three issues so the st is that the strong and overwhelming default rule is that government cannot compel association or subsidization absent what the supreme court has called extraordinary circumstances the courts quoted jefferson several times who said to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful d and tyrannical so st big principle because compel funding an association is the exception and not the norm the supreme court is clear that if there's any ambiguity if it's close the court has to err on the side of protecting the st amendment rights because of course the bar has no st amendment right to anyone's money or association but my clients have significant speech in association rights in their own freedom of expression and association and consci number two the nd big principle i think the court needs to keep in mind the fundamental reason why we allow arrangements like this at all and leverage tells us in color tells us and harris tells us it's because the law is a regulated profession and so as the court said in harris it makes sense that lawyers rather than the public bear the cost of a regulatory and disciplinary apparatus that makes total sense but once you go beyond that it starts to stretch any link between that interest and the question has to be why are all the lawyers alone responsible for funding this versus why is this something that couldn't be funded through the general fest or through or through voluntary contribution so i think i think those two principles inform each of the three claims we have here so turning to how many states do it the other way i believe there's a few that are a little ambiguous i think it's about thirty ideological activities beyond regulation of lawyers can you be compelled to associate with them at all very explicitly very explicitly an open question and texas law forces my clients to join and fund and associate with an that they have to join it and get it that they have to fund it anything else i think the key on the association point is when the bar speaks on matters like legislation like immigration like race they're using that  legal profession to suggest this is this is a formal organization this is the use of the legal profession these this is a big deal because lawyers are supporting it and so i think that's the key to this st claim this association so it's my members don't support my my my clients don't support a lot of this stuff so they don't want right in the way i see your claim is if the bar is engaged in some sort of wholesale it illogical project somebody might come your client say hey i heard the bar was doing  aren't you a member absolutely in your view is that enough to create an association claim assuming that the bar is actually doing what you claim absolutely the th circuit just addressed this other case last week and in provo and i think it's important it's more about the message here than the money so incredibly the bar had a screed against president trump in one of its newsletters and that the objector said i don't i don't really want to be associated with that and the th circuit just helping probably last week that that was enough to sta a claim and move forward on an association and i think i think it's a savior i mean when you look at marriage race immigration i mean it's hard to think of three issues that are more at the center of the public debate more subjective strong views on all sides and the bars color expressly said that this type of issue was an open issue so i think and then when you move to when you move on we accept the interest in color we take the interest as articulated by the supreme court because it's a group or precedent but even if you accept those interests there's a significant lack of tailoring here so in mcallen which you say in our brief the supreme court was clear that it's not enough just to say it's easier this way it's more efficient this way they have to show that there would be some impediment to achieving the same goals and when you look at those twenty states that have voluntary associations new york illinois pennsylvania st of all a d every one of those states they have  robust voluntary associations that do lobbying and access to justice and programs and things for law students and sections they do all of the same types of things that the texas bar does except they're funded voluntarily through people's own choices and nd even more to the point i'm not aware of any suggestion from the bar or otherwise that lawyers in those states are not as well regulated as those in states that do it integrated system so i think when you when you move to any sort of tailoring analysis even if you accept the color interests i think the i think that we have a serious scaling problem so moving on to what we call so that's our count one which says we should we think that they do enough political activities that we shouldn't be compelled to join or associate at all  our co two is saying excepting the color framework they do a lot of things that at the very least we shouldn't have to pay for and so paris is the supreme court's most recent word on this and the bar has a little bit of a complicated relationship with harrison and they love paris because paris says that color is still good law which again we accept but that harris characterizes color and it says political and ideological activities are out and the bar can only deal with a worst use things like ethical codes d or disciplinary matters so these poor again going back to what i said at the start why do we allow this arrangement all it's to regulate the profession and harris  let me go into an area you haven't touched on yet as i understand it but correct me if i misunderstand you object to state bars doing anything in the legislative field that is to say endorsing are opposing any particular legislation i don't understand that under the test that you just articulated i realize this is only one of the of the sub issues  in the case but it seems to me perfectly reasonable for there to be some legislative efforts you're proposing or opposing that would legitimately fit within the regulation of law and example might be i understand there's a there's a pending effort possibly to redistrict the fourteen state courts of appeals and during the current legislative session that strikes me as something that's not ideological there may be those who oppose it  those who propose it and the folks in the east wind may not want to lose their court of appeals and i understand that but why isn't that a legitimate sphere for the bar to get involved in in terms of the  legitimate administration of justice you want to think of we agree that there's hard lines and some some some very close calls we think we think the best view is that lobbying or political activity has to just be if it's happening it has to be separate funded voluntarily and well when you do it in the union context and in heller the supreme court told us that this context is highly and is substantially analogous to the supreme court itself of those cases going back to the fifty's the supreme advocacy would be not germane to regulating and improving the practice of law we take we take the view that lobbying for the passage or defeat of legislation we w well you know i mean often people go to the legislature and you sign up to testify or you are going to be shown as a for or against a bill and a lot of people are there not to lobby i'm using air quotes for the people who are not to the lobby but to provide information there is a neutral witness neither advocating nor opposing a bill just providing information to be helpful to law makers we conceded in our brief we have that we've acknowledged that in its capacity as the regulator of the profession we have no objection to giving information to responding to requests but we line when they do not write advocacy or opposition of proposed legislation yes and again and i do think when you look at their legislative program this is all in the record on appeal the legislative program it has a list of thirty some bills and it says this is the program these are the bills that the bar wants the people of the legislature to adopt and so again in its capacity as regulator of the profession we understand that like any agency there would be some back and forth with the legislature but i think that's a category difference or the access to justice commission the access to justice commission just to be crystal clear about what it does it gets an eight hundred thousand dollars grant from the bar and then it lobbies for more legal aid and so to get to dr smith's point i mean i you yes you can think of a world where that is related to the legal profession but the supreme court again in every one of these cases says matters like the size and scope of government government spending government budgets that's as political as it gets and so we we all agree what the bar is doing we just think there are different inferences from what you draw from it so i don't i don't think there are factual disputes or anything and we would say that any expenditure is on lobbying legislation has to be out and i also know what argument that my friends make is that day actually try to distance themselves from the lobbying and say well it's mostly done by those sections or it's done by members of a except a publisher that's a st of all access to justice commission lobbies directly for more government spending and then in the bars disappear in the bars manual and are away for one dollar to eight dollars it says that the executive director the general counsel and the government relations department oversee and manage this lobbying program even if even if it's not the bar that is going to the legislature saying to pass this bill they're certainly using funds that my members my clients object to to advance this agenda well the board of the board of directors as recently as september probably more recently than that has an endorser pending legislation right i'm sorry i didn't hear the state our board of directors has endorsed even very recently certain certain legislation so we don't have to speculate about whether they're doing it directly or through actions just exactly and going to be it's also important to note one other thing that knox is clear on whatever germane this means it has to have a limiting principle and that there is no limiting principle in either the decision or below where the bar is briefly and they say the state can lobby about the definition of marriage in the texas constitution to address unconstitutional laws and if that's the principle that's just there that's no principled all that just means that they can engage in law reform or substantive changes the law with no limits because it pertains to steering up a law or i think is a cleaning up legal tax which i just i don't see that even in the ballpark of what seems to me that the both sides in this case lose credibility on the all or nothing definitions it comes as as it pertains to legislation i think your position is is untenable that no lobbying or endorsing legislation is permissible but i think there is equally untenable when they claim that absolutely nothing they have ever done in the legislative field crosses the line to ideology and how cliques and we would  that your honor i think we just go back to the st principle i started with which is yes i think you can certainly ills where it pertains to the legal profession but even those even though it can be controversial or take take that classic one of how should judges be have a fallback intermediate position that would help us distinguish political ideological that it's ok because it somehow has to do with regulating the legal profession and those that are not because i can equally imagine political lobbying that reduce specs the legal profession that is a deal logical there's got to be some of that so do you know what i think of you i think i think your honor just said it i mean again i think if if any lobbying is going to be ok it has to be in the role as a regulator of the profession and respectfully we don't think that things like grandparent visitation rights or the definition of marriage or or again even we in we think even within the controversial it impacts st amendment by my st answer to that would be it should be out because even lawyers of good faith could disagree with that and so the bar should be lobby and it might back up would be again if there is going to be if there's going to be a line it should be what pertains to regulating the profession as opposed to cleaning up the law or changing what the bar thinks are unconstitutional laws ok so if i could if i could briefly talk about the access to justice piece of this so few few things are more intertwined with association all and expressive rights then what causes you support what charities you give to what funds you make  and so are our request is pretty simple which is that on these things like access to justice and legal aid and pro bono we just think that my clients and barbour should have a right to decide for themselves how to spend their resources rather than have bar be choosing their causes for them and so the question the question is not just is this a worthy cause is this a good idea is this something that should be getting money the question is why should bar members alone be compelled to to fund this versus the general fund versus voluntary contributions they have several declarations in the record that boast about how much funding the access to justice foundation and the bars voluntary efforts have raised me putting millions of dollars that people voluntarily contributed to these efforts  and so i was talking to mr macdonald one of my clients just before this argument and he he reiterated that he passionately believes in access to justice he does tons of pro bono work he does low fee work he volunteers his time but he wants to be looking where he he doesn't want the bar to be picking his efforts for him picking those choices for him and so just to be clear with the legal services fee half of the legal services fee and this is all in the access to justice amicus brief half of the legal services fee goes to the access to justice foundation which then just makes grants to to a number of groups and so again i'm not here to say that those aren't worthy causes but i am here to say that there is much more need than supply of legal aid and we think it should be up to each bar member to meet their pro bono and access to justice duty is rather than the bar literally just taking money and then the access to justice foundation decides how to parse that out so we always have to look at the broader principle of why is why is this something that the bar should be doing rather than individuals doing and then same thing i would i would make a similar point about diversity programs and we think this program after program after program there's a lot of stuff the bar does that's targeted at particular genders were races or sexual orientations and the court doesn't need to look farther than the supreme court's decisions to see how controversial these things are i mean the chief justice and justice thomas have written eloquently about why things should not be targeted based on race and justice sotomayor has written eloquently about why it's fine to do so but this is a matter of heated public debate and controversy and if the bar wants to do these programs and run these initiatives that's great but it shouldn't be expecting all members to be paying for them out of compelled do and then the last thing i'll say with a few remaining minutes or so just briefly on opt in and opt out when the court reads abood and knocks both of those are very clear that a simple rebate system like the bars offering here is not adequate and that both of those decisions say objectors shouldn't have to give essentially a no interest loan it shouldn't be the objector duty to comb through the books d and have to fly specked everything and find it i think there needs to be a clear disclosure of what's chargeable and what's not and and we think there needs to be an opt in system which which knox is pretty clear about because it's far too easy and i would draw the exact opposite inference than the bar they seem to say well no one ever objects to anything and so therefore it must be all ok and we would drugs actually the opposite conclusion which is that must mean that when you luminous material that people aren't necessarily reading there's going to be a lot of people i find it hard to believe that not a single member of the bar objects to a single penny of their expenditures but when you have that you know a very long report and statement people might not necessarily read that but when a would you like to opt in and make an additional contribution people will have that option but i don't think the default should be every penny gets charged and then force members to opt out so less they'll say i'm just to finish where i started my clients have serious st amendment rights here this is core expression and association and it is the supreme court said it knocks an entity like a bar a union does not have a st amendment right to be to be to anyone else's money or association and so if the court we i agree that there are hard judgment calls to make in here but i think if the court sees a hard issue it has to err on the side of protecting the st amendment rather than allowing allowing money through opinion i certainly will address the court's questions and i know mr maazel will back clean up and in answer anything that i don't get to in my time the district court's judgment should be a fur because on this full summary judgment record plaintiff failed to raise a genuine issue of material fact to support any of their three claims plaintiffs count one challenge to the state bar x requirement that they enroll and pay dues annually fails on this record under color and lathrop the th circuit's recent decision in crow doesn't change that as we discussed with the court in our twenty eight j brief that we filed on saturday the th circuit is that is the one court to find any d opening for an association will claim and it did so in the context of a twelve b six motion not on a full summary judgment record to your question judge duncan the texas bars association all obligations are minimal the state bar act requires members to join and pay dues annually there is no other association obligation one doesn't have to membership membership and yet the court then goes on to hold that problem with the association will claim is that the plaintiff claims that the oregon state bar was doing was engaging in no not germane speech and not germane activities under keller so it says a little bit of both i submit to the court that the proper analysis really looks to whether or not there's any non germane speech and on this record the bar so i think i would rather i read keller because i think because keller says this is that there's a kind of association a claim that's broader than the one that was dealt with in lothrop and so there's there's something out there that's available and the question is what is it crow thinks that the panel in crow thinks that that threshold has been met i take it it's because of the nature of the statement and i mean in my reading the law wrong well it's it's also the name it's goes to the d whether the speech is germane or not germane under taylor is the speech have to do with it or regulating the profession or improving the quality of legal services the too compelling state interest recognized under kalar so you're saying that the the executive director of the bar d the executive director of the access to justice commission and chair director of the government relations department of the point of taking the texas bar put out a statement like the one in crow let's say we had the same facts do you have a position on whether that implicates the association will claim that was left open and lathrop so that hypothetical your honor i don't really have an opinion i think that it would be up to the parties to make the  mean i think that's fair to say you might i you or me we might agree with it maybe but it's a nakedly political statement so imagine that a bar association decides you know on the on the letterhead for every single thing we send out in the name of the bar we're going to put black lives matter on the letterhead does that raise an association a claim i hear what you're saying your honor i think one thing that is clearly not germane is example of the hypothetical was some i could only get a drivers license if they paid ten dollars to the republican party obviously that's a partisan political compelled expenditure so i think i think it would be up to the parties to make their make a record on that s kept the count to challenge the selective programs and expenditures fails because the bar established as a matter of law that all of the questioned programs are either reasonable or necessary to use the language from cal work to further one or both of the of the compelling state interest in regulating the legal profession or improving the quality of legal services plaintiffs essentially try to rewrite the killer standard by terming things political or  logical and that's not the killer standard and they exclude and really don't engage with what it means to improve the quality of legal services and that compelling state interest in keller and that's where it's up to the parties to make the record about what what is act what the bar is actually doing what interest it serves how it improves the quality of legal services available to texans out of how does it improve the quality of legal representation to texans to endorse a bill that redefines marriage thank you for the question your honor up if you look at the legislation that the plaintiffs point to what that legislation tries to do is to conform d texas law to the u s supreme court's decision in zero and you have i'm sure in texas i'm sure you would agree with me that the texas constitution which is very annoying to be has lots and lots of provisions in it that have not been updated and it surely do not conform in every doesn't really have hasn't really felt it necessary i mean come on come on let's be serious this is an ideological position that the state bar board of directors has expressed and it's just a ruse to say that they're d which you know executes the mandate of this court in that case and make certain findings and the state bar in particularly one section of the state bar was acting on what the law had been declare to be and you saw that you're saying that it's not ideal and ideologically charged issue once the supreme court has announced it which of course we know for example in the abortion area simply isn't true and and there was can you give us an example of not going as far as for example endorsing one presidential candidate over another or something like that but a statement by the state bar  endorsing an an ideological position that you think would would would cross the line for for example a resolution stating that all illegal aliens should be given immediate and unconditional citizenship lesson let's take that as an example i hope you'll agree that that's a highly controverted regardless of which side we might take on it in terms of what you call the administration of justice and and legal representation to all texans you're i think that probably goes over the long way and i think the other examples that i can get w explain explain why it goes over the why hasn't how does it not meet your test well you know the bar can try to argue that that's germane to the quality of legal services in texas but that would be a stretch and that's the test it's not whether it's political or ideological it's it's is it germane to improving the quality of legal services and the other examples that we have for keller or extreme examples nuclear freeze initiative and a gun control measure those were not germane to either compelling state interest in color or they mark the extreme end of the color spectrum so under count two they would they would fail and the bar should not the importance of eliminating confusion in the law so that lawyers can accurately invite advise their clients about what the law d is and that was the genesis for the the changes in the text constitution the texas marriage statues what is what is the confusion i can sort of understand the concept of technical conformity some of that state law reads the same as what the supreme court has said but using this particular example of the definition of marriage what possible confusion is there since nineteen since two thousand and fifteen when i was that government officials would act based on statutes that have been declared invalid so the risk is the risk is there that's the risk judge equal excepted in sol and that's the risk that justifies the term anus of that particular obviously rife with lots of lots of questions and lots of gray areas in this the spectrum and the compelling state interest of germane this to the quality of legal services and germane is the regulation of the profession maybe somewhat broad standards but as we've discussed they're not limitless and even though they may be broad standards those are the standards that the tech that the u s supreme court has given us in kalar it's not whether something is political or illogical it's whether or not it's germane to one of those compelling state interest and it's particularly the wrong about the compelling state interest in improving the quality of legal services that point is really don't engage with in their briefing at all because they want to redefine the killer standard and it's it's it's very the facts about germane as are laid out in the multiple affidavit that the bar file interesting and in the decision right before that it says when we're talking about the hard cases that sent the distinction here is between where the bar members are officials are acting essentially as professional advisers to those ultimately charged with the regulation of the legal profession that seem to be in the what the court thinks is ok you agree with that i agree that a yes or no and you can it's conference that sharply with running out ethical obligations that you would be informed by all the union cases the talk about your means the union you agree that those are relevant or do you well certainly certainly they  keller when dealing with the various political issues that were being a spouse to california and reads like a who's who of progressive issues none of which were tethered to that either regulation or improvement in quality of services off the top of my head a gun control nuclear proliferation limited federal jurisdiction over busing limiting special education automatic you know public right to special education a whole host of issues that were pure political pure ideological and not tethered to  on behalf of the bar of work on that is good and i would just assert that what you have on this summary judgment record is is they far cry from the keller efforts by student bar directors to censure or limit the powers of the state bar president because of political or ideological statements right or wrong that he has made there's nothing theoretical about that that's actual action being proposed by the state are but members of the board of directors withdraw only because of the or most of it and you know exactly what happened and there's a little dispute about the facts so why don't you want to address it straight off yeah i mean i think that the bar has a right to in the end that in the end of that program as i understand i'm not wealthy and the facts of how that turned out that very little in fact happened in terms curtailing anyone's speech on on any issues there was a those are that's when it's not germane to the improvement policy a legal services if it is germane to the improvement of albeit legal services and or germane to the you know ethical d regulatory i'm type functions you're going to still have politically and i did a lot of i don't watch please charged issues but and if i could take on just well so that the statements for which limit his powers because of that how were those statements that he was criticized for a germane to the rendering of legal services as opposed to purely his own political  bar in the end about you know what happened and certainly nothing that would rise to the level of a a improper forced association claim that somehow or another members of the bar being forced to associate with a bar improperly and st amendment principles because there was an internal discussion a public internal discussion about whether a guy who had been elected t the in the constitution and in the in the statute that still has this you know held unconstitutional and then also we're putting out a marker right now what if the bar says look that's confusing to people that might lead them to believe that roe versus wade doesn't apply in louisiana or doesn't apply with full force how does that work on your spectrum is that ok for the bar to do that or not  for money specifically at the direction of the texas supreme court that that is a st say violation because they're because indianness and in the in the in the in the public  union sector that was one of the factors and i think it is a far cry to compare the nickels and dimes that they are scraping together for for pro bono efforts on is a far cry from the stress again that i don't think there's any question that with respect to access to justice in the programs that are involved in that that the the increasing of pro bono services mr harris to save time for about as we have an alcohol or drug problem something like that seems like a classic thing that still falls within the umbrella of protecting the public regulating and improving the profession and also you know making sure that someone who's suffering for some reason is able to i think that's the sort of thing that would fall within that problem so some of judge duncan's questions you'd be getting at what i think is a really important point of what happens if something is germane and also political and ideological and our view is out that you can't do that and here's the best way to think of that in a case like knox prop seventy five and prop so proposition seventy six would have limited state spending on public employees it would have given to the governor the ability to cut state appropriations for public employees this was in the heartland of why the union was representing these public employees in the union said this is the sort of thing we we want to take one dollar justices the supreme court including justices ginsburg and sotomayor agreed that that was not charged ball and not only was it not chargeable but there had to be an advance opt in and so i think that some in knox's is applying the buddh it's it's pretty janice it's consistent with color and so we think on this question that judge smith asked mr masel about and mr masel said we would never do anything like california they did all of this sort of outlandish stuff that's nothing like anything we would do so after this incident that your honor referred to which is all on the bar website they proposed another task force on diversity equity and inclusion mandating that the bar's board complete implicit bias training consider making implicit bias training and mc a legal requirement for all texas attorneys and last of all study whether to adopt a b a model rule d eight point four g which is a highly controversial all rule this model eight dollars would basically restrict the speech of attorneys in order to prevent  offense or insensitivity highly controversial many religious liberty groups think that this would be used to prevent discussion of issues pertaining to the family or religious liberty so i think you know we said all this impedes fourteen of our reply we think this is the sort of agenda that will be coming down the pipeline and we hope that the court will just do that to to close where i started all of the three claims that we raise are things that are expressed we left open by the supreme court claim one was left open in color in claim to either the supreme court or this court has ever a pine that any specific expense so we think that's a question of st impression and claim three other itself said what are the procedures you have to use so we're offering the court three questions of st impression which we think should be resolved in light of the background understanding that the court needs to build a significant buffer around the st amendment a robust expression of protection of these important i'm speech in association