Since before it was fashionable, Mark Pulliam argued it’s unconstitutional for a public union to charge mandatory dues that wind up funding political activities.
Still in law school during the 1970s, he wrote in a labor law journal that the U.S. Supreme Court had improperly decided a case, Abood v. Detroit Board of Education, on the union dues issue.
“I had been rooting against that case for a very long time,” said Pulliam, who retired in 2010 from Latham & Watkins in San Diego after a 30-year career in labor and employment law from the management side.
Fast-forward to today as Pulliam, 63, now finds the world may be ready to listen.
Abood’s decades of precedent was upended last summer when the U.S. Supreme Court ruled in Janus v. AFSCME that public sector nonunion workers cannot be required to pay union dues as a condition of employment. The impact on the legal profession looms: in December 2018, the justices remanded Fleck v. Wetch, which had upheld the constitutionality of North Dakota’s mandatory bar, back to the U.S. Court of Appeals for the Eighth Circuit with instructions to reconsider because of Janus.
Pulliam joined two other Texas attorneys—Tony McDonald and Josh Hammer—as a plaintiff in a lawsuit that claims it’s unconstitutional for the State Bar of Texas to charge them mandatory dues and then use the funds for alleged political and ideological purposes. They object to some Texas Bar activities dealing with diversity initiatives, representation for undocumented immigrants, continuing legal education on LGBTQ issues, lobbying and legal aid programs. McDonald v. Longley, which names Texas Bar President Joe Longley and all the bar’s board directors as defendants, is one of at least four lawsuits filed nationally challenging mandatory bar membership in the wake of Janus and Fleck.
State Bar Executive Director Trey Apffel said in a statement that the bar would vigorously defend its current structure, arguing that a mandatory bar and dues are constitutional because the state has an interest in regulating the profession and improving legal services quality. He added that he’s disappointed the plaintiffs attacked the bar’s diversity and access-to-justice initiatives.
“The State Bar supports access to justice programs that provide legal help to veterans, active-duty military, and their families; people affected by natural disasters; victims of domestic violence and abuse; and many other Texans in need,” Apffel explained. “The State Bar’s diversity programs, which are open to all Texas attorneys, help the legal profession serve Texas’ increasingly diverse population.”
Who’s funding the litigation?
Who are the three men who may upend the Texas Bar with this litigation? The truth is that they don’t know each other too well. McDonald and Pulliam, who both live in Austin, can recall meeting at political and legal organization meetings. Both said they know Hammer, who lives in Dallas, mainly from his online presence on social media and political blogs, although Hammer recalls once meeting Pulliam briefly at a Federalist Society event.
Clearly they’re not best buddies, but equally clear is a major thing they have in common—conservative ideals.
McDonald, Hammer and Pulliam are active in the Republican party and are members of the Federalist Society, which advocates for originalist interpretation of the U.S. Constitution. McDonald is an Austin solo practitioner and the general counsel of Empower Texans, a conservative nonprofit that advocates for fiscal responsibility and is affiliated with foundations and a political action committee which spends millions of dollars to steer state elections right-ward. Pulliam is a supporter of Empower Texans, attends its events and has written an article on the McDonald lawsuit for an Empower Texans publication, Texas Scorecard. Hammer—no link to Empower Texans—also is a writer with bylines for conservative websites, including in his current role as editor-at-large of The Daily Wire, a site founded by political commentator Ben Shapiro.
“Maybe we’ll build a friendship out of the lawsuit together,” McDonald said.
All three of the plaintiffs declined to comment when asked how they came together for the lawsuit, and so did their lawyer, Consovoy McCarthy Park partner Jeffrey Harris of Arlington, Virginia. Harris also wouldn’t say if the firm is handling the matter pro bono, or whether an outside source is financially supporting the litigation.
One claim in the case, though, is to recover attorney fees for the alleged constitutional violation.
Pulliam noted it’s not unusual for public-interest litigation to get financing externally, rather than from the individual litigants. He added that he doesn’t know who is financing McDonald. That mattered little to Pulliam, he explained, because he feels the lawsuit is righteous and he has confidence in his lawyers from Consovoy McCarthy Park, which he called an “outstanding boutique law firm in the country.”
“The more interesting thing from a human interest standpoint is why Tony McDonald and Josh Hammer, at this point in their careers, would be identifying with something as controversial as suing the state bar, which could have repercussions,” Pulliam said, adding that reputation doesn’t concern him, since he’s left the law to launch a second career as a writer for legal and political publications, including his own blog, Misrule of Law.
Considering their backgrounds and ideals, it’s not hard to guess why McDonald and Hammer did it.
“I live my life inspired by ideas, values and principles I care about: the battle of ideas. I care about the direction the country is headed,” explained Hammer, who earned his law degree in 2016 from the University of Chicago Law School.
He was an associate with Kirkland & Ellis in Houston, before leaving Big Law to clerk for Judge Jim Ho of the U.S. Court of Appeals for the Fifth Circuit.
With Big Law experience and the clerkship under his belt, Hammer could have climbed the legal career ladder quickly.
But he felt his calling in the media, where he said he can shape public discourse, so he joined The Daily Wire in January. Even so, Hammer’s kept one toe in the law by contracting independently as of counsel at First Liberty Institute, a nonprofit law firm that represents people in constitutional religious liberty cases.
Likewise, some constitutional law issues have landed on the desk of McDonald, a 2012 University of Texas School of Law grad who’s litigated against the Texas Ethics Commission, Texas Racing Commission and a small city government.
McDonald said he rejects the notion that people or governments have the answers to the world’s problems, and he noted that government power at times has created real-world horrors like the genocides in Cambodia, Myanmar and Nazi Germany.
“There’s this real fear that what we take for granted day to day in America is not something to take for granted. It can all be lost,” explained McDonald. “You have to be skeptical of any government power or those who want to exercise power over others. It’s dangerous.”