Clear the air

By John Elliott

The Missouri Bar recently voted to spend $500,000 on a political campaign to oppose efforts to modernize Missouri's process for selecting judges. They will likely paint this as an "educational" project, but it is really a campaign to prevent the judicial selection process from being opened to the press and the public, which would seriously dilute their influence. Coincidentally, the Missouri Bar recently approved a massive increase in its membership fees and will soon be spending tens of thousands of dollars to send more than 40 of its leaders, and a few Supreme Court judges, to the Bahamas for a midyear meeting.

All of this activity raises important ethical and legal questions that demand honest answers. Why? Because the Missouri Bar is a tax-exempt "instrumentality of the state."

Anyone desiring to practice law must belong and remit payment in the form of the fees it just raised. So not only are lawyers who might oppose this political campaign being compelled to subsidize it, but Missourians are missing out on tax revenue that could be going to state coffers. That's not to mention the fact that the Missouri Bar, as an instrumentality of our court system, might be running afoul of Article 5, Section 25(f) of the Missouri Constitution, which places substantial restrictions on the ability of the judicial branch to engage in campaigning.

This effort to raise fees and engage in political campaigns under the auspices of "education" should offend tax-paying Missourians. Especially in light of the fact that the Bar's own documents reveal a record of financial waste and political opportunism.

To begin, a financial audit of the Missouri Bar indicates that it received more than $3.7 million in enrollment fees last year. It then spent nearly half a million on its board of governors and traveling expenses. Another half a million dollars was spent on three meetings. According to the Missouri Bar's annual report, a recent midyear meeting took place in sunny Marco Island, Fla. According to a recent mailing, this year's meeting is set to take place at Atlantis Paradise Island, Bahamas.

We would all like to travel to the Bahamas (though maybe not with the Missouri Bar), but most of us can't. And we certainly don't want our government "instrumentalities" doing it on our dime. Ordinary Missourians have to worry about paying for ice storm repairs and heating bills during our increasingly harsh winters. All the while the Bar is spending enormous chunks of revenue on extravagant meetings and line items that assist only a handful of lawyers.

Perhaps the Missouri Bar and its members consider this a worthwhile expenditure of funds. But, if so, the organization should justify that expenditure to taxpayers and explain a few other things as well.

For instance, the Missouri Bar should explain how, as a tax-exempt government body, it can spend revenue for the purpose of lobbying for and against specific legislation.

Lawmakers are seeking to pass very moderate reforms that would make the judicial selection process open to the press and the public, just like the rest of government. The Missouri Bar is using its funds to oppose that effort. Last session the Missouri Bar reacted almost immediately to the filing of similar resolutions by dispatching powerful plaintiffs' attorneys to oppose the measure and by publishing all sorts of nutty predictions of what such a measure would do. The resolutions failed after the Bar exerted enormous pressure on lawyer-legislators in the Missouri Legislature.

Is such pressure on the legislative process in accord with relevant tax laws or lobbying restrictions? Did Missouri Bar members across the state have the option of voting before the Bar took an official position on openness in the judicial selection process?

These issues create, at the very least, an appearance of impropriety. There is no question that similar activity by almost any other tax-exempt body would raise serious eyebrows, not the least of those belonging to the IRS. Unfortunately, because of the control the Bar exerts over the livelihoods of so many practicing lawyers, including lawyer-legislators, few have questioned its motives or its actions.

It is time to clear the air. If the Missouri Bar is truly interested in advancing the rule of law, and not just the narrow political agenda of influential trial attorneys, then it should answer these questions for the public. If it will not answer them, the public should demand answers and that the Missouri Bar complies with the requirements of the Sunshine Law. The Missouri Bar should not be allowed to enjoy all of the advantages of a tax-exempt government instrumentality, but none of the accountability.

John Elliott is the president of the Adam Smith Foundation in Jefferson City, Mo.