On April 17, 2008, the Missouri House of Representatives voted against proposed constitutional amendment H.J.R. 49. H.J.R. 49 would have applied the Sunshine Law to judicial selection, removed state judges from the judicial selection commissions and replaced those slots with governor-appointed citizens. The bill would have also granted the governor freedom to reject a panel of nominees.
Reform supporters said the changes would have added transparency to the plan and reduce the influence of lawyers. "These lawyers know if these changes are made, they will lose their stranglehold on the process," said Rep. Jim Lembke, R-Lemay. Lee Logan, Plan to change the way judges are appointed is dead, St. Louis Post-Dispatch, Apr. 18, 2008. In contrast, anti-reformists rallied around a Democrat legislator's remark during the House floor debate, "The plan ain't perfect, but it's workin.'" Brent Martin, Effort to change Missouri Plan fails in House, Missourinet.com, Apr. 18, 2008.
The Missouri Bar made no secret of opposition to judicial selection reform, arguing that such efforts "politicize[] the process" without improving it. Prior to the House vote on H.J.R. 49, the Bar blanketed Jefferson City with lobbyists, such as Woody Cozad. The Bar coordinated a $500,000 anti-reform campaign with both Justice at Stake, and its billionaire financier, George Soros.
The Bar also worked with Chief Justice Laura Stith to block reform efforts. But Chief Justice Stith was not the only judge whom the Bar asked to engage in political activity. The Bar e-mailed appellate and circuit court judges, urging the judges to contact legislators, business leaders, and lawyers register their opposition to Missouri Plan reforms.
The Bar accused the pro-reform group Better Courts for Missouri of running misleading ads to gather reform support. Better Courts argued that judicial selection is dominated by lawyers; the Bar responded that the seven-member selection Commission was comprised of three lawyers and one Chief Justice (who is, necessarily, a lawyer). The Bar, however, contradicted itself in an e-mail imploring lawyers to oppose reform. The Bar argued that H.J.R. 49 would "inject . . . partisan politics into the system" by requiring the Senate's advice and consent. Two paragraphs later, the Bar posited that the Governor would have "the prerogative to unilaterally shift the" commission's composition.
Since the Missouri Bar is a mandatory lawyers' organization (a "unified" or "integrated" Bar), the Bar emphasizes that "restraint is exercised in taking positions on legislation that would offend a substantial portion of the membership." See Keller v. State Bar of California, 496 U.S. 1 (1980) (holding that State Bar's use of compulsory dues to finance political and ideological activities with which members disagreed violated members' First Amendment right of free speech when such expenditures were not necessarily or reasonably incurred for purpose of regulating legal profession or improving quality of legal services). When Bar members requested refunds of the considerable sums spent to oppose judicial selection reform, the Bar denied President Charlie Harris's March 15, 2008 statement that the Bar had spent $500,000 to block reform, and consequently refused to refund members' dues.
In March 2008, the St. Louis Lawyers Chapter of the Federalist Society invited the Missouri Bar to debate why its activities do not violate Keller and its progeny. The Bar declined, citing fears of future litigation.