July 11, 2018

Public sector unions and gifts of public funds

By Deborah J. La Fetra Senior Attorney

On June 27, the Supreme Court held in Janus v. AFSCME that workers’ First Amendment rights prohibit states from authorizing public sector unions to take money from non-members without the workers’ express and clear consent. In response, some advocates suggest that states could avoid the First Amendment issue by simply allocating tax dollars from the general state treasury to the unions for the purpose of subsidizing collective bargaining. As I explain today in the American Thinker, this is a clever notion, but it has its own constitutional problems—especially in California. Such an allocation would violate state constitutional Gift Clauses, which prohibit a gift of public funds to a private entity. California has an additional statute that allows any taxpayer to sue for a waste of public funds—and state law already defines political expenditures as a “waste.” Janus held that all public sector bargaining is inherently political, so any direct allocation of taxpayer funds to a public sector union’s collective bargaining would be an illegal waste of public funds. Read the whole thing.

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Janus v. American Federation of State, County & Municipal Employees, Council 31

The Illinois Public Labor Relations Act authorized public employee unions to collect “fair share” or “agency shop” fees from nonmember employees. Allowed under the 1977 Supreme Court decision in Abood v. Detroit Board of Education, the Illinois law allowed the AFSCME union to steal $535 per year from Mark Janus and every nonunion employee. Janus sued, arguing the law violates the First Amendment. PLF and an array of allies filed a friend-of-the-court brief in support of Janus at the U.S. Supreme Court. And in a 5—4 decision announced June 27, 2018, the High Court overruled Abood, agreeing with Janus that the 1977 ruling is incompatible with the First Amendment.

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