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 authorizes public employee unions to collect “fair share” or “agency shop” fees from non-member employees. Two non-member public employees sued to invalidate this law as an unconstitutional infringement on First Amendment rights. The Seventh Circuit Court of Appeals held that one employee was barred because of previous litigation and that the claims of the other employee (Mark Janus) were barred solely because of the Supreme Court’s decision in Abood v. Detroit Board of Education (1977), which permits unions to garnish wages of non-member employees for the purpose of collective bargaining and contract administration. PLF supports Janus’s petition for a writ of certiorari.

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