Goldwater Asks AZ Supreme Court to Uphold Rights of Taxpayers and Public Employees

Goldwater Institute lawyers were in the Arizona Supreme Court this morning to ask the justices to support the rights of Arizona taxpayers and public employees, who shouldn’t be forced to subsidize union political activities against their will. The case, called Gilmore v. Gallego, concerns a practice called “release time,” whereby the government pays the salaries of employees who don’t actually work for the government at all, but who instead work for the union. These “released” employees meet with political candidates, engage in fundraising or recruitment activities, and do other things that benefit the union as opposed to the public. Yet they’re paid for with public dollars.

But that violates a provision of the Arizona Constitution that forbids the government from giving “gifts” or “loans” of public resources to private entities. This provision, known as the Gift Clause, was written to forbid the government from subsidizing any private business or other organization with taxpayer money—and although many states have Gift Clauses, Arizona’s is actually the strongest in the nation.

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Release time violates the Gift Clause because it involves the government paying money to the union—and getting nothing in return. In this case, for example, the only thing the contract requires the union to do with release time is to spend it on “union business.” Employees who get a paycheck through release time aren’t required to address labor disputes, for instance—or anything like that. And as the evidence in our case shows, the union actually uses it for political lobbying and advocacy.

That’s a problem, too, because the U.S. Constitution’s guarantees for free speech forbid the government from compelling people to fund political speech against their will. That was made clear when the U.S. Supreme Court ruled in the famous Janus case that it’s unconstitutional to force public sector employees to give money to unions—because public sector unions are inherently engaged in political speech.

And that fact also adds another dimension to our lawsuit. Six years ago, in a case called Cheatham, the Arizona Supreme Court rejected the argument that release time is an unconstitutional gift—because (it said) the money that pays for release time doesn’t go from the government to the union; instead, it goes from the government to the employee. It’s a form of “compensation.”

But if that’s true, then that means release time violates the rule against forcing people to subsidize political speech against their will—because if public sector employees are being forced to hand over their compensation to the union, which spends it on political activism, then that’s compelled speech.

In other words, under either circumstance, “release time” is unconstitutional: it either violates the Gift Clause because the government is giving its own money to the union and getting nothing in return—or it violates the Free Speech Clause because the government is forcing workers to give their money to the union to engage in lobbying.

That’s why we’re fighting this corrupt practice in Arizona—and all around the nation, too.

You can watch today’s oral argument here and you can learn more about the case here.

Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.