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Goldwater to AZ Supreme Court: Stop Government Funding of Public Sector Unions

August 29, 2023

Government subsidizes lots of businesses with tax dollars, but probably the most offensive way in which public officials give away your money is by subsidizing public-sector labor unions. These unions spend this money—your money—to lobby politicians in favor of bigger and bigger government—and they do this through a scheme known as “release time.” The Goldwater Institute has gone to court in states around the country challenging the legality of “release time”—and in a pair of briefs filed in the Arizona Supreme Court today, we’ve again urged the justices to put an end to these unconstitutional subsidies.

Here’s how release time works: the government signs a contract with a public sector union that includes paying salaries to employees who don’t work for the government, but who instead work for the union: recruiting members, supporting candidates, and engaging in other political activism…all on your dime.

That’s unconstitutional for two reasons: first, freedom of speech forbids the government from forcing people to finance political expression that they disagree with. Also, the Arizona Constitution specifically prohibits government from giving “gifts” to private organizations, including unions. In other words, any kind if subsidy is unconstitutional.

Nevertheless, our hometown of Phoenix uses “release time” to pay millions of taxpayer dollars to public sector unions, who use that money to persuade city politicians to expand the size and scope of government. That’s why we’ve asked the Arizona Supreme Court to take up our lawsuit against these multi-million dollar subsidies. But now supporters of public sector unions, including the Arizona Attorney General and the former chief economist for the Obama administration’s Labor Department, have asked the justices to let these unconstitutional payments remain in place.

In a pair of briefs filed today, we explain why they’re wrong. Advocates of “release time” claim that it promotes “labor peace”—meaning it helps public employees get along better—and that this ultimately benefits the public. This, they say, is justifies giving away taxpayer money over to labor unions. But that argument doesn’t work. For one thing, the actual contract the city signed doesn’t require the union to do anything to improve “labor peace.” In fact, it doesn’t require the union to do anything with the money it gets for “release time,” except to engage in “union business”—that is, to do whatever it wants.

Worse, the contract includes no oversight process to ensure that employees who get “release time” pay are actually doing anything for the public. They don’t have to report how they spend their time; they don’t have any officially assigned responsibilities—they’re basically on their own. And the evidence in our lawsuit shows what they actually do while being paid taxpayer money: they meet with and publicly endorse political candidates; they meet with elected officials, to lobby them for more government; and they publish newsletters urging voters to support the union leaders’ political desires.

Arizona courts have been quite clear that that’s not allowed. When government pays money to a private recipient, it’s required to oversee how the money is used, to make sure that the government’s goals are actually accomplished. Also, the government must get something in return—something proportionate in value to the amount the government spends. As the Arizona Supreme Court explained in one ruling, the government can buy, say, a garbage truck—but it can’t spend twenty times what the truck’s worth, or that constitutes the giving away of taxpayer money, which isn’t allowed.

But that’s not what the Arizona Attorney General wants. She filed a brief in the case urging the justices to take a “less mathematical” approach to cases involving government handouts of taxpayer money; and Obama-administration economist Heidi Shierholz filed a brief explaining how release time “ought to” improve the workplace, according to economic “theory.”

The problem with that is, Arizona courts have already said mere “theory” isn’t enough—what matters is evidence, or, as the justices have put it, “the realities of the transaction.” And as far as a “less mathematical” approach is concerned, that’s just asking the court to change the rules and allow government officials more power to hand out public money to whatever private recipients they consider worthwhile. That would be a major change in the law—and a very unwise one.

Arizona’s Constitution prohibits the government from giving away taxpayer money for good reason: because it’s unjust and foolhardy for politicians to subsidize private groups, whether they be railroad corporations a century ago, or labor unions today. Doing so encourages cronyism—and even corruption—and it distorts the democratic process by substituting the desires of government-funded lobbyists for the actual needs of the public. The Supreme Court should take our case and put a stop to such abuses.

You can read the briefs here and here, and learn more about the case here.

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



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