It’s Time to Stop Passing the Buck—to Thieves and Forgers

If someone forged your signature to gain access to your paycheck, that would be a crime. It would be even worse if the government helped them do it. Yet in the wake of the U.S. Supreme Court’s landmark Janus decision—which held that government can’t force its employees to join or fund a labor union’s political activities—that’s just what state governments have been doing. They’ve gotten away with it so far—but the Goldwater Institute has joined with our friends at the Freedom Foundation to ask the U.S. Supreme Court to take up five cases of victims of public-sector union forgery schemes.

The story begins with the First Amendment, which prohibits the government from compelling citizens to associate with, speak in favor of, or financially support causes with which they may disagree. In Janus, the court made clear that this forbids the government from “presuming” that its employees want to support public-sector labor unions, and deducting money from their paychecks to fund these unions.

Since then, unions and their allies have invented clever ways to avoid these constitutional requirements. For example, many unions try to trap public employees into paying dues by limiting when they can leave the union, usually through short, even secret, opt-out windows.

But it also turns out that over the years, many unions have simply forged people’s signatures on membership cards, and government employers never asked questions. As a result, these agencies just kept deducting money from people’s checks and handing it over to the unions.

Now, many of these workers have filed lawsuits against states for their part in these thefts. And in response, government employers across three states argue that the unions committed the fraud, so the government isn’t liable—but that the unions don’t qualify as “state actors,” and therefore cannot be accused of violating the First Amendment (which only applies to government entities).

In other words, government employers facilitated a fraud—and are now literally passing the buck…to the forgers.

But the government has a constitutional duty to prevent participation in illegal activity. When it takes someone’s property at the request of someone else (using procedures the government created), that makes the government and the requester joint participants in the scheme, and both can be held accountable for constitutional violations.

The government’s responsibilities here aren’t all that demanding. Janus merely requires that a  government employer prove that an employee freely agreed to join a union and to pay dues before taking money out of the employee’s paychecks and handing it to the union. That just means getting someone’s (actual!) signature on a piece of paper. The government cannot just blindly accept a union’s claim that the employee consented. It must be able to show that the employee voluntarily agreed to payroll deductions for union dues.

But for years now, unions—and courts—have resisted Janus, and countless public-sector employees have paid the very real price. It’s time that this massive resistance come to an end—and along with it, the unconstitutional forgery schemes that have only enriched the powerful at the workers’ expense.

You can read our Supreme Court brief here.

Click here to read more about Goldwater’s work to protect employees from being trapped in public-sector unions.

Parker Jackson is a Staff Attorney at the Goldwater Institute. Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.