On August 14, a new citizen initiative was filed with the California Attorney General’s Office. The “Elijah McClain Police Accountability Act” (Initiative) contains a wide variety of proposals ranging from eliminating qualified immunity to restricting the rights of law enforcement unions. Although a number of the proposals are problematic, unconstitutional, and impractical, this blog post focuses specifically on the provisions restricting the First Amendment rights of “police unions.”
A police union shall be compelled to
dissolve if it uses funds to impact an election or the actions of an elected official
by:
i.
Donating to a candidate or a candidate’s
campaign, or;
ii. Donating to a Political Action Committee {PAC)
or any other individual, group, or entity who intends to use the money to
influence an election or a candidate, or;
iii. Buying advertising space for the purpose of
promoting or denigrating a candidate, a public referendum, or a bill, or for
the purpose of promoting the repeal or alteration of an existing law.
As an initial point, there are very few “police unions." Instead, most law enforcement organizations in California are employee associations recognized as the exclusive bargaining representative for sworn personnel in that police department. These associations are protected by the Meyers-Milias-Brown Act (MMBA), which was modeled after the National Labor Relations Act (NLRA) and grants collective bargaining rights to California’s local government employees. While these associations perform a wide variety of services for their members and the community, their main function is to collectively bargain on behalf of their members.
More importantly, the proposals in the Initiative would violate unions’ First Amendment rights. The U.S. Supreme Court held in Citizens United v. Federal Election Commission (2010) 558 U.S. 310 that corporations, including unions, have First Amendment rights. This includes the right to make campaign expenditures. Prohibiting unions from endorsing candidates and legislation or from contributing to campaigns is a clear violation of these First Amendment rights. Similarly, requiring unions to dissolve for engaging in First Amendment protected activity is unconstitutional.
While Mastagni Holstedt supports increased transparency in politics, violating unions’ First Amendment rights is not an appropriate or effective solution.
