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The Gift of Public Funds Bogeyman

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Article 8

This 2025 Washington Law Review article argues that Washington State's 'gift of public funds' doctrine—which prohibits governments from giving away public assets—is widely misunderstood and far less restrictive than most officials believe. The authors, both attorneys in Washington's Solicitor General's Office, explain that modern court interpretations allow governments broad flexibility to fund programs serving legitimate public purposes, and note that no appellate court has struck down any government program under this doctrine in the past 45 years. The article urges public officials and lawyers to stop letting unfounded fears about this doctrine block innovative policy solutions to problems like homelessness, childcare, and climate change.

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Notes

Noah Purcell (Washington State Solicitor General) and Michelle Saperstein (Assistant Attorney General) argue in the Washington Law Review (Vol. 100, No. 2, 2025) that Washington’s ‘gift of public funds’ doctrine under article VIII, sections 5 and 7 of the Washington Constitution is systematically misunderstood and over-applied by public officials and government lawyers. The article analyzes Washington State Supreme Court jurisprudence on the gift and loan prohibitions, the ‘fundamental purposes of government’ exception, the ‘poor and infirm’ exception, and donative intent standards, concluding that no appellate court in Washington has found any government program to be an unconstitutional gift of public funds in the last forty-five years. Topics include homelessness, childcare crisis, climate change, local government funding, and constitutional law under RCW and Washington Administrative Code context.

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