Public Unions vs. the Public Good
Elected leaders come and go, but public unions just say no.
Derek Chauvin, the policeman who killed George Floyd in Minneapolis in 2020, had a history of citizen complaints and was thought to be "tightly wound," not a trait ideal for someone patrolling the streets with a deadly weapon. But under the police union's collective bargaining agreement, the police commissioner lacked the authority to dismiss Chauvin, or even reassign him. The lack of supervisory authority resulted in harms that continue to reverberate in American society.
No society, organization, or group of people can function effectively without accountability. Accountability is essential for mutual trust. The prospect of accountability is the backdrop for a culture of shared energy and values. "A social organism of any sort whatever, large or small, is what it is because each member proceeds to his own duty," philosopher William James noted, "with a trust that the other members will simultaneously do theirs."
The absence of accountability, by contrast, is a recipe for a cynical and ineffective organization. Why do what's right, or go the extra mile, when you know performance doesn't matter? Distrust corrodes daily dealings. The broad sense that bad cops get away with abusive conduct helped fuel the national protests after the killing of George Floyd.
Accountability is basically nonexistent in American government. Performance doesn't matter. The Minneapolis police department had received 2,600 complaints in the decade prior to 2020. Twelve led to discipline, of which the most severe was a 40-hour suspension. Blatant misconduct is just the starting point for a negotiation. In 2019, a school principal in New York was discovered to have created a fraudulent system of school achievement. His penalty? He lost his position, but, because of public employee protections, he will get full salary and benefits of over $265,000 annually for the next seven years. An Environmental Protection Agency employee, caught red-handed surfing porn sites in his cubicle, was paid for almost two years until he made a deal to retire.
The lack of accountability isn't a secret, of course, nor is the reason. Police unions, teachers unions, and other public sector unions have built a fortress against supervisory decisions. Political observers rue union power but treat it as a state of nature. No matter who is elected, no matter what their party, they hit a brick wall of union resistance. California Govs. Jerry Brown and Arnold Schwarzenegger, Chicago Mayors Rahm Emanuel and Lori Lightfoot, New York Mayors Ed Koch and Michael Bloomberg—they all crashed into the union wall.
Lack of accountability, however, is only the tip of the union iceberg. Almost without anyone noticing how it happened, public employee unions have taken a tight grip on the daily operations of government. While headlines from Washington and state capitols focus on policy initiatives, say, dealing with COVID-19 or climate change, the operating machinery of government grinds along at half capacity or less. No decision is too small to be vetoed by a union entitlement. A New York City Parks Department employee filed a grievance against a supervisor who asked him to straighten his nameplate. The worker argued that the supervisor had made an "inappropriate unannounced visit."
The harms of unmanageable government ripple through every part of society. The resulting inefficiency basically burns taxpayer money. "On average public service delivery is 35 to 95 percent more expensive than contracting" out the services to a private firm, David Osborne and Ted Gaebler reported in the 1992 book Reinventing Government. Rigid job categories substantially raise maintenance costs at New York's Metropolitan Transportation Authority; a worker doing signal repair is not allowed, for example, to cut an overhead branch. The size of work crews is bloated by the need to assign workers for each job category even if that part of the work is incidental.
Governing is not just about money. Government provides essential services that, in many ways, influence our culture and future. None is more important than schools. But decades of reforms have done little to fix the bleak performance of many school districts. After Hurricane Katrina forced the closing of schools in New Orleans, however, the public school system was replaced by independent charter schools no longer subject to teachers union collective bargaining agreements. The differences were transformative. It was as if someone switched on the light. High school graduation rates improved from 52 percent to 72 percent, and gaps between racial groups narrowed.
About 22 million people work for government in America, two-thirds at the local level, as cops, teachers, inspectors, sanitation workers, social workers, highway crews, and many others. Most federal programs are implemented by state and local employees. Overwhelmingly, studies and stories suggest, these public employees want to do what's right. But many, perhaps most, are stuck in public work cultures that bring out the worst in people. It's dispiriting to work in a setting where people focus on entitlements instead of pride in accomplishment. In the 2015 book Government Against Itself, political scientist Daniel DiSalvo tells the story of a female painter from the facilities department at City College of New York (CCNY) who, having seen DiSalvo talk about union rules on television, stopped by on her coffee break:
In her late 40s with a strong Queens accent, dressed in a white t-shirt and white painters' pants, she was clearly a strong woman who had worked hard in a profession dominated by men. She told me that she'd been working at CCNY for about a year—mostly, she said, because of the attractive pension and health benefits. But she hated it. She couldn't believe how much time it took to do anything. She couldn't believe what people were paid for what little work, in her telling, that they did…. She couldn't stand the detailed rules. She felt insulted because they didn't allow her to prove how fast and how talented a painter she was. The combination of unionization and government employment was undermining her pride in her craft. And she worried that the poor upkeep of many buildings was a disservice to the lower-income, immigrant, and first-generation college students.
Something is terribly amiss in a public culture where good people can't do their best. The only path out is to liberate people to act on their best judgment. Give people responsibility and give other people the responsibility to oversee them. That's the basic framework of the Constitution—allocating powers among different officials and branches.
Political candidates often call for a return to responsibility. But it doesn't happen. That's largely because public employee unions in most jurisdictions have a veto on key aspects of how government works. The federal government and 38 states have authorized in some form collective bargaining—giving unions the exclusive right to represent public employees. In most of the remaining states, public employee unions have consolidated sufficient political power to block or influence reforms they don't like. The banner that flies over the union fortress reads "Just Say No."
Elected leaders come and go, but public unions just say no. The veto power of public unions comes from an arsenal of legal rights that were acquired and are enforced by hard-knuckle political power. In 1979, the New Jersey teachers union demonstrated its ability to organize the defeat of politicians who disagreed with union positions. Democratic Assemblyman Daniel Newman, the Education Committee chair and "one of the most powerful figures in New Jersey education," opposed increasing state aid to schools and giving teachers the right to strike. The state union, with help from the national union, mobilized an anti-Newman campaign that led to his defeat in the next election. The message was not lost on other legislators: "As a result of my experience," Newman noted, "legislators are scared of the teachers groups."
Public union power is not the focus of continual exposés and scandal probably because, at this point, almost everyone takes for granted the preemptive union position and the resulting public inefficiencies and idiocies. But the abuse of power by public employee unions is the main story of public failure in America—worse even than polarization or red tape. It is not possible to bring purpose and hope back to political discourse until, as a threshold condition, elected leaders regain the authority to run public operations.
Bad schools, unaccountable police, and other endemic failures of modern American government share one defining trait: They are impervious to reform. No matter who is elected, no matter the voter demand for change, government almost never changes how it works. It can add new programs, but periodic reform attempts in schools and other areas generate noise without results. Government grinds slowly toward the future like a huge robot, programmed decades ago to do things one way.
The effects are predictable: growing citizen frustration and anger; broad distrust of police and other governing institutions; students ill-educated to compete and even to be self-sufficient; and stupendous public inefficiency and waste. Some states are insolvent, unable to meet their future obligations.
Running decent schools should not be the great challenge of our time, nor should terminating a cop with a hair-trigger temper, or cutting fat from bloated public programs. Every election, American voters elect new leaders who promise to do these things.
They all fail, for one main reason: Elected executives—the president, governors, and mayors—no longer have effective authority over the operations of government. Nor do their appointees. Nor do public supervisors, such as school principals, police captains, and crew chiefs on highway repair teams.
Over the past five decades, starting with the legalization of public collective bargaining in the 1960s, public employee unions have progressively imposed restrictions on public managers. Collective bargaining agreements effectively bar the most important management tool—accountability. They also preclude basic management choices, including reassigning personnel and allocating responsibilities for projects. They restrict mundane managerial prerogatives, such as dropping in on a classroom or asking people how to improve things.
The plague of public powerlessness has other sources as well. Another governing change coming out of the 1960s was to prescribe one correct way to do things—resulting in thousand-page rule books. Instead of a simple framework of understandable goals and principles, law became a micromanagement headache for officials as well as citizens. To top it off, an expanded idea of individual rights allowed any disgruntled person to throw a monkey wrench into any decision he or she didn't like.
Micromanagement and expansive rights also became integral to the public union playbook for control—no innovation is allowed unless the official can show it complies with a rule; no decision about a public employee's performance is valid without objective proof in a trial-type hearing. Clearing out this legal underbrush is what's needed to restore officials' freedom to use common sense in daily choices. But that can never happen unless officials can be accountable when they abuse the privilege. The public employee unions won't budge.
The harm to the common good caused by all these restrictions is irrefutable: Government is failing in its core responsibilities. No plausible public purpose is served by restrictive union micromanagement. Nor is there any public purpose for abusive fiscal entitlements in public union contracts—including overstaffing, massive overtime for minor schedule changes, and pensions "spiked" by rigged overtime in the last year of work. Government can't possibly deliver what taxpayers deserve until elected executives are reempowered to make basic management decisions. But public employee unions block the door to a better government, arms crossed.
Reading through the catalogs of union restrictions and entitlements, it seems that unions must have extortive power. How else could they secure restrictions and benefits so one-sided and harmful to the public interest? In fact, public employee unions do have extortive power. For starters, government can't work without public employees. Government is not like a factory that can be moved elsewhere when labor demands are unreasonable. Also, unlike trade union negotiations, public employee unions have little downside risk with excessive collective bargaining demands—no matter how much unions take from taxpayers and the public good, government can't go out of business. Nor is there any other organized opposing force—just the broad interests of the public good.
Against this backdrop of little resistance, public employee unions have become the elephant in the room of American politics—one of the largest campaign contributors and also the largest source of campaign workers. All this political power is consolidated toward one goal—protecting and benefiting public employees against decisions by elected officials and public supervisors. For five decades since the 1960s, public employee unions have flexed their political muscles to control government operations through statutes and collective bargaining agreements.
Political leaders sometimes try to cajole or entice unions into lifting the most onerous restrictions, with occasional marginal movement. But only a few officials have been willing to endure a holy war with public unions. Even reformers try to work around the elephant instead of pushing it out of daily operations. What else can they do? Mobilizing the political will to clean out decades of union entitlements is so unrealistic that no party has that platform.
But unions have gone too far. All these controls and restrictions have disabled basic principles of constitutional government. Executive branch officials no longer have the authority needed to fulfill their democratic responsibilities. Eliminating accountability and supervisory judgment removed the main tools of public managers. What is left are facades of governing institutions without the activating powers for executive officials to make things work.
In our constitutional republic, legislatures are not authorized to pass laws that gut executive power. Nor do governors and mayors have authority to abdicate or delegate their executive power, even when they want to for political gain. A core constitutional principle applicable to both federal and state government is the "nondelegation doctrine," which protects state sovereignty by preventing delegation of core responsibilities to private groups. Specific provisions of the Constitution are also violated by statutes that mandate collective bargaining and cede management controls to public unions.
The executive branch must regain power to provide public services effectively and implement legislative goals. The structure of American government, reflected in the federal as well as almost every state constitution, divides the power into executive, legislative, and judicial branches. For the federal government, a long line of Supreme Court precedent interprets the scope of "executive Power" and makes clear that Congress cannot, for example, take away the president's "exclusive and illimitable power of removal" of executive officials. Statutes that remove the authority to hold public employees accountable, and that restrict executive prerogatives by requiring collective bargaining agreements, unconstitutionally restrict executive authority.
The Constitution requires that state and local elected officials retain the authority needed to fulfill their governing responsibilities. While there is judicial disagreement over whether courts should enforce it, the Guarantee Clause in Article IV provides that states must have "a Republican Form of Government"—requiring governing power to be exercised by officials who are accountable to voters. Giving governing controls to any "favored class" is a violation of the Guarantee Clause.
Public employee political activity raises constitutional issues of first impression regarding the conflict between union political activity and the fiduciary duties of public employees. Unlike other politically active interest groups, public employees occupy a position of public trust. Their fiduciary duty stands in direct conflict with organized union political activity aimed at securing legal powers and benefits that undermine constitutional governance. In upholding restrictions on federal employee political activity 50 years ago, the Supreme Court cautioned "that the rapidly expanding Government workforce should not be employed to build a powerful, invincible, and perhaps corrupt political machine." Those fears have been realized. The conflict of interest by public employees in negotiating against government is notorious and unavoidable and requires a constitutional bright-line test against public sector union political activity.
At this point, five decades into the age of public union power, public employee unions consider all these legal controls and restrictions their entitlement. Public unions will note that all these restrictions have been approved by legislatures and elected officials, using democratic processes. But those approvals can't rescue the constitutional defect: the preemption of essential executive powers. Nor does continued legislative acquiescence, in the face of union political power, in any way mitigate the unconstitutional harms to government and to society as a whole.
The operating machinery of American democracy is now in the grips of public unions. Voters elect officials who have been disempowered by union controls. Problems don't get fixed. Bad public employees can't be fired. Public resources are squandered. Leadership has turned into finger-pointing. Extremism flourishes as institutions flail. Citizens are justifiably cynical and distrustful, because modern government is organized to fail.
This excerpt is adapted from Not Accountable: Rethinking the Constitutionality of Public Employee Unions, by permission of Rodin Books.
This article originally appeared in print under the headline "Public Unions vs. the Public Good".