There had been many credible complaints against Chauvin for being overly aggressive and too “tightly wound” for the job. Those complaints went for naught because the city’s police commissioner had no authority to dismiss or even reassign him. The collective bargaining agreement between the police union and the city made it virtually impossible for city officials to take action against bad cops. Managerial control had been ceded to the union and cumbersome procedures meant to protect members were put in place. If only that hadn’t been the case.
In his latest book, Not Accountable, lawyer Philip K. Howard looks at the damage that has been done to America by allowing public workers to unionize. He writes:
Micromanagement and expansive rights 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 the legal underbrush is what’s needed to restore officials’ freedom to use common sense in daily choices.
Moreover, he argues, the power of public employee unions allows them to dictate governmental priorities, invariably with public resources flowing to union members rather than to public needs.
Collective bargaining / How did this happen? Private sector unions have existed and bargained with companies since the latter decades of the 19th century, but public employee unions were unthinkable well into the 20th. The early union leader Samuel Gompers opposed the idea of police unions, seeing a conflict of interest between public service and personal gain. And President Franklin D. Roosevelt, so friendly to trade unionism, was adamantly opposed to it in government, declaring, “The process of collective bargaining, as usually understood, cannot be transplanted into the public service.”
Nevertheless, by the 1960s, unions and collective bargaining for government workers was being discussed, with academics leading the way. Law professors argued that it was unfair to exclude public employees from having the same rights as workers in the private sector, suggesting that strikes might result if those rights were not granted. In 1962, President John F. Kennedy repaid unions for their campaign support by signing Executive Order 10988 allowing collective bargaining for federal employees. In 1967, New York passed a statute permitting state workers to unionize and bargain collectively. Today, most states have embraced public unionization.
The resulting government employee unions quickly began pressing their advantages. Although strikes were usually illegal, the unions discovered they could engage in them without adverse consequences. (President Ronald Reagan’s firing of striking air traffic controllers in 1981 was the exception to the rule.) They realized they could dominate public officials through collective bargaining contracts that spell out union rights in minute detail. Most significantly, they realized that through political action they could elect their friends to office and thus sit on both sides of the bargaining table. In that respect, one of the most telling illustrations occurred when New Jersey Gov. Jon Corzine bellowed to a union rally in 2006, “We will fight for a fair contract!” Howard asks, “Whom was he going to fight?”
Public unions now wield enormous power. Suppose that a city wants to compensate teachers for their abilities. The teachers’ union would block that because the contract specifies that seniority determines compensation. Therefore, old teachers who are just going through the motions must be paid the most, and young, energetic, imaginative teachers can’t be paid more than the contract specifies. The same holds for layoffs, which must be done in reverse order of seniority, not competence.
The teachers’ unions hate nothing more than competition and they have flexed their muscles to get their political allies to limit the growth of non-union charter schools. Last year, for example, the Biden administration proposed regulations that would force charter schools to serve “diverse populations.” The irony is that charters are highly popular with minority parents who want to escape from big-city public schools. One might think that a Democratic administration would be happy with better educational options for a key part of their voting base, but the unions have found a way to restrict charters by mandating that they enroll more white and Asian students.
Howard also focuses on the high personnel costs that follow from public unionization. Government workers are usually paid more than comparable workers in the private sector, but where the costs really mount are in pensions, which are often twice as generous as in the private sector. Giving in to union pension demands is politically easy because the big costs won’t hit for years to come. Eventually, however, the pensions must be paid and the politicians will either reduce services to residents or raise taxes to afford the pensions’ dollar drain. Making matters worse, it’s often easy for public workers to retire at a rather young age, qualify for their pension, then work for another branch of government for a few years to qualify for another pension.
The unions also use their political might to write laws they favor. In California, for example, unions pushed through a ballot initiative compelling the state to spend 40 percent of its budget on public education. All other needs will have to fight it out for the remainder.
Fighting the unions / Sometimes a mayor or governor wants to make changes in the arrangements with unions. Doing so is certain to lead to war. In 2006, Adrian Fenty was elected mayor of Washington, DC. He was serious about improving the District’s schools and appointed education reformer Michelle Rhee as school chancellor. She began closing the worst schools, firing hundreds of low-performing teachers, and instituting merit pay. Those moves were intolerable to the teachers’ union, which fought Rhee tooth and nail. It spent over $1 million to defeat Fenty in the Democratic primary in 2010, thus removing the reformist threat and intimidating future candidates who might have ideas about changing the status quo.
Similarly, Ohio Gov. John Kasich secured passage of a bill to require public employees to contribute modestly to their pension and healthcare benefits. The union establishment counterattacked with a $42 million campaign (with funds coming from unions nationwide) to take the law to referendum. With heavy campaign expenditures and a well-targeted get-out-the-vote operation, the unions won the election and defeated Kasich’s reforms.
The one instance Howard reports where public unions were beaten was in Wisconsin, where Gov. Scott Walker sought to make union membership optional for public employees, along with other changes to cut the state budget. The unions fought back by occupying the state capitol en masse for days on end. Walker was not deterred, and his bill passed. Then, the unions mounted a recall effort that fell just short of removing him from office.
Going to court? / Political successes against what Howard aptly calls the “bureaucratic kleptocracy” of public union control are so few and far between that he declares the situation “not reformable.” The unions have a chokehold that cannot be broken by regular political processes. For that reason, the author argues that salvation can only be found in the courts. How so?
His first argument is that elected officials have illegally delegated their authority to govern. Under the federal and state constitutions, neither legislative nor executive power may be delegated to other branches of government or to private parties. By ceding control over schools, police, and other functions to public employee unions, lawmakers have impermissibly delegated away their authority.
There is something to be said for this idea, but it’s impossible to imagine a lawsuit against, say, the governor of California for having delegated the authority to run the state’s schools to the unions surviving a motion to dismiss. The union lawyers would argue that state law has been followed exactly and if the plaintiffs don’t like the way the schools are run, they can vote for candidates who will do things differently. A judge is apt to agree.
Howard also contends that the Guarantee Clause of the U.S. Constitution weighs against the system of union control. That clause reads, “The United States shall guarantee to every state in this Union a Republican Form of Government.” Howard explains, “This provision forbids states from adopting any structure that might give operating control to an aristocracy or other permanent group, breaking the linkage between voters and governing decisions.” That’s essentially what states like California, Illinois, New York, and others have done by allowing public unions to take control of government operations. The solution, Howard writes, is for the Supreme Court to uphold the Guarantee Clause and rule that “organized political activity by public employees involves an unavoidable conflict of interest with the core values of the Constitution.”
Unfortunately, that too is almost inconceivable. The only time that a case involving a somewhat similar dispute came to the Court, it declined to intervene, saying that the matter was not justiciable. (That 1849 case, Luther v. Borden, arose in Rhode Island when two rival factions each claimed legitimate control over the state.) The current Supreme Court would be just as leery of wading into the political mess of a state like California and overturning established arrangements that empower the public unions.
If there is a solution, it will occur when enough productive people leave the cities and states that have made Faustian bargains with public unions and find their budgets so strained that they’re unable to meet all their obligations. If Uncle Sam resists the inevitable cries that these states can’t be allowed to go bankrupt and refuses to bail them out, then the remaining people will have to choose between big tax increases and politicians who pledge to govern in the public interest rather than the interest of the unions.
Although I see no prospect for Howard’s solution working, the book is nevertheless valuable for its examination of the manifold harms done by public union power. It cautions cities and states that have not yet allowed public unionism to get a foothold to continue to resist.
