Public Union Constitutionality: Returning Government Accountability to the People

Please excuse typos.

Welcome to Hubwonk, a podcast of Pioneer Institute, a think tank in Boston. Derek Chauvin, the police officer convicted for killing George Floyd, was a member of a police department that had received 2,600 complaints in the prior decade, for which only 12 led to discipline and no terminations. This lack of accountability for performance in police forces as well as public schools, mass transit, and other public services, is owed in no small part to the power of public employee unions. Those who fight for reform understand that it is union leadership rather than elected officials who must be bargained with before government can serve the larger public. This power of public unions to superintend the process of government—indeed to use collective bargaining to become de facto legislators—grants governing power to groups that answer to their membership but are not accountable to the public at large. Indeed, owing to the power of public unions to influence elections and effectively choose their own candidates, neither voters nor well-intentioned reformers have the ability to wrest authority back to the people. But does this distortion of the process of governing run afoul of our Constitution’s imperative that all power lies with the people? Does collective bargaining with public unions violate our Constitution’s prohibition of ceding government power to protected classes? And is there a legal cure for dysfunction that is beyond the reach of reform and for government institutions that are at present intractably ungovernable? My guest today is Philip K. Howard, attorney, policy reform advocate, chair of Common Good, and author of six best-selling books including the recently released “Not Accountable: Rethinking the Constitutionality of Public Employee Unions.” As a longtime advocate for better governance, Mr. Howard contrasts his support for the fiduciary mission of public servants with the many ways in which public unions act against the public interest. His book examines the ways in which the structural public unions cede governing power to unelected officials, leaving government ineffective and unaccountable. Mr. Howard’s forged several legal theories challenged the constitutionality of public employee unions and asked readers to consider if the courts may be able to reform what voters and well-intentioned elected officials cannot. When I return, I’ll be joined by attorney and author Philip K. Howard. OK, we’re back, this is Hubwonk. I’m pleased to be joined by attorney, reform advocate, and author of the newly released book “Not Accountable: Rethinking the Constitutionality of Public Employee Unions.” Philip Howard, welcome to Hubwonk, Philip.

Phillip: Nice to be with you, Joe.

Joe: Well, it’s a real honor. I enjoyed—I was captivated by your book “Not Accountable.” You’re a distinguished author with five other books. I haven’t had the pleasure reading all of them, but I promise to dive into them more thoroughly. But in this book, it seemed to me from reading it, for me it seemed to me something of a cri du coeur from someone who is passionate about the good workings of government wanted to do a better job and for some reason or other the government can’t govern. So, you make a clear argument that one of the reasons we have such a hard time governing ourselves is public employee unions. I want our listeners not to take away that we are opposed to unions, organized labor in general, but we’re singling out public employee unions. What’s the fundamental difference between private trade unions and what we’re talking about—public employee unions.

Philip: They’re completely different. The origin story is different, but fundamentally trade unions basically involve negotiation between capital and labor about how to split the pie of profit. That’s generally what happens now, and I think trade unions can play an important role in keeping all employers honest. So, many big employers don’t want to unionize because they don’t want to have that interference with management, but the fear of being unionized makes them have fairer practices for their workers. So, I think you know it’s useful thing. Public unions never had the problems that they gave rise to the private unions you got working for government sort of sleepy, there were civil service protections already you know so they were protected there were no scandals or abuses or the like that gave rise to this and the difference in FDR was very clear that that trade union because notions could not be transplanted as he put it into the public service because of a couple of things. First of all there are no market forces in public negotiation that limit how much people can go for. If you go for too much in the private sector the employer will go out of business and everybody loses their job, the employer will move out of town. Government can’t move out of town, so if so the unions can get away with they get away with and the politicians and the taxpayers have to pay, so there’s really no limit except public outrage to what they can bargain for. But the more important difference is the nature of negotiations. It would be unlawful for management and complicit labor in a business context to collude, to somehow do something to hurt the shareholders. That’s actually unlawful under the National Labor Relations Act. Public bargaining is really nothing but collusion. The public unions devote huge resources to getting favorable candidates elected. I mean, we’re talking tens of millions of dollars sometimes with governors with busloads of union workers and such manning their campaigns and then when they get elected they don’t sit on the opposite side of the bargaining table, they go to the same side of the bargaining table and say now what are you going to give me? And so it’s not really a negotiation, it’s a payoff and this is something that only happened in the last 50 years. So people, the public, really never was aware of how different the negotiations and the stakes were in the public sector versus the private sector.

Joe: You lay that out very well. I want to go to something more fundamental that when one is a public servant one has arguably official responsibility to the public in other words one has of course private interests you want a comfortable working space you want fair wages but ultimately are working for someone else not for yourself, it’s like what does that mean to be a fiduciary versus being a private employee?

Philip: Yeah so the concept of fiduciary duty in law comes up when someone occupies a position that gives them potentially undue power over another. So, for example, a lawyer official duty to a client because the lawyer could has all the clients confidences, right, and it can’t and so it had the duty not to somehow use those for real purposes someone has a custodial of money or a trustee of a family trust has a fiduciary duty because they have in their control all these resources that are designed to be used to benefit another person, and so they have to have a higher duty to simply the duty that workers have for their employers which would basically a duty to contract. What’s similar with public employees—public employees have enormous power over the public.  They’re the ones who get permits or not they’re the ones who arrest you on the street or search you or not, for the cops. They’re the ones who are trying to run the best possible schools and the law is that they owe a fiduciary duty to the public they have to be looking at for the public interest FDR again was very big on this he said you know the problem with public bargaining by unions is that it puts the unions first in line over all other public interest whereas a political leader owes his complex responsibilities, his fiduciary duty, as FDR put it, to the whole people, to the whole people.

Joe: So, another way of saying this is if we’re public school teachers our obligation is to good education, not the welfare of teachers, necessarily, we want to make sure our kids get educated. Or police, at least we want to make sure putting lives in danger but for public safety in other words going and chasing the bad guy for my safety not for their own, they have an extraordinary responsibility to the public to the whole public not to themselves and if they ultimately organized and negotiate for their particular cause they’re essentially on both sides of the table.

Philip: So you know teachers have a right to a fair salary and conditions and such and there was actually an interesting ethical ruling in Massachusetts a few years ago they basically said it’s fine for public employees to negotiate for the kinds of things that a typical private employer would negotiate for, you know make sure they have a fair salary, but that doesn’t include putting in controls over the management of the public sector nor does it include controls that make it virtually impossible ever to hold anyone accountable in in the public sector. So, what the unions have done with this power is really become a kind of co-government. You know, it’s multi-hundred page collective bargaining agreements that make it hard for any federal supervisor anybody not federal any government supervisor any you know person running a police station or a school to make the kind of management choices needed to make it be an effective, to provide an effective public service.

Joe: So I want to develop the this concept of why public unions can create a situation whereby as you mentioned it becomes impossible to manage a government affairs. You start your book off with a particularly poignant example, the case of Derek Chauvin, the policeman who was responsible for George Floyd’s death and the fact that he had a pretty checkered past, one that everybody knew about and in a sense the police themselves, the good police and the good police management, really weren’t able to right move him away from the force you cite your book many examples of the low rate at which bad public employees are fired. So, share this why that story is so important to your thesis.

Philip: Well, democracy is a process of accountability. You know, voters elect someone to run government, and if they do a lousy job they elect someone else or elect a different party. And for accountability to be meaningful it has to extend from the elected executive, the mayor or the governor, down through the ranks, so, as Madison put it, the lowest level the middle level and the highest grade must be in a chain of dependence with the president in order for democracy to work. What’s happened with public unions is it’s basically impossible to get rid of a public employee unless they, you know, committed this crime or say something politically incorrect. So there was one study in Illinois—two out of 95,000 teachers a year over an 18-year study period were dismissed for poor performance. In California it’s even lower. The Massachusetts numbers are I think or something like .01 to .02% so you have a situation where everyone knows that performance doesn’t matter and the problem with that in government is not that there are lots of bad people in government—I assume most people want to do a good job they go into government for the right reason I assume—the problem is it’s very hard to maintain a culture of service and excellence and pride when you know performance doesn’t matter, because you don’t have the mutual trust that everybody else is working hard to make sure it works well. You know it doesn’t matter so it’s like letting the air out of the balloon. So you have this gray dreary public service that repels good candidates for public service because the bedrock condition of any good organizational structure, accountability, is non-existent.

Joe: Indeed your book talks about the fact that both in the police force and in teachers more people die while in in service than are fired for performance.

Philip: So I mean in the Minneapolis Police Department which is where Derek Chauvin were in the prior decade that that killing they’ve been something like 12,000 complaints or more than that of which only a handful resulted in any discipline and the most severe discipline was a 40-hour suspension.

Joe: Indeed and of course the victims of that—we can name a lot of them of course George Floyd being one of them, it’s terrible what has happened, but of course now the public paints policemen with such a broad brush when it’s a very small minority of of policemen who are who do these heinous acts but of course because they can’t be fired yeah now all the good policemen are painted with this awful brush it must be terrible for morale and performance .

Philip: Right, that’s correct, so there are lots of studies of what it takes to for increase example to overhaul the culture of police well you’ve got to instill new values so that police don’t tolerate misconduct when they see it they don’t have the blue wall of silence or whatever it’s called you know and but that requires you to hold people accountable and without accountability it’s basically impossible to fix a public, any culture.

Joe: Indeed and again your book also talks about current events this past terrible pandemic we have public teachers unions and you know they were a difficult situation but when the smoke started to clear and have a teacher asked to go back to work or teach remotely they really relied on a union contracts as excuses for not moving forward and getting the education to the kids.

Philip: Right, it is truly a tragedy, I mean the effect, particularly on inner-city kids, of not going to school for two years is apparently almost irreparable, that they were testing at  17 percentile points lower than they were two years before at the end of the pandemic but the teachers union said well the contract said nothing about teaching in a pandemic so they refused to come back and then they’re asked to do remote teaching, similar contracts said nothing about that, so that had to be negotiated and in most places was negotiated so that it was less than half of the typical teacher’s work day, you know like in one county it was three hours of distance teaching but it’s not just big events like the pandemic, the smallest things, asking someone to help out you can’t do in in most public agencies, because that has to be negotiated government agency moves in office you have to negotiate who sits at what desk. Literally, you get a new software program for the federal government you have to negotiate how to use the new version of Word, you know, or whatever you know on your computer. And a work crew on transit is out fixing things they see an overhanging branch the contract doesn’t allow them simply to stall off or rip off the branch they have to call in a new work crew so that there are studies that show that for example basic municipal services cost two to three times what they would cost in the private sector because of all these work rules so what conceivable public justification is there for taxpayers to pay twice as much when those resources could be used for dealing with homelessness or providing a music program with the school, or anyone of you know any one of a number of public goods? And these collective bargaining agreements of multi hundreds of pages are not there to guarantee a fair salary—you could do that in two pages—they’re there to micromanage government in a way that basically makes it fail.

Joe: Indeed, the teachers and policemen I know have all kinds of ideas on how they could perform better and deliver better services but largely the barriers obstacles to reform really are their own union representatives they’re not allowed to improve because it would undermine the power of the union.

Philip: I mean just in New York it’s against the collective bargaining agreement for a supervisor to ask employees how they would do things better. That violates the direct dealing requirement. You can only negotiate with the union rep you can’t ask other employees about better ways of serving the public. I mean truly it’s a system it’s almost like some kind of pathological personal relationship where the unions want to show who’s in control so they negotiate all these requirements that really don’t help anyone except maybe featherbedding you know which hurts the taxpayer.

Joe: Indeed. Well, I don’t think banging on about the problems of public unions make us either of us particularly regional thinkers what I think about fantastic element of your book is you can make a very strong case that the process the system itself is unconstitutional. You’re an attorney you study this deeply so I want our listeners who are not constitutional scholars to understand your argument take them piece by piece you know if I’m going to generalize, I think or you know summarize what we’ve said already there ought to be by the founders’ design a direct accountability from the voter to the people we put in charge to their ability to do their job we hire somebody as our representative and they implement policies the policies and we decide whether they’ve done a good job or not, and if they don’t we throw the bums out. If they do a great job they stay in office at this point we say let’s say a high level those politicians that we elect really have their hands tied by—if they want better teachers and teaching they have to deal with thet eachers’ union, if they want better public safety to deal with public safety people but let’s get to the constitutional argument and you alluded to it in your first answer it’s an Article 2 issue which is we need our elected representatives specifically the president or the executive branch to be able to do his job or her job. Explain for our listeners why this is an constitutional Article 2 issue regarding employee public employee unions.

Philip: Well, Article 2 applies to the president and the executive branch so it’s only the federal government but there’s an enormous amount of law under Article 2 that Congress cannot—by law I mean Supreme Court precedent—that Congress cannot take away the president’s quote exclusive and illimitable power of removal of public employees. So for the president to run the executive branch he has to be able among other things to choose who’s doing a good job and who’s not, without any room for reasonable disagreement the Civil Service Reform Act of 1978 which mandates collective bargaining and mandates these very detailed procedures that effectively insulate federal employees from accountability, prevents that. And so, in my judgment, it’s clearly unconstitutional. The idea of executive power, though, as you alluded to it comes from a broader constitutional doctrine that comes out of John Locke’s Second Treatise, which is that when voters elect somebody to govern, they can’t delegate that governing power to any private group. That they have to—it’s a trust given to them by the voters and they have to keep that responsibility and everyone learns in civics class that that the constitution creates a Republic and what that means is that we elect people not to do what we say but to act on their best judgment for a period of years to run the government. So, they have to be accountable to the voters but they have a period of time during their term in office in which they have to take the responsibility to make decisions. And what the unions have done is —with legislative help from state legislatures and others—have taken away the authority to manage government, so that when we elect the mayor, he actually has no authority to fire a rogue cop. We elect the mayor appoints a school head of the schools—they don’t have authority to actually go and transform lousy school because there’s no accountability and all these work rules, so any of the tools needed for management are not available. So we’ve effectively delegated governing authority to a private group, these public employee unions, and I argue that that’s clearly unconstitutional.

Joe: Yeah, you’re again, we could go on about all the instances of bad governing that good elected officials have their hands tied they are literally unable to reform dysfunctional organizations because of these rules. But rather than feel despair—and I think despair is a disease—your book does have some a few stories of success that actuallyfor all the problems we talk about some elected officials have had the courage to  reform these public employee unions. You’re opening was Mitch Daniels did you the foreword of your book he’s a hero of mine he’s from Indiana he did his work in Indiana you also talk about Scott Walker in Wisconsin. Share with our listeners let’s say someone who was brave enough and the fire they had to walk through to make some—

Philip: Yeah, so the opportunities here really are huge and you know I mean for decades now people have just treated public unions as a state of nature like it’s a mountain range we can’t do anything about but in fact if they are unconstitutional because of what they’ve done to governance then the message is actually incredibly optimistic. So, Mitch Daniels was able to get rid of all union bargaining except over salaries. He kept that and he wanted to manage government, and the result he was able to do that because bargaining had been permitted in Indiana only as a matter of executive order so he could change that executive order as governor and he did it and really within a year agencies started working much better than they were. You know you could you renew your license you know and in a matter of minutes rather than take half a day out to do it and such you know it’s just you know basic services work better. Scott Walker had to change the law in Wisconsin when he was governor and the unions to say that they opposed him would be an understatement—they, 100,000 people invaded the capital protesting his law, all the Democratic legislators left the state so there wouldn’t be a quorum to vote on his law. He eventually got the rules changed so that he could exercise management powers again over the state and then the unions brought in national unions, brought in 10s of millions of dollars and initiated a recall of Walker to try to get him out of office. And so there was another election, another year and a half goes by with 10s of millions of dollars spent. He won that. Then the unions got a Democratic District Attorney to indict Walker for alleged campaign finance abuses during the recall election and that ultimately was thrown out by the Wisconsin Supreme Court. But the whole battle took four years. But the end of that Wisconsin was governable again and they’re saving literally five or more billion dollars a year. The school test scores have gone up, and the Republicans have come to office since Walker—I mean the Democrats that have come to office since Walker left, they haven’t wanted to put the controls back, because if you gave truth serum to any Democratic governor or mayor, they would like nothing better than to get rid of the union controls because they can’t manage their own government because of it. So it’s a success story but it’s also a story that shows why few people do it. I mean, John Kasich, when he was governor of Ohio, succeeded in getting a similar reform as Gov. Walker’s and then the unions came in with 10s of millions of dollars and they had it reversed you know in the next in a voter referendum initiative. So, the odds of winning are very small given how powerful and big the unions have become. People and I talk about this and not accountable but what the unions have done have become basically a new spoil system. And they’ve harnessed the power, the size of modern government—which is huge, it’s almost half the economy—they’ve harnessed the size of it through the millions of workers who work for government into an interest group dedicated to preventing the reform of government, you know. So, you can’t reform government because the people who work for it want to keep their power and their featherbedding and their prerogatives and this is not what the Framers had in mind when they created our constitutional system of governance.

Joe: And indeed I think our listeners you know I hope they don’t take away some sort of political valence of this. Certainly the Democratic Party is perhaps more sympathetic to labor and the Republican less, but I just say everyone, all of our listeners, want good governance. So that our listeners who may skew more progressive who may be inclined to support public employee unions as a knee-jerk reaction, ultimately they want better schools, safer streets, public transit to work. They literally, perhaps in private, should join the fight for meaningful reform. Yeah, so if you study the way public service works in this country—and I have a number of stories in Massachusetts about how it works in Massachusetts—you would be hard pressed to find any provisions any of the powers that the unions exercise that are, one, in the interest of the public—they’re all antisocial, they use up taxpayer dollars, they make taxpayer service less efficient—or comport with basic principles of fairness. Look at what they’re doing. I mean, I’m all for fair treatment of public workers—we’re about to do some forums on what a good deal for teachers should be and a good deal for cops etc.—You can’t look at these contracts and justify them in my view on any basis. They’re simply destructive of everything that we ought to stand for. First, good government, and secondly, fair treatment of public employees.

Joe: So, you mentioned of course we are in Massachusetts a true blue state from governor down to I guess dog catcher and it seems something like this kind of reform is let’s say unlikely at the state level, I’ll just throw that out there. You have a more again we’re talking about the federal Constitution, the argument in your book, you make an Article 4 which is perhaps less well known by our listeners that the constitution mandates that all states you know again they’re cosovereigns they can run it as they like but that it’s a federal Constitution, a mandate that states must have a small-r republican form of government in other words representative sort of Madisonian , Burkean form of government and in the case where we’ve got these sclerotic systems where public unions make it impossible to govern, essentially there’s that argument essentially, you can take a federal case against these kinds of entrenched unions.

Philip: Right, you know I think people have largely accepted my argument about Article 2 and the federal government. I mean what no one had done was make the argument about state and local government using the federal Constitution, but—and there is a small Constitutional leap required to to do what I’m about to argue but it’s a small one it’s not a big one. Article 4 says quote the United States should guarantee to every state a republican form of government, end quote, and what James Madison said in the constitutional debates was that this Guarantee Clause, what it’s called, means that the states can run themselves however they want, but the one thing that they must do is maintain a direct link between the voters and the officials who are actually governing. And so what that meant was that the people who were governing can’t sell or give their governing authority to any private group, no group of nobles and no quote favored class. And what’s happened with collective bargaining is that basically public officials have sold—in the form of, you know, all these campaign contributions and stuff—governing powers to the public employee unions, with the result that the main tools of management for a democracy starting with accountability itself is no longer available.

Joe: In other words, the elected officials want to reform and improve, but rather than getting things done they have essentially have to legally comply with a 1,000-page rulebook that is effectively a defense against any kind of reform meaning they are almost, you know, legally constrained against doing their job.

Philip: Right they’ve given by—as a matter of fact these contracts vary in length they’re generally a couple hundred pages—but the effect of them is to and by the way it’s not just the collective bargaining agreements the public unions have gotten statutes in the states passed over the years that that that codify rights in the unions like seniority or other things that also take away management controls and one of the points I make in the book is that state legislatures don’t have the constitutional authority to take away meaningful executive authority. Their job is to pass laws and to set budgets and stuff but they can’t take away the authority of an elected executive without running afoul of the mandate of the Guarantee Clause—that the person elected to run government have the authority to run it. And so you know this is the kind of if you will the new idea in this book, but a bunch of legal scholars have looked at it and while they’re not giving me a bear hug they’re acknowledging that this is actually a serious argument that has a serious chance of winning in the Supreme Court.

Joe: I tend to agree. Again, if voters want to get things done and I guess the underlying message of this is you would like to re-empower elected officials, you want to give elected leaders more power to do their job the power they’ve ceded perhaps voluntarily to public unions we’ve established that workers in you know civil servants want to regain pride in their work and perhaps even a raise that’s that would be warranted with better performance so we got a lot of people on the plus side. On the other side is you know the leadership of organized public unions. So again, this sounds like a David and Goliath story but I think when you look at it more closely it doesn’t seem as quixotic as one might at first blush. Where is the movement—your book as you say you’ve not gotten bear hugs but is this is this the first step of 1,000 or are we is this fight being joined by other legal scholars?

Philip: Well, the book is just out so this is the new idea so people are people are still absorbing it but I’m talking with public interest law firms around the country including the firm that brought the Janus case that held that unions couldn’t compel nonunion members to pay agency fees in a state, including the group that brought that case so we’re talking with them. I’m talking with some attorneys general from different states so sometime in the next few months I guess we would like to be in a position where we could be really rolling up our sleeves and preparing the cases in one or more states to have the union controls invalidated. You don’t have to have the union itself invalidated, what you need is to restore the managerial authority of the elected executives. So, there are you know different ways that one could do that.

Joe: I think it’s important to make the distinction what you’re saying is you don’t take away the power of employees to organize but rather you take away the power of organized public employees to change the way government runs. In other words, they can advocate but not change the law to their own favor not to become effectively legislators themselves.

Philip: That’s correct and I do have a separate argument a propos a duty of loyalty that public employees should not be able to organize in a union and to influence the political system in a way that favors them against the public. That because we stated earlier they have a fiduciary duty to the public, they can have whatever personal political views they want and nobody would take away that,but when you get hundreds of thousands or millions of workers together and you harness billions of dollars a year in dues, then all of a sudden you’ve got a gorilla in democracy that no one can ignore. And these are people who supposedly owe duties to serve the public, not to make the public serve them. So, you know, I think that’s a somewhat harder argument than the Guarantee Clause and the Article 2 argument but that’s one that I also want to try to get to the Supreme Court.

Joe: OK, we we’re running up on our time limit here I’m sure our listeners have more questions I should have asked but they of course can always run and go get your book so let’s talk about where where they can find your book and you’re also I guess founder or head of Common Good so where can our listeners who whose interest you’ve piqued here where can they find Not Accountable and more about your writing and your work?

Philip: Well you can find “Not Accountable” hopefully in any bookstore and certainly amazon and all the other online dealers on the chair of this group called Common Good that’s commongood.org we only have one idea which is that humans have to be free to make things happen. So we’ve involved been involved in a number of reform initiatives we work closely with think tanks from around the country we are very small group we have a big initiative on streamlining infrastructure permitting for example. Some of our proposals are now in law and we’ve been working with Senator Matson’s staff to get more of them in law so that we can build high speed transmission lines. That’s an example. But you can’t get the permits for that until you empower officials to make those kinds of decisions, so ultimately everything we do has to do with human empowerment. Teachers have to be empowered to maintain order in the classroom. Principals have to be input power to run a school. You know, mayors have to be empowered to make judgments about what’s working and what’s not and transforming the culture of different agency. So that’s what that’s what we do, commongood.org, again, we I think we’ve worked in the past with Pioneer Institute and we liked working with other groups.

Joe: Indeed, well I think we’re all the similar mind a pioneer certainly advocates many of those same principles so you’ve got a friend with this think tank. So, I want to thank you for your very generous gift of your time I recommend the book and I think as you say this is the start of a particular legal argument and let’s hope it gets some traction and and some success. So, you’re very courageous to write the book and I appreciate you being with us today. Thank you for joining me on today, Philip.

Philip: Great to be with you, Joe.

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