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Public Unions vs. the People

A couple of weeks ago, one of our support group members spotted the book mentioned in the WSJ article, below. I ordered it from Amazon immediately and agree it is excellent. I hadn't finished it until recently and planned to tell you about it when another supporter sent me this article yesterday.

Now I can provide you with both the book plus a full review of “Not Accountable: Rethinking the Constitutionality of Public Employee Unions", by Philip Howard. I strongly encourage you to order a copy. It is available on Amazon for about $20.

Many thanks to those of you who discover and share with me these pertinent finds.


A new book argues that government unions have seized unaccountable power. The author, Philip Howard, plans to make the case in court.

Here’s a three-step summary of American politics. Conservatives harp about bad governance. Liberals ignore them and boost funding anyway, with the occasional exception of police. Then conservatives give up and bad governance goes on.

You know the results—dreary schools, dangerous streets and poor, costly services. But politicians bent on reform tend to hit the same wall: government unions. Philip Howard has spent three decades studying this problem, and he’s convinced it can never be solved through ordinary politics. Only the courts can uproot public unions and restore accountable government.

Mr. Howard, a lawyer and writer, first noticed how unions stymie governance during his public service in New York as a member of a neighborhood zoning board and chairman of the Municipal Art Society. “I kept wondering why my friends who had responsible jobs in government couldn’t do what they thought was right,” he recalls. That might be speeding up a land-use review for a construction project or approving repairs on a school building.

“I’d have discussions with them about what made sense in a particular situation, and they would say, ‘I wish I could, but I can’t.’ ” Any careful or profitable plans were quickly blown up by union rules, such as limits on workers’ hours and duties.

This week the New York transit union gave an example for the ages. It blocked the subway system’s plan to sync its schedule to new ridership norms, with fewer trains on slow days and lightly traveled routes and more trains on busy ones. The change would have saved $1.5 million a year, benefited riders and preserved workers’ paid hours. But an arbitrator shelved it Tuesday because the union couldn’t bear the “variations in start and end times.”

“They’re not just inefficient,” Mr. Howard says of the unions. “They’re designed for inefficiency.”

“They’re designed to require a new work crew to come cut a tree limb because the people fixing the rails don’t have authority to remove a tree limb. They’re designed to prevent supervisors from observing teachers, except under very controlled circumstances. They’re designed to prevent the principal from giving extra training to a teacher. They’re designed to prevent a supervisor in an agency from going and talking to a worker and soliciting ideas about how to make things work better.”

Mr. Howard, 74, keeps listing examples until I jump in to stop him. They’re fresh in his mind because these schemes are the target of his new book, “Not Accountable: Rethinking the Constitutionality of Public Employee Unions.”

He thinks one prerequisite for tackling the problem is to remind people how recent it is. “Most people in policy and government assume that public unions are a state of nature,” he laments. But while private workers first organized en masse in the 1870s, union contracts didn’t creep into government until the mid-20th century because leaders feared losing their leverage.

“Teddy Roosevelt, an original civil-service reformer, created a policy that basically said we’ll guard public employees against political firing, but we are not going to give them anything that looks like tenure.” That’s a reference to guidance Roosevelt issued in 1902 mandating that no labor rules could impede the firing of federal workers.

The next President Roosevelt held the line decades later. “FDR was firmly against public unions,” Mr. Howard says. “He understood that there was an inherent conflict of interest in public employees bargaining against government. They’re supposed to be working for the people, not getting more out of them.” That’s why two years after FDR blessed private unions by signing the National Labor Relations Act, he forbade public unions with equal fervor. “The process of collective bargaining, as usually understood, cannot be transplanted into the public service,” he wrote in 1937.

Mr. Howard describes what makes public and private unions so different. “Their incentives are different, because public workers are not at risk of overreach. If a private union asks for inefficient work rules, the company will go out of business or move to another place and they will lose their jobs. But government can’t move.” There’s almost no limit to what politicians can take from the public purse and give to employees, as long as each offer is small enough to evade headlines. So workers get incremental benefits that add up to insolvency, like zero healthcare premiums and mass exemptions from vital job duties.

But what makes public unions worse than other interest groups? Don’t they play the same game as Wall Street, or farmers, or the environmental lobby? Each of these pours money into elections and then asks politicians for payback at the public expense.

Mr. Howard says there’s no comparison. “First of all, other interest groups don’t have the legal authority of collective bargaining, which creates this huge interest group that political leaders have to satisfy in creating a contract,” he says. No one can force a governor to subsidize this or that industry like he promised on the campaign trail. But if he can’t meet the teachers union halfway on their demands, an arbitrator steps in to impose a settlement.

“Secondly, other interest groups are looking for a favor—a tax break, a subsidy. But the public unions are looking to exercise control over the entire operating machinery of government. It’s not a favor. It’s not a sliver from the public fisc. It’s the entire way the system works.” And they donate enough to get what they want. In his book, Mr. Howard reports that teachers unions often spend more on state elections than all business groups combined. Those funds go to Democrats by a factor of about 19 to 1.

The dam against public unions broke in 1962 when President John F. Kennedy allowed collective bargaining in the federal workforce. “That was payback for union support,” Mr. Howard says simply. But he believes the spread of unions to state governments had more to do with the liberal zeal of the 1960s than an exchange of political favors.

“You had the tide of the ‘rights revolution.’ Everyone had gotten rights. And it was long overdue in most areas. We had civil rights, we had gender rights, we got rights to help the disabled. And the state workers saw an opportunity and said, well, how about us? Why shouldn’t we have rights?” Governors in the Midwest and on the coasts didn’t put up a fight. Twenty states opened the door to public unions by 1968.

In less than a half-century, many of these states have stacked liabilities that they’ll never escape. In Illinois a 2021 Moody’s study found that it would cost an extra $65,000 from every household to cover unfunded pension commitments. A 10-year-old girl stuck in a bad Chicago school today might get a tax hike in two decades to fund her inept teacher’s retirement.

Mr. Howard says any politician who wants to roll back union power should prepare to give it all. “Scott Walker is really illustrative,” he says, citing the former Wisconsin governor who banned collective bargaining over pensions and health benefits. “He won, and it’s been good for Wisconsin. They save billions of dollars a year.” But the saga shows how unions “stop at nothing” when threatened.

“The unions collected tens of millions of dollars to recall Walker. But Walker won that. Then they got the DA to investigate him for alleged campaign violations in the recall election. And that ultimately was decided and thrown out by the Wisconsin Supreme Court.” Mr. Walker survived along with his reforms, but the drama upended his governorship, and he lost his bid for a third term in 2018. Similar resistance has blocked or reversed collective-bargaining reform in New Jersey, California and Ohio.

That’s where the courts come in. Mr. Howard thinks judges can curb union power where executives and legislatures have failed. And he sees a clear legal basis for the movement.

First he mentions the step the Supreme Court already took in Janus v. Afscme (2018). “The Janus decision made it unconstitutional to force nonunion members to pay agency fees,” he says. The court held that forced dues violate employees’ free-speech rights, because unions “couldn’t segregate those moneys from the funds that go to political speech.”

But the ruling’s impact has been minimal so far. “There’s been a marginal decrease in the dollars coming in, but there’s still huge dollars.” Unions claimed the same share of public employees last year as they did in 2018—about 34%. And they simply raised their dues to cover lost funds from nonmembers.

Mr. Howard has a bolder strategy, aimed at government’s duties instead of employees’ rights.

At the federal level, he says, the Constitution forbids the president to make agreements that limit his own essential powers, including the power to fire employees freely. “There is ample Supreme Court precedent on the need of the president and his officers to retain executive power.” He cites a series of cases that have upheld firing power with only narrow exceptions, from Humphrey’s Executor v. U.S. (1935) to Free Enterprise Fund v. Public Company Accounting Oversight Board (2010). And he recalls that in the latter case, Chief Justice John Roberts wrote of “the president’s ‘exclusive and illimitable power of removal.’ So it’s a principle that’s been upheld many times.”

That line of reasoning could tear down the 1978 law that codifies federal bargaining. “It seems clear to me,” Mr. Howard says, “that the Civil Service Reform Act, which mandates collective bargaining in the federal service and also mandates procedures that make it virtually impossible to terminate civil servants, is unconstitutional.” For example, union employees are entitled to grievance arbitration before they can be fired, which usually takes months. “I think that the constitutional case there requires no step forward in existing precedent.”

His plan for the states is a bit more adventurous. He argues that unions rob elected officials of their governing power and thus violate the Constitution’s mandate that states have a republican form of government.

“James Madison talked about what that meant during the constitutional debates,” Mr. Howard says of the mandate, known as the Guarantee Clause. “And it meant that you can’t do precisely what they’ve done with the unions. You can’t give away power to any favored class.”

The rub here is that the Supreme Court has held the Guarantee Clause to be purely political and nonjusticiable. Mr. Howard acknowledges this, but he believes collective bargaining warps state governments’ structure beyond obvious limits. “It would take at least a modest step forward to get the courts to enforce it.”

The theory sounds far out, but Mr. Howard is putting time and money where his convictions are, working with public-interest firms to get in court as soon as possible. “I’m hopeful that we will bring cases in several states, because the states have somewhat different problems. That includes Illinois and New York, and probably California.”

He hasn’t entirely given up on politics either. “My hope is that the manageability of government will become a key issue in the 2024 election. People could start talking about the need to really make government work.” Unfortunately, few candidates do as Mr. Howard does and take on the actual culprit.