Not Accountable: Rethinking the Constitutionality of Public Employee Unions, by Philip K. Howard, (Rodin Books, 160 pp., $21.99)
Philip Howard was a New York corporate lawyer when, in 1995, he published The Death of Common Sense: How Law is Suffocating America. As policy books written by lawyers go, it garnered an uncommonly enthusiastic, bipartisan reception. Republicans saw in the book, which argued that America is being strangled by too many regulations, an endorsement of their view that government needed to be trimmed. Democrats argued that the failures Howard attributed to the rise of rulemaking over individual judgement threatened to undermine people’s faith in the public sector. President Clinton was said to keep the book by his bedside.
Several years later, Howard followed with The Lost Art of Drawing the Line: How Fairness Went Too Far. The sequel was necessary, Howard explained in an author’s note, because readers of his previous book had kept asking him for a solution to the problems he had outlined. “The solution, I thought, could not have been clearer: Unchain people from detailed rules and bureaucratic processes and let them take responsibility,” he wrote. He’d failed to realize, however, that the notion that people with responsibility “should have the authority to make decisions” was disappearing from public life in America, and that “authority has become a suspect concept, the enemy of individual rights.” Thus began a book whose themes, including the paralysis of government in an era when “avoiding risk is now practically a religion,” will resonate with readers in a post-Covid America.
Over time, as reforms grew ever more difficult and waves of government regulations turned into a tsunami, Howard’s own view of the problem evolved. The paralysis resulting from a loss of common sense and the rise of rulemaking had created a moral vacuum that powerful interests filled for their own purposes. “Opportunists of every stripe,” Howard wrote, increasingly held sway, including “extremist loonies who dominate American politics, trial lawyers, public unions, special interests, self-aggrandizing billionaires, disruptive adolescents.”
That was quite an eclectic and provocative list Howard compiled back in 2014. If pressed on which “opportunist” was most responsible for the bad government that infects America today, I know which I’d choose. Howard seems to agree. His latest book heads into territory familiar to City Journal readers: government unions and the extent to which they’ve seized power, in the process giving us schools that don’t work, public safety that is compromised and ineffective, and bureaucracies that have become burdensome and unresponsive. In Not Accountable: Rethinking the Constitutionality of Public Employee Unions, which will be published this month, Howard not only catalogs the many dreadful consequences of the rising power of government-employee unions (the most awful of which may have been the performance, or lack of it, of public schools during the pandemic), but also offers his own startling solution to the problem, arguing that public unions should be considered unconstitutional because they have thoroughly undermined our democratic form of government.
The early chapters of Howard’s book recapitulate the rise of public unions, including the warnings of significant figures in the mid-twentieth century about potential problems—from FDR’s observation that collective bargaining “cannot be transplanted to public service” to labor leader George Meany’s quip that it’s “impossible to bargain collectively with Government.” Nonetheless, by the mid-1950s the idea of public-sector unions had gained currency, ironically in some places to offset the power of big-city political machines. New York City mayor Robert Wagner granted employees the right to organize and bargain collectively in 1958, seeing public unions as possible allies in his battles with Tammany Hall. President John F. Kennedy subsequently granted federal workers collective bargaining rights through an executive order in 1962, by some accounts as repayment for their political support.
Many states and cities fell into line until public-union membership, which began as a trickle, became a torrent, supercharged by the realization among government labor leaders, in the now infamous words of New York union boss Victor Gotbaum, that “we have the ability, in a sense, to elect our own boss.” That Gotbaum exercised that power to help elect the two mayors most responsible for New York City’s 1970s brush with bankruptcy—John Lindsay and Abe Beame—should have been a cautionary tale. It wasn’t. Though California, for instance, was tardy among the states, gradually extending bargaining rights to government unions in the late 1960s and 1970s, by the early 1980s nearly 700,000 public-sector workers, comprising some 44 percent of public employees in the Golden State, were unionized. Nothing since has been more consequential to the startling transformation of that state’s politics than the rise of public unions.
Howard spends the middle parts of his book tracing these consequences. As City Journal readers will know, the examples are many: from labor leaders threatening to un-elect recalcitrant politicians, to public-employee contracts that protect bad teachers and cops from getting fired, to policy decisions made to create union jobs rather than produce good government, to the emergence of government unions as the biggest advocates for tax increases and the biggest opponents of restraining budgets, to the absolute financial mess many local governments, and taxpayers, face with public pensions.
Howard works his way to a thumping climax. What the many sins of public unionization have wrought, he argues, is an unconstitutional mess. As America was warned by FDR and others, public-sector collective bargaining entails enormous conflicts of interest in government, making reform nearly impossible. Howard says that it’s time for the courts to intervene. At the federal level, he argues, the legislation that protects public-employee unions violates Article II of the Constitution, which proclaims that “the executive power shall be vested in a President.” Everything from reform of hiring to collective bargaining to firing decisions has been taken away from the executive branch. “More federal employees die on the job than are terminated for poor performance,” Howard writes, arguing that courts should give those powers back to the president.
At the state and local level, Howard continues, unions have seized so much power that in many places these governments violate the Guarantee Clause in Article IV of the Constitution, which demands that the country shall “guarantee to every state in the Union a Republican Form of Government.” Unions, Howard observes, “have become a permanent faction exercising control over the machinery” of local government. It’s up to the courts to remove these “shackles” on executive and legislative authority in the states.
These are provocative ideas. Whether they can be realized is another matter. Public unions have lost some prerogatives thanks to Supreme Court rulings, though only narrowly. Most notably, in 2018 the Court ruled 5–4 in Janus v. AFSCME that public unions cannot compel workers to join or pay them fees. That ruling, based on the First Amendment, held that compulsory fees impinged on a worker’s free speech because unions used those revenues for political purposes with which the worker might disagree. That slim decision reversed previous precedents, in which the court had protected unions’ ability to compel workers to pay up. In other words, the Supreme Court, which helped make the rapid growth of public unions possible, narrowly reversed its decision five years ago. Whether the Court would be ready to go much further now, declaring the entire project of collective bargaining in government unconstitutional, is far from clear.
Regardless of what the courts do, the issue might be slowly working itself out. Howard’s book contains a preface by former Indiana governor Mitch Daniels. Shortly after taking office, Daniels recounts, he discovered that collective bargaining in Indiana was the result of an executive order. Daniels rescinded that order, to the howls of union members and their political allies. Nonetheless, with the freedoms gained from that move, including in hiring and promoting based on performance rather than on seniority, “government became not just solvent but effective,” Daniels writes. His action inspired other local officials, including then-Wisconsin governor Scott Walker, whose Act 10 dramatically reduced the power of unions in state and local government.
Over the last decade, American states have increasingly sorted themselves into two groups. Often, these are described as high-tax, highly regulated places such as California, New York, and Illinois, on the one hand, and low-tax, less regulated states such as Texas, Florida, Tennessee, and Indiana, on the other. But another way to see these states is through their public-sector collective-bargaining laws and union power—or the lack of it. For much of this time, and especially since Covid, what has emerged is an economic battle between these two philosophies—with low-tax states, where union power is diminished, increasingly winning the battle for businesses and residents. That’s bringing not only prosperity but growing political power to those states.
As the shift occurs, unions themselves are suffering. Public-sector union membership peaked in 2009 at 7.9 million and has since fallen to 7 million. Even the economic rebound of 2010 failed to reverse union losses. Now, the Covid lockdown policies that teachers’ unions and other government-worker groups supported seem to have further undermined the competitiveness of their states and accelerated this shift of political power. As a result, when Howard and others write about the problems of public unions, they are increasingly describing the harms afflicting so-called blue states.
The dramatic, court-inspired victory over public unions that Howard envisions would probably have the greatest impact, ironically, in states where union-backed politicians have achieved power. These politicians would surely resist, or try to find ways around, such a court ruling. No matter. Change is happening, anyway: slowly at first, and eventually, when the situation reaches a tipping point, all at once. What government unions have created is unsustainable, and we know what happens to unsustainable things.
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