Philip K. Howard: Public-employee unions have been a disaster for democracy and the public interest
The NEA is the largest union in the United States.
It’s time to rethink the role of public-employee unions in democratic governance.
Public-union intransigence has contributed to two of the most socially destructive events in the COVID-19 era. Rebuilding the economy after the pandemic ends also will be more difficult if state and local governments have to abide by featherbedding and other artificial union mandates.
Public-employee unions are politically impregnable, but their corrosion of first principles of democratic governance may leave them open to constitutional attack.
The lack of accountability imposed by union contracts has corroded democratic trust. The nearly nine-minute suffocation of George Floyd by Minneapolis policeman Derek Chauvin, every second shown on video, touched off protests around the country and social anger that may impact race relations for years.
But Chauvin should not have been on the job, and he likely would have been terminated or taken off the streets if police supervisors in Minneapolis had had the authority to make judgments about unsuitable officers. Chauvin had 18 complaints filed against him and a reputation for being “tightly wound,” not a good trait for someone carrying a loaded gun.
But police union contracts make it very difficult to terminate officers. Out of 2,600 complaints against police in Minneapolis since 2012, only 12 resulted in any sort of discipline and no officers were terminated. A 2017 report on police abuse nationwide revealed that union contracts make it extremely difficult to remove officers with a repeated history of abuse.
Teachers unions wield similar power. Dismissing a teacher, as one school superintendent told me, is not a process, it’s a career. California ranks near the bottom in school quality but is able to dismiss only two out of 300,000 teachers in a typical year.
Because of COVID-19, teachers unions have adamantly refused to allow teachers to return to work for a year, harming millions of students.
Because many parents can’t work if children are not in school, teachers unions are also impeding our ability to reopen the economy.
Yet most parochial and private schools in the U.S. have reopened, without serious consequences, as have schools in Europe. It is safe to reopen schools, according to the Centers for Disease Control, as long as teachers and students follow certain protocols. Unions now say they’ll put a toe in the water, starting in the spring, when another school year is almost over.
The bottom line is inescapable: Public-employee unions do not serve the public's best interests.
How did public-employee unions turn into public enemies? Until the 1960s, collective bargaining was not lawful in government — it’s hardly in the public interest to give public employees power to negotiate against the public interest.
As President Franklin Roosevelt put it: “The process of collective bargaining… cannot be transplanted into the public service…. To prevent or obstruct the operations of Government …. by those who have sworn to support it, is unthinkable and intolerable.”
Public-employee union power is largely an accident of history, one of the many unintended effects of the 1960s rights revolution. The first shoe to drop was Executive Order 10988, in which President John F. Kennedy, as payback for political support, permitted collective bargaining for federal employees.
Public unions soon demanded similar rights from states. Without any serious debate, New York in 1967 permitted collective bargaining, followed by California in 1968.
Unions gained strength with every new administration. The rhetoric was virtuous: Who can be against the rights of public employees? But the velvet glove of rights barely disguised the political iron fist.
Public employees represent almost 15 percent of the work force, probably the largest organized voting bloc. For more than 50 years, generations of political leaders have promised whatever it would take to get their support, including shields against accountability and rich pensions and benefits. In Illinois, a state now actuarily insolvent, 20,000 public employees enjoy pensions of more than $100,000 per year.
A political solution is almost impossible. Union contracts have long tails, tying the hands of successive political leaders. Their political power also is different from that held by other interest groups; political leaders are powerless without their cooperation.
As labor leader Victor Gotbaum once put it, “We have the ability, in a sense, to elect our own boss.”
Public unions wield this power not just to get benefits, but to dictate how government works. After 80 meetings trying to cajole teachers back to work, Chicago Mayor Lori Lightfoot concluded that “they’d like to take over not only Chicago Public Schools, but take over running the city government.”
Democracy can’t work if elected officials lack the ability to run government. As James Madison put it, democracy requires an unbroken “chain of dependence… the lowest officers, the middle grade, and the highest, will depend, as they ought, on the President.” By shackling political leaders with thick contracts, and eviscerating accountability for cops and teachers, public unions have removed a keystone of democratic governance.
Public unions are not a problem anticipated by the framers of the Constitution. But Article IV, Section 4 of the Constitution provides that “the United States shall guarantee to every State in this Union a Republican Form of Government.” Known as “the Guarantee clause,” the provision has never been asserted in this context.
The history of the clause suggests that, by guaranteeing “a republican form of government,” the framers meant to ensure that government would be accountable to voters and not to a monarch or other unaccountable power.
Public unions have severed a key link between voters and governance. They are immune from accountability, collect tribute in the form of featherbedding work rules and excessive pensions, and control what they do day-to-day instead of what voters need.
It is time for a reckoning. The abuses of rogue police, teachers who won’t teach, and other indefensible public union controls cry out for constitutional redress.
Philip K. Howard, a New York-based lawyer, author, civic and cultural leader and photographer, is founder of Campaign for Common Good and chairman of Common Good (commongood.org), a nonprofit legal- and regulatory-reform organization.
His latest book is Try Common Sense: Replacing the Failed Ideologies of Right and Left.
This column first ran in USA Today.
Full disclosure: The editor of New England Diary, Robert Whitcomb, has collaborated with his friend Mr. Howard in some Common Good projects.
Port Authority Police Benevolent Association, Englewood Cliffs, N.J., a typical small-town police union.