NOT Accountable
“Elected leaders come and go, but public unions just say no.” Hiding in plain sight is a fatal defect of modern democracy. Public employee unions have a death grip on the operating machinery of government. Schools can’t work, bad cops can’t be fired, and politicians sell their souls for union support.
With this searing five-point indictment, Philip K. Howard argues that union controls have disempowered elected executives and should be unconstitutional.
Union power in government happened almost by accident in the 1960s, ostensibly to give public unions the same bargaining rights as trade unions. But government bargaining is not about dividing profits, but making political choices about public priorities. Moreover, the political nature of decision-making allowed unions to provide campaign support to friendly officials. Public bargaining became collusive. The unions brag about it: “We elect our own bosses.”
Sitting on both sides of the bargaining table has allowed public unions to turn the democratic hierarchy upside down. Elected officials answer to public employees. Basic tools of good government have been eliminated. There’s no accountability, detailed union entitlements make government largely unmanageable and unaffordable, and public policies are driven by what is good for public employees, not what is good for the public. Public unions keep it that way by brute political force — harnessing the huge cohort of public employees into a political force dedicated to preventing the reform of government.
The solution, Howard argues, is not political but constitutional. America’s republican form of government requires an executive branch that is empowered to implement public policies, not one shackled to union controls. Public employees have a fiduciary duty to serve the public and should not be allowed to organize politically to harm the public.
This short book could unlock a door to fixing a broken democracy.
Common Good
(www.commongood.org) is a nonpartisan reform coalition to simplify government and restore common sense in daily decisions. It proposes a new governing vision: replace red tape with individual accountability. Its Founder and Chair is lawyer and author Philip K. Howard.
Key Concepts & Highlights
Preface by Mitch Daniels
Early in his Governor’s term, Daniels decided to strike down a collective bargaining agreement, because he knew he couldn’t get anything done until that was accomplished. Today Indiana has the most efficient state government and 77% approval ratings.
Introduction
Public sector unions erode constitutional and democratic governance.
- Derek Chauvin should have been fired based on performance evaluations, but union rules protected him.
- Virtually no one can be fired — the public work culture is broken.
- Unions thwart progressive goals in the name of protecting terrible workers.
- Public service delivery is 35–95% more expensive than private.
- Elected leaders need to regain authority to run public operations.
Chapter 1 — why nothing much gets fixed
“Collective bargaining agreements bar the most effective management tool— accountability.”
The constitution prohibits a law from taking executive authority away from the executive branch.
The guarantee clause of Article IV provides that staes must have a “republican form of government.”
Do either of these conditions hold when unions are allowed to elect their own bosses into office?
Chapter 2 — How unions seized control
1960s tide of individual rights included rights of public workers, even though FDR as well as early union organizers like George Meany as opposed it.
“The process of collective bargaining… cannot be transplanted into public service.” — Franklin Delano Roosevelt, p. 26
Hatch Act of 1939 barred political activity by federal employees (but not their union reps).
New York was the first state to adopt public collective bargaining in 1966 and37 other states ultimately followed.
Public sector membership is ~7 million. 4.6 million teachers. 1.3 million service employees.
How is pubic sector union bargaining different?
In private sector, bargaining is shaped by market forces. In government, by political forces — backscratching.
Automobile unions had to be careful not to demand so much that American cars became uncompetitive with foreign makers.
Government can’t go out of business, so unions can demand ever more — a kind of one-way ratchet that never stops raising public costs. p. 33
Unions sit on both ends of the bargaining table.
Public sector unions are not merely competing for government favors but, uniquely, have the legal right to bargain over how government works.”
Democracy can’t devote itself to the common god when the first challenge is to satisfy the union. — p. 36
California, with 300,000 teachers, is only able to terminate two or three per year for poor performance. p. 37
There is no democratic solution when democracy has been hijacked by unelected unions.
Chapter 3 — How Public Employment is Supposed to Work
Howard calls for a modern version of the Progressive ideal of professional civil service — employees hired on basis of merit and held to ethical standards of loyalty to the public good.
Trump tried to make it easier to fire government workers, but Biden reversed it.
The functioning of democracy thus depends, James Madison note, on an ‘unbroken chain of dependence … the lowest officers, the middle grade, and the highest, will depend, as they ought, on the President.’ p. 43
Societies throughout history have failed once the permanent bureaucratic class took over.
Public unions oppose any reform aimed at re-introducing merit or other forms of accountability
Section II — Five-Point Indictment
- Severed the links of accountability
- Rendered government unmanageable with detailed rules and veto power
- Made government unaffordable with opaque benefits pacages and compensation manipulation
- Changed public policies to the harm of the public good
- Entrenched these abuses and made reform practically impossible through organized political power.
4. Severed the links of accountability
Police misconduct is inevitable with a dismissal rate of less than 2/10 of 1%.
In NYC, teacher dismissal is 1/100 of 1%. Meanwhile, the teacher of the year might be let go for lack of seniority.
Howard quotes a union official, “I’m here to defend the worst people.”
Rights of these terrible workers are upheld against rights of the rest of the country.
5. Unmanageable
WEBEHWYG “We-be-wig” — We’ll be here when you’re gone.”
Legal requirements prevent hiring and firing based on subjective traits like competence, energy, and effectiveness.
Madison stressed accountability as the lynchpin of constitutional government.
6. Unaffordable
“Our children must pay the bill.” p. 81
Pensions are eating up state budgets, but are protected by ironclad rules.
Services are cut while workers are fat and happy. 40,000 Californian retirees receive over $100,000 in pension salary. Early retirement and double-diping are common. Overtime rules are rigged.
It’s hard for politicians to convey the problem to the people, but defined benefit plans are leaving nothing for the next generation.
7. Policy against the public interest
Police and correctional officer unions fight for “tough on crime” laws, and against civilian oversight boards to punish misconduct by police.
Teacher’s unions block competition from charter schools:
Charter schools represent the bulls-eye of union ire. How fare they offer better schools, with open admissions, in the same neighborhoods as failing public schools! p. 90
8. Not reformable
PS unions use political clout to build an impenetrable fortress.
They are by far the largest special interest.
CCPOA (California prison union) backed 107 candidates, 104 of whom won.
In the rare situation where a reformer wins (i.e., Scott Walker) the fight is bloody.
Chapter 9 — What were they Thinking?
Reforms of the 60s failed to anticipate how the rules like compulsory bargaining would fare in practice.
Interests aligned to create a bureaucratic kleptocracy.
Section III — Unconstitutional
Nondelegation doctrine — government cannot delegate to private parties essential governing choices. From Locke’s second treatise on government.
Disempowers elected executives.
Stone v. Mississippi — “Power of governing is a trust committed by the people to government, no part of which can be granted away.”
PS bargaining pre-empts legislative responsibilities by giving preference to special interests over public interest.
Unelected arbitrators make legislative choices.
SCOTUS upheld Hatch Act in 1973 Letter Carriers case, on grounds that public service is dedicated to the public good.
Politicizing the public service into an organized bloc… could upend democracy.” p. 132
In Janus decision, the court noted the harmful effects of growing public sector union influence and invalidated state laws that allowed unions to draw agency fees from non-union members.
Chapter 10 — Restore Executive Power under Article II
“The executive Power shall be vested in a President.”
Unions prevent the executive from making hiring and firing decisions.
Chapter 11 — Union Controls Undermine Democracy
Article IV guarantee clause, guarantees Republican government.
This was Lincoln’s justification for preventing the South from seceding — that they might discard Republicanism.
“Private arbitration of public disputes is an obviously unconstitutional delegation of legislative power.”
Public service is a public trust.
Chapter 12 — Public Service is a Public Trust
Public unions have divided loyalty between self interest and public interest.
“By increasing use of campaign contributions to public officials with whom the union will be negotiating.. [unions] sit on both sides of the bargaining table.”
In Illinois, 25% of the budget goes to paying down unfunded pensions, yet unions prevent the government from tightening the belt.
“Political activity by public unions should be ruled unconstitutional.” — pg. 156
Chapter 13 — Abolish the spoils system
We need to replace the current system with a culture of responsibility
“Public employees at all levels must have a sense of ownership over the decisions they make.”
“Reviving executive power is not a danger to good government, but indispensable. Public leaders are like hubs on a wheel. they must be empowered to make trade-offs, try new approaches, and coordinate public employees and public resources.” p. 164
About the Author
Philip K. Howard is a leader of government and legal reform in America. He is Chair of Common Good and a bestselling author, and has advised both parties on needed reforms. In his upcoming book, Not Accountable (Rodin Books, 2023), he argues that public employee unions undermine democratic governance and should be unconstitutional.
Philip is the author of the bestseller The Death of Common Sense (Random House, 1995), The Collapse of the Common Good (Ballantine Books, 2002), Life Without Lawyers (W.W. Norton, 2009), The Rule of Nobody (W.W. Norton, 2014), and Try Common Sense (W.W. Norton, 2019). His commentaries are published frequently in major media outlets.
In 2002, Philip formed Common Good, a nonpartisan coalition dedicated to simplifying laws so that Americans can use common sense in daily choices. His 2010 TED Talk has been viewed by more than 750,000 people. His 2015 report, “Two Years, Not Ten Years,” exposed the economic and environmental costs of delayed infrastructure approvals, and its proposals have since been incorporated into federal law. Philip has appeared often on television and radio, including several times on Jon Stewart’s “The Daily Show.”
The son of a minister, Philip got his start working summers at the Oak Ridge National Laboratory for Nobel laureate Eugene Wigner. He has been active in public affairs his entire adult life. He is Senior Counsel at the law firm Covington & Burling, LLP. A graduate of Yale College and the University of Virginia Law School, Philip lives in Manhattan with his wife Alexandra. They have four children.
