Public Employee Unions Are Obstacle to Urban Progress
A Free Cities Center Interview
One of the key ways to improve urban life is to improve the level of public services offered in cities. People who flee some premier city for the suburbs or rural life will typically point to their desire to find better schools, safer streets and less congestion. In big cities, public employee unions are typically the most powerful political forces – and they strenuously resist efforts to reform local governments or outsource public services. They are the main obstacle to urban reform.
Philip K. Howard is an author, lawyer and chairman of Common Good, a nonpartisan organization that attempts to simplify and improve government. His latest book, Not Accountable: Rethinking the Constitutionality of Public Employee Unions (Rodin Books, 2023), attempts to rethink the constitutionality of public-employee unions. Free Cities Center Director Steven Greenhut interviews Howard about the book, which was released this week.
Many of us have complained about the undue influence of public-employee unions, but we tend to accept them as part of the landscape. You argue that they aren’t even constitutional. Can you summarize your argument?
Howard: The constitutional defect is straightforward: Governors and mayors no longer have authority to fix broken schools, fire bad cops or manage public services responsibly. Public unions have a stranglehold over the operating machinery of government. A governor or mayor comes into office with his or her hands tied by detailed collective bargaining agreements and other operating controls. So what’s the point of democracy? To elect officials who are figureheads?
It is useful to remember that democracy is a process of accountability. Voters elect officials whom they think will do a better job. But electoral accountability is toothless if elected officials lack authority to hold accountable public employees down the line. Bad schools and inefficient public services just chug along the way they did yesterday. There’s basically zero accountability in most arms of government. Democracy can’t work, as James Madison put it, without an unbroken “chain of dependence … [from] the lowest officers, the middle grade, and the highest.”
Public union power over government is not a feature of nature, like, say, a mountain range. Public unions were empowered after the 1960s by statutes authorizing collective bargaining and other controls over public operations. But, as I argue in Not Accountable, legislatures didn’t have constitutional authority to disempower governors, mayors and other elected executives. It is the constitutional responsibility of elected executives such as mayors to manage public operations effectively. There’s a lot of U.S. Supreme Court authority on legislative limits to impede executive power. Public union power is the result of laws that should be unconstitutional.
The proof is in the pudding: Government is wasteful and ineffective, and voters can’t do anything about it. Public unions aren’t just a political juggernaut. Public unions have structural control over public operating machinery that newly elected executives can’t do anything about. So democracy can’t work. It is a basic constitutional principle that government can’t cede its governing sovereignty to private entities. That’s another reason why public union powers and controls should be unconstitutional.
The Free Cities Center focuses on improving urban life. Although the problems your book details apply everywhere, my sense is that they are most pronounced in bigger cities, where these unions have the most power. Can you address their particular impact in cities?
Howard: Most big cities are giant engines of inefficiency—run for the benefit of public employees instead of the public. Not Accountable is filled with examples:
- Trash collection in New York City costs almost double what private carters charge.
- Accountability of rogue cops is basically nonexistent. A 2017 Washington Post report on police discipline examined data from 37 large cities and found a dismissal rate of less than two-tenths of 1 percent.
- It’s almost impossible to terminate bad teachers—Los Angeles spent over $4 million to try to terminate four teachers, succeeding with two.
- Public management is an exercise of compliance and entitlements, not delivering public services. The New York City teachers union contract is so massive that former schools chancellor Joel Klein described it as “running for hundreds of pages, governing who can teach what and when, who can be assigned to hall-monitor or lunchroom duty and who can’t, who has to be given time off to do union work during the school day, and so on.” The resulting costs to large cities are enormous both in failures of performance and in financial terms. Nearly 80 percent of Chicago Public Schools students cannot read at grade level. Just 15 percent met proficiency in math.
One of the biggest problems I’ve seen is service “crowd out.” Unions get such lucrative contracts, especially regarding pensions, that it reduces funding for many services. Police pensions in California eat up so much of the public safety budget that it means fewer police on the street. Also, cities often cut community programs to deal with their budget problems. Can you address this issue?
Howard: The effect on public budgets is tragic. A few years ago, in the middle of a crime wave, the city of Oakland reduced its police force in order to fund legacy retirement obligations.
The inefficiency and waste of public operations are notorious. The abuses of pension schemes—such as “spiking” of overtime in order to increase pensions—also have the direct effect of reducing resources for current services. In fiscal year 2022, more than 80 percent of property taxes in Chicago went toward city employee pensions. California allows many state workers to retire at age 55 with pensions that exceed their salaries. About 40,000 public employees in California receive over $100,000 in pensions—for a total cost of at least $4 billion every year.
There’s a tendency to see public unions as a broken spigot beyond our power to fix. But the waste has implications that are profoundly immoral. Every public dollar involves a moral choice. A dollar wasted is a dollar not available for some other worthy goal. Every neglected public need—whether to help the hungry, deal with climate change, fix the roads or reduce tax burdens—has been compromised by the budgetary grip of public employee unions. Pasadena, Calif., cut over 120 local jobs, including numerous police positions, and reduced transit service after facing insurmountable pension liabilities. Des Moines, Iowa, cut library hours and reduced street cleaning to make up for pension-driven budget shortfalls.
The insidious effects of public union controls strike at the heart of government—causing failure of schools and other public services while also wasting resources in work practices and pensions that are designed to drain public resources. Under today’s union controls, good government is basically illegal. Our goal should not be to make government as efficient as, say, Amazon or Wal-Mart. But government should at least aspire to deliver decent public services without waste. That requires restoring the authority of public executives to manage public operations, including reviving a genuine “merit system” where public employees can have confidence and pride that everyone is doing their job.
Our cities experienced protests and riots after the George Floyd killing. Please explain how union power makes it harder to keep police accountable.
Howard: Collective bargaining agreements of police unions undermine both supervisory authority and accountability. Derek Chauvin, the policeman who killed George Floyd in Minneapolis in 2020, had a history of citizen complaints and was thought to be “tightly wound,” not a trait ideal for someone patrolling the streets with a deadly weapon. But under the police union’s collective bargaining agreement, the police commissioner lacked the authority to dismiss Derek Chauvin, or even to reassign him. That lack of supervisory authority resulted in harms that continue to reverberate in American society.
The broad sense that bad cops get away with abusive conduct helped fuel the national protests after the killing of George Floyd. In the decade prior to 2020, the Minneapolis police department had received 2,600 complaints. Twelve led to discipline, of which the most severe was a 40-hour suspension.
No society, no organization, no group of people, can function effectively without accountability. It is essential for mutual trust. The absence of accountability is a recipe for cynicism and ineffectiveness.
It seems unlikely that unions will be declared unconstitutional, so what other reforms do you propose? You say these unions are unreformable (and I agree), so what can we do
Howard: I guess it’s human nature to think that, if a problem hasn’t been fixed, then there must be an insurmountable reason. But this emperor has no clothes. While there are a few procedural hurdles to a constitutional lawsuit, which I discuss, I don’t think the basic constitutional defect is close. The operating machinery of government is out of the control of the officials elected to run government.
The solution isn’t to ban public unions per se, but to remove their collective bargaining power, and their massive political clout used to undermine the public interest. Public employees have a sworn duty to serve the public, not to undermine good government to serve themselves.
The history of public unions corroborates my analysis. Until the 1960s, even labor leaders agreed that public unions should not have collective bargaining power to negotiate against the public interest. That’s why Franklin D. Roosevelt—a fervent supporter of labor unions in industry—was equally a fervent opponent of public sector bargaining: “Meticulous attention should be paid to the special relationships and obligations of public servants to the public itself and to the government … The process of collective bargaining, as usually understood, cannot be transplanted into the public service.”
In the heyday of the rights revolution in the 1960s, the geniuses who supported public collective bargaining assumed it was just “a matter of basic fairness” to let public employees bargain like auto workers. But the negotiating dynamics could hardly be more different. Public employees have elected officials over a barrel:
- Unlike trade union bargaining, where the employer can move out of town, government can’t move. So officials lack the lever of taking their jobs elsewhere.
- Unlike trade union bargaining, where inefficient work rules will cause the business to fail, public inefficiency only harms the taxpayers. Most collective bargaining agreements are designed to mandate inefficiency. Disempowering school principals and other public supervisors is a point of pride for unions.
- Unlike trade union bargaining, where collusion between management and labor is illegal, public unions have transformed public bargaining into a collusive quid pro quo: Unions will spend millions to get officials elected, and then officials must sit down and give unions what they want. It’s not bargaining, but a pay-off.
For 50 years, public unions have used their bargaining muscle to undermine the public interest and skew public policies to expand public jobs—for example, the “the three strikes” law in California that was led by the correctional officers union in order to expand the prison population. It shouldn’t be surprising that nothing much works as it should in government.
Read the Supreme Court’s recent Janus decision, where the court goes out of its way to describe how public unions are destroying good government. Janus invalidated mandatory “agency fees” as a violation of non-union members’ First Amendment rights. But the court has never been presented with a constitutional framework about the disempowerment of public executive authority. That’s what Not Accountable provides.
In my view, the biggest urban problems—crime, homelessness, housing, high taxes—have some connection to the power of public employees. Do you agree? What might you propose?
Howard: Nothing works as it should, because public employees are unmanageable:
- Public trust is essential to the effectiveness of police. But trust is low, when there’s no accountability for rogue cops.
- Homelessness requires giving officials authority to deal with a wide range of human problems—again, bumping into the broad public distrust. Homelessness also requires a huge investment in facilities that can deal with addiction and mental illness, as well as shortages of housing. Where can those funds come from when, thanks to union contracts, government is practically bankrupt and operating at maybe 50 percent efficiency?
- High taxes are the direct result of inefficient government.
Of course, there are other, arguably even worse, consequences than unnecessary taxes: ineffective schools and social services, broad public distrust, a public culture of futility that repels potential public servants. It’s a downward spiral, contributing to broad alienation and breeding extremist proposals from both sides. All these baleful effects flow from powerlessness of officials to make sense of daily choices. Public union bargaining is one of the prime causes of powerlessness.
Can you address the specific problem of teachers’ unions? They resisted re-opening after COVID and now we see that test scores, especially among the poorest urban residents, are terrible and students lost significant amounts of learning.
Howard: The COVID pandemic exposed the true colors of the teachers’ unions. While nurses, grocery store clerks, delivery people and other essential workers went to work so the rest of society could function, teachers refused to come back for almost two years. Indeed, most public schools remained closed during the 2020-2021 school year, while most parochial and private schools reopened. The unions also resisted distance learning, arguing that it wasn’t specified in their contracts.
Studies have since confirmed that the harm to public school students and families was substantial, especially the poor and minorities. As New York magazine columnist Jonathan Chait reports, “Many of the poorest students with the least stable home lives—one analysis estimates the figure at around 3 million—never logged on or performed any schoolwork at all over the last year.” The interests of the teachers’ unions took priority over the public interest, even if it meant widespread harm to the education of so many of our nation’s children.
Government officials are regularly confronted with challenges and crises that no one predicted. In these situations, officials need to adapt and to redeploy resources. But public unions see their responsibilities as bound by the literal terms of their contracts. Any deviation in routine, no matter how insignificant or how large, provides a basis to refuse to pitch in.
Greenhut: Any other points you’d like to make?
America seems to be at an inflection point. Most Americans realize things aren’t working as they should, but it’s hard to find a vision of how things could work better. Political leaders tend to promote changes in big policies, such as immigration or tax policy. But I think it’s critical to focus on how government works and deals with citizens day to day. This will require structural overhauls—starting with making government manageable and focused on serving the public. That requires eliminating public union controls.