Breaking unions' death grip on democracy

S E E D E D   C O N T E N T

The winner in the overtime pay sweepstakes in Los Angeles last year was a fire captain with $510,000 on top of his $169,000 salary. No one, however, multiplied their base salary as proficiently as a "trouble dispatcher" for the Los Angeles Department of Water and Power, who received over $357,000, nearly seven times his salary of $55,000.

The Orange County Register reported that in 2022, more than 3,600 public employees in California received at least $100,000 in overtime pay. They must be exhausted, you might think. But they don't actually work all those hours. They take advantage of obscure provisions in union collective bargaining agreements that allow them to claim overtime where none was worked.

This story of public plundering is only a symptom of far greater harms inflicted by union controls over government.

In 23 Baltimore schools last year, not one student was proficient in math. In Chicago, 37 schools had no student proficient in either math or reading. Faced with this perfect record of failure, a sensible mayor or school board would change personnel, change almost anything. Because of union controls, however, mayors and other elected officials across America are largely powerless to change school personnel or make other vital decisions on how schools work.

Derek Chauvin, the officer who killed George Floyd by keeping his knee on Floyd's neck for nine minutes, setting off national riots, was thought to be "tightly wound," with a record of multiple complaints, and probably not suited to be on the beat. But the Minneapolis police chief had no authority to terminate him or even reassign him. In the prior decade, there had been 2,600 complaints of inappropriate police behavior by Minneapolis police. Only 12 resulted in disciplinary action, of which the harshest was a 40-hour suspension. The inability to terminate rogue officers is a prime reason for the breakdown of trust in minority communities.

Government is "only as good as its workers." That's what governing is — public employees spending taxpayer money to provide defense, public safety, and regulatory and social services. Managing these public employees is the constitutional responsibility of elected executives — the president, governors, and mayors. Democracy is how voters decide which elected executives are best able to do this job. But thanks to public unions, those expressions of democracy are increasingly irrelevant.

Put simply, democracy's hierarchy for managing government no longer exists. Elected executives are largely powerless to manage public employees or redirect public resources. The people below them in the chain of responsibility, such as school principals, police chiefs, and supervisory officials, are similarly powerless. Every day, government employees across America do things that are designed to waste money and be ineffective.

Control by public unions over government operations is a scandal in plain sight.

What is the cost of this scandal in public waste? Almost 40% of America's GDP, or $9 trillion, is spent by government. Leaving aside $4 trillion in transfer payments and interest, much of the rest is spent on the salaries and pensions of teachers, police, inspectors, and other public employees ($2.5 trillion); in public contracts to build roads, military arms, and computer systems; and in providing social services such as dealing with the homeless. How well public employees do their jobs, say, in running schools, is critical to the success of our society. How efficiently they are managed goes right to the taxpayer bottom line.

Public unions have "captured" the operating machinery of government
Union restrictions and entitlements are memorialized in hundred-page collective bargaining agreements and in statutory codes that remove managerial authority. Looking under the hood of government reveals a tangle of red tape. Obscured within all that red tape are union controls that have eliminated the two main tools of management: decisions on individual accountability and on resource allocation. Accountability is critical not mainly to cull poor performers but to instill the mutual trust needed for an energetic organization. There's hardly anything more dispiriting than the knowledge that performance doesn't matter. Allocating resources is critical to avoid the waste of people standing around or pushing paper.

Critics of government, including me, point the finger at red tape. But where did that red tape come from? Much of the red tape, such as thick rulebooks, repetitive processes, and detailed classroom protocols, is a crude substitute for the inability to manage public employees. There's no need to tell people how to do the job if they can be held accountable when they don't do the job.

But there's near zero accountability in government. The ideal of a civil service "merit system" has become a bad joke. Ninety-nine percent of federal employees receive a "fully successful" rating. Termination is impossible even for regular misconduct — for example, an employee at the Environmental Protection Agency who spent his day surfing pornography sites. An 18-year study in Illinois found that an average of two out of 95,000 teachers were dismissed for poor performance. That's actually twice the rate as in California, another state with pathetic public schools. "People we rated 'outstanding' … are not very functional," the head of the U.S. Office of Personnel Management testified before Congress.

Public union leaders argue that these protections are "just a matter of due process." But the deck is so stacked against accountability that most supervisors don't try. For example:

• For police, the procedural tripwires typically include an inability to interview the officer until he's seen everyone else's statements (so he can align his story); layers of review and hearings, followed by an appeal to union-approved arbitrators; an inability to refer to similar past misconduct unless it was recent; and secrecy of proceedings so that there's no transparency to the public. Where discipline is imposed, it is typically overturned by arbitrators — in one report about San Antonio, 70% of the time.
• For federal employees, the onus is on the supervisor to prepare "performance improvement plans" ("don't watch porn sites") and then to give the employee a chance to show better performance, followed by hearings and appeals if things still don't work out. Under the National Treasury Employees Union agreement, a supervisor must consider 11 factors before taking any disciplinary action, including the "consistency of the penalty with those imposed upon other employees," "the clarity with which the employee was on notice," and "mitigating circumstances … such as … personality problems."

Doing what's right is not the goal of these procedural labyrinths. The goal, as one union official put it, is to preclude accountability of "even the worst people." Nor are these procedures a matter of the "rights" of teachers, police, and civil servants. What about the rights of students stuck with a lousy teacher or the rights of taxpayers to effective government?

The beginning of the end
A little over 50 years ago, in the 1960s, without anyone noticing and for no real reason, Congress and legislatures in 38 states gave public unions the power of collective bargaining. Many public employees already had civil service protections, and there were no abusive work conditions or the like. But public unions had been angling for power for decades, and the 1960s "rights revolution" provided perfect cover for their political allies to give it to them. Supporters said it was just a matter of "elementary justice" to allow public employees to unionize like steelworkers and other trade unions.

Until the 1960s, leaders such as Franklin Roosevelt had firmly rejected public unionization — public employees owed a fiduciary duty to serve the public interest, not bargain against it.

And getting political leaders to cave to union demands was simple. The growth of big government, now an eighth of the national workforce, allowed public unions to amass giant political war chests to support favored candidates. Over 90% of the funding for newly elected Chicago Mayor Brandon Johnson came from public unions. That doesn't count the money spent by the unions to staff phone banks and door-to-door canvassing.

Campaign financing is often sleazy, but public union financing is more insidious, like a corrupt quid pro quo: The mayor has a legal obligation to enter into a collective bargaining agreement with the unions. When the time comes to sit down and negotiate, Johnson won't be sitting across the table negotiating for the public's best interest. He'll be sitting on the union side. It won't be a real negotiation. It will be more like a payoff. As union leaders like to say, "We elect our own bosses."

Today, public unions in America have about 7 million members, collecting over $5 billion annually in dues. Most of these funds are spent on direct or indirect political activity. That's $20 billion in every four-year election cycle. Public unions more or less own the Democratic Party. About 10% of delegates to the Democratic National Convention are members of teachers unions. But Republicans steer clear as well. Try to take on the public unions and they will amass national resources to defeat you. As I describe in Not Accountable, union political tactics are brutal. The exceptions prove the rule. It took four hard years for former Wisconsin Gov. Scott Walker to overcome union controls, and when former Ohio Gov. John Kasich tried similar reforms, the unions consolidated national support to obliterate Kasich's reforms in a matter of months.

This process of collective bargaining has been going on for 50 years. Every few years, there's a new contract, with more union controls and more union benefits. The surest sign of corruption is how much effort the unions make to disguise their benefits. Voters would revolt if they understood how much is wasted by overtime scams, inflated pensions, and work rules designed for unnecessary cost. But those are the kinds of games embedded in complex collective bargaining agreements.

Waste, by design
The overtime scams in Los Angeles can be traced in part to three provisions in the collective bargaining agreements:

• A "constant staffing" model that mandates staffing at all hours, whether or not needed. Overtime is required whenever someone is sick, on vacation, or doing mandatory training.
• A requirement to pay overtime for the entire day if one hour of overtime is worked at the beginning.
• Collecting overtime for regular workdays after the public employee deems an earlier weekday a sick day or vacation day.

Gaming the system is considered an entitlement by public unions. The work rules for engineers at the Long Island Rail Road at one point mandated double pay if they operated both an electric and a diesel locomotive in a single day, provided pay for eight hours if they spent an hour moving a locomotive, and required that any new maintenance assignment last at least three weeks. Many rules are designed for featherbedding — for example, a track maintenance crew must call in a separate crew to cut an overhanging branch. A New York Times report found that construction of the Second Avenue subway in New York cost $2.5 billion per mile, five times more than a similar subway tunnel using a similar machine in Paris, mainly because of mandatory minimum staffing.

Schools are virtually unmanageable. Sick days and professional development days are treated as vacation. In Seattle, teacher absences constituted 9% of all school days, requiring substitute teachers who are notoriously less effective. Principals are not allowed to observe teacher performance except with advance notice and under restrictions. When the coronavirus pandemic hit, teachers refused to go back to work for almost two years. When trying to coax teachers back to schools in 2021, Chicago Mayor Lori Lightfoot observed that "they'd like to take over not only Chicago Public Schools but take over running the city government."

Out of control
There's no public purpose served by near zero accountability or by work rules designed to waste money.

But there's a relentless quality to union demands. When public outrage puts an end to abuses, as occurred with LIRR work rules, the unions come up with new demands. The Citizens Budget Commission found that 21 bills to sweeten public employee benefits were passed by the New York State Legislature in 2021. Not all were signed into law, but the pushing is constant and in one direction. There's no significant interest group opposing all these demands. Stanford political scientist Terry Moe found that in 36 states, the teachers unions contributed more to political campaigns than all business groups combined.

Viewed from a distance, what's happened over the past 50 years is apparent: Public unions have used collective bargaining power to harness the mass of big government to seize control of government for their own benefit. They've turned the political processes of democracy into a kleptocracy: Unions accumulate billions from public employees and redirect those funds to get leaders elected, who then repay the favor out of taxpayer dollars. The state of Illinois is practically insolvent, with public debt that experts say can never be repaid. Yet this summer, Gov. J.B. Pritzker (D-IL) agreed to a 19.28% raise for 35,000 public workers and a $1,200 "stipend" to each worker upon ratification. There's nothing subtle here: quid pro quo.

A way forward
A political solution is almost impossible because union powers are embedded in decades of accumulated statutory protections, zealously guarded with billions of dollars of political funding. But there's a constitutional solution, as I argue in Not Accountable.

Democracy can't work if the president, governors, and mayors have lost their authority to manage government. It is a core constitutional principle that governing power cannot be sold or given away to a private party. "The power of governing is a trust committed by the people to the government," the Supreme Court has held, "no part of which can be granted away." This non-delegation doctrine is enshrined in the Constitution for state and local government in the guarantee clause of Article 4: "The United States shall guarantee to every state in this Union a Republican Form of Government." What this means, according to James Madison, is that governing power cannot be ceded to any "nobles" or other "favored class." The Supreme Court has never enforced the guarantee clause, but nor has it ever been presented with a case in which vital tools of executive power — accountability and managerial power — have been removed.

There is also an inherent conflict of interest and corruption in public union political power. Unlike other interest groups, public employees have an ethical duty to avoid demands that harm the public. Unions should not be allowed to purchase the influence of officials, who have a legal obligation to bargain against unions for the public good. Just as paying off management by a trade union is unlawful, so too should payments to elected leaders by public unions.

This constitutional challenge will be enhanced by broad recognition that good government is impossible under union controls. Citizens from all sides are frustrated by the endemic failures of government. Political leaders need to present a new vision of how government should operate: to fix broken schools, for example, and to revive the ideal of a "merit system" for public service. It's hard to imagine a more powerful platform than one that vows to do whatever is needed, including constitutional challenges, to break the union stranglehold.