All You Need
Is one case.
The following was written by Mary Williams Walsh, who has left The New York Times and is now the managing editor of News Items and a regular contributor to Political News Items. It’s a review of Philip K. Howard’s new book, Not Accountable. It’s well worth your time.
On November 8, voters in Illinois approved a constitutional amendment affirming workers’ “fundamental right” to collectively bargain over wages, hours, working conditions, “and to protect their economic welfare and safety at work.”
“No law shall be passed that interferes with, negates, or diminishes” these rights, the state constitution now says.
What’s wrong with that?
Philip K. Howard is glad you asked. In January, the lawyer, author, and good-government activist published a book, Not Accountable, which describes what he calls “the stranglehold” of public employees’ unions on state and local government and how it might be broken. (Howard is not concerned with unions in the private sector.)
“This is clearly unconstitutional,” he said when I asked him about Illinois’s new amendment. “It means that collective bargaining agreements pre-empt state laws.”
A central message of Not Accountable is that the U.S. Constitution bars that kind of thing. It doesn’t matter that most Americans nowadays tell Gallup pollsters they approve of unions. The Framers of the Constitution did not want any outside parties—including unions and labor arbitrators—to come between the voters and the leaders they elect.
Yet that’s what goes on every day in most states, Howard said. Illinois’s new amendment is just the latest example.
“It’s really a simple point,” he said. “We elect managers who don’t have the authority to run the machinery of government.”
Think of police chiefs who can’t disarm trigger-happy cops. Think of school superintendents who can’t fire incompetent teachers or raise the pay of good ones. Think of city officials who can’t rein in pension costs and end up subjecting their residents to municipal bankruptcy. (The latest such case is in Chester, Pennsylvania, which went bankrupt in November when its police pension fund ran out of money.)
“You can’t have democracy under these conditions,” Howard told me, adding that he thought much of the extremism in today’s politics reflects public frustration with elected leaders who can’t lead.
He cites notorious cases: The E.P.A. employee who couldn’t be fired for watching online pornography in his cubicle. The I.R.S. employee who made racist remarks and denied benefits to African immigrants. Derek Chauvin, the Minneapolis cop known to be “tightly wound,” who couldn’t be disciplined until he killed George Floyd in front of horrified onlookers. (Even now, Chauvin is eligible to draw his police pension in prison, once he turns 50.)
As a young man, Howard said, he worked in government, doing policy research before going into the practice of law. His friends in government were always telling him they knew what the right thing was to do, but couldn’t seem to do it.
“They kept asking me why,” he said. “I started looking into it.”
In 1995, he published The Death of Common Sense, a book that described an America drowning in rules. It became a best-seller. Other books on related themes followed. In 2002 he founded a nonprofit, Common Good, which seeks to rescue worthy people and projects from bureaucratic quicksand.
With more than a quarter century of pondering government delays and dysfunction, Howard was bound at some point to home in on collective bargaining. He began to see it as one of the biggest impediments to productivity and reform.
“The abuse of power by public employee unions is the main story of public failure in America,” he writes in Not Accountable.
Unions at companies don’t bear the blame, mind you. In Howard’s view, they are constrained by the same market forces that constrain business. But in government, taxing power is theoretically unlimited, and market forces don’t apply.
“Unions can demand ever more,” he writes. Collective bargaining is “a kind of one-way ratchet that never stops raising public costs.”
He certainly isn’t the first to have such concerns. As Governor of Wisconsin in 2011, Scott Walker decided to push a far-reaching “budget repair bill” that would limit collective bargaining rights and make members reauthorize their unions every year. He got caught in a scorched-earth battle that went on for four years.
Unions mobbed Capitol Square in Madison; the National Guard was put on alert. State senators hid out in Illinois to prevent a quorum and delay a vote. After the bill was enacted, unions mounted a recall campaign against Walker. It failed, but then prosecutors from five Wisconsin counties accused him of illegal fundraising activity during the recall. (The state supreme court eventually ruled that the accusations were “unsupported in either reason or law.”)
Walker’s initiative ended up saving Wisconsin’s taxpayers billions of dollars a year and resolving chronic budget deficits. Student test scores went up, too, in school districts that instituted merit pay for teachers. But no other governor has shown interest in following Walker’s example. Even Walker is out of electoral politics for now. He is the president of Young Americans for Freedom in Washington.
But Howard believes that a federal court challenge could accomplish much the same goals, without the firestorm.
Much of Not Accountable is devoted to explaining how. Howard identifies a handful of constitutional provisions that a court challenge could be based on.
One is the “non-delegation doctrine”—the principle that elected officials cannot constitutionally delegate their governing duties to private parties. He cites a Supreme Court decision, in a case known as Stone v. Mississippi, that captures it: “The power of governing is a trust committed by the people to the government, no part of which can be granted away.” (Italics mine.)
Another is the first sentence of Article II of the Constitution, which provides that “the executive power shall be vested in a President”—not, in other words, a bargaining committee.
Third is the “Guarantee Clause” of Article IV of the Constitution, which holds that the “United States shall guarantee to every state in this Union a Republican Form of Government.”
Here, the word “Republican” refers to the idea that in a republic, governing power belongs to officials who are accountable to the voters—not to aristocrats or some other favored class.
Not Accountable argues that public employees’ unions have become such a favored class. Today they exclusively represent millions of government workers in 37 states, the federal government and the District of Columbia. They spend up to $3 billion a year to influence the political decisions of officials who are supposed to be balancing the needs of all constituents.
But that’s the beauty of a judicial solution, Howard says. You don’t need to bring millions of agitated people into the streets or to whip up viral support on social media. “All you need,” he said, “is one case.”