Not Accountable: Rethinking the Constitutionality of Public Employee Unions, by Philip K. Howard, Rodin Books, 160 pages.

Public sector unions seem to make basic government operations difficult, if not impossible. High labor costs helped derail California’s dream of a high-speed train system connecting San Francisco and Los Angeles. Striking teachers injected even more uncertainty into a labor market reeling from lockdowns, mandates, and supply chain disintegration. Derek Chauvin had a history of citizen complaints before 2020, but the union agreement with the City of Minneapolis blocked the police commissioner from firing or transferring him. 

After our sixty-plus year experiment with public collective bargaining, “democracy no longer works because public unions have turned the constitutional hierarchy upside down,” writes Philip K. Howard. But Howard, chair of Common Good and author of several books about government reform, found a potential legal solution to that problem. In Not Accountable: Rethinking the Constitutionality of Public Employee Unions, Howard makes the case that workable government depends on the U.S. Supreme Court deeming collective bargaining by public sector unions unconstitutional. In just 160 pages, Howard marshals vivid historical examples and cogent legal analysis to make a persuasive case against allowing public sector employees to unionize at any level of government: federal, state, or local. 

Today, prominent Republicans and thinkers on the right are voicing serious concern for labor interests. Howard’s book serves as a warning that while trade unions may be a necessary check on corporate predation, that logic does not extend to government workers. The unionization of public workers, according to Howard, has made officials “accountable to public employees” instead of to the people as a whole, the original sovereign over America’s republican form of government. He compares public sector unions to the old Tammany Hall political machine in New York, creating a spoils system that protects employees’ positions while allowing the quality of public services to deteriorate.  

The book contains countless examples of collective bargaining agreements effectively allowing employees to get away with gross misconduct and preventing managers from sanctioning them for lackluster work. An EPA employee was caught surfing porn in his cubicle at work and was paid for nearly two years before agreeing to retire. An IRS agent systematically denied benefits to African immigrants, repeatedly made discriminatory remarks in the office, and tried to run another employee off the road. His union lawyers got him a deal that left him with a clean personnel record when he left the agency, allowing him to get a job with the Forestry Service. “As a practical matter,” Howard writes, “almost no public employee can be dismissed without a massive managerial commitment,” and even that commitment does not guarantee success. California has 300,000 teachers and only about two or three a year lose their jobs because of poor performance. At the federal level, more employees die at work than face termination for poor performance. 

In the year 2021, 33.9 percent of public sector workers were union members, compared to just over 6 percent of private sector workers. To Howard, that third of workers constitutes a “faction exercising control over the operating machinery of state and local governments,” the mortal disease identified by James Madison in Federalist 10 “under which popular governments have everywhere perished.” It is difficult to rebut the characterization given the fiscal millstone around the necks of taxpayers in Illinois and New Jersey, where unions have achieved legal and constitutional changes to protect their lavish pension benefits at the expense of other public priorities. 

The nondelegation doctrine is a perennial favorite of the champions of limited government and separation of powers. Most proponents of reviving the doctrine focus on ways Congress has given its responsibility to make laws to the president and the various agencies that comprise the federal government’s executive branch. Howard ably shows that allowing public employees to bargain collectively with their governments essentially gives unions and arbitrators legislative authority to set rules governing working conditions, salaries, perks of seniority, and grievance procedures. Each of those aspects of employment involve public policy tradeoffs. Citizens in a republic should be able to hold elected officials accountable for how they choose to balance safety and efficiency. Union control of the electoral process makes such political judgment impossible in many cities and states. 

Public sector unions provide more than direct financial contributions to political campaigns. Howard recounts how they recruit and train candidates, manage phone banks, lead door-to-door canvassing drives, staff campaigns, and run ads. Such union political activity makes them larger and more influential than other political interest groups. The protracted legal battles former Wisconsin Governor Scott Walker faced after he proposed reining in public-union power supports Howard’s thesis that union power is formidable. Walker beat a union-led recall effort against him, but union opposition to modest changes led to electoral annihilation in New Jersey in the 1990s.

To give executive branch supervisors back their managerial and operational discretion, Howard goes beyond the nondelegation doctrine and cites the Guarantee Clause found in Article IV of the U.S. Constitution, which states that “the United States shall guarantee to every state in this Union a Republican Form of Government.” If public unions have severed “the linkage between the ballot box and executive and legislative powers,” then perhaps courts could examine whether such conditions rise to the level of a constitutional violation. Executives have a responsibility to execute the laws faithfully. Howard makes the case that onerous collective bargaining agreements undermine their ability to use their best judgment and common sense in pursuit of the public good. 

The day before the publisher released Howard’s book, Florida Governor Ron DeSantis announced a legislative proposal that would increase public teacher pay while placing new restrictions on union activity, including blocking school districts from deducting union dues from teachers’ paychecks. Whether DeSantis succeeds in getting his proposed policies enacted will help us see whether the courts are the most viable way to fix the ills spread by public employee collective bargaining.