Episode 81: Rethinking the Constitutionality of Public-Sector Unions

Michael Schaus

Free to Offend Episode 81 | Guest: Philip K. Howard, Common Good

Public sector unions have long stood in the way of a more accountable and efficient government – obstructing both progressive and conservative reforms alike. However, what if they’re something more than mere inconveniences to governmental reform?

What if they are also, at their core, an unconstitutional usurpation of our constitutionally guaranteed form of representative government? Philip K. Howard is Chair of Common Good and a bestselling author, and he joined the program to discuss this very idea – an idea he explores in depth in his latest book, Not Accountable: Rethinking the Constitutionality of Public Employee Unions

Read the Transcript

Philip Howard: So, the people who supported unionization 50 years ago would agree with me that as they currently now operate in significant ways, they’re unconstitutional.

Michael Schaus: This is Free to Offend. I’m your host, Michael Schaus. We’ve got an excellent show for you today. Just, you know, trying to change things up a little and see what quality episodes might do for us. I’m very happy to introduce Philip Howard. He’s chair of Common Good. He’s also bestselling author. He’s back in the 1990s.

He wrote the book, The Death of Common Sense, which is an incredible book. You’ve definitely got to check it out. Back in really the 2000s, I think, he also wrote Life Without Lawyers, which the title alone should get you to go out and buy that book. But his most recent book from 2023, is Not Accountable: Rethinking the Constitutionality of Public Employee Unions.

And this is obviously a topic that hits close to our hearts, because here in Nevada, we’ve been dealing with public sector unions standing in the way of important reforms, both reforms that Democrats like and reforms that Republicans like. We’ve seen them get in the way of everything from police accountability measures to obviously educational reforms.

It’s something that I say all the time; we were worried about special interests in government. Well, government public employee unions tend to be some of the biggest special interests every year in the legislature. So, Philip, thank you so much for joining us. We really appreciate it. This is a great topic.

I’m looking forward to our conversation.

Philip Howard: Nice to be with you.

Michael Schaus: Your book you know, it kind of covers a little bit of everything, talking about what the problem is with public sector unions, kind of how we got here, but also obviously this somewhat unique idea. I don’t know if it’s really unique, but I’m going to say it’s relatively new to me that maybe a lot of these public sector unions are actually unconstitutional as well.

So, let’s begin at the beginning here. What encouraged you to write this book and tackle this topic?

Philip Howard: Well, you know, I’ve written a lot about how government operates. I’m really interested in making it so that whatever government needs to do, we can do so effectively and not waste taxpayer money and not ruin people’s lives by sticking them in awful schools with awful teachers and that sort of thing.

And public unions were always, I knew, part of the management problem, but like everyone else, I assumed that they were like a state of nature. You know, people have the power to unionize, therefore what do you do about it?

But I started looking into it in the federal government and read all these cases about executive power. The gist of it is that Congress can do a lot of things, set laws and budgets and stuff, but it actually can’t take away the President’s power to operate government because that’s the President’s constitutional responsibility.

So, you shouldn’t be able to tell the President that he can’t fire a lousy worker, for example, because democracy’s just a process of accountability. You know, you don’t like the way somebody’s running government, the voters are like somebody else.

Well, that doesn’t work if the links in the chain of accountability are broken down into government. Of course, that’s what’s happened in American government; no one’s accountable. It’s a near zero accountability at every level of American government. 99% of federal employees get a fully successful rating.

Two out of 95,000 teachers in Illinois year dismissed for performance. That’s twice the rate as in California. You know, it is like zero accountability.

So, in any event, I began to think about it. Say, well, wait a minute, the state legislatures shouldn’t have the constitutional authority to take away the executive authority of a mayor or governor.

And the more I looked into it, the more that seemed to be a correct view, the correct interpretation of what the Constitution requires.

Michael Schaus: This is an interesting idea. It makes a lot of sense to me when you put it that way. You think about, for example, in the state of Nevada and you think about the Clark County School District, which is huge and one of the worst school districts in the nation.

And yet, if the governor or even the school board decides, “Hey, we want to get rid of these teachers because they’re underperforming,” they can’t do that with the current collective bargaining agreement that they have. It’s like the ability to hold those workers accountable no longer really exists for the administrative or the executive branch.

Philip Howard: Right. And so, what’s democracy about? You elect the mayor; you elect the school board, and they don’t have the authority. I don’t know about Las Vegas, but many cities have dozens of schools where not one student is proficient in reading or math. And yet there’s no ability by the officials in charge of the schools to change how they work.

Michael Schaus: Yeah. This is something that, you know, I think in the last few years, it started to really come into focus for folks. For example, with education, you had the whole COVID-19 fiasco and all these schools started shutting down. They were trying to do remote learning and the one entity that was really standing in the way when everything else was opening up, when we were allowed to go back to church, when we were allowed to go back to Walmart, when sporting events were happening again, and yet our kids were still held back from going back to public school.

I think a lot of people said, “Well, wait a minute. Why is that?” And quite rightly they started a point at the teacher’s unions, because those were the largest groups lobbing against that. Do you see people starting to kind of become aware of this? Stepping away from the partisan game and saying, “Hey, just as far as good governance is concerned, these are the groups that are standing in the way?”

Philip Howard: Yeah, I don’t think it’s a hard sell to people. I mean, I’ve got an enormous response to Not Accountable. I may have had more reviews and columns than I’ve had on any other book. And this is a very short book. But the indictment I think is really irrefutable. How can democracy work on these terms?

I think the challenge here is not making the argument or convincing people. The challenge is actually making it a part of the public narrative. And so, for example, next year’s a presidential election. We need the candidates for president to make this point. In other words, to get the public really engaged and outraged, which they should be. we need messengers.

It’s important to do what we’re doing now, being on a podcast. But I don’t think it’s hard to persuade people that we’re right. What’s hard is to persuade, you know, the kind of jet stream of public opinion that this is something that needs to change.

Michael Schaus: Well, and this starts to get into some of the political problems with public sector unions. When I talk about the fact that they are one of the biggest special interests in government, there are a lot of politicians.

I’m thinking about thinking about here in Nevada where we’ve been fighting for educational reform for years, and the public’s overwhelmingly in support of it. But of course, teacher unions happen to be a very, very large political donor class, and they really do kind of control the legislature. So, there’s that component of it, which I think is going to be the biggest obstacle really.

Philip Howard: Well, it’s the biggest obstacle to what I’ll call reasoned change. I go through this in Not Accountable. The political power of the unions is not like other interest groups. It’s a different in kind.

In a typical gubernatorial race in some states, they’ll put up tens of millions of dollars. The union employees will literally be the senior staff for the person running for governor. They will have busloads of union members who are paid a per diem to man the phone banks and to knock on doors. They are a political machine. They’re not a special interest. They’re a political machine.

And so here you have the massive government represented by public employees, which are like 20% of the total workforce, organizing through unions against the reform of government. So, I argue in the book that their organized political activities should also be unconstitutional.

And what do they do? They spend all that money to get someone elected. Then they sit down at the bargaining table. Is that person negotiating with them? No, it’s not a negotiation, it’s a payoff. It’s incredibly corrupt.

Michael Schaus: Yeah. I mean, this goes back to the original concern that people like FDR had about public sector unions, this idea that they are effectively electing their own bosses.

I mean, if you and I in a private sector job, if we formed a union and then we could go out and choose our own bosses, you wouldn’t have that natural struggle of the employee versus the owner of the company. Or you wouldn’t be negotiating over profits.

None of that happens in the public sector. It’s literally, “Hey, we are going to help elect people who are then going to protect the status quo or do what we want.” How do you, how do you counter?

Obviously, the public sector unions, one of the things that they would say just based off the title of your book, is, “Hey, look, we’ve got a First Amendment right just like anybody else to collectively come together and call for our priorities and government.”

How do you respond to that argument that there’s a constitutional right for unions to exist in the first place, even if it is public sector?

Philip Howard: That’s actually been decided by the Supreme Court already. There were laws like the Hatch Act in the federal government that that prevented union activity by employees.

And the Supreme Court said that’s perfectly constitutional. They have a special duty to advance the public interest, and it’s perfectly reasonable to prevent them from organizing politically to affect how government works. So, I don’t think there’s any serious constitutional argument against this.

The serious constitutional argument is that the people who run government shouldn’t form a machine to take over government. Government’ supposed to work for the people, not for the employees of government.

Michael Schaus: So, we’ve seen some good reforms elsewhere in the nation. Here in Nevada, of course, we’re moving the wrong direction. We recently granted collective bargaining abilities to state workers. So, we expanded the pool of public sector workers that that can now collectively bargain.

But elsewhere in the nation, I see some little rays of hope, some little areas of optimism. The question I have is, aside from public opinion and maybe some marginal improvements here and there throughout the nation, do you see anybody else taking up the constitutional argument that you are bringing up here? That this really damages what we’re supposed to have, which is a democratic or representative form of government.

Philip Howard: Well, the answer is yes, but my book is only four months old. Public employee unionization is only 50 years old. I mean, it’s relatively recent. It all came in as a kind of without anybody noticing during the rights revolution in the late sixties. And people didn’t realize that the dynamic would be completely different than that of trade unions.

So, for example what people can negotiate for in a trade union. If the union asks for inefficient work rules or asks for too much money, everyone in the union loses their job because the company’s going out of business or move out of town. Government can’t move out of business. They can’t move out of town, right.? They can’t go out of business.

So, for 50 years you’ve had the union’s demanding more and more from the public trough and the taxpayers are not able to do anything about it. And so, what they’ve negotiated for are incredibly unreasonable benefits, work rules designed for feather bedding, and designed to squander taxpayer money.

And the second difference with trade unions is if the manager of a company took huge benefits from the employees to give them special rights, he would be put in jail, you know? So why is it that we let the managers of Clark County or Nevada take huge amounts of money from the employees and then give them special benefits? Why aren’t they going to jail?

Michael Schaus: Yeah, that makes sense to me. And I also think that there’s an opportunity here to move this conversation even into what would otherwise be kind of progressive portions of the political realm.

When you look at things like when black Lives Matter was really big and you had all these protests against police brutality or what have you, it was kind of strange to me watching some people on the left all of a sudden realize, “Oh, public sector unions are the problem here because it’s the police unions that are making it difficult for accountability measures” and what have you.

Do you see some signs elsewhere throughout the nation that there is a willingness to kind of take on these unions from some politicians who are reform-minded? I imagine that’s going to happen more on local levels than on the federal level at this point. But do you see some optimistic signs?

Philip Howard: You know, maybe glimmers. I mean, right now the Democrats won’t say anything because the public employee unions are the biggest donors for the Democratic party. So, the teacher unions represent 10% of the pool of delegates in a typical Democratic National Convention. The recently elected mayor of Chicago, Brandon Johnson, got over 90% of his money from public employee unions. Literally he’s just owned by them.

So, the Democrats can’t say anything about it, but I am talking to Republican presidential candidates about these issues. I’m hopeful that they will raise this idea.

And it also enables Republicans. For years, Republicans have been the party of no government, right? It’s like the Tea Party and let’s get rid of government and our problems were solved. That didn’t work because it wasn’t really practical.

But my view is the Republicans should become the party of good government. You know, whatever government does, it ought to do effectively. It shouldn’t waste money. It shouldn’t spend twice as much on the transit system. It shouldn’t spend twice as much on schools and get no results. So how do you do that? Will you make it manageable? That means getting rid of the unions.

Michael Schaus: So, what are some of the trends in public sector unions right now? Cause I do see here in Nevada it’s grown. But I see things like the Janus decision, which obviously was a big blow towards compelled unionization. Previously in certain non-right to work states, even if you didn’t want to be a part of the union, you had to pay your portion of your dues or what they would call agency fees.

But that’s since been overturned, which has given some public sector workers freedom to leave the union. Legally and on the public opinion side, what do you see as the trend for public sector unions right now? Are they still growing in strength over the years or has that kind of stopped thanks in part of things like COVID?

Philip Howard: Yeah, I think that the unions are kind of a stable. They’re like a kind of a big lump of lead, you know, in the middle of the public sector. They haven’t really grown recently. They represent about a third of the total workforce. But it’s in certain states, you know, where it’d be 50, 60, 70% of employees.

They represent about 25% of the federal workforce. But again, it’s more in certain agencies than in other agencies. And it hasn’t really grown. But nor has it shrunk significantly, for example, because of the Janus opinion.

I think the waters are just starting to royal. I mean, my book, Not Accountable raises issues that nobody had thought of before. And when the book came out, there were silence for two weeks because I think people on the right thought it was too good to be true. You know? If these were unconstitutional, how can somebody didn’t think of it 50 years ago?

I go through the history of this in the book, but it turns out that 50 years ago they were worried about the constitutionality. And they talked about things that unions might demand that would clearly be unconstitutional.

By the way, that’s what unions have gotten. So, the people who supported unionization 50 years ago would agree with me that as they currently now operate in significant ways, they’re unconstitutional. So, I think eventually after a few weeks, it sunk in that I could be right, and legal scholars started writing that, “Hey, you know, we just haven’t looked at this before through the lens of constitutional governance and it’s hard to refute Howard’s arguments.”

Michael Schaus: Do you think that’s part of just kind of the complacency of the status quo? I mean, the fact that this happened back in the fifties and sixties when they started to unionize certain public sector workers. As you point out, there was a lot of other things going on as well. And then all of a sudden it was just, “Oh, this is the status quo. This is the way it is. We just have to deal with police unions and teacher unions.” I mean, is that what it was?

Philip Howard: Yeah, I, you know, there’s a lot about modern government and society that’s absolutely ridiculous that we accept. I mean, truly, it’s ridiculous, you know. One hundred and sixty STEM education programs in the federal government. GAO writes reports about how stupid and wasteful it is. Nobody does anything about it.

You know, giving subsidies from the New Deal to farmers. A hundred years later, people just accept this stuff. Just because something exists doesn’t mean it should exist.

And you know, if you ask me what the biggest problem, you’re missing complacency with the kind of American attitudes towards these issues is that our society has been so successful since the end of World War II with a few hiccups, and we’ve been so rich that, you know, there’s no imperative for people to get involved in change. You know, we can go and relax by the pool. And so, affluence breeds apathy. And so, we’re all guilty of it.

I mean, look at the people who run for office.

Michael Schaus: I hate looking at the people that run for office.

Philip Howard: Yeah. I mean, look at the governing class. Yeah. They’re not, they’re not by and large the leaders of the community. They’re professional politicians.

Michael Schaus: And that’s actually a really good point. The fact that we have been such a prosperous nation, the fact that as a people, we’ve been very prosperous and very successful with our economy and everything. Of course, there have been some downturns and what have you.

But as a result, we’ve been able to get away with a significant amount of inefficiency in government. You, all that bad government that happens hasn’t really caused the kind of dystopian future yet because we’ve managed to kind of endure it. Maybe this shows kind of an opportunity. Just like Covid woke people up to education, the next few years as we’re hitting more inflation as spending continues to go up, you know, with absolutely no restraints.

Philip Howard: Yeah, I’m trying to find some operational experts now to do an analysis of how inefficient government is when you don’t have the key management tools of accountability and daily resource allocation, which you don’t under union rules.

I think the answer to that is probably one third to 50% of the kind of operating cost of government are wasted. So, let’s think about what that money could be used for. It could be used for actually having a coherent program to deal with homelessness, you know, assisted living facilities. It could be used to create more renewable energy grids.

It could be used to in a program that I think is desperately needed to go into minority and very poor communities and create kind of programs for young mothers and their infants for much of the day so that these kids grow up hearing the English language. And the mothers are also get educated in a way that the system doesn’t now help them and finally break that cycle of poverty.

I mean, all the things we could use public monies for in a good way. Or lower taxes. Instead, we’re just accepting the waste of it. And, you know, I think I think we’re overdue for a reckoning, and I’m hopeful we can get some candidates in 2024 to talk this way.

Michael Schaus: I always argue that local is better than federal because people tend to have a little bit more control over their local politics than their federal politics. But that being said, everybody pays attention to the federal level. And if this became some sort of a conversation in, for example, the presidential debates, that, that I think would be huge because it’d make people start finally thinking about it and applying it to more local governance.

Philip Howard: Completely, completely. So, the narrative is different than the execution. The narrative has to be national because no one’s thinking this way or talking this way. So, you’ve got to make it be part of the mainstream.  But then you apply it in Clark County.

Michael Schaus: Exactly. We already see this a little bit where for example, the school choice movement, you know, started to grow once it became a national conversation. People started to say, “Hey, yeah, that’s right. I would like that in this little school district in Nebraska” or something. And so, I think you’re absolutely right about that. I

If people want to find out more about your book, if they want to buy a book, of course it’s available on Amazon. Where else can they go to see what you’re up to?

Philip Howard: So, there’s a lot on the book and what we’re up to and kind of why government is just so inhuman, why it’s so dehumanizing in so many ways. And our website is CommonGood.org.

Michael Schaus: CommonGood.org. And, again, this is one of those topics I love it because I’ve got some more progressive friends that I’ve discussed this topic with and even they seem to get it. We might disagree on how much government we want in our life, but we all seem to agree that we at least want the government that we have to be doing more with less, to be more efficient, be more accountable. And that’s something that kind of transcends partisan politics.

So, I love the idea of it, and I love the book. Again, Not Accountable: Rethinking the Constitutionality of Public Employee Unions.

Philip, thank you so much. I really appreciate it and I love this conversation.

Philip Howard: Great to be with you again.

Michael Schaus: Philip K. Howard, chair of the Common Good and bestselling author. Check out his book Not Accountable: Rethinking the Constitutionality of Public Employee Unions.

Public employee unions are something that we’ve talked a lot about because, as he points out in his book, it does subvert the democratic process.

The idea that it might be unconstitutional is something that I think really should be explored, and at the very least, it opens up the conversation as to how these entities are interfering with just good governance.

Again, whether you’re progressive or conservative or libertarian or what have you, these are organizations that get in the way of the types of reforms that lead to more accountability in government. So definitely a conversation that is worth having on the federal level, even if it has to be applied on the local level.

Hey, thank you so much for listening today. Check out Nevadapolicy.org/podcast and there you can sign up not only to receive the podcast in your inbox, but you can also let us know if there’s a topic or a guest that you think we ought to cover.

Again, Nevadapolicy.org/podcast. This has been Free to Offend.

Free to Offend can also be heard on Amazon and iTunes.

 Free to Offend:
A podcast that radically defends free speech by regularly practicing it.

Produced by Nevada Policy Research Institute,
featuring Nevada Policy’s Michael Schaus.