Government by the Unions, of the Unions, for the Unions
2023-02-20 · Guest: Philip K. Howard (Founder of Common Good) · 52:39
Public employee unions and democratic accountability
Bob Zadek interviews Philip K. Howard, founder of Common Good and author of Not Accountable, to discuss the constitutional and practical issues surrounding public employee unions. They explore how these unions differ fundamentally from private-sector unions, focusing on the lack of market constraints and the political collusion that undermines democratic governance. The conversation also touches on the fiscal impact of public union power, specifically regarding pension liabilities and government transparency.
Topics: Public employee unions, collective bargaining, government accountability, labor law, Mitch Daniels, fiscal policy, constitutional law Speakers: Bob Zadek (host), Philip K. Howard (guest)
The Case Against Public Employee Unions [00:08]
Bob Zadek: Welcome to the Bob Zadek Show, your home for insight and in-depth analysis. Listen live right here, or join us at BobZadek.com. That’s Z-A-D-E-K, BobZadek.com. The Bob Zadek Show: Ideas, not attitude; information, not talking points.
Hello, friends. I’m Bob Zadek, host of the country’s longest-running libertarian broadcast, nationally streamed at 8:00 a.m. Pacific time on Sundays at the 560 AM app. The archives of my Bob Zadek Show podcast hold 15 years of major issue discussion and is the ideal resource to revisit our prior missteps, since so many of them seem to reappear. I promise you in-depth content on social, political, and economic issues that really matter, always with the ideal guest—accessible and entertaining. Our standard: ideas, not attitude.
Today’s guest, Philip K. Howard, exceeds those standards. Philip is the founder of Common Good, a nonpartisan coalition dedicated to simplifying laws so that Americans can use common sense in making their daily choices. Philip is the author of Not Accountable, which convincingly argues that public employee unions undermine our democracy and should be—and I will argue already are—unconstitutional. We’ll spend the next hour making that case.
Philip, welcome to the show this afternoon.
Philip K. Howard: Nice to be with you, Bob.
Bob Zadek: What caught my attention—and I want to mention this at the start because I love the guy—is a preface by Mitch Daniels. Mitch Daniels, to me, personifies my ideal for a leader of our country. And I was profoundly disappointed when he made a decision, I think it was back in 2008, not to enter the Republican primary. He then became the chancellor or the president of Purdue University. He was a governor. He’s an all-around solid citizen. So how did you persuade him, or did it take no persuasion whatsoever, to write the preface to your book? Because that preface alone ought to be enough to induce every listener of this podcast to go out and buy the book.
Philip K. Howard: Okay, great. So I worked with Mitch when he was governor and did a number of reforms with him. And then when he became president of Purdue, he had me come and give a talk to all of his senior staff about why they should cut out their rulebooks and start, you know, looking at how to just make sensible decisions day-to-day and not simply follow the rules. So he and I have done a lot of projects over the years and are very aligned.
I mean, Mitch Daniels, as you suggest, is an extraordinary leader. And unlike many or most politicians, he actually focuses on how things work day-to-day. You know, how do you make the Department of Motor Vehicles in Indiana work better? How do you actually manage public personnel and stuff? And that’s so much more important to most Americans than big abstract debates about immigration or other issues.
Bob Zadek: Now, we’re going to be spending most of this hour talking about a special type of organization: public service unions. That is the focus of your book, Not Accountable. We will learn during the course of the hour what you mean by associating the phrase “not accountable” with public service unions.
But first, Phil, if you don’t mind, public service unions are, of course, unions, but this show is not about unions per se. Because, as the audience will learn, public service unions are—in their effect upon life in America, on their economic and political power—they are so different than private service unions that it’s quite possible for listeners to develop different attitudes towards public service unions as opposed to private service. So give us the big picture of what makes public service unions different and justifies an entire show devoted only to that activity.
Philip K. Howard: Yeah, it’s a really important question because everybody says, “Well, it’s a union, it’s always a union.” And in fact, the collective bargaining power of public employee unions, which only came in really in the late 1960s, was done not because there was any scandal or abuse; it just swept in with the rights revolution because the union leaders wanted more power.
Whereas private unions, which were during the Progressive Era, the origin story there was of factories abusing child labor and, you know, sort of endless work hours and horrible safety records. So there was never any need for public employee unions, and they just thought, well, they’d be the same, let’s just treat them fairly. But in fact, it’s the difference between, let’s say, a fish and a mammal.
I’ll just give four differences. The incentives are completely different. In a trade union context, like the auto workers’ union, both sides have a vested interest in the viability of the enterprise. If they have inefficient work rules or if they demand too much, the company will move out of town or go out of business and they’ll lose their jobs. Whereas with public unions, you can demand anything and you know the government can’t move.
And in a private context, the private union, the trade union, they’re just arguing about the split between capital and labor. It’s all about how do you divvy up the profit? So it’s very basically very limited. In the public union context, again, because the government can’t move, and because the officials aren’t paying for it—the taxpayers are paying for it—they can demand anything they can get away with. And the taxpayers just have to pay it.
And there’s also an incredible ethical difference, which is one of the reasons FDR opposed public employee unions. He said, quote, “The process of collective bargaining cannot be transferred to the public sector,” because public employees have a sworn duty of loyalty to serve the public, not to negotiate against the public interest with inefficient work rules and the like. So there’s an ethical difference.
And finally, and most importantly, trade union negotiations are an honest adversarial process where it would be unlawful for management and labor to collude to come up with something that was not in the interest of either side. Public unions’ negotiations is nothing but collusion. The public unions amass all this power, they get people elected, they staff their campaigns, they send people in buses to knock on doors. And then the official gets elected and they come to the bargaining table. They don’t sit on the other side of the table; they sit on the same side of the table. It’s not a negotiation; it’s a payoff.
Bob Zadek: And I just want to mention one supplement to what you say. You use the word “collusion.” And so the audience understands, collusion has a criminality feel to it. You didn’t mean that what they were doing was illegal. It was cynical. They work together, but because of the system itself, neither party is breaking any law. There’s no illegal activity. It’s just that’s the way the system is.
Philip K. Howard: It would be illegal in the private sector, but it’s not collusion in the public sector. It’s not illegal, but it’s dishonest and it’s not a good idea.
Bob Zadek: That’s right. There’s another aspect, Phil, which I don’t think you mentioned in your book, but maybe because I’m an accountant and I love spreadsheets and all that stuff—I have this embarrassing personality flaw. I just love when things balance. So I have that worldview in part. And that is that there is another important concept, which I think—but I’d like your feedback—in the private sector, financial statements, which are the report to shareholders (the voters, if you will), are published according to rules in recording expenses when they are incurred and income when it is earned and not paid. Which means it’s harder for a private employer to spend future dollars because that creation of that obligation will impact the current employer’s performance.
In the public sector, for reasons that I can’t figure out, there is public entity accounting—political accounting, if you will—called fund accounting, which means you record expenses only when they are paid, not when they are incurred. Which means an elected official can support, for example, high union pension costs, which are paid in the future. Therefore, that present political official doesn’t get dinged with a deficit in his budget because he has spent future dollars.
And I have always maintained that so much would change if municipalities and states had to use accrual basis accounting. I’m not—I don’t want to convert this to an accounting conversation, but I think that also means that political officials negotiating with the union are spending a future elected official’s money. Therefore, that public official hasn’t impaired his own or her own political life.
Philip K. Howard: That’s correct. I think they did improve those accounting rules somewhat in the last decade or so, but the process is exactly as you described, which is that they come to the negotiating table and they say, “What can we get?” Well, they couldn’t get away with paying people hundreds of thousands of dollars in current income, and the budget wasn’t there.
The History of Public Service Unions [11:32]
Bob Zadek: So, how do they squeeze their pound of flesh, you know, out of the government? One way is by making future promises that will only come due after this politician has left office, so he doesn’t have to pay it. And as you say, it wasn’t accounted for, honestly. And the other way of doing it is through reams of restrictive work rules that make—that make government virtually unmanageable. You want to move a desk, you’ve got to negotiate it. There’s a pandemic, you’ve got—there’s nothing in the requirement in the contract about working in a pandemic or doing remote learning or teaching. You know, it’s like—let’s say nothing—government is managed; it’s like the spokes are disconnected from the hub. You can’t move forward until you get union approval. I mean, we’re talking about hour to hour. It’s just staggeringly un-public service.
Everybody listening to this podcast, I suspect, was born into a world when there were public service unions: teachers’ unions, SEIU, all these public service workers’ unions. But that was—that’s relatively recent. So, if our listeners were older, they might recall life without public service unions. So tell us, if you will, a very brief history of how we got to where we are now with the teachers’ union running the COVID recovery, the pandemic recovery, etc. And that’s the most recent example in people’s memory. We’re not going to just spend a lot of time on that. But tell us the history.
Philip K. Howard: Okay. So prior to the 1960s, there were public unions, but they didn’t have collective bargaining power. They couldn’t consolidate the mass of public employees and require an official to reach an agreement with them. And so they were like any other interest group. You know, there was the National Education Association, the teachers’ union. It was actually like the American Bar Association or the American Medical Association. It was a professional group that had ideas, and some of those were in their self-interest, but they didn’t have power over politicians.
And then JFK got elected, and as his payback for union support, he entered an executive order authorizing collective bargaining in federal government. There was a report written before that, chaired by Arthur Goldberg, looking into whether they should do this. And the report is literally the most vacuous, substance-less report you can possibly make. But in any event, he did it. And then the ’60s happened. And then in the late ’60s, the unions kept agitating with state employees, with state governors and state parties.
And the thing about the civil service system, which had been created in the late 19th century to avoid the spoils system, is that it sort of naturally allowed public employees to organize where they couldn’t under the spoils system because every four years they lost their job. So now all of a sudden you had a permanent cohort that, as government got bigger, got bigger itself and became more and more influential. There’s more and more pressure put on politicians.
There was a report by a famous labor law professor, George Taylor, about how it should work. And the way he said it should work was that you couldn’t give up management control, you couldn’t let arbitrators decide disagreements, it all ultimately had to be politically accountable, or it would be unconstitutional, it would be unlawful. That’s what he said in his report. And then they passed the laws in exactly the way he said would be unlawful. And then all these other states, including California—L.A. did a report about how it should work, and they said, “Oh, the—the managers have to maintain their power, you couldn’t let arbitrators decide disagreements because ultimately democracy requires elected officials to make these decisions,” and guess what? The law did exactly what the report said not to do.
The Crisis of Accountability [17:15]
Bob Zadek: And what’s—but then one of the—you highlight one of the areas and offer an answer, a partial answer to the question which we started our show with, which is: why are public service unions, in effect, a separate topic, not lumped in with private service? Well, as you have pointed out, the result of the public service unions exercising their power—the effect which Phil, you and I experience—is as if a statute was passed.
Think back to COVID, not because this is going to be a COVID show, but because it’s fresh in everybody’s mind. When schools were closed, one would think that would require, if it’s government doing something, one would require the decision to close the schools be the result of the democratic process. If you were naive and idealistic, that’s the way it’s supposed to work. But no, it was specifically the teachers’ unions that called all the shots, which means not a dotted line—a direct line between the life of the average American and public service unions is there.
Philip K. Howard: Right. So people have known for a long time that public employee unions are a headache and they make managing government hard and stuff. Although I don’t think people really comprehend how unbelievably wasteful the system is. We’re talking about wasting—pick a number—$2 out of every three that goes into personnel and such. Why is it we keep electing new people and nothing ever gets fixed? Why is it that we have these toxic police cultures? All this kind of stuff.
And the reason is because democracy was supposed to be electing—democracy is a process of accountability. You elect somebody, you think they do a lousy job, you elect someone else, or you elect the other party. But that assumes that the people you elect in the democratic system actually have authority to manage the operations of government. Well, guess what? They don’t. So COVID happens, they didn’t have authority to say, “You’ve got to come to school.” COVID happens, they didn’t have authority to say, “You have to do distance teaching.” You know, with learning decline by like 17 percentile points, which the experts say will never be recovered.
So what we have is we have a direct compromise of a core governing principle in our country, which is the answerability, or to use a word from the very title of your book, the accountability of elected officials for our lives as their citizens. And here we have it: there is no accountability because the elected officials themselves are powerless. And if you have any doubts about that, spend an hour watching C-SPAN hearings when you see frustrated members of the House and Senate exasperated as they tried to make the executive branch—under which the unions operate—accountable, and they just say, “That’s the way we do things. This is it, this is what we do,” and you’ll see the imbalance of power between the elected officials and the public service unions.
Bob Zadek: Now, Phil, you mentioned—we talked about COVID a tiny bit. We’re done with COVID for the minute, but we have had profound civil unrest in this country. George Floyd was the most recent example, not the only example—lots of complaints. Tyre Nichols, exactly right, and in Tennessee, with the shooting of the innocent woman in Tennessee, but lots of instances that cause nationwide unrest. And the blame is on, well, the police, but written broadly. But as you point out in your book, yet another example of how unions have such a profound influence on our civic life. Tell us about the police unions, accountability and the like.
Philip K. Howard: Okay, so first, just to start 30,000 feet, democracy’s nothing but a process of accountability. That’s what it is. You elect people to run the government, they’re supposed to have authority to run the government, they do a bad job, you elect somebody else. There’s no accountability in American public employment. Ninety-nine percent of public employees get a fully successful rating. Two or three teachers out of three hundred thousand every year in California get dismissed for performance. The dismissal rates for performance across all sectors is between zero and 0.02 percent. We’re talking about one, two, three people out of several hundred thousand. So we’re talking about zero. It doesn’t—you can do almost anything except be politically incorrect or murder somebody, and you’re not going to be accountable.
So he’s talking about no accountability. So Derek Chauvin was the cop who killed—put his knee on George Floyd for nine minutes, and it’s all videoed and killed him. Well, he was known to be a tightly wound, weird guy. Maybe probably shouldn’t have been on the street with a deadly weapon, but the police chief had no authority to terminate him. And the police chief didn’t even have authority to reassign him. And in the Minneapolis police department where he worked, there had been 2,600 complaints in the prior decade, of which 17, I think, resulted in any kind of discipline. And the most severe discipline in a 10-year period was a 40-hour suspension.
Accountability and Police Culture [23:10]
Philip K. Howard: So you’re talking about a system of public service that is so rigged, where the thumb is on the scale against supervisors, that you can hold no one accountable. And the result of that is not that there are legions of bad people in government. I think most people in government—most cops (being a cop’s a hard job), most teachers (being a teacher’s a hard job)—aren’t bad; they probably want to do a good job. But when everyone knows that performance doesn’t matter, it destroys the culture. Because why work hard? Why go the extra mile when you see the person or somebody down the hall not doing anything?
So it’s like letting the air out of the balloon. You have a public culture without pride, without accomplishment, without the excitement of what public service ought to offer, which is making a difference in your community and such. And so you’ve created a kind of—so, going to police. If you can’t maintain standards of ethics, if you can’t—in the case of the Memphis killing of Tyre Nichols—if you can’t assign a mature, experienced officer to be on the nighttime duty in the bad neighborhoods, then what you’re going to have are young kids who haven’t been trained all that great and have no experience. They’ll get overexcited, and they’ll become themselves a kind of a gang, which is what happened apparently in Memphis. But you can’t assign an experienced, mature officer because the union contract says that if he’s got seniority, he gets daytime duty in the suburbs. It’s like you can’t manage a police department, so you have these weird subcultures that develop and these tragedies that, as you say, end up with national riots.
Bob Zadek: And notice the dynamic that Phil has explained. And once again, the title of his book, Not Accountable, says it all. Let’s look under the hood a tiny bit about these police abuses. This is not a show—my show will never be anti-police. I am not complaining about police forces or too much police. Nothing of the kind. How do they get elected? They get elected on platforms: “Vote for me to be head of the police union. I will protect your job.” That’s kind of appealing. If you’re a cop and somebody says, “I’m going to protect your job,” you take that personally. “I like him. I’m voting for him.”
“Protect your job” means protect your job whether you’re good or bad, which means in protecting the job, that platform itself benefits the worst performers, because those are the ones whose job is at risk. It protects the worst performers at the expense of the good performers. So there’s the system. Public service unions themselves, by fact of the institution itself and the absence of accountability to the public, that creates the problem. So when the riots are in the streets about misbehavior, the misbehavior is at public service unions per se, and especially the leadership. And Phil, we can even supplement this conversation by pointing out how powerful the public service teachers’ unions are in protecting teachers and the “rubber rooms” and the like, which is the product of the same dynamic.
Education and the Charter School Comparison [28:00]
Philip K. Howard: Yeah. I mean, so you end up with bad cultures or discouraging cultures. Paul Volcker did a bunch of reports from the Federal Civil Service on the need to reform them. And he talked about how discouraging it is for civil servants who work hard that they have to tolerate working with people who are not working hard and not doing their best. And studies of schools of good teachers say the same thing, which is nothing more discouraging.
If you go to a good school—and there are many good schools, including public schools—you go to a good public school, what you’ll see is one way or another, the culture is one of excellence. You walk in and you can feel it. It’s one where people are trying hard, and everyone feels an obligation, a mutual obligation to try hard. And if you go into a lousy public school, you get exactly the opposite thing. And you can’t fix the lousy public schools because you can’t manage them differently.
There’s this wonderful—so Thomas Sowell, the economist from Stanford, did a book where he compared the performance in public schools with charter schools that shared the same buildings, you know, in inner cities like New York. And the performance was radically different. And we’re talking about students chosen by lottery from the same cohort from the same neighborhoods. So they’re, you know, maybe their parents had the advantage of parents wanting them to have a better education, but that’s the only one. They’re basically the same neighborhood students.
So there was one school in Harlem where the charter school was ranked 37th in the state of New York out of 2,400 elementary schools in academic achievement. 37th! All these underprivileged children chosen by lottery to be in the school. The public school sharing the same building in the same year was ranked 1,694th. So everything was the same. Same building, the same supply of students from the same demographic. So you ask yourself, what’s different? There’s only one element that’s different.
Bob Zadek: And Phil, that element is—
Philip K. Howard: Well, accountability and you can manage. They can manage differently. So, for example, in the charter school, which spent less money per student than the public school, they have bigger class sizes, but they then redirect money so that there’s some art classes, music classes, and other things to broaden the interest of the students instead of just kind of, you know, sort of banging on them with reading, writing, and arithmetic. And human innovation and human initiative is at work in the charter school. They’re doing whatever it takes to make the problem child able to focus better. In the public school, everybody’s sort of going through the motions. And there’s no control, there’s no management ability, and you can’t get rid of the people who aren’t trying. It’s just—so it’s a scandal.
Bob Zadek: Phil, it’s not a tragedy; it’s a scandal that we’re ruining the lives of all those underprivileged children by sticking them in an institution that’s run for the public teachers’ union instead of for the students. We have been reciting a bill of particulars about the evils of, in general, public service unions, specifically the power of collective bargaining. Would you be content—you spent a lot of wonderful ink (if people still have ink in books), a lot of wonderful ink or digits discussing cures and what should be different. How much of the problems we’ve been discussing are directly attributable to collective bargaining? And would a civil service system without collective bargaining satisfy you? Is that the cure? Or is a civil service with its rules system itself insufficient?
The Merit System vs. Collective Bargaining [33:00]
Philip K. Howard: Um, well, first of all, civil service in general, I think it’s a good idea. It was, quote, “supposed to be a merit system,” remember? That’s what it’s called: the merit system. So civil service assumed that there would be accountability. I go through the history of civil service in the book. Civil service was not a process of tenure; it wasn’t lifetime employment. It was a process of neutral hiring. So you wouldn’t hire people because they gave money to some politician and that’s why they got their job. That was the spoils system.
So what’s happened, ironically, a hundred and something years later, is that the quote “civil service”—that public employees are now the spoils system again, except it’s permanent. Instead of episodic accountability when people all lose their job and a new party got in power in the spoils system, now nobody ever loses their job, no matter how lousy they are, no matter who’s in power, because of total union control. So if you had a merit system, that would be fine. You could have a system that protects against arbitrary firings by having somebody else look at it and exercise a judgment about whether the principal was unfair or something. But you have to have a system that actually honors human judgment and responsibility, not one that’s just a bunch of rigid legal armor, basically.
I mean, everyone’s certainly sensible. So you do have to get rid of collective bargaining, which, as you point out, puts the unions first in line for benefits ahead of the public. People are elected to serve the public, but then they go negotiate with people whose job it is to serve themselves. And then the public is left out. You end up with bankrupt states like California, and lousy schools that can’t educate the student, and toxic police cultures, and transit systems that cost three times what they ought to cost because of absurd work rules that serve no legitimate purpose other than wasting money. I mean, it is—again, people ought to read this. They’ll be outraged.
Bob Zadek: The genius—we’re talking about rules that are designed to be inefficient. They’re designed to be inefficient.
Bob Zadek: The genius of the public service unions is the marketing savvy of coining the phrase “public service.” Oh my God. Academy Award or kudos to whoever invented that. The public service unions, if you want to be accurate, are union service organizations because that’s who they serve. They hardly serve the public. I couldn’t resist that hint of cynicism. Apologies to me in context such as the one you described.
The unions want due process. Due process is a very specific concept which deals only with, for the most part, governmental behavior in a criminal context—convicted without due process of law. And it’s like free speech. People apply the First Amendment to employment relationships. I mean, it doesn’t—the free—there is no free speech. Susan Sarandon is not deprived of her speech—free speech—if people don’t attend her movies. So due process is a great American phrase to use to defend your argument, but it has nothing to do with the conversation.
Now, if we had, in the context of the workforce of those who work for the government, your, if not ideal, your goal—or you would endorse a system not that traumatic. Yes, a civil service system with rules designed to protect workers from arbitrary treatment by their ultimately political bosses. We have workers who are apolitical; they just want to show up for work and do their highly specialized job, and they don’t want to be fired unfairly by the political process when there’s a change in administration. All of that makes eminent sense. It’s good for everybody. But the system now deals with work rules. That is, rules governing the quality of life of the workers, and there’s no reason the unions perform a disservice in that regard. And that’s the part of the process where things—where we start to lose accountability, isn’t it?
Accountability and the Sophistry of Work Rules [36:45]
Philip K. Howard: Well, there are two things here. First of all, in order for any successful organization to be built, everyone needs to believe that everyone will be accountable for their performance. It’s so—it’s again, it’s a question of mutual trust. And so the foundation for trust disappears if you can keep your job by sleeping all day long. Literally, there are stories of teachers who sleep during the classroom and you can’t lose a job. There was a hearing that Steve Brill watched where a horrible teacher was—who didn’t do anything the teacher did. She never graded papers, never did anything. And so her defense to never grading papers in the high school class was that the city couldn’t come up with any writing instructing her to grade papers, you know, as part of her instruction. Well, that’s absurd. You know, the whole point of having—you’ve got to grade the papers. I mean, that’s the kind of sophistry that goes on in the police department.
If somebody misbehaves, there’s so many—the deck’s stacked. You can’t interview the policeman for a certain number of days. You can’t review—interview him until he’s seen every other witness statement, so he can tailor his—his own testimony, you know, to what other people have said. And then if—and then the arbitrators who decide it are picked by the police union. And we wonder why there’s no accountability. So you have in every situation, the deck’s stacked. All these work rules have nothing to do with the quality of life. It’s one thing back 100 years ago to have safe workplaces be part of the union. That was great, you know, back in the Progressive Era for meat workers or railroad workers or whatever. There’s never any problem of safety. There’s no reason—there are no abuses in the public service of people, you know, having to work too hard, or you’d have a hard time finding them.
And so they have all these work rules that are simply designed to—they’re designed for featherbedding. So if you have an—a work crew going out on the transit line in New York to fix the rails, and there happens to be a branch that’s sort of broken or hanging over the line, they can’t remove it because that’s not in their job description. You have a whole new crew that comes and removes it. When they were cleaning the subway cars in New York, when they thought that maybe COVID could spread through touching the, you know, the bars and the railings and such, they didn’t have enough workers. So they subcontracted it out. Guess what? The private contractor did three—much—three times as much work for the dollar. That’s how much waste there is in the system.
Bob Zadek: And what’s so interesting is the abuses in work rules—and work rules are nothing other than a wealth transfer, if you will, from one group who can’t protect themselves to another group with the power. What’s almost universally the case with abusive work rules are in an economic activity that is a monopoly. The railroads had—and still have—absurd work rules. The public service workers, teachers, public transit workers have absurd, abusive work rules. Why? Monopoly.
Philip K. Howard: Well, it’s the monopoly of the union. It’s unmanaged.
Bob Zadek: But the customers can’t leave. Your customers don’t have a choice. Railroads, customers don’t have a choice, pretty much. There’s one railroad that services an area.
Philip K. Howard: Right. But I think it’s really important to do things. One, the customers don’t have a choice. You know, the government can’t move out of town, the community, all this kind of—there’s no choice. But secondly, the public supervisors don’t have a choice. So it’s not just that you have the peril of a government monopoly. The people who are actually supposedly in positions of responsibility can’t do it either. So you’re adding another level of ineptitude. I mean, government always has a problem running for the reasons you stated. You know, there’s no—there’s no market competition, all that kind of stuff. Now, throw that on to the fact that the people who actually happen to be in charge of government also have no authority to do anything.
The Flow of Funds and the Guarantee Clause [41:12]
Bob Zadek: Phil, I want to give the audience an insight into an important part of this discussion, which you do a beautiful job on in your book, which is the economics. The economics—how the unions, through forced contributions to the union, the Janus case, which you mentioned in your book, and I did a show on Janus and on Rebecca Friedrichs and her fight in California. Explain a bit about the flow of funds from the unions—collect the money because the government protects it, and the unions overwhelmingly use the money for political contributions to reward the people who supported the unions. So, in effect, the public is forced to provide economic support to the unions themselves so the unions can work against the interest of the public. Explain to us, if you can, before we run out of time, about the flow of funds in this process.
Philip K. Howard: Right. So, okay, so what happens is collective bargaining allowed the unions to mobilize the mass of modern government—huge government—against the reform of modern government. So there are seven million members of public employee unions—teachers’ unions, police unions—in this country. They collect about five billion dollars in dues a year, and almost all that money goes directly or indirectly to political activity. So they get people elected and they say, “We elect our own bosses.” And if someone—they go to the California state legislature, their own tapes say, “If you don’t do what we want, we’re going to get you out of office.” And they will—they will mobilize national union money to get rid of state legislators in one obscure state who happen to be trying to buck them. So it’s like dealing with this fire-breathing giant, fire-breathing dragon. I mean, people are even—you know, even Republicans—most of the money goes to Democrats, but even Republicans are scared to take them on because they’ll get millions of dollars consolidated against them. And you know, we shouldn’t leave this without talking about the constitutional argument briefly.
Bob Zadek: Of course not. Of course not. Please.
Philip K. Howard: So no one really put a governance frame on this. Everybody knew that unions are kind of awful, but they treated it like a state of nature and stuff. So what I do in Not Accountable is say, “Hey, wait a minute. The point of a constitutional governance is people who elect people who are in charge.” And there are some basic constitutional principles that have been violated here. One is that no official can give or can delegate their governing authority to a private party, a private group like a union, even if they wanted to, because people would get bought off. And some group would buy them off and they would—all of a sudden somebody would be running it. Well, that’s sort of what’s happened. And this principle is enshrined in the United States Constitution, and it applies to states and local governments. It’s called the Guarantee Clause. It’s in Article IV. It says, “The United States shall guarantee to every State in this Union a Republican Form of Government.”
The Non-Delegation Doctrine and Public Unions [45:16]
Philip K. Howard: And what that means—and Madison talked, James Madison talked about in the constitutional debates—what that means is that whatever the form of government a state adopts, the people who are elected have to keep their authority to manage government. They can’t give it to anyone else. You can’t give it to a set of nobles; you can’t give it to, quote, “any favored class.”
And what’s happened in America, almost without our knowing it, and only in the last 50 years, is that by giving unions—public employee unions—collective bargaining powers and all these other rights, that politicians got bought off and they gave away the power to govern: the power to run a school, the power to run a police force. They gave it to the union. And that, in my estimation, is clearly unconstitutional. And that’s what this book is designed—not just to complain about unions, but to provide a legal mechanism where one case can undo this whole thing.
Bob Zadek: And the non-delegation principle is profoundly important. It’s part of the well-known system of checks and balances, where we have one group’s ambition offsetting another group’s ambition, neutralizing it to the benefit of the public. The non-delegation principle also applies, as my audience will remember or will know: the non-delegation principle prohibits Congress from giving too much authority—the courts will decide what “too much” means—too much authority to the executive branch, because you cannot have the executive branch legislating. And that’s another example of the same principle.
Philip K. Howard: Right, right, right. So there are two, but it’s important to distinguish these two. So there’s a lot of law in the federal context that the Congress can’t take away the executive power to run personnel. So for that reason, the collective bargaining powers are clearly unconstitutional. And a paper I’d written five years ago was the basis for Trump, basically unilaterally, saying he would hold all senior employees accountable, because Congress lacks the power to take away the president’s executive power.
The doctrine that Bob’s talking about is, by like token, Congress shouldn’t be able to give too much power to the agency. That’s one kind of—that’s sort of intergovernmental transfer-type non-delegation. What we’re talking about with the public employee union is actually far worse. It’s giving governmental powers to a private group. It’s like some rich company came along and said, “I’d like to actually run the police force and I’d like to be in charge of everything and I’ll decide how everything is run in the government.” Well, you couldn’t do that. You have to be accountable to the—whoever’s doing things, even if it’s a government contracting it out, has to ultimately be accountable to people appointed to, you know, voted in, elected in by the voters. And that hasn’t happened. You have a permanent spoils system.
Bob Zadek: Phil, let’s in the few minutes we have left, let’s empower the audience. When the audience now leaves this podcast all worked up, full of energy, and they’re all determined to individually and collectively fix the system, how should our audience use the tools available to them? What should they look for? What should they do to affect change? Because the changes are kind of simple but complex politically. But conceptually, they’re easy.
Philip K. Howard: Well, first of all, the change—it’s really important to have, even for a legal case, and I’m making, you know, a constitutional argument here that can be resolved in the courts, but even for a constitutional case, it’s really important for the public to care about it and to agitate politically because it shows that it’s important.
So that when your listeners are frustrated at another tax raise, you know, and when they’re frustrated at the failing school and stuff, they should start asking the questions: “Why can’t you run it more effectively? What do the union contracts look like? Why does it cost so much more than the private sector would cost?” And begin to make this argument that’s on—you know, read the book and tell their friends, “This is crazy.” You know, we need the people we elect have to have the authority to run these things.
And then we get kind of a movement going, and one of my ambitions with the book is to have this issue be a centerpiece of the 2024 presidential election. I’ve already talked to several of the potential candidates on the Republican side. I don’t think the Democrats will pick up on it because they get all their money from the union, but—although I think secretly they’re for it too. And so, in order for it to be important in the 2024 election, they have to hear it from voters.
Bob Zadek: Phil, I thought I was going to make headlines by having you use this podcast to announce your candidacy in the primaries, but I guess I was wrong. This is Bob Zadek. We’ve been speaking with Philip K. Howard, author of the recently published Not Accountable. Philip has also written The Death of Common Sense, also The Collapse of the Common Good. All these books are available. In addition, he has written Life Without Lawyers—Phil, shame on you—also The Rule of Nobody and Try Common Sense.
Phil, I know your time is valuable, and I sure—I, on behalf of myself and my audience, really appreciate you giving us an hour of your very special time to share your wisdom with the audience. And also, I want to warmly thank the audience themselves collectively for giving us an hour of their time, letting us into their hearts and into their minds. Thank you so much, my friends out there. And Phil, thank you again for your book and for your appearance with us today.
Philip K. Howard: Great to be with you, Bob.