The Public-Union Spoils System

By Philip K. Howard

Thursday, March 02, 2023

Accountability is basically nonexistent in American government today. Performance doesn’t matter; many public managers tell me they’ve never seen a public employee dismissed for poor performance. The Minneapolis Police Department had received 2,600 complaints in the decade before the killing of George Floyd in 2020. Twelve led to discipline, of which the most severe was a 40-hour suspension.

Blatant misconduct rarely leads to speedy dismissal; instead it is just the starting point for negotiation. In 2019 a high-school principal in New York State was discovered to have created a fraudulent system of grading to exaggerate his school’s achievements. His penalty? He lost his position, but because of public-employee protections, he will get full salary and benefits of over $265,000 annually for the next seven years. An EPA employee, caught red-handed surfing porn sites in his cubicle, was paid for almost two years until he made a deal to retire. This lack of accountability isn’t a secret, of course. Nor is the reason. Police unions, teachers’ unions, and other public-sector unions have built a fortress against supervisory decisions.

Voters elect the president, governors, and mayors, but those officeholders no longer have the authority to manage public operations. For most of 2021 and 2022, for example, over 1,000 corrections officers at New York City’s Rikers Island jail were out sick or otherwise unavailable to oversee inmates. That’s because their collective-bargaining agreement allows unlimited sick days and also gives officers with seniority the right to have no contact with inmates. The result, according to political scientist Daniel DiSalvo, was that “no one was manning dozens of posts at the jail. Cell doors are broken. . . . Inmates in some housing units have been able to come and go as they please.”

Public-union power is a creature of the 1960s rights revolution, but there was no scandal or moral awakening that prompted collective bargaining. On the contrary, a report by versatile New Dealer Jim Landis to President-elect JFK concluded that the administrative flaw in post-war government was sluggishness — federal employees were, basically, fat and happy. Civil-service systems regularized pay and personnel procedures. State and local governments were no better or worse than the people and the mores in their communities. But public-union leaders had been angling for bargaining power for decades, and the strong incoming tide of individual rights provided cover for the unions’ political patrons to enact laws claiming to protect the rights of public employees.

Before the 1960s, the idea of negotiating against the public interest was unthinkable. AFL-CIO president George Meany in 1955 stated bluntly that it is “impossible to bargain collectively with the Government.” Negotiating against government was also considered antisocial and fraught with political dangers. Public-employee unions with bargaining power would hold vastly more power over government than private held over business — not only would they constitute a huge political bloc, but they would hold the authority of the state in their hands, without having to honor market realities of affordability and efficiency. FDR could hardly have been firmer: “Meticulous attention should be paid to the special relationships and obligations of public servants to the public itself and to the Government. . . . The process of collective bargaining, as usually understood, cannot be transplanted into the public service.”

But public employees had the makings of a powerful political force. Civil-service reforms in the Progressive Era — replacing the spoils system — had given public jobs a permanence that naturally organized into a voting bloc. Ending the spoils systems, DiSalvo explains, also left a political vacuum, as party bosses had less ability to distribute public jobs as favors. So where would political parties look for campaign workers and contributions?

The big break came with JFK’s Executive Order 10988 in 1962, authorizing collective bargaining in the federal government. The order stated that its aim was to promote the “efficient administration of the Government,” but the actual motivation was political. On the state level, New York authorized public collective bargaining in 1967. Other states soon followed with similar statutes — more than 20 of them, including California, by the end of 1968. By 1980, public-employee unions had burgeoned to a size that made them the predominant political players in many states. Today, membership is about 7 million active public employees. The two national teachers’ unions, the National Education Association and the American Federation of Teachers, have about 4.6 million members, including retirees.

Overall, 35 percent of public employees in America belong to unions, including 25 percent in federal government, 30 percent in state government, and 40 percent in local government. In states that mandate collective bargaining, the concentration is much higher: half to two-thirds of all public employees in California, Connecticut, Illinois, Minnesota, New Jersey, New York, Oregon, Pennsylvania, and Rhode Island.

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American government changed almost immediately when collective bargaining was enacted. Public unions lined up and, as one observer put it, “plunged into municipal treasuries like a starved man whose only thought is to eat as much as he can swallow.” In many jurisdictions, almost every aspect of public operations, including mundane managerial choices, became subject to union veto, with predictable consequences.

Accountability became virtually impossible. Public supervisors could terminate no public employee without running a gauntlet of procedures and consuming several years of managerial time, with the burden of proof on supervisors. As a practical matter, unless for lewd or criminal conduct, almost no public employee can be dismissed without a massive managerial commitment, and even then the chance of success is low. California, with 300,000 teachers, is able to terminate two or three per year for poor performance.

Work rules became an exercise in micromanagement. For promotions, reassignments, and layoffs, employee seniority trumped supervisors’ judgments about job performance. Detailed job descriptions provided the logic for a byzantine structure of overstaffing and make-work.

Asking an employee to help out was often barred, or became the basis for a day’s extra pay. Overtime kicked in on longer shifts even when the employee worked only 40 hours in a week. Reassignment was impossible without going through a legal process. Daily decisions had to be negotiated with the on-site union representative. Any workplace dispute had to be ultimately resolved by arbitrators who were approved by the unions.

Public benefits became progressively richer. Many public employees could retire after 20 or 30 years — in their forties and fifties — with full benefits. Pensions could be inflated by up to double or more by “spiking” overtime in the last year. Unrealistic assumptions of a guaranteed rate of return allowed unions to avoid setting aside reasonable reserves for their rich pensions. Health benefits were gold-plated and did not require the usual employee contributions.

Public inefficiency dragged down the broader economy. “Unlike unions in the private sector,” DiSalvo observes, “government unions have incentives to push for more public employment, which increases their ranks, fills their coffers with new dues, and makes them more powerful. Therefore, they consistently push for higher taxes and more government activity. Over the long term, this can stifle economic growth and pit public and private sector unions against each other.”

The shopping spree by unions reflects the unprecedented political war chest that public-employee unions have amassed with the exclusive rights afforded by collective bargaining. Annual union revenues from dues are on the order of $5 billion. Much of this is spent on direct and indirect political activity. Public-employee unions are a powerful force in national politics and by far the dominant force in state and local politics where collective bargaining is authorized.

In addition to campaign contributions, public unions mobilize thousands of members as campaign workers. They also run members as candidates for bodies such as local school boards. The unions are structured as national federations with local branches, so resources from one state can be used to snuff out reforms in others. The political resources of public unions enable them to exercise influence even in states that do not authorize collective bargaining, such as Georgia and Arizona. Any reform initiative can be stopped by the background threat of job action and the up-front threat of political retribution.

Public-employee unions not only are different from trade unions but also are different in kind from other interest groups. Jostling at the public trough by outside interest groups generally involves straightforward trade-offs: Should public resources go to this group or that? But public-sector unions not only compete for government funds but, uniquely, have the legal right to bargain over how government works. These controls are embedded in a web of statutory restrictions woven ever thicker since the 1960s.

Democratic processes cannot solve this problem. Reform-minded governors and mayors have been disempowered by collective-bargaining agreements and statutory restrictions and no longer have effective operating authority. Negotiating better collective-bargaining agreements is also precluded, in many jurisdictions, by statutes that require any stalemate to be resolved by arbitrators. Who elected them?

It is a basic principle of America’s constitutional republic, applicable to state and local governments, that government cannot delegate to private parties essential governing choices. “The power of governing is a trust committed by the people to the government,” the Supreme Court held in Stone v. Mississippi, “no part of which can be granted away.” Nor can a legislature remove the authority of future leaders to make the decisions that, “from the very nature of things, must ‘vary with varying circumstances.’”

John Locke’s Second Treatise is generally credited as the source of the “nondelegation principle”: “The legislative cannot transfer the power of making laws to any other hands: for it being but a delegated power from the people, they who have it cannot pass it over to others” to whom it was not delegated. Several specific provisions of the Constitution explicitly safeguard against the delegation of sovereign powers, including Article II and the guarantee clause in Article IV.

For the federal government, a long line of Supreme Court precedent interprets the scope of “executive Power” and makes clear that Congress cannot, for example, take away the president’s “exclusive and illimitable power of removal” of executive officials. Statutes that remove the authority to hold public employees accountable, or that restrict executive prerogatives by requiring collective-bargaining agreements, unconstitutionally restrict executive authority.

The Constitution also requires that state and local elected officials retain the authority needed to fulfill their governing responsibilities. While there is judicial disagreement over whether courts should enforce it, the guarantee clause in Article IV provides that states must have “a Republican Form of Government” — requiring governing power to be exercised by officials who are accountable to voters. Giving governing controls to any “favored class” is a violation of the guarantee clause.

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Public unions have turned the constitutional hierarchy upside down. America’s republican form of government is aimed at electing officials who are accountable to voters. But because of the rise of public-union power, officials are accountable to public employees instead. The path to union power was collective bargaining. As Michael Hartney explains in How Policies Make Interest Groups, collective bargaining was the vehicle for organizing the resources of millions of public employees into billions of dollars in campaign funds.

What happened is in plain sight: Public unions have created a modern spoils system. Just as the spoils system ran government for the benefit of campaign supporters of the winning party, public unions control government operations for the benefit of public employees. Like the old Tammany machine in New York, public unions have consolidated their political might to advance policies aimed at keeping public employment as a sinecure, unmanageable and unreformable.

But union controls are far more destructive of democracy than spoils because they’re permanent. Public-union entrenchment doesn’t change with a new party in power. At least the old spoils system had crude episodic accountability, but the union spoils system is encased in legal entitlements and powers and, as the late NYU professor Sylvester Petro observed, is never directly put to the vote:

They are . . . active at every level of political activity — lobbying, testimonial dinners for candidates, financial contributions, registration drives, vast mailing campaigns, political brochures, etc. But they are not openly and candidly a political party; they never expose their policies to the test of the secret ballot for the approval or disapproval of the general electorate.

The insidious nature of union controls is that they make government work badly while also preventing reform. Just as light passing through a lens can be concentrated into a beam that burns, union powers, with their tight focus on government operations, have burned through the links between officials and voters. By severing the connection with voters, government operations in many states have drifted away from public purpose, from political control, and from the verdict of the public that is supposedly being served.

The Constitution is our lodestar here. Its governing structure is designed for elected officials to exercise independent judgment for the public interest. It allocates powers so that officials have authority to make needed decisions.

But union controls are built on the opposite assumption — that official authority is a suspect category. Everything about the union premise is wrong. How is it that a public employee has rights superior to a public supervisor? What about the rights of co-workers, the interests of the public supposedly being served, and the ability of voters to decide who can best deliver services?

Reviving executive power is not a danger to good government. On the contrary, the abject failure of governing without executive power is undeniable. Treating every personnel decision as a crime against humanity has, instead of creating a bastion of fairness, bred a moldy culture that consigns public employees to dreary workplaces without pride or camaraderie. The disempowerment of supervisory authority repels good candidates by precluding what makes public service fulfilling — the chance to make a difference.

The union narrative plucks a sensitive string in the American psyche: distrust of authority. The Framers, too, confronted this distrust. They resolved it not by disempowering officials but by empowering other officials to act as checks and balances. Providing checks on authority is the correct model, not ceding control to self-interested unions.

No one elected unions to co-run American government. No principle or representative government gave legislators and other officials the right to surrender governing powers to unions. No ethical value allows public employees, having taken an oath to protect the public, to organize politically to harm the public. Democracy under union restraints can’t work as the Framers intended. That’s why union controls on the operating machinery of government should be ruled unconstitutional.