March 28, 2023 • 55 mins
Join the Hoover Book Club for engaging discussions with leading authors on the hottest policy issues of the day. Hoover scholars explore the latest books that delve into some of the most vexing policy issues facing the United States and the world. Find out what makes these authors tick and how they think we should approach our most difficult challenges.
In our latest installment, watch a discussion between Terry Moe, a senior fellow at the Hoover Institution and the William Bennett Munro Professor of political science at Stanford University, and Philip K. Howard, author of Not Accountable: Rethinking the Constitutionality of Public Employee Unions on Tuesday, March 28, 2023 at 10:00 am PT/ 1:00pm ET.
ABOUT THE AUTHOR
Philip K. Howard. Philip is a leader of government and legal reform in America. He is Chair of Common Good. In 2002, Philip formed Common Good, a nonpartisan coalition dedicated to simplifying laws so that Americans can use common sense in daily choices. His 2010 TED Talk has been viewed by more than 750,000 people. His 2015 report, “Two Years, Not Ten Years,” exposed the economic and environmental costs of delayed infrastructure approvals, and its proposals have since been incorporated into federal law.
ABOUT THE BOOK
“Elected leaders come and go, but public unions just say no.” Hiding in plain sight is a fatal defect of modern democracy. Public employee unions have a death grip on the operating machinery of government. Schools can’t work, bad cops can’t be fired, and politicians sell their souls for union support.
With this searing five-point indictment, Philip K. Howard argues that union controls have disempowered elected executives and should be unconstitutional.
Union power in government happened almost by accident in the 1960s, ostensibly to give public unions the same bargaining rights as trade unions. But government bargaining is not about dividing profits, but making political choices about public priorities. Moreover, the political nature of decision-making allowed unions to provide campaign support to friendly officials. Public bargaining became collusive. The unions brag about it: “We elect our own bosses.”
Sitting on both sides of the bargaining table has allowed public unions to turn the democratic hierarchy upside down. Elected officials answer to public employees. Basic tools of good government have been eliminated. There’s no accountability, detailed union entitlements make government largely unmanageable and unaffordable, and public policies are driven by what is good for public employees, not what is good for the public. Public unions keep it that way by brute political force—harnessing the huge cohort of public employees into a political force dedicated to preventing the reform of government.
The solution, Howard argues, is not political but constitutional. America’s republican form of government requires an executive branch that is empowered to implement public policies, not one shackled to union controls. Public employees have a fiduciary duty to serve the public and should not be allowed to organize politically to harm the public.
This short book could unlock a door to fixing a broken democracy.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
(00:00):
[MUSIC]
>> Terry Moe (00:05):
Hello, thank you all for joining us.
I'm Terry Moe, a senior fellowat the Hoover Institution and
a professor of politicalscience at Stanford.
Welcome to our latest installmentof the Hoover Book Club,
where we bring Hoover fellows and friendstogether to discuss their latest writings.
Today, we're very fortunate to be joinedby best selling author, Philip K Howard.
(00:28):
Philip is the chair of Common Good,which he founded in 2002 as
a nonpartisan coalition dedicatedto simplifying government and
its laws to reflect common senseapproaches to our nation's problems.
Imagine that.
Over the years, he's written a number ofprovocative books on governmental reform.
(00:51):
His latest book is titledNot Accountable: Rethinking
the Constitutionality ofPublic Employee Unions.
And that's what we're gonnabe talking about today.
So welcome, Philip.
Great to have you with us today.
>> Philip K. Howard (01:06):
And great to be with you, Terry.
>> Terry Moe (01:09):
Look, maybe I should just start out by asking you to summarize for
all of us the main themes of your book.
>> Philip K. Howard (01:17):
Well, the book basically looks at public employee unions
through a different lens thanthey've been looked at before,
which is through the lens ofconstitutional governance.
And what's happened almost withoutpeople noticing when or how,
the public unions seize controlof the operating machinery so
(01:37):
that voters elect mayors andgovernors who don't actually
have the authority to managethe school system or fire a rogue cop.
And so democracy doesn't workvery well if the people elected
who promised to fix things don'thave the authority to do so.
And so I develop the arguments and
(02:01):
then give constitutional reasonswhy that shouldn't be allowed.
>> Terry Moe (02:08):
Okay, well, so what's the difference in your mind between
public sector unions andprivate sector unions?
Do you have the same kinds of objectionsto private sector sector unions?
>> Philip K. Howard (02:19):
No, not at all.
Private sector unions first havea completely different origin story.
They were created duringthe Progressive Era when employers
were mangling workers in factories andcoal mines and
such, and the unions were essentialto safety as well as basic fairness.
(02:42):
And I think there's still an importantrole for public unions in,
I mean, private unions,trade unions in certain industries.
Public union, the origin ofthe story is completely different.
Unions existed, but they had no collectivebargaining authority until the 1960s,
and there was no reason for it.
(03:04):
Most public workers already had civilservice protections and the like.
There was no scandal that authorized.
It's just that the unionleaders wanted more power.
So again,almost without people noticing it,
they got collective bargaining rightsby pliable political leaders back
mainly in the late 60s,although it started a little before then.
(03:28):
And quickly, it became apparent thatboth the bargaining dynamic and
the implications of it were completelydifferent than trade union.
So just to give three reasons.
First of all, what they're bargaining foris different.
In a trade union context,it's really about bargaining,
(03:51):
dividing the share of profitsbetween capital and labor.
So there's actually kind of a limitedamount that people can bargain for
in today's terms.
That's not true with public sector unions.
There's no profit in government,obviously.
So whatever the publicunions can get away with,
(04:14):
the taxpayer has to pay for it.
The second difference is thatthe management in the public sector,
the mayor or the governor,doesn't have leverage.
He can't move out of town,he can't go out of business.
In the trade union context,if they ask for too much inefficiencies,
(04:34):
then everybody loses their jobs.
There's no risk of losing your jobin the public bargaining sector.
So again,there's a dramatic leverage difference.
But the third reason andthe most important difference,
I think,is that in trade union bargaining,
(04:56):
it would be unlawful formanagement to collude with any
sort of workers to createsome kind of sweetheart deal.
That's actually explicitly barred inthe National Labor Relations Act.
Public bargaining is basically nothing butcollusion.
(05:16):
The public unions have amassedenormous political power.
They use it to get friendlypolitical leaders elected.
I mean, we're talking about millions ofdollars in governor's races and busloads
and workers manning the phone banks andthe campaign headquarters and such.
(05:36):
And then when they get into office,
they don't sit on the otherside of the bargaining table.
They sit on the same sideof the bargaining table and
tell them what they want.
It's not somuch a negotiation as it is a payoff.
So it's just completely different,
the difference between trade unions andpublic unions.
>> Terry Moe (05:56):
Okay, so let's go back.
The private sector unions gotorganized first, and it took a while,
decades, forpublic sector unions to get organized.
Why is that?
>> Philip K. Howard (06:09):
Well, public sector unions actually wanted to organize earlier
because, and Daniel DiSalvo goes throughthis in his history of the public
sector unions, Government Against Itself,which is quite a good book,
following up your quite good book,Special Interest.
And basically, when we got rid of thespoils system in the late 19th century,
(06:36):
the idea of public sectorworkers negotiating and
organizing became sort of practicalbecause, all of a sudden,
they didn't lose theirjobs every election cycle.
There was a natural interest group of,of permanent public employees.
And so they started organizingreally before 1900.
(07:00):
Teddy Roosevelt had to fendthem off at one point.
And so throughout the Progressive Era andup into the New Deal,
the public sector workers kept pushingpolitical leaders for more power.
And the political leadersbasically said no.
(07:21):
And Franklin Roosevelt, who wasa big supporter of organized labor,
could not hardly have been clearer.
He said at one point, the processof collective bargaining cannot be
transplanted into the public service.
And the reason is because the ideaof public workers negotiating
against the public good,putting themselves first in line for
(07:46):
public dollars and such,was considered a breach of loyalty.
I think early on,I'm trying to think of his name,
the labor leader in the 19thcentury refused to let.
Police join the trade union,because he said it would be a conflict
of interest because they hada duty to serve the public,
(08:10):
not to negotiate against the public.
>> Terry Moe (08:14):
So when did they get organized?
>> Philip K. Howard (08:17):
Well, as I said, they were organized, but
they didn't get collective bargainingrights until there was one or
two instances in the late 1950s,I think, Wisconsin and
the city of New York that allowedcertain collective bargaining rights.
And then the big break came in1962 with JFK's executive order,
(08:41):
ten 988,where he allowed federal employees
to collectively bargain foreverything except wages.
And that executive order is interesting,
preceded by a special committee reportthat was chaired by Arthur Goldberg.
(09:03):
I don't know if you've ever read itbefore, but it's just incredibly vacuous.
I mean, it's a special committeereport that says, well,
we should let them collectively bargain.
Because it will help make governmentmore efficient, [LAUGH] or something,
with all these conclusory statements withno evidence of any problem whatsoever.
(09:23):
And Jim Landis, the famous New Dealer,
had given a report to JFK inthe late 50s as part of his election
campaign stuff about the problemsin the federal service.
And the problem was not abuse.
The problem was not anythingexcept basically sleepiness,
that the administrative state hadevolved following the passage
(09:48):
of the Administrative Procedure Actin the late 1940s.
It evolved in a way that people just didprocess and they didn't make decisions.
And Landis said, where is all the decisionmaking that we had in the New Deal and
such, these purposeful publicleaders that people wanted?
So the problem wasn't one that wouldbe helped by collective bargaining by
(10:10):
the unions,it would be helped by strong leadership.
Instead, we got the opposite.
>> Terry Moe (10:16):
Right, well, there was the problem of effective government,
of course, and how civil service andunions were gonna affect that.
But at the time, in the early 1960s,
that still there were almost noemployees in public sector unions.
>> Philip K. Howard (10:34):
Okay. >> Terry Moe
and 70s and into the 80s thatthey really got organized, right?
Right, and so the next thing that happened was in 1967,
collective bargaining was authorizedin the state of New York,
it was something called the Taylor Law.
And that was preceded by reallyquite a thoughtful report by someone
(10:58):
named George Taylor, who was a laborlaw professor at the University of
Pennsylvania, about how it should work.
And remember,this was the end of the 1960s.
So we're talking aboutthe rights revolution and
the public sector union leaders.
They kept saying, what about our rights,
(11:20):
why can't we have the samerights as trade unions?
Again, people had forgotten orweren't aware of the differences, and
the pressures kept building politically.
And they had already organizedinto a pretty potent voting bloc,
so there was a reason for
political leaders to want to givepublic employees what they wanted.
(11:43):
So the Taylor report basically said,well, it might be okay.
And they said it's basically fundamentalfairness that other people have bargaining
rights, or why shouldn't publicsector unions have bargaining rights?
But then it had all these qualifiers, andit said, but the one thing that has to
(12:05):
be clear is the final decisions have to bemade by politically accountable officials.
So for example,the Taylor Report said you couldn't do
this lawfully unlessthe legislature retained the power
to approve collective bargainingagreements cuz someone
(12:28):
accountable to voters hadto make the final decision.
Well, needless to say, the New YorkState Legislature ignored that.
And they didn't have the final collectivebargaining agreements accountable to
voters.
And within a year or two, they,even worse, changed the law in
a way that Professor Taylorsaid would clearly be unlawful.
(12:53):
Which was to have any disputeover collective bargaining be
decided by arbitrators,and arbitrators, in fact,
approved by the unions, which is the waythe law works in New York still.
>> Terry Moe (13:10):
Well, this spread all around the country.
>> Philip K. Howard (13:12):
That's right, I think within two or three years,
20 states had collective bargaining.
And at this point, it's 38 states out ofthe 50 have collective bargaining rights.
They vary somewhat from,from state to state.
There were also a number of reportsback in the late sixties and
(13:34):
early seventies,like the city of Los Angeles had its
own special committee doinga report on how it should work.
And these reports wereall very cautionary.
They said, well, we can do it, butwe can't take away the management
authority of the people running,who are elected to run the government.
(13:55):
We can do it, butwe have to have final decisions be
made by people who are accountableto voters and such.
None of which is the case at this point.
I mean, the decisions,as I detail in the book,
the decisions about thesecollective bargaining agreements in
most states are almost completelydivorced from accountability to voters.
>> Terry Moe (14:21):
Yeah, so
there's sort of a catch-22 inthe accountability equation, right?
Because you can say that legislators and
other elected officials need tobe making the final decisions,
but then what forcesare they responding to?
>> Philip K. Howard (14:40):
Right, and-. >> Terry Moe
to ordinary voters or are theyresponding to the power of the unions?
[CROSSTALK] Well, first of all, yeah, I mean,
there's the political point, they'reresponding to the power of the union.
But in the state of New York, for example,
they literally don't have the authorityby law to make decisions.
(15:06):
So you get elected as a mayor,you come into office.
The collective bargaining agreementsare not coterminous with election cycles.
So the elected official is boundby the terms of these agreements,
which are often several hundred pageslong and mean there's no accountability
(15:27):
when there's no effective manageability,very rigid work rules and such.
So that official is boundby law to that agreement.
Then at some point,the collective bargaining agreement ends.
They're typically about five years long.
And then, theoretically, leavingaside the politics of the situation,
(15:49):
the elected leader could sit down andnegotiate a new agreement.
But in New York state, if the uniondoesn't like it, they just say no.
And the disagreementgoes to an arbitrator.
So it doesn't go to anyone who's elected.
No one elected the arbitrators.
And then if for some reason there's stilla stalemate going on in New York State,
(16:14):
there's a law that says thatthe terms of the existing collective
bargaining agreement willcontinue indefinitely,
together with all cost ofliving increases built into it,
until there's a new agreement.
So literally, there's no link tothe voters between an elected official,
(16:37):
even one who wants to changethe collective bargaining agreement,
and how a new collectivebargaining agreement works.
It's outside the power ofthe democratic electoral process.
>> Terry Moe (16:51):
Yeah, well, it seems like the real problem here,
to the extent it exists, is that publicofficials are responsive to power, and
ordinary voters often don't have as muchpower as organized interest groups do.
And on matters of public sector wages andbenefits and
(17:13):
these kinds of things,public sector unions have a lot of power.
And officials that they're bargainingwith are responding to that
rather than to what's best for the voters.
And that's where the accountabilityproblem comes in, I take it.
>> Philip K. Howard (17:29):
Yeah, yes, so I would say that there are two problems.
There's a legal power pointwhich distinguishes this from
other interest groups whichgive money to politicians.
Other interest groups,the National Rifle Association or
(17:49):
whoever they are, they don't havethe right to collect bargaining.
An elected official doesn'thave to sit down with them and
make a deal as a matter of law,and they don't have legal rights
that are reflected in thesecollective bargaining agreements.
So you start with a sort of illegal.
(18:16):
It's not even a thumb on the scale.
It's like a brick on the scale [LAUGH].
[LAUGH] And then you add tothat the reason politicians
found themselves in this predicament,
which is all the politicalpower of the unions,
which you detail, andwhich I quote over and
(18:37):
over again in my book in special interest.
Which is just, I mean, at one point,
I think you found that in a numberof states, the teachers union
gave more money than all businessgroups combined in the election cycle.
It's just extraordinary.
(18:57):
And another difference betweenthe political influence of the public
employees' unions andtrade unions is that, I'm sorry, and
all other interest groups, the Chamberof Commerce, all other interest groups,
is that most interest groupsare looking for a sliver.
(19:18):
Give us a subsidy, give us a right,give us some amount of money,
a billion dollar subsidy here orthere or whatever it is.
And however big it is, it's a tinyfraction of what government does.
What the public employeeunions are bargaining for
(19:38):
is control over the entireoperating machinery of government.
We're talking about justorders of magnitude larger
than any other interestgroup is fighting for.
A tax break might be worthbillions of dollars.
The employees of government at all levels
(20:02):
in this country consume $2trillion of the annual budget.
It's like 20% of the totalgovernment spending is employees.
And that doesn't count the impactof how government works.
I mean, the failure of schools,for example, that can't get fixed.
(20:23):
So we're talking about a problem
that, I think people.
I keep thinking ofUpton Sinclair's The Jungle,
when he walks into a factory, andthis factory is just horrible.
They're mangling the workers.
(20:45):
The conditions are incredibly unsanitary.
People are disgusted by the fact thatthey're eating this stuff in these
conditions.
When you walk into how government works,the unions,
these agreements have no, orvirtually no redeeming qualities.
They're designed, the work rulesare designed for inefficiency.
(21:09):
The lack of accountability doesn'tattract good workers to government.
It repels good workers from government.
There are all these stories thatshow that because you get a horrible
culture when everybody knowsthat performance doesn't matter.
So you have this control over government.
That, to me, is like the jungle.
(21:33):
The trash collection inNew York City costs,
municipal trash collection coststwice what private carters is true.
That's true in Chicago too.
The MTA had to sanitizethe subway cars during COVID, and
they didn't have enough workers, sothey hired companies to help out.
(21:53):
The companies did three timesas much work as the MTA
workers did because they were manageable.
So you have this system ofgovernment that's really
designed under union controls.
It's really designed for failure.
It's a scandal.
>> Terry Moe (22:12):
So if you get down to it and
try to think about what motivates them,right,
if you try to explain their behavior,right,
what is it that you think is atthe core of their motivation?
When they're engaged both in politics andin collective bargaining,
(22:36):
what are they trying to get?
>> Philip K. Howard (22:38):
Power, they're in control.
There's only so much you can bargain forin a collective bargaining agreement.
And you've written about this,
the reason the benefits they getare stretched out into the future or
are opaque is sothat taxpayers can't understand it, right?
(23:00):
They'll have overtime rulesthat allow pensions to
be spiked with lots ofovertime in the last year.
They'll have all kinds of other benefitsthat you could never kind of go in and
figure out, well,what's the point of a rule that says
(23:22):
the principal can't come in andlook and observe the teacher?
Or what's the point of the rulethat says you've gotta get union
approval to deploy any resources?
So if someone's sick,you've gotta negotiate with the union rep
how to cover some classroom,or whatever it happens to be.
(23:45):
In the federal government, you'removing people around to a new office.
You have to negotiate overwho gets to sit at what desk.
I mean, what's the point of these rules?
I mean, it's almost like a pathological.
Personal relationship where peopleare seeking control for its own sake.
So they sit down at the bargaining tableevery five years and they negotiate
(24:10):
all these controls that basically givethem a veto over how government works.
If it doesn't work exactly inthe kind of central planning way that
the collective bargainingagreement lays out,
which circumstances change,you've got to be flexible.
So you have this crazy situation where,
(24:32):
where it's like you've unpluggedthe spokes from the hub and
you expect the governmentagency to move forward,
and it can't until itnegotiates how to move.
Every day with the union rep.
(24:53):
It's just power.
I mean,one of the things we're going to do,
maybe you'd like to get involved in it,is host a series
of forums on what a better deal forteachers would be.
How do you make an employment system?
I think you could pay teachers more.
(25:15):
You do all kinds of things that wouldbe a lot cheaper than what we have now,
which is an unmanageable school systemacross the school systems across
the country andunmanageable municipal agencies and such.
It's just not a good system.
It's just union leaders.
I mean, look at them.
You might as well bewatching a governor or
(25:38):
president or something.
They sit down andtalk about how things are going to use.
Schools are not going toopen during COVID because
we've decided that teachersshouldn't have to bear this risk.
Well, what about all the nurses andnurses aides and
the grocery clerks and everybodyelse who's keeping society running?
(26:01):
Why don't teachers have to do their jobs?
>> Terry Moe (26:05):
Yeah, I think another twist on what you're saying is that instead of
thinking of good guys and bad guys inthis, you can just think that, okay,
teachers unions are representing teachers,and teachers want certain things.
And above all else,they want security, job security,
(26:30):
and they want higher wages andthey want better benefits and
they want better working conditions, and
that all sounds very straight ahead.
Who could argue with that?
But what it comes down to are things like,okay, we don't want
the principal coming into our roomunannounced, to observe our behavior.
(26:55):
And we wanna have seniority sothat we're protected, so
that if there are layoffs, the peoplewith the least seniority get laid off.
Well, what if they're the bestteachers in the school?
>> Philip K. Howard (27:06):
Right.
>> Terry Moe (27:07):
Right? Okay, but still,
teachers will support seniority.
And you go right down the line.
And it's not because they're bad people,it's because they're
just trying to protect themselves andhave a good living, but
their interests are not the sameas the interests of children and
the interests of effective education.
(27:29):
And that that is the conflict.
And it's not because anybody's good orbad.
It's just because there'sa conflict of interest.
And if they have a lot of power,
their interests are gonna win out andthe kids are going to get short shrift and
the schools are gonna be organized inways that are ineffective for them.
>> Philip K. Howard (27:49):
Well, yes, thank you for that.
That's clearly accurate.
But it's also, it's a littlebit like Plato's cave, right?
I mean, people, there's a naturalhuman instinct for security.
So if you give people food, they'll sit inthe cave and they'll sit there all day and
(28:09):
all night until they finally die,because people don't wanna go out and
face the wild and the saber toothedtigers or whatever it was out there.
So there's a natural instinct forpeople to want security.
And teachers are no different than anyone.
So they, so they subscribe to the unions.
They get their security.
And of course,just as in Plato's cave, it's really,
(28:33):
in fact, not good forthem because they end up.
The thing about, for example, noaccountability is not that you have lots
of bad teachers, although that you havesome and those some make a big difference.
Is that when everyone knowsperformance doesn't matter,
it's like letting the air outof the balloon of a culture.
(28:56):
It's like organizational psychology 101.
It's like putting a depressant in the air.
Why should I go the extra mile ifnobody else is going the extra mile?
And then the thing that you want, which isa public service to a school with pride
and energy and stuff because you're doingsuch a good job, is not even possible.
(29:19):
So, yes, everybody wants security,and so they cling to it.
But the cost of the security isnot simply that the kids are hurt,
which you point out, which they are.
The cost of the security, ironically,
is that the teachers are hurtbecause they're living,
(29:40):
they're working in an environment that'slistless and dreary and without pride.
And Paul Volcker did these reportsfrom the federal civil service.
They do reports, and he talked about this.
It's really important to haveaccountability so that people
feel that they're part of public servicethat's really helping everybody.
(30:04):
It's a culture of energy.
So I think you're rightthat people want it because
it's the human instinct andwant safety and security.
But ultimately, I think the onlypeople who win here are not so
much the teachers, maybe the bad teachers.
(30:26):
The people who win are the union leaders.
>> Terry Moe (30:29):
Maybe you can talk a little bit about how this
differs between levels of government.
So how are public sectorunions influential
at the federal level comparedto the state and local level?
>> Philip K. Howard (30:48):
Right, okay.
Good, I mean, it's a good question.
About 25% of federal employees belongto public unions, and they're typically
in a few agencies, the national treasury,workers unions, some others.
I mean, it's divided up by agencies and
they're not allowed tonegotiate over wages.
(31:11):
So it's mainly work rules.
And there is no accountabilityin the federal government.
As with everybody else, 99% of allfederal employees get a fully successful
rating because if you put anythingnegative in the file as a supervisor,
(31:31):
you have to go to a hearingto justify it [LAUGH].
So it's always, who has time to do that?
Who has time to say somebody doesn't tryhard or doesn't cooperate or whatever the.
So one of the big supporters of the,
of the work I've been doing is the seniorexecutive service association.
(31:52):
So the highest level federalbureaucrats who supervise workers
really want their supervisors.
Supervisory powers back.
They wanna be able to run their agenciesso that they are high performing agencies,
which is very hard to do underthe civil service protection.
(32:13):
The state level government,
it's about 30% of state levelemployees are unionized.
Again, that's in 38 states.
A local government's about 40%.
So overall, it's about 33%of all government employees.
(32:35):
I would say that the controlsare probably worst on the state
level because it's furtheraway from the ground.
And in big cities, in small cities,
the culture tends to trump the bureaucracy
because people know each other, right?
(32:58):
I mean, people are trying to getthe job done or run the school,
whatever it happens to be.
Big cities are much more anonymous and
it's just a nightmare in Chicago,New York, La.
So I think there are differences andalso differences by jurisdiction and
the places,the few places where it was unionized, and
(33:21):
they've gotten rid of unionslike Wisconsin, Scott Walker.
The indicators are that it works better.
So not crazy, it's just better.
People go to work, they think theyhave to do their job [LAUGH].
It's just a healthier public culture.
>> Terry Moe (33:44):
At the state and local level, one thing that happens
is that the unions, public sector unions,
which would be the teachers unions andAFSCME and SEIU and
police and fire, are big fish andsmall ponds, right?
(34:06):
Compared to the national level, right?
At the national level, there's muchmore competition among interest groups.
There are many more interest groups,but in many states that's not true.
And at the local level it's not true.
And soI wonder if you could reflect on that and
also talk about like just police andfire unions.
(34:27):
I mean, people tend to look at them,they're really
representing the public andtheir public safety representatives.
And they are, they do good things for thepublic and they're absolutely necessary,
but they're also very powerfulinterest groups at the local level.
>> Philip K. Howard (34:46):
Right, I think politically, at the local level,
as you point out,there are some states where,
where the public unions really more orless own the political system.
I mean, they literally, in New Jersey,staff the campaign headquarters for
the new governor.
They got all the signaturesto get him on the ballot.
(35:06):
They've thousands ofpeople knocking on doors,
tens of millions of, tens of millionsof dollars in contributions.
I mean, it just swamps, [LAUGH] it reallyswamps every other interest group.
And so you can't possibly cross them.
(35:29):
I had a friend who runs a democraticthink tank read my book not accountable,
and called me up after a while and said,listen, I've been thinking about this, and
there's nothing in here I disagree with.
I think this is really a seriousproblem for democracy and problem.
But of course, I can't sayanything without self-immolating.
(35:51):
I know a lot of politicalleaders who are democrats, and
they would like nothing better thanto be liberated from union controls,
but the unions are just sopowerful that it's not realistic.
Just to give you an example,I mean, police, I think,
(36:12):
are different than teachersbecause police have a uniquely
difficult to be out on the streets,particularly in dangerous
neighborhoods where your lifeis on the line, is very hard.
And I think the police, a lot of liberalreforms have not been fair to the police.
(36:37):
A lot of the things you must prove,you had probable cause.
When their instincts tell them,
they know that this person'sup to no good or whatever.
But the unions havesucceeded in really creating
toxic police cultures by making it so
that police don't interferewith other police misbehave.
(37:01):
So in Minneapolis, which is where George,
George Floyd was killed by Derek Chauvin,the policeman,
there were three orfour cops who sit there watching him,
young cops with his neck on the knee.
One of them said something at one pointand then was shut up by everybody,
didn't do anything.
(37:22):
So you don't have that kindof interaction you would
have in a healthy organization whereyou stop people from misbehaving.
And in the prior decade,there'd been something like, I think,
16,000 complaints tothe Minneapolis Police Department for
(37:46):
inappropriate behavior,you know, excess force,
etcetera, of which twelveresulted in discipline.
And the most harsh disciplinewas a 40 hours suspension.
So that's a system where youcan do whatever you want and
(38:07):
you can get away with it, basically.
So no accountability doesdistort the culture in ways that
it's just bad for everybody,it's bad for the cops.
And I really think we need a new deal forall these things,
all these really importantpublic positions.
(38:31):
People need to be paid fairly, butthey need to be manageable, and
they need to have a culture that'sdirected towards the public good,
not a culture that's directedtoward their own good.
And that's fundamentally what
the unions have done over the last 50
(38:53):
years have created this culture that's
just insulated from good management and
insulated from democratic accountability.
>> Terry Moe (39:09):
Maybe you could talk a little bit about how, say,
the police and fire unions,also the teachers unions
actually gain power at the local level,let's say, right?
I mean, you have elected officials,
mayors, school board members,city council members, and
(39:33):
they're making importantdecisions about the police and
about fire departments andabout school districts.
So how is it that the unionsexercise influence?
>> Philip K. Howard (39:46):
Right, I think the police and
fire unions exercise influence indifferent ways than the teachers unions.
So there's 7 million members of publicemployee unions in the country,
of which four and a half, give or two.
Take are teachers, sothe teachers exercise influence not with
moral authority, butwith unbelievable money and brute force.
(40:10):
I mean, they are [LAUGH] Itell stories in the book, and
you tell stories in special interest.
Your book,the brute force is really amazing, I mean,
we're talking about likethe Teamsters [LAUGH] or something.
They're very thuggish behavior,the police exercise are much smaller.
(40:34):
We're talking about half a million membersof police unions, something like that.
But the police are veryinfluential with voters, so
police endorsement voters careabout safety, rightly so.
And so police endorsement means a lot.
And so the,>> Philip K. Howard: So
(40:57):
public elected officials want toget the police endorsement, and
they'll do what they want.
It's interesting the policemanagement controls are not nearly
as bad as the teachers orASME or the other controls.
The police controls are mainlyabout a lack of accountability,
(41:18):
it's not about manageability as much.
>> Terry Moe (41:22):
So do police unions participate in elections?
Do they spend money in elections,support candidates in elections?
And how about firefighters?
>> Philip K. Howard (41:36):
I don't have the numbers on that, actually,
cuz I've focused mainly on the teachersand the bureaucratic unions.
But yes, I think, for example,the recent Merrill election in Chicago,
Valli's, who is the kind of reformer,got the support of the police and
(41:57):
got, I think, money andother support from the police.
And the person who finished second,there's gonna be a runoff.
Person who finished second got,I think, 90% of his campaign
funding came from the teachers unions anda couple of other public unions.
Literally every [LAUGH] every millions ofdollars all of it came from the union.
>> Terry Moe (42:24):
Yeah.
And one interesting sidelineabout the firefighters is
that typically at the local level,they have a lot of time off.
Because they have a lot of time on wherethey're working in the firehouse for
24 hours straight or for 48 hoursstraight, but then they have time off.
(42:46):
And so in many communities, that givesthem a lot of time to campaign and
to go around andfirefighters support so and so.
And shockingly, they become a fearfulpresence in politics in many communities.
>> Philip K. Howard (43:04):
Interesting, I didn't realize that.
But that makes sense,I mean, I think people,
it's very hard to monetize the kindof hours spent by union members.
But if you're a legislator,say, in Albany,
New York, andyou're holding a hearing, and
(43:26):
all of a sudden 60 peoplewalk in with placards
saying down with so and so or whatever.
Guess what?
They were all paid for by the teachers
union to go up there andspend the time, and
they provided the buses andall that to do that.
(43:50):
Citizens don't have the time to takethe day to go up to Albany, but
maybe the firefighters or[LAUGH] the teachers or others do.
And so all of a sudden,democracy at work is actually off duty.
Public employees often givenan honorarium to do this,
showing up in the halls of the legislatureto protest anything they don't like.
(44:18):
And I think the relentlessnessof the public unions is
something that people don't appreciate.
Last year, or maybe now,it's a year before,
the public unions introduced21 bills in the New York
state legislature to sweeten pensions,21 bills.
(44:39):
Now, not all of them passed, but some ofthem passed, so that gives you a sense,
you have this kind of relentless,huge presence [LAUGH].
And so when I say this in my book,not accountable.
But it's as if what's happenedis that the public unions
have harnessed the mass of good governmentagainst the reform of good government.
(45:05):
Government's gotten so big, it's halfthe G half, the economy of the country,
and you get some significantshare of the public workers.
There are 22 million publicworkers in this country.
You get some significant shareof them actively organized
basically to prevent reform.
So->> Terry Moe: Let me just quickly ask you,
(45:27):
we don't have a lot of time left, butI think this is an interesting issue.
One theme that I thinkyou're making in your
book is that these workersare protected by civil service anyway.
And that there's a civilservice system that provides
(45:50):
a lot of the things that they seek.
But also what you want in the end is moreexecutive control of the administration.
And I assume you mean not just control of,say, union members.
And you think that membershipshould be unconstitutional, but
(46:11):
also more control of civil servants.
So is that the case?
Do you think executives should control?
Sure, and so, and
the problem that I identify is not justin collective bargaining agreements.
The laws have been passed over the last50 years at the behest of the unions,
largely to put all kinds of control.
The Civil Service Reform Act of 1978,federal law,
(46:34):
contains very detailed provisionsabout discipline of federal employees,
which makes it impossible todiscipline federal employees.
I mean, the proof is in the pudding,it's impossible.
And so I argue that'sunconstitutional under Article 2.
Article 2 there's a raft of casesunder Article 2 about what executive
(46:57):
power means.
Congress doesn't have the authority totake away effective executive power,
executive power belongs to the president,not to Congress.
And my constitutionalarguments on state and
local government are onthe same principle.
But it relates to anotherprovision of the Constitution,
(47:18):
just called the guaranteeclause in Article 4.
Which says the United Statesshall guarantee to
every state a republicanform of government.
And what James Madison said,
that meant with whatever formof democracy a state adopts,
the people elected have to retaintheir power to run government.
(47:42):
They can't sell it, they can't giveit to a group of aristocrats or,
to quote, any favored class.
And what's happened overthe last 50 years, again,
almost without our knowing it,the state legislatures have given,
The public employee unions,the power of collective bargaining,
(48:04):
and all these other controls that meanthat the people we elect as governors and
mayors no longer havethe authority to manage.
It's not just authority over employees,it's to make basic
resource allocation decisions abouthow you do the trash collection.
(48:25):
Or how you organize the workforcein the subway system, or
how do you fix a lousy school?
There are all kinds of decisionsthat making anything work,
as anybody who's ever done anything knows,is not a formula.
It's a question of adaptation.
All the time, we've taken that away fromthe people who run government, and I
(48:49):
think that clearly violates the principlesof those constitutional provisions.
>> Terry Moe (48:55):
So near the end of the Trump administration,
Donald Trump tried to push ahead with what
was called schedule f,civil service reform,
where he wanted to be able tofire at will any public employee,
civil service employees that had anykind of policymaking responsibility.
(49:24):
And that, to many people,smacked of a new spoil system,
which leads to all the problemsthat we're very familiar with.
So if you do go formore executive control,
how do you avoid those kinds of problems?
>> Philip K. Howard (49:40):
Well, the schedule f, which I didn't think was a good idea, but
I do think the presidenthad the power to do that.
And his schedule f was based ona paper I had written saying what
the power of the president was.
And I disagreed with Schedule F.
So I told him that.
But I think what you want isan employment system that's trustworthy,
(50:03):
that attracts good people, andthat the public can trust.
So I think you need speed bumpsto protect against, for example,
political firing, partisan firing.
And it's not that hard to create that.
And there are lots of examples in historywhere we've done that in this country.
(50:25):
So I wasn't for schedule f, butthe irony of people talking
about how terrible it is thatit could be a new spoil system,
which it sort of would be like, is thatpublic unions are the new spoil system.
Remember, the spoil system was allabout giving political hacks jobs
(50:48):
because they supported a candidate,and they kept the job just because
they supported the candidate,no matter how inept they were.
And we got rid of it bycreating Civil Service,
which was supposed to be a merit system.
People would get andkeep their jobs based on merit.
And Civil Service wasnot a system of tenure.
(51:10):
It was a system, as one orthe reformers said,
if the front door is properly tended,the back door will take care of itself.
It was a system of neutral hiring.
We don't hire people basedon political influence.
We hire them based on their competence,and
then they'll keep theirjobs if they do a good job.
And that was supposed to be inthe authority of the people.
(51:31):
Well, guess what?
Fast forward 170 years,we have a system where
people keep their jobs,no matter how inept they are.
Literally, 0.01,0.02% accountability for performance.
I mean, virtually nobody, 2 out of 95,000teachers, I think, was the number you
(51:53):
came up with in Illinois over an 18 yearperiod, lost their jobs for performance.
So we have a new spoil system.
And soI disagreed with what Trump did, but
how can people tolerate that was foronly 2000 senior civil servants.
How do we tolerate it forthe other 22 million where it doesn't
(52:17):
matter what they do, it's just theykeep their jobs no matter what.
That's a problem that I think needsto get re-examined in our society.
I mean,think of all the things that we could
do with resources freedup from inefficiency.
(52:39):
Think of all the lives thatwould be enhanced, indeed saved,
if we could really transform the schools,inner city schools,
where not one student isproficient in reading or math.
You know, think of all the goodpeople who would go into
(52:59):
government if it was a careerof energy and pride,
you know, where people hadauthority to do their jobs.
The only reason they have authority isbecause they're accountable if they don't
exercise it well.
Think of all the things that could happenif we actually could make government
work again.
>> Terry Moe (53:19):
Okay, well, we're just about out of time, but
I want to leave you with one finalquestion that you can answer briefly,
but that goes to the heart of your book.
You think that public sector unionshould be declared unconstitutional.
How would that happen?
(53:41):
What would it look like?
>> Philip K. Howard (53:43):
It would be,
we're already working on one case inIllinois with a public interest law firm.
The unions would not perse be unconstitutional.
The controls they exercise overthe operating machinery would be
unconstitutional.
Collective bargaining agreements,
other controls that have beenput in by the legislators.
(54:05):
I also have an argument thatthey shouldn't be able to allow
to organize politically againstthe public interest, that public
employee can have whatever politicalinterest they want to individually,
but shouldn't be able to mobilize witha million others to hurt the public.
So we're talking to groupsin different states, and
(54:26):
hopefully in California as well,on bringing lawsuits which would
eventually make their wayup to the Supreme Court.
And the Supreme Court wouldhave to make some new law here,
as I discuss in the book.
But it's not a giant step.
It's a step, but it's not a giant step.
(54:46):
And I think the goal hereis fundamentally good
government and functioning democracy.
>> Terry Moe (54:56):
Okay, well, I guess we'll have to end it there.
Thanks a lot, Philip.
This has been a really provocative andlively conversation,
as I expected it would be ona really important topic.
And I also want to thank everyone inthe audience for joining us today.
So you can find Philip's book forpurchase online.
(55:19):
Again, its title is not rethinkingthe constitutionality of public employee
unions, so thank you for listening,and I hope you have a great day.
[MUSIC]
>> Terry Moe (00:05):
Hello, thank you all for joining us.
I'm Terry Moe, a senior fellowat the Hoover Institution and
a professor of politicalscience at Stanford.
Welcome to our latest installmentof the Hoover Book Club,
where we bring Hoover fellows and friendstogether to discuss their latest writings.
Today, we're very fortunate to be joinedby best selling author, Philip K Howard.
(00:28):
Philip is the chair of Common Good,which he founded in 2002 as
a nonpartisan coalition dedicatedto simplifying government and
its laws to reflect common senseapproaches to our nation's problems.
Imagine that.
Over the years, he's written a number ofprovocative books on governmental reform.
(00:51):
His latest book is titledNot Accountable: Rethinking
the Constitutionality ofPublic Employee Unions.
And that's what we're gonnabe talking about today.
So welcome, Philip.
Great to have you with us today.
>> Philip K. Howard (01:06):
And great to be with you, Terry.
>> Terry Moe (01:09):
Look, maybe I should just start out by asking you to summarize for
all of us the main themes of your book.
>> Philip K. Howard (01:17):
Well, the book basically looks at public employee unions
through a different lens thanthey've been looked at before,
which is through the lens ofconstitutional governance.
And what's happened almost withoutpeople noticing when or how,
the public unions seize controlof the operating machinery so
(01:37):
that voters elect mayors andgovernors who don't actually
have the authority to managethe school system or fire a rogue cop.
And so democracy doesn't workvery well if the people elected
who promised to fix things don'thave the authority to do so.
And so I develop the arguments and
(02:01):
then give constitutional reasonswhy that shouldn't be allowed.
>> Terry Moe (02:08):
Okay, well, so what's the difference in your mind between
public sector unions andprivate sector unions?
Do you have the same kinds of objectionsto private sector sector unions?
>> Philip K. Howard (02:19):
No, not at all.
Private sector unions first havea completely different origin story.
They were created duringthe Progressive Era when employers
were mangling workers in factories andcoal mines and
such, and the unions were essentialto safety as well as basic fairness.
(02:42):
And I think there's still an importantrole for public unions in,
I mean, private unions,trade unions in certain industries.
Public union, the origin ofthe story is completely different.
Unions existed, but they had no collectivebargaining authority until the 1960s,
and there was no reason for it.
(03:04):
Most public workers already had civilservice protections and the like.
There was no scandal that authorized.
It's just that the unionleaders wanted more power.
So again,almost without people noticing it,
they got collective bargaining rightsby pliable political leaders back
mainly in the late 60s,although it started a little before then.
(03:28):
And quickly, it became apparent thatboth the bargaining dynamic and
the implications of it were completelydifferent than trade union.
So just to give three reasons.
First of all, what they're bargaining foris different.
In a trade union context,it's really about bargaining,
(03:51):
dividing the share of profitsbetween capital and labor.
So there's actually kind of a limitedamount that people can bargain for
in today's terms.
That's not true with public sector unions.
There's no profit in government,obviously.
So whatever the publicunions can get away with,
(04:14):
the taxpayer has to pay for it.
The second difference is thatthe management in the public sector,
the mayor or the governor,doesn't have leverage.
He can't move out of town,he can't go out of business.
In the trade union context,if they ask for too much inefficiencies,
(04:34):
then everybody loses their jobs.
There's no risk of losing your jobin the public bargaining sector.
So again,there's a dramatic leverage difference.
But the third reason andthe most important difference,
I think,is that in trade union bargaining,
(04:56):
it would be unlawful formanagement to collude with any
sort of workers to createsome kind of sweetheart deal.
That's actually explicitly barred inthe National Labor Relations Act.
Public bargaining is basically nothing butcollusion.
(05:16):
The public unions have amassedenormous political power.
They use it to get friendlypolitical leaders elected.
I mean, we're talking about millions ofdollars in governor's races and busloads
and workers manning the phone banks andthe campaign headquarters and such.
(05:36):
And then when they get into office,
they don't sit on the otherside of the bargaining table.
They sit on the same sideof the bargaining table and
tell them what they want.
It's not somuch a negotiation as it is a payoff.
So it's just completely different,
the difference between trade unions andpublic unions.
>> Terry Moe (05:56):
Okay, so let's go back.
The private sector unions gotorganized first, and it took a while,
decades, forpublic sector unions to get organized.
Why is that?
>> Philip K. Howard (06:09):
Well, public sector unions actually wanted to organize earlier
because, and Daniel DiSalvo goes throughthis in his history of the public
sector unions, Government Against Itself,which is quite a good book,
following up your quite good book,Special Interest.
And basically, when we got rid of thespoils system in the late 19th century,
(06:36):
the idea of public sectorworkers negotiating and
organizing became sort of practicalbecause, all of a sudden,
they didn't lose theirjobs every election cycle.
There was a natural interest group of,of permanent public employees.
And so they started organizingreally before 1900.
(07:00):
Teddy Roosevelt had to fendthem off at one point.
And so throughout the Progressive Era andup into the New Deal,
the public sector workers kept pushingpolitical leaders for more power.
And the political leadersbasically said no.
(07:21):
And Franklin Roosevelt, who wasa big supporter of organized labor,
could not hardly have been clearer.
He said at one point, the processof collective bargaining cannot be
transplanted into the public service.
And the reason is because the ideaof public workers negotiating
against the public good,putting themselves first in line for
(07:46):
public dollars and such,was considered a breach of loyalty.
I think early on,I'm trying to think of his name,
the labor leader in the 19thcentury refused to let.
Police join the trade union,because he said it would be a conflict
of interest because they hada duty to serve the public,
(08:10):
not to negotiate against the public.
>> Terry Moe (08:14):
So when did they get organized?
>> Philip K. Howard (08:17):
Well, as I said, they were organized, but
they didn't get collective bargainingrights until there was one or
two instances in the late 1950s,I think, Wisconsin and
the city of New York that allowedcertain collective bargaining rights.
And then the big break came in1962 with JFK's executive order,
(08:41):
ten 988,where he allowed federal employees
to collectively bargain foreverything except wages.
And that executive order is interesting,
preceded by a special committee reportthat was chaired by Arthur Goldberg.
(09:03):
I don't know if you've ever read itbefore, but it's just incredibly vacuous.
I mean, it's a special committeereport that says, well,
we should let them collectively bargain.
Because it will help make governmentmore efficient, [LAUGH] or something,
with all these conclusory statements withno evidence of any problem whatsoever.
(09:23):
And Jim Landis, the famous New Dealer,
had given a report to JFK inthe late 50s as part of his election
campaign stuff about the problemsin the federal service.
And the problem was not abuse.
The problem was not anythingexcept basically sleepiness,
that the administrative state hadevolved following the passage
(09:48):
of the Administrative Procedure Actin the late 1940s.
It evolved in a way that people just didprocess and they didn't make decisions.
And Landis said, where is all the decisionmaking that we had in the New Deal and
such, these purposeful publicleaders that people wanted?
So the problem wasn't one that wouldbe helped by collective bargaining by
(10:10):
the unions,it would be helped by strong leadership.
Instead, we got the opposite.
>> Terry Moe (10:16):
Right, well, there was the problem of effective government,
of course, and how civil service andunions were gonna affect that.
But at the time, in the early 1960s,
that still there were almost noemployees in public sector unions.
>> Philip K. Howard (10:34):
Okay. >> Terry Moe
and 70s and into the 80s thatthey really got organized, right?
Right, and so the next thing that happened was in 1967,
collective bargaining was authorizedin the state of New York,
it was something called the Taylor Law.
And that was preceded by reallyquite a thoughtful report by someone
(10:58):
named George Taylor, who was a laborlaw professor at the University of
Pennsylvania, about how it should work.
And remember,this was the end of the 1960s.
So we're talking aboutthe rights revolution and
the public sector union leaders.
They kept saying, what about our rights,
(11:20):
why can't we have the samerights as trade unions?
Again, people had forgotten orweren't aware of the differences, and
the pressures kept building politically.
And they had already organizedinto a pretty potent voting bloc,
so there was a reason for
political leaders to want to givepublic employees what they wanted.
(11:43):
So the Taylor report basically said,well, it might be okay.
And they said it's basically fundamentalfairness that other people have bargaining
rights, or why shouldn't publicsector unions have bargaining rights?
But then it had all these qualifiers, andit said, but the one thing that has to
(12:05):
be clear is the final decisions have to bemade by politically accountable officials.
So for example,the Taylor Report said you couldn't do
this lawfully unlessthe legislature retained the power
to approve collective bargainingagreements cuz someone
(12:28):
accountable to voters hadto make the final decision.
Well, needless to say, the New YorkState Legislature ignored that.
And they didn't have the final collectivebargaining agreements accountable to
voters.
And within a year or two, they,even worse, changed the law in
a way that Professor Taylorsaid would clearly be unlawful.
(12:53):
Which was to have any disputeover collective bargaining be
decided by arbitrators,and arbitrators, in fact,
approved by the unions, which is the waythe law works in New York still.
>> Terry Moe (13:10):
Well, this spread all around the country.
>> Philip K. Howard (13:12):
That's right, I think within two or three years,
20 states had collective bargaining.
And at this point, it's 38 states out ofthe 50 have collective bargaining rights.
They vary somewhat from,from state to state.
There were also a number of reportsback in the late sixties and
(13:34):
early seventies,like the city of Los Angeles had its
own special committee doinga report on how it should work.
And these reports wereall very cautionary.
They said, well, we can do it, butwe can't take away the management
authority of the people running,who are elected to run the government.
(13:55):
We can do it, butwe have to have final decisions be
made by people who are accountableto voters and such.
None of which is the case at this point.
I mean, the decisions,as I detail in the book,
the decisions about thesecollective bargaining agreements in
most states are almost completelydivorced from accountability to voters.
>> Terry Moe (14:21):
Yeah, so
there's sort of a catch-22 inthe accountability equation, right?
Because you can say that legislators and
other elected officials need tobe making the final decisions,
but then what forcesare they responding to?
>> Philip K. Howard (14:40):
Right, and-. >> Terry Moe
to ordinary voters or are theyresponding to the power of the unions?
[CROSSTALK] Well, first of all, yeah, I mean,
there's the political point, they'reresponding to the power of the union.
But in the state of New York, for example,
they literally don't have the authorityby law to make decisions.
(15:06):
So you get elected as a mayor,you come into office.
The collective bargaining agreementsare not coterminous with election cycles.
So the elected official is boundby the terms of these agreements,
which are often several hundred pageslong and mean there's no accountability
(15:27):
when there's no effective manageability,very rigid work rules and such.
So that official is boundby law to that agreement.
Then at some point,the collective bargaining agreement ends.
They're typically about five years long.
And then, theoretically, leavingaside the politics of the situation,
(15:49):
the elected leader could sit down andnegotiate a new agreement.
But in New York state, if the uniondoesn't like it, they just say no.
And the disagreementgoes to an arbitrator.
So it doesn't go to anyone who's elected.
No one elected the arbitrators.
And then if for some reason there's stilla stalemate going on in New York State,
(16:14):
there's a law that says thatthe terms of the existing collective
bargaining agreement willcontinue indefinitely,
together with all cost ofliving increases built into it,
until there's a new agreement.
So literally, there's no link tothe voters between an elected official,
(16:37):
even one who wants to changethe collective bargaining agreement,
and how a new collectivebargaining agreement works.
It's outside the power ofthe democratic electoral process.
>> Terry Moe (16:51):
Yeah, well, it seems like the real problem here,
to the extent it exists, is that publicofficials are responsive to power, and
ordinary voters often don't have as muchpower as organized interest groups do.
And on matters of public sector wages andbenefits and
(17:13):
these kinds of things,public sector unions have a lot of power.
And officials that they're bargainingwith are responding to that
rather than to what's best for the voters.
And that's where the accountabilityproblem comes in, I take it.
>> Philip K. Howard (17:29):
Yeah, yes, so I would say that there are two problems.
There's a legal power pointwhich distinguishes this from
other interest groups whichgive money to politicians.
Other interest groups,the National Rifle Association or
(17:49):
whoever they are, they don't havethe right to collect bargaining.
An elected official doesn'thave to sit down with them and
make a deal as a matter of law,and they don't have legal rights
that are reflected in thesecollective bargaining agreements.
So you start with a sort of illegal.
(18:16):
It's not even a thumb on the scale.
It's like a brick on the scale [LAUGH].
[LAUGH] And then you add tothat the reason politicians
found themselves in this predicament,
which is all the politicalpower of the unions,
which you detail, andwhich I quote over and
(18:37):
over again in my book in special interest.
Which is just, I mean, at one point,
I think you found that in a numberof states, the teachers union
gave more money than all businessgroups combined in the election cycle.
It's just extraordinary.
(18:57):
And another difference betweenthe political influence of the public
employees' unions andtrade unions is that, I'm sorry, and
all other interest groups, the Chamberof Commerce, all other interest groups,
is that most interest groupsare looking for a sliver.
(19:18):
Give us a subsidy, give us a right,give us some amount of money,
a billion dollar subsidy here orthere or whatever it is.
And however big it is, it's a tinyfraction of what government does.
What the public employeeunions are bargaining for
(19:38):
is control over the entireoperating machinery of government.
We're talking about justorders of magnitude larger
than any other interestgroup is fighting for.
A tax break might be worthbillions of dollars.
The employees of government at all levels
(20:02):
in this country consume $2trillion of the annual budget.
It's like 20% of the totalgovernment spending is employees.
And that doesn't count the impactof how government works.
I mean, the failure of schools,for example, that can't get fixed.
(20:23):
So we're talking about a problem
that, I think people.
I keep thinking ofUpton Sinclair's The Jungle,
when he walks into a factory, andthis factory is just horrible.
They're mangling the workers.
(20:45):
The conditions are incredibly unsanitary.
People are disgusted by the fact thatthey're eating this stuff in these
conditions.
When you walk into how government works,the unions,
these agreements have no, orvirtually no redeeming qualities.
They're designed, the work rulesare designed for inefficiency.
(21:09):
The lack of accountability doesn'tattract good workers to government.
It repels good workers from government.
There are all these stories thatshow that because you get a horrible
culture when everybody knowsthat performance doesn't matter.
So you have this control over government.
That, to me, is like the jungle.
(21:33):
The trash collection inNew York City costs,
municipal trash collection coststwice what private carters is true.
That's true in Chicago too.
The MTA had to sanitizethe subway cars during COVID, and
they didn't have enough workers, sothey hired companies to help out.
(21:53):
The companies did three timesas much work as the MTA
workers did because they were manageable.
So you have this system ofgovernment that's really
designed under union controls.
It's really designed for failure.
It's a scandal.
>> Terry Moe (22:12):
So if you get down to it and
try to think about what motivates them,right,
if you try to explain their behavior,right,
what is it that you think is atthe core of their motivation?
When they're engaged both in politics andin collective bargaining,
(22:36):
what are they trying to get?
>> Philip K. Howard (22:38):
Power, they're in control.
There's only so much you can bargain forin a collective bargaining agreement.
And you've written about this,
the reason the benefits they getare stretched out into the future or
are opaque is sothat taxpayers can't understand it, right?
(23:00):
They'll have overtime rulesthat allow pensions to
be spiked with lots ofovertime in the last year.
They'll have all kinds of other benefitsthat you could never kind of go in and
figure out, well,what's the point of a rule that says
(23:22):
the principal can't come in andlook and observe the teacher?
Or what's the point of the rulethat says you've gotta get union
approval to deploy any resources?
So if someone's sick,you've gotta negotiate with the union rep
how to cover some classroom,or whatever it happens to be.
(23:45):
In the federal government, you'removing people around to a new office.
You have to negotiate overwho gets to sit at what desk.
I mean, what's the point of these rules?
I mean, it's almost like a pathological.
Personal relationship where peopleare seeking control for its own sake.
So they sit down at the bargaining tableevery five years and they negotiate
(24:10):
all these controls that basically givethem a veto over how government works.
If it doesn't work exactly inthe kind of central planning way that
the collective bargainingagreement lays out,
which circumstances change,you've got to be flexible.
So you have this crazy situation where,
(24:32):
where it's like you've unpluggedthe spokes from the hub and
you expect the governmentagency to move forward,
and it can't until itnegotiates how to move.
Every day with the union rep.
(24:53):
It's just power.
I mean,one of the things we're going to do,
maybe you'd like to get involved in it,is host a series
of forums on what a better deal forteachers would be.
How do you make an employment system?
I think you could pay teachers more.
(25:15):
You do all kinds of things that wouldbe a lot cheaper than what we have now,
which is an unmanageable school systemacross the school systems across
the country andunmanageable municipal agencies and such.
It's just not a good system.
It's just union leaders.
I mean, look at them.
You might as well bewatching a governor or
(25:38):
president or something.
They sit down andtalk about how things are going to use.
Schools are not going toopen during COVID because
we've decided that teachersshouldn't have to bear this risk.
Well, what about all the nurses andnurses aides and
the grocery clerks and everybodyelse who's keeping society running?
(26:01):
Why don't teachers have to do their jobs?
>> Terry Moe (26:05):
Yeah, I think another twist on what you're saying is that instead of
thinking of good guys and bad guys inthis, you can just think that, okay,
teachers unions are representing teachers,and teachers want certain things.
And above all else,they want security, job security,
(26:30):
and they want higher wages andthey want better benefits and
they want better working conditions, and
that all sounds very straight ahead.
Who could argue with that?
But what it comes down to are things like,okay, we don't want
the principal coming into our roomunannounced, to observe our behavior.
(26:55):
And we wanna have seniority sothat we're protected, so
that if there are layoffs, the peoplewith the least seniority get laid off.
Well, what if they're the bestteachers in the school?
>> Philip K. Howard (27:06):
Right.
>> Terry Moe (27:07):
Right? Okay, but still,
teachers will support seniority.
And you go right down the line.
And it's not because they're bad people,it's because they're
just trying to protect themselves andhave a good living, but
their interests are not the sameas the interests of children and
the interests of effective education.
(27:29):
And that that is the conflict.
And it's not because anybody's good orbad.
It's just because there'sa conflict of interest.
And if they have a lot of power,
their interests are gonna win out andthe kids are going to get short shrift and
the schools are gonna be organized inways that are ineffective for them.
>> Philip K. Howard (27:49):
Well, yes, thank you for that.
That's clearly accurate.
But it's also, it's a littlebit like Plato's cave, right?
I mean, people, there's a naturalhuman instinct for security.
So if you give people food, they'll sit inthe cave and they'll sit there all day and
(28:09):
all night until they finally die,because people don't wanna go out and
face the wild and the saber toothedtigers or whatever it was out there.
So there's a natural instinct forpeople to want security.
And teachers are no different than anyone.
So they, so they subscribe to the unions.
They get their security.
And of course,just as in Plato's cave, it's really,
(28:33):
in fact, not good forthem because they end up.
The thing about, for example, noaccountability is not that you have lots
of bad teachers, although that you havesome and those some make a big difference.
Is that when everyone knowsperformance doesn't matter,
it's like letting the air outof the balloon of a culture.
(28:56):
It's like organizational psychology 101.
It's like putting a depressant in the air.
Why should I go the extra mile ifnobody else is going the extra mile?
And then the thing that you want, which isa public service to a school with pride
and energy and stuff because you're doingsuch a good job, is not even possible.
(29:19):
So, yes, everybody wants security,and so they cling to it.
But the cost of the security isnot simply that the kids are hurt,
which you point out, which they are.
The cost of the security, ironically,
is that the teachers are hurtbecause they're living,
(29:40):
they're working in an environment that'slistless and dreary and without pride.
And Paul Volcker did these reportsfrom the federal civil service.
They do reports, and he talked about this.
It's really important to haveaccountability so that people
feel that they're part of public servicethat's really helping everybody.
(30:04):
It's a culture of energy.
So I think you're rightthat people want it because
it's the human instinct andwant safety and security.
But ultimately, I think the onlypeople who win here are not so
much the teachers, maybe the bad teachers.
(30:26):
The people who win are the union leaders.
>> Terry Moe (30:29):
Maybe you can talk a little bit about how this
differs between levels of government.
So how are public sectorunions influential
at the federal level comparedto the state and local level?
>> Philip K. Howard (30:48):
Right, okay.
Good, I mean, it's a good question.
About 25% of federal employees belongto public unions, and they're typically
in a few agencies, the national treasury,workers unions, some others.
I mean, it's divided up by agencies and
they're not allowed tonegotiate over wages.
(31:11):
So it's mainly work rules.
And there is no accountabilityin the federal government.
As with everybody else, 99% of allfederal employees get a fully successful
rating because if you put anythingnegative in the file as a supervisor,
(31:31):
you have to go to a hearingto justify it [LAUGH].
So it's always, who has time to do that?
Who has time to say somebody doesn't tryhard or doesn't cooperate or whatever the.
So one of the big supporters of the,
of the work I've been doing is the seniorexecutive service association.
(31:52):
So the highest level federalbureaucrats who supervise workers
really want their supervisors.
Supervisory powers back.
They wanna be able to run their agenciesso that they are high performing agencies,
which is very hard to do underthe civil service protection.
(32:13):
The state level government,
it's about 30% of state levelemployees are unionized.
Again, that's in 38 states.
A local government's about 40%.
So overall, it's about 33%of all government employees.
(32:35):
I would say that the controlsare probably worst on the state
level because it's furtheraway from the ground.
And in big cities, in small cities,
the culture tends to trump the bureaucracy
because people know each other, right?
(32:58):
I mean, people are trying to getthe job done or run the school,
whatever it happens to be.
Big cities are much more anonymous and
it's just a nightmare in Chicago,New York, La.
So I think there are differences andalso differences by jurisdiction and
the places,the few places where it was unionized, and
(33:21):
they've gotten rid of unionslike Wisconsin, Scott Walker.
The indicators are that it works better.
So not crazy, it's just better.
People go to work, they think theyhave to do their job [LAUGH].
It's just a healthier public culture.
>> Terry Moe (33:44):
At the state and local level, one thing that happens
is that the unions, public sector unions,
which would be the teachers unions andAFSCME and SEIU and
police and fire, are big fish andsmall ponds, right?
(34:06):
Compared to the national level, right?
At the national level, there's muchmore competition among interest groups.
There are many more interest groups,but in many states that's not true.
And at the local level it's not true.
And soI wonder if you could reflect on that and
also talk about like just police andfire unions.
(34:27):
I mean, people tend to look at them,they're really
representing the public andtheir public safety representatives.
And they are, they do good things for thepublic and they're absolutely necessary,
but they're also very powerfulinterest groups at the local level.
>> Philip K. Howard (34:46):
Right, I think politically, at the local level,
as you point out,there are some states where,
where the public unions really more orless own the political system.
I mean, they literally, in New Jersey,staff the campaign headquarters for
the new governor.
They got all the signaturesto get him on the ballot.
(35:06):
They've thousands ofpeople knocking on doors,
tens of millions of, tens of millionsof dollars in contributions.
I mean, it just swamps, [LAUGH] it reallyswamps every other interest group.
And so you can't possibly cross them.
(35:29):
I had a friend who runs a democraticthink tank read my book not accountable,
and called me up after a while and said,listen, I've been thinking about this, and
there's nothing in here I disagree with.
I think this is really a seriousproblem for democracy and problem.
But of course, I can't sayanything without self-immolating.
(35:51):
I know a lot of politicalleaders who are democrats, and
they would like nothing better thanto be liberated from union controls,
but the unions are just sopowerful that it's not realistic.
Just to give you an example,I mean, police, I think,
(36:12):
are different than teachersbecause police have a uniquely
difficult to be out on the streets,particularly in dangerous
neighborhoods where your lifeis on the line, is very hard.
And I think the police, a lot of liberalreforms have not been fair to the police.
(36:37):
A lot of the things you must prove,you had probable cause.
When their instincts tell them,
they know that this person'sup to no good or whatever.
But the unions havesucceeded in really creating
toxic police cultures by making it so
that police don't interferewith other police misbehave.
(37:01):
So in Minneapolis, which is where George,
George Floyd was killed by Derek Chauvin,the policeman,
there were three orfour cops who sit there watching him,
young cops with his neck on the knee.
One of them said something at one pointand then was shut up by everybody,
didn't do anything.
(37:22):
So you don't have that kindof interaction you would
have in a healthy organization whereyou stop people from misbehaving.
And in the prior decade,there'd been something like, I think,
16,000 complaints tothe Minneapolis Police Department for
(37:46):
inappropriate behavior,you know, excess force,
etcetera, of which twelveresulted in discipline.
And the most harsh disciplinewas a 40 hours suspension.
So that's a system where youcan do whatever you want and
(38:07):
you can get away with it, basically.
So no accountability doesdistort the culture in ways that
it's just bad for everybody,it's bad for the cops.
And I really think we need a new deal forall these things,
all these really importantpublic positions.
(38:31):
People need to be paid fairly, butthey need to be manageable, and
they need to have a culture that'sdirected towards the public good,
not a culture that's directedtoward their own good.
And that's fundamentally what
the unions have done over the last 50
(38:53):
years have created this culture that's
just insulated from good management and
insulated from democratic accountability.
>> Terry Moe (39:09):
Maybe you could talk a little bit about how, say,
the police and fire unions,also the teachers unions
actually gain power at the local level,let's say, right?
I mean, you have elected officials,
mayors, school board members,city council members, and
(39:33):
they're making importantdecisions about the police and
about fire departments andabout school districts.
So how is it that the unionsexercise influence?
>> Philip K. Howard (39:46):
Right, I think the police and
fire unions exercise influence indifferent ways than the teachers unions.
So there's 7 million members of publicemployee unions in the country,
of which four and a half, give or two.
Take are teachers, sothe teachers exercise influence not with
moral authority, butwith unbelievable money and brute force.
(40:10):
I mean, they are [LAUGH] Itell stories in the book, and
you tell stories in special interest.
Your book,the brute force is really amazing, I mean,
we're talking about likethe Teamsters [LAUGH] or something.
They're very thuggish behavior,the police exercise are much smaller.
(40:34):
We're talking about half a million membersof police unions, something like that.
But the police are veryinfluential with voters, so
police endorsement voters careabout safety, rightly so.
And so police endorsement means a lot.
And so the,>> Philip K. Howard: So
(40:57):
public elected officials want toget the police endorsement, and
they'll do what they want.
It's interesting the policemanagement controls are not nearly
as bad as the teachers orASME or the other controls.
The police controls are mainlyabout a lack of accountability,
(41:18):
it's not about manageability as much.
>> Terry Moe (41:22):
So do police unions participate in elections?
Do they spend money in elections,support candidates in elections?
And how about firefighters?
>> Philip K. Howard (41:36):
I don't have the numbers on that, actually,
cuz I've focused mainly on the teachersand the bureaucratic unions.
But yes, I think, for example,the recent Merrill election in Chicago,
Valli's, who is the kind of reformer,got the support of the police and
(41:57):
got, I think, money andother support from the police.
And the person who finished second,there's gonna be a runoff.
Person who finished second got,I think, 90% of his campaign
funding came from the teachers unions anda couple of other public unions.
Literally every [LAUGH] every millions ofdollars all of it came from the union.
>> Terry Moe (42:24):
Yeah.
And one interesting sidelineabout the firefighters is
that typically at the local level,they have a lot of time off.
Because they have a lot of time on wherethey're working in the firehouse for
24 hours straight or for 48 hoursstraight, but then they have time off.
(42:46):
And so in many communities, that givesthem a lot of time to campaign and
to go around andfirefighters support so and so.
And shockingly, they become a fearfulpresence in politics in many communities.
>> Philip K. Howard (43:04):
Interesting, I didn't realize that.
But that makes sense,I mean, I think people,
it's very hard to monetize the kindof hours spent by union members.
But if you're a legislator,say, in Albany,
New York, andyou're holding a hearing, and
(43:26):
all of a sudden 60 peoplewalk in with placards
saying down with so and so or whatever.
Guess what?
They were all paid for by the teachers
union to go up there andspend the time, and
they provided the buses andall that to do that.
(43:50):
Citizens don't have the time to takethe day to go up to Albany, but
maybe the firefighters or[LAUGH] the teachers or others do.
And so all of a sudden,democracy at work is actually off duty.
Public employees often givenan honorarium to do this,
showing up in the halls of the legislatureto protest anything they don't like.
(44:18):
And I think the relentlessnessof the public unions is
something that people don't appreciate.
Last year, or maybe now,it's a year before,
the public unions introduced21 bills in the New York
state legislature to sweeten pensions,21 bills.
(44:39):
Now, not all of them passed, but some ofthem passed, so that gives you a sense,
you have this kind of relentless,huge presence [LAUGH].
And so when I say this in my book,not accountable.
But it's as if what's happenedis that the public unions
have harnessed the mass of good governmentagainst the reform of good government.
(45:05):
Government's gotten so big, it's halfthe G half, the economy of the country,
and you get some significantshare of the public workers.
There are 22 million publicworkers in this country.
You get some significant shareof them actively organized
basically to prevent reform.
So->> Terry Moe: Let me just quickly ask you,
(45:27):
we don't have a lot of time left, butI think this is an interesting issue.
One theme that I thinkyou're making in your
book is that these workersare protected by civil service anyway.
And that there's a civilservice system that provides
(45:50):
a lot of the things that they seek.
But also what you want in the end is moreexecutive control of the administration.
And I assume you mean not just control of,say, union members.
And you think that membershipshould be unconstitutional, but
(46:11):
also more control of civil servants.
So is that the case?
Do you think executives should control?
Sure, and so, and
the problem that I identify is not justin collective bargaining agreements.
The laws have been passed over the last50 years at the behest of the unions,
largely to put all kinds of control.
The Civil Service Reform Act of 1978,federal law,
(46:34):
contains very detailed provisionsabout discipline of federal employees,
which makes it impossible todiscipline federal employees.
I mean, the proof is in the pudding,it's impossible.
And so I argue that'sunconstitutional under Article 2.
Article 2 there's a raft of casesunder Article 2 about what executive
(46:57):
power means.
Congress doesn't have the authority totake away effective executive power,
executive power belongs to the president,not to Congress.
And my constitutionalarguments on state and
local government are onthe same principle.
But it relates to anotherprovision of the Constitution,
(47:18):
just called the guaranteeclause in Article 4.
Which says the United Statesshall guarantee to
every state a republicanform of government.
And what James Madison said,
that meant with whatever formof democracy a state adopts,
the people elected have to retaintheir power to run government.
(47:42):
They can't sell it, they can't giveit to a group of aristocrats or,
to quote, any favored class.
And what's happened overthe last 50 years, again,
almost without our knowing it,the state legislatures have given,
The public employee unions,the power of collective bargaining,
(48:04):
and all these other controls that meanthat the people we elect as governors and
mayors no longer havethe authority to manage.
It's not just authority over employees,it's to make basic
resource allocation decisions abouthow you do the trash collection.
(48:25):
Or how you organize the workforcein the subway system, or
how do you fix a lousy school?
There are all kinds of decisionsthat making anything work,
as anybody who's ever done anything knows,is not a formula.
It's a question of adaptation.
All the time, we've taken that away fromthe people who run government, and I
(48:49):
think that clearly violates the principlesof those constitutional provisions.
>> Terry Moe (48:55):
So near the end of the Trump administration,
Donald Trump tried to push ahead with what
was called schedule f,civil service reform,
where he wanted to be able tofire at will any public employee,
civil service employees that had anykind of policymaking responsibility.
(49:24):
And that, to many people,smacked of a new spoil system,
which leads to all the problemsthat we're very familiar with.
So if you do go formore executive control,
how do you avoid those kinds of problems?
>> Philip K. Howard (49:40):
Well, the schedule f, which I didn't think was a good idea, but
I do think the presidenthad the power to do that.
And his schedule f was based ona paper I had written saying what
the power of the president was.
And I disagreed with Schedule F.
So I told him that.
But I think what you want isan employment system that's trustworthy,
(50:03):
that attracts good people, andthat the public can trust.
So I think you need speed bumpsto protect against, for example,
political firing, partisan firing.
And it's not that hard to create that.
And there are lots of examples in historywhere we've done that in this country.
(50:25):
So I wasn't for schedule f, butthe irony of people talking
about how terrible it is thatit could be a new spoil system,
which it sort of would be like, is thatpublic unions are the new spoil system.
Remember, the spoil system was allabout giving political hacks jobs
(50:48):
because they supported a candidate,and they kept the job just because
they supported the candidate,no matter how inept they were.
And we got rid of it bycreating Civil Service,
which was supposed to be a merit system.
People would get andkeep their jobs based on merit.
And Civil Service wasnot a system of tenure.
(51:10):
It was a system, as one orthe reformers said,
if the front door is properly tended,the back door will take care of itself.
It was a system of neutral hiring.
We don't hire people basedon political influence.
We hire them based on their competence,and
then they'll keep theirjobs if they do a good job.
And that was supposed to be inthe authority of the people.
(51:31):
Well, guess what?
Fast forward 170 years,we have a system where
people keep their jobs,no matter how inept they are.
Literally, 0.01,0.02% accountability for performance.
I mean, virtually nobody, 2 out of 95,000teachers, I think, was the number you
(51:53):
came up with in Illinois over an 18 yearperiod, lost their jobs for performance.
So we have a new spoil system.
And soI disagreed with what Trump did, but
how can people tolerate that was foronly 2000 senior civil servants.
How do we tolerate it forthe other 22 million where it doesn't
(52:17):
matter what they do, it's just theykeep their jobs no matter what.
That's a problem that I think needsto get re-examined in our society.
I mean,think of all the things that we could
do with resources freedup from inefficiency.
(52:39):
Think of all the lives thatwould be enhanced, indeed saved,
if we could really transform the schools,inner city schools,
where not one student isproficient in reading or math.
You know, think of all the goodpeople who would go into
(52:59):
government if it was a careerof energy and pride,
you know, where people hadauthority to do their jobs.
The only reason they have authority isbecause they're accountable if they don't
exercise it well.
Think of all the things that could happenif we actually could make government
work again.
>> Terry Moe (53:19):
Okay, well, we're just about out of time, but
I want to leave you with one finalquestion that you can answer briefly,
but that goes to the heart of your book.
You think that public sector unionshould be declared unconstitutional.
How would that happen?
(53:41):
What would it look like?
>> Philip K. Howard (53:43):
It would be,
we're already working on one case inIllinois with a public interest law firm.
The unions would not perse be unconstitutional.
The controls they exercise overthe operating machinery would be
unconstitutional.
Collective bargaining agreements,
other controls that have beenput in by the legislators.
(54:05):
I also have an argument thatthey shouldn't be able to allow
to organize politically againstthe public interest, that public
employee can have whatever politicalinterest they want to individually,
but shouldn't be able to mobilize witha million others to hurt the public.
So we're talking to groupsin different states, and
(54:26):
hopefully in California as well,on bringing lawsuits which would
eventually make their wayup to the Supreme Court.
And the Supreme Court wouldhave to make some new law here,
as I discuss in the book.
But it's not a giant step.
It's a step, but it's not a giant step.
(54:46):
And I think the goal hereis fundamentally good
government and functioning democracy.
>> Terry Moe (54:56):
Okay, well, I guess we'll have to end it there.
Thanks a lot, Philip.
This has been a really provocative andlively conversation,
as I expected it would be ona really important topic.
And I also want to thank everyone inthe audience for joining us today.
So you can find Philip's book forpurchase online.
(55:19):
Again, its title is not rethinkingthe constitutionality of public employee
unions, so thank you for listening,and I hope you have a great day.
Popular Podcasts
Dateline NBC
Current and classic episodes, featuring compelling true-crime mysteries, powerful documentaries and in-depth investigations. Follow now to get the latest episodes of Dateline NBC completely free, or subscribe to Dateline Premium for ad-free listening and exclusive bonus content: DatelinePremium.com
24/7 News: The Latest
The latest news in 4 minutes updated every hour, every day.
Therapy Gecko
An unlicensed lizard psychologist travels the universe talking to strangers about absolutely nothing. TO CALL THE GECKO: follow me on https://www.twitch.tv/lyleforever to get a notification for when I am taking calls. I am usually live Mondays, Wednesdays, and Fridays but lately a lot of other times too. I am a gecko.