Many of the grave and chronic maladies of modern American governance, including a loss of public confidence in law enforcement and the criminal justice system, public education that is by international standards both expensive and ineffective, and the rampant misuse and waste of taxpayer-provided resources, have, to a very large degree, a common cause:

Elected executives—the president, governors, and mayors—no longer have effective authority over the operations of government. Nor do their appointees. Nor do public supervisors, such as school principals, police captains, and crew chiefs on highway repair teams.

Since the early 1960s, public officeholders have lost a substantial share of their control over the operations of police departments, K-12 schools, and other government institutions as a consequence of the spread of legislation empowering union officials to codetermine with elected officials or their appointees how law enforcement officers, educators, and other public employees are compensated and managed.

As attorney, author, and civic leader Philip Howard explains in his new book, NOT Accountable: Rethinking the Constitutionality of Public Employee Unions, laws and other policies handing the officers of private organizations effective veto power over public agencies’ operational decisions violate a “basic principle of America’s constitutional republic”:

“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 “which, from the very nature of things, must ‘vary with varying circumstances.’”

But starting roughly six decades ago, state after state has made a clean break with the practice of self-government as it always had been understood prior to the late 1950s by passing laws requiring “public officials and policy makers” to “respect” union officials (but no other private citizens) “as equals and deal with [them],” as government union kingpin Jerry Wurf gleefully observed in a 1973 address quoted by Howard.

By the end of 1968, Howard notes, more than 20 states had statutes on the books requiring public agencies, under certain conditions, to recognize a single union as the “bargaining agent” for all of their front-line employees and allow that union to speak for all those employees with regard to key matters concerning their jobs.

Today, 38 states statutorily authorize and promote union monopoly bargaining control over all or some of their government employees, despite the fact that, as Howard shows, “several specific provisions of the Constitution explicitly safeguard against the delegation of sovereign powers . . . .”

The consequences of the spread of monopolistic government unions for taxpayers and other citizens who rely on vital public services, not to mention conscientious and hard-working public servants, have been predictably awful.

So-called exclusive union bargaining in the private sector is, for all its flaws, at least subject to marketplace constraints. Private-sector union bosses may make counterproductive demands about work rules and pay incentives, but they know that they as well as the workers they purport to “represent” will suffer if the business is rendered unprofitable.

The prospect of union-represented workers furnishing services whose quality is diminishing even as their cost (paid by taxpayers) rises is not nearly so worrisome, if it is worrisome at all, for Big Labor bosses in the government sector. They know public-sector managers are happy whenever their department’s budget goes up, as long as they don’t get blamed for the bureaucratic bloat.

As early as 1967, labor-relations scholar Kurt Hanslowe, himself a former autoworkers union official, predicted public-sector union monopoly bargaining could usher in, as Howard puts it, a “new era of government by collusion” in which

the individual citizen [is] left to look on, while . . . his tax rate and public policies generally are being decided by entrenched and mutually supportive government officials and collective bargaining representatives over whom the public has diminishing control.

Given the commonality of politicians’ and government union bosses’ interests, collusion would be a substantial danger even in a world where Big Labor wielded little or no political clout. But as monopolistic government unions were spreading across the country during the mid-1970’s, it was already evident that the officers of these unions were routinely deploying campaign contributions and electioneering brigades in order to “sit on both sides of the bargaining table,” as a prominent labor attorney quoted by Howard contemporaneously observed.

By early in the new millennium, the Big Labor art of determining who represents “management” had become so advanced Michigan government union strategists were confident enough to release a brochure, focusing on school board races, entitled: “Electing Your Own Employer, It’s as Easy as 1, 2, 3”!

It would be shocking if government union officials did not abuse the monopoly privileges improperly granted to them by politicians, with the judiciary’s acquiescence, over the past six-and-a-half decades. In the words of Henry Simons, one of the leading laissez-faire economists of the 20th century, such power “has no use, save abuse.”

Over the course of several chapters, Howard deftly documents a number of the ways in which the “indifference to efficiency” shared by “exclusive” union bargaining agents and the politicians with whom they share power increases the cost of government even as it diminishes the quality of public services.

Some of the system’s infirmities are relatively well known. For example, as a consequence of an effective union-boss veto over terminations,

Public supervisors [can] terminate no public employee without enduring a gauntlet of procedures, consuming several years of managerial time, with the burden of proof on the supervisors. As a practical matter, except for lewd or criminal conduct, almost no public employee can be dismissed without 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.

Another union-boss abuse familiar at least to many Americans who are themselves on a public payroll or have a close relative or friend who works for the government is the lack of transparency in how public employees are compensated.

Despite survey data indicating that public employees far prefer salary increases to increases in non-cash benefits as a means of rewarding them for their efforts, government union bosses tend strongly to favor hiking health and pension benefits over wages and salaries when employee contracts are being hammered out.

The preference is due in part to Big Labor’s awareness that its allied public officeholders find it much safer politically, for themselves or for the people who appointed them, to agree to “long-term pension and health benefits without a plan to fund them” than to rubber-stamp large salary increases for which taxpayers will have to supply funding in the near future.

Citing political scientists Sarah Anzia and Terry Moe, Howard notes that government union chiefs have “focused their demands” on the “electoral blind spot” of unfunded benefits “with the cooperation of “elected officials who will be out of office when the bill comes due.” To ensure that they and the rank-and-file unionists who support them do not pay the price when such schemes ultimately unravel, as they invariably do, union bosses go on to seek “statutory and constitutional protection against future impairment.”

According to the most recent update of an ongoing analysis sponsored by the American Legislative Exchange Council, unfunded liabilities of state government pension plans in FY 2021 totaled $8.28 trillion, or nearly $25,000 “for every man, woman and child in the United States.” The states where the problem is worst, including Alaska, Illinois, Connecticut, Hawaii, New Jersey, and California, overwhelmingly have government-sector unionization density far higher than the national average.

Another counterproductive bargaining position routinely advanced by government union officials that Howard might have cited is the so-called “single salary schedule” that is pervasive in 21st century American public schools largely as a consequence of the outsized influence of the National Education Association (NEA) and American Federation of Teachers (AFT/AFL-CIO) union hierarchies.

According to the NEA, educators’ pay must be based almost exclusively on their seniority and how many higher education degrees they have, regardless of the degrees’ relevance to what they are teaching. The union’s official policy regards any “system of compensation based on an evaluation of an education employee’s performance” to be “inappropriate,” and it “opposes providing additional compensation to attract and/or retain education employees in hard-to-recruit positions.”

As a consequence of Big Labor’s preference for single salary schedules that ignore basic fairness, merit, and productivity, along with the law of supply and demand, and union bosses’ exploitation of monopoly-bargaining policies that give them an effective veto over changes in how educators are compensated, common-sense efforts to serve schoolchildren’s needs while managing taxpayer resources prudently routinely get squashed.

A case in point is a proposal made last fall in New Haven, Connecticut, to offer $5,000 signing bonuses for prospective teachers in math and roughly 10 other shortage areas while offering substantially smaller bonuses for teachers in fields where new hires are far less difficult to recruit. Practically as soon as the bosses of the local AFT subsidiary sent a “cease-and-desist” notice, the Board of Education rescinded the bonuses. This is how Board Secretary Ed Joyner justified the flip-flop: “We want a really good relationship with our union.”

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].