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This November, when voters cast their ballots for president, few of them will be thinking about collective bargaining in state and local governments. But their choice could matter a great deal for that issue. One of the candidates, Vice President Harris, has endorsed a bill that would require every state in the country to collectively bargain. The bill would direct each state to recognize public-sector unions, bargain collectively, and even submit their bargaining disputes to a federal agency. And it would effectively preempt the labor laws of almost two-dozen states. It would, in short, nationalize state and local bargaining. It would also put public-sector bargaining at the heart of federal labor policy.

Rising Costs, Different Approaches

It's hard to overstate how big of a change that would be from a historical standpoint. For much of the nation’s history, unionism was a private-sector phenomenon. Unions mostly represented employees at private firms, and public unions were a relative rarity. In 1949, just 12.1% of public employees belonged to a union. At the same time, more than a third of private-sector employees were union members. And their relative shares of union membership were even more lopsided: while only 4.8% of union members worked for the government, 95.2% worked for private employers.

But since then, private- and public-sector unions have moved in different directions. Private-sector unions began a long decline, falling to only 20% of workers in 1980 and only 6% today. By contrast, public-sector unions expanded their ranks steadily, to the point that they now represent 32.5% of all government employees. The result is that about half of all union members now work in the public sector—even though the public sector represents only about 15% of all jobs.

This surge in public unionism hasn’t come without costs. Between 1977 and 2021, state and local spending (adjusted for inflation) rose from $1.2 trillion to $3.7 trillion, an increase of more than 200% in real terms. And while that increase can’t be attributed entirely to collective bargaining, much of it can. According to one study, collective bargaining raises the cost of government services by about $750 per citizen per year. For a family of four, that works out to about $3,000 in higher annual taxes. In short, collective bargaining makes government more expensive.

Facing those costs, many states have opted out of collective bargaining altogether. About two dozen have no laws authorizing collective bargaining by public employees. And a handful of them, including Virginia and North Carolina, ban collective bargaining outright.

Until now, they’ve been largely free to make that choice. Collective bargaining in the United States is regulated mostly by the National Labor Relations Act (NLRA). And since its beginning, the NLRA has carved out state and local governments. (In fact, the president who signed the NLRA, Franklin Delano Roosevelt, thought collective bargaining was incompatible with public service.) State-level bargaining bans have also been upheld by courts, including the U.S. Supreme Court. The Court has recognized that under the First Amendment, people generally have the right to associate with whomever they want, including unions. But those unions have no right to force a state to bargain collectively. States are generally free to bargain, or not bargain, as they see fit.

Federalizing State Bargaining

But a federal bill aims to change that. The Public Service Freedom to Negotiate Act (PSFNA) would require every state in the country to bargain collectively. It would establish “minimum federal standards,” including a duty for every state and local government to bargain collectively with public unions. The bill would also direct a federal agency, the Federal Labor Relations Authority (FLRA), to evaluate each state’s laws to determine whether they meet these standards. If a state’s law falls short in some way, the FLRA would subject the state to a federal supervisory regime. The agency would establish organizing rules, oversee bargaining, police violations, and punish the state if it failed to comply.

Besides importing bargaining to new states, the bill would also transform bargaining where it already exists. Today, there is wide diversity among state bargaining regimes. Some states require unions to maintain minimum levels of membership. Others require unions to undergo periodic recertification elections. And still others require unions to get fresh approval for dues “checkoffs”—i.e., automatic deductions from an employee’s paycheck. Those measures are meant to protect employees and force unions to compete. The PSFNA, however, would ban them all. It would forbid regular recertification, minimum membership levels, and checkoff reauthorization. If a state allowed any of those practices, it would fall out of compliance and find itself subject to the FLRA’s supervision.

Legal Doubts and Political Expediency

This scheme would be, to put it gently, constitutionally adventurous. On its face, it seems to contradict the “anti-commandeering” principle. The Supreme Court reiterated that principle as recently as 2018, when it handed down Murphy v. NCAA. Murphy involved a federal law requiring states to ban sports gambling. In striking down the ban, the Court reminded Congress that it has no power to “commandeer” the states. Congress cannot, for example, enlist state officers to carry out federal policies. Nor can it instruct states to adopt specific legislative programs. The PSFNA, however, seems to do both. It would direct states to adopt collective-bargaining laws to meet federal standards. It would also force state officials to carry out those standards through collective bargaining. Indeed, it is hard to imagine a bill more in tension with Murphy’s holding—not to mention longstanding principles of federalism.

These legal clouds, however, haven’t stopped the bill from picking up political support—most notably from Vice President Harris. When the vice president was a senator, she cosponsored the original version of the bill. And now, as a presidential candidate, she has included it in her economic agenda. She has described it as a measure to “make the freedom for public service workers to form unions the law of the land.” But she has omitted any rationale, much less justification, for preempting the policies of nearly two dozen sovereign states.

Policy details are often elided in campaign rhetoric. But those details could matter a great deal after the election. The vice president has already endorsed ending the filibuster for key legislation, and the labor movement is keen to see the PSNFA passed. And no wonder: the bill could expand union ranks by more than any legislative measure in a generation. In an age of declining membership and waning influence, unions naturally see the bill as a lifeline.

Voters may not be thinking about public-sector bargaining on election day. But unions certainly will be. In a few days, we’ll know whether that attention gap matters.