The Decline of Self-Rule

The signs are all around us that the government envisioned by the Framers—self-rule by the people—is on the decline. At the federal level, life-tenured judges often decide matters that are, or should be, the province of the legislative branch (or the states). In the modern administrative state, unelected and unaccountable bureaucrats in executive branch agencies frequently make decisions that the Constitution assigns to either the judicial branch or to Congress, often exceeding the enumerated powers granted to the federal government in any event.

Things are not much better at the state and local levels, where powerful factions (special interests, or “rent-seekers,” in modern parlance) often wrest control of elections (and the budget) to enrich their members at the expense of the voters and taxpayers. I refer, of course, to public employee unions, which represent 7.2 million government workers, accounting for nearly half of all union membership in America. As organized labor has declined in the private sector, public employee unionization has built up an astonishing rate of membership: 35.2 percent of all government workers join unions, versus 6.7 percent of all private sector workers. When employees who are not union members but who are in a “bargaining unit” represented by a union (so-called “agency fee payers”) are included, the public sector share increases to 39 percent, which is to say that unions represent four government employees out of every 10.

Likewise an astounding 45 percent of local government employees—including the heavily unionized occupations of teachers, police officers, and fire fighters—are unionized. This rate is considerably higher than the peak of private sector union membership (around 35 percent) in 1954, when the auto industry was in its heyday, American steel makers dominated the world market, many industries (airlines, communications, interstate trucking) were still regulated (and therefore protected from competition), and domestic manufacturers faced few global rivals. In heavily unionized states, such as California, New York, Michigan, and Illinois, the rate of union membership among employees of large municipalities approaches 100 percent—a phenomenon never observed in any private sector industry, even Detroit when the Big Three auto makers had a virtual monopoly in the domestic automobile market prior to 1970.

What are we to make of such a robust rate at a time when unions in the private sector are experiencing a freefall in membership? Well, obviously the government sector does not operate by the same rules as the private sector economy.

In a business, owners (or managers, when the enterprise is owned by shareholders) are subject to the discipline of the marketplace. Labor costs must be minimized to produce a competitively priced product at a profit. Accordingly, owners/managers are highly motivated to resist unionization, and will vigorously oppose union-organizing campaigns. Rarely if ever would a business voluntarily permit union organizers to recruit employees on the company’s premises, and certainly not when employees are on the clock.

If, despite the employer’s opposition, employees choose to be represented by a union, the owner/manager has strong economic incentives to resist excessive union demands in collective bargaining negotiations, hewing to reasonable wages and benefits. If one firm in a competitive industry has higher labor costs or less efficient work rules than other firms, it will be at a competitive disadvantage and will eventually lose customers and perhaps go out of business altogether.

Alas, none of these constraints exist in the public sector. In every important respect, governmental entities do not resemble businesses (which is why it is foolish to allow public employees to unionize and collectively bargain). Governments are monopolies that can and do compel people within their jurisdiction to pay for government services through taxes. The purchase of government services is, by definition, nonconsensual. Elected officials, who are the public sector counterparts of owners/managers, face no economic pressure to earn a profit, and do not have to worry about competing firms offering the same product for a lower price. There is no “discipline of the marketplace.” The only way governmental entities lose customers is when taxpayers move to another jurisdiction to escape a heavy tax burden, a decision that entails considerably greater transaction costs than merely changing brands.

Accordingly, government officials (unlike, say, the textile mill owners depicted in the movie Norma Rae) are largely indifferent to whether the people in their workforces unionize. They may even invite public employee unions to make recruiting presentations to newly hired workers as part of their orientation, while on the clock. Most important, when a union is chosen to represent government employees, elected officials are more inclined than are private sector employers to accede to demands for higher wages and benefits (especially benefits payable in the future, such as “defined benefit” pensions). The reason is obvious: they are negotiating with “other people’s money.” Elected officials may even agree to use taxpayer money to pay the salaries of union officers (who are also government employees) to perform union duties.

A truly pernicious aspect of public employee unions is that they use the union dues they withhold from the paychecks of government workers (and the “agency fees” they withhold from non-members) for political purposes. Public employee unions spend lavishly in political campaigns to elect candidates favorable to their interests. Unions such as the American Federation of State, County and Municipal Employees, the Service Employees International Union, and the National Education Association are among the biggest political donors nationwide, and often dominate spending in local elections (especially school board races, which are “owned” by unions representing teachers). The vast majority of political contributions by public employee unions go to the Democratic Party. What happens then is utterly predictable. The elected officials endorsed and supported by public employee unions become enthusiastic advocates for union members, rather than the taxpayers.

Instead of the inherent tension between capital and labor in the private sector, which provides a sort of equipoise in collective bargaining, public employee unions essentially negotiate with themselves. The taxpayers merely pick up the tab. When existing revenue sources are insufficient to satisfy union demands, the unions simply lobby for tax increases.

As author Steven Malanga astutely noted a few years ago, government employee unions

have become the nation’s most aggressive advocates for higher taxes and spending. They sponsor tax-raising ballot initiatives and pay for advertising and lobbying campaigns to pressure politicians into voting for them. And they mount multimillion dollar campaigns to defeat efforts by governors and taxpayer groups to roll back taxes.

In the rare event that an elected official stands up to public employee unions, as Governor Scott Walker did in Wisconsin in 2011, the political backlash is epic, bordering on insurrection.

Collective bargaining in the public sector—sensibly opposed by President Franklin Roosevelt and by George Meany, head of the AFL-CIO—has succeeded in distorting the allocation of taxpayer-funded services to produce grossly absurd compensation for government employees (such as the BART janitor who earned $270,000 last year) and pension benefits so generous that they are a major factor in driving cities into bankruptcy. The National Labor Relations Act, or Wagner Act, was passed in 1935 to rectify the perceived “inequality of bargaining power” between capital and labor. Its proponents believed that because capital was organized in the form of corporations, labor needed the concomitant right to organize into unions. Whatever one thinks of this concept, it has no application to the process we have today, which allocates scarce taxpayer resources among competing demands—roads, schools, parks, and public safety.

The disastrous decision by states to allow unionization and collective bargaining by government employees—who, tellingly, are not covered by the NLRA—beginning in the 1960s created precisely what James Madison warned us against: the “dangerous vice” of faction. Public employee unions have become one of the most powerful interest groups in American politics, allowing government employees to dominate the taxpayers they supposedly serve. Until this imbalance is corrected—judicially or legislatively—local government in the United States will fall short of the ideal of popular sovereignty envisioned by Madison in Federalist 10.

Reader Discussion

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on November 17, 2016 at 09:39:54 am

Thank you for this important point.

Not to diminish the overall alarm about public-service unions, I want to highlight ". . . the United States will fall short of the ideal of popular sovereignty envisioned by Madison in Federalist 10."

In Federalist 10 Madison impresses more than elsewhere perhaps that the elite must be protected from the masses. However, the elite protect themselves with words and phrases that alienate "popular sovereignty." Most citizens would not understand that they are supposed to be in charge of civic morality.

Less than 50% of citizens realize that to have freedom from oppression, each able person must earn their living including infrastructure including government including enough to maintain the people who cannot fend for themselves plus enough to save and invest for both trouble and retirement. And too many of the more than 50% do not realize that to have civic morality they must be informed and vote for public-integrity.

In this regard---comprehending the issues and voting for civic morality---I think the USA is at a nadir reached after 229 years and the ascent toward a better future is imminent.

The signal is the election of Donald Trump, and conservative law professors should do everything they can to 1) educate the public respecting fiscal responsibility and political duty and 2) help point the way to fact-based collaboration for civic morality rather than dominant opinion.

I hope President-elect Trump reads your post and takes action regarding public-service unions, as part of civic morality.

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Phil Beaver
on November 17, 2016 at 09:42:21 am

Sorry for the nested "including."

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Phil Beaver
on November 17, 2016 at 09:44:00 am

Very interesting, and quite disturbing!

Unfunded or under-funded public sector pension plans are increasingly becoming a problem for municipalities, school districts, etc. across (but mostly in the urban fringes) Pennsylvania, where I reside, this a result of "robbing Peter to pay Paul" public sector budgeting, (of course, this occurs at the Federal level as well).

To quote Bill Clinton, "Its the craziest thing in the world!"

Postscript: It goes without saying, Peter and Paul very often turn out to be the Mayor's cousins, (which I suppose only adds to the Mayor's anxiety in having to make the tough budgetary decisions).

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Image of Paul Binotto
Paul Binotto
on November 17, 2016 at 11:29:35 am

1) Recent data shows that California has over 220,000 State employees making over $200K /yr - one of whom is a Supervisor of LIFEGUARDS - Gawd, what a life. I should have kept on swimming as a youngster - what a dope I am!

2) Suggested fix. Re-insert the "fiscally responsible" manager into the Public Sector negotiating process.
All Public employee Union contracts must a) be negotiated by a select group of taxpayers and b) placed on a ballot for approval by the voters.

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Image of gabe
on November 17, 2016 at 15:34:42 pm

Recommended reading:

"The Logic of Collective Action" by Mancur Olson (1965)

Whilst Mark Pulliam's considerable intellect has been extensively (but not exclusively) focused on "Labor Law" for well over a generation (almost 2?) now, **not** everything seems like a "nail to his practiced hammer." The nuanced reference to the 1935 Wagner Act indicates an understanding of what can become of the extensions of the real "roots" any area of legislation.

The real (and immediate) objective of the legislators was to "create" (or at least foment organization of) a particular constituency - constituency building.. That "building" was further refined by the fomenting, in laws and applications of laws, the industrial to supersede the craft (and thus relegate the roles of individualities). This was well suited to the emerging (and rising) managerial class coming to dominate larger economic operations.

So, it should not be surprising that we have "collective" bargaining at the subordination of individuality (and of its expressions).
Which takes us to the larger implications of the symptoms (or is it a syndrome) to which Mark points us; the fragmentation of units of our “society” into carve-outs and carve-ups where individuality is first subordinated, then submerged, then suppressed (PC anyone). Still, are there reactions stirring?

In connection with the examining the possible “causes” of the Presidential election, we have looked again at the issues of political parties from the perspective of the “ Iron Law of Oligarchy” (Google that) which also applies to Unions (and so noted its author). In addition to the breakdown of the collusions of managers (Auto, e.g.) with Union “leaders (due mainly to outside forces), there have been the reactions of members against the Oligarchs of the Unions (who have reached criminal characteristics in some cases) mostly voting by exit.

But the characteristics of the carve outs for civil service employees have some additional elements.
Individual responsibilities and “performance” are marginal in the tasks and are probably reflected in nature of those individualities. This has been pronounced in “privatizations,” which may be “the only way out.”

And yet there is the still larger picture in the history and transition of Western Civilization (derived from the European) with its periodic recessions and suppressions of individuality – the very individuality that gave rise to its formation (read Guizot, Oakeshott, et al.) and flowerings (industrial age, e.g.). We appear to be in one of those periods of recession – and have been for quite some time, losing the cohesions of that civilization.

It remains to be seen whether the Oligarchies of “Public” unions will self-destruct. It appears some of them will, and fiscal realities may impair the rest. What may take their places are likely to resemble corporate or “firm” structures –IF – individual liberties are preserved AND valued.

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R Richard Schweitzer
on November 17, 2016 at 16:17:50 pm

"The real (and immediate) objective of the legislators was to “create” (or at least foment organization of) a particular constituency – constituency building.. That “building” was further refined by the fomenting, in laws and applications of laws, the industrial to supersede the craft (and thus relegate the roles of individualities).

And again, we see just how "clever" and dastardly was Ole Mr. Foley. A very consequential fellow, wouldn't you say?

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Image of gabe
on November 18, 2016 at 09:14:11 am

Oops - that should read "Farley" - not Foley (hey, it had most of the letters right!)

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Image of gabe
on December 06, 2018 at 08:27:14 am

[…] insulated public-sector unions from legal challenges, even as they rose to become one of the most powerful forces in American […]

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Image of After Janus, What’s Next?
After Janus, What’s Next?
on December 24, 2018 at 06:07:42 am

[…] post, “After Janus, What’s Next?,” I previewed potential litigation challenges to aspects of public-sector unionism other than the compulsory payment of agency fees. Legal theories abound, including arguments […]

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Image of Beyond Janus: Revisiting the Unified Bar
Beyond Janus: Revisiting the Unified Bar
on July 15, 2020 at 06:27:43 am

[…] Massive changes in the American economy have rendered unions irrelevant as well, explaining the free-fall in private-sector […]

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.