Beyond police unions, writes Philip Howard in Not Accountable: Rethinking the Constitutionality of Public Employee Unions, all labor organizing within the public sector — teachers and transit workers included — has made it “practically impossible to manage schools and other public operations, while powerful evidence grows of the political conflict of interest” that the very nature of public unions creates. 

Howard, a lawyer who heads the nonpartisan government-reform coalition Common Good, thinks his argument could serve as the basis for a court challenge arguing that public unions create “an unconstitutional impairment of democratic governance.”

Read: Opinion: Here’s how police unions aren’t like the rest of the labor movement

And: Controversial head of Chicago police union tells officers to defy city demand that vaccination status be reported this week

Howard, in an interview with MarketWatch, made it clear his stance does not extend to unionization of the private-sector workforce. In the private sector, he believes, shared skin the game between ownership, management and labor creates the framework for collective bargaining when it comes to safety conditions, pay and benefits, for instance.

“When you’re splitting the pie between capital and labor, if labor pushes too hard, the company could go overseas,” he said. “In the public sector, government can’t move out of town and it’s not the money of officials we’re dealing with, it’s taxpayer money.”

He continued, “public unions and the local-election stakes tied to them are a way for politicians to give unions something they want in return for an endorsement without the public ever understanding it.”

Read: Unions must reckon with racial inequality and speak to ‘a more marginalized workforce,’ former U.S. labor board chair says

In Memphis, five fired officers have been charged with second-degree murder and other crimes after beating Nichols, a Black motorist who died three days after a confrontation with the officers during a traffic stop that police officials said appeared mishandled from the get-go. The officers, who are all Black, each face charges of second-degree murder, aggravated assault, aggravated kidnapping, official misconduct and official oppression.

The city released footage of the attack Friday night.

Read: Memphis police chief ‘horrified’ at what she saw

The Memphis Police Association’s collective bargaining agreement with the city is available online. While the agreement leaves management rights with city officials, it contains a four-step grievance process that always ends in binding arbitration. In other words, it’s hard to fire a cop.

Derek Chauvin, the white Minneapolis policeman who killed George Floyd, a Black man, had a history of citizen complaints and was thought to be “tightly wound” by some accounts. “Not a trait ideal for someone patrolling the streets with a deadly weapon,” writes Howard.

Read: California reparations push needs to be a ‘game-changer,’ author of bill says

Yet under the Minneapolis police union’s collective bargaining agreement, the police commissioner lacked the authority to dismiss Chauvin, or even to reassign
him. Chauvin is now serving a prison term.

“The lack of supervisory authority resulted in harms that continue to reverberate in American society,” says Howard. “No society, no organization, no group of people,
can function effectively without accountability. Accountability is essential for mutual trust.”

Data backs this up, at least for some communities. A Washington Post survey put the dismissal rate for police officers nationally at 0.2%. A separate study on New York City teachers, meanwhile, found a dismissal rate of 0.01%. Attempts at reform have repeatedly run aground despite incidents of police misconduct and parent’s frustrations with school policies during the COVID-19 pandemic.

Unlike private-sector unions, the history for an organizing public sector dates to only a few decades back and was routinely discouraged by national Democratic and Republican politicians alike, says Howard. “It was a throw-in to the 1960s and 1970s rights revolution and it has backfired,” he said.

And public unions dominate the labor landscape. Of the 14.3 million people that the Department of Labor says are currently union members, almost half, 7.1 million, work in public-sector jobs. That means about one out of every three government workers is in a union. In the private sector, where the unionization rate is 6%, about one out of every 17 workers is unionized.

Teachers’ unions and COVID-19

It’s not just cops and their unions under fire in the book. Teachers’ unions certainly hear it from Howard, the parent of a teacher, as well. He said the shakeup in classrooms around COVID-19 revealed how much power unions had relative to district or even school administration decision-making.

It’s true that teachers felt particularly vulnerable to the pandemic’s reach because they could not control how many students were vaccinated. But many parents, in Broward County, Fla., and Chicago, for instance, complained that some teachers showed little flexibility in online learning and other make-do efforts, with underserved communities particularly impacted when parents juggled work and home-schooling.

The COVID-19 pandemic spared no state or region as it caused historic learning setbacks for America’s children, erasing decades of academic progress and widening racial disparities, according to results of a national test that provide the sharpest look yet at the scale of the crisis.

“Officials are regularly confronted with challenges and crises that no one predicted. In these situations, officials need to adapt and to redeploy resources,” Howard says. “But public unions see their responsibilities as bounded by the literal terms of their contracts. Any deviation in routine, no matter how insignificant or how large, provides a basis to refuse to pitch in. While nurses, grocery store clerks, deliverymen, and other essential workers went to work so the rest of society could function, teachers refused to come back for almost two years.”

MarketWatch asked Howard if there are instances when union action, a work stoppage in particular, is the only leverage that educators have to achieve classroom change. In Chicago, for instance, a strike within recent memory pushed for more curriculum control, additional preparation time and the hiring of nurses and social workers so that teachers weren’t stretched beyond the scope of their jobs.

Howard said he’s not convinced that union action, because of lack of transparency, is ever the way to bring classroom change, adding he does support more teacher autonomy.

“Reasonable people can disagree on how much teachers should get paid,” he said, “but they can only discuss that when they’re fully in the know. I say pay public officials 20% more, but not when a 200-page union contract precludes a principal from having much authority at all.”

Howard dedicates part of the book to the messy territory of public pensions and retirement savings plans, which some argue should evolve to more closely resemble private-sector 401(k)s or risk continuing to saddle communities with untenable debt.

He’s particularly touchy about what he says is “gaming the system,” in which some public employees are encouraged to retire early, say in their 50s, and begin to collect their pension from that run of service. Rules, however, don’t preclude a return to a different public-sector job, the build-up of a new pension, and eventually, so-called double-dipping.

“Public unions’ indifference to wasteful inefficiency is matched by their rapacity in demanding benefits in the future that are not reasonably affordable,” he charges.

Read more: How pension ‘double dippers’ exploit New York’s taxpayers

Howard concedes that when the power of unions is unwieldly, good cops, good teachers and diligent transit workers can suffer. “This is about accountability. We’re not usually talking about terrible people. People want to do the right thing, by and large. But these are terrible work cultures. No mutual trust.”

So what makes public union collective bargaining unconstitutional?

Howard hopes there are judicial legs to his argument, perhaps as high as the Supreme Court.

And he explains what that looks like. Executive branch officials no longer have the authority needed to fulfill their democratic responsibilities, writes Howard. Eliminating accountability and supervisory judgment removed the main tools of public managers. What is left are facades of governing institutions without the activating powers for executive officials to make things work.

For federal government, the Supreme Court has repeatedly held that Congress cannot remove “executive power” under Article II of the Constitution, especially the authority to hold federal officers accountable.

For state and local government, the “Guarantee Clause” in Article IV guarantees “to every state … a republican form of government”— meaning that officials cannot cede governing authority to any “faction” or other group not elected by voters.

And there’s more, Howard argues: “Organized political activity by public unions is a breach of public employees’ constitutional duty of loyalty. What are public unions organizing against? They’re organizing against the public good, as determined by elected executives in managing government.”

With highly publicized police abuse, fermenting distrust of the Blue in marginalized communities, and the classroom shakeout from the pandemic, Howard believes more of the voting and tax-paying public will push for change.

“The first step is I want the lightbulb to go on,” he tells Marketwatch. “It’s not like trade unions are the source of much of the frustration and anger among Americans. But every public dollar involves a moral choice.”