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Sunday, September 02, 2018

How enthusiastically should the Left support laws and doctrines protecting public employee unions?

It is generally assumed that conservatives should oppose, and liberals should support, laws and doctrines protecting public employee unions. In his pre-game commentary on Janus v. AFSCME, for instance, Garrett Epps noted that "these unions are an important pillar of the Democratic Party." Indeed, the SCOTUS split 5-4 along partisan lines, with the four Democratic appointees defending agency fees from the Republican appointees' First Amendment attack. President Trump's executive order limiting the scope of federal employees' collective bargaining rights, recently struck down by Judge Ketanji Brown Jackson likewise suggests a Republican agenda to curtail public sector unions.

On this Labor Day weekend, however, I would like to suggest that the the politics of public sector unions should be a bit more complicated. The Left really ought to be a little less complacent about the benefits of strong public sector unions, because those unions are major obstacles to some of the Left's more important political causes. It is not merely that some important public sector unions support fairly conservative Republicans (although they do: Consider, for instance, Wisconsin's state troopers' support for Wisconsin's Scott Walker and the Border Patrol and Ice unions' support for Donald Trump). More important than such partisan stances are the efforts by law enforcement unions to stymie reforms policing, prison, and immigration reforms favored by the Left.

After the jump, some suggestions that the Democratic Party, the Left in general, and the academic Left in particular might ask themselves "Which Side Are You On?" Does it make sense to resist so unequivocally decisions like Janus on the ground that they weaken collective bargaining and reduce union revenue without also looking at those whom these bargains and revenue most injure?

1. Public employees' power as an impediment to police, prison, and immigration reform

Unions representing law enforcement officers are major obstacles to the reform of prison and jail conditions and the reduction of police officers' use of excessive force. Consider, for instance, police officers' unions' knee-jerk resistance to holding their members accountable for the use of excessive force. As James Surowiecki put it, they use their lobbying clout and collective bargaining agreements "to block policing reforms of all kinds," from unsealing cops' disciplinary records to using body cams. Likewise, corrections officers' unions are pillars sustaining mass incarceration and the brutalization of inmates. Norman Seabrook, recently convicted of bribery, vociferously and successfully resisted efforts to safeguard mentally ill inmates from correction officers' brutality. In the 1990s, Don Novey, chief of the California corrections officers' union, formed an unholy alliance with private prison operators to prevent the repeal of "three strike, you're out" sentencing rules. The Border Patrol union has staunchly resisted as "pro-amnesty" any efforts to provide a path to citizen for unlawfully present aliens.

Why is it in the interests of of the Left's view of social justice unequivocally to promote the power of these organizations? Of course, the unions representing law enforcement do not represent the majority of all public employees. But the uniformed services' members have a disproportionate impact on the causes about which the Left cares most passionately, from BLM to DACA. Some circumspection, therefore, in endorsing broad protections for public sector collective bargaining and revenue might be in order. Yet there seems to be very little awareness that CBAs might be an impediment to social justice. Three years ago, Professor Marcia McCormick noted how both media and academia mostly overlooked the ways that law enforcement unions use their legal entitlements to prevent abusive police officers from being disciplined. Three years later, it strikes me that things have not changed all that much.

2. Why not be more suspicious of power that resists voice and exit?

The problem with public sector unions is not limited to law enforcement: As Winter and Wellington argued a half-century ago, public sector unions are less constrained by voice and exit than their private counterparts. Even taking into account the capacity of taxpayers to vote with their feet, consumers cannot comparison shop among public service providers as they can for private goods. Public sector unions also are also the sort of attentive and well-organized interest groups that have disproportionate influence on the political process: Ordinary voters do not focus on the arcana of, say, administrative hearings, but the Patrolmen's Benevolent Association most certainly does. If one is worried, as the Left presumably is, about the welfare of poorer consumers of governmental services, then one should worry about public sector unions. Low-income households, after all, tend to be less politically organized and have fewer exit options than middle-class ones: The former, therefore, are likely to suffer more from the disproportionate power of an organization that is especially resistant to rival constituencies' voice and exit. Such worries do not require or even suggest wholesale denunciations of the public sector: They just suggest caution in rallying around the public-sector union cause.

Maybe, for instance, it would be prudent not to regard protection of public sector unions' agency fees as a hill to die on or engage in breathless hyperbole about the ideological consequences of such decisions. Garrett Epps, for instance, described Janus as "a killing [of public sector bargaining] that will happen in plain sight, with the long-sharpened knives demurely hidden under the black robes of the law." That seems a little hyper-ventilated considering that, by the National Education Association's own estimate, the NEA stands to lose roughly 10.7% (370,000) out of more than 3 million members over two years as a result of the decision. (Other estimates suggest an 8% loss of members in major states like Pennsylvania). Given the success of the NEA in the more than two dozen states that ban agency fees, it seems doubtful that any public sector unions will "die" as a result of Janus. Moreover, it is not obvious that the loss of guaranteed revenue will not improve unions' effectiveness by giving them better incentives to market their services to non-members.

For my own part, I oppose Janus because it is an affront to the decentralized regime that ought to control controversial issues like public sector unions. Congress has sensibly omitted public sector unions from national labor laws, taking advantage of federalism that allows national leaders to duck controversial questions. SCOTUS IMHO would have been wise to follow suit.

The idea that Janus, however, represents an ideologically unambiguous blow to Left causes seems to me misguided. Public sector unions' power, like most power, is an ambiguous benefit for the constituencies that the Left champions, and Left awareness of this ambiguity might make them more effective advocates for the poorest consumers of governmental services that those unions can sometimes victimize.

Posted by Rick Hills on September 2, 2018 at 05:37 PM | Permalink


If you ever want to engage with the arguments and data presented by me and the sources I cite that contradict your narrative, let me know.

Posted by: Joseph Slater | Sep 6, 2018 10:32:40 AM

Joe, thanks: That last comment was both a helpful summary of a general argument and a nice bibliography.

The problems that the Left has with law enforcement officials’ unions are problems that affect all public employee unions. Such unions generally have outsized influence on public administration because their members are well-organized to focus on obscure governmental issues that most voters ignore. If one is upset, therefore, by (for instance) CBA rules that bar disclosure of cops’ disciplinary record, then one should also start worrying about (for instance) the glacial pace of 3020a arbitration hearings on teacher misconduct in NY — because both problems spring from the same source: Capture of government by a well-organized group.

One need not disapprove of private sector trade unions to be suspicious of the public sector: The connection of public sector unions to governmental power starkly distinguishes them from private-sector unions. Indeed, one can believe that public sector unions do a lot of terrific things and still be cautious about their disproportionate power.

I guess I see very little of such caution in the support given to unions like the NEA or Local 37 from my friends on the Left. And it surprises me, because I would think that BLM and similar movements would have apprised them of the risks as well as benefits of public sector collective bargaining.

Posted by: Rick Hills | Sep 5, 2018 6:21:40 PM

Rick: Now that I'm back from celebrating the holiday the labor movement won for us, I see your question was actually, "why don't liberals-leftists accept conservative-right wing criticisms of public-sector unions?" I gave a partial answer to that already, but I will try to fill in more below.

First, again, those criticisms have been critiqued quite effectively, at least in the view of those you are addressing. Recall that W&W published in 1971, less than a decade after the very first public-sector bargaining law in the U.S., and well before the decades of experience we have now. Those critiques have been both theoretical and empirical.

Summers did a good job countering their arguments, I think (do you really want to ignore anti-tax movements and the power of anti-public-sector union politics generally, especially after 2011?). But you can also look at Ken Dau-Schmidt & Mohammad Khan, "Undermining or Promoting Democratic Government? An Economic and Empirical Analysis of the Two Views of Public Sector Collective Bargaining in American Law," 14 Nev. Law J. 414 (2014), and various works by David Lewin and Marty Malin.

As to specific empirical studies, on compensation issues you could do worse than looking at my overview of the studies, “Are Public-Sector Employees ‘Overpaid’ Relative to Private-Sector Employees? An Overview of the Studies” (with Elijah Welenc), 52 WASHBURN L. J. 533 (2013). For a broader analysis of the actual impact of public-sector collective bargaining that counters the narrative you present, see David Lewin,
Thomas Kochan et al., Getting It Right: Empirical Evidence and Policy Implications
from Research on Public-Sector Unionism and Collective Bargaining 11–12
(Emp’t Policy Research Network, Labor and Emp’t Relations Ass’nWorking Paper
Series 2011), available at http://ssrn.com/abstract=1792942.

Getting back to the discharge issue briefly, I don't think you addressed my point that, were it to be true that union CBAs are a significant reason why bad cops aren't fired, we would see a lot of evidence showing that in states that don't permit police to bargain collectively (and there are a number of those), bad cops are fired significantly more often. If you have such evidence, I would be interested in seeing it. Having said that, I think there is room for reasonable people to debate what types of protections for public employees should and should not be mandatory subjects of bargaining. But that's very different than opposing public-sector unions in general.

Beyond that, Democrats, liberals and leftists support unions because usually (with the exception of many unions public-safety employees), unions support liberal causes and Democrats. Indeed, Republican sponsors of anti-union laws are often quite direct in stating that their motivation is to hurt Democrats. Elected Republican reps in Wisconsin explicitly claimed that their motivation behind Act 10 in 2011 was to make Wisconsin vote more Republican (see _Wisc. Educ. Ass'n Council v. Walker, 705 F.3d 640, 645 (7th Cir. 2013)). Ohio Republicans said the same thing about SB-5 (the rough equivalent to Act 10 that Ohio voters later repealed via referendum). Indeed, where "right to work" laws have been enacted, the share of Democratic votes falls 3.5%. See: http://www.nber.org/papers/w24259

There are of course many liberal arguments in favor of unions in general. See, e.g., Charles Craver, "Why Labor Unions Must (and Can) Survive)," 1 U. Pa. J. Lab & Empl. L. 15 (1998). More recently, studies have linked the increase in income inequality to the decline of unionization. See sources collected in Harris, Slater, Lofaso, and Garden, MODERN LABOR LAW IN THE PRIVATE AND PUBLIC SECTORS: CASES AND MATERIALS (2nd ed., 2016) (a work that belongs on every well-appointed bookshelf), pp. 46-47 .

For an even broader explanation of the good things unions do (at least in the eyes of liberals/the left), see this: https://www.epi.org/publication/how-todays-unions-help-working-people-giving-workers-the-power-to-improve-their-jobs-and-unrig-the-economy/

Of course that goes to the labor movement as a whole, but I hope you will forgive me and other liberal-ish folks for suspecting that critics of public-sector unions are also not big supporters of private-sector unions. And in any case, as I mentioned earlier, attacks on public-sector unions *are* attacks on the labor movement as a whole, because so much of the labor movement is in the public sector.

But one final cite, from Joseph McCartin, arguing that Janus and other attacks specifically on public-sector unions are an attack on democracy itself. https://www.dissentmagazine.org/online_articles/janus-v-democracy

Of course you and I could engage in further back and forth, and I don't flatter myself that in the end I would have you totally convinced. But I hope this goes at least a significantly long way towards answering your question about why liberals-the left support public-sector unions.

Posted by: Joseph Slater | Sep 4, 2018 9:34:01 AM

Republican politicians look after the interests of groups that support them? Oh, the humanity! Good thing Democratic politicians don't engage in that kind of behavior.

Posted by: PaulB | Sep 3, 2018 7:18:56 PM

Joe Slater and Rachel both note that the Left is aware of the dangers of police unions. Of course — but the point (in the title of my post) is whether the Left has reconsidered what seems to me to be their unequivocal support for public sector unions in general. Has the Left figured out that the problems with police unions extends beyond the specific context of law enforcement to (say) sanitation workers, teachers, firemen, etc?

The problem with police unions, stated abstractly, apply more generally to all public sector unions: That problem is the Wellington-Winter problem that such unions are much less constrained by consumer exit or voter voice than other organizations, so they can extract unreasonable benefits. The Left sees the problem w.r.t. police. But do they see it with respect to (for instance) pension negotiations? Disciplinary policy in public schools?

Joe asserts that “the more sophisticated understand that an attack on police unions will inevitably include an attack on public-sector unions and labor more broadly.” Joe, could you elaborate on this point, ideally with a citation? I see no evidence of such an understanding from anyone associated with BLM, Sanders, Elizabeth Warren, or anyone else popularly associated with “the Left.” But I defer to you as the expert here.

And, Joe, I would not expect police supervisors to be the major source of discipline for wayward cops: I’d expect civilian critics — say, inspectors general, the mayor, CCRBs, etc — to be such a source. But CBAs interfere with those political checks just as much as with the check of in-house supervision.

As for Clyde Summers’ idea that limits on the scope of collective bargaining have been adequate to protect the public interest, I am not buying it. In NYC, corrections officers’ particular posting within Rivers, for instance, is a “bid position” under the CBA that cannot be changed while disciplinary actions are pending against that officer. This CBA limit means that COs can more easily retaliate against inmates who bring tickets against COs for abuse. I could multiply the examples, but I really would like to see systematic evidence that the local political process has cut back on unreasonable — meaning unsustainable — public sector demands. The pension crisis facing Chicago and other cities is testimony to the reality that anti-tax groups have NOT been successful in trimming back such demands through local politics.

I would reiterate my belief that (1) Janus was wrongly decided for reasons given by Eugene Volokh as a matter of law and federalism as a matter of policy and (2) I agree wholeheartedly with Rachel Harmon that public sector unions can be helpful for anchoring reforms unpopular with rank and file. I certainly am not calling for such unions to be outlawed, whatever that might mean.

I am suggesting only that BLM and others needs to harness their suspicion of police unions to a larger skepticism about collective bargaining and campaign contributions by public sector unions in general. Such skepticism could include political support for (1) more stringent constraints on the scope of mandatory and even permissible bargaining, (2) limits on contract clause protection for all benefits under a CBA (e.g., non vested health benefits), and (3) reforms of the political system to insure greater public scrutiny of CBAs (e.g., treating benefits in CBAs as “debt” covered by limits on bonded indebtedness). If Joe really has seen prescient folks on the Left calling for such micro-skepticism of public sector unions, then I will gratefully acknowledge that the implied skepticism of the Left in my post was unjustified.

As for the inconsistency of the Right on public sector unions, don’t get me started. That requires a whole new post.

Posted by: Rick Hills | Sep 3, 2018 6:45:00 PM

As briefly as possible (which, obviously, is not all that briefly). . . .

1. "The Left" hates police unions. You've missed some big debates if you think BLM and related movements haven't noticed the protections in police union CBAs. Also, police and related unions sometimes lobby for things the left doesn't like, although the tendency of some to attribute the existence of "three strikes" laws primarily to unions exaggerates union influence. But the more sophisticated understand that an attack on police unions will inevitably include an attack on public-sector unions and labor more broadly. Indeed, as already noted in comments, Republicans/conservatives are more obviously inconsistent here in laws such as Wisconsin's Act 10 that gutted collective bargaining rights for all public-sector unions *except* "public safety" unions.

1. Police do negotiate contracts that can make it more difficult to fire bad cops. To believe that is a significant part of why bad cops do, e.g., racist things requires believing that police supervisors and managers (who typically come up from the ranks) really want to stop police officers from doing racist things. I'm not at all convinced that the evidence from states where police do not have robust collective bargaining rights supports that. Notably here, one can also find a number of _Garcetti_-related public employee First Amendment cases in which (a) bad cop does bad thing, (b) good cop reports bad cop to superiors, (c) superiors punish good cop [and (d) courts are split as to whether cop's report is excluded from First Am. protection by Garcetti]. In other words, making it easier to fire cops isn't predictably going to further lefty goals. In general, Rachel Harmon is right that it's complicated.

2. A good answer to Wellington and Winter comes from the writings of Clyde Summers (e.g., his article in the University of Toledo Law Review). Among other things, Summers notes that while some aspects of bargaining should be restricted because of the public interest (and those types of things routinely are restricted), public workers have interests *as workers*, and, contra W & W, those interests can often be drowned out by anti-tax groups and a general public that often prefers to have good services without paying for them. W & W were also descriptively wrong in predicting that politicians would always cave in the face of public employee militance (see PATCO and NYC subway workers' strikes). Also, at some point, one needs an organization fighting for better wages, hours, and working conditions for teachers, firefighters, etc. to attract and retain skilled folks in those jobs (a style of argument conservatives are much more sympathetic to in other contexts).

3. Make no mistake about the significance of public employees to the entire labor movement. Public employees comprise nearly half of all the union members in the U.S. An attack on "public-sector unions" is thus an attack on the entire labor movement.

4. Having said all that, I agree that the legality of union security clauses should have been left to the states. I also agree that Janus won't be a mortal blow to labor -- but it will be a significant one. And for those who generally support workers' rights, liberal causes, and the Democratic party, that will be a bad thing. I realize that is not all of your readers, but that is who you are addressing.

Posted by: Joseph Slater | Sep 3, 2018 4:12:17 PM

The relationship between police unions and reform is not a simple one. I have written about the way that collective bargaining and civil service protections can act to stymie policing reforms in Rachel A. Harmon, The Problem of Policing, 110 Mich. L. Rev. 761, 795-800 (2012), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1957702. But though unions often oppose additional accountability measures, and in any case may slow them down, they also often a critical way to work with the rank and file to achieve buy in on departmental changes, something that has been made incredibly clear by the Department of Justice's work with police departments. Without that buy in, reforms can be more cosmetic than real. Catherine Fisk and L. Song Richardson talk about this discuss this thoughtfully in their article, Police Unions, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2841837.

Posted by: Rachel Harmon | Sep 3, 2018 10:22:54 AM

Howard, the Wisconsin law Act 10 that pretty much took away the right of public sector unions to negotiate most matters specifically excluded police and fire unions. I don't remember the explanation for this but everyone understood that it was because cops and firefighters vote Republican.

Posted by: PaulB | Sep 2, 2018 9:41:04 PM

Public sector unions aren’t really unions because the people on the other side of the bargaining table aren’t concentrated capital. In fact they aren’t concentrated anything. They shouldn’t even exist—civil service protections are more than adequate. That they are the heart of the contemporary labor movement in the US is a sick joke.

Posted by: John | Sep 2, 2018 7:57:33 PM

FWIW, many Republicans would like to treat law-enforcement unions differently and more favorably. AFSCME and the NEA are the real targets for the right (it should not surprise that the two recent SCOTUS challenges involved those two unions and not police).

Posted by: Howard Wasserman | Sep 2, 2018 7:39:40 PM

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