Lawyer, Author Explains How to Use the Constitution to Fight Union Power

Los Angeles public school staff, teachers, and supporters rally outside of the school district headquarters in Los Angeles on March 21, 2023. Robyn Beck/AFP via Getty Images

Commentary

For 36 years, all but three as a private-sector journalist, I’ve been fighting for the democratic rights of Californians against the powerful, non-democratic public-employee unions. It’s been wearying. There have been few victories.

It was especially painful when I was state Sen. John Moorlach’s press secretary, 2017-20, and saw the unions attack him with vicious lie after vicious lie in his 2020 re-election campaign, outspending him three-to-one and defeating him. All he wanted to do was put their pensions on a sound financial footing.

Then the unions did it again when he ran for county supervisor in 2021. And in 2022, when he ran for mayor of Costa Mesa.

But now I’m excited by a new strategy to curb the unions’ ill-gotten power. I attended a speech by Philip K. Howard on March 22 before 50 community and business leaders at the Pacific Club in Newport Beach. Sponsored by the Pacific Research Institute, he discussed his new book, “Not Accountable: Rethinking the Constitutionality of Public Employee Unions.” Moorlach, who attended the speech, reviewed the book earlier this month in The Epoch Times.

Howard is an appellate lawyer and author of bestselling books—the most well-known is “The Death of Common Sense: How Law is Suffocating America.” And he heads Common Good, a nonprofit.

Howard’s new approach is to assert collective bargaining by public-employee unions is unconstitutional. He stressed the difference between public and private unions. The latter, he said, have a common interest with the private company in ensuring the profitable success of the business. They just negotiate over work conditions and what percentage of the profits goes to the workers, and which to the investors. Excessive demands lead to bankruptcy and the workers being laid off.

Los Angeles Unified School District (LAUSD) workers and supporters picket outside Robert F. Kennedy Community Schools on the first day of a strike over a new contract in Los Angeles on March 21, 2023. Mario Tama/Getty Images

But public-employee unions are different, because governments aren’t in the profit business. Governments can still occasionally go bankrupt. Moorlach famously predicted Orange County’s 1994 bankruptcy, then was appointed treasurer-tax collector to clean up the mess. But most of the time, if finances crumble, governments just cut the services they’re supposed to provide, raise taxes, or both.

“About 50 years ago, public employee unions were given collective bargaining power,” Howard said. “What that means is the government is under the legal obligation to enter into contracts with one body to represent all the workers. The unions have used this power, plus the incredible political clout from using that power to get more dues, to effectively seize control of the operating system of government.

“The result is there for all to see. There is zero accountability. There was an 18-year study out of Illinois that showed, out of 95,000 teachers, an average of two per year were dismissed due to poor performance. That’s actually double the rate of California.

“In the federal government, 99 percent of all federal employees get a ‘fully successful rating.’” Because if you put anything negative in the file, like “doesn’t try hard,” the manager has to explain it to the union.

“The worst problem is what the certainty of no accountably does to the culture of an organization. They go to work and think, ‘Why work a little harder, why go the extra mile?’ It makes it impossible to fix. Recently Baltimore announced it had 23 schools where not one student was proficient in math.”

Destroying Democracy

We hear a lot nowadays about “saving our democracy.” But it’s the unions that are destroying it.

“Democracy is a process of accountability,” Howard said. “That’s all it is. Everybody runs on the insistence they will do better. ‘Change you can believe in.’ ‘Drain the swamp.’ And it never happens. Why doesn’t it happen? Because the people we elect no longer have the authority to manage the government. If you elect someone today, you’re electing a figurehead.

Union members and their families, march through the streets during the annual Labor Day parade and rally in Long Beach, Calif., on Sept. 3, 2018. Mark Ralston/AFP via Getty Images

“You don’t have the main tool of governance, which is accountability. The unions have made it virtually impossible to manage public institutions. You need to lay off the young good teacher before the bad teacher with seniority.”

He brought up this week’s three-day strike by non-teaching employees in the Los Angeles Unified School District, in which the United Teachers of Los Angles union joined, shutting the kids out of school again. That was after the disaster of the excessive lockdowns during the COVID-19 pandemic.

“In 50 years of negotiation, they’ve created gold-plated health benefits,” Howard said. “Why is the L.A. school district so strapped it can’t give the teachers a raise? It’s the teachers’ unions. Merely by requiring the members of the union to take advantage of publicly available health plans, Medicare, and other plans, you save enough to give a $7,000 raise to every teacher in the school district.

“Government has become unmanageable. Democracy has become theater. We elect officials who have no power. In Illinois, they passed a referendum that provides that collective bargaining agreements preempt any contrary past or future statute. So collective bargaining agreements basically override democracy. We’re already working on that lawsuit” through his nonprofit.

What the U.S. Constitution Says

“The one thing I tried to do with this book is to look at it through the lens of constitutional government. How does this fit in with democracy? Well, it turns out that there is a very basic constitutional principle. It comes from John Locke’s Second Treatise of Government, called the Nondelegation Doctrine. It provides that, in a democracy, if you elect an official, the one thing the official can never do is give any of that power to someone else, to a private group. You can’t sell it. And you can’t give it away. Because the voters have given you a position of responsibility, a sacred trust.”

Locke was highly influential on America’s Founding Fathers, especially Jefferson and Madison.

Engraved portrait of English philosopher John Locke, 1690. Engraved by H Robinson. Archive Photos/Getty Images

“That basic principle is reflected in the United States Constitution in several places. But the one you most often hear is the Guarantee Clause in Article IV, which provides, ‘The United States shall guarantee to every State in this Union a Republican Form of Government.’ You’ll recall from school that a republican form of government is, you elect somebody, not to do whatever you say, but to act on their best judgment. They are elected for two or four years to use their own judgment.

“Madison talked about that in the Constitutional debates. He said the point of the Guarantee Clause is to make sure that no official who is elected will give over any part of the power to any aristocrats or nobles. They didn’t want to go back to that. Or to any ‘favored class.’”

Here’s Madison in Federalist 39: “It is ESSENTIAL to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic. It is SUFFICIENT for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified; otherwise every government in the United States, as well as every other popular government that has been or can be well organized or well executed, would be degraded from the republican character.”

Union power today obviously is a “favored class ... exercising their oppressions” producing a country “degraded from the republic character.”

Howard said, when a legislative body signs a collective-bargaining agreement, they have “given the veto of democracy to the public-employee unions. So it’s a violation of the Guarantee Clause to give power to the unions.”

In this state, with union pension contracts, it’s called the California Rule, meaning the pension agreements never can be changed by any legislative body, no matter what. So far it’s been upheld, mainly by the state Supreme Court avoiding it. Although a federal bankruptcy court could change such contracts, as was shown in Detroit’s 2013 bankruptcy. I’m not a lawyer, but it seems to me Howard’s new constitutional approach would make the California Rule ripe for serious challenge in court.

The Supreme Court building in Washington on Feb. 24, 2023. Madalina Vasiliu/The Epoch Times

Supreme Court Action

What now? “There’s a step that has to be taken,” he said. “Which is, the Supreme Court never has decided this. There have been only four cases brought. They’ve all been political questions, like which competing form of the constitution in Rhode Island was more republican than the other. And the Supreme Court said, those are political questions that ought to be decided by voters or by the legislature.

“What we’re talking about here is not a political question. It’s an operational question. Who’s supposed to have authority over government? The unions, or the people? Well, that’s not political. The person elected is supposed to have that authority. So I feel reasonably comfortable that, even though this case has never been brought, that in this situation, it had a lot of validity.

“When the book came out in January, it didn’t get any reviews for a while. Then legal scholars started looking at and said, ‘This is actually serious. The unions have taken over the operation of the government, and how can that be legal?’”

Howard briefly touched on another constitutional argument: Public employee unions organizing against the public interest is a breach of their fiduciary duty.

“They all take an oath of office to service the public. And these contracts do nothing but harm the public. You would be hard-pressed to find any provision in these contracts that’s in the public interest. You have featherbedding, controls, and inefficiencies that are designed to be inefficient.”

Billionaires and Millionaires

In the Q&A, I pointed out how the “billionaires and millionaires” in California were not stepping up to contribute to the campaigns of pro-business, pro-Constitution candidates like Moorlach. That leaves their campaigns severely underfunded against the unions with their endless supply of dues pilfered from the taxpayers’ dollars.

“We actually don’t have much of a culture now of civic leadership from the people who used to be the captains of industry,” Howard said. “There are exceptions to that. I agree it’s a problem.”

And I asked about the old spoils system that existed until the civil service of reforms of the late 19th Century gave us permanent bureaucracies. Under the spoils system, a politician could replace every person in the bureaucracy. The problem was it was a form of patronage. The good part was you really could “throw the bums out”—all of them.

“It wasn’t that great, but it’s better than this,” I said, to chuckles from the audience.

“It was actually, surprisingly, semi-effective,” Howard replied of the spoils system. “If the public really wanted something, they would get it.” Now, he said, “It’s that much worse. You’re right.”

Conclusion

Howard’s idea indeed is a promising avenue to limit the unions’ immense power and restore democratic, constitutional government. Cases like those Howard is bringing take years to wend through the courts. If one of these cases reached the current court, with its 6-3 Republican majority, it likely would succeed. The court in 2018 handed down the Janus decision, which banned unions from extracting from employees mandatory union dues. Although, as Howard said in his talk, that so far has had minimal effect on union power.

If President Biden or another Democrat president replaces two of those Republicans with left-wing Democrats in the mold of current justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson, then Howard’s effort would have no chance. Biden is just as beholden to the unions as state Sen. Dave Min, the peristaltic-voting functionary who replaced Moorlach.

As Howard’s idea spreads and grows, as I think it will, the unions will be madder than a nest of hornets bumped by a 10-year-old boy miseducated in one of the union-wrecked schools. But as government deteriorates further, not just in the schools but in all parts of these vast bureaucracies, people increasingly are going to demand change. Maybe we can restore real democracy.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.