Essays & Reports

Public sector unions wield outsized influence over American government. That power prevents effective managerial control and fosters cynicism toward democratic processes. Successful statutory reforms to address outsized union power are unlikely because of the political resources amassed by these unions. To combat the influence of public sector unions, which serve their own interests instead of the common good, this brief explores five possible constitutional challenges that might dislodge union controls and weaken their grip on power.

Everyday Freedom calls on individuals, families, and communities to exercise newfound authority in the pursuit of flourishing lives. By the last page, the book acts as a mirror, staring back at readers with a challenging question: Are we ready to live up to the responsibilities of such freedom?

Look at American culture. Something basic is missing. Americans know it. Nothing much works as it should. Simple daily choices seem fraught with peril. In the workplace, we walk on eggshells. Big projects—say, modernizing infrastructure—get stalled in years of review. Endemic social problems such as homelessness become, well, more endemic. Oh, there goes San Francisco. Doing what’s right is not on the table. Who’s to say what’s right? Extremism grows.

Powerlessness has become a defining feature of modern society. Americans at all levels of responsibility feel powerless to do what they think is needed.

Here we are, led like sheep into an election to choose whether Joe Biden or Donald Trump should lead America at this perilous time. A clear majority disfavor the choice. Nor do the hot buttons of political debate between woke progressives vs. right wing conspiracists align with the views of most Americans.

Out in the real world, nothing much about government works as it should, with porous borders, broken schools, and homeless encampments. The list is long. Mandatory speech codes and other indignities of the nanny state fuel growing resentment.

Much of the answer lies in Everyday Freedom, a powerful and succinct new book by Philip Howard. As liberals ushered in a wave of fundamental changes to individual freedom and equality beginning in the 1960s — one of the great achievements in human history — they rightly sought to constrain the power of government to impinge on individual rights.

Americans have lost confidence in America. It’s not hard to see why. Broken schools, unaffordable health care, homelessness, decrepit infrastructure, and student mobs at universities readily come to mind.

The last three presidents have come to office promising “change we can believe in,” to “drain the swamp,” or to “build back better,” but government institutions seem beyond their control.

Pundits blame political polarization. But most public failures have little to do with policy or politics: They’re failures of execution.

Trust in institutions is at all-time lows. Schools and hospitals are distrusted by two-thirds of Americans, large companies by even more, and Congress by almost everybody. 

The one trust bright spot is small business, with a 65 percent trust level. What is it that small business has that other institutions do not? Small business retains the human connection. The guy in the local hardware store will talk with you about how to fix the problem. The lady at the cleaners will discuss the stain. The book shop proprietor will describe why she liked a book.

Trump carried every county in Iowa except one, and now a solid majority in New Hampshire. What accounts for the Trump juggernaut? He obviously embodies something that many voters want.

My take is that all his serious rivals, now just Haley and Biden, have promised to be better leaders of the established order.  But Trump embodies rejection, even disdain, for the establishment. As in 2016, he is lapping his challengers with his contempt for the Washington establishment and, indeed, for democracy itself.  Americans are angry, and traditional campaigns based on character, policy proposals, and baby-kissing are not resonating.

Philip Howard is a US lawyer who published a book on The Death of Common Sense in 1995 and has been writing about the subject ever since. His new book, Everyday Freedom, is due out next week. Howard thinks that the root of the problem is “trained helplessness.” People usually know how to fix things — teachers know how to keep order in the classroom, police chiefs know who the bad apples are, local officials know that they need to build new infrastructure. But they are all prevented from using their best judgments because they are trapped in systems that are more concerned with avoiding mistakes (and penalizing people who make mistakes) than on getting things done.

In his latest, “Everyday Freedom,” Howard cites the buildup since the 1960s of laws and rules that were intended to ensure procedural fairness, but in practice have chipped away at officials’ authority to do their jobs.  

Modern law, he says, has created “an elaborate precautionary system aimed at precluding human error.” Public officials have learned it’s safer to hide behind highly prescriptive laws and regulations than to risk using their judgment, moral intuition and common sense to solve public problems.

System failure is going on all around us—the 911 operator who puts you on hold; the outsourced federal “processing centers” that are months behind on essential tasks; the public-school officials who do nothing when told a six-year-old has a loaded handgun in his backpack; the mandatory D.E.I. training that says you can’t say “pregnant women” anymore—now you have to say “pregnant people.” We’ve all seen versions of it. We get steamed up about it. We go online and commiserate about it. But most of us don’t think about it in analytical terms. That’s what Howard does.

Put simply, democracy’s hierarchy for managing government no longer exists. Elected executives are largely powerless to manage public employees or redirect public resources. The people below them in the chain of responsibility, such as school principals, police chiefs, and supervisory officials, are similarly powerless. Every day, government employees across America do things that are designed to waste money and be ineffective.

“The path forward is not political brinkmanship, but to remove politics and punt the solution to a nonpartisan committee, subject only to an up-or-down vote by Congress,” Philip K. Howard, author of the “Death of Common Sense,” wrote last month for The Hill. “Just as independent ‘base-closing commissions’ decide the politically-difficult choices of which military bases to close, so too an external ‘Fiscal Commission’ could present broader proposals that will have benefits as well as costs for most stakeholders.”

Leaders from both parties for decades have kicked the can of federal deficits down the road. The Simpson-Bowles recommendations from 2010 — widely endorsed by responsible observers — were never seriously considered either by President Obama or by Republican leadership. Then huge COVID-19 subsidies came along, and the fiscal road now faces a dead end. Unless the deficits are dramatically reduced, Social Security payouts will risk cuts of around 25 percent within a decade.

Today, in a runoff election for mayor, Chicago voters will choose either former teacher Brandon Johnson or former schools CEO Paul Vallas. What’s raising eyebrows is the funding of Johnson’s campaign: Over 90 percent has come from teachers unions and other public employee unions. Vallas has the endorsement of the police union, but his funding is more diverse, including business leaders and industrial unions. Just looking at the money, the race comes down to this: Public employees vs everyone else plus cops.

Accountability is basically nonexistent in American government today. Performance doesn’t matter; many public managers tell me they’ve never seen a public employee dismissed for poor performance. The Minneapolis Police Department had received 2,600 complaints in the decade before the killing of George Floyd in 2020. Twelve led to discipline, of which the most severe was a 40-hour suspension.

In “Not Accountable,” Philip Howard shows in vivid detail how such practices have made government at all levels unmanageable, inefficient and opposed to the common good. He argues that, in fact, public unions—that is, unions whose members work for the government—are forbidden by the Constitution. The argument, he notes, would have been familiar to President Franklin Roosevelt and George Meany, the longtime president of the AFL-CIO.

Phil is a New York lawyer, author and original thinker whose new book, Not Accountable: Rethinking the Constitutionality of Public Employee Unions, is making waves. We talk here about how to make government work better in the face of entrenched interest groups, especially teachers unions and other government employee unions.

Mr. Howard, a lawyer and writer, first noticed how unions stymie governance during his public service in New York as a member of a neighborhood zoning board and chairman of the Municipal Art Society. “I kept wondering why my friends who had responsible jobs in government couldn’t do what they thought was right,” he recalls. That might be speeding up a land-use review for a construction project or approving repairs on a school building.

The clearest case against [public unions’] flagrant distortion of American democracy is made in a new book Not Accountable by Philip K. Howard, a lawyer who has been a lonely voice for common sense governance since his brilliant book, The Death of Common Sense, in 1994. … If you are interested in your progeny not having their intellects stunted by mediocre martinets, you should read this book.

Amendment 1 to the Illinois Constitution, approved by referendum in November, was promoted as guaranteeing basic fairness for all workers. But it does something else — by prohibiting any new laws that might impinge on worker collective bargaining, Amendment 1 disempowers future elected officials from changing how government operates.

Two public schools in Manhattan illustrate the high stakes of a political choice that the nation, and many states and municipalities, must reconsider. In 2019, Success Academy Harlem 2 charter school ranked 37th among New York state’s 2,413 public elementary schools, one of which, PS 30, had only about a third as many pupils as Harlem 2, spent twice as much per pupil and ranked 1,694th. PS 30 and Harlem 2 operate in the same building.

With more than a quarter century of pondering government delays and dysfunction, Howard was bound at some point to home in on collective bargaining. He began to see it as one of the biggest impediments to productivity and reform.

“The abuse of power by public employee unions is the main story of public failure in America,” he writes in Not Accountable.

Every public dollar involves a moral choice. A dollar squandered is a dollar not available to care for someone who is needy or hungry. Inefficient work rules are like burning money. It should be unacceptable that trash collection in New York and other big cities costs twice what private carters charge. The purpose of government is to serve the public—as the Constitution provides, to “promote the general Welfare.” But public unions have a different agenda.

Governors and mayors no longer have authority to fix broken schools, fire bad cops or manage public services responsibly. Public unions have a stranglehold over the operating machinery of government. A governor or mayor comes into office with his or her hands tied by detailed collective bargaining agreements and other operating controls. So what’s the point of democracy? To elect officials who are figureheads?

No society, organization, or group of people can function effectively without accountability. Accountability is essential for mutual trust. The prospect of accountability is the backdrop for a culture of shared energy and values. "A social organism of any sort whatever, large or small, is what it is because each member proceeds to his own duty," philosopher William James noted, "with a trust that the other members will simultaneously do theirs."

The paralysis of modern democracies is often blamed on polarized politics. But there are structural causes for paralysis as well. These structural defects predated and fostered extremism and must be fixed for democracy to work again. Governing sensibly is impossible without a new operating framework activated by responsible humans.  

Former EPA General Counsel E. Donald Elliott traces Philip Howard’s and Common Good’s efforts to streamline infrastructure permitting. “Every successful reform needs a sponsor, someone who is committed to seeing it through thick and thin over the years that it takes to get things done,” he writes.