By Steve Levy
A prime factor leading to bloated government on the local, state, and national levels is the disproportionate influence that municipal unions have on the political process.
Our center raises the question of how it can be deemed constitutional to allow elected officials who act as managers in the collective bargaining process with unions to receive political payoffs from those very same unions against whom they are negotiating.
In the private sector, if a management official were to take money from a union rep during their negotiations, it would be deemed a violation of law. Yet, in the public sector, this conflict is not only considered legal, but is accepted as the norm.
We would hope that legislators would pass laws to prohibit these conflicts. However, we understand that it is against their self-interests to do so. And we really can’t put blame on officials who take the donations since we can’t expect them to unilaterally disarm as their opposition rakes in the same contributions. As the saying goes, don’t blame the players, blame the game and the officials who vote against changing it.
Consequently, the only remaining recourse for the beleaguered taxpayer may be to seek a decision by a court that would declare this conflict unconstitutional.
A kindred spirit in this quest is constitutional attorney Philip Howard, who posits that the disproportionate power of municipal unions has so distorted the democratic process that it violates the Guarantee Clause of the United States Constitution.
Howard stresses that the clause places the duty of managing the public’s affairs strictly in the hands of elected officials who are accountable to the public. When those management responsibilities are punted to unelected and unaccountable entities, such as public employee unions, the Guarantee Clause has been violated.
Our center has added that constitutional questions are also at play from a due process and equal protection perspective. Average taxpayers are denied both rights when the elected officials representing them have been compromised by having accepted contributions from the very unions against whom they are negotiating on behalf of the taxpayers.
Elected officials on both sides of the aisle are incentivized to play ball with these powerful unions. The result is a legislative process that gives unions disproportionate influence over the taxpayers who have to pay the bills that come with the contracts that are negotiated.
The facts bear out that the stronger the municipal union, the higher the personnel costs within that particular state, resulting in higher overall spending. The states of New York, California, New Jersey, Connecticut, Oregon and Hawaii are listed by either MarketWatch or TurboTax as having among the top ten highest taxes in the nation. Meanwhile, MarketWatch listed each of these states as being on the list of the top ten strongest union states in the nation.
Perhaps the most logical analogy that can be made to the bias held by legislators who’ve received contributions from municipal unions is the court cases related to judges who were forced to recuse themselves from matters where they had taken campaign contributions from one of the parties in matters before them.
The preeminent case on this issue was Caperton v. Massey Coal Co., where, in 2009, the United States Supreme Court held that the aggrieved party’s right to due process under the Constitution was violated because the judge deciding his case had received significant campaign contributions from the other party in the action.
How can we say that the due process clause applies to a party in an action where the judge has taken campaign contributions by the opposing party and yet simultaneously claim that taxpayers who are a party to contract negotiations do not have their due process rights violated when the other party — being the union — has given significant sums to the people’s representatives at the bargaining table?
The Court in Caperton stressed that it was not necessary to establish a quid pro quo. There did not have to be an overt agreement between the judge and the party giving the money that the judge would rule in their favor upon receiving the donation.
The fact that there was “a risk of actual bias” meant that the judge had to be removed from the case and that the aggrieved party’s due process rights were violated.
Likewise, we can extrapolate from the Caperton case that, as it pertains to an elected official voting on a union contract, the standard would be whether the contributions would impact the judgment of the average official. As it relates to a contribution to a judge, the court noted:
…the question is whether, “under a realistic appraisal of psychological tendencies and human weakness,” the interest “poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.
There is a serious risk of actual bias—based on objective and reasonable perceptions— when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.
This is why two of the greatest champions of the union movement — George Meany and President Franklin Roosevelt — believed that unions in the public sector should not be negotiating contracts, thereby forcing the government to negotiate against itself.
It is remarkable that such a commonsense proposition has not yet made its way up to the Supreme Court. The time has come.
Steve Levy is Executive Director of the Center for Cost Effective Government, a fiscally conservative think tank. He served as Suffolk County Executive, as a NYS Assemblyman, and host of “On the Right Side Podcast.” Costeffectivegov@gmail.com