February 28, 2011

The Sources of Public Unrest with Public Unions

Carroll Andrew Morse

The recent events in Wisconsin and Indiana, where elected legislators fled from their states to avoid voting on issues where they and their public-sector union patrons would lose, followed by union protests and counter-protests, are part of a recurring dynamic of history where a group that has grown accustomed to the benefits of a set of governing prerogatives is having its prerogatives challenged -- and fighting not to have to give them up. I know that members of public employee unions bristle sincerely at being told they are "privileged", so let me be specific about what I mean: public sector unions have been granted a set of governing privileges within the institutional framework of American democracy -- privileges that conflict with the ideals that the system is based upon.

The ideals themselves are not the source of contention; most Americans today, union and non-union alike, agree on a basic set of ideals that governments should respect; that all men are created equal and possess certain inalienable rights sums them up pretty well. But the genius of modern democratic government is supposed to be that it depends not solely only on ideals, but also on a set of institutional arrangements that can protect those ideals from imperfect humans who will not always live up to them. The institutions relevant to what is happening now date back at least to seventeenth-century England, where specific steps were taken to guarantee that kings and nobles who still held real power (including James II, who was floating the idea of returning to an absolute monarchy around that time) could not undermine or reverse the notions of equality and rights that were gaining serious traction. Government had to find a way to allocate a portion of the people's resources to a central authority so that it could carry out its functions while still defending the idea that no one -- not even the king himself -- had a right to make a claim on the life and livelihood of another indefinitely into the future.

Balance was achieved by requiring the executive branch of government (the king in the English Bill of Rights, later the President in the American Constitution) to continually return to the people to secure financing. Two requirements were most prominent 1) the property of the citizens -- which included their future income -- could only be appropriated with the approval of a body of the elected representatives of the people, and 2) appropriations could only be authorized for a limited time. These are probably not what you think of as the most exciting features of democratic machinery, but they were important checks on the power of the king and his lords and continue to be important checks on the power of democratic governments today. Not only did these rules prevent a king from taking resources to fund a royal court in perpetuity, but they prevented any organ of government, including the legislature, from authorizing permanent funding for anyone. Whatever tasks that government undertook, the executive would have to come back each year for the necessary appropriations and each year the representatives of the people would have to renew their decision to provide resources to the government.

These principles, that only the representatives of the people acting in concert could legitimately appropriate the property of the people, and that not even the legitimate authority could lay claims on the property of the people indefinitely into the future, have lived on in Western democratic governance largely unchanged. Of course, here in the United States, the creation of royal courts was never at issue, but ultimately more important than denying a formal place in government to people with hereditary titles or silly hats was the durability of the principle that there was no authority higher than the legislature elected by the people that could compel taxes to be raised or programs or personnel to be funded -- including decisions made by previous legislatures. The final word on what is to be funded during a legislative session was the legislature itself (with a few exceptions related to the principle of separation of powers, e.g. the legislature cannot zero-out the salaries of certain parts of the other branches of government).

Except that, over the past half-century, a major exception was allowed to creep into the system. One class of organization, the public-sector union (with the support of some politicians), began to assert rights to make long-term claims on the property of the citizenry. A view grew uncritically within the governing and political classes that agreements made through exclusive "collective bargaining" processes -- processes oftentimes closed or secret -- and codified into a contractual form can bind the body of elected representatives of the people into making certain appropriations. Public sector unions insist that, in order to pay for their pension and health care arrangements, they are to receive hundreds of millions of dollars straight off of the top of the tax levy collected from the citizens each year, perhaps for decades into the future, and that legislatures should not (and maybe cannot) exercise independent judgment regarding this piece of the annual appropriation, unless they first secure union blessing. And as the flight from Wisconsin has demonstrated, unions and their allies in the Democratic party now go as far as to support the idea that if a legislature intends to act in way that unions do not accede to, then the legislative process must be halted.

In other words, public-sector unions have been allowed, and want to continue, appropriations prerogatives that would be prohibited to kings.

Yes, it would be hyperbolic to say current practices define a full-blown return to aristocracy, but if you believe that human nature remains the same across time, that we 21th Century Americans are not intrinsically different from the 18th Century Americans who wrote the appropriations limitations into the US Constitution, or the 17th Century Englishmen who wrote similar provisions into the English Bill of Rights, then giving a certain class of people -- be they royalty, corporate bosses, or union members -- an exclusive process that does not involve the consent of everyone involved for appropriating what they want from the public, then the result to be expected is the privileged class taking more and more, ultimately at the expense of the greater good, until people outside of the class granted the special prerogatives begin to push back.

This is not a dig at unions, this is a dig at human nature. The goal of Governor Scott Walker of Wisconsin is not to punish public-sector unions, but to end their privileges to make long-term claims on taxpayers, allowed to no other group in society, that have thrown the political system into imbalance. It is perfectly reasonable, for example, for Governor Walker to propose replacing a system where unions decide what their raises should be in an extralegislative process and then require the legislature to fit that expense into the budget with a system that instead requires raises to be approved by the legislature on equal footing along with the rest of the items in the budget. For as long as one group is given a special process for taking appropriations that takes precedence over the independent judgment of an assembly of the representatives of the people, the contentiousness we are experiencing today will persist, as people not granted special prerogatives wonder why one group gets to go to the head of the line in the appropriations process, while the group that enjoys its advantages continues to use them to press for further ones.

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If the senators are unwilling to fill their offices and perform their duties, then remove them and appoint new ones. I don't understand why this is such a difficult problem to solve.

Posted by: Dan at February 28, 2011 1:33 PM

How about because most, if not all, state constitutions have not provided such a mechanism? Cowardice as a political tactic was not foreseen as a possible problem when most state constitutions were written.

Fortunately, we have the amendment process. I expect to see a slew of such amendments come up in the next election cycle.

Posted by: BobN at February 28, 2011 1:46 PM

I can't possibly believe that the issue of a missing, absent, or otherwise unwilling legislative official has never been addressed before in any state in 220 years of US history.

If there is nothing in the state constitution or case law, then just replace them (after ample notice to the fugitives) and let the courts sort it out later. There is nothing to lose and the judiciary is usually very hostile towards those who knowingly refuse to perform their civic duties or subvert the democratic process.

It's an embarrassment that nothing has been done to correct this yet.

Posted by: Dan at February 28, 2011 2:20 PM

Wisconsin does allow the recall of state legislators, so there is a constitutionally-mandated process for removing state legislators that belongs where it should be, with the people.

But even if there wasn't, a governor is not a king either. He doesn't get to appoint new legislators because the current ones do their job badly. Likewise, courts don't get to restaff or restructure the legislature because they don't like how it's doing its job. Either of those branches trying to assert unwritten prerogatives over legislative independence would be just as bad, if not worse, than the appropriations prerogatives discussed in the main post.

You're describing a turn towards authoritarianism to get a result you want.

Posted by: Andrew at February 28, 2011 3:08 PM

No, Andrew. Wisconsin doesn't have politicians who are "doing their job badly." That is a mischaracterization and is very clearly legally distinguishable from what is taking place here. A more accurate characterization is that they refuse to hold office or perform their duties at all, so this isn't even a recall issue. It's a "we don't have a state senator anymore" issue. If they died or were in comas, would you count that as "doing a bad job" also? It's effectively the same thing. They are unavailable to serve, or have effectively resigned, whichever you prefer. Declare them as such and replace them.

If that's authoritarian, then the federal system is authoritarian because that's how it operates. What is really authoritarian is for politicians to torpedo the entire democratic process just because they are losing a vote.

I don't engage in results-driven analysis and you have no proof that I am. I would give the same opinion no matter what the parties. The reason I am vocal on this particular issue is obviously because of the result I want here, but that has nothing to do with the substance of the argument which would be equally valid in any alternative scenario.

Posted by: Dan at February 28, 2011 3:58 PM

If that's authoritarian, then the federal system is authoritarian because that's how it operates.
Really? When will President Obama be ordering Rep. Giffords to be replaced, because she has been unable to perform her duties for an extended period of time? When in the past has the President declared a sitting legislator "effectively resigned" for not showing up for a vote? How about a Senator who misses bunches of hearings, sessions and votes because he's running for President? Oh, I see; we'll have the President and Governors use their personal judgement about which legislators should be declared "effectively resigned" and removed for missing votes in the absence of any written rules on the sbuject. Nothing authoritarian there.

The results orientation is apparent from your previous outrage that a process might be written into RI law for removing indicted officials, contrasted with your current support of the truly authoritarian idea that a Governor should be able to remove legislators based on unwritten prerogatives.

Posted by: Andrew at February 28, 2011 4:54 PM

Dan, Andrew is right. Representatives do not have a "boss" other than the people who elected them, and their removal is a matter of the state constitution. No individual has the authority to dismiss them. Remember, the legislature and the executive are two separate branches of government, and are not necessarily meant to work in synch.

Be careful what you ask for. Despots dismiss elected representatives. Many thousands of Americans have died to protect our people from despotism.

Posted by: BobN at February 28, 2011 5:05 PM

Andrew, why is it so difficult for you to stick to the facts of the scenario? They are very important here. Analogize all you want about missing "a" vote or running for another office, but Wisconsin has senators who are openly refusing to perform their elected duties. They have literally fled the state. Nobody is suggesting that they be stripped of office without due process. Give them notice and an opportunity to return and fulfil their duties, by all means. Give them an opportunity to explain their intentions. Otherwise they are unavailable to fill office, and treat them as such. Just as if they had died or become incapacitated.

Appointment is an integral part of the federal system. There are ways to do it openly and yes, democratically. It isn't despotism.


Why does the silence of a state constitution make it okay for a minority of state senators to torpedo the democratic process and shut down government indefinitely, but not for a governor (or state legislature) to use open means to restore the democratic process and temporarily replace those lawmakers so their government can function again? The former is far more authoritarian than the latter, for which we already have a working model in the federal system. There isn't as slippery slope problem here, and it could be done a number of different ways while preserving separation of powers. The courts would review the governor's rationale for appointment, of course, so it wouldn't be at the sole whim of the "despot" governor. And the state legislature could enable him. Oh wait, there is no functioning state legislature in Wisconsin because a handful of people decided to shut it down for the majority. That's really democratic.

You have the same problem of perception of American government that most oberservers have. You look at these issues like there is an objective answer for everything - a right answer and a wrong answer that you can only determine by looking up correct table or rule of procedure. In reality, most separation of powers issues are dealt with on the fly and there are no clear dividing lines on many or most state issues. The answer to most legal questions is not "yes" or "no," but "maybe." The books are silent at least as often as they have something to say. This is how our society has operated for 220 years, through trial, error, and ballsy moves by governors stuck between a rock and a hard place. Usually it gets sorted out by the courts, who themselves then have to go with what they think makes the most sense under the circumstances with minimal precedent or guidance. A lot of the time it comes down to practicality. I can't imagine that they would allow Wisconsin to continue into the indefinite future without a functioning legislature.

The difference is obvious between an Attorney General removing a state official on the mere accusation of a crime and reappointment of a senator who has literally fled the state and openly refuses to return in order to avoid a vote. I'm confused as to why you would even equate the two situations in your mind.

Posted by: Dan at February 28, 2011 5:34 PM

Bob, the obvious answer is that they are not being removed by anyone. They have removed themselves by openly refusing to perform their elected duties into the indefinite future, and they can just as easily avoid removal by returning to the state performing their duties. They have the right to hold office, not to keep it vacant.

Posted by: Dan at February 28, 2011 5:37 PM

Dan, reality simply doesn't work the way you wish it would. And I'd still be careful what you wish for.

You will see that Gov. Walker has ways of persuading the fleebaggers to come back to work. You will also see the voters of Wisconsin deal with them. Already a significant majority of voters are condemning them, and this will play out in the next election; or in recall elections that are even now being planned.

Posted by: BobN at February 28, 2011 6:09 PM

I'm just following-up the analogies you've introduced, Dan. You said leaving the state was like being in a coma, apparently a fact and not an analogy when you say it. Certainly, it's not a good analogy, but even if it was, it still doesn't get you to your desired outcome, because we don't let the President remove Senators or other legislators who are medically incapacitated and appoint new ones. All of the Senators on your list replaced someone who either died or resigned (now that's a fact) and were replaced based on an appointment process written in the US Constitution.

So on my side, I've got the facts (even though I agree their behavior is cowardly, the Wisconsin Democrats haven't resigned or died), the law (there's nothing in the Wisconsin constituion that allows the Governor to remove legislators in the current situation), and non-authoritarian political philosophy (heads of government don't have the right to make up powers for themselves over other branches of government, where a constitution is "silent"). You've basically got a belief that rule by unwritten prerogative, as long as it is "practical", is better than constitutional democracy. BobN is spot on here. Be careful of what you wish for.

Posted by: Andrew at February 28, 2011 7:31 PM

Be careful what you wish for. If all Wisconsin legislators are going to be recalled and completely new elections are held, I'd bet on a turnover from a majority of Republicans to a majority of Democrats. That, I am certain, is the reason why we will never see a recall vote.

Personally, I'd love to see a general re-election. The turnout would be very large and large turnouts always favor the Democrats.

Posted by: OldTimeLefty at February 28, 2011 7:38 PM

“This is not a dig at unions, this is a dig at human nature.”
It’s a dig at what YOU call human nature. There is an arguable difference between the two which you ignore.
Also, there is no reference to corporations in the constitution. They are fundamentally ungoverned and have much more money and power than unions. Bernie Madoff was a capitalist, not a member of any union, and he went about his merry way, basically ungoverned and was one of the architects of the country’s economic downturn. Check out Bank of America and AIG for other corporations which contributed to the disaster. BP put a hole in the gulf floor and wrecked the economy of the Gulf Coast. BP is not a union. BP is a corporation which lacked oversight. What power these corporations wield, and there is no counterweight. Human nature being what it is we need unions.

Posted by: OldTimeLefty at February 28, 2011 7:53 PM

It's a good analogy because the result is exactly the same - a completely nonfunctioning state legislature with perpetually absent members. The fact that the person is still alive should not be legally relevant - laws need to be voted on and that requires filled seats. If somebody openly refuses to fulfill their duties, then that is functionally the same as unavailability for any other reason. Constructive resignation if you prefer. Courts don't get caught up on these kinds of technicalities.

You seem to be transfixed on precedent - but this is an unprecedented situation. I'm not claiming that appointment by the governor or remaining state legislature would be an ideal solution. Actually, I think that it would be an extraordinary and extremely undesirable step. However, the fascistic status quo that you are completely ignoring is to have NO REPRESENTATION whatsoever - not an acceptable option by any stretch of the imagination. Especially since this occurred through deliberate action and design of public officials. I don't see anything in the state constitution about being able to shut down state government every time the minority doesn't get its way either. So we're already in unconstitutional land.

OTL - there is no reason why all of the state legislators would be recalled. Only the ones refusing to perform their civic duty and torpedoing the entire democratic system for the benefit of their union masters.

Posted by: Dan at February 28, 2011 8:01 PM

That's just OTL hitting his escape from reality velocity.

Polls indicate that recalls would be a humiliation for the Democrats. But once again, reality and Leftists are strangers.

Posted by: BobN at February 28, 2011 8:20 PM

I want a political situation like Wisconsin to be resolved by some combination of written law and "precedent" (really, the established traditions of American constituional democracy)? I think that's a fair statement.

It certainly beats ignoring both the law and "precedent", so that the Governor and the courts can be allowed to declare some kind of state-of-emergency and create a new government. Asking a benevolent strongman to take power, wipe away the problems, and replace them with something better never works out quite as well in practice as it does in theory.

In the end, there's no rule in a democracy that can compel the legislators to work together. If they can't work together, then the government doesn't do anything that session (including cutting any checks, payroll or otherwise, during the impacted appopriations period). If the people don't like that outcome, they either vote the legislators out or recall them (if that's an option). If they do like the option of government not being able to do anyting, then they can vote the same reps back in.

Posted by: Andrew at February 28, 2011 9:23 PM

Left-leaning people keep telling me I have human nature, or at least the realtionship between human nature and government all wrong. What's the alternative view they'd like me (and other conservatives) to consider?

Posted by: Andrew at February 28, 2011 9:25 PM

Andrew - can you at least admit that there is a substantive, legally recognizable difference between doing a poor job as senator and refusing to hold office by fleeing the state indefinitely? I know we're not going to agree on the remedy, but if we can at least agree on that much then I'll leave satisfied.

Posted by: Dan at February 28, 2011 9:31 PM

Dan, you're obviously not a lawyer, or you would not have asked that question.

Posted by: BobN at March 1, 2011 8:31 AM

Then I wonder why I keep getting bills for bar dues.

There is a substantive legal difference between poor work performance on the job and absenteeism. The former is largely subjective, while the latter is entirely objective. And the latter is far more serious and actionable whether it's a public or private job in question. Depending on the duration of and circumstances surrounding the absence, it can often be considered a constructive resignation. These particular circumstances are about as supporting of that conclusion as I could imagine.

Posted by: Dan at March 1, 2011 9:27 AM

So then, who is the employer, and who is the supervisor with the authority to dismiss them? And by what mechanism is a new employee found to replace them?

Sounds like a recall election to me.

Posted by: BobN at March 1, 2011 10:05 AM

The employer is the State of Wisconsin. If the individuals can still be considered in office, then you are correct that a recall would be the prescribed avenue for their removal. However, I argue that they have already effectively removed themselves from office by refusing to perform their duties and leaving the state. Any other type of employee who refused to perform their job duties and moved out of state would certainly be considered as having effectively resigned their job. I haven't done a full research on the precedent (because I don't care enough and it wouldn't affect anything), but it sounds like there isn't a clear mechanism in place to deal with this type of situation. In these gray areas in between the separation of powers and outside the state constitution and case law, usually it falls to the executive branch to use the most open and practical means available to get things running again. The courts then review after the fact and decide whether the action was appropriate or not. It's really not as fascistic as Andrew is making it out to be - it happens every single week in state government, just on smaller matters that don't get the same level of scrutiny. Things are a lot more messy in practice than in theory, and there usually isn't a clear answer before the court issues a ruling. When I was working in a state AG's government bureau, virtually every case relied upon making analogies to other types of situations because there was so rarely precedent on the boundaries between the state executive and legislative powers. Governors are charged with running the state - at the moment Wisconsin has a non-functional legislature that is procedurally incapable of getting itself running again. The people have no representation into the indefinite future, which is totally unacceptable, and temporary appointment of new senators could easily be the lesser of two evils.

Posted by: Dan at March 1, 2011 11:17 AM
Left-leaning people keep telling me I have human nature, or at least the realtionship between human nature and government all wrong. What's the alternative view they'd like me (and other conservatives) to consider?

I dismiss the view that it's "human nature" to lack empathy or to define oneself by selfish or competitive goals. Many of us don't view the world that way and don't raise our children to view the world that way, although I acknowledge that many conservatives have that worldview especially here in America.

That's why I quote Jefferson, who had a markedly view of human nature and the realtionship between human nature and government than what you suggest:

Nature [has] implanted in our breasts a love of others, a sense of duty to them, a moral instinct, in short, which prompts us irresistibly to feel and to succor their distresses. --Thomas Jefferson to Thomas Law, 1814.

I believe that justice is instinct and innate, that the moral sense is as much a part of our constitution as that of feeling, seeing, or hearing; as a wise Creator must have seen to be necessary in an animal destined to live in society.
--Thomas Jefferson to John Adams, 1823.

Disagree with Jefferson if you like, but folks like me see this more as a reflection of your own worldview and upbringing than as an accurate characterization of the so-called "privileged class" you try to paint with that brush.

Posted by: Russ at March 1, 2011 1:39 PM

Nice quotes, but they don't at all support the Leftist view that totalitarian, nanny-state government is the solution.

In fact, if the Jefferson quotes are accurate and apply universally, then the Left's demonization of business managers (the evil "corporate executives) would imply that they do not have the same human nature as the rest of us.

In fact, conservatives have exactly as much, and per some studies even more, of that love of others than liberals do, as evidenced by higher rates of charitable contributions and volunteerism. The main difference is that Conservatives want these things to remain personal and voluntary, not faceless and forced by government.

In fact, the Left's view is that most people are inherently evil or stupid and must be controlled by their betters through a powerful central government. This runs exactly counter to the Jefferson quotes you pasted.

Posted by: BobN at March 1, 2011 2:05 PM

Who are you to define civic duty? It seems to me they are doing their civic duty by staying away.

Were you appointed gauleiter? It skipped my notice.


Posted by: OldTimeLefty at March 1, 2011 3:26 PM
It is not charity but a right, not bounty but justice, that I am pleading for. The present state of civilization is as odious as it is unjust. It is absolutely the opposite of what it should be, and it is necessary that a revolution should be made in it. The contrast of affluence and wretchedness continually meeting and offending the eye, is like dead and living bodies chained together. Though I care as little about riches as any man, I am a friend to riches because they are capable of good.

I care not how affluent some may be, provided that none be miserable in consequence of it. But it is impossible to enjoy affluence with the felicity it is capable of being enjoyed, while so much misery is mingled in the scene. The sight of the misery, and the unpleasant sensations it suggests, which, though they may be suffocated cannot be extinguished, are a greater drawback upon the felicity of affluence than the proposed ten per cent upon property is worth. He that would not give the one to get rid of the other has no charity, even for himself.

There are, in every country, some magnificent charities established by individuals. It is, however, but little that any individual can do, when the whole extent of the misery to be relieved is considered. He may satisfy his conscience, but not his heart. He may give all that he has, and that all will relieve but little. It is only by organizing civilization upon such principles as to act like a system of pulleys, that the whole weight of misery can be removed.
-- Thomas Paine

On the other hand, there's a whole host of police state powers that conservatives seem real fond of and that the left could certainly do without (I suspect we agree on that one).

btw, I don't disagree with you if you're saying that people (conservative and liberal) have different worldviews and that it's tough to generalize. I even tried to avoid painting with a broad brush for that reason (e.g. many conservatives...). You on the other hand. It's like watching a Glenn Beck show. All these things I never knew I believed!

Posted by: Russ at March 1, 2011 3:27 PM

Why would we look to Paine as an authoritative source?

What police-state powers are conservatives "real fond of"? I think you are repeating a Leftist canard here.

Posted by: BobN at March 1, 2011 4:01 PM


An executive can make appointments in the executive branch. That's not a precedent for being able to appoint members of the legislature, in the absence of express constitutional authority. You've taken to free-associating legal, political, and philosophical concepts, and the result is an incoherent jumble.

One final analogy for this topic: When Stanley Wilson missed the Superbowl, because he was doing cocaine in a bathroom the night before the game, I would say he did a bad job as the Cincinatti Bengals fullback.

Posted by: Andrew at March 1, 2011 9:28 PM


Where did I offer the description of human nature you are using? My point was that we are prone to the same sources of conflict in the present that we have been prone to through all of history. I think it would be crazy to define human nature as absolutely noble or absolutely profane.

Posted by: Andrew at March 1, 2011 9:57 PM


Personally, I'm partial to James Madison (particularly Federalists 10 and 51) for a decent description of the relationship between government and human nature.

Posted by: Andrew at March 1, 2011 11:11 PM

Hey,Andrew-you got it-the social engineering segment of the left thinks people can be improved through some sort of educational conditional regimen.
Human nature can't be changed.And I'm not talking about "original sin" here.

Posted by: joe bernstein at March 1, 2011 11:11 PM

Thanx, Joe. I do honestly believe that that idea is place for common ground, between people that might be on different political sides of this issue at the moment.

Posted by: Andrew at March 1, 2011 11:18 PM
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