Development on a Cracked Foundation: How the Incomplete Nature of New Deal Labor Reform Presaged its Ultimate Decline

Source: Leo E. Strine Jr., Harvard Public Law Working Paper No. 19-48, November 22, 2019

From the abstract:
Mariano-Florentino Cuéllar, Margaret Levi, and Barry R. Weingast’s excellent essay, Twentieth Century America as a Developing Country, Conflict, Institutional Change and the Evolution of Public Law, celebrates the period during which the National Labor Relations Act facilitated the peaceful resolution of labor disputes and improved the working conditions of American workers. These distinguished authors make a strong case for the essentiality of law in regulating labor relations and the importance of national culture in providing a solid context for the emergence of legal regimes facilitating economic growth and equality. This reply to their essay explores how the New Deal’s failure to eradicate ideological divisions, racial inequities, and anti-labor power structures rooted in our nation’s history compromised the ultimate success of the NLRA, the protection of labor in the international trading regime, the effectiveness and prevalence of American labor unions, and the overall leverage of American workers.

The reply then addresses two related realities: 1) the New Deal idea that all workers deserve economic security, safe working conditions, and a fair say over the terms and conditions of their employment remains sound; and 2) but that idea cannot be realized unless it is backed by legal force in the institutions of law that govern a now global economy. Put simply, the original vision of FDR calling for a global New Deal must be implemented if American workers and their international brethren are to receive fair treatment.

Labor Antitrust’s Paradox

Source: Hiba Hafiz, Boston College Law School Legal Studies Research Paper No. 521, Last revised: 19 January 19, 2020

From the abstract:
Growing inequality, the decline in labor’s share of national income, and increasing evidence of labor market concentration and employer buyer power are all subjects of national attention, eliciting wide-ranging proposals for legal reform. Many proposals hinge on labor market fixes and empowering workers within and beyond existing work law or through tax-and-transfer schemes. But a recent surge of interest focuses on applying antitrust law in labor markets, or “labor antitrust.” These proposals call for more aggressive enforcement by the Department of Justice (DOJ) and Federal Trade Commission (FTC) as well as stronger legal remedies for employer collusion and unlawful monopsony that suppresses workers’ wages.

The turn to labor antitrust is driven in part by congressional gridlock and the collapse of labor law as a dominant source of labor market regulation, inviting regulation through other means. Labor antitrust promises an effective attack because agency discretion and judicial enforcement can police labor markets without substantial amendments to existing law, bypassing the current impasse in Congress. Further, unlike labor and employment law, labor antitrust is uniquely positioned to challenge industry-wide wage suppression; suing multiple employers is increasingly challenging in work law as a statutory, doctrinal, and procedural matter.

But current labor antitrust proposals, while fruitful, are fundamentally limited in two ways. First, echoing a broader antitrust policy crisis, they inherit and reinvigorate debates about the current consumer welfare goal of antitrust. The proposals ignore that, as a theoretical and practical matter, employers’ anticompetitive conduct in labor markets does not necessarily harm consumers. As a result, workers’ labor antitrust challenges will face an uphill battle under current law: where consumers are not harmed, labor antitrust can neither effectively police employer buyer power nor fill gaps in labor market regulation left by a retreating labor law. Second, the proposals ignore real synergies between antitrust enforcement and labor regulation that could preempt the rise of employer buyer power and contain its exercise.

This Essay analyzes the limitations of current labor antitrust proposals and argues for regulatory sharing between antitrust and labor law to combat the adverse effects of employer buyer power. It makes three key contributions. First, it frames the new labor antitrust as disrupting a grand regulatory bargain, reinforced by the Chicago School, that segregated labor and antitrust regulation to resolve a perceived paradox in serving two masters: workers and consumers. The dominance of the consumer welfare standard resolved that paradox. Second, it explains how scholarly attempts to invigorate labor antitrust fail to overcome this paradox and ignore theoretical and doctrinal roadblocks to maximizing both worker and consumer welfare, leaving worker plaintiffs vulnerable to failure. Third, it proposes a novel restructuring of labor market regulation that integrates antitrust and labor law enforcement to achieve coherent and effective regulation of employer buyer power. It refocuses labor antitrust claims on consumer welfare ends and relegates worker welfare considerations to a labor law supplemented and fortified by the creation of substantive presumptions and defenses triggered by labor antitrust findings as well as labor agency involvement in merger review.

A Comparative Analysis of States’ Civil Service Reforms

Source: National Academy of Public Administration for the State Chamber of Oklahoma Research Foundation, January 2020

From the summary:
The State Chamber of Oklahoma Research Foundation, an initiative of the Oklahoma State Chamber, engaged the National Academy of Public Administration (the Academy) to review civil service reforms in six states—Texas, Georgia, Florida, Tennessee, Utah, and Wisconsin—highlighting promising practices, lessons learned, and reform options that promote accountability, efficiency, transparency, and fairness in the states’ management of public employment.

The Academy’s observations are presented throughout the report. Chapter 1 and 2 provide needed background on the project scope, methodology, and the current civil service system in Oklahoma. Chapter 3 provides a detailed analysis of efforts to reform civil service and human resources (HR) policies and processes in the six other examined states.Chapter 4 presents the key observations from these case studies as well as some illustrative promising practices the team observed in additional states…..

Tax Break Tracker

Source: Good Jobs First, 2020

Discover How Much Revenue Governments in the United States Lose Every Year to Tax Abatement Programs

TAX BREAK TRACKER is the first national search engine for tax abatement disclosures per Statement No.77 of the Generally Accepted Accounting Principles (GAAP) for governmental entities – set forth by the Governmental Accounting Standards Board (GASB). For more information about this new accounting rule, visit our GASB-77 Resource Center.

This database already includes nearly 20,000 individual entries extracted from Comprehensive Annual Financial Reports (CAFRs) – each represents a reduction in tax revenue due to one or more economic development tax abatement programs as reported by a jurisdiction in a particular year, or the lack thereof: Many jurisdictions failed to comply with GASB 77.

Search by state or local governments from the drop-down menus below to find out the cost of economic development incentive programs to public services. For additional explanations, check out this user guide. If you do not see the locality you are looking for, you might find it here in this list of localities that failed to disclose their revenue losses: 1/6/2020

Union Membership Byte 2020

Source: Hayley Brown and Hye Jin Rho, Center for Economic and Policy Research (CEPR), January 22, 2019

From the abstract:
CEPR’s annual Union Membership Byte gives an in-depth analysis of union membership by sector, gender, race, ethnicity, age, education, nativity, industry, occupation, and by state (including the District of Columbia). The decline in Black union membership stood out amid declines in overall unionization rates in both the private and public sectors. The overall union membership rate fell to 10.3 percent, dropping by 0.2 percentage points between 2018 and 2019. This represents a loss of 170,000 union jobs. The union membership rates for both private and public sector workers fell for two consecutive years. These reductions reflect a downward trend that has persisted over the last several decades in the US. Although Black workers remain the most heavily unionized racial group at 11.2 percent, they experienced the largest decline in membership in 2019, losing 215,000 members. In comparison, unionization rates for whites fell to 10.3 percent, Hispanics fell to 8.9 percent, while Asian unionization rates rose to 8.8 percent.

Related:
Press Release

Does Administrative Burden Influence Public Support for Government Programs? Evidence from a Survey Experiment

Source: Lael R. Keiser, Susan M. Miller, Public Administration Review, Volume 80 Issue 1, January/February 2020
(subscription required)

From the abstract:
Research indicates that administrative burden influences the behaviors and views of clients and potential clients of government programs. However, administrative burden may also shape mass attitudes toward government programs. Taking a behavioral public administration approach, the authors consider whether and how exposure to information about administrative burden embedded within eligibility‐based programs influences citizen favorability toward those programs. It is hypothesized that if information about the existing screening mechanisms is highlighted and made salient, this will lead to greater approval of eligibility‐based programs. This expectation is evaluated using a survey experiment that explores administrative burden in the Temporary Assistance for Needy Families (TANF) program. The evidence shows that being exposed to information about administrative burden increases favorability toward TANF and its recipients, though these effects are conditional on party identification. The results provide insight into a potential consequence of administrative burden, showing the way in which information regarding burden can shape citizens’ support for eligibility‐based programs.

Evidence for Practice
– Public managers in social welfare programs face challenges in gaining public support because of the stigma associated with these programs.
– The evidence suggests that giving the public information about program screening improves views toward welfare programs.
– Increasing awareness about program screening processes may be beneficial. However, public officials should consider potential trade‐offs, such as discouraging applications.

Administrative Easing: Rule Reduction and Medicaid Enrollment

Source: Ashley M. Fox, Edmund C. Stazyk, Wenhui Feng, Public Administration Review, Volume 80 Issue 1, January/February 2020
(subscription required)

From the abstract:
Administrative burden is widely recognized as a barrier to program enrollment, denying legal entitlements to many potentially eligible individuals. Building on recent research in behavioral public administration, this article examines the effect of voluntary state reductions in administrative burden (administrative easing) on Medicaid enrollment rates using differential implementation of the Affordable Care Act. Using a novel data set that includes state‐level data on simplified enrollment and renewal procedures for Medicaid from 2008 to 2017, the authors examine how change in Medicaid enrollment is conditioned by the adoption of rule‐reduction procedures. Findings show that reductions in the administrative burden required to sign up for Medicaid were associated with increased enrollments. Real‐time eligibility and reductions in enrollment burden were particularly impactful at increasing enrollment for both children and adults separate from increases in Medicaid income eligibility thresholds. The results suggest that efforts to ease the cognitive burden of enrolling in entitlement programs can improve take‐up.

Evidence for Practice
– The administrative burden associated with enrolling in social safety net programs in the United States imposes high costs on applicants. As a consequence, many eligible individuals do not receive the benefits that they are lawfully entitled to.
– Insights from behavioral economics, including streamlining of the enrollment process and automated benefit determinations, can be effectively employed—in some cases—to reduce the cognitive burden associated with program enrollment processes and increase take‐up of benefits.
– States that have implemented simple changes to enrollment processes, including administrative verification of income and real‐time decision‐making, have seen greater increases in Medicaid enrollments than those that did not implement such changes.

Thick Red Tape and the Thin Blue Line: A Field Study on Reducing Administrative Burden in Police Recruitment

Source: Elizabeth Linos, Nefara Riesch, Public Administration Review, Volume 80 Issue 1, January/February 2020
(subscription required)

From the abstract:
Police departments struggle to recruit officers, and voluntary drop‐off of candidates exacerbates this challenge. Using four years of administrative data and a field experiment conducted in the Los Angeles Police Department, the authors analyze the impact of administrative burden on the likelihood that a candidate will remain in the recruitment process. Findings show that reducing friction costs to participation and simplifying processes improve compliance, as behavioral public administration would predict. Applicants who were offered simpler, standardized processes completed more tests and were more likely to be hired. Later reductions to perceived burden led to an 8 percent increase in compliance, with a 60 percent increase in compliance within two weeks. However, removing steps that would have allowed for better understanding of eligibility kept unqualified candidates in the process for longer, reducing organizational efficiency. These results extend the field’s understanding of how administrative burden can impact the selection of talent into government.

Evidence for Practice
– Simplifying recruitment processes is associated with a reduction in voluntary drop‐offs in police recruitment.
– Removing stages in the process that allow for better self‐evaluation may increase learning costs, shifting unqualified candidates to later stages in the selection process.
– Participation in expedited testing, in which applicants can complete more than one assessment per day, is correlated with higher persistence through the recruitment process and higher applicant quality.

Why Public Employees Rebel: Guerrilla Government in the Public Sector

Source: Gary E. Hollibaugh Jr., Matthew R. Miles, Chad B. Newswander, Public Administration Review, Volume 80 Issue 1, January/February 2020
(subscription required)

From the abstract:
Employee recalcitrance and employer reprisal are ever‐present conditions in public service. Yet we have limited knowledge of the forces that move administrators away from acquiescence and toward antagonism. The authors follow the theoretical thrust of behavioral public administration to better understand administrative behavior by targeting the determinants of guerrilla government actions. They do so by presenting the results of a conjoint experiment embedded in a survey of federal bureaucrats. Findings show that decisions to pursue guerrilla activities are conditional on a multitude of factors—namely, the bureaucrat’s personal views of the directive as a policy solution, the compatibility of the directive with the bureaucrat’s ethical framework, the status of the person issuing the directive, and the probability that the directive might cause harm to others. Notably, these decisions generally are not affected by the probability of retribution or the expected type thereof. However, they are affected by the magnitude of harm that may ensue if orders are obeyed and not resisted.

Evidence for Practice
– Ethics matter. When employees see that a policy might contribute to considerable human suffering, the likelihood of guerrilla government activities (“the actions taken by career public servants who work against the wishes—either implicitly or explicitly communicated—of their superiors”) increases.
– Managers should seek to persuade employees of the moral fabric of their decisions, which is one option that may curtail guerrilla government behaviors.
– Managers should be aware that the probability of punishing employees does not significantly deter their acts of guerrilla government.
– Managers should also be aware that the type of retribution employees may suffer does not significantly deter their decision to engage in guerrilla activities.

Taxation by Citation? Exploring Local Governments’ Revenue Motive for Traffic Fines

Source: Min Su, Public Administration Review, Volume 80 Issue 1, January/February 2020
(subscription required)

From the abstract:
Anecdotal evidence suggests that local governments may have a revenue motive for traffic fines, beyond public safety concerns. Using California’s county‐level data over a 12‐year period, this article shows that counties increased per capita traffic fines by 40 to 42 cents immediately after a 10 percentage point tax revenue loss in the previous year; however, these counties did not reduce traffic fines if they experienced a tax revenue increase in the previous year. This finding indicates that county governments probably view traffic fines as a revenue source to offset tax revenue loss, but not as a revenue stabilizer to manage revenue fluctuation. This article also finds that low‐income and Hispanic‐majority counties raised more traffic fines. Counties that generated more revenue from the hotel tax—a tax typically paid by travelers and visitors—raised more traffic fines, indicating a possible tax‐exporting behavior by shifting the traffic fine burden to nonlocal drivers.