Topics of Discussion:
Thomas: Hello and welcome to Opening Arguments, this is episode 465 and I’m Thomas, and that’s Andrew, how’re you doing sir?
Andrew: I am fantastic, Thomas? How are you? Still not a cat! [Laughs]
Thomas: Still not a cat.
Andrew: How’re you doing?
Thomas: And we are not talking about he who shall not be named. I’m excited for what is sure to be a classic OA deep dive the way the show should have been in the alternate universe where Hillary was President or something. [Laughs] I can’t wait, let’s see, I don’t even think we have any announcements or anything.
Andrew: No, I can’t wait, let’s get to it!
Thomas: Alright, here we go.
Breakin’ Down the Law – Amazon Unionization
[1:52.9] [Segment Intro]
Thomas: Andrew, how do we unionize Amazon?
Andrew: Well, we are getting a masterclass in that right now from a union called The Retail Wholesale and Department Store Union. This is super fascinating! Strap in, you’re gonna learn about the National Labor Relations Act. I learned so much researching this story, and those are always the most fun for me to bring to you because I get to share the stuff that I didn’t know. So I knew that Amazon was one of the largest employers in the United States, they are the second largest employer. They employ 800,000 people, of whom almost all are classified as essential workers, that is they-
Andrew: -have been working throughout this pandemic. I teased this last week, I didn’t know this at all. Amazon has fulfillment centers across Europe, virtually all of their employees not in the United States are unionized.
Thomas: Oh! [Feigned Outrage] Well then I bet it’s $4,000 dollars to deliver you a-
Thomas: Or are you gonna tell me it actually works out okay?
Andrew: Yeah, it works out just fine.
Thomas: Oh, okay.
Andrew: Amazon has had, as far as I can tell, one vote as to whether any element of its workforce would unionize. I’m gonna explain the minutia on that in a minute, it was in 2014 and it lost. It was a group of mechanics and technicians who worked in a Delaware facility for Amazon. Thomas, I don’t expect you to get the margin, I’m just looking for the total vote total here, how many people do you think voted – Amazon employees – voted in that 2014 election?
Thomas: Am I looking for a percentage or am I looking for a number?
Andrew: Yeah, number. Total number of votes.
Thomas: Out of 800,000 people, potentially.
Andrew: Right, right.
Thomas: Uh, 3,412.
Andrew: Yeah, so the vote was 21-6.
Thomas: [Laughs] Wait, what?
Thomas: Jeez, that’s even worse! I thought I undercut it.
Andrew: I thought – I knew you were gonna be like “well it’s either gonna be really big or really small.”
Thomas: Talk about porked exams!
Andrew: [Laughs] Yeah! It was – the way that it works under the National Labor Relations Act is that if you are a union and you have an identifiable subpopulation of an employer’s workforce, and that is called a bargaining unit, and you say “I think these guys all have the same interests in common,” and you get 30% of them to sign a letter, then you can petition the National Labor Relations Board to hold an election of the entire bargaining unit. If they vote greater than 50% then you get to go in and be the union that represents them. An issue that is frequently debated in NLRB cases is what’s a relevant bargaining unit?
You can imagine that for purposes of certain unions you might wanna treat different Amazon subpopulations differently. The drivers may-
Andrew: -have different interests than the stockers.
Thomas: Right. And they do.
Andrew: They both have very different interests, yeah, than management.
Andrew: Put a pin in that. The only vote that Amazon has ever had in its entire history in the United States whether to unionize that was authorized by the NLRB and overseen in accordance with the National Labor Relations Act was for the International Associations of Machinists and Aerospace Workers, and it was whether to have this tiny group of mechanics and technicians that worked at their Delaware facility authorize the IAMAW to represent them, and they voted that down 21-6 seven years ago, January 15th, 2014, a little over seven years ago. If you ask Amazon, well, kind of seems like 27 votes out of 800,000, seems low?
Thomas: Statistically insignificant sample size, honestly.
Andrew: Yeah, right. Their argument is “we’re good to our workers. In 2018 we passed a $15 an hour minimum wage across the company, so you don’t need to unionize.” That is the position they have taken very publicly. In opposition to that, you might point out a number of different things. The first thing you would probably point out are conditions on the job, so put a pin in that, we’ll come back to that one.
You also might unionize so that individuals aren’t forced to sign take it or leave it contracts that have what is a blatantly unenforceable noncompete agreement. That is 18 months after you quit or are fired from Amazon, you can’t work in any competitive business anywhere in the world. Don’t take legal advice from a podcast, but there’s no way that’s enforceable. Noncompete agreements are meant to prevent you from taking legitimate techniques that you have learned at you prior employer and using them on behalf of your next employer. For stacking shelves-
Andrew: You know, that’s just not-
Thomas: And another company they put the shelves on top of the things.
Thomas: But in Amazon they put the things on top of the shelves – you can’t take that important trade secret.
Andrew: Yeah, that’s right. In addition to the noncompete, one of the reasons I had to dig a lot to figure out where those contracts are, and my source is The Verge, which is not a topline source for me usually, is because in that same contract are nondisclosure agreements.
Andrew: One of the counterarguments of why you might want a union is hey, you have an employer that is trying to curtail outside knowledge about its employment conditions. We’ll talk about the conditions, but as a result of that in September of 2020 reports surfaced – [Laughs] and the reason they surfaced is because somebody was scanning job sites, online, not facilities, but online web portals for new jobs, and Amazon tried to hire an intelligence analyst.
Andrew: That job posting went viral, Amazon was asked about it and they said “oh, we posted that in error,” but the idea was to have somebody who would oversee their efforts to figure out if employees were unionizing or not. That job went unfilled, but what did not was – I will link it in the show notes, Amazon is using both from its corporate headquarters and installed on its employees desktops, sophisticated software that spies on what its employees are doing off the job.
Andrew: In closed Facebook groups and other online organizing, and that software delivers a report back to corporate identifying, among other things, drivers who (quote) “were planning to strike or protest against Amazon” (end of quote) or participated in Facebook groups that had certain codewords within the Facebook groups that were linked to potential labor organization. Those codewords were things like “fair wage.” Which, by the way, yeah! We talk about fair wage in our Facebook community all the time! If you work for Amazon and you’re a member of the Opening Arguments Facebook community, you may have gotten a report about you-
Thomas: Holy shit.
Andrew: -sent back to Amazon Corporate. The Guardian, September 27th of last year, published an ex pose, Amazon owns, among many many other things, they own the Whole Foods chain of grocery stores and a secret training video leaked out from Amazon Corporate post-merger, explaining to Whole Foods how to prevent their workforce from unionizing.
There are very fine people on both sides, so we wanted to present the full “maybe no one ever unionizes at Amazon because the pay is fantastic and the working conditions are great” or maybe because the company has made it a top priority in the United States to persuade its employees not to unionize, we’re gonna talk a little bit more about that. But, put a pin in all that stuff for the time being.
Now I want to tell you about the specific outfit that’s going on right now. On March 29th of 2020, right as the pandemic was taking hold, pandemic has been super good for Amazon’s business, as we all know.
Andrew: They opened a brand new facility, it is called the BHM1 facility in a town called Bessemer, Alabama. It has 6,000-plus employees. The conditions in this fulfillment center are, I’m gonna quote from the The American Prospect, but I have multiple sources on this. Let’s start off with Sara Marie Thrasher, who says (quote) “They work you to death.”
Andrew: She “worked as ‘stower,’ an employee who stocks items in warehouses before they’re ordered by customers,” so she offloads from trucks, stores them in the warehouse before they have to go out as purchased. She worked there for two months, seven weeks, October and November of 2020 before being fired by email with no prior warning. Ms. Thrasher says, “It’s crowded. Sometimes you can’t even find a station. We would get reprimanded if our stowing time was above 20 seconds or higher, with rates needing to be done in 8 seconds per item. Thrasher explained that bathroom breaks were available, but that taking one would negatively impact your stowing rate, and if there were no stowing stations available, she would be placed in different departments without any training.”
She’s there putting packages away, you’re allowed to go to the bathroom-
Andrew: But at the end of the day they figure out, yeah, we’ve seen reports that it was prohibited and this is a way of effectively prohibiting it, if they take total number of packages divided by total amount of time you’re on the job, and going to the bathroom counts as being on the job, you can see how that would be bad.
I’ll give you another former Stower, Byron Tollison, worked there from August to October of 2020. Said “starting wage of $15 an hour was enticing, but the work environment was awful. (Quote) ‘It was almost set up like a sweatshop … Turnover rate is extremely high, where they would have at least 50 new people coming through every two weeks.’”
Okay, that’s the reports from inside the facility, and what happened? What happened is the Retail, Wholesale, and Department Store Union decided to target a subset, the stowers part of that, a subset of the people who worked at this BHM1 facility, and what you have to do, as I said before, under 29 U.S.C. § 159(e) is you’ve got to get 30% of the relevant workforce, of the bargaining unit, to sign your petition. Once you get over 30% you can then, under the law, deliver it to the National Labor Relations Board. What they do is they immediately send notice to the employer, they say “hey, we’ve got a petition, here’s what it is, and we’re gonna hear from both of you then we’re gonna decide if this is something where we are required by the law,” (by the National Labor Relations Act) “to hold a vote. If we’re required to hold a vote, then that will be by secret ballot and it will be administered by the NLRB so as to be fair.”
I’m gonna link, this is the NLRB’s own reports that go back from 2010 to 2019 and although union activity is way down in 2019, which maybe you could infer is a Trump thing, otherwise the activity is relatively constant and the ratios are relatively similar. It looks something like this: You would have petitions like this filed about 2,000 per year. Of those 2,000 a tiny handful get dismissed on motions to dismiss. How do they get dismissed on a motion to dismiss? If you don’t have enough signatures, if there’s some kind of technical defect. When I say a tiny fraction, I mean, you know, in 2018 17 of them. The most in the past decade was 2011 when 43 were dismissed. A tiny, tiny fraction, 1 to 2% every year get dismissed.
A rather large fraction are withdrawn, about a quarter, a third to a quarter-
Andrew: -of these petitions are withdrawn every year, and I wanted to figure out kind of how that happened, and that’s what got me down the rabbit trail to this Amazon case.
Now let’s go back. On November 20th of 2020, after spending some time – so facility, the BHM1 facility opens up March 29th of 2020. You can imagine how difficult it is to get those workers to come over and sign your petition during COVID, but the Retail, Wholesale and Department Store Union assembled. They defined the stowers, the people they wanted to represent. They wanted to exclude truck drivers, seasonal employees, temporary employees, supervisors, managers. They defined their relevant bargaining unit at 1,500 people. Under the law they need 30%, they need 450 signatories. They got that by November 20th, so the NLRB sends out a letter and says “hey, we’ve received a petition, appears valid on its face, has the requisite number of signatures, Amazon, what’s your response?”
Then Amazon did something that employers typically do, and this is a weird sort of double or nothing, but it makes sense to me. They said “oh, the 1500 people, that’s not a sensible bargaining unit. It should be all of our employees.”
Thomas: Are they just trying to make, like it’s impractical to get all of the employees? What is this gambit?
Andrew: The reason you would do that is think about once the Union has defined its own bargaining unit they have to get 30% to file the petition.
Andrew: Yeah, you’ve got 1500 people, you’ve already signed up 450 people. To win the election you only need to get to 750, so you only need to persuade 300 more people. If Amazon can expand out the number of people who are eligible to vote-
Andrew: -then you need to persuade 3,000 people instead of 300. It turns out that this is, in fact, a fairly common tactic that employers use. They say hey, relevant pool should be much larger and all of these other people should be eligible to vote, then they are allowed to have in person meetings at the company that says okay, you’re gonna hear from a union, but here’s all the reasons why you shouldn’t join a union. They can then start lobbying their own people not to join the union. The RWDSU, the Union, called their bluff and they said “okay, sure!”
Andrew: You wanna put the entire population, the entire workforce of 6,000 people at this facility up for a vote? We’ll take that vote, absolutely. Then – I think Amazon was kind of surprised by that. Then the argument shifted to well, what kind of a vote should we have? Tell me if this strikes you as familiar at all.
Andrew: The Union wanted to have vote by mail.
Andrew: Their view was “we’ve got a goddamn pandemic going on, voting by mail is a long recognized procedure at the NLRB, and let’s do that.”
Thomas: Can you even just set something up online or something?
Thomas: I mean…
Andrew: Here’s the thing, again, these are overseen by the NLRB. As you might imagine, because – well, it’s not hard to imagine one that would be grotesquely unfair, like a thing where you can either put your ballot in the “yes” box or the “no box,” and your boss sits up at the front of the room.
Andrew: [Laughing] Right? NLRB has to oversee it, I don’t know if they have done it online; they’re not doing it online in this case. I would be a little bit worried about hacking? But yeah, it’s worth putting a pin in that and looking for ways to modernize it. Amazon thought differently. [Laughs] Amazon said “no no no no, look, there’s all kinds, the response rates are lower and there are more errors, and there’s more fraudulent ballots.”
Thomas: Yeah, yeah.
Andrew: Let’s have an in person vote.
Thomas: Plus Russia’s probably trying to tamper with our union vote over here.
Andrew: I’m going to read you what Amazon proposed.
Thomas: Uphill in the snow both ways.
Andrew: [Laughs] Yeah. “The Employer proposes the parking lot adjacent to the facility as the voting location. The Employer asserts that it can erect a tent equipped with heating and lighting to cover … 3,600 square feet. The size of the tent may be adjusted as needed or desired, and the sides may be raised or lowered to control the flow of fresh air. Voting would take place between 6:00 a.m. and 11:00 a.m. and between 1:00 p.m. and 6:00 p.m. for up to four days.
In addition to providing all requested health certification and personal protective equipment, the Employer is willing to make free COVID testing available to election participants; conduct temperature screening [using] thermoscan technology; make its digital ‘Distance Assistant’ or human social distancing team available to monitor the line leading to the voting tent; provide pass-through boxes or vending machines to ensure that ballot distribution is contactless; provide restroom trailers so that Board agents need not enter the Employer’s facility; arrange for food delivery services [that would be] at a separate tent near the voting area so that Board agents need not seek meals elsewhere; arrange for Board agent transportation to the … location using drivers who have received negative COVID tests; arrange for a private, independently sanitized floor or wing of a local hotel for Board agents staying in the area overnight; and/or arrange for Board agents who wish to stay on-site in recreational vehicles during the course of the election.”
Thomas: That sounds like a huge pain.
Andrew: That sounds like an amazing pain to not … just… mail out the ballots, which is what the Union suggested happen.
Thomas: Mm-hmm. Well, who gets to decide? If the Union says one thing and the company – I don’t even know why the company has a say in how the people might get to vote about how to unionize. Is that just because of the capitalistic nightmare hellscape we live in, or?
Andrew: [Laughs] It has to do with a prior decision of the NLRB called Aspirus Keweenaw, which was a November 2020 decision about how to hold elections during the pandemic. It basically says that it’s up to the NLRB to pick, to make a decision, as to how to implement the requirements of voting in a way that’s consistent with protecting employees. It isn’t that the employer gets to say, it’s that they make dueling proposals and they argue to the NLRB which one you should choose.
By the way, this is why it’s important who sits on the NLRB, right?
Andrew: You can imagine that different folks may view this differently based on the overwhelming similarities this has to the position taken by the two major parties. In fact, the NLRB held in another decision, a decision called Daylight Transport from August of 2020 that concerns about potential disenfranchisement of voters could be relevant to whether a mail ballot election is appropriate. In other words, the kinds of arguments that are being raised against voting by mail have been looked on in some cases favorably by the NLRB.
Here, this is not great that their primary objection to the mail ballot election being raised by Amazon was that it would not be able to (quote) “hold certain employee meetings at any time within 24 hours of when the ballots are mailed until the ballots are counted. The employer argues that this unfairly gives the Petitioner (the Union) a greater opportunity to communicate with employees where the employer has ceased holding large in-person meetings.” The NLRB in reviewing that, rather dryly says, “I note that the employer has ceased holding large in-person meetings for the same [Laughing] reasons that a manual election is inappropriate, namely a pandemic. I further note that many methods of digital communication are available in equal measure to the employees, the petitioner, and the employer.”
I gave away the conclusion there while reading, but the NLRB rejected those arguments, and they said no, you’re gonna have a vote by mail election.
Thomas: Oh good!
Andrew: That vote by mail election began last Monday, February 8th.
Andrew: If you’re thinking “how does an independent body that is trying to make sure that voters aren’t disenfranchised, to hold the free-est, fairest elections possible?” Your ballot must be received in an envelope that is signed, okay, if not it’s void and you get a notice that says your ballot was thrown out, but the ballots must be returned to the National Labor Relations Board Region 10 Office by the close of business on Monday, March 29th, 2021. Seven weeks of voting is what an independent, nonpartisan body, trying to count the ballots of 6,000 people [Laughs] decided was appropriate to balance out those concerns. It has begun, and we’re gonna track it because this would be the very first inroads of any union in any Amazon facility whatsoever. Really, really exciting.
Amazon is allowed to communicate with its employees-
Andrew: -during the election.
Andrew: There is not the equivalent of the “no electioneering” rules.
Andrew: When you’re in line- yeah! [Laughs] Amazon is communicating with its employees.
Thomas: There should be the equivalent of no electioneering rules.
Andrew: I think that’s right. Here’s who’s eligible to vote: All employees at the facility who have worked an average of four hours or more per week during the 13 weeks immediately preceding the eligibility date for the election, that is February 8th.
Andrew: Part time employees as well as full time employees. They vote whether they wish to be represented for purposes of collective bargaining by the Retail, Wholesale and Department Store Union. If that fails they can try and organize again with a different union, but it would obviously – you see the expense the Union has had to go to to get to this point, it would be a significant deterrent if they wind up losing, and you’d have to go back to the beginning and get all the signatures and everything else.
In the meantime, [Laughs] Amazon has engaged in a bunch of different ways in which it wants to communicate with its workers about the dangers of joining a union. Flyers posted in the bathrooms, okay, that seems fine. You get to put up a little letter that says “hey.”
Thomas: Well, yeah, employees aren’t using ‘em anyway, so…
Andrew: Right! [Laughs]
Thomas: Why you posting stuff in the bathroom? You don’t allow your employees to go to the bathroom, so, fine! Post away!
Andrew: Yeah, how about mandatory meetings? Sometimes as often as five times a day to argue about why-
Andrew: -unions would be worse off.
Thomas: Oh my god.
Andrew: Why you’d be worse off with a union. They’ve launched a website called “Do it Without Dues,” I want to quote from that website. (Quote)-
Thomas: Great, anti-union propaganda is the best. Here we go.
Andrew: Yeah. “Why pay almost $500 in dues? We’ve got you covered with high wages, healthcare, vision, and dental benefits, as well as a safety committee and an appeals process.” Mind you, the benefits only apply to the full time employees.
Thomas: I was gonna say, cool, where are these high wages and healthcare? Where is that? How do I get that if I’m a-
Andrew: But again, the same perverse incentive that underlies the Affordable Care Act is that young workers making, and here, $15 dollars an hour, which should be minimum wage, people making minimum wage, people at the margin, overvalue the take home pay because so much of it has to go to fixed expenses like, you know, food and shelter. Saying your paycheck is gonna go down $500 to somebody making $15/hr. is a pretty strong argument.
Andrew: Little bit of some reports here, this is from The Bangkok Post, different source here, I’ve got a bunch of these. (Quote) “Joseph Jones, part time worker at the Bessemer warehouse, said ‘there are no weekly meetings to go over how you’re feeling and how you’re mentally handling the pandemic, but we have mandatory weekly meetings to go over how bad a union would be. It’s almost like an abusive relationship, where the abuser keeps saying ‘I’m sorry, don’t go to the police, I will be better, we don’t have to go to a third party.’”
That’s some of the reporting on the ground. Bernie Sanders went down and said, (quote) “it cannot be overstated how powerful it will be if Amazon workers in Alabama vote to form a union.” The good news? I talked about the statistics before, this is from the NLRB. Once you get to an election, unions win about 2/3 of the time.
Thomas: Hmm. Cool!
Andrew: Yeah, like I said, it’s about 50/50 from the filing of the petition, but that’s because of the petitions that get dismissed or withdrawn because the NLRB will say “okay, yeah, the relevant bargaining unit is this huge group” and the labor union is like “yeah, we’re not gonna go through that,” or there’s some other technical error. But no, when you look at, over the last 10 years, unions win about twice as often as they lose when you go to a full election. This is really, really interesting, it’s really kind of on the forefront, and it helps, I think, flesh out that larger question of we have a public facing fight for increasing the minimum wage and for having a living wage in this country, but this goes to show that living wage is not where the questions end. Yeah, that’s up. Will Amazon employees become members of the Retail, Wholesale and Department Store Union? We will know in early April. There you go!
Thomas: Okay, just to clarify, though, Andrew, this is just at one specific Amazon location or whatever? Shipping something? It’s not all across the United States?
Andrew: Yeah, that is absolutely right. Really, really good question. This is about that particular Bessemer facility, the BHM1. Everybody – we do not have clothes shop unions in this country anymore. That means everybody gets an up or down vote on “will I be represented by this union?” Those 6,000 people, if they vote yes, then they will be represented in collective bargaining by the Union, but the other 794,000-
Thomas: [Laughing] Yeah, I was gonna say.
Thomas: But is it a roadmap for them?
Andrew: It’s absolutely a roadmap!
Andrew: It says yeah, we were able to break through this stranglehold. Then you would think enthusiasts of the free market would look and would say, well, are employees doing better off in Bessemer, Alabama being represented by a collective bargaining unit? Or are they doing better off just one at a time take it or leave it elsewhere in the country?
One of the salutary effects is that in trying to make the case – Amazon is gonna continue to have these meetings and, you know, the propaganda and everything else, but one of the things that’s really beautiful about that is suppose this union goes through in Alabama, and then there’s an effort to unionize at another Amazon large fulfillment center? They’ll roll out the same propaganda, and they will need to show that conditions at X facility are superior to conditions at the Bessemer facility, which often provides powerful incentives for internal change that go beyond where their incentives are right now, which is Amazon changes things when they get enough bad press about, you know, how people are wearing diapers to work and that sort of thing.
I don’t want to oversell what 6,000 people, and I’m really glad you asked the question that way, but it is a foot in the door, it is a roadmap for the future, and it would signal unions, hey, you can get inside of Amazon. That’s a big thing.
Thomas: Alright, well that’s exciting stuff. Let’s see, I think you’ve left enough time for a mini wild card round.
Andrew: Yeah! Let’s do a tiny one.
Power Sharing Agreement Update
Thomas: We’ve got some updates on the power sharing agreement.
Andrew: Because I want to talk about committee assignments, I want to tell you that the power sharing arrangement that was entered – remember last time we talked about this, the text was embargoed in advance of the Senate consideration on impeachment. That’s now out, it is Senate Resolution 27 and it is almost word for word identical to Senate Resolution 8 from 2001. Remember, that was an agreement that favored (quote, unquote) “the Republicans.” That was George W. Bush and Vice President Dick Cheney breaking the ties.
Again, if you were skeptical, the Democrats got the exact same terms in the exact same words that the Republicans got for Trent Lott in 2001. I’m very, very pleased with this. I continue to think, I’ve said this before, the 2001 power sharing arrangement was only in effect for about 6 months because Jim Jeffords, Republican in Vermont, declared himself an independent-
Andrew: -and caucused with the Democrats, stopped caucusing with the Republicans, began caucusing with the Democrats. Lisa Murkowski has said she will not become a Democrat, but that does not-
Thomas: Yeah, I’m not holding my breath on that one.
Andrew: Yeah, but that does not prevent her from becoming an independent and caucusing with the Democrats.
Thomas: True, true. Then she’d go straight to Bernie Sanders! It would just be her and Bernie-
Thomas: And also technically independent, is it just the – I feel like that guy from Maine maybe?
Andrew: Yeah, Angus King.
Thomas: Angus King, yeah.
Andrew: Angus, good ol’ Mainer name.
Thomas: Yeah, I feel like if you’re gonna join independents join those two!
Andrew: Go, yeah, might as well go all the way to socialist, I’m with you. In addition to Senate Res. 27 that create the rules, Senate Res. 28 staffed out those committees. We have seen some of these reports, but I want to tell you, there are progressives everywhere in the power structure of the Senate. The reason we haven’t seen that so far is, again, the Senate’s kind of busy with the impeachment thing right now, but listen to these folks.
It’s Sherrod Brown chairing the Banking, Housing, and Urban Affairs Committee; Maria Cantwell on Commerce, Science, and Transportation; Tom Carper on The Environment; Ron Wyden on Finance; Gary Peters, who is the Junior Senator from Michigan – I didn’t know a whole lot about him, so I looked him up on Progressive Voters Guide and they love this guy! He’s the Chair of the Homeland Security Committee. If you’re sitting there thinking “okay, well, whatever.” Kyrsten Sinema is on that committee, a moderate conservative Democrat from Arizona. She’s way down the list. If you’re sitting there thinking did Joe Biden play picksies-choosies, if you wanted to you could have put Sinema as chair of Homeland Security. Michigan, not a lot of border crossings into Michigan.
Andrew: I read that as a pretty significant signal. And of course, Bernie Sanders as Chairman of the Committee on the Budget.
Here are the Negatrons, here are the things you can be kind of mad at, if you want. Amy Klobuchar – again, we’ve been back and forth, her voting record is, I think, more progressive than her campaign in 2020.
Thomas: Mm-hmm, yeah.
Andrew: But, Amy Klobuchar chairs the Committee on Rules and Administration.
Thomas: Ah, great! There goes the countr- naw, I don’t know what that does.
Andrew: There goes the country, yeah. Mark Warner, pretty conservative, moderate, centrist Democrat, chairs the Intelligence Committee.
Thomas: Well, but honestly, even before you get into all of this, there aren’t even that many progressive Senators to go around, you know? It’s not like “oh, a true progressive President would put AOC on the” – it’s like well, there’s only so many Bernie’s in the Senate. There’s, you know? How much better could you do? Because you need a bunch of different Senators chairing different things, right?
Andrew: Some of them have interests that overlap and, you know, let me give you a really, really good example of that. I told you Ron Wyden – and again, Ron Wyden, one of the 10 most progressive Senators, Dem- … Senators, chairs the Finance Committee. Well, Elizabeth Warren kind of would like to also be on the Finance Committee, right?
Andrew: You could say well, maybe we’ll move her over to the Budget Committee, but Bernie Sanders is chairing the Budget Committee. It is – you could take – I think if you asked Elizabeth Warren would you rather be on the Finance Committee and have the opportunity to shelter through the 2% wealth tax, or would you rather be chairing, let’s say the Committee on Energy and Natural Resources, then she’s probably gonna take the former, and that would leave, again, you want to pick the worst one? There are only two that I think you could really make an issue about.
Thomas: Well, we’re talking Democrats. The worst Democrat is Kyrsten Sinema, in my opinion.
Thomas: What’s she got? Anything?
Andrew: Yeah, she is in the middle on Homeland Security.
Thomas: Eh, alright, fine.
Andrew: She is on – way down the list on Banking, Housing, and Urban Affairs, and she’s way down the list on Commerce, Science, and Transportation.
Thomas: What did Manchin get for his troubles? [Laughs]
Andrew: Yeah, Joe Manchin is chairing the Committee on Energy and Natural Resource.
Thomas: Oh. [Sighs] That kind of sucks.
Andrew: I agree.
Thomas: Hey, but that sounds like we are trying to set up future success by giving Joe Manchin what he might want.
Thomas: That’s how it goes when you don’t get enough Democratic Senators in the Senate.
Andrew: Tom Carper chairs The Environment Committee. It’s not like Manchin chairs The Environment Committee-
Andrew: -and is like “I love coal.”
Thomas: Oh, okay.
Andrew: You can be angry about that one.
Thomas: Honestly, can you? What else are we supposed to do? I mean, on one hand who is gonna criticize Democrats for trying to flatter Joe Manchin a little bit? That’s our only chance of getting anything passed. Is there some other side that’s like “no, you need to punish Manchin” or something? I don’t get what the alternative is.
Andrew: I agree with that, and I would add the other folks on that committee are all folks who are chairing other committees.
Andrew: The Committee on Energy and Natural Resources, Joe Manchin is the Chair, but the additional members are Ron Wyden, Maria Cantwell, Bernie Sanders, [Martin] Heinrich, Mazie Hirono, Angus King, Cortez Masto, Kelly, and Hickenlooper. You also have some moderates on there, but there’s not a great choice.
Andrew: You can’t Chair multiple committees. [Martin] Heinrich is slightly to the left of Joe Manchin, but that would be a huge slap in Joe Manchin’s face. It’s clear to me he went to Chuck Schumer and said “I’d like to Chair the Committee on Energy and Natural Resources,” and they worked it out.
Thomas: Yup, whatever you want, buster. West Virginia gets what it wants right now.
Thomas: Have I mentioned how good looking you are, Mr. Manchin?
Andrew: You want one other Negatron, I would be – I’m a little bit Negatron-y on I have a man crush on Sheldon Whitehouse and the judiciary is, in order, Dick Durbin, who’s 200; Pat Leahy, who’s 200; Dianne Feinstein, who’s 300-
Thomas: Oh my god.
Andrew: Then Sheldon Whitehouse. Then Klobuchar, Coons, Blumenthal, Hirono, Booker, Padilla, and Jon Ossoff got assigned to that committee.
Andrew: You know, the Judiciary is a really, really important committee. In an ideal world I would rearrange that a little bit, but you know, you can hear it. I’m nitpicking. This is, with the hand we were dealt we are seeing, if you’re trying to figure out in an objective way, and look, I didn’t get to do it on this show, but go listen to Cleanup on Aisle 45, episode 3. I rant about the guy that Joe Biden stuck on his commission on reforming the judiciary. I’m not afraid to call it out and tell you when I think Joe Biden is selling progressives down the river. If you were concerned about Biden and Schumer selling progressives down the river in terms of how they were allocating the Senate, this should make you feel good. This allocation is about as progressive as you could possibly do, and I’m very excited about it.
Thomas: Yeah, that’s what I’m saying is within the-
Thomas: Mathematically this is like trying to arrange the tables at your wedding or something.
Andrew: Right! [Laughs]
Thomas: There’s only so many combinations you can even do according to all these rules, and it’s not like “well why isn’t Bernie Sanders at every table and every single position?” Well, there’s one of him. [Laughs]
Thomas: There’s only so much he can do.
Andrew: And you’re restricted, you can only serve on two frontline committees and three total.
Thomas: Yeah. I’m, you know, I’d be open to hearing criticisms as long as people are actually taking into account what could have been done? But if you’re just whining about it without at all taking into account the structure that has to be met, then it’s not very valuable. But, anyway, that’s cool. Alright, did we do it? [Laughs]
Andrew: We’ve done it!
Thomas: Did we squeeze it all in? Wow!
Andrew: We did it.
Thomas: Nice work. We’ve unionized Amazon and we’ve talked about the- psh! So much accomplishment. We didn’t even mention … former presidents.
Andrew: Yeah, once that thing is gone it’s like there’s room to educate. I love it.
Thomas: That thing, yeah.
Thomas: Yeah, that’s a great description.
[46:48.9] [Patron Shout Outs]
[58:38.9] [Segment Intro]
Thomas: Alright, it’s T3BE answer time, let’s – I’m gonna stick my finger in the wind and see how the porkage is looking- [Laughs]
Thomas: -on this test. A challenging question, but I don’t know that I would say unfair. Let’s see how I did, probably not well.
Andrew: Alright, Thomas, this was about domestic abuse, and it was father lives with the son, the son is an alcoholic. Whenever he gets drunk the son becomes violent and physically abuses the father. One night father hears his son out on the front stoop making what are described as loud, obscene remarks. Father, certain that the son is drunk again and that he’s going to get beaten, then barricades both the front door, takes out a gun. The son discovers that that’s going on and beats down the front door, kicks it down, and as he bursts through the front door the father shot him four times in the chest killing him. We then learn, as stipulated by the question, that the son was not, in fact, drunk, and was not under the influence of alcohol-
Thomas: And somehow we learn that he didn’t intend to harm his father.
Andrew: -or any drug and did not intend to harm his father, yeah.
Thomas: Except for when he kicked down the door.
Andrew: Yeah, we can’t – I mean, that’s a bar exam kind of-
Andrew: -take that issue off the table. Then the father presents the above facts and asks the judge to instruct the jury on self-defense. How should the judge instruct the jury with respect to self-defense? There are really two questions that you need to figure out here.
Andrew: The first is when do judges instruct juries, give jury instructions? Then the second is, is this an appropriate situation? We have A, give the self-defense instruction because it expresses the defense’s theory of the case; that was your choice, A. B, we have given the self-defense instruction because the evidence is sufficient to raise the defense.
Andrew: Then we have two different deny; deny because the father was not in eminent danger; or deny because the father used excessive force. You were between A and D, your deny was D. First, let’s talk a little bit about what jury instructions are. Remember in a trial the judge is the gatekeeper for the law.
Andrew: The jury gets to decide the facts. When you have a law that is contingent upon certain facts, a jury instruction tells the jury what they have to find.
Andrew: They will say okay, if you want to find negligence you must find that the defendant failed to abide by the standard of care appropriate in X circumstances. That lets the jury know okay, we’re finding a fact and how do we then translate that fact into what our verdict needs to be. Here the question is what would the jury instruction be on self-defense? That instruction would be you have the right to use deadly force against someone if they have – there are four elements. One, attacked you in an unprovoked way; Two, that that threatens your imminent injury; Three, that you have used an objectively reasonable degree of force in response; and number Four, you had an objectively reasonable fear of injury or death.
The C and D, I think, I don’t know that they really got it there. I guess you were correct that the questions is “is it an imminent danger because he was not in fact drunk?” No, I mean the guy’s kicking down your door. That is sufficient to cause an objectively reasonable fear of injury or death.
Thomas: That’s what I thought.
Thomas: That’s why I got rid of C.
Andrew: Yup, when coupled, particularly when coupled with the past history of abuse.
Thomas: The past, yeah.
Andrew: This is somebody who beats the clownhorn out of you all the time, it’s reasonable to think they’re gonna do that again. Then, was it excessive force? You sort of paused over this, and I agree if you’re thinking about the deny elements that the excessive force is probably the most.
Thomas: Yeah, he didn’t give any warning, you know?
Andrew: Yeah, you don’t have to. There is no-
Thomas: Oh, okay.
Andrew: When you’re inside your house there is no duty to retreat. You can use whatever force is appropriate.
Thomas: What happens when you share a house with someone?
Andrew: Yeah, well, that was the case here.
Thomas: Exactly, that’s why I asked the question.
Andrew: Right, so both people, if they were the victim of the attack, would have no duty to retreat.
Andrew: They could, you know, (quote) “stand your ground.” In the bar exam when you would look for evidence that the use of force was unreasonable, you would look for something like “the father fired four times into the chest, and then the son turned and ran and the father followed after him and fired three more shots.”
Andrew: Or something like that.
Thomas: Yeah, it’s hard to know what in America is considered [Laughing] excessive force.
Thomas: But I hear ya.
Andrew: That’s how the bar exam would suggest that it’s excessive.
Thomas: Gotcha. This is a longer answer than my guess!
Andrew: [Laughs] Then the question is just does the defense always get to raise self-defense?
Thomas: Are you eliminating D? Is D a good elimination?
Andrew: C and D are both out, yup. C and D are both out.
Thomas: Oh, okay. Goddammit it’s gonna be B. [Laughs]
Andrew: Between A and B the question is do you always get to raise self-defense?
Andrew: Or do you have to show sufficient evidence? And, unfortunately, it’s B.
Thomas: Yeah, okay. I thought about that after. I was like yeah, maybe that is- [Sighs] It does make sense that it’s like well, you can’t raise it just in any abstract situation, there has to at least be some level of evidence sufficient.
Andrew: Yeah, and think about it, that’s right because giving the jury instruction carries with it certain connotations.
Andrew: We would, even in civil cases we – you know, we would argue about this all the time in terms of jury instructions, of like, oh, if you say “you may find that the plaintiff had contributory negligence because X,” well, once you say that then they get to debate over it.
Andrew: If you don’t say that there will be contributory negligence, then the jury is unlikely to come up with that on their own.
Thomas: Yup, I could have gotten this one! Another challenging one, I [Sighs] augh, I looked at the downside but I didn’t look at the other side of it. Yeah. So, B, okay, I get it. Alright. Starting off this new test.
Andrew: How’re we feeling? Non porked?
Thomas: This is a-
Andrew: Fair question?
Thomas: Look, this is a challenging question. I mean, it feels like I could possibly get most of these if I do just the right amount of reasoning, you know. It kind of depends on how many – if all of them are this hard. This feels like a challenging question to me, honestly, not knowing the law. But, you know, seems like I could have gotten there, we’ll see. There’s no way you can know whether or not a test is porked by looking at one question.
Andrew: Oh, fair, fair. Totally.
Thomas: It’s more about – the last test was porked because all ten questions were impossible. They were all the hardest kind of bar questions, there were no freebies. I feel like I went with the freebie answer again, here, because in the past that’s done me okay. Oh, well, you get to raise it because it’s your theory of the case, bada bing, bada boom. You know, no reasoning.
Thomas: That hasn’t gotten me an answer in a very long time, so maybe I need to stop doing that? But again, we’re changing tests so it’s hard to know. But anyway, alright! I didn’t get it, let’s find out who this week’s big winner is, though.
Andrew: Alright Thomas, well a bit of a timely and possibly bittersweet T3BE winner, but the first one I saw get it right on Twitter was Nick Jordan, that is @njordan79, who writes “Answer B. There has to be some evidence to support self defense claims. Answer A would mean the judge always gives the instruction, even if you beat a cop to death with an American flag while storming the Capitol.”
Congratulations on being first past the post, Nick! Everyone, give Nick a follow that is @njordan79 on Twitter. Congratulations, Nick, I think, on being this week’s winner.
Thomas: What an episode. Nice job.
Thomas: That’s our show. Can’t wait for another rapid response Friday. If you need more OA in your veins before then make sure to grab that Stereo app, listen to us every Wednesday, 5 pm Pacific, 8 pm Eastern. That includes this Wednesday. [Laughs]
Thomas: Because every Wednesday includes every Wednesday. We’ll see you then!
Andrew: Until then.