Topics of Discussion:
- $15 Minimum Wage Update – Republicans Fired the Parliamentarian in 2001
- Breakin’ Down the Law – American Rescue Plan Act of 2021
- T3BE Question
Thomas: Hello and welcome to Opening Arguments, this is episode 472. I’m Thomas, that’s Andrew, how’re you doing, sir?
Andrew: [Laughing] I’m fantastic, Thomas, how are you?
Thomas: I’m doing great, I am over the moon about this COVID relief bill! It’s such a good bill, it’s incredibly progressive. I cannot believe that we got Joe Manchin to vote for this thing, it’s incredible!
Andrew: It is. And I don’t know what you’re going to wind up calling this show, because it’s a well-known secret that you get final vote on-
Thomas: We’ll see how it goes, yeah.
Andrew: Yeah. I have tentatively titled this the “You Made This Happen” show, and I mean that to our listeners. The fact that we have 50 Democrats in the Senate plus Kamala Harris as Vice President means that we passed a bill that is markedly different than what we had to go through during the Trump administration and we’re gonna break that down.
Thomas: We might – I know. Okay, should I opine more on it now or do you want to wait until that segment?
Thomas: Fair enough. But you’re absolutely right. I’ll say one more thing, because it’s directly related to what you just said, which is if you’re one of our amazing listeners who donated to the Georgia runoffs in our effort, in our fundraising effort, you can almost do a calculation of your return on investment.
Thomas: Because you went from – I’m serious! You went from zero to 1.9 trillion. Now, some people are saying well, you might’ve gotten the 600 billion, blah blah blah. I don’t know. I don’t know that you would’ve gotten anything with Republican control of the Senate because that would have given Joe Biden a win.
Thomas: I think, when Democrats were in control of the Senate, a couple Republicans could be like “here, here’s a little 600-billion-dollar meaningless crap package,” and offer that, but I don’t know McConnell would have passed anything under a Biden presidency.
Andrew: The reason we got the second stimulus package in late December was to try and throw a lifeline to Perdue and Loeffler.
Andrew: So, yeah. Not just [Laughing] everything we got at the end of 2020 and everything that’s in this bill are follow on directly from Democratic governance. Again, this is a follow on from last week’s shows, we do get it. We’re not here to try and cheerlead the Biden administration, we had – there have been no shortage of things that we have called out where they appear to be walking back or not as progressive as we would like. I would really, really like for Joe Biden to publicly embrace the Liz Warren millionaires’ tax and ultra-millionaires’ tax, whatever it was called. We’re gonna continue to do that, but we are definitely not the “both partis are the same, it doesn’t matter” crowd.
Thomas: Oh, because that’s so stupid you’d have to be an idiot to think that.
Thomas: You’d have to be completely ignorant of everything that goes on to think both parties are the same. No one listening to our show would be that ignorant.
Thomas: So, let’s go on and talk about the things we need to talk about.
Thomas: Other good news, Merrick Garland confirmed 70-30. We had kinda speculated, I know this was more on your other show, speculated that he might get a lot more than a party line vote because he’ll be a fantastic Attorney General, and he did indeed get a lot more than just a party line vote.
Thomas: Alright, in other news that I guess is good news? You did a bit of a breakdown on Aisle 45 revisiting the Chauvin trial. We got a bit of news out of the Supreme Court in a way, right?
Andrew: Yeah. We were really the first outlet to describe the idiosyncrasies between Minnesota’s 2nd degree murder and 3rd degree murder laws. This is kind of like a slow-moving Andrew Was Right a year ago, which, you know, some of my favorite Andrews were right. This was episodes 390 and a half, bonus episode, and 392. In particular in episode 392 we talked about – there was a position going around that said including a murder 3 charge on Derek Chauvin, the officer that – I suppose we have to say “allegedly” killed George Floyd, but we have seen the video so I’m comfortable deleting that adjective.
Thomas: Yeah, you mean the murderer who murdered George Floyd? Am I allowed to say that or no, I can’t say that?
Andrew: Yeah, as your lawyer-
Andrew: -I am hereby allowing you to express that opinion.
Thomas: My opinion is he’s the murderer who murdered George Floyd, just FYI.
Andrew: Yeah, that’s a solid opinion. There was a bit of a criticism going around, again from Lawrence Tribe whom – every time I disagree with Lawrence Tribe, I have to bracket this by saying that the man has forgotten more about constitutional law than I will ever know, but [Sighs] it was … I don’t want to say a conspiracy theory, but the idea was that a murder 3 charge would not be upheld against Derek Chauvin because of the word “others” in the statute.
Andrew: Basically, it says if there’s no intent but your action was deliberately designed to cause serious bodily injury to others (plural) and resulted in the death of at least one person then you could be charged with murder 3. There was case law going back saying that some people had interpreted it as saying you needed to show that your extreme and outrageous conduct put more than one person in jeopardy. Was (quote) “not directed at a single individual.” An example of that would be like firing an automatic weapon at a crowd.
Andrew: Or tossing an explosive device, or something like that, not kneeling on one person’s windpipe, which is directed at a single victim. I told you, as a listener, in episode 392 and I thought that was a really terrible reading of that line of cases. I did not expect – and then it came up on kind of an odd procedural question, and my prediction was if the Minnesota courts ever had to squarely address that issue they would say yeah, no, look, we’re not using the Simpson’s “no Homers” rule.
Andrew: It is is your conduct the kind of conduct that’s likely to kill somebody and does somebody get killed as a result? As so happens, on February 1st of this year, Minnesota’s Court of Appeals, their intermediate appellate court, ruled exactly that. They said yeah, look, third degree murder, that charge will lie when the conduct is directed at a single victim. So, the prosecutor went to move to add murder 3 back to the charges against Derek Chauvin. Derek Chauvin appealed, lost, and then moved for an emergency petition to the Supreme Court because the Supreme Court is still reviewing that intermediate appellate case. They granted cert in that case. I predicted that on Monday when we recorded my other show that they were not going to issue a stay in this case, and that turns out to be the case.
Thomas: Wow, you really nailed this one.
Thomas: I mean, all the way through.
Andrew: The murder 3 charge is back on.
Thomas: This is a well-deserved Andrew Was Right.
Andrew: Thank you.
Thomas: You’re swimming against the stream a little bit in terms of what people were saying, and you nailed it. That’s why people should listen to this show.
Andrew: I hope everyone listens to the show. That delayed – there was a little bit of a procedural delay, it stopped jury selection on Monday, but the judge basically got everything back on track, said yeah, look, I’m gonna add the murder 3 charge in. The significance there has to do with proving intent.
Andrew: The way to think about it is murder 1 is premediated, that is life imprisonment with no parole. Minnesota does not have the death penalty. There is no murder 1 charge here, nor would you be likely to be able to sustain a murder 1 charge. That is your kind of laying in wait with a sniper rifle.
Thomas: Yeah, yeah.
Andrew: I planned in advance. Nobody thinks Derek Chauvin planned in advance to murder George Floyd, what we think is that it’s probably murder 2, which is that Derek Chauvin acted with the specific intent to murder George Floyd-
Andrew: -when he kneeled on his windpipe for nine minutes. But what you want as a good prosecutor is a lesser included offense.
Thomas: Yeah. At the very least, the murder 3 would be – he certainly didn’t seem to give a crap if-
Thomas: -what he did and if someone died because of it.
Andrew: Now the murder 3 charge is back in. The difference between murder 2, statutory maximum of 40 years, murder 3 statutory maximum of 25 years. In the absence of that you would be looking at a manslaughter charge.
Andrew: Which is a statutory maximum of 10 years. Look, if Derek Chauvin is acquitted on all murder charges, that will be a severe miscarriage of justice. Really happy to see the case back in, and I do not think necessarily, now you might be saying well the Supreme Court didn’t intervene to stop them from adding the murder 3 charge, does that mean they’re going to uphold the Noor decision, that’s the intermediate appellate court that says murder 3 applies even if all the actions are directed at a single victim. I think they probably are on the merits, but I don’t know that I would read this as tipping the Supreme Court’s hand, I think that’s just the Supreme Court’s way of saying yeah, you can get on with the trial and if we decide that murder 3 doesn’t apply in this case then if the trial is still ongoing you can give a jury instruction, or if the jury has reached a verdict and they only convicted on murder 3 then we can handle that-
Andrew: -as subsequent appellate relief. But there’s not a reason to delay starting the trial, which is I think a very sensible ruling. There you go, that is the latest breaking news in the Derek Chauvin trial.
$15 Minimum Wage Update – Republicans Fired the Parliamentarian in 2001
[11:47.6] [Segment Intro]
Thomas: Alright Andrew, this is a segment that, again, we could have put on a couple episodes ago, but it added a bunch of time, didn’t really change the conclusions, so we kinda had to let it be, and wouldn’t you know it, this is how everyone responded to our episode, fair enough, we get it.
Thomas: It’s time to address it here, Andrew. The main response to our $15 an hour minimum wage episode that I saw, at least, was wait, but what about when the Republicans fired the parliamentarian in like 2000 or whatever. You didn’t address that, ipso facto that means you’re wrong and actually the Democrats could have done it, and actually Republicans did do it and you’re wrong, neolib shills for Biden or something. Something like that.
Thomas: Sort of like that.
Andrew: I’m guilty on the neoliberal shill part, I suppose.
Andrew: Here’s the quick answer to that, as quickly as I can do it. First is that ultimately the argument is a non sequitur. My primary argument as to why the Democrats were not going to and should not attempt to add in the $15 an hour minimum wage provision over the objection of the Senate Parliamentarian was that would make the bill in violation of the budget reconciliation procedures as established by the Budget Act of 1974, and thus jeopardize everything that we’re gonna talk about in the main segment, which are really, really good legal provisions because they could be very easily enjoined. Saying right, but what if they passed it anyway doesn’t answer that.
Thomas: Sure, fair enough.
Andrew: That’s sort of point one. And that was ultimately why I cut it, because you’re gonna hear me go very, very quickly through the history. I had all this prepped out, but I felt like it was gonna add, you know, 15 to 20 minutes of discussion that didn’t change the final view. Let’s try and do it super quickly. Who is Robert Dove? Robert Dove is the guy who, when Republicans won a landslide under Ronald Reagan in 1980, they won back control of the Senate for the first time in decades, beginning in January of 1981, and they fired the existing Senate Parliamentarian and they put in this guy, Robert Dove. When the Democrats won back the Senate in 1986, the midterm in Regan’s second term, they fired Dove and they put in a guy named Alan Frumin.
Thomas: This better also be a bird name.
Andrew: Yeah. [Laughs]
Thomas: Oh, okay. I was thinking it was like Dove is gonna get rid of the bird law, but then they got the Hawk.
Andrew: Dove and Byrd, [Laughs] yeah, I know!
Thomas: These chicken hawks dove to get rid of the bird law!
Andrew: [Laughs] So, put a pin in Alan Frumin, okay?
Thomas: And look up if that’s a bird.
Thomas: [Laughs] Is what you’re saying.
Andrew: Well, I keep thinking like Abe Froman, the sausage king of Chicago-
Thomas: Oh, I dunno-
Andrew: -from Ferris Bueller’s Day Off. You’ve never seen Ferris Bueller’s Day Off?
Thomas: [Sighs] I just don’t know that movie very well.
Thomas: I’ve seen five minutes here and there a hundred times.
Andrew: [Sighs] Such a good movie. Anyway, Alan Frumin became the new Democratic Senate Parliamentarian, they fired Dove and they stuck Frumin in there. Republicans took back the Senate for the first time in 2000, so January 2001 they fired Frumin and rehired Dove.
Andrew: Now, Republicans had the 50/50 Senate back in 2001 just like now, so just like Democrats right now they were looking for a way to pass legislation. They wanted a massive tax cut, because you know, Republicans gonna Republican. Far more so than COVID relief and far far more so than a minimum wage, tax cuts are kinda what the reconciliation process is for.
Thomas: Yeah. Yup.
Thomas: Or maybe tax hikes, right?
Andrew: Right, right, exactly. But core budgetary principles.
Thomas: Tax stuff, yeah.
Andrew: But nevertheless, Dove made a series of rulings that were characterized by both parties at the time as inconsistent. These were little procedural things. One of them was the idea you could use reconciliation for tax cuts only once a year. I’m not really sure the basis for that, but that has kind of continued forward, even though the Budget Reconciliation Act says you can use it three times a year.
Thomas: Is that where I got that impression from?
Andrew: It very well could have.
Andrew: Then there was a ruling that extraneous provisions could be struck by a point of order, by a particular kind of parliamentary procedure, and finally the ruling that got interpreted as the Republicans fired this guy so they could cram through their tax bill, was Dove ruled that a provision about recompensing certain areas for natural disasters could not be in the reconciliation bill.
Andrew: After that happened, Trent Lott was like “look, this guy is killing us, we’re gonna fire this guy.” Not true that he was fired for any one vote, but he was fired for frustrating the Republicans. Except, pull that pin out, he was replaced by Alan Frumin, the Democrat they had put in back when the Democrats were in power.
Thomas: Are there only two guys who can do this job?
Andrew: There are only two guys, that’s it.
Thomas: [Laughs] It’s an obscure job, I guess. We’re the only ones who have the parchment and quill to do it.
Andrew: Yeah. And Frumin kept the job until he retired in 2012 and was replaced by his assistant, Elizabeth McDonough, the current Senate Parliamentarian. I go through that history, and I’m going to include the contemporaneous accounts from May 8th in both the Washington Post and the L.A. Times, because the idea that the Republicans fired the Parliamentarian and replaced them with a rubber stamp so that they could pass the tax cut bill, it’s just not true. They fired the Republican Parliamentarian and replaced him with the Democratic Parliamentarian! Now, a few other things to think about with respect to that. Number one: Dove stayed on for another month after he was fired. Number two: he was replaced by a Democrat, not a rubber stamp. Number three: Frumin also struck major provisions from the tax bill.
Andrew: Number four: that tax bill took six months to pass; and number five: you might be sitting there thinking, hmm, May of 2001, add five and a half months, yeah, September 11th intervened and we were at a time period in which, as you discussed on the show last night, George W. Bush enjoyed 92% approval ratings in the wake of 9/11, and was able to get a lot of stuff done. There was not a ton of Democratic opposition to an insanely popular Republican President during war time. Then, ultimately, the Bush tax cuts passed via reconciliation, but they passed with, again, not the stuff Dove had struck from them, but without plenty of the things that Frumin had struck from the bill. At the end of the day, those are massive points of disanalogies.
This particular – the American Rescue Plan Act of 2021, it was crucial that it get passed as soon as possible, and we’re about to break down everything that’s in it, but I want to give you a preview. We told you when the second CARES Act passed in December that many of those benefits ended at the end of March.
Andrew: And some of them end on March 14th. We are recording this on March 11th.
Thomas: And, by the way, as we’re recording Biden literally just signed it right now, a day ahead of schedule.
Andrew: [Laughs] I’m glad you added that in there because I was going to say he is anticipated to sign it tomorrow.
Thomas: Signed it early.
Thomas: I saw some people grumbling about why he was waiting – I don’t think it matters, just another thing, but people were grumbling “why is he waiting until Friday blah blah blah” and it’s like, well, they can prepare the checks the whole time, it doesn’t make a difference, but whatever. Maybe he saw that grumbling and wanted to do it early, or something. I dunno, who knows?
Andrew: Look, good for him, but here’s the important thing. That meant at this breakneck pace that we had two days to spare before unemployment insurance benefits would have run out.
Andrew: Okay? For people who are unemployed due to COVID-19, that is 19 million people who now have extended benefits available to them starting today, thanks to the passage of this act. Saying “oh what would have been the big deal, you fire a guy,” [Laughing] You fire poor Elizabeth McDonough, who was just doing her job and doing it competently well. The first female-
Thomas: By the way, probably made the right call on it.
Andrew: Absolutely! 100% it is-
Thomas: That’s what I wanted to say. Look, we just got rid of Trump after he did the whole thing with firing, almost did a Friday Night Massacre trying to get rid of Comey and that kind of thing. Do you think this really would have made sense, everybody? To be the party that fired the Parliamentarian until we get the one that wants to break the law for us, all so we can do a bill that would be enjoined, that would delay COVID relief, and then, by the way, the $15 minimum wage would have a sunset anyway. It does not seem like it was a good idea at all honestly to even try this, but whatever, we tried, I guess to look like we’re trying, and it’s gotta be a different bill. It’s the only way to do it.
Andrew: Yeah, and look, you heard a week ago, I’m strongly in favor of a $15 an hour minimum wage, a position on which I have changed my mind over the past four years by looking at the evidence and saying, yeah, nationally I am convinced that the inflation argument is false even in deeply rural communities. But, yeah, anything you say would have at least added two days onto passage of the bill. Saying oh, okay, we’re gonna stop this, we’re gonna fire the parliamentarian, we’re gonna hire a new one. And real people would have missed out on the real benefits that we’re gonna talk about in the next segment.
Yeah, not backing down on this one, I know we lose patrons every time [Laughs] ever time we mention it, but yeah, these are not – and let me go one step further and lose us another hundred patrons, because I called this person out on both the Facebook group and over Twitter. Cenk Uygur is saying “see, this proves all along that Joe Biden never really wanted a $15 an hour minimum wage.”
Thomas: Oh, for crying out loud.
Andrew: That kind of stuff – what did you say?
Thomas: I said a very Joe Biden “oh, for crying out loud.” I was gonna curse-
Andrew: [Laughing] Yeah.
Thomas: -and then I turned it into a [Laughs]
Thomas: When I go to curse and then I don’t on this show it turns into Joe Biden, usually. “Will you shut up, man?”
Thomas: That’s malarky!
Andrew: You just did the most disappointed dad I had ever heard, that was so great. That kind of rhetoric is toxic, and ill supported, and does not help the cause of us on the left who want to pull Biden to the left. I’ll repeat what I said on last week’s episode, which was until Biden announced that they were gonna try this one weird trick, you all thought, including me, that bringing up the minimum wage would have to be in a separate bill subject to the filibuster, and it would be okay, how many arms can we twist about the filibuster? The fact that he tried a hardball trick and it didn’t work-
Thomas: And now that counts against him.
Andrew: Yeah, and Biden said okay.
Thomas: You outlined the logic of it last week, and you’re right. This is a sign – if you want a sign of bad faith, because I frequently talk about these bad faith arguments and some people are like they don’t see why I think it’s bad faith, this would be why. Look at the logic of it. If Biden didn’t try to do it, he just doesn’t care about minimum wage. If he does try to do it and fails, he didn’t care about minimum wage the whole time. There’s no win there! It’s almost like you weren’t gonna credit Biden with any of this no matter what he did. I view that as bad faith. He tried to do it, when, as you say, none of us even expected him to in this bill, and it failed.
Andrew: Again, this is on the short list of things that I think need to be a priority. Yeah, if we’re one year out, if it is March of 2022 and the Democrats have not tried to advance a $15 an hour minimum wage bill, or have not tried to advance core elements of moving forward with progressivising the economy during a period of trans- then, yeah! Call us out and we’ll call Biden out, because we should.
Breakin’ Down the Law – American Rescue Plan Act of 2021
[26:34.2] [Segment Intro]
Thomas: Okay, Andrew, what’s in the American Rescue Plan Act of 2021?
Andrew: Let me give – I’m gonna go through each of the eleven provisions of this bill, because remember this was passed through reconciliation and as we were explaining the reconciliation process what you do is you task the various subcommittees in the House with basically coming up with the stuff they want to put into the bill, and then it all gets stapled together.
Andrew: That’s how this bill got passed, it’s eleven different Democratic House Committees with all the stuff that they can think of that relates to COVID all stapled together. I want to go kind of step by step, I want to tell you some initial aspects first. That is the way in which we have learned as we’ve gone along, and have now moved into an environment in which it is abundantly clear that the Biden administration did not care whether they got zero Republican votes, which is ultimately what they got, and compromised as far as I can tell in no ways. You want to say they’ve compromised on financial amounts, that’s a tough one to prove, but in terms of how that’s implemented, this is 100% from start to finish not only a progressive bill, but a bill that I’m going to point out multiple provisions is the opposite of everything we have seen from Donald Trump, which is to say it is a bill that is designed to maximize the utilitarian benefit to the American people, even at the penalty of doing things that will be very difficult for people to credit Joe Biden.
Let me give you an example of that. A large chunk of this bill involves reimbursing States for certain kinds of expenditures, and reimbursing them anywhere from 75 cents on the dollar to dollar for dollar. What that means is – and sometimes they’re just in the form of block grants. They’re just like hey States, you already have programs that are designed to reduce poverty. Lots more people are in poverty thanks to coronavirus so here’s a bunch of money.
Andrew: That is going to make people in Alabama very, very happy with Alabama Republican governor Kay Ivey.
Andrew: And very angry at Democratic President Joe Biden, who will get no credit for it, but actual Alabamans will benefit and will benefit in a way that, you know, we need to think about this-
Thomas: It’s frustrating that Senators from these red states get to vote against this and put their hands, “I’m not gonna help at all” and crap all over Biden and then their State benefits, but you know, it is what it is.
Thomas: This is for the best, I guess, but it’s still frustrating.
Andrew: Let’s talk about first, it’s $1.9 trillion dollars. Let’s talk about the allocation of how that money is spent. Remember way back to the first CARES Act where there was that huge half a trillion-dollar slush fund that Steven Mnuchin got to run for giant companies?
Thomas: Oh yeah, do we still have that?
Andrew: Not zero dollars on that.
Thomas: So, Hunter Biden I assume gets this slush fund? Or Hunter Biden’s wife, I guess. Would that be-
Andrew: [Laughs] Right, yeah. Zero dollars are direct payments to huge companies. Remember then in that first bill, we cleaned it up a little in the second, how publicly traded companies and churches were sucking up the first round of PPP loans?
Andrew: The second round we took that out, we had more accountability.
Thomas: I remember the Lakers getting like a zillion dollars or something?
Andrew: Crazy amounts of money went out to businesses that didn’t need it. Of the $1.9 trillion dollars, how much do you think is allocated to PPP loans?
Thomas: I dunno, sorry. [Laughs] I have no idea! Would love to go with you on this, but I actually have no idea.
Andrew: $7.3 billion dollars. Just over half a percent. It raises it from $806 to $813 billion dollars of the second draw loans. Look, the reason for that is by and large we’re through that phase in which businesses need a direct cash infusion.
Andrew: There are exceptions, and I’m gonna talk about that, but one of the things this bill does then is instead of huge giveaways to corporations, many of whom are posting profits during pandemic just fine.
Andrew: Over 50% of the $1.9 trillion dollars in this are in direct payments to individuals. That’s the $1400 checks, and increased tax credits that we’re gonna talk about. Over a quarter are reimbursement to State and local governments for their safety net and social programs. The last two bills combined had $1 trillion dollars in aid to businesses. This bill has $65 billion dollars in aid to businesses, start to finish. That’s, again, a couple of percent of what were in the last few bills.
Thomas: So, we’re just giving money to people, basically, instead of businesses.
Andrew: Yeah! We’ve moved from trickling down to giving money directly to people. I want to tell you, if you’re interested in your check, look, this is the same mechanism as the CARES Act, that’s Title 9, subtitle (g) “Promoting Economic Security.” It’s on page 135 of this bill. This bill, by the way, is a nice trim 242 pages. It was relatively easy to read. Those are $1400 checks, they’re capped at $75,000 dollars per tax payer, $150,000 per married couple, and there’s kind of a bubble from $75,000 to $80,000 where your payments get reduced proportionately. If you make $76,000 dollars you get 20%, you get a reduction of 20% of that stimulus check. Instead of it being a hard cliff there’s sort of a phase off end, but it’s the same mechanism as in the CARES Act, it’s a refund against your future taxes so it’s processed through the treasury.
Now, let’s talk about – you knew all this already, so let’s talk about the stuff maybe you didn’t know was in here. Let’s go title by title and the recurring pattern you will see is these are core progressive ideas coming out of a pretty left dominated U.S. House of Representatives.
Andrew: Title 1 are the provisions that come from The Committee on Agriculture, Nutrition, and Forestry. This begins on page 7 of the bill, and these provisions have to do with food and food insecurity as a result of COVID-19. It includes $4 billion dollars in funding for the food supply chain, for providing PPE for farm workers, for testing, monitoring, contact tracing, all of that. There is a specific provision, 1005, for farm loan assistance to (quote) “socially disadvantaged farmers and ranchers,” which means farmers who are people of color. It’s a government provision that pays back loans to the lender and also gives a billion dollars in direct assistance for grants for things like taking continuing education classes at historically black colleges and universities. Not a provision we saw in the Trump-era bill.
Extending SNAP, the Supplemental Nutritional Assurance Program benefits, which were increased by 15% and moving that deadline from March to September 30th of 2021. That is combined with a provision in Section 1108 called “The Pandemic EBT,” which means Electronic Benefits Transfer. Basically, what these provisions are trying to do is they are trying to compensate for families who otherwise qualify, their children get free or reduced cost meals at school. With schools not operating, all of a sudden, they weren’t getting those meals.
Andrew: The EBT program gets the dollar value of those meals to those poor families. Now, that’s not as good as providing the meals at school because of purchasing power and monitoring, but it’s way better than nothing. It’s a recognition of the kinds of problems that Democrats talk about, but that didn’t get mentioned over the past year.
And modernization, more funding to the WIC program, that is Women, Infants, and Children. There are supplemental fixed programs for food because – and this is a fact-finding determination that’s made in the bill. WIC enrollment was steadily declining during the Trump years. Not because there were fewer poor people, but because there were more barriers put in place into the application process and they (quote) “barely rose during the pandemic,” which is something you have to think, again, unlikely to be reflecting conditions of actual poverty on the ground.
Sections 1105 and 1006 reimburse States so that it provide benefits under WIC to, again, as we said at the outset, incentivize getting dollars and getting benefits to people who need it, even though it’s going to allow red State governors to claim “Oh yeah, my governor helped me, but, you know, those do-nothing-Democrats never did.”
That’s the highlights of Title 1.
Andrew: Title 2 comes from the Committee on Health, Education, Labor, and Pensions. That contains $123 billion dollars to schools to reopen, and again, if you want to be thinking about how to be cranky about this [Laughs] Section 2002 sharply limits the amount that is available to private schools. Only $2.75 billion to private schools, 1/60th of the amount, and it is restricted to those schools that (quote) “enroll a significant percentage of low-income students and are most impacted by the qualifying emergency” (end of quote) and that it (quote) “not provide reimbursements for amounts that are already spent.”
In other words, these funds are designed to help schools meet the expense needs of transitioning to bringing back kids, and that includes hiring more teachers, requiring more space, requiring physical barriers, increasing remote access for hybrid learning programs, that sort of thing. All of that stuff costs money, and this bill instead of just saying “it’s time to get our schools back,” actually provides the money. This is also where if you’re a diehard old school liberal like me, you’re just kind of looking through going “boy, this seems to be a laundry list of stuff Democrats want.”
Andrew: Section 2021 provides an additional $135 million dollars to the National Endowment for the Arts. Why?
Andrew: Because art patronage went down during COVID, because everybody is, even high-end patrons, when you have a financial emergency are like “okay, well, we’re gonna hold back on our discretionary spending, we’re gonna commission less art.” $135 million dollars for the National Endowment for Humanities. $200 million dollars for museums and libraries. $200 million dollars to a variety of federal enforcement agencies that protect workers in the workplace, so OSHA; the Department of Labors Wage and Hour Law compliance, that’s where you apply when you’re not getting paid overtime; Workers Compensation; all of these that intervene on behalf of working people when they get screwed by their employers. Direct funding for vaccines, for contact tracing, for the public health workforce, in the billions. $7 and a half billion for vaccines; $48.8 billion dollars for contact tracing, monitoring; $7.6 billion dollars for community health centers that serve indigenous populations, communities of color. $4 and a half billion, this is Section 2911, $4 and a half billion for LIHEAP-
Thomas: [Laughing] I saw LIHEAP, and I was like “I remember Andrew telling me about LIHEAP!
Andrew: Yeah! We’ve talked about it on the show because it’s a super crucial program that prevents people from freezing to death in the winter in the northeast. That’s Title 2, Title 2 is a ton of money that we give away for things that are impacted by COVID that, again, if you’d left this up to Republicans, we would have had a huge debate on “well I don’t see what giving money for fuel and home heating oil has to do with a pandemic.” Well, really? Because when people are out of work what they do is trade off heating their home-
Andrew: -for feeding their family. It is a phenomenon called “Heat or Eat.” Yeah, it absolutely is related if you look at government as solving an interconnected web of social problems as opposed to government being the problem. That’s Title 2.
Andrew: Title 3 is from the Banking, Housing, and Urban Affairs Committee. It does a bunch of different stuff. It actually funds and uses the Defense Production Act of 1950 to facilitate testing, PPE, and vaccines. That’s the thing that Trump said he was going to do and never did, to use the Defense Production Act to stimulate production of vaccines and distribution of the vaccines and Personal Protective Equipment to people who need it.
Emergency rental insurance, that’s Section 3201, authorizes another $21 and a half billion dollars to renters. There was $25 billion dollars in the December bill, but everything I’ve read estimates that there is upwards – there’s a gap of about $50 to 60 billion dollars in unpaid rent because of rent forbearances States and restrictions on initiating new foreclosures. But, for example, a district court in the District of Columbia just last month tossed that State’s moratorium on evictions. Again, there’s no good solution here. When people are out of work, they can’t afford their rent, but when you don’t pay your rent your landlord probably has trouble paying the mortgage on the property if they don’t own the property outright. There’s the old aphorism of the landlord is the last person you want to put on the stand as a witness. They tend not to garner a lot of sympathy.
Andrew: And for reasons I can understand.
Thomas: I would feel better prioritizing the renter than the landlord, personally.
Andrew: That’s right, we did that.
Andrew: We had a moratorium on evictions, and in many cases a moratorium on rent payments that you could initiate by just saying “I claim a hardship.” Many States are reverting back to the mean, are saying okay, we’re through the worst of it (whether that’s true or not) but nevertheless, we’re through the worst of it so now we’re going to allow you to evict tenants again. Again, there are reasonable reasons to want to evict tenants sometimes. My point is, filling that gap, putting more money into renters’ pockets to help fill that gap will help prevent people from going homeless and from being kicked out and evicted from their apartments, which is an unambiguously good thing, and this comes close to closing that gap.
More stuff, 3301 adds $10 billion dollars in funding to the State Small Business Credit Initiative Act. Again, contrast this with the PPP loans. The SSBCI already well established to use federal funds for State lenders that statutorily cannot extend to a borrower that has more than 750 employees; supports loans with an average principal amount of $5 million dollars or less, and they have to certify, in order to become a qualified lender, that there is a 10x multiplier. [Laughs] In other words, that the State takes – for every dollar that the State takes to fund these programs that it results in $10 or more being available for 3rd party loans to small businesses. Now, again, these are not instantly forgiven loans like the PPP loans, these are targeted. These are designed to help businesses that still have a dramatic need. We’re gonna talk about a couple more of those in the next couple of sections. That’s Title 3.
Andrew: Title 4 is from Homeland Security and International and Governmental Affairs, that is $50 billion dollars in disaster relief efforts for FEMA. There’s a federal employee leave fund for paid leave for individuals who are quarantined or recovering from vaccination, or, again, another indication that Democrats wrote this bill, where their kids’ school hasn’t reopened. A lot of people that had young kids tossed at home and then all of a sudden it was like “well, you coming back to work?” and you’re like “um, my kid’s 6 and school isn’t open.” This provides for federal employees paid leave where you fall into those categories. More protection for individuals and workers.
Andrew: Title 5 is the Committee on Small Business and Entrepreneurship. That contains that modest $7 billion dollar increase in PPP loans, but more than twice as much, $15 billion dollars in economic injury disaster loan advances. These are $10,000 dollar loans that are highly targeted to very, very small businesses. Again, if you think about it, if you’re the kind of business that $10,000 dollars is the difference between making it and not making it, that shows you sort of how much more targeted this bill is. It contains almost $30 billion dollars for restaurants, which is an area that I think not a lot of people have really thought about.
Thomas: Oh, I can’t wait to go back to restaurants.
Andrew: Think about, you know, which restaurants made it through okay in the pandemic? Certainly para-restaurant services like Door Dash went through the moon.
Andrew: But what was likely to be hurt were your, you know, mom and pop local restaurants. This fund, the restaurant revitalization fund, specifically excludes any restaurant that (quote) “owns or operates, together with any affiliated businesses, more than 20 locations, regardless of whether those locations do business under the same name or multiple names.” No chains. Your local chain, you start a small restaurant – there’s one here in my home community of Arbutus called Sorrento’s that was the pizza place we went to growing up, and they started a spinoff down the street in Catonsville called Sorrento’s West. Well, okay. [Laughs] We’re not gonna penalize the American dream, but you know the difference between a local business and, you know, Outback.
Andrew: We’re not bailing out Outback. $5 billion dollars, almost 20% of the loans, are reserved for businesses with gross receipts in 2019 of $500,000 dollars or less. It really is designed to save small family businesses. 5003(c)(3)(a) prioritizes that the money first goes out to women-owned, veteran-owned, and socially or economically disadvantaged small businesses.
Thomas: Wow, is that going to run into any legal problems?
Thomas: Are you allowed to do that?
Andrew: Yeah, absolutely you’re allowed to do that.
Thomas: Okay, cool.
Andrew: The way in which this works – so if you are a restaurant owner listening to this, give your lawyer a call, but section 5003 explains, what you do is you calculate the loss. You take your 2020 receipts, gross receipts, and subtract from 2019. If you were not in business for all of 2019 then you gross up.
Andrew: You figure your monthly average and multiply by 12. If you started the business in 2020 there’s a more complicated formula of which expenses, you’re allowed to do, but basically it is the money you lost in 2020, you are allowed to petition for a direct grant from the fund-
Andrew: -to receive from the government. Maximum of $10 million dollars to any recipient, $5 million dollars for any one location. You can use it for, not just payroll, but payroll, mortgage, rent, utilities, maintenance, food and beverage expenses, to pay your suppliers, other operating expenses. It really is a bailout targeted at the restaurant industry, which makes a lot of sense because a lot of those businesses are not making it through to the other side.
Andrew: Title 6, another short one, this is from the Committee on the Environment and Public Works. It is $3 billion dollars to fully fund earlier grants towards communities that were hard hit from a lack of tourism. I mean [Laughs] that was another thing people didn’t do a lot in 2020.
Andrew: Yeah, they didn’t travel. If you’re a community that depends upon people traveling, you’re probably really, really hurting. This funds that, it’s section 6001. Section 6002 gives $100 million dollars to the EPA to look at comorbidities with air pollution, because again, the difference when you’re looking at science in this is, you know, as it turns out a disease that has major pulmonary complications, turns out that that is hardest hit in communities with really, really poor air quality. It turns out, communities with really, really poor air qualities tend to be communities of color that have been redlined into, oh, you’re next to the airport or the train station, heavy industry. This funds $100 million dollars to the EPA for that. That’s title 6.
Andrew: Title 7, I’m trying to get us through quickly, here!
Andrew: Title 7 is from the Commerce, Science, and Transportation subcommittee, and it funds Amtrak with a billion dollars. It’s got $8 billion dollars for airports which, as you can imagine, they were hurt. It’s got $15 billion dollars in payroll support grants to airline companies and another billion dollars to support companies, like caterers to airlines, that sort of thing. It has $7 billion dollars – $7.2 billion dollars, this is section 7402, to the FCC to create rural broadband in rural communities, on tribal lands, and in communities of color. Because, again, the amount of upper middle class white privilege in “oh yeah, well, everybody’s just engaged in distance learning and Zoom calls now.” Well, yeah, everybody with an internet is, but, you know, lots of people still don’t have reliable internet and this funds $7 billion dollars of that.
Andrew: Title 8 gives $14 and a half billion dollars to veteran’s medical care.
Andrew: Title 9 is where you get your $1400 dollar payment, where they extended the unemployment benefits from 50% to 75% on State reimbursements, and from 50 weeks to 79 weeks, and provides that $10,200, this section 9042, of unemployment insurance is tax free. Usually if you collect unemployment insurance for a couple of months and then you go back to work, which is how it works ideally, you have to declare that unemployment as income on your next years’ taxes. If your income is less than $125,000 that $10,000 – the first $10,000 of unemployment compensation, is now tax free. You will not have to pay taxes on it. So, people who are scraping by will not all of a sudden get hit with an unexpected tax bill in March of 2022.
There is a new treatment for the child tax care credit. Not only was it expanded to $3600 for kids under the age of 6 and $3,000 for kids between the ages of 6 and 18, that adds on 18-year-olds, which, as the father of an 18-year-old [Laughing] I appreciate that. My kid lives at home! He’s 18, he’s not, you know. There are two major changes and I cannot explain – well, I can explain, I’m going to explain-
Andrew: How progressive they are. The first is the credits – and you want to look for this word – are fully refundable. What that means is even if your taxable income is zero you are still allowed to take the credit.
Thomas: Right, right right.
Andrew: Which means that they function as a negative tax, as direct income subsidies, and 50% of it is payable monthly upfront. Let me explain how that works. You will get six payments between July and December of this year, that total 50% of that tax credit, and then the balance in 2022 as a refund check. If you have a child under the age of 6, that means $300 a month for six months and $1800 next year at tax time. That’s per child. If your child is 6-18, it’s $250 a month plus $1500 next year. Again, I’m not suggesting in any way that these are sufficient, but I am pointing out the way in which we are moving to the kind of routine compensation that is really much more a form of progressive, the semi-UBI model.
Andrew: That says yeah, look, that’s $550 a month plus a lump sum payment if you’ve got two kids.
Thomas: Is it fair to say, look, I know there’s so much grief about the technically $2000 checks or whatever, which, I dunno, it sounds so weird to me. Didn’t we get there by the combination of some things?
Thomas: I know they reduced unemployment slightly, I think, but is it fair to say that there are many families who are going to get a lot more than $2,000 from this bill, right?
Andrew: Yeah. Remember that for the first time your dependents also qualify for the same $1400 payment. If you are single mom with one child living alone, and your income is $75,000 or less, you’re gonna get a $2800 check for the both of you, and you’re going to get, if that kid is under 6, $300 a month for 6 months plus $1800 in April of 2022.
Andrew: Yeah, that’s way more than $2,000. I could talk more, maybe we have to do a deep dive on the changes to the earned income tax credit, but makes it fully refundable. The child dependent tax care credit is now fully refundable. These are major, major changes that Republicans oppose.
Thomas: Yeah, where in the past Republicans used to have been “oh, you need to be working, we’ve gotta incentivize the working to do this stuff, so if you don’t have the income you don’t get any benefit from it.” Now you’re saying doesn’t matter, you just basically get a check. If you had zero income, you still get this credit in the form of a refund.
Andrew: And the real reason for that are not people that aren’t working, but that people who are working in an economy that the tax code largely does not recognize. Gig economy workers, people who are engaged in fixed transactions that are below typical levels that are meant to be incentivized by the tax code and have a dire need for this kind of relief will now be able to access dollar for dollar the full value of the child and dependent tax care credit, and the best economic studies showed that in the past the folks who had the most access to the CDTC were upper middle class families, and that poorer families were getting $.60-$.70 cents on the dollar in the aggregate, with many receiving nothing. Yeah, the tax changes – we could do an entire episode just on Title 9, and I know we don’t have time for that.
Andrew: Let me very briefly say titles 10 and 11. Title 10 is from the committee on Foreign Relations and it’s $9 billion dollars in international aid. Again, it’s to fight things that Republicans would laugh at and say “well I don’t understand why you’re trying to deal with migration and refugees, or to fight HIV/AIDS.” I trust our listeners understand the impact that COVID has had on international refugees and the fight against AIDS.
Finally, Title 11 is from the Indian Affairs Committee, and that is there are over two and a half million Indigenous peoples that are served by Indian Health Services. That got an additional $6 billion dollars in funding. Really, really important for Native populations that have been treated pretty terribly by the US over time. I want to add, not just because this is the last major substantive provision, but I love ending on this one. Section 1104 sets aside $20 million dollars for the preservation of Native American languages.
Andrew: Again, this is one of those that if you’re thinking about it you can imagine Rush Limbaugh being like-
Andrew: [Impersonation] “Oh, look at the pork in this bill.”
Thomas: Wow, that was a pretty good Rush Limbaugh.
Andrew: Thanks. [Laughs] Rest in hell, Rush Limbaugh.
Andrew: There are an estimated 150 Native languages that are still spoken in the United States, that preserve an element of Indigenous culture. That includes communities that, many of whom, number in the hundreds; many of whom are less than 100 surviving tribal members. And, typically, it’s elderly tribal members who speak the language. Now, think about who COVID-19 is most likely to hit, and you’re like, oh, yeah, on tightknit Indian reservations I could see how that could spread through and maybe wipe out the last of a generation that speaks a particular language. Look, if you don’t care … it’s hard for me to imagine someone who’s like “yeah, well, who the hell cares about a core piece of Indigenous American culture?” I guess if you don’t care then you don’t care, but if you’re sitting there going like, boy, this is … this is like preserving – this is the linguistic equivalent of preserving a species from going extinct. Let’s not forever lose the culture of some of these tribes that will go out if their language becomes a dead language.
Thomas: Yeah. I really do care, do you?
Andrew: Yeah, exactly! I love – again, it’s a super little thing, but this is illustrative of, you know, what happens when you put Democrats in charge.
Andrew: And you say – I mean, I feel like this is an episode where you would get a fair hearing with your Uncle Frank. You’d be like, right, and I hate all those things and this is why I never want Democrats in power and, you know, we would just have to say okay, well, we have differing versions-
Thomas: Okay, so you like things to be worse and we want things to be better. Yeah, okay. Sure.
Andrew: [Laughs] Of what society ought to be like, but if you value diversity and you’re looking at it and you’re going yeah, this is a scintilla of a fractional nothing of a percent. It’s $20 million dollars in a $2 trillion dollar bill.
Thomas: [Laughs] Yeah. Literally rounding error.
Andrew: Yeah. But that could make a difference as to whether my kid is, 20 years from now, will be able to learn about particular, and Alex’s kids will be able to learn about Indigenous cultures or whether that will just be “nope, sorry, they were driven extinct in 2021.” Makes a real difference.
There you go, I know I had to do that at kind of a breakneck pace and I cut off some of your questions, but there’s your comprehensive guide to the just-passed American Rescue Plan Act of 2021.
Thomas: It’s so great, but we’re so way out of time. I’m sure there will be many a follow-up.
[1:03:49.4] [Patron Shout Outs]
[1:04:54.0] [Segment Intro]
Thomas: Alright I guess just enough time for me to fail a quick bar exam question! T3BE, here we go. Continue the streak.
Andrew: Alright, I will tell you, Thomas, this is a-
Thomas: I don’t want to hear it.
Andrew: -civil procedure question.
Andrew: I feel good.
Thomas: I don’t want to hear – I already hear your tone and I don’t want to hear it. I’d rather you just be honest and be like “you’re not gonna get this one,” and if I ever do then it’ll be like “cool, you got this one.”
Andrew: A woman from State A filed an action against a retailer in a state court in State B.
Thomas: False. There’s no State called State A, I win.
Thomas: Question over.
Andrew: The complaint alleged that the retailer had not delivered $100,000 worth of goods-
Andrew: -for which the woman had paid. Twenty days after being served, the retailer-
Thomas: Not this again. [Sighs]
Andrew: – which is incorporated in State C and has its principal place of business in State B, filed a notice of removal in a federal district court in State B. Was the action property removed? A) No, because the notice of removal was not timely filed. B) No, because the retailer is a citizen of State B. C) Yes, because the parties are citizens of different states and more than $75,000 is in controversy.
Andrew: Or D) Yes, because the retailer is a citizen of both State B and State C.
Thomas: Okay. So, I’ve had this question a lot. I’ve gotten wrong on it a lot. I think though it’s – you need complete diversity and you need the $100,000 and I think you err on the side of, like, the federal court doesn’t want to be handling a bunch of stuff that it shouldn’t. I think those are my assumptions going into this. So, woman from State A files action in State B, because the business does its place of business in State B. I think the trick here – and that makes sense. You bought the thing, I know it’s $100,000 but I think you need both things, so it’s not merely the fact that it’s $100,000, I think you also need that complete diversity. But, the – so… [Sighs] it’s tricky because I keep forgetting what counts as what, you know? I think the fact that you file it in State B… I think if she had tried to file it in State F, or something, then maybe you would have a point here, but I think because she tried to file it in State B, I think that’s gonna be okay, and the trick is the retailer is thinking “oh, but I’m actually incorporated in State C, so therefore we’ve gotta go to federal court.” I think that’s the trick that the business is trying to do, and that’s what the question comes down to, which I’ll probably remember wrong but that’s okay. They’re trying to say wait, I’m incorporated in State C so it doesn’t make any sense, it’s full diversity, and therefore, and it’s $100,000 so we’ve gotta do federal court, and I think maybe that’s wrong. Let’s go through the answers, though.
A, no because the notice of removal was not timely filed. I dunno. 20 days seems close enough to me. If it’s that I got it wrong, whatever. I think not A.
B, no because the retailer is a citizen of State B. I think – I think that’s where I’m leaning because I think, for this purpose, the retailer is both a citizen of B and C. Therefore, that makes this statement true. No, the retailer is a citizen of State B so it’s perfectly fine to sue them, but that’s what I think so far.
C, yes because the parties are citizens of different states and more than $75,000 is in controversy. If I’m wrong and the incorporated, where you’re incorporated is all that matters then C is correct. If it’s like nope, technically I’m a citizen of State C, so you can’t sue me in State B, then C would be correct.
D, yes because the retailer is a citizen of both State B and State C. I think that’s what I’m saying there, but just the wrong interpretation of it. I think you need complete diversity. You can’t – it’s not that like oh, if you’re a citizen of State C you get out of it. I think you have to be only a citizen of State C to get out of this in my memory. Could be wrong.
I think I’m going with B, no because the retailer is a citizen of State B. I’m between B and C, you know, could be C if I’m wrong on that rule, but I’m gonna go with B, final answer, Andrew!
Andrew: Alright! And if you wanna play along with Thomas, you know how to do that. Just share out this episode on social media, include the hashtag #T3BE; include your guess, your reasons therefore. We will pick a winner and shower that winner with never ending fame and fortune! Fame and fortune not guaranteed.
Thomas: And that’s our show! Reminder, you can join us every Wednesday at 5 pm Pacific, 8 pm Eastern on that Stereo app. Follow me, I’m @SeriousPod, follow Andrew, he’s @Torrez. We had so much fun last night. We have fun every Wednesday on that Stereo app. Go, get the app on your phone, pop in, you can ask questions, we get to hear your lovely voice. It’s so much fun. Be there every Wednesday, and that’s our show! We’ll see you on Tuesday.
Andrew: See you then!