“Defunding” The Police Has Often Turned Out To Be An Accounting Trick, But Community Control Of Police – A Righteous Demand – Must Also Ensure That All Government Functions Address Human Needs.
One year ago, thousands of people engaged in protest in the wake of George Floyd’s killing by a Minneapolis, Minnesota police officer. A persistent protest demand was for defunding police departments. The appeal of this rallying cry was obvious. Police in this country are a law unto themselves, killing and brutalizing at will, and rarely being called to account. Often these fatal encounters occur after minor offenses are committed or in the case of black people, when a call for assistance instead leads to death.
The premise of defunding police is well intentioned but faulty. In the past year we have seen sleight of hand in cities like New York where alleged funding cuts amounted to nothing more than budgetary trickery. Even in Minneapolis, where the movement began, defunding became nothing more than a name change.
It isn’t hard to understand why change in this area is so difficult. As of 2018, police departments in this country received more than $118 billion in funding. Only the military in the United States and China receive more money. The armed forces of Russia, Germany, France, the U.K. and Japan all receive less money than American police departments. They are in fact a domestic military force.
Why then do so many people insist that police budgets have been cut? Because this particular trope gives credibility to racist politics and practice. When Democrats lost seats in the House of Representatives in 2020, the losers immediately claimed that the concept of cutting police budgets was to blame for their defeats. Republicans have leaped on the story and as usual engage in strict message discipline, insisting that the police are short of money and that increases in crime are the result.
The media adds to the drama with their usual determination to take the side of the powerful. William Bratton led police departments in New York and Los Angeles and in a recent New York Times interview said,“ They got what they wanted. They defunded the police. What do they get? Rising crime, cops leaving in droves, difficulty recruiting. Now, they’re waking up to the fact that our cities are unsafe.”
Not only should this propaganda be rejected, but the original questions about police funding should be revived. Police do have far more money than they need to do their jobs. Bloated budgets are a feature of police work in a society dedicated to racist practice. The modern day slave patrol is a racket that gives good paying employment to people who otherwise wouldn’t have it while simultaneously keeping Black people under physical control. But even if reducing funding were a realistic proposition, is that what the demand should be?
Community control of the police should be the goal but that can’t happen unless all government functions address human needs. Without real democracy and a true commitment to human rights, policing will not change. Of course, any discussion of law enforcement is inextricably linked to anti-Black racism, the controlling feature of many aspects of public policy in this country.
No one should allow themselves to be confused by racist pro-police propaganda or to be convinced that they should stop agitating for change. But questioning previous actions, even those made with the best of intentions, is always a positive step.
The United States as currently constituted can’t function without huge police departments and the big budgets that go with them. An increasingly stressed society must be kept under watch precisely because popular discontent may erupt at any moment. Last year’s protests prove that there are many very discontented people and the domestic military will be ready to keep them all under as much control as it possibly can.
We are left where we started out before anyone knew the name George Floyd. The struggle for change is difficult but it must continue with the knowledge that cutting police budgets or changing their practices in any way will be fought tooth and nail. Dishonest statements about rising crime or lost elections come with the territory.
The issues of police brutality and budgets cannot be approached as if they are separate from anything else. Community control of police cannot be separated from demands for peoples’ control over any other aspect of their lives. In short, revolutionary change is still what the people need. Everything from policing to housing to health care cannot be improved unless there is fundamental and systemic change. Of course that is a much bigger fight but it cannot begin without speaking truth about our condition and the difficult process of bringing about real justice.
Today We Look At The Latest On The National Strike In Colombia, A Strike For Better Pay And Staffing By Health Workers In New Zealand, And More
In today’s episode of the Daily Round-up we look at the ongoing national strike in Colombia and the establishment of the National People’s Assembly by various social movements, the ongoing vote count in Peru as the presidential runoff elections draw to a close, a countrywide strike for better wages and safe working conditions by health workers in New Zealand, the ongoing strike to demand a renewal of wages by garment and textile workers in Lesotho, and 6 years of the #NiUnaMenos movement against femicide and other forms of gender-based violence.
TC Energy, The Company Behind The Keystone XL Pipeline, Has Said It Has “Terminated” The Project.
In a shocking move, the company behind the Keystone XL pipeline has announced it will no longer move forward with the project. The controversial pipeline has been at the center of a fight over Indigenous treaties, land rights, and the permitting process. Now, it’s dead.
TC Energy, the company behind the pipeline project, announced that on Wednesday that “after a comprehensive review of its options, and in consultation with its partner, the Government of Alberta, it has terminated the Keystone XL Pipeline Project.” The project’s permits were rejected by former President Barack Obama, reinstated by former President Donald Trump, and rescinded again by President Joe Biden on his first day in office. The political seesaw, years of lawsuits, and spirited public opposition to the pipeline appear to have worked. (Disclosure: Prior to becoming a journalist, in 2011, I was arrested at a Keystone XL protest. It was worth it.)
“When this fight began, people thought Big Oil couldn’t be beat,’ Bill McKibben, author and the founder of 350 who has fought the pipeline for more than a decade, said in a statement. “But when enough people rise up we’re stronger even than the richest fossil fuel companies.”
The project would’ve transported a staggering 800,000 barrels of crude oil a day from the Alberta tar sands across the border. The pipeline raised risks of an environmental catastrophe, especially Nebraska’s Sand Hills, where delicate geology meant a spill could’ve contaminated drinking water supplies.
“On behalf of our Ponca Nation we welcome this long overdue news and thank all who worked so tirelessly to educate and fight to prevent this from coming to fruition,” Ponca Tribe of Nebraska Chairman Larry Wright, Jr. said in a statement. “It’s a great day for Mother Earth.”
TC Energy’s Keystone pipeline has a history of spilling on the regular, which didn’t exactly bode well for the larger Keystone XL project. It also would’ve been a climate nightmare; tar sands oil is one of the dirtiest fossil fuels on Earth, and the pipeline would have locked in a steady stream of it to the global markets.
“For over a decade we’ve said Keystone XL would never be built—and we meant it,” Colin Rees, a campaigner with Oil Change International, said in a text. “KXL has been dead on arrival for years, but it’s good to see TC Energy publicly recognize its own obsolescence. The fossil fuel era is ending—the only question is whether our leaders will prioritize people or polluters in the transition.”
In its announcement that the project was done for, TC Energy CEO François Poirier highlighted the company’s last-ditch effort to make the pipeline palatable by claiming it would be “net-zero emissions throughout its lifecycle,” a cheap marketing gimmick oil companies are deploying with increasing vigor in hopes of keeping polluting projects like this alive. The company also hinted it would continue trying to make climate-friendly oil a thing, which bless their hearts.
It’s hard to underscore how huge a victory this is for activists and particularly Indigenous organizers that have been out in front to stop Keystone XL. It comes as a number of other high-profile pipeline fights are underway, including protesters in Minnesota fighting the Line 3 pipeline and the entire state of Michigan locked in a fight over the Line 5 pipeline. Both are operated by Enbridge, another Canadian company looking to pump Canadian oil sands into the market.
Keystone XL’s cancellation will surely be a wind at protesters’ backs. Biden, however, has yet to support those fights. In fact, his administration has undermined another pipeline battle over the Dakota Access pipeline and pushed forward a controversial Arctic drilling project, both of which are opposed by Indigenous groups.
“This news comes as Joe Biden’s Department of Homeland Security is brutalizing Indigenous water protectors resisting the deadly Line 3 tar sands pipeline in northern Minnesota. Biden must act immediately to stop Line 3 and shut down the Dakota Access Pipeline,” Rees said.
The Indigenous Environmental Network also noted in a press release that while it was celebrating the death of the Keystone XL pipeline, some Indigenous protesters were still facing charges in South Dakota for actions taken late last year. Meanwhile, a growing number of states have passed or proposed laws that impose stiff penalties on anti-fossil fuel activists despite having numerous laws in place to deal with acts like trespassing and vandalism.
The world also needs to start building out clean energy infrastructure to replace the dirty infrastructure currently undergirding the economy. On that front, the administration has also said it’s willing to let go of some climate-friendly proposals that are part of its $2 trillion infrastructure package, which immediately received pushback from some Congressional Democrats. How much pressure activists put on the administration—and state and local governments—on these myriad issues will in many ways define the decades to come. In other words, the fights are nowhere close to over yet.
The American Bar Association And Corporate Interests Are Trying To Block A Rule That Would Expose Their Anti-Labor Activities.
When Amazon busted a union drive at its Bessemer, Ala., warehouse earlier this year, it ran a sophisticated campaign which involved sending text messages and mailers to employees warning them of the downfalls of a union, offering bonuses to employees who quit before the union election, and even allegedly accessing the dropbox that employees used to mail their ballots.
But the size and scope of Amazon’s efforts — and who was coordinating them — wasn’t fully visible to the public or to employees partaking in the election, because the Trump administration scrapped a rule that would have required disclosure of certain union-busting expenditures by corporations. The so-called “persuader” rule was designed to spotlight an industry that rakes in nearly $340 million a year advising corporations on how to prevent their employees from unionizing.
Biden promised during his campaign to revive the persuader rule, but he so far has refused to follow through on the pledge, which could expose the activities of large corporate law firms who offer “union avoidance” services and whose employees funneled big money to Biden’s campaign and the Democratic Party as a whole.
Business interests that stand to lose from the measure are actively fighting against it. That includes not just big corporations eager to quash labor efforts, but also the umbrella organization for the legal industry itself: The American Bar Association (ABA). The group has opposed the persuader rule for years, arguing it would violate the confidentiality granted to attorney-client communications.
But legal ethics experts dispute this point, and believe the ABA really just wants to protect a lucrative business for the legal industry as a whole. Blocking the rule would let union-busting law firms continue raking in fees for anti-union work while shielding their identities from scrutiny and public pressure.
“I would suspect that the ABA’s argument is, in many ways designed to serve the interests of a really powerful constituency within what’s essentially a guild for protecting the interests of lawyers within the American political system,” Scott Cummings, a professor of legal ethics at The UCLA School of Law, told The Daily Poster.
“Labor lawyers’ interests, at least on the management side, I would imagine are a pretty powerful constituency within the bar,” he added. “These are mostly large law firm lawyers, who represent big companies in labor management relations, and they have a large voice in bar governance. So I imagine that their interest in not having to disclose their involvement under these disclosure rules is pretty powerful.” A Threat To Businesses And Corporate Lawyers
The persuader rule was initially proposed by the Obama administration in 2011 by Labor Secretary Hilda Solis under the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), a law governing the disclosure of expenditures by unions and employers on labor-management activities.
Previously, the Labor Department had interpreted this law only to require disclosures when companies paid union-busting firms that were directly speaking with employees. The so-called “advice exemption” has allowed employers to avoid disclosing payments to firms that are advising them on how to handle the union drive, without interacting directly with employees.
The persuader rule would expand the disclosure requirement to apply to circumstances where lawyers or consultants are advising the employer on how to engage with employees. According to the Obama Labor Department, it would additionally cover “planning or conducting employee meetings; training supervisors or employer representatives to conduct meetings; coordinating or directing the activities of supervisors or employer representatives; establishing or facilitating employee committees; drafting, revising or providing speeches; developing employer personnel policies designed to persuade employees; and identifying employees for disciplinary action, reward, or other targeting.”
The provision would expose which firms are helping companies bust unions, which could create significant public relations problems for big corporate law firms like Jones Day, Ogletree Deakins, and Morgan Lewis that provide “union avoidance” services to clients. Just recently, Jones Day, whose lawyers helped President Donald Trump try to overturn the election, faced the threat of boycotts from law students and clients — and the persuader rule could create the same dynamic.
Anti-union corporate lobbying groups like the U.S. Chamber of Commerce and the National Federation of Independent Business both submitted public comments opposing the proposed rule.
The Chamber wrote in a comment that the persuader rule was a violation of the First Amendment, arguing that “organized labor and its allies have fabricated a narrative that portrays the long decline in private sector union density in the United States as the result of flawed National Labor Relations Board (NLRB or Board) processes and employer campaigns.”
Other business groups submitted comments opposing the rule, including the National Small Business Association, the National Association of Manufacturers, and local chambers of commerce.
Representatives of the legal industry also fought the rule.
The Association of Corporate Counsel, a professional association for in-house lawyers in corporate legal departments, submitted a comment opposing the rule, arguing it would dissuade clients from hiring lawyers.
“The simplest test for determining whether the attorney-client relationship and its associated privileges have been undermined is to ask: Will a client with legitimate interests be less likely to retain counsel due to the fear that others will learn of confidential information? Here, the answer is very straightforward: yes,” read the comment, which was drafted with the advice of an attorney from the major employment law firm Jackson Lewis. This deterrent, the Association argued, would compromise the right of clients to counsel.
The ABA made a similar argument: “By requiring lawyers to file detailed reports with the Department stating the identity of their employer clients, the nature of the representation and the types of legal tasks performed, and the receipt and disbursement of legal fees whenever the lawyers provide advice or other legal services relating to the clients’ persuader activities, the Proposed Rule could chill and seriously undermine the confidential client-lawyer relationship.”
In other words, if companies had to disclose the fact that they are retaining union-busting lawyers or consultants, they might choose not to hire them.
But legal experts dispute whether the persuader rule would actually violate lawyer-client confidentiality agreements.
“The persuader rule requires disclosure of the fact that the lawyer is providing legal advice on a union organizing drive issue, and I’m not sure that actually counts as confidential information, because this is the fact of the representation itself as opposed to anything about the content, and that’s usually not confidential,” said Cummings, the UCLA legal ethics professor.
This isn’t the first time the ABA has invoked confidentiality to try to protect its members from disclosing controversial clients. The ABA spent years lobbying against a law to crack down on the use of shell companies in order to combat money laundering and sex trafficking, using the same arguments about confidentiality and the chilling effect of disclosure.
The ABA opposed that law, critics said, because its members make a lot of money setting up shell companies, and they would be implicated in the disclosures required by the law. Matthew Stephenson, a professor of anti-corruption law at Harvard, called the ABA’s reasoning “self-serving and intellectually bankrupt.”
As Stephenson told Quartz about the ABA’s opposition, “There’s a faction of lawyers who are heavily represented not necessarily in the ABA as a whole but on relevant ABA committees on this issue, that make a lot of money from registering companies anonymously. They’re worried about losing business because in some cases the anonymity is precisely what the clients care about, such that if they can’t register companies anonymously they won’t do it at all or will go to another jurisdiction and lawyers will lose out on their business.”
Congress included a ban on anonymous shell companies in the 2021 National Defense Authorization Act. Nixed By Trump
In 2016, the Labor department finally enacted the persuader rule. It was immediately challenged by business groups and management-side labor and employment law firms in three different federal courts. In two courts, judges declined to enjoin the rule from taking effect.
But in the U.S. District Court in Lubbock, Texas, Judge Sam Cummings — appointed by President Ronald Raegan in 1987 — issued a nationwide preliminary injunction, halting the implementation of the rule.
Included in Cummings’s ruling was a lengthy discussion of the ABA’s opposition to the persuader rule. He also agreed with the argument that the rule would have a “chilling effect” on representation: “Indeed, Plaintiffs have shown that there is a substantial likelihood that that many attorneys will no longer be available and willing to offer legal advice to employers relating to union campaigns as a result of DOL’s New Rule.”
That fall, Donald Trump was elected president and soon after, his Labor Department announced it was considering a repeal of the rule.
In response, nearly three dozen law professors from around the country who specialize in legal ethics and labor law sent a letter to lawmakers in support of the rule. They argued that the persuader rule “can coexist comfortably within the lawyer’s obligations under the American Bar Association’s Model Rules of Professional Conduct,” and noted that multiple circuit courts of appeal had also found that the persuader rule did not breach the confidentiality granted to attorney-client relationships.
Moreover, such disclosures have legal precedent that have gone unchallenged, the professors wrote.
“There are many other laws that require certain disclosures by attorneys when they engage in certain activities on behalf of a client, including the Lobbying Disclosure Act (LDA) of 1995,” noted the letter. “Lobbying disclosure reports require much of the same information as on the forms that are at issue here, including the names of clients and payments. Both lawyers and non-lawyers alike are subject to the reporting requirements of the LDA, which has never been successfully challenged in over 20 years in effect.”
The Trump administration ultimately repealed the rule, precluding an appeal of the Texas federal court’s injunction.
The ABA took credit for the repeal in its member magazine. “The [Labor] department said it found the ABA comments persuasive and emphasized that the duty to safeguard client confidences has long formed the bedrock of the attorney-client relationship,” according to a November 2018 article in the ABA journal. A New Battle
Now, under a new Democratic administration, the ABA and other corporate interests are renewing their efforts to ensure the rule never comes into effect.
Biden’s 2020 platform included support for the persuader rule, but he has so far declined to use his executive authority to enact it.
A version of the persuader rule is also included in part of the Protecting the Right to Organize (PRO) Act, a major labor reform bill being considered in Congress. The legislation includes other provisions that could impact the role of union-busting these firms in union elections, such as a ban on requiring workers to attend “captive audience” anti-union meetings, and constraints on the employers’ ability to delay the union certification process.
But the PRO Act still does not have the support of all 50 Democratic senators — there are three holdouts: Sens. Mark Kelly and Kyrsten Sinema of Arizona and Mark Warner of Virginia. Even if every Democratic senator cosponsors the bill, it likely won’t become law unless the Senate eliminates or reforms the filibuster.
In the last few years, groups like the Retail Industry Leaders Association and the U.S. Chamber of Commerce have continued to lobby on the persuader rule.
Meanwhile, law firms that advertise their union-busting practices such as Littler Mendelson, Ogletree Deakins, Morgan Lewis, and Ballard Spahr are major Democratic Party donors, and employees of those firms contributed nearly $900,000 in total to Biden’s 2020 presidential campaign.
Ballard Spahr, a firm that advises on “union avoidance,” hosted a virtual “Biden’s Home States” event for his inauguration celebration, along with the Delaware and Pennsylvania Democratic parties. Ballard Spahr employees donated over $200,000 to Biden’s 2020 campaign.
At the same time, the ABA has continued its crusade against the rule.
This April, the ABA sent a letter to Senate leadership, demanding they remove the persuader rule from the PRO Act.
“By expressing our opposition to the persuader rule provision in the PRO Act, the ABA is not taking sides in a union-versus-management dispute,” the ABA wrote. “Instead, the ABA is defending the confidential attorney-client relationship and right to counsel by urging Congress not to impose an unjustified and intrusive burden on clients and the attorneys and law firms that represent them.”