WEBVTT - Weekend Law: Voting by Mail, Unions Back Off & Sandwich Guy 0:00:02.759 --> 0:00:07.000 This is Bloomberg Law with June Grossel from Bloomberg Radio. 0:00:08.760 --> 0:00:11.320 We as a Republican party are going to do everything 0:00:11.440 --> 0:00:14.560 possible that we get rid of mail invalots. We're going 0:00:14.600 --> 0:00:17.080 to start with an executive order that's being written right 0:00:17.120 --> 0:00:20.080 now by the best lawyers of the country to end 0:00:20.239 --> 0:00:25.599 mail in ballots because they're corrupt. And do you know 0:00:25.640 --> 0:00:27.720 that we're the only country in the world. I believe 0:00:27.760 --> 0:00:30.200 I may be wrong, but just about the only country 0:00:30.200 --> 0:00:31.160 in the world that uses it. 0:00:31.560 --> 0:00:35.599 Actually, more than thirty countries have mail in voting, including 0:00:35.640 --> 0:00:40.760 the UK, Canada, and Australia, and voter fraud is extremely rare, 0:00:41.000 --> 0:00:44.640 although President Trump has complained about it for years and 0:00:44.720 --> 0:00:49.280 of course fought losing legal battles over allegations of fraud 0:00:49.440 --> 0:00:53.200 in the twenty twenty election. Still, on Monday, Trump said 0:00:53.240 --> 0:00:57.080 he'll sign an executive order to end mail in voting 0:00:57.320 --> 0:01:00.880 and voting machines, which he claims are all also highly 0:01:00.880 --> 0:01:06.560 inaccurate for validation. He pointed to comments by Russia's authoritarian 0:01:06.680 --> 0:01:10.920 leader Vladimir Putin in an interview on Fox You Know. 0:01:11.080 --> 0:01:14.400 Vladimir Putin said something. One of the most interesting things. 0:01:15.080 --> 0:01:19.039 He said, your election was rigged because you have mail 0:01:19.080 --> 0:01:22.880 in voting. He said, mail in voting every election. He said, 0:01:22.920 --> 0:01:26.160 no country has mail in voting. It's impossible to have 0:01:26.240 --> 0:01:28.399 mail in voting and have honest elections. 0:01:28.840 --> 0:01:32.440 By midweek, the White House seemed to have shifted course, 0:01:32.800 --> 0:01:37.120 with a top aid saying the administration would pursue legislation 0:01:37.520 --> 0:01:41.800 to attain Trump's goals. My guest is constitutional law professor 0:01:41.880 --> 0:01:45.760 Rick Pildis of NYU Law School. Rick, under the Constitution, 0:01:46.240 --> 0:01:50.440 what roles do the president, Congress, and the states play 0:01:50.600 --> 0:01:51.440 in elections? 0:01:52.080 --> 0:01:54.720 So let's start with the president. So the president has 0:01:54.760 --> 0:01:58.440 no power constitutionally to dictate to the states how they 0:01:58.440 --> 0:02:03.680 conduct national liefections. The Constitution gives states the power to 0:02:03.720 --> 0:02:06.559 regulate the way in which our national elections are held, 0:02:06.800 --> 0:02:10.600 and the constitution also gives Congress the power to decide 0:02:10.680 --> 0:02:14.040 to sort of supplant the states in that role. But 0:02:14.360 --> 0:02:18.519 the president has no power constitutionally to dictate how states 0:02:18.560 --> 0:02:19.520 conduct elections. 0:02:19.720 --> 0:02:23.800 Let's say Congress agrees with President Trump, what could Congress 0:02:23.919 --> 0:02:26.880 do to change the way elections are held? 0:02:27.200 --> 0:02:29.440 I think that begins to get us into the more 0:02:29.480 --> 0:02:32.880 significant questions. In a sense, So even if the president 0:02:32.919 --> 0:02:36.200 doesn't have the power to do this. Once he puts 0:02:36.200 --> 0:02:39.240 the marker out there on this by issuing the executive order, 0:02:39.440 --> 0:02:41.880 then the question becomes, you know what's going to happen 0:02:41.919 --> 0:02:45.200 in the States, and what's going to happen in Congress. Congress, 0:02:45.200 --> 0:02:49.800 in theory, does have the power to determine issues like 0:02:50.080 --> 0:02:54.240 the appropriate use of absentee ballots in national elections. Congress 0:02:54.240 --> 0:02:57.880 could require absentee ballots to be provided, It could determine 0:02:57.880 --> 0:03:00.680 the conditions under which they can be used, and I 0:03:00.680 --> 0:03:03.440 think in theory it probably could ban their use. There 0:03:03.480 --> 0:03:07.880 might be some constitutional challenges individual voters would bring, but fundamentally, 0:03:07.919 --> 0:03:11.760 the Supreme Court has recognized extremely broad power in Congress 0:03:11.760 --> 0:03:15.720 to regulate national elections under the Election's clause. Now you 0:03:15.760 --> 0:03:19.200 know whether Congress would actually do this, I'd say fairly 0:03:19.240 --> 0:03:23.000 skeptical about because number one, of course, as long as 0:03:23.040 --> 0:03:26.360 we have the filibuster, the Democrats are going to oppose 0:03:26.400 --> 0:03:29.760 this and it won't get through the Senate. But number two, 0:03:29.880 --> 0:03:33.280 the Republicans have for a very long time been very 0:03:33.360 --> 0:03:37.480 much against nationalizing the election process. There will certainly be 0:03:37.480 --> 0:03:40.080 some Republicans I would imagine who would go along with 0:03:40.160 --> 0:03:43.120 the President but I think there might well be pushed 0:03:43.120 --> 0:03:47.480 back from within the Republican Party on going down this route. 0:03:47.480 --> 0:03:51.840 At the national level, election administrators, including in red states, 0:03:52.000 --> 0:03:54.440 are not going to be happy about a change like 0:03:54.480 --> 0:03:57.920 this because it means the election process will be more 0:03:58.160 --> 0:04:01.080 complicated for them to run because increase the number of 0:04:01.080 --> 0:04:04.440 people who would turn to in person voting. So, in theory, 0:04:04.480 --> 0:04:07.240 Congress could regulate in this area, but I don't know 0:04:07.280 --> 0:04:09.640 what the politics will be about that. I think then 0:04:09.760 --> 0:04:13.520 the question is what will happen in red states, you 0:04:13.520 --> 0:04:15.680 know that are run by legislators and governors who are 0:04:15.680 --> 0:04:19.720 sympathetic to the president's agenda, And will we see significant 0:04:19.760 --> 0:04:22.600 changes going on in red states about the use of 0:04:22.640 --> 0:04:23.760 absentee ballots? 0:04:23.960 --> 0:04:27.000 And let's say Congress does pass a law like that, 0:04:27.360 --> 0:04:28.599 what would a challenge look like? 0:04:28.920 --> 0:04:33.039 So if Congress were to ban absentee ballots altogether, I 0:04:33.080 --> 0:04:37.880 can imagine individual voters who cannot be in the jurisdiction 0:04:38.200 --> 0:04:41.840 on election day or during the early voting process if 0:04:41.839 --> 0:04:44.800 the state has early voting, who say I just can't 0:04:44.880 --> 0:04:48.239 exercise my right to vote at all, in effect, because 0:04:48.279 --> 0:04:51.040 I just for whatever reason, cannot be in the jurisdiction 0:04:51.160 --> 0:04:53.960 during those days. I could imagine they might bring a 0:04:54.120 --> 0:04:57.880 challenge under the federal Constitution and sort of right to 0:04:57.960 --> 0:05:02.160 vote constitutional doctrine. They would argue that this ban would 0:05:02.160 --> 0:05:05.520 impose a severe burden on their voting rights. So I 0:05:05.560 --> 0:05:08.280 suspect that would be the form the challenge would take, 0:05:08.320 --> 0:05:10.800 And I think the voters who would have the strongest 0:05:10.800 --> 0:05:13.640 case would be the voters in that category I just described, 0:05:13.720 --> 0:05:16.839 people who just physically can't be in the jurisdiction during 0:05:16.880 --> 0:05:19.200 any of the days on which voting takes place. I 0:05:19.200 --> 0:05:21.800 don't know whether they would win that constitutional challenge, but 0:05:21.920 --> 0:05:23.440 that's what I would envision. 0:05:23.680 --> 0:05:27.440 Yeah, I mean the military votes by mail for that reason. Also, 0:05:28.000 --> 0:05:32.640 Republicans poured tens of millions of dollars last year into 0:05:32.680 --> 0:05:37.120 convincing their voters that ballots by mail are safe, and 0:05:37.160 --> 0:05:40.960 Trump himself has voted by mail. Now, what about voting machines. 0:05:41.080 --> 0:05:44.920 Trump wants to go from voting machines to paper ballots 0:05:45.040 --> 0:05:46.160 with watermarks. 0:05:46.720 --> 0:05:50.640 Well, I don't understand exactly what he has in mind 0:05:50.839 --> 0:05:56.520 yet about that. So we do overwhelmingly vote on paper 0:05:56.560 --> 0:06:00.320 ballots already. The question then, is how those bad ballots 0:06:00.320 --> 0:06:04.320 are counted, And typically you know, that's where machines come 0:06:04.360 --> 0:06:07.440 into the picture. So if you vote on you know, 0:06:07.480 --> 0:06:10.480 what's called an optical scan machine, you fill in the 0:06:10.520 --> 0:06:14.159 bubbles on your ballot. You then enter the ballot into 0:06:14.200 --> 0:06:18.160 the machine that tabulates the vote. So if he means 0:06:18.240 --> 0:06:21.880 that voting should be done on a paper ballot, most 0:06:21.920 --> 0:06:24.680 of our voting already takes place that way. If he 0:06:24.800 --> 0:06:27.760 means that the vote should be somehow counted by hand 0:06:28.320 --> 0:06:32.159 rather than counted by a machine whose accuracy has been 0:06:32.320 --> 0:06:35.280 you know, validated, and by the way, we also do 0:06:35.360 --> 0:06:39.000 audits after the tabulation to make sure the machines are 0:06:39.080 --> 0:06:41.480 accurately counting the ballots. If he means to get rid 0:06:41.520 --> 0:06:44.760 of machines for counting the ballots, it's very hard to 0:06:44.839 --> 0:06:48.120 conceive of what that would mean and how that could 0:06:48.160 --> 0:06:50.919 possibly be done, because it would mean, you know, hand 0:06:51.000 --> 0:06:55.760 counting millions of ballots, which would introduce huge delays in 0:06:55.800 --> 0:06:59.159 the counting process. And we know counting by hand is 0:06:59.200 --> 0:07:02.559 actually much less accurate than using the machines to count 0:07:02.560 --> 0:07:04.880 the ballots. So it's really unclear to me what he 0:07:05.000 --> 0:07:07.880 even has in mind about voting machines. I guess we 0:07:07.960 --> 0:07:11.560 need to see what the order actually ends up saying what's. 0:07:11.520 --> 0:07:14.000 Really going on here? Is it an attempt to give 0:07:14.000 --> 0:07:19.360 the Republicans an advantage in the midterms because Democrats supposedly 0:07:19.800 --> 0:07:23.400 do better with mail in voting than Republicans. Or is 0:07:23.400 --> 0:07:25.239 it a power grab or something else. 0:07:25.720 --> 0:07:28.200 It's a little hard for me to speculate about, you know, 0:07:28.240 --> 0:07:32.000 what exactly is going on. He's obviously had an issue 0:07:32.080 --> 0:07:34.840 about mail in ballots for quite a while. He made 0:07:34.840 --> 0:07:36.480 a big issue of this in the run up to 0:07:36.520 --> 0:07:39.680 the twenty twenty election. I think the view is that 0:07:39.680 --> 0:07:42.800 that ended up hurting him in the election because many 0:07:42.840 --> 0:07:46.680 Republicans then decided not to vote by absentee ballot, and 0:07:46.720 --> 0:07:49.400 whether those people voted in other ways or not, you know, 0:07:49.400 --> 0:07:52.679 we don't know for sure. I'm sure that this statement 0:07:52.680 --> 0:07:57.200 by him is causing consternation among other elected Republican officials 0:07:57.320 --> 0:08:01.280 who probably think it's not in their interest to abandon 0:08:01.400 --> 0:08:05.480 absentee voting. But you know, for whatever reason, he has 0:08:05.560 --> 0:08:08.920 a being his bondt about this issue, and he lacks 0:08:08.920 --> 0:08:11.960 the power to do anything directly about it. But we'll 0:08:11.960 --> 0:08:13.960 see if Congress ends of doing anything. 0:08:14.280 --> 0:08:18.320 Trump did issue an executive order in March that, among 0:08:18.440 --> 0:08:23.120 other things, would require proof of US citizenship in order 0:08:23.160 --> 0:08:27.040 to vote. A couple of federal judges block that order. 0:08:27.480 --> 0:08:30.880 Does that indicate how other challenges might fare well. 0:08:31.000 --> 0:08:35.199 I think there's little doubt that an executive order that 0:08:35.360 --> 0:08:37.640 purported to tell the states that they could not use 0:08:37.640 --> 0:08:41.720 absentee ballots would be blocked by the federal courts. Again, 0:08:41.760 --> 0:08:44.040 I'm a little hesitant to speculate, you know, too much 0:08:44.120 --> 0:08:47.559 until we see the actual order and how it's designed 0:08:47.600 --> 0:08:50.360 and what powers it asserts. But he doesn't have the 0:08:50.440 --> 0:08:53.959 power to dictate the states that they cannot use absentee 0:08:53.960 --> 0:08:57.800 ballots or can only use them under certain conditions. So 0:08:58.080 --> 0:09:00.400 I don't have much doubt that in order that did 0:09:00.440 --> 0:09:03.640 that would be struck down put on hold by the court. 0:09:04.040 --> 0:09:07.360 Trump is also using his influence to try to win 0:09:07.480 --> 0:09:11.640 the mid terms by getting Texas to change its maps 0:09:11.679 --> 0:09:16.480 to give Republicans five more seats, and California is doing 0:09:16.679 --> 0:09:22.720 retaliatory redistricting to get five more Democratic seats there. On Thursday, 0:09:22.760 --> 0:09:27.600 Governor Gavin Newsom signed legislation for a special election in 0:09:27.720 --> 0:09:31.800 November to approve a redrawn congressional map in that state. 0:09:32.200 --> 0:09:34.600 This was not a press commence. We intended to have. 0:09:34.640 --> 0:09:38.600 This is not an action the legislature intended to advance. 0:09:38.720 --> 0:09:42.000 This is not an election we expected to be holding 0:09:42.720 --> 0:09:47.920 on November fourth, But they shot the first bullet. 0:09:48.640 --> 0:09:52.760 I take it that, though it's very unusual, there's no 0:09:53.040 --> 0:09:57.280 legal impediment to mid decade redistricting. 0:09:57.880 --> 0:10:01.400 We've had very little mid decade redistrict in American history, 0:10:01.440 --> 0:10:04.760 is certainly in modern American history. The last time this 0:10:04.880 --> 0:10:06.760 happened in a way that went to the Supreme Court 0:10:06.880 --> 0:10:09.760 actually was also from Texas in the early two thousands. 0:10:09.880 --> 0:10:12.319 I actually filed an amicust brief in that case urging 0:10:12.360 --> 0:10:16.479 the court to hold the federal Constitution precluded mid decade redistricting. 0:10:16.800 --> 0:10:20.080 The Supreme Court didn't agree with that position. But we're 0:10:20.120 --> 0:10:22.800 in a world in which control of the House rests 0:10:22.800 --> 0:10:26.120 on such a fine margin kind of election after election, 0:10:26.640 --> 0:10:28.960 which is a very important part to understand as a 0:10:29.000 --> 0:10:31.559 backdrop to all of this, And so it leads the 0:10:31.600 --> 0:10:35.199 political parties to fight over every single inch of terrain, 0:10:35.760 --> 0:10:39.040 and so various kinds of you know, norms that have 0:10:39.120 --> 0:10:41.320 been around for a while, you know, are breaking under 0:10:41.320 --> 0:10:44.679 that pressure, which is what's happening with the constraints against 0:10:44.760 --> 0:10:49.000 mid decade redistricting, and the Pandora's box that opens up is, 0:10:49.200 --> 0:10:51.400 you know, if state can do it once, they could 0:10:51.440 --> 0:10:54.200 just adjust their districts every couple of years to try 0:10:54.240 --> 0:10:57.240 to maximize part of advantage throughout the decade, and of 0:10:57.240 --> 0:11:01.480 course it's going to trigger you know, retaliator mid decade redistricting. 0:11:01.920 --> 0:11:05.800 And it's another example of the kind of tactics that 0:11:05.840 --> 0:11:08.839 at the end of the day, really undermined public confidence 0:11:09.040 --> 0:11:12.839 in the legitimacy of the process. Jerrymandering is bad enough 0:11:12.880 --> 0:11:15.400 when it happens once a decade, but if we move 0:11:15.480 --> 0:11:19.360 down a path towards sort of perpetual redistricting for partisan 0:11:19.400 --> 0:11:22.880 advantage seeking, it's all the worse. So none of these 0:11:22.880 --> 0:11:25.680 things really promote the integrity of the process from the 0:11:25.720 --> 0:11:27.160 perspective of voters. 0:11:27.559 --> 0:11:32.080 Perpetual redistricting, that's a scary thought. Thanks so much, Rick. 0:11:32.360 --> 0:11:35.840 That's Professor Rick Pildus of NYU Law School, coming up 0:11:35.880 --> 0:11:39.040 next on The Bloomberg Law Show. There's been a significant 0:11:39.160 --> 0:11:43.280 drop in union elections as the unions play a weight 0:11:43.400 --> 0:11:47.439 and see game warry of organizing and taking risks during 0:11:47.440 --> 0:11:51.439 the Trump administration. I'm June Grosso and you're listening to Bloomberg. 0:11:52.720 --> 0:11:56.480 President Trump made his position on unions pretty clear in 0:11:56.520 --> 0:11:59.840 a conversation with Elon Musk about a year ago. 0:12:00.120 --> 0:12:01.240 I mean, I look at what you do. 0:12:01.320 --> 0:12:04.880 You walk, you want to quit, they go a strike. 0:12:04.960 --> 0:12:06.679 I won't mention the name of the company, but they 0:12:06.720 --> 0:12:07.840 go on strike and use it. 0:12:07.840 --> 0:12:08.319 That's okay. 0:12:08.360 --> 0:12:10.839 You're all gone. You're all gone. So every one of 0:12:10.880 --> 0:12:12.439 you is gone, and you are the greatest. 0:12:12.640 --> 0:12:16.120 Trump was no friend to unions in his first administration, 0:12:16.640 --> 0:12:20.400 and in the past six months he's ended collective bargaining 0:12:20.440 --> 0:12:25.200 for two thirds of federal workers, effectively paralyzed the federal 0:12:25.200 --> 0:12:31.000 agency that decides unfair labor practices and disputes over union elections, 0:12:31.400 --> 0:12:34.880 and rescinded the minimum wage that federal contractors have to 0:12:34.880 --> 0:12:38.400 pay workers, just to name a few anti union actions. 0:12:38.960 --> 0:12:41.640 So then it may not be so surprising that there's 0:12:41.679 --> 0:12:45.840 been a significant drop in union elections and petitions to 0:12:45.880 --> 0:12:49.280 the National Labor Relations Board in the last six months. 0:12:49.880 --> 0:12:53.640 That stands in contrast to the previous three years, where 0:12:53.679 --> 0:12:58.240 there were historic numbers of union elections, representation petitions, and 0:12:58.400 --> 0:13:02.319 unfair labor practice charge just filed each year. My guest 0:13:02.400 --> 0:13:05.360 is labor law expert and Lafasso, a professor at the 0:13:05.440 --> 0:13:09.480 University of Cincinnati Law School. And the average number of 0:13:09.640 --> 0:13:14.040 newly certified unions per month dropped twenty two point three 0:13:14.080 --> 0:13:18.760 percent between January and July of this year, and there's 0:13:18.800 --> 0:13:21.800 been a fifteen point eight percent drop in the number 0:13:21.840 --> 0:13:25.880 of representation petitions filed in that time period. How do 0:13:25.920 --> 0:13:27.840 you count for this significant drop? 0:13:28.440 --> 0:13:30.600 I think you have to look at both sides of 0:13:30.600 --> 0:13:35.920 the equation. First, you had historic increase under Biden, and 0:13:36.360 --> 0:13:41.840 under bait progressive general counsel. The board was relatively progressive, 0:13:42.120 --> 0:13:45.760 but not quite as progressive as General Counsel Jennifer Brusso was. 0:13:45.880 --> 0:13:50.000 So Brusso was aggressively progressive. She looked at the law 0:13:50.600 --> 0:13:53.640 and she interpreted the law in a way that, in 0:13:53.679 --> 0:13:57.120 my view at least was reasonable. But on the progressive side, 0:13:57.160 --> 0:13:59.640 the law can always be interpreted more progressively or more 0:13:59.640 --> 0:14:03.160 conscis servatively more pro union or more pro business, and 0:14:03.280 --> 0:14:05.560 it's not like the law has a single meaning. And 0:14:05.720 --> 0:14:08.880 she was on the very progressive side, and that emboldened 0:14:09.040 --> 0:14:14.400 and encouraged unions to file election petitions and also defile 0:14:14.480 --> 0:14:18.000 unfair labored practice charges even where it might have been 0:14:18.080 --> 0:14:22.160 a more iffy theory of why they were being unfairly treated. 0:14:22.440 --> 0:14:25.440 Iffy because in the past they may not have gotten 0:14:25.440 --> 0:14:28.920 that theory validated for the board. So that's going to 0:14:28.960 --> 0:14:32.960 increase the numbers. Then when Trump came in, they're remembering 0:14:33.240 --> 0:14:36.280 the first Trump board, and the first Trump board as 0:14:36.320 --> 0:14:40.720 progressive as Jennifer Brusso was, it was reactionary. It was 0:14:41.040 --> 0:14:44.920 extremely to the right, much more pro business and even 0:14:45.400 --> 0:14:48.000 in some instances I would say not just pro business 0:14:48.000 --> 0:14:51.480 but anti union more so than any other board ever 0:14:51.560 --> 0:14:55.040 in the history of the National Labor Relations Board. And 0:14:55.440 --> 0:14:58.240 they're remembering this and it was very painful for them. 0:14:58.640 --> 0:15:01.240 So they're in this sort of wait and see pattern, 0:15:01.600 --> 0:15:05.720 anticipating the worst. So I'm at a conference right now 0:15:05.800 --> 0:15:08.040 and I'm listening to people and they don't want to 0:15:08.080 --> 0:15:11.040 file petitions right now because they are really afraid. 0:15:11.440 --> 0:15:13.080 Do you think the new board is going to be 0:15:13.120 --> 0:15:16.920 as conservative as the board in the first Trump administration. 0:15:17.560 --> 0:15:20.800 Yeah, the board doesn't have a quorum. I personally don't 0:15:20.840 --> 0:15:24.040 think that the Trump two board will be as reactionary 0:15:24.080 --> 0:15:26.480 as the Trump one board. I could be wrong. The 0:15:26.520 --> 0:15:29.720 reason I'm saying this, though, is because the general counsel Callan, 0:15:29.800 --> 0:15:32.640 who is a conservative man, so he's going to interpret 0:15:32.680 --> 0:15:34.840 the law in a more conservative fashion, is going to 0:15:34.840 --> 0:15:39.680 be more pro business fashion. However, he's an institutionalist. He's 0:15:39.680 --> 0:15:42.040 been the regional director for one of the regions out 0:15:42.080 --> 0:15:44.320 in the West, I think in California for a long 0:15:44.360 --> 0:15:48.000 time he was a board member. He's loved by everyone. 0:15:48.280 --> 0:15:50.680 He was at the board when I was there, everyone 0:15:50.760 --> 0:15:53.520 loved him. He was just kind, he was easy to 0:15:53.680 --> 0:15:56.960 work with. He doesn't want to destroy the agency. Also, 0:15:57.320 --> 0:16:01.600 people Trump put forward for the board also institutionalists. He 0:16:01.680 --> 0:16:04.520 could have picked people that had union busting careers and 0:16:04.560 --> 0:16:08.440 he doesn't seem to be doing that. So it's possible 0:16:08.960 --> 0:16:13.360 that the fear that's going on is an overreaction. But 0:16:13.680 --> 0:16:16.080 I think at least they're waiting and seeing what this 0:16:16.240 --> 0:16:19.640 board will do. So when you put those two things together, though, 0:16:19.960 --> 0:16:23.920 the sort of record highs and then the remembering of 0:16:24.000 --> 0:16:27.680 what the Trump board did in his first administration, you 0:16:27.800 --> 0:16:30.320 get this huge swing. I don't know if it's going 0:16:30.400 --> 0:16:32.080 to last. It's going to be very interesting to see, 0:16:32.160 --> 0:16:33.440 and I think it's going to depend on what this 0:16:33.640 --> 0:16:37.320 board starts doing and whether it was willing to dismantle precedents. 0:16:37.840 --> 0:16:41.880 Is this reluctance coming from the union leaders or the 0:16:41.920 --> 0:16:46.440 workers who might fear the political climate, especially in light 0:16:46.440 --> 0:16:49.760 of the economy and the labor market. I mean, where's 0:16:49.760 --> 0:16:50.680 it coming from? 0:16:50.960 --> 0:16:54.320 Oh? Both, definitely. So from the worker's point of view, 0:16:54.720 --> 0:16:57.680 they're scared. There are people that are afraid to even 0:16:57.760 --> 0:17:02.400 speak out against the president of retaliation because we saw 0:17:02.560 --> 0:17:06.000 that the president decided to fire a large percentage of 0:17:06.040 --> 0:17:08.840 the federal workforce, which he has direct control over. So 0:17:09.040 --> 0:17:12.440 people are afraid to speak out. Now, whether that's justified 0:17:12.520 --> 0:17:15.080 or not, the historians will tell us that, but people 0:17:15.280 --> 0:17:17.520 certainly are afraid, and so they don't want to stick 0:17:17.560 --> 0:17:21.000 their necks out right now. But union leaders, who are 0:17:21.119 --> 0:17:24.840 thinking about these things and hearing from their constituents are 0:17:24.960 --> 0:17:29.000 also concerned, and they're more in the wait and see pattern, like, well, 0:17:29.080 --> 0:17:32.520 let's see what's going on. But the workers themselves, I think, 0:17:32.560 --> 0:17:36.080 are afraid. And they're also afraid because the economy isn't 0:17:36.080 --> 0:17:39.280 as good. So when you had a much better economy, 0:17:39.359 --> 0:17:42.280 which despite what everyone was saying, we had a pretty 0:17:42.280 --> 0:17:45.040 good economy under Biden, but the economy has been going 0:17:45.119 --> 0:17:48.880 down and down, and the labor market is much tougher. 0:17:49.240 --> 0:17:52.359 Right now, there's no slacks in the labor market. So 0:17:52.600 --> 0:17:55.200 it's hard. If you get fired from a job right now, 0:17:55.400 --> 0:17:58.200 let's say you're unjustly fired because you're a union activist, 0:17:58.840 --> 0:18:02.680 you may not get another job. It's very tough. So 0:18:03.400 --> 0:18:07.399 this makes people afraid to organize. It makes the labor 0:18:07.480 --> 0:18:10.680 organizer's job and the labor union leader's job that much 0:18:10.720 --> 0:18:11.680 more difficult. 0:18:11.880 --> 0:18:15.399 You say, wait and see, but don't the unions already 0:18:15.760 --> 0:18:19.840 know where Trump stands, especially with the executive order that 0:18:19.920 --> 0:18:24.239 he issued ending collective bargaining for two thirds of the 0:18:24.240 --> 0:18:29.480 federal workforce. Even before Trump took office, student athletes dropped 0:18:29.600 --> 0:18:34.440 organizing efforts at Dartmouth College and the University of Southern California. 0:18:34.920 --> 0:18:37.720 Well that was smart of them, because the General Council 0:18:37.800 --> 0:18:42.720 has withdrawn a Brusso's memo, her General Council Memo stating 0:18:43.000 --> 0:18:46.520 that student athletes are actually employees and should have the 0:18:46.520 --> 0:18:50.360 protections of the board. So we do know almost certainly 0:18:50.680 --> 0:18:53.280 what this board would do with that. So on that issue, 0:18:53.720 --> 0:18:57.240 it's pretty clear. But there is sometimes some very easy issues. 0:18:57.440 --> 0:19:01.160 For example, remember the early two thousand when Bush was 0:19:01.200 --> 0:19:05.639 the President Chamber and Wilma Leebman, two people that couldn't 0:19:05.640 --> 0:19:09.200 be further apart. A progressive Leaveman and a conservative chamber 0:19:09.320 --> 0:19:12.960 and very conservative chamber. They've agreed on six hundred cases together. 0:19:13.119 --> 0:19:15.600 Now they were all found voids by the Supreme Court 0:19:15.680 --> 0:19:17.920 because there was only two and they weren't a quorum, 0:19:18.160 --> 0:19:20.520 but not because of what they decided. Those were all 0:19:20.560 --> 0:19:24.160 easy cases. There's plenty of easy cases to go forward. 0:19:24.440 --> 0:19:27.320 What they're waiting and seeing on and I think what 0:19:27.400 --> 0:19:30.280 they are not going to do is we're not going 0:19:30.320 --> 0:19:32.879 to see them pushing the envelope. But I would be 0:19:32.920 --> 0:19:35.320 surprised if Ingian say, Okay, we're going to ask for 0:19:35.359 --> 0:19:38.800 expanded remenedies right now. I wouldn't ask for them because 0:19:38.800 --> 0:19:41.760 I wouldn't want that precedent to go before a court. 0:19:41.960 --> 0:19:43.800 First of all, I wouldn't want to go before the board, 0:19:44.119 --> 0:19:45.840 and then I wouldn't want to go before the court. 0:19:46.119 --> 0:19:48.760 So they're not going to push the student athlete issue 0:19:48.840 --> 0:19:51.359 right now. So if I were student athletes right now, 0:19:51.680 --> 0:19:54.400 I might go for a voluntary recognition, but I wouldn't 0:19:54.400 --> 0:19:55.440 go for anything else. 0:19:55.840 --> 0:19:59.360 And isn't the president in a legal battle to exert 0:19:59.400 --> 0:20:03.159 more control roll over independent agencies like the NLRB. 0:20:03.840 --> 0:20:06.760 The president is trying to control the administrative agencies a 0:20:06.800 --> 0:20:09.399 lot more. And the president who's taking the position that 0:20:09.440 --> 0:20:12.720 he can fire board members and only this pre court 0:20:12.760 --> 0:20:15.560 can tell us if that's true. My guess is, even 0:20:15.640 --> 0:20:18.760 though right now the precedent at the Supreme Court is 0:20:19.080 --> 0:20:23.000 that he can't fire commissioners or board members, that they 0:20:23.080 --> 0:20:25.760 are likely to reverse that obvious divided vote. And I'm 0:20:25.800 --> 0:20:30.160 talking about Humphrey's executor. So if he can fire anyone 0:20:30.200 --> 0:20:32.400 at will, if he doesn't like a decision that comes 0:20:32.400 --> 0:20:34.600 out of the board, then he'll just fire the person. 0:20:34.960 --> 0:20:37.359 So I'm sure that these board members are going to 0:20:37.359 --> 0:20:40.400 be somewhat more beholden to the president than they normally 0:20:40.440 --> 0:20:43.240 were in an independent agency where they really were independent 0:20:43.400 --> 0:20:46.119 of the president. I think that will happen. And let's 0:20:46.119 --> 0:20:48.919 face it, he already fired member Willcox, and I do 0:20:49.000 --> 0:20:51.160 want to remind the audience that she was the first 0:20:51.200 --> 0:20:54.960 black female board member, and so the look is very, 0:20:55.080 --> 0:20:58.240 very bad that he decides to fire the first black 0:20:58.320 --> 0:21:01.960 board member but not the democrat white And again that 0:21:02.000 --> 0:21:04.480 could be a coincidence, I don't know, but it is 0:21:04.520 --> 0:21:07.159 a very bad look and so it does send the 0:21:07.200 --> 0:21:11.280 message definitely, But the president is not going to fire 0:21:11.560 --> 0:21:15.159 a board member because of an obvious, simple case of 0:21:15.240 --> 0:21:18.320 enforcing the law. I think what he would do is 0:21:18.359 --> 0:21:21.520 if it's something that gets the chamber upset, that gets 0:21:21.560 --> 0:21:25.920 Starbucks or Amazon upset, and that doesn't mean Starbucks losing 0:21:26.040 --> 0:21:28.679 a case or an election. I mean, where Starbucks this 0:21:28.760 --> 0:21:32.240 is ridiculous because these are expanded remedies or something like that. 0:21:32.480 --> 0:21:36.000 So yes, I think it's just more nuanced, and I 0:21:36.160 --> 0:21:39.000 at least am taking also a wait and see, and 0:21:39.080 --> 0:21:43.280 I'm optimistic it will not be as bad for unions 0:21:43.359 --> 0:21:46.480 as it was other than trump one administration. Let me 0:21:46.480 --> 0:21:48.280 put this way, I wouldn't bet on what I'm saying. 0:21:48.320 --> 0:21:50.359 I just think it's more likely than not, like forty 0:21:50.440 --> 0:21:52.520 nine to fifty one percent. That's where I'm at. 0:21:52.600 --> 0:21:56.800 Would you say that labor unions are already playing defense. 0:21:57.200 --> 0:21:59.800 They're sort of on the front lines of some of 0:21:59.840 --> 0:22:05.240 the legal fights against Trump's reduction enforced plans and moves 0:22:05.280 --> 0:22:09.760 to exclude two thirds of the workforce from collective bargaining rights, 0:22:09.800 --> 0:22:14.720 and initiatives that shutter agencies and affect universities. 0:22:15.400 --> 0:22:20.080 Absolutely, unions are definitely on the defensive, and they're concerned. 0:22:20.680 --> 0:22:24.240 There's a lot of things means can do, but remember, 0:22:24.680 --> 0:22:27.640 whatever they do for their members, they also can't live 0:22:27.720 --> 0:22:31.600 without members. They need fees because organizing takes money and 0:22:32.000 --> 0:22:35.360 getting benefits for their members takes money. So they are 0:22:35.640 --> 0:22:38.359 on the defensive and they want to survive. And I 0:22:38.359 --> 0:22:40.240 can't get into the mind of every union, but I 0:22:40.240 --> 0:22:43.160 wouldn't be surprised if for them this is an existential threat. 0:22:43.480 --> 0:22:46.320 That's how higher education feels right now. I mean, I'm 0:22:46.400 --> 0:22:49.520 a member of a union at my university, and we 0:22:49.600 --> 0:22:52.720 certainly feel that this is an existential threat. People are 0:22:52.960 --> 0:22:57.120 palpably afraid. And by the way, we're a public institution, 0:22:57.480 --> 0:22:59.800 so what's going on in public institutions is more at 0:22:59.800 --> 0:23:01.720 this date level. But it's the same kind of thing 0:23:01.720 --> 0:23:05.080