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**APRIL 9, 2024**

On the Prospect website

Reform Groups Home In on Lack of Corporate Prosecutions at DOJ

In particular, the corporate defense record of the acting number three
at Justice, Benjamin Mizer, is put under scrutiny. BY DAVID DAYEN

The Truth About the Comstock Act

The anti-obscenity law is unenforceable and probably unconstitutional.
Conservatives still want to use it to ban medication abortions. BY
HASSAN ALI KANU

The Political Economy of Exile

Reversing Emma Lazarus BY ROBERT KUTTNER

All the News That Fits

Tom Tomorrow brings you This Modern World BY TOM TOMORROW

Meyerson on TAP

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**** Answering Musk's and Bezos's Attacks
on Workers' Rights

With big money counting on the courts, progressives are taking the fight
to the court of public opinion.

For left-of-center policy wonks, this is shaping up as a banner week.
Here in Washington, the journal

**Democracy**is holding a "Middle-Out Economics" conference, featuring a
host of progressive economists, Biden administration appointees, union
think-tankers, and political consultants who grapple with the conundrum
of how to translate Americans' anti-plutocratic instincts into votes
for candidates who support restoring power and income to American
workers. And in another part of the leftie forest, the Roosevelt
Institute held a webinar today in which one of the administration's
progressive stars, NLRB General Counsel Jennifer Abruzzo, and a panel of
law school academics discussed the sudden wave of corporate challenges
to the National Labor Relations Act, which the Supreme Court declared
constitutional four score and seven years ago (i.e., in 1937).

Those challenges
,
which have been filed by Elon Musk's SpaceX, Jeff Bezos's Amazon,
and the Albrecht family's Trader Joe's, were all mounted in a
pushback against NLRB rulings that found them guilty of illegally firing
or abusing (or both) workers trying to organize a union. Some have
challenged the structure of administrative agencies; some have
effectively called for diminishing the NLRB's limited powers or
scrapping it altogether. The challenges are many and varied, Abruzzo
noted, because "deep-pocketed, low-road employers want to divert [the
Board's] sparse resources to defending ourselves in court ... to slow
down or prevent us from engaging in concerted action," she said.
"They're just trying to stop our enforcement actions."

"These esoteric legal arguments first came about because we dared to
issue a complaint against SpaceX for firing eight workers" involved in
organizing, Abruzzo said, and such other malignant behemoths as Amazon
quickly piled on. Despite the Board's budget constraints, she vowed,
"we're not going to postpone any of our work. There's no way we'll
succumb to these pressures."

In the discussion that followed, Diana Reddy, a law professor at UC
Berkeley, provided an explanation for why the right and a segment of
corporate America has taken arms against what it terms "the
administrative state"-the agencies, many of which were established
during the New Deal, which are intended to protect Americans' rights
against corporate power. Reddy quoted one conservative law scholar who
recently opined, "Administrative law is supposed to be boring. Now,
it's not."

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That it's not-that the Federal Trade Commission and the Justice
Department are now resurrecting antitrust enforcement and the NLRB is
strengthening the previously negligible penalties for illegally
violating workers' rights-is the consequence of the Biden
administration's break with the policies of neoliberal deregulation
that had shaped every previous administration (including those of
Democratic Presidents Carter, Clinton, and Obama) since 1977. Biden's
progressivism, in turn, has been shaped by large portions of the public
awakening to the huge rise in economic inequality over the past
half-century. Just how huge that rise has been was made clear at the
Middle-Out Economics conference yesterday by the all-too-rare
empirically oriented capitalist who coined that term, Nick Hanauer.
Citing a 2020 RAND study
he
commissioned, Hanauer noted that had the distribution of income that
prevailed in three decades following World War II continued through
2018, the median yearly income of the bottom 90 percent of Americans
would have doubled from close to $50,000 to close to $100,000.

One consequence of Americans' growing understanding of just how tilted
the economy has become is their rising support for unions, which is now
at the highest level it's been in 60 years. That support is one reason
why the Musks and Bezoses fear they're not likely to prevail in the
court of public opinion, and are turning to a different court, whose
right-wing justices have already shown themselves, in

**Dobbs**, willing and able to strike down long-settled law. If
there's one thing Sam Alito hates as much as women's fundamental
rights, it's surely workers' fundamental rights, though how willing
his colleagues are to continuing ripping up America's social contracts
remains to be seen.

Then again, as Reddy noted, most American corporations were just as
fiercely opposed to the National Labor Relations Act when it was signed
into law in 1935, and it was only following the Court's 5-4 decision
upholding it that came two years later that they learned to live with
it. That reluctant acceptance, Reddy said, was due in part to the huge
burst of worker organizing that followed the law's passage but
preceded the Court's ruling, which included the historic sit-down
strikes that swept workplaces in early 1937, and the massive organizing
drives of the CIO. What unions and workers were doing on the ground, and
the support they enjoyed from the public, clearly had an effect both on
the Court and on corporate America. (So did FDR's unrealized threat to
pack the Court with more justices.)

With Musk and Bezos now imploring Alito et al. to do their bidding,
today's unions need to do what the CIO was doing when the NLRA was
first coming before the Court: organizing, rousing today's pro-union
supporters, following (as they did in 1937) the lead of the United Auto
Workers, which in that year began the unionization of mass production
industries as the constitutionality of the NLRA was then under
consideration, and which today may be on the verge of unionizing mass
production industry in the historically non-union South. Were this to
happen, the hour of Middle-Out Economics may yet come again.

~ HAROLD MEYERSON

Follow Harold Meyerson on Twitter

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