The Democrats want to abolish the filibuster. The filibuster prevents them from passing left-wing legislation like the $90 trillion Green New Deal, and laws that would fundamentally transform America in a leftward direction, economically, socially, and politically. Abolishing the filibuster means that the Democrats could pack the Supreme Court, reclassify currently-legal speech and religious activity as illegal “harassment” or “discrimination,” and turn progressive territories and enclaves into states to lock in progressive control for years. Getting rid of the filibuster would enable Democrats to pass laws that moderates, conservatives, and libertarians loathe and detest, and pack the courts with left-wing judges who uphold left-wing speech restrictions.
So yesterday, Vice President Harris announced that she would support eliminating the filibuster to pass legislation she wants. Senate Majority Leader Charles Schumer likewise says getting rid of the filibuster is “something our caucus will discuss in the next session of Congress.”
As law professor Josh Blackman explains, “Democrats will nuke the filibuster if they win the White House and have majorities in both houses.”
The Democrats don’t need to abolish the filibuster to pass mainstream liberal laws. Even with the filibuster, the Democrats were still able to pass Biden’s $1.9 trillion stimulus package, and other progressive laws that cost at least $2 trillion.
But they do need to abolish the filibuster to lock in their control of Congress and the presidency in the future. By abolishing the filibuster, Democrats can pass left-wing laws that increase Democratic vote tallies at the expense of the secret ballot (such as “ballot harvesting“), and admit new progressive enclaves like the District of Columbia as states, resulting in left-wing territories with small populations each having two Democratic senators, and the Democrats permanently controlling the Senate.
As the Wall Street Journal explains,
Chuck Schumer, the Senate Majority Leader, recently said he wants to break the filibuster for a national abortion law and pass a bill that would impose California-style voting rules on all 50 states. Good-bye voter identification, and hello nationwide ballot harvesting.
It won’t stop there. Sen. Sheldon Whitehouse says he wants to break the filibuster to restructure the Supreme Court. Sen. Bernie Sanders has recently given up on his former institutional objections and now favors 51 votes to pass his proposals.Every interest group in the Democratic coalition will demand that its priorities pass with 51 votes too. Think statehood for the District of Columbia. And think Big Labor’s PRO Act that would ban right-to-work laws nationwide, among other ideas that would normally require bipartisan majorities to pass the Senate.
As Professor Blackman explains,
Once D.C. has statehood, it will become far more difficult for Republicans to obtain a majority in the Senate, and nearly impossible to confirm Republican-nominated judges. And once the lower courts and Supreme Court are packed, there will be no judicial check on whatever a simple majority of Democrats can muster. Within a span of a two years, our country would become nearly unrecognizable. If you think this sort of rapid change is impossible, look at what just happened in Mexico.
Democrats could also admit many other progressive enclaves as states, giving the Democrats dozens or hundreds of additional Senators. The Harvard Law Review has proposed subdividing the District of Columbia into 127 states, which would in turn elect 254 Democratic Senators, giving the Democrats a two thirds majority of the Senate even if every other state votes Republican. The progressive media web site Vox wrote about this in an article called, “A law journal just floated a wild idea to add 127 more states to the union. And it’s all constitutional.” The Democrats could also turn Democrat-controlled territories like the Virgin Islands into states, to give the Democrats additional Senators.
Once Democrats abolish the filibuster, they will pass the PRO Act, which is modeled on a California law that wiped out the jobs of hundreds of thousands of freelancers. Kamala Harris supports the PRO Act.
As an MSNBC article explains, the California law on which the PRO Act is modeled wiped out many jobs: “The law’s practical effect was to make freelance labor impractical. Overnight, independent writers, graphic designers, photographers, journalists and content producers found themselves unemployable. Local papers had to contract out of state to get the scoop on what was happening just next door. Music festivals ceased operations and performing arts groups went on hiatus.”
California eventually created exemptions to that law, AB5, but it didn’t solve the problem. As an article in The Hill explains:
Three years ago this month, California Gov. Gavin Newsom signed California Assembly Bill 5 (AB5) into law, essentially outlawing freelance journalism and most other independent contracting. Opponents of the bill warned the law would devastate the longstanding careers of many independent businesspeople in the Golden State. Three years later, it’s clear the critics had it right: AB5 has proven to be among the most ill-conceived state labor policies in recent memory.
If AB5’s restrictions were limited to California, that would be bad enough. But the Biden administration appears determined to bring these destructive labor restrictions to the national stage in the form of the Protecting the Right to Organize Act (PRO Act). Policymakers should pay heed to the damage AB5 has wrought in California and stop this disastrous policy in its tracks.
AB5 created a three-part “ABC” test used to determine whether a worker is an independent contractor or employee. The key provision of the test is that anyone performing work within the “usual course of the hiring entity’s business” must be classified as an employee, rather than a contractor.
The outcome was predictable: Many businesses and nonprofit enterprises that relied on independent contractors stopped using those workers — both because workers who had built self-sufficient careers did not want to trade the freedom of freelance work for the false benefits of employment, and because many companies couldn’t afford to convert them to full-time employees.
Countless self-employed Californians suddenly lost work opportunities and faced steeply declining incomes. Making matters worse, AB5 took effect in January 2020, mere weeks before Newsom locked down the state in response to COVID-19. Just when Californians most needed the freedom and flexibility that independent contracting provides, they were frozen out of the labor market.
AB5’s opponents — an array of workers and groups who crossed partisan and ideological boundaries — begged the legislature to reconsider upending California’s freelance economy. Lawmakers handed out exemptions to the politically connected; union leaders were put in charge of deciding which professions got an exemption. Mostly, lawmakers ignored workers’ concerns. They passed the bill with dozens of exemptions, and when the dire consequence everyone predicted came to pass, the legislature added dozens more the following session.
AB5 is so cut through with exemptions, it is defined more by what it doesn’t apply to than what it does cover. The ABC test is a single section containing just 325 words. The dozens of exemptions to the test span 10 sections and include 6,902 words. There are now more than 75 exemptions to a law that was supposed to define labor rules for the entire state.
Once Democrats abolish the filibuster, they will also pass the BE HEARD Act, which is supported by almost all Democrats, including Kamala Harris. Under the BE HEARD Act, even the tiniest employers with only one or two employees will face unlimited liability in lawsuits, for things like discrimination, or harassment committed by an employee. It would also redefine sexual harassment in an overly broad and confusing way that could lead to small businesses being liable for trivial acts or comments by an employee. These small businesses would also be liable for attorneys fees that could dwarf what they end up paying workers who sue them.
Right now, small businesses aren’t covered by most federal discrimination laws like Title VII, unless they have at least 15 employees. This doesn’t mean they can get away with being racist. If they intentionally discriminate based on race, they can be sued under a federal race discrimination law that covers even the smallest employers, 42 U.S.C. 1981. And if they fire someone for a non-race-based reason — such as because of their sex, age, or religion — most of them can be sued under state law (although attorneys fees and punitive damages in such lawsuits are often limited.)
But businesses with fewer than 15 employees aren’t covered by federal laws against unintentional discrimination, or non-racial discrimination.
But the “BE HEARD” Act would change that. It treats small business just like big businesses, by subjecting them to unlimited damages in lawsuits. It does that by first subjecting even the tiniest employers to federal law (Title VII) — and then by abolishing the limits on compensatory and punitive damages contained in federal law (currently, damages are capped at $300,000, plus backpay).
But the biggest problem small business would have as a result would not be those damages, but lawyers’ bills. Every time an employer loses a federal discrimination lawsuit, it has to pay the attorneys’ fees of the workers’ lawyer. But if the employer wins, it typically doesn’t recover any of its attorneys’ fees from the worker. This means the employer always ends up paying a bundle when it is sued for discrimination.
Big businesses can afford to pay hundreds of thousands or millions in attorneys fees. Small businesses can’t, and can go broke due to a single protracted discrimination lawsuit.
Those attorneys’ fees are often much bigger than the amount of money the worker gets from suing the employer — meaning that it is lawyers, not workers, who are the primary beneficiaries of federal antidiscrimination laws. That can encourage lawyers to sue businesses over minor violations. For example, a court awarded a worker over $40,000 in attorney fees against her employer, even though she suffered only $1 in damages in Brandau v. State of Kansas (1999).
And that doesn’t cover a business’s own legal costs. Remember, it has to pay its own lawyer, too. Years ago, it was estimated to cost $25,000 for an employer to get a very weak discrimination lawsuit against it dismissed at the earliest phase of litigation (“motion to dismiss”), $75,000 to get it dismissed at a later phrase (“summary judgment”) and $250,000 to defeat a discrimination lawsuit that makes it all the way to a trial.
The BE HEARD Act would also allow businesses to be sued long after memories have faded, making it hard to defend themselves. It extends the statute of limitations from 180 days to 4 years. It classifies commonplace hiring criteria as “discrimination,” by expanding the legal definition of unintentional discrimination to put the “burdens of production and persuasion” on employers in disparate-impact lawsuits. It also holds employers liable for certain unintended pay disparities by incorporating the Paycheck Fairness Act, which is discussed at this link.
It holds employers strictly liable for harassment committed by supervisors in violation of company policy. It defines people as supervisors, even when they really aren’t, because they lack the authority to hire, fire, or promote anyone. It allows not just employees, but also interns and independent contractors, to sue employers.
It also redefines sexual harassment and discriminatory harassment in overly broad ways that will be confusing to jurors and may lead them to find an innocent employer guilty.
For example, it says conduct can be “workplace harassment” even if “the conduct occurred outside the workplace,” and that conduct can be sexual or discriminatory harassment even if did not do “tangible” or “psychological” harm, did not interfere with work, was “participated in” by the “complaining party,” or “the complaining party is not the individual being harassed.” That could lead to juries finding businesses liable for harassment based on trivial things that shouldn’t be considered harassing, such as speech about racial, sexual, or religious issues.
Kamala Harris has also called for restricting online speech, and making social media companies restrict speech.
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