Trump NLRB Smashed Google Guy

In August of last year, I wrote that the new Republican-led NLRB would reject James Damore’s unfair labor practice charge. I argued that they would do so, not because long-standing NLRB law requires them to, but rather because the management-side attorneys that lead Republican NLRB administrations want to give management as much discretion as possible to fire people. We learned today that this is precisely what ended up happening.

The NLRB General Counsel wrote a memo advising NLRB Region 32 not to pursue the case. The memo concedes that the Damore communications that led to him being fired were mostly protected by the NLRA, but then goes on to say that those protected communications were mixed in with statements about women that were so over the top that he lost protection under the NLRA.

Here’s the money shot:

In furtherance of these legitimate interests, employers must be permitted to “nip in the bud” the kinds of employee conduct that could lead to a “hostile workplace,” rather than waiting until an actionable hostile workplace has been created before taking action.

You get that? It does not say that Damore’s conduct was bad enough to constitute a hostile workplace. Under prevailing interpretations of the Civil Rights Act, it probably wasn’t. But it says instead that employers can fire someone for otherwise protected activity if it decides that the protected activity involves conduct that could lead to a hostile workplace. In support of this proposition, the memo cites only examples from other cases decided by GOP NLRBs, including one where the GOP NLRB upheld the termination of a union activist who said her foreman was a Klansmen.

There is almost no chance that a Democratic-controlled NLRB would have reached the same conclusion. As proof of this, consider the Cooper Tire picketing case decided under the Obama Board. In that case, picketers yelled out clearly racist statements at replacement workers and were fired for doing so. The NLRB said the termination was unlawful because the statements occurred in the context of protected activity (picketing) and the 8th Circuit ultimately affirmed the NLRB’s decision in that case. Picketing is a somewhat different legal situation than memos spread by email lists or whatnot, but the case nonetheless provides a good sense of how much Democratic boards are willing to tolerate in order to reduce the ability of employers to fire people who are engaged in otherwise protected activity.

None of this analysis is to say that the Republican position on this is necessarily wrong. The interaction of the Civil Rights Act and the National Labor Relations Act is obviously very tricky on the edges and it may make sense to lean more in the direction of the CRA where the two come into collision. But the Republican calculation here is not based on their love of the CRA. It’s based on their love of management discretion.

As I noted in my August post, cases like these are a good test for what Republicans actually care about. One might think that the Trumpian Republican party would do everything they can to defend Damore because of his self-styled bucking of “political correctness.” But one would be wrong. Republicans stay focused on the nuts and bolts of shaping an economic regime that is most favorable to bosses. And if they need to sell out culture warriors to do so, they will every time.

Neoliberals Used to Refer to Themselves as New Democrats

Jonathan Chait is mad that people call him a “neoliberal” and so insists that the word has no meaning and that it does not describe a real political change that occurred a few decades ago. Many have already explained how silly this feint is, but I would like to add two other points.

First, potent words get stretched in popular discourse to the point of incoherence and contradiction all the time. It is one of the great paradoxes of language that words that pique people eventually get annihilated into meaninglessness through overuse. There is nothing special about “neoliberalism” in this regard. The same could be said of words like “intersectionality,” “structural,” “patriarchy,” and dozens of similar words that had fairly clear meanings at one point but that you can also find people using in a lot of different and conflicting ways in the discourse.

Second, if we can put aside the word “neoliberal” for a second, Chait’s main claim here is that nothing changed about the Democratic party and that leftists are lying or delusional when they say it did. What’s weird about this move is that Democrats themselves claimed at the time that they were changing. They even called themselves “New Democrats,” you know like “Neodemocrats,” or maybe even “neoliberals.” Perhaps the self-proclaimed New Democrats, which included Bill Clinton and Al Gore, among others, were lying about changing, but we should at least take seriously the proposition that they were sincere and actually intended, as they claimed, to shift the party towards the center and away from the left.

The Democratic Leadership Council, which Bill Clinton was president of prior to his run for the White House, certainly spoke a big game about how they were different from old Democrats. In their 1991 document titled “The New American Choice Resolutions” (there is that pesky word again!), they had this to say:

The old ideologies on the right and left are no longer sufficient to realize the aspirations of the American people, and both political parties will be left behind unless they put forth new answers and new institutions for a new era.

But in the minds of too many Americans, the Democratic Party has stood for government programs that don’t work, special interests before the interests of ordinary people, and a reluctance to assert American values at home and abroad. The New Deal policies that built and united the middle class no longer command its loyalty.

Our party’s challenge today is to discard the orthodoxies of the past and make government a champion of national purpose and not a captive of narrow interests, a creator of opportunity and not an obstacle to it. Democrats should once again stand for change and innovation, not blind loyalty to programs of the past. Unlike the Republicans, we believe in government and want to make it work in the information age.

The new choice we offer is a new public philosophy, not a new set of programs.

What does this New Democratic Philosophy consist of?

We believe the mission of government is to expand opportunity, not bureaucracy.

We believe the role of government is to guarantee equal opportunity, not mandate equal outcomes.

We believe our society has a moral duty to experiment with fundamentally new approaches to liberate the poor from poverty and dependence by promoting work, family, and independence. America will not succeed in the information age if we continue to waste the potential of millions of disadvantaged citizens.

We believe in reinventing government. We want to eliminate unneeded layers of bureaucracy, and give citizens more choice in public services, from child care and care for the elderly to public schools.

And they just keep on going, finishing with a wonderful flourish.

Our goal is to make the beliefs, ideas, and governing approach of the new choice the dominant political thinking in America before this decade is out. Just as the New Deal shaped the political order for the industrial age, the new choice can define politics in the information age.

Our purpose is not to seek the middle of the road but to build a new road that leads beyond right and left to move America forward.

The industrial age is over; the old isms and the old ways don’t work anymore. Today, and in the months to come, we will put forth new answers and a new way of thinking which are based on the principle of inclusion and work for the greatest public good. We invite the American people to join our cause.

The idea that the New Democrats (don’t call them neoliberals!) represented a break from the Democrats of old that turned against the interests of their base is not a particularly radical one. In fact, a gentleman by the name of Jonathan Chait said as much just four days ago:

That is not the approach Democrats have taken in office. Bill Clinton famously fashioned himself as a “New Democrat,” angering his base on crime and welfare and declaring the era of big government over.

Imagine that.

Alabama Part II

I wrote a post yesterday pointing out that the real story of Doug Jones’s upset in Alabama was the inordinate amount of white support for the Democratic candidate. In support of this position, I used the 2008 and 2012 exit polls to show that black turnout was no different in 2017 than those years, and yet those years saw the Democrat lose by over 20 points while this election saw the Democrat win by 1.5 points. Some basic math and reasoning tells us that the difference between losing by over 20 points and winning by 1.5 points was not high black turnout but rather white voters supporting the Democrat by much higher margins than they typically do.

The post did not really have a point beyond that. There is no clear reason why this helps any of my political preferences. I just thought it would be worthwhile to tell the truth about the Alabama outcome in the face of nearly unanimous misreporting about what happened.

Because people who are real into politics often follow it in the same way normal people follow TV shows (i.e. with huge emotional investment in the drama, characters, and plot development), this post attracted a lot of weird ire. Most of the weird ire was just that: strange outbursts with not even an attempt at making a substantive point. But there was one argument that some brought up that is worth addressing here.

The argument goes like this: It is not right to compare the 2017 election to the 2008 and 2012 elections because the latter two were presidential elections. If you want to really figure out whether black turnout or different white voting behavior was the primary cause of Jones’s victory, you should use midterms or other special elections as comparisons.

This argument poses some practical difficulties because no such data exists for comparison. But you can fiddle with the exit poll data to simulate what a normal low-black-turnout midterm election would look like and see that, relative to such an election, it is still the case that the change in white voting behavior was by far the largest factor in Jones’s victory.

To do that, I created the following baseline scenario. For this scenario, I took the 2017 exit polling data and I subtracted 5 points from the black share of the electorate and added 5 points to the white share of the electorate. This simulates what would have happened if black turnout had been massively lower. For this scenario, I also place white Democratic support at 15% (this was what percent voted for Obama in 2012) and I place black Democratic support at 96% (this was what percent voted for Jones in 2017).


As you can see, in the baseline scenario, Doug Jones only gets 34 points from black and white voters combined.

From this baseline scenario, we can simulate what would happen if black turnout increases to the level we saw in the Jones election. Holding all else equal, increasing the black share of the vote from 24% to 29% and decreasing the white share of the vote from 71% to 66% gives us this outcome.


Jones’s point total rises 4 points from 34 points to 38 points.

From the baseline scenario, we can also simulate what would have happened if white voters had swung towards Jones in the magnitude they did, but black turnout had remained unchanged. We do this by increasing the percent of whites voting for Democrats from 15% to 30% (Jones got 30% of the white vote), holding all else equal.


Jones’s point total rises 10 points from 34 points to 44 points.

Finally, we can bring in the actual 2017 data, which both combined high black turnout and the white swing together.


As you’d expect, Doug Jones gets 48 points under this scenario, which is 14 points higher than under the baseline scenario.

So the total difference from the baseline scenario is 14 points. The change in the white vote is responsible for 10 of those points and the change in black turnout is responsible for 4. This means the change in white vote was 2.5 times as important as the high black turnout.

Of course, all I have done here is simulate a low-black-turnout, normal-white-GOP-support election by fiddling with the numbers in a spreadsheet. You could pick different values if you want and get somewhat different magnitudes. But there is no plausible baseline in which changes in black turnout contributed more to the Jones victory than changes in the white vote.