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Labor’s Future

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Shaun Richman has a very interesting and deeply thought out proposal for a Labor Bill of Rights that is well worth your time. It all makes sense as a labor and legal strategy for pushing for a reinvigorated labor movement.

Here are the ten principles

The Right to Free Speech
The Right to Self Defense and Mutual Aid
The Right to Strike
The Right to Organize Free from Unreasonable Search and Seizure
The Freedom From Taking Away Union Fees
The Right to Not Be Locked Out for Exercising Labor Rights
The Right to a Job
Freedom from Cruel and Unusual Regulation
The Right to Make Demands and Bargain Freely
Powers Not Exercised by Unions Are Reserved to Workers Who Act in Concert

Just as an example, I will quote one of the discussions here and then leave the rest for you to peruse.

Labor’s Fourth Right: Labor Organizing Efforts Should Be Free from Unreasonable Search and Seizure

On a Fall day in 2008, the figurative autumn of the presidential administration of George W. Bush, officials at the Service Employees International Union (SEIU) inked an organizing rights deal for employees of the global security firm G4S. These sorts of agreements are an essential tool for workers to freely and fairly choose whether or not to be represented by a union. This is doubly true for security workers who are statutorily barred from seeking a union certification election with the National Labor Relations Board, if they are joining a union that also represents non-guards.

The agreement was the culmination of a years-long campaign run by a global coalition of unions. Faced with a pressure campaign that transcended national boundaries, G4S zeroed on where they had the most power to undermine its general thrust: the U.S. legal system. Specifically, the company filed a civil lawsuit against SEIU under the Racketeering Influenced and Corrupt Organizations Act (RICO).29

More and more organizing and counter-organizing occurs outside the context of traditional labor organizations, and outside the context of the NLRB.30 To be successful, many unions engage in what are called “comprehensive campaigns,” which may utilize legal and regulatory challenges aimed at creating liabilities for employers and interfering in complex business deals to augment worker activism.

Through statutes such as the Fair Labor Standards Act (FLSA) or Title VII, courts can offer workers a better chance to remedy workplace violations. Current labor law reform legislation in Congress, such as the Employee Empowerment Act and WAGE Act, seek to expand workers’ access to courts for labor violations. But however much there is an advantage to access to the courts, they can also present a host of new problems.

Two major areas where court proceedings have been used against workers include the RICO Act to go after unions engaging in comprehensive campaigns, and a host of abusive litigation tactics against workers seeking to vindicate their workplace rights in court, particularly “strategic lawsuits against public participation” (SLAPP) suits.31 Both sets of tactics have the intended purposes of chilling organizing activities by those with superior access to resources, and both should be pushed back against.

If workers are to have meaningful workplace rights, they cannot be subject to RICO and SLAPP suits for exercising those rights.

These cases are almost always without merit, but they can tie up a tremendous amount of a union’s money and staff attention in getting them dismissed. Indeed, the G4S RICO suit was hardly the only one darkening the skies over SEIU at the time. The global solidarity campaign did eventually put enough pressure on G4S to bring them to the table with SEIU. But the equal pressure of the RICO suit gave the company a bargaining chip to get the union to settle for a deal that protected fewer workers than the union had sought to organize (and fewer, comparably, than their foreign counterparts). As one corporate attorney told the New York Times about their use of RICO suits to get settlements from the union, “When they settle it normally breaks the campaign.”32

Although the deal involved a commitment by G4S to withdraw the RICO suit, that proved to be an unnecessary concern. A federal judge moved to dismiss the meritless case just hours after it was already withdrawn.

The use of RICO suits against labor is not merely an expensive distraction; it also is “an attempt to revive a nineteenth century conception of unions as extortionate criminal conspiracies.”33 Recognizing that organized crime had become “a highly sophisticated, diversified, and widespread activity that annually drain[ed] billions of dollars from America’s economy by unlawful conduct and the illegal use of force, fraud, and corruption,” Congress passed RICO with the purpose of “seek[ing] the eradication of organized crime in the United States.”34 However, starting in the 1980s, employers began using civil RICO to attack labor. The purpose of such suits is often to destroy effective comprehensive campaigns.35

Employer use of RICO suits when unions are trying to organize a workplace using a corporate campaign treats legitimate organizing tactics as coercive or extortionate,36 and assigns a property value to the free speech and assembly of a civil rights organization. These suits not only expose unions and union officials to major liability, but also link unions with criminal activities. Anti-union groups such as the National Right to Work Committee then promote these suits to further that linkage, and preserve the notion that unions are criminal organizations.

The malicious prosecution of labor is not limited to RICO suits; it is also used in SLAPP suits. The term “SLAPP suits” stems from an influential study that resulted in a book and series of papers that sought to identify a growing trend where citizens and groups were being sued for engaging in a variety of political or other conduct.37 These activities were as diverse as circulating petitions for signatures to reporting police misconduct, with the purpose of the suits being to silence opponents and dissuade certain conduct.38

Whereas early SLAPP suits were most common in zoning and other land use disputes, their use by employers has been growing.39 Hallett provides an example of such suits that is becoming all-too common where in response to a lawsuit by temporary guest workers that alleged involuntary servitude, wage theft, and other employment law violations, the employer filed counterclaims for “defamation/libel, invasion of privacy, tortious interference with business relations, intentional infliction of emotional distress, abuse of process, and civil conspiracy.”40 These tactics are, in many respects a modern-day continuation of employers using the courts as a weapon against workers.41

Workers have some limited protections in the form of the anti-SLAPP suits passed by a variety of states, but Hallett proposes the creation of a labor organizing privilege that would shield communications made between workers in the context of organizing. But these do not offer robust protection against attacks using the courts because not all states have such statutes.42

Courts recognize the need to protect privileged communications between attorneys and clients, priests and penitents, physicians and patients, between spouses, and others. By placing communications in the privileged camp, they become free from the fear of SLAPP suits and other forms of intrusion. In determining whether a communication should be privileged, and exempt from disclosure, the test developed by legal scholar John Wigmore is usually applied. This test requires that:

The communications must originate in a confidence that they will not be disclosed.
This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
The relation must be one which in the opinion of the community ought to be sedulously fostered.
The injury that would inure to the relation by the disclosure of the communication must be greater than the benefit thereby gained for the correct disposal of litigation.43

Based on this test, some jurisdictions have recognized a privilege protecting communications with a union representative.44 Hallett goes one step further in arguing that the Wigmore test and other societal factors show that a labor organizing privilege should be recognized. Such a privilege “would be held by the worker and would protect communications concerning organizing or collective bargaining between two or more workers, or between workers and their representatives.”45 The courts have granted broad managerial discretion to the physical workspace, but labor should push back against intrusions and after-the-fact surveillance on worker communications.

How to Restore This Right

Section 7 of the NLRA protects workers rights to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection,” and Section 8(a)(1) categorizes employer surveillance as an unfair labor practice.46 Unions could file Unfair Labor Practices against employers that file meritless RICO civil suits, and an activist NLRB could deem the practice to be a violation of the labor act and possibly go to court to enjoin RICO suits from interfering with workers’ federally protected rights.

To have an arm of the government joining with a union to get a meritless RICO suit dismissed would be quite powerful. Having such an ally in the proceedings could open a space for unions to argue that the twisted misuse of RICO is a violation of their First Amendment rights of free speech and assembly and of workers’ Thirteenth Amendment right to be free from involuntary servitude.

So all of this makes a lot of sense. In an ideal world it does anyway. My only skepticism about these legal strategies is where I think the labor movement is headed in terms of the government. Basically, we are heading back to the Gilded Age, where courts routinely rule against anything at all that would help a union. In that era, judges, including on the Supreme Court, had no problem at all completely ignoring a law such as the Sherman Anti-Trust Act that was passed to limit monopoly when it applied to corporations but would create new meanings for that law to declare that union actions such as boycotts were a combination to unlawfully restrict trade. And even when the Clayton Anti-Trust Act was passed to alleviate this problem, the Court rendered it largely ineffective in terms of how it helped labor and Samuel Gompers and other architects of it were very disappointed.

It’s pretty clear that Reasonable Moderate Sam Alito will rule against unions in any and all cases. Not only does he have this record, but his sister Rosemary Alito is an anti-union lawyer for a leading union-busting firm. It runs in the family. I think we know how he would rule on Lochner, not to mention Friedrichs. Neil Gorsuch is the same. Clarence Thomas probably would and John Roberts is the ultimate justice of the New Gilded Age in terms of giving and creating new power for corporations. Any additional justices Trump or any Republican names will be the same. When Abood is overturned and agency fees are eliminated in public sector unions, it will be a huge blow for the remnants of organized labor. But that will hardly be the end of it. Expect year after year for new challenges to anything unions can do with any effectiveness. Like as occurred the Gilded Age, it would not surprise me one bit to see a labor movement in 2030 that still exists but that has government as an open enemy that consistently hamstrings labor, rendering its power moot and with courts throwing union leaders in jail for any practice that challenges corporations. I would also not be surprised to see legal challenges to the Fair Labor Standards Act, although probably not the National Labor Relations Act, given the value of corporate capture of the National Labor Relations Board. A world where overtime and the minimum wage are thrown out as unconstitutional is entirely possible.

Of course, we could have at least stemmed this tide temporarily by electing Hillary Clinton, who would have named justices that at least weren’t abjectly anti-labor but she gave a speech to Goldman Sachs once so many on the labor left couldn’t swallow the horror. Yes, I am still consistently amazed at how parts of the left fail at strategic thinking when it comes to general elections and now they reap the harvest they help sow.

None of this makes Richman’s ideas bad or antiquated. They are great ideas. They are also hard to implement, especially when unions’ ever shrinking financial power has to be spent taking care of the members it has left and defending what they can. If there is a way to take an aggressive legal strategy to move these ideas ahead, I am all for it. Someday, in the near or distant future, there will be another movement in government and society to push for greater workers’ rights. We will need a robust agenda at that time. Richman’s ideas contribute a lot to developing that agenda. But in the face of open hostility from government that includes hypocritical judges who will just create the legal reasoning to rule against workers but for employers even when any logical thought sees the inconsistencies, it’s a very hard row to hoe.

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  • Rob in CT

    You blackmailer, you.

  • King Goat

    Abood was certainly on the ‘chopping block.’ It’s one of many extremely critical issues that were at stake in 2016, which makes the self-indulgent, negligent nomination of Clinton all the more egregious. It will take literally decades to undo the effects of that mistake.

    • Erik Loomis

      Self-indulgent? The Democratic primary voters were self-indulgent by choosing her? How does that work exactly?

      • King Goat

        I think they underestimated how weak of a general election candidate she would be, and that underestimation was influenced by several very (politically) unfortunate things (feeling confident we would win ‘no matter what,’ wanting to see the first woman president, feeling bad that they passed on her for Obama earlier, thinking it was ‘her time’, etc.).

        • sibusisodan

          Note how, once again, His Caprine Majesty does not answer the question, and deflects instead.

          • King Goat

            I answered it directly. It’s self-indulgent to vote based on these reasons rather than ‘who will win the GE.’

            • sibusisodan

              You did not. Your opening clause could be true independently of, and is irrelevant to, the question asked.

            • Erik Loomis

              You literally have nothing to offer at all except that you hate Hillary. Why don’t you do something useful like think through the future of the labor movement?

              • King Goat

                I like Hillary. I voted for her. She’s smart, competent, only a fool would prefer Trump to her.

                But I’m aware that she was severally ‘damaged goods’ and on many objective measures a bad nominee. The reasons a lot of people supported her were morally and emotionally legitimate, but politically poor.

                The labor movement’s future is really and ultimately going to be effected by the ability of the Democratic Party to nominate people who can beat goofballs with 40% popularity. Do you really disagree?

            • Murc

              It’s self-indulgent to vote based on these reasons rather than ‘who will win the GE.’

              What about the people who voted for her because they thought she could win the general?

              I am willing to go along with you this far: that nominating Hillary Clinton was a mistake that we should learn from. Yes. I agree with this.

              But where I part ways with you is that you seem to believe this was so obvious at the time that anyone who didn’t see it is to regarded as an absolute political idiot. I’m prepared to argue with anyone who says “If I could do it all over again, I’d vote for Clinton in the primary a second time.”

              But I absolutely do not hold to “it was idiotic at the time to vote for her in the primary.” It was not.

              Furthermore, you should recognize at this point that your credibility here has been extremely damaged by your months upon months of badly-supported statements, such as your repeated contentions that we need to reform our primary system to prevent candidates like Clinton from winning without any non-risible proposal for how that might happen. When facing a hostile community with whom you have low credibility but who you wish to persuade to your way of thinking, it would behoove you to approach them with a bit more humility and respect.

              The labor movement’s future is really and ultimately going to be
              effected by the ability of the Democratic Party to nominate people who
              can beat goofballs with 40% popularity.

              The Democrats aren’t the only ones with agency in this scenario, you know. There are electoral factors outside of our direct control.

              • sibusisodan

                There aren’t enough uses of ‘behoove’ on the internet. Thanks.

                • Murc

                  It’s a cromulent word!

      • so-in-so

        Can we be done with the useless, self-indulgent “let’s all talk some more about how terrible HRC was as a candidate” faux-leftists yet?

        • King Goat

          We can’t be done unless lessons have been learned, or else we’re going to repeat that. Unless you like Trump as POTUS maybe?

          • so-in-so

            The word “lessons” doesn’t mean what you think…

            • King Goat

              It does. If people are still defending their choice to back someone with a historically high unfavorable rating, the target of a FBI felony investigation, decades of scandal mongering, etc., then they’re going to make a similar mistake later.

              • BeatnikBob

                I voted for Bernie in the primary and Hillary in the general. Just like millions of other libs and Dems. I think you’re forgetting the missing ballots in PA and MI, Putin’s hackers, FOX News and Trey Gowdy and the rest of the vast right wing conspiracy. That is exactly why she lost, and until we do something about those issues, ‘learning lessons’ is a waste of time.

                Also, too: I thought she would win because of her incredible POPULARITY, shown by polls year after year. The GOP has perfected the fine art of propaganda. Obviously.

      • Aaron Morrow

        In the past, King Goat implied that some were uppity, and others were mouthy.

        I supported Sanders in the primary, and I support the blog joining me in putting King Goat in your blocked list. (I thought you already had!)

        • King Goat

          Voters, even one’s I love and often agree with, can, as a strategic matter, *be wrong* as a political matter sometimes. You really see that as impossible?

          • Philip

            As the great Winston Churchill said, “in the morning, the voters may no longer be wrong. But you will still be a jackass.”

    • JKTH

      Who should they have chosen then? We’re still waiting for that answer after thread after thread after thread of self-indulgent derailment with this same bullshit.

      • King Goat

        Let’s be frank: Clinton underperformed. She lost to a guy who, as Scott said, was a ‘terrible candidate running a terrible campaign.’ When we choose a nominee who does that, we should really question how that came about.

        • sibusisodan

          Objection, unresponsive.

          • King Goat

            Why wasn’t Jeb Bush the GOP candidate?

            • sibusisodan

              You didn’t answer the question.

              • King Goat

                Hmm, so you didn’t understand the answer. I’ll spell it out: when an ‘establishment frontrunner’ fails to get any traction, other candidates come into the process. We might have got all kinds of fresh faces without HRC’s baggage.

                • sibusisodan

                  You didn’t answer the question.

                • King Goat

                  You’re funny.

                  I think HRC has done yeoman’s work for us. She’s great. But she had unique weaknesses, and I think many other potential candidates would have done better if she bowed out, or better, if people just didn’t support her.

                • sibusisodan

                  Still not answering the question.

                • Van Buren

                  The word “she” is doing a lot of work in that paragraph.

                • Erik Loomis

                  If you all have to offer over and over is hating on Hillary Clinton, you won’t be welcome here. Talk about what you want if you have something to offer, but one note bullshit is not going to be tolerated.

                • King Goat

                  Thinking someone is not a good political choice is not ‘hating’ them. Come on.

                • Erik Loomis

                  You either stay on topic or you are gone.

                • King Goat

                  Erik, do you or not agree that if the Democrat had won the recent POTUS election that labor option discussions would be different? I’m happy to leave voluntarily if you really disagree.

                • sibusisodan

                  Perhaps you should reread the pentultimate paragraph of the OP.

                • King Goat

                  I think that agrees with me. Pretty much any Democratic candidate, if they actually won (which Clinton didn’t!) would have made this discussion different. This is why ‘picking Democratic candidates that win’ is crucial, critical to labor’s fortune, and not a ‘threadjack.’

            • so-in-so

              Because the GOP primary electorate didn’t like him. This isn’t as hard (or pertinent) as you think.

              • King Goat

                Maybe they knew something we didn’t? They did win after all.

        • BeatnikBob

          She didn’t lose. The GOP stole the election. Period. Blaming Hillary for their outright theft and vote hacking and myriad other outright crimes sounds like BS to me.

          You just like being ‘right’. I know the feeling well.

          • I blocked King Goat a while a go and it made this thread entertaining, high quality, and quite enjoyable.

    • HugeEuge

      Banging on endlessly abut the 2016 primary is not just utterly fucking pointless, it also antagonizes Dems who you might want to support your preferred candidate in 2020.

      That said, I am decidedly unenthusiastic about H. Clinton publishing a book at this moment in time (per Politico) about the 2016 election. That would just shift attention from how horrible Trump is in every way imaginable to Clinton, with all the attendant bullshit. I think it is much more productive to focus on opposing Trump right now and building for the 2018 election. So while I don’t think that Bill or Hillary Clinton has an obligation to disappear from public life,I would much prefer that they engage in low key activities to build the party and support liberal policies rather than more media-centric efforts.

    • Anna in PDX

      Jesus, what the hell is wrong with you? This is not the topic! Clinton is not the topic! Not everything is about fucking Vietnam dude! Either talk about the topic at hand or get out of here.

      • King Goat

        Clinton’s loss is exactly the proximate cause of labor’s woes. I know this, my dad was a union member and that animates most of my politics. We *really* had to win this one!

        • so-in-so

          This is evergreen, is it not?
          Clinton’s loss could (in your formulation) be the proximate cause for continued global warming, foreign policy changes, education changes, ICE enforcement, etc. Every thread can re-litigate 2016. I’m done with responding.
          This thread should be looking forward at labor rights changes, but it’s going nowhere if it’s “How to prevent a future Clinton candidacy”

  • so-in-so

    It would seem these would a good basis for Democratic messaging as well as labor messaging.
    Also, maybe RICO suits would at some point be a good response to businesses and their “comprehensive” opposition to unions in combination with anti-union consultants and advisory groups (and ALEC). “Some point” being after we again manage to dilute the GOP maleficence on the courts.

  • sibusisodan

    My flabber is gasted that RICO has been used against US unions. I have a fair bit to learn here.

    • Erik Loomis

      Oh yeah, RICO gets used all the time against unions. An organizer friend of mine was questioned by Rosemary Alito herself in a bullshit RICO case.

  • Aaron Morrow

    How many of these rights can and should be embedded into international treaty?

    • sibusisodan

      Would that be effective for the US without Senate ratification?

      • Anna in PDX

        Well given that the US still has not ratified the UN declaration of human rights or rights of the child, probably it would be not effective for the US. But it’s important to me that unions still work on an international level more than just having “international” be part of their names, so I still support Aaron’s suggestion.

      • Aaron Morrow

        No, just like the Paris climate accord it would be nonbinding goals for the US. Possibly it would help the law get to 60 votes if there’s an international agreement to do the same.

        I’d definitely push it into the next trade treaty, and dare all of the Republican Senators to abandon the Chamber of Commerce.

  • Steve LaBonne

    Please ban the fucking goat. These threadjackings are getting really, really, really old.

    • Agreed. It’s been the same thing for the last ten months. I have already personally blocked him.

      • NonyNony

        I don’t usually block people who aren’t being abusive, but his threadjacking combined with his inability to add anything relevant to any conversation is irritating me to the point where I might make an exception.

      • Bri2k

        Thank you for reminding me I can block derailers and folks with Clinton Derangement Syndrome like Mr. Goat. I will enjoy LGM so much more without his “insights”.

        • It’s really awesome! I found the thread entirely amusing

          Block, don’t mock.

          • And don’t feel you need to have a justification to block someone! Blocking is cheap! It’s harmless!

            I you want to block my prolix ass, and you think it will enhance your enjoyment of reading this blog, go ahead! I won’t be offended.

            (But really, has King Goat ever posted anything that was worth 2 seconds of your time? If no, block.

    • HugeEuge

      I do not agree. Yes the “it’s all Hillary’s fault” is stupid beyond reason and not joint pointless but counter-productive. But it’s relatively straightforward to just ignore the goat or to block him/her (almost certainly him). And unlike some other commenters, I don’t think the goat is arguing in bad faith, more like obsessive single-mindedness.

      In the end, some of the Hillary-hater and Bernie or bust voters are gettable in 2018 and 2020 and we should try to get them. Steiniacs et al not so much so fuck ’em.

      • Anna in PDX

        I mean we all have our hobbyhorses, but he is just a really blatant threadjacker who literally never discusses anything else. He is not adding to the debate, and he refuses to say anything beyond “Hillary should not have won the primaries and everything bad now comes from that” over and over.

      • Origami Isopod

        Yes, he’s arguing in bad faith. Something like 90% of his comments here are concern trolling, and he’s been doing this for about a year. If it’s obsessive single-mindedness it is not distinguishable from trolling.

  • so-in-so

    I would like to see these labor rights put out by the Democrats on the same level as FDR’s “Rights of Man”, or at least as a continuation of that. Yeah, the GOP doesn’t even recognize those rights from the 1940s, and we don’t have the power of FDR to back it, but we have to start somewhere and these seem like a great message to expand on the “better deal”. I will email this to my representatives.

  • TheBrett

    #1 is good, although it would be butting heads pretty hard with the whole “employment = endorsement” norm in the US. If one of your employees turns out to be a KKK member in their spare time, you choosing to keep them on the payroll is seen as you implicitly endorsing the KKK or saying that it’s okay. Personally, I’d like to see that norm die, but it’s a concern.

    #2 is alright, although I think those affected third-party businesses should be able to sue for damages on the supplier side.

    #3 is okay, although I thought strikes were something you were trying to avoid. Labor law has always been weirdly contradictory on that, protecting the right to strike but also endorsing collective bargaining as a means to avoid strikes.

    #4 and #5 are fine, and should be part of a broader movement to blunt nuisance lawsuits.

    #6 is not fine. I see the lockout as a fundamental right of the business-owner to withdraw their investment short of simply shutting down the whole business. I’m more amenable to banning permanent replacement workers, although that still strikes me as iffy if the union workers are technically not under contract anymore.

    #7 is good, although the enforcement is the tricky part of that. This really does tend to create two-tiered labor markets in countries that have it, and is an obstacle to hiring. But it’s usually not the actual legal side of it that’s the problem – it’s the enforcement. If it takes you 12 months and six figures to do even a lawful termination (to the point where the company finds it cheaper simply to bribe you to go away), something’s wrong.

    #8 is good.

    #9 is very good, and that seems to happen elsewhere (I remember the Canadian UAW bargaining with firms over investment levels).

    #10 seems fine.

    • Anna in PDX

      OK I am not a labor lawyer or anything but #6 does not seem unreasonable if the sole reason for the lockout is “exercising labor rights” – presumably if the business was going under or something, that would not be the same thing? Maybe I am not understanding you. Can you elaborate? I would like to know more on this topic.

      • TheBrett

        I just meant that I don’t think a business owner should be stopped from doing a lockout when the contract is done and up for renegotiation. Same with a strike – workers have a right to walk out on strike.

        • pdxtyler

          I would be ok with this if it was coupled with a ban on scabs in general and management couldn’t implement contract changes. Basically management has the right to shut things down just as workers do to better their bargaining position, but can’t act unilaterally to get rid of the contract and the workers. Currently management can implement a best and final offer so I don’t see why they would need the ability to lock people out if it was actually something the company needed to survive.

          • TheBrett

            I’d be fine if they banned or restricted permanent replacement workers.

  • Gareth

    I can’t help noticing that your list has “The Right to a Job”, but the article has “The Right to Your Job”. Is this just a typo, or do you think everyone has a right to a job as fundamental as their right to free speech?

    • TheBrett

      In the last “robots are coming to take our jobs” post, Erik argued for a Job Guarantee. So, probably yes (I am also in favor of a Job Guarantee).

      • Gareth

        Sounds good. My friend Cletus is unemployed. What job would you provide for him?

  • Paul Thomas

    People underrate the extent to which the lack of a private right of action for NLRA-based rights has crippled enforcement. The recent WAGE Act would have fixed this, but the Dems really, really missed the boat on that issue back in 09-10.

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