Skip navigation

'Up w/Chris Hayes' for Saturday, December 1st, 2012

Read the transcript to the Saturday show

  Most Popular
Most viewed

UP WITH CHRIS HAYES
December 1, 2012

Guests: Richard Arenberg, Alan Frumin, Victoria Defrancesco Soto, Akhil Amar, Sen. Jeff Merkley, Sam Seder, Don Peebles, Ed Pilkington, Zachary Iscol, Eyal Press, Danielle Brian


CHRIS HAYES, MSNBC ANCHOR: Good morning from New York. I`m Chris
Hayes.

A draft of Egypt`s new constitution will be delivered to President
Mohamed Morsi today, setting the stage for a national referendum sometime
this month.

And Private First Class Bradley Manning accused of leaking classified
documents to WikiLeaks will return to court in Fort Meade, Maryland today.
We`ll be talking about the Manning case in just a bit.

But right now, I`m joined by Richard Arenberg, co-author of "Defending
the Filibuster: The Soul of the Senate" and the former chief of staff and
legislative director to several senators, Alan Frumin who retired as
parliamentarian of the U.S. senate last year and his appearance here, this
is his first television interview since then.

Akhil Amar, author of "America`s Unwritten Constitution: The
Presidents and Principles We Live By" and Sterling professor of law at Yale
Law School, and MSNBC contributor, Victoria Defrancesco Soto, fellow at the
Center for Politics and Governance at LBJ School of Public Affairs at the
University of Texas.

Great to have you all here. All right. If President Obama wants to
get anything done in his second term, Democrats in the Senate will have to
overcome one major obstacle, the filibuster. Since Democrats took control
of both chambers of Congress in 2007, Republicans have used the filibuster
as a bludgeon against Democratic attempts to pass even basic legislation.

The percentage of bills introduced in the Senate that actually passed
has dropped from just over 25 percent in 1955 to a record low of just 2.8
percent this year, according to the Brennan Center for Justice. The rate
held steady at about 10 percent through the Clinton and Bush years and then
plummeted when Democrats took control of Congress in 2007.

That is due in no small part to filibuster. The filibuster has
mutated in the last century from a cork of the Senate rules to a routine
impediment to legislative progress. It has turned Congress into a body
incapable of acting except in times of crises.

This function has gotten so bad the Congress must now create crisis
for itself just to get anything done like the current standoff over what I
called the fiscal curb, a series of automatic tax increases and spending
cuts that were designed to force Congress to deal with the deficit. Now,
Senate majority leader, Harry Reid, is proposing changes to the filibuster
that might make Senate less dysfunctional.

Reid`s proposal would tweak the rules so that bills can, at least,
reach the floor of the Senate before being filibustered, among other
changes. Right now, senators can simply block motions to proceed, which
means the Senate can`t even debate the legislation in question. President
Obama realizing the stakes for his second term agenda endorsed those
changes on Tuesday.

White House communications director, Dan Pfeiffer, said in a state and
then, quote, "The president supports Senator Reid`s efforts to reform the
filibuster process. The American people deserve a United States Senate
that puts them first instead of partisan delay." Reid has a brief window
in the next Congress seats in January to change the filibuster with just a
51-vote majority.

And he is getting very close to getting that majority, which is a few
remaining Democrats undecided on the issues. Republicans, meanwhile, are
apoplectic. Senate minority leader, Mitch McConnell has accused Reid of
throwing a bomb into the Senate. And House speaker, John Boehner, said
Thursday, he will block any and all legislation that has passed in the
Senate if the filibuster is curtailed.

All right. Let`s start at the most basic principle level. Before we
get into the weeds of Senate procedure and the current reform rules on the
table, I would just like to put forth the proposition that the filibuster,
itself, is a ridiculous thing that we shouldn`t have and that if we -- we
have come to see it as normal and it`s been normalized because it`s existed
for a while, and there`s something to say about tradition.

But if we had this stipulation in any other area of Democratic
governance, we would absolutely blanch. For instance, if Egypt right now
which is making their new constitution says, you can only be elected
president of Egypt with 60 percent of the vote or if we said here in the
United States, you can only be elected president with 60 percent of the
vote.

Imagine the absolute chaos that that would throw American democratic
processes into. As the man who wrote the book, literally, defending the
filibuster, make the case for me why we should have this institution at
all.

RICHARD ARENBERG, AUTHOR, "DEFENDING THE FILIBUSTER": Well, first
off, let me observe that we do elect presidents sometimes with less than 50
percent majority.

HAYES: Yes, sure.

ARENBERG: Even presidents who didn`t get the most votes.

HAYES: Yes.

ARENBERG: So, the filibuster isn`t the only odd role we have.

HAYES: I agree. I`m going after them one by one.

(LAUGHTER)

ARENBERG: The long history of the Senate more than 200 years,
filibuster has been around for a good deal of that. The role that the
Senate has played historically in our system is it`s the last place where
minority rights are protected. And the twin pillars, the foundation of
what makes the Senate a unique body is unlimited debate and unfettered
amendment.

Whereas in the House of Representatives, debate is limited. Often,
amendments are not permitted at all. In the senate, the minority gets to
speak. The minority gets to offer its amendments. And these --

HAYES: The filibuster you`re saying is the guarantor of that?

ARENBERG: Absolutely. Absolutely. It`s that super majority
requirement to overcome a filibuster that requires the majority in the
Senate to deal with the minority each and every day.

ALAN FRUMIN, FMR. SENATE PARLIAMENTARIAN: It`s a question of debate.
What the filibuster means is that, in the Senate, there`s no general
limitation of debate. It`s that one thing, that aspect of Senate procedure
which is deep in the DNA of senate procedure. Questions are debatable. If
questions are debatable, there is no general majority compulsion.

And the minority has, if not, rights, certain privileges, and
historically, for more than 200 years, the minority has utilized those
privileges in something of an inherent implicit contract with the majority.
The majority says you may do this, and minority has gone about doing this
over the years whether it`s a Democratic or Republican minority with some
sense of restraint and some sense of comedy.

HAYES: Right.

FRUMIN: So, the majority says you may prevent anything from occurring
in the minority --

HAYES: But you`re not going to do that because we all have to show up
here to work the next day.

FRUMIN: Generally speaking, historically, minorities have exercised
that with some restraint.

VICTORIA DEFRANCESCO SOTO, MSNBC CONTRIBUTOR: So, as a Texan, as a
Democratic Texan, I`m hypersensitive to the protection of minority rights.
We haven`t elected a Democrat statewide office in 20 years. In the House,
there is a super majority of Republicans. In the Senate, we were two --
the Republicans were two votes shy of a two-thirds majority.

And in the Texas Senate, you have to have a two-thirds majority in
order to bring legislation to the floor. And that`s something we just
cling on to. And I know it`s different than talking about the filibuster
at the national level, but it`s that lifeline. So, you know, the -- Chris,
I know you want to get rid of the filibuster.

HAYES: Yes.

SOTO: You`re done with the filibuster.

HAYES: Yes.

SOTO: I think there`s moderation. I think in changing the rules that
you have to be present to filibuster, but we need that lifeline.

HAYES: OK. We`re going to talk about what the actual formal
proposal, because actually, no one aside from, you know, for your humble TV
host is proposing scrapping the filibuster, maybe some other people are.
But let me -- can I --

(LAUGHTER)

HAYES: I want to push back on one point and then, Akhil, I`ll get
your thoughts. I think it`s very important when we talk about the rights
of the minority, that has a certain sort of power and force in American
life, particularly, given what American history has been, right? But I
think it`s important to distinguish between -- we`re talking about the
minority rights in the context of, say, due process and civil rights, etc.

There are rights that protect individual human beings who are maybe on
the wrong side of a majoritarian democracy, but that`s very different than
the minority party in the legislative body. I don`t think they have to get
some sort of special protections.

SOTO: They are our voice. They are the voice of the individual.

HAYES: But that`s what elections are for. That`s what elections are
for.

ARENBERG: And, likewise, when we talk about majority rule, we`re not
necessarily talking about the control by the majority party.

HAYES: Right.

ARENBERG: It`s the same principle on the other side.

HAYES: Explain that. What do you mean?

ARENBERG: Well, when we talk about the majority, for example,
controlling the House of Representatives, what we`re talking about is the
majority party. We`re talking about the Republican Party that controls the
House and that control it quite thoroughly.

HAYES: Right. Yes.

ARENBERG: They threw the role`s committee, the speaker. As long as
he can keep his caucus lined up behind him, he can do essentially what he
wants. And we see, by the way, what happens, you mentioned the Texas
legislature. We see this in state legislatures in a lot of states across
the country where both Houses and governor belong to the same party.

What did the senators when Republicans went after collective
bargaining in Wisconsin, what did the state senators do?

HAYES: They went out to get a quorum.

ARENBERG: What would U.S. senators do, get on a barge outside of the
territorial waters?

HAYES: But the other thing is that Scott Walker won that election.
And like, yes, you should use every procedural mechanism to fight policies
you think are bad. And, you know, I support that. If it`s in the rules,
then use it, fine. But, Scott Walker won that election, then he won
recall. Like, you get to govern if you`re elected. Akhil, where`s the
constitution on this?

AKHIL AMAR, YALE LAW SCHOOL: The constitution is in favor of majority
rule. The filibuster, with due respect, is not deep in the DNA of the
Senate. In the entire period, before the civil war, name me one time when
any major bill was prevented from being voted upon at the end of the day by
the minority. There is not one.

Thomas Jefferson actually said majority rule is the basic principle.
Everyone knows American history. The compromise of 1850 when the Senate
got a bare majority of free states, when California came in without an
offsetting slave state, that made all the difference because here`s the
balance between majority rule and minority right.

Minorities should be able to speak. They should be able to make
amendments. They should be heard courteously, and then, we should take a
vote.

HAYES: James Madison, very quickly, and this is federalist 58. The
fundamental principle of free government would be reversed, he said, if you
had the sort of super majority threshold. It would no longer be -- no
longer the majority that would rule. The power would be transferred to the
minority.

An interested minority might take advantage of it to screen themselves
from equitable sacrifices, well said, or in particular emergencies, to
extort unreasonable indulgences. Who could ever have foreseen such a
thing?

(LAUGHTER)

FRUMIN: If you look at the federalist 63 and federalist 65, you get
the exact opposite sentiment.

HAYES: But I like this one.

(LAUGHTER)

AMAR: With due respect, you do not, OK? Because none of the
federalist papers champion a super majority rule for the Senate, and the
Senate does not have a super majority rule for most of its history.

HAYES: The constitution does -- the constitution did contemplate
places where there should be super majorities. There are absolutely -

(CROSSTALK)

HAYES: There are five super majority --

AMAR: Because the default rule elsewhere is simple majority rule.
That`s how the Supreme Court operates. That`s how the House operates.
That`s how the Senate, in fact, operated.

HAYES: Hold your thought on responding. And we`re also going to
bring in the senator -- one of the senators who is pioneering and he`s been
one of the most vocal advocates of reforming the filibuster, not scrapping
it. We`re talking about how the filibuster has developed, why it needs
reform, and what the best way to reform it is right after this break.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SEN. ALFONSE D`AMATO, (R) NEW YORK: This senator will not allow that
bill to come for a vote. If I have to stand on the floor all night and all
day tomorrow and do whatever I have to, I am prepared to do it.

I thought that I would end this about eight o`clock, but I`m feeling a
little better. And I`ve got great kidneys and I`ve got some of these
lozenges here.

I`ll be doggone if I`m going to allow any other legislation go through
right down on the border the Mexico way

(END VIDEO CLIP)

HAYES: The New York senator, Alfonse D`Amato, a filibuster in 1992
over an extremely obscure provision of tax law that was going to, he
thought, screw over New Yorkers, I think. Rich, you wanted to respond
quickly before I go to the senator.

ARENBERG: Well, yes. I just wanted to say I`m not a professor of
constitutional law, but I can read the plain language of Article 1 Section
5, which says that the Senate gets to write its own rules and rules about
debate. The length of debate are well within that constitutional
competence of the senate.

FRUMIN: And it gets to amend these rules.

(CROSSTALK)

HAYES: That brings us to the constitutional option which is to say at
the beginning of a Senate, when a new Congress is called, they adopt the
rules and they can by a majority of vote. And I want to bring in Sen. Jeff
Merkley, Democrat of Oregon, a leading advocate of Filibuster reform in the
Senate.

Senator, good morning, and you are not trying to scrap the filibuster.
Tell me what your goal is in the reforms that you have proposed.

SEN. JEFF MERKLEY, (D) OREGON: Yes. We`re trying to make the
filibuster actually work the way it was intended. That is, that folks have
to make their case known before their colleagues, before the American
public, that they can`t simply obstruct, use a filibuster, the silent
filibuster we have now to obstruct bills and kill bills in the debt of
night.

And so, clearing the path to the floor enhances debate, getting things
to conference committee certainly doesn`t subtract from debate and moves
the process forward. And the talking filibuster says that if you`re going
to obstruct or say there should be more debate, you have to make your case
and the public can weigh in on whether you`re a hero or a bum.

HAYES: If a cable news viewer has woken up early on this Saturday
morning. They watch us here and they are thinking to themselves, why am I
watching these people talk about how they`re going to run their meetings?
What is your answer for them? What are the substantive stakes for citizens
in what, I think, can appear to be somewhat an arcane procedural debate?

MERKLEY: It has to do with this. We have huge issues facing America.
Of course, many folks right now are talking about the fiscal cliff. And,
if we can`t have dialogue and decision making in the U.S. Senate, then our
government is unable to respond to the big issues that we face. And I can
tell you my perspective comes from having gone first to the U.S. Senate
when I was 19.

It was 1976, and I covered the tax act of that year. And I saw
amendment after amendment, brought up, debated, and decided. And that`s
the way the Senate generally work. The Senate is completely different
today. It`s paralyzed and broken in a way no one could have envisioned a
couple of decades ago.

HAYES: I want to show some data on that score. Culture motions,
number of culture motions, which is attempt to break filibuster have just
absolutely skyrocketed. These are -- because indications of culture has
skyrocketed. Percent of judicial nominees confirmed by the president for
Barack Obama is 42.8 percent.

You see there in the 1990s and 1980s there, and then, they go down
dramatically. And then, to give you a sense of how much things have
changed historically, this is a really important historical document, about
the evolution of how normal it was to get a 60-vote threshold, which is we
all now when we cover politics, oh they`re counting votes.

They only got 58 votes in the senate. Not going to happen. This is
from 1964, and this is a note from President Lyndon Johnson`s senate
liaison, Mike Manatos (ph), and he is writing to Johnson`s campaign manager
about a Medicaid vote, Medicaid, OK? Medicaid is a big deal. Are we going
to get Medicaid passed?

He says, "Of the 49 votes cast on behalf of Medicare, we lost two
supporters in the last election." This is after the election. So, where
are votes after the election? We also had three supporters who missed the
vote this year. Thus, if all our supporters are present and voting, we
would win by a vote of 55-45.

So, here, you have in 1964, no expectation that a bill as massive as
Medicaid will be filibustered. And now, we have a situation where,
basically, every motion to filibuster, you said earlier that the way this
works is only if the minority exercises restraint. Do you think that
restraint has been lost?

FRUMIN: It seems to have eroded. I do want to correct something that
you said earlier about the Senate adopting its rules at the beginning of
the Congress. The Senate does not adopt its rules. The Senate`s rules are
continuous. The Senate is a continuing body. And the Senate standing
(INAUDIBLE) that explicitly. So, The Senate does not need to and, in fact,
does not adopt its rules every year.

So, the Senate has litigated the question as to whether it`s
continuing body and the Senate has decided that he has -- it is, in fact, a
continuing body. You mentioned that Medicare was able to pass with less
than 60 votes. The Senate has functioned, the Senate has functioned for
over 200 years with unlimited debate

It has managed to do that. The contract between majority and minority
has been sound for over 200 years.

HAYES: Then what`s changed?

FRUMIN: Possibly the fact that there is 24/7 news cycles. What`s
changed is in the province of the political scientists, it`s not in the
province of we, the parliamentarian.

HAYES: No, but, wait a second. I want to press you on this. You
have seen what has happened. I want you just to tell me -- is it correct
that the norms of what gets filibuster have changed over your time in the
Senate?

FRUMIN: It does appear that the norms have changed, yes, but there is
an underlying principle of empowering the minority of restraining the
majority that I do believe is consistent with the framers` intent that has
worked. It`s worked through the civil war, it`s worked through the civil
rights era. It has worked.

And I think it`s an extremely important institutional political
imperative that the minority has the ability to have input.

HAYES: Senator --

FRUMIN: Meaningful input.

HAYES: Senator, I want to get your response to that and ask you if
you are preserving that, according to Alan Frumin, important principle,
according to me, not very important principle right after we take this
break.

(COMMERCIAL BREAK)

HAYES: Sen. Jeff Merkley, you`ve heard some articulations of the
hallowed principles that the filibuster guarantees. How much are you
thinking about preserving those principles and what specifically are you
saying you`re going to reform about the way it works?

MERKLEY: Yes. Everything that we`re proposing enhances the role of
the filibuster in presenting debate to the American people and views of
colleagues to the rest of the body. And, indeed, specifically first, that
you can`t filibuster a motion to get a bill to the floor. That`s like
saying we`re going to enhance debate by blocking debate. It`s illogical.

HAYES: So, it`s filibustering even before the debate starts is the
important point of --

MERKLEY: Yes.

HAYES: And I just want to check in with our esteemed panel of Senate
experts here. Are you, gentlemen, on board with that change?

ARENBERG: I am. Absolutely.

HAYES: All right. We have -- OK. We have two votes even from the
filibuster defenders here for getting rid of filibuster in the motion (ph)
to proceed. Vicky, also? OK. Good. We`ve got unanimity at the table. I
know it feels onboard. OK, what else?

MERKLEY: Second is to take away the filibuster in getting a bill to
conference committee because, quite frankly, at that point, both Houses
have passed a bill. You should get to negotiations as quickly as possible.

HAYES: Let me explain this, everyone. Let`s say you`ve passed --
now, we`re going to do a little "schoolhouse rock." How a bill becomes
law, right? You`ve passed a bill through the House, you`ve passed a bill
through the Senate. You now have two different bills which inevitably are
a little different from each other.

They have to be reconciled and something that`s called the conference
committee. The point is you`ve already gotten it through the Houses. You
shouldn`t have to overcome a filibuster just to move it from that point in
the process to the conference committee. Do you, guys, agree with that?

ARENBERG: Yes. And it`s important to note that you still can
filibuster the conference report when it comes back.

HAYES: Right, because it`s got to -- the Senate`s got to pass it
again.

ARENBERG: The substance.

HAYES: Absolutely.

FRUMIN: Once again, we`re with Senator Merkley on this.

HAYES: Good.

FRUMIN: There are three separate debatable motions is that to get the
Senate to conference. There`s no justification for them to be debated.

HAYES: So, we`ve got some consensus here about these two, and then,
the third one, I think, is the biggest one, right, senator?

MERKLEY: Yes. The third is a talking filibuster. This is the idea I
started putting out two-and-a-half years ago of saying people keep coming
to us and saying, why don`t you get something done? You`re the majority.
And we say, well, because Republicans are filibustering and folks say,
well, no, they`re not. We never see them.

We tune into C-Span and always see as a quorum call. And in fact,
what`s happened is Mitch McConnell has orchestrated a strategy of killing
bills in the middle of the night. We no longer have the culture, the
social contract that if you`re going to object to a simple majority, you`re
going come to the floor and you`re going to make your views known before
your colleagues and United States.

And quite frankly, all we`re saying here is that if you don`t have the
courage of your convictions to debate the issue after you vote for more
debate, then we should get on with the simple majority vote.

HAYES: My sense, Akhil, is that you are in favor of that change.

AMAR: All of these and weighing more. And if these changes are
adopted by simple 51-vote margin, I think a precedent will be established
that the rules can be changed by 51 votes and if, indeed, the Senate is a
continuing body, I actually think there`s a very strong case that it is.

This means if we need to go back for round 2 or round 3 of filibuster
reform not on day one, we may and we should and we will need to, I predict.

HAYES: Rich.

ARENBERG: Bingo. That`s the crux here. You keep discovering that we
don`t have a lot of disagreement about the bad behavior we`re seeing in the
Senate right now, the abuse of the filibuster rule. The question is, do we
believe that it`s worth protecting, and certainly, we do.

HAYES: And I think Senator Merkley does as well.

ARENBERG: Yes. Well, all of the reformers. I don`t know of any
member of the Senate who`s saying they want to do away with the filibuster.

HAYES: Yes. Just Akhil and I --

(CROSSTALK)

ARENBERG: Here`s where the problem is and here`s where, ultimately,
I`ll wind up disagreeing with the senator, and that is, when you use the
constitutional option, which as the distinguished former parliamentarian
said is, you know, it`s not in the rules. It`s not in the precedent.

AMAR: It`s in this.

ARENBERG: It`s not in the constitution.

(CROSSTALK)

AMAR: Checks and balances, all sorts of things are here that aren`t -
-

ARENBERG: In order to do that, what it will require is for the vice
president, the presiding officer in January, to rule that it only requires
51 votes.

HAYES: Right.

ARENBERG: That means that he will have to ignore the rules of the
Senate. He`ll have to ignore the precedence of the Senate, and he`ll have
to tell the current parliamentarian, sitting below him on the dues (ph) who
normally swivels around and gives advice to the presiding officer, which is
almost always followed, he will have to tell her swivel back around because
I`m going to ignore what you`re telling me and I`m going to rule this way.

And then -- one more point. And then, if Senator Reid has 51 votes to
support that ruling, then he can establish the precedent and exactly what
you`re saying is the advantage to that is where I see the danger.

HAYES: Right. So --

ARENBERG: And that is that it`s a slippery slope. The reformers say
that they don`t want to do away with the filibuster, but that`s the
inevitable outcome of establishing the precedent that the majority --

HAYES: Understood. So, Alan, I want to get your thoughts on this.
Senator, I also want to get your thoughts on this. I want to take a break.
Vicky, I`d like you to weigh in right after this break.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SEN. TOM HARKIN, (D) IOWA: People here are afraid of a majority vote.
I`m not afraid of a majority vote. I`m not afraid of that. And if the
people elect these crazy Tea Party people to come in here and able to do
all these whacko things, I say give them rope, give them a lot of rope, and
then the American people will find out and we`ll have a real election the
next time around.

(END VIDEO CLIP)

HAYES: I just want to interject here for a moment to just say that
the stakes here, again, it`s procedure, but the stakes are basically as
high as it gets, because the stakes are about what are the norms that
govern democratic governance. And I think the history of democratic
governance is that rules are important but norms are even more important.

And that when those norms degrade, you begin to get degradation of the
democratic process. And I think we are viewing a kind of degradation of
the norms, right, this kind of disintegration in the way the body operates,
and I think that there`s a way to address that.

FRUMIN: Majority compulsion will change the Senate forever.

HAYES: And by that, you mean, if they do the thing in which 51
senators are -- change the rules, you`re saying that precedent will change
it forever?

FRUMIN: Well, first of all, technically, it only takes a majority to
change the rules. We`re talking about --

HAYES: That`s important. Can you re-say that? Can you say that
again, because --

FRUMIN: The vote on an amendment to change the rules is a simple
majority. The issue is ending debate on that question, and there you do
get into the filibuster.

HAYES: Right.

FRUMIN: And unlimited debate. The very nature of the Senate as it`s
operated for two centuries is premised on the fact that debate is unlimited
and that there is no general mode of majority compulsion. That contract
has worked for 200 years.

HAYES: By the way, you keep saying the Senate for two centuries. I`m
not sure the Senate has got a great two century record.

(CROSSTALK)

HAYES: JUST so we`re clear here. Wait. Senator, I want to get your
response to that.

MERKLEY: Yes. There`s two separate questions. The first is, should
everyone be able to make their case on the floor, and I think all of us who
are arguing for these reforms are saying yes. And, in fact, the reforms
will help make that happen. The second question is, can 51 change the
rules? And it hasn`t been mentioned here that that Pandora`s box has been
opened several times in our history, isn`t the first time.

So, the argument that it`s a slippery slope as if it`s never been done
is simply wrong. The Senate voted three times to support the notion that
51 could change the rules in 1975. That`s what led to a huge debate that
resulted in the compromise that reduced the number required for a
filibuster from 67 to 60.

And so, -- and in terms of a continuous body, you -- we must realize
that it`s only the rules we`re talking about. Committee chairmanships and
assignments are redone. Bills die at the end of a two-year period. The
Senate isn`t continuous in any way except this argument, this contrived
argument about the rules.

And three vice presidents have made the ruling that, in fact, 51 can
change the rules. So, there is precedent for saying that if the rules are
off track, 51 can put them back on track.

FRUMIN: In 1975, the Senate reversed its procedural decision. The
substantive goal was achieved. The reformers did get an amendment to the
Cloture Rule luring the vote necessary for Cloture from two-thirds voting
to three-fifth due to chosen (INAUDIBLE). So, from 67 possibly --

HAYES: They reduced it. They reduced the filibuster threshold
because it was being abused.

ARENBERG: Right.

FRUMIN: So, there was a victory there based on the, quote/ unquote,
"constitutional option" going right up to the precipice, and the Senate
procedurally having succeeded in having these rules amended procedurally
backed away and said, no, this is not a procedural question.

HAYES: But the point is what underlies all of this discussion of
rules is that there is no other logic but majority logic, at the end of the
day, there can be nothing other than majority logic that ultimately decides
what is happening in that body.

SOTO: Because norms have changed.

HAYES: Right.

SOTO: And we keep coming back to that. The reason we see all of this
dysfunction is because folks aren`t talking to each other anymore. They`re
not getting along. And one point as a political scientist that I like to
focus on is the electoral connection and the institutional dysfunction that
promotes that.

I`m a big proponent of independent redistricting even though
redistricting doesn`t affect the senate. It`s something that happens at
the very local level and then migrates up to the federal level.

HAYES: In terms of this culture of essentially polarization?

SOTO: Exactly. Polarization. I`m also a fan of non-partisan
primaries. There are some unintended consequences to that. But we see at
every level we become more and more entrenched in our partisan preferences.
And we`re seeing it in large -- and there`s (INAUDIBLE) we`ve talked about
and other issues that causes -- but the Senate has become dysfunctional.

FRUMIN: If you take away the right of the minority to be a player in
the Senate, then people will talk to each other even less.

HAYES: Right. I mean, that`s the point she`s making. And you made
the point that I think is very interesting is that, basically, that we
should look at the abuse of the filibuster as essentially a symptom of the
deeper problem which is this polarization.

FRUMIN: Right.

HAYES: I actually disagree. And I think when rules and norms get
mismatched, you`ve got have to change the rules. I want to thank Senator
Jeff Merkley, Democrat of Oregon, Al Frumin, the recently retired Senate
parliamentarian, and Akhil Amar, sterling professor of law at Yale Law
School, for joining us today. That was really a great conversation.

All right. Why we should take the president`s plan to avert the
fiscal cliff seriously after this.

(COMMERCIAL BREAK)

HAYES: There`s now an offer on the table from President Obama to
republicans to avoid what we`re calling here on the show the fiscal curb.
Despite being the only plan on the table, the proposal was instantly
derided by Republicans as not serious.

(BEGIN VIDEO CLIP)

REP. ERIC CANTOR, (R-VA) MAJORITY LEADER: That offer yesterday was
simply not serious.

REP. JOHN BOEHNER, (R-OH) HOUSE SPEAKER: I mean, it`s -- it`s -- it
was not a serious proposal. And so, right now, we`re almost nowhere.

(END VIDEO CLIP)

HAYES: The white house plan would proceed in two stages. The first
would include $1.6 trillion in additional tax revenue through an immediate
increase in the top two marginal tax rates in addition to capital gains and
dividends increases and around 600 billion in deduction limits for the
wealthy.

It also includes $50 billion in new stimulus funds, an extension of
unemployment insurance in mortgage refinancing program, and interestingly,
if proposal not only to raise the debt ceiling but end Congress` ability to
stop increases in the debt limit, unless, they have a two-thirds majority
to bypass the veto.

And the second phase would come $350 billion in reforms to what the
White House calls entitlement programs, and we, here on the show, call
social insurance. Not surprisingly, this is the least specific part of the
proposal, making clear to Republicans that if they want cuts to social
insurance, they are going to have to propose them.

Yesterday, Speaker John Boehner once again refused to outline any
specific cuts when asked about what cuts Republicans want in social
insurance.

(BEGIN VIDEO CLIP)

BOEHNER: You look at our budget from the last two years and there are
plenty of specific proposals, most of which were part of the conversation
that the president and I had two years ago or a year and a half ago. There
have been discussions about many of those same issues this time.

So, there`s a lot from the conversations that we`ve had to inform
almost anybody the kind of proposals that we`re looking for.

(END VIDEO CLIP)

Joining us now is Sam Seder, host of the podcast, "Majority Report" on
Majority.FM and Don Peebles, member of the President Obama`s national
finance committee and the chairman and CEO of the Peebles Corporation.
Great to have you here.

DON PEEBLES, THE PEEBLES CORPORATION: Great to be here.

HAYES: So, there`s the proposal on the table, which I think is pretty
good, and I just want to talk about the political dynamics here, because
they`re kind of hilarious to me. Sam, what is your reaction to the
reaction from -- of Republicans to this proposal?

SAM SEDER, MAJORITY.FM: It`s pretty funny, because I think like they
are really in a tough position now because the president is playing a
different game than he`s been playing in the past. And he`s basically
saying to the Republicans, if you want to cut Medicare, if you want to
propose any cuts to social insurance programs, let`s hear it.

HAYES: Right.

SEDER: And the Republicans don`t want to do that. They have had
success in the past on running against Democrats when Democrats make the
cuts that Republicans want them to make. And they were successful on that
in 2010. They tried to do it in 2012 with less success, and now, it`s not
on the table.

And you know, I don`t have a sense of necessarily what`s going on in
the White House, but it seems to be more of an agenda that is more aligned
with Congressional Democrats. They`re the ones who are going to have to
run in two years. And they don`t want to run on having cut Medicare. And
they`re basically saying to Republicans, if this is what you want, bring
it.

HAYES: And I think the politics of this are fascinating, because it
was so -- we just had a whole election in which one of the main themes of
the election was each party`s candidate saying that the other party`s
candidate was the guy who really wanted to take the hatchet to Medicare or
had already taken the hatchet to Medicare. This was intensely litigated.

And then, we had the election, and then, we all come together for
fiscal curb negotiations. And everyone is saying, so, do you want to be
the one to tell them that we`re going to take the hatchet to Medicare even
though the fact is people do not want Medicare to be cut

PEEBLES: Well, no. I think what you see is the president advancing
his agenda, what he articulated in the campaign, which is fighting for
middle class tax cuts. And he`s now saying instead of being the balanced
president, I think, that we saw in the first term, he`s now saying, OK,
here`s our agenda.

Now, Republicans, your agenda is spending cuts. OK, propose them.
Let`s see what they are. That`s, you know, I think the right approach for
the president in the short term politically. But ultimately, what happens
is the Republicans are going to be reluctant to propose cuts. So, that
brings us more likely or closer to this fiscal cliff which I think is more
of a mole hill than a mountain.

But I think that that`s where we may end up. And I think we may see
some more drama as a result of that.

SOTO: Reluctant to raise taxes, but I`m cautiously optimistic that
I`m seeing some people pull away from Grover Norquist and actually hold
onto the mantle of Reagan, that Reagan raised taxes. And then, Corker from
Tennessee saying, well, I`m not beholden to Grover Norquist or (ph) the
pledge. I`m beholden to my constituency. So, I actually see a little bit
of movement here in comes of raising revenue. Now, the cutting of
programs, that`s going to be a different story.

PEEBLES: I don`t think anybody wants to cut programs, obviously. And
Republicans don`t because they`re now in what they consider the rebuilding
mode, but, you know, the challenge is going to be that there are Democrats
-- if you take a look at some of these tax issues, for example, estate
taxes, the president is not going to have unified support from the House on
that issue because he`s going to lose most likely the Congressional Black
caucus.

He`s going to lose representatives of farming states because it`s
going to decimate --

HAYES: It is not going to decimate. That is an absolutely ridiculous
overstatement.

PEEBLES: Let`s think about it this way. Let`s look at it from
African-American`s perspective. You know, hundreds of years of oppression,
finally, there`s an opportunity to go and compete in a balanced way in this
economy today, but, there`s a head start and so -- of generational
transferring of wealth.

And so, finally now, with equality that`s taking place since the civil
rights movement, you have more alignment of wealth. And now, it`s going to
be --

(CROSSTALK)

SEDER: You`re talking about such an infinitesimally small number of
people. I mean, literally, we could fit all of the people you`re talking
about probably (ph) in this room.

(CROSSTALK)

PEEBLES: I`m not arguing the actual merits of the issue. I`m telling
you the politics of it. The Congressional Black caucus voted with George
Bush.

(CROSSTALK)

SEDER: If we`re going to talk about the politics of it, let`s be
explicit. We`re talking about multi-millionaires. We`re not talking about
African-American population.

PEEBLES: We`re talking about job generators. We`re talking about job
generators, small business owners.

SEDER: We are talking about multi-millionaires, people who have over
$10 million, $5 million as an individual to pass on to their children and
don`t want to be taxed on every dollar above that amount. We`re not
talking about African-Americans. we`re not talking about any other
subgroup --

PEEBLES: We`re talking about the politics --

(CROSSTALK)

SEDER: -- who`s giving money to those politicians.

PEEBLES: No, no, no.

(CROSSTALK)

SEDER: We`re talking about .02 percent of the population.

(CROSSTALK)

PEEBLES: -- George Bush, and that`s why you saw a dramatic cut in
estate taxes and no increase in the state taxes. I`m telling you that the
political dynamics --

SEDER: Oh, yes.

(CROSSTALK)

PEEBLES: You want to talk -- argue the point. We can argue the point
on the filibuster rule and what the merits of that are. And we can argue -

(CROSSTALK)

PEEBLES: There is no reality. Political reality, what`s going to
happen later on next month? What`s going to happen?

HAYES: The argument you`re making is that the president cannot get
the votes he needs for the revenue he`s proposing? Is that the point?

PEEBLES: No, I think that`s he going to have some drama and there`s
going to be some disagreement within the Democratic caucus and one of them
is going to be estate taxes because that is one of the major points of the
tax increases.

SEDER: These are wealthy people that are behind the push to repeal
taxes. I mean, politics, it may be the case that he has to give that up
because of the power of money trumps these other things, but that`s the
politics.

PEEBLES: The last time around, the swing was the Congressional Black
caucus.

HAYES: Right.

PEEBLES: And that`s what took the Democrats -- it`s a Democratic
issue.

HAYES: Hold that thought. I want to -- the other place that I think
that you`re going to have internal caucus dissent is if this proceeds in a
way -- right now, there`s $350 billion in cuts to Medicare that are on the
table. That`s the sort of initial offer. And I want to talk about the
politics of that very, very politically dangerous topic right after this.

(COMMERCIAL BREAK)

HAYES: All right. So, one of the -- there`s the tax side of this.
And I think we`re seeing some erosion on that, and we`re going to sort of
dive deeper into the taxes tomorrow. But then, there`s the cut side, OK?
The sequester is in place right now that previously agreed to. It`s going
to be 1.2 trillion in cuts and the idea is to replace that with other cuts,
because the cuts that have been agreed to are such a blunt instrument. OK.

I want to focus on the Medicare portion because I have to say the
consensus right now in Washington, and I was cheered to see the president`s
opening bid, but the consensus in Washington is that we got to come up with
a grand bargain, dot, dot, dot. We got to do something about entitlements.
This is the big thing.

Something about entitlements. And, I just don`t understand why that`s
the case. And the reason I don`t understand why that`s the case is the big
problem is the rate of growth of health care costs. I think we can all
agree on that, right?

PEEBLES: Yes.

HAYES: Now, Medicare -- the rate of growth in Medicare is
significantly lower than the rate of growth of health care costs in the
private sector. So, it`s doing a better job of controlling cost relative
to the private sector. Then, we just passed a huge bill that was
incredibly contentious, which is called the Affordable Care Act, the vast
majority of the legislative language of which is about controlling costs in
health care over the future.

And so, it seems to me like the reasonable thing to do is to wait four
years, five years, implement the bill and see if the cost control measures
that have been put it in place, fought about tooth and nail, not like, you
know, smuggled in the cover of night (ph) like hugely, hugely
controversial, whether those cost contain and methods work.

And then, you know, we can all sit at this table five years from now.
And I don`t understand why this isn`t just the opening position of
Democrats and as someone who`s on the Hill. Shouldn`t that be the opening
position?

ARENBERG: Well, yes.

(LAUGHTER)

HAYES: Thank you.

(LAUGHTER)

HAYES: Well said.

(LAUGHTER)

ARENBERG: Yes. I -- I want to back it up for just a minute if I
could and go back to where we started with talking about the -- what the
president`s put on the table. I think what we`re looking at here now is
the president that`s been re-elected. He`s newly empowered. The
Republican minority has been saying for several weeks now, why won`t the
president stand up and lead? We need the president to lead.

HAYES: Right.

ARENBERG: Well, he stood up. He`s put the proposal on the table and
what do they say now? Basically, they say, well, tell us how you`re going
to compromise with us before we engage with you, which, unfortunately, I
think --

(CROSSTALK)

SEDER: Dating back to your original question, I think, frankly, it
has do (ph) the same thing as to why we`re debating maintaining
historically low estate taxes. It`s money. There is absolutely no reason
in terms of the budget to be even talking about Social Security and in
terms of Medicare, it`s the exact same thing.

I`m sure there are cuts that can be made in terms of efficiencies,
particularly, when it comes to pharmaceuticals. There`s a lot of savings
there. I mean, you have -- we have the -- excuse me, the prescription D,
the Medicare D where we are not negotiating for volume discounts with
pharmaceutical industries. Same thing in other parts of Medicare.

So, there`s a lot of savings to be there. Close to 300 billion, I
think, over ten years. But the real bottom line is, I think, those people
who want to attack Social Security want this money to end up in Wall
Street.

HAYES: And there`s an extremely well-funded group of people. We`ll
talk about fix the debt -- to fix the debt, Adam (ph). We`ll talk about
some of the interest behind that right after we take a break.

(COMMERCIAL BREAK)

HAYES: Good morning from New York. I`m Chris Hayes.

Here with Richard Arenberg. He`s a member of the advisory board of
the group Social Security Works and Strengthen Social Security Campaign.
Sam Seder of "The Majority Report". Don Peebles, from President Obama`s
National Finance Committee. And MSNBC contributor Victoria DeFrancesco
Soto.

We`re talking about the development this week in the fiscal curb
discussion. And, actually there`s some news this week.

I mean, it can feel like a Groundhog Day, kind of, enterprise covering
these negotiations, but there was genuine, really significant news, which
is that there`s an offer on the table. It`s an offer on the table. It`s
offer that is quite strong from the perspective of where its relative
balance is towards the president`s priorities as opposed to the House
Republican Caucus`s priorities, far more in name specific tax increases
than name specific cuts.

And I think the idea of the bargaining position, Rich, as you were
saying is: OK, we`re going to say what taxes we want to increase. You now
name the cuts.

And I think there`s something really interesting. I want to show some
polling, because I think one of the weirdest dynamics is this mismatch
between where public opinion is on something on what we call on the show
insurance, and where the kind of Beltway conversation about the, quote,
"entitlements" that need to be fixed.

And so, when you say to people, you will read in the wonk world and
we`ll read in "Politico", you know, well, people are floating the idea of
raising their retirement age on Medicare. This is one of those things.
And Republicans are saying, no, it`s not enough to whittle around the
edges, we need changes in the eligibility. That`s their kind of -- that`s
the red line.

Now, go ask the American people -- who have just been through an
election -- how do you feel about raising the retirement age on Medicare,
and this is what they tell you. Seventy-one percent of Democrats opposed,
68 percent of Republicans opposed and 62 percent of independent.

It`s very hard to find a less popular, you know, proposal than this
and yet this is at the mind and the margins at the center of the
conversation when people start talking about a grand bargain.

And, Sam, you were elucidating a kind of argument for why that was
when we went to break.

SAM SEDER, THE MINORITY REPORT: Yes. I mean, I think it`s the
establishment in this country, whether it`s the political or the --
frankly, the media establishment in this country.

HAYES: The worst.

SEDER: They simply do not -- they simply do not -- they don`t have
the sensitivity towards it. So, I mean, when you talk about raising the
eligibility for Medicare age, you`re talking about privatizing it. You
know, the costs aren`t going away. It`s just simply, you`re going to say,
instead of --

HAYES: For those two years. Right.

SEDER: Right. Instead of support for our seniors, we`re going to
force the seniors, who in many cases may not be able to afford it, or their
kids to pay for it. So this idea that somehow this is -- you know, we`re
burdening our grandkids by not cutting Medicare, that`s ridiculous.

HAYES: Right.

SEDER: Because those grandkids are going to pay for it. And they`re
actually going to pay more --

HAYES: Right.

SEDER: -- in the private insurance industry than they would through
Medicare.

HAYES: When they get old enough.

SEDER: And that`s fact. And I`m talking about those grandkids
literally. They`re going to be paying for their grandparents or their
parents to get health insurance in those ages if you raise it.

So, the savings is not going to -- it`s simply going to -- we`re going
to push it on to individuals. We`re going to push it onto the other
generations and we`re going to make it cost more because we know that
Medicare controls costs more and is delivered more efficiently.

DON PEEBLES, PRES. OBAMA`S NATL. FIN. CMTE: I agree with him because
the next step of that, of course, is that the kids and the grandkids will
be burdened with it. And that`s a greater drain on the economy. It takes
their money and spending power out of the economy, puts it into health
care.

However, though, I do think there should be some further adjustments
on eligibility. For example, someone like me. I do not believe that I
should be able to get the same kind of benefits as, say, you know, a
retired school teacher.

HAYES: Right.

PEEBSLES: And so, therefore, I should have to pay a greater co-pay,
the threshold before I got any benefits should be there.

And also, my children, hopefully, if they are successful, I think we
have a responsibility to take care of our parents too if we can. The
government needs to be helping people who can`t help themselves, that are
going to have difficulty doing that.

HAYES: I`m glad you made this argument because this is the argument
that you hear Pete Peterson make who`s big -- sort of, funding a lot of the
groups that are talking about attacking the debt or deficit.

And you hear Mitch McConnell and you hear Republicans make and you
hear some Democrats make it, which is, basically, well, look, progressives,
you guys care about redistribution and you care about all of these things -
- equality, you know, that`s good. Why have these universal benefits when
we don`t have enough money, why have universal benefits for people that
have a lot of money? I mean, that`s your -- right?

PEEBLES: Indexing it.

HAYES: Right, indexing it. Making it an adjusted kind of thing.

(CROSSTALK)

HAYES: Why not?

SEDER: First off, Medicare is already means tested.

HAYES: Yes. Right.

SEDER: And you already do have some measurement. If you want to
means test it more, there`s a very efficient way of doing it, a far more
efficient way than to have a new bureaucracy that`s going to determine what
your net worth is and that`s called taxation.

HAYES: Right.

SEDER: So, we take it from you on the front end.

HAYES: Right.

SEDER: And, frankly, that`s what we should be doing with the Social
Security. We should be obliterating the cap. We can be raising taxes.

HAYES: When you say obliterating the cap, explain what that means.

SEDER: Well, the cap right now, the first $110,000 of Social Security
wages are taxed at about 6 percent for the employee and 6 percent for the
employer, little bit more, 6.5 percent. And traditionally, we have taken
in through the Social Security system 90 percent of the nation`s income.
We`re now 81 percent because of income inequality.

HAYES: Right.

SEDER: If we take off that cap, we have complete solvency in Social
Security, not just 20 years out but until my kid has a kid who`s looking
towards Social Security and we can do the same thing with Medicare.

HAYES: Your kid is 40 years old, though, we should say.

SEDER: Exactly.

(LAUGHTER)

HAYES: Just so everyone knows. It`s what you`re saying.

SEDER: I have a 7-year-old -- to the eye can see. We can do the same
thing with Medicare. If you`re really concerned about means testing,
there`s an easy way.

HAYES: That`s interesting. So, your point is: don`t do it on the
benefits side. Just make sure that we`re taxing --

SEDER: Have people put more money into the system.

HAYES: What do you think of that, Rich?

RICHARD ARENBERG, STRENGTHEN SOCIAL SECURITY CAMPAIGN: I agree. I
agree with -- you know, I mean, I think that, you know, the cap is -- you
know, it creates this regressive pattern and I think it`s a long-term --
it`s the long-term solution on Social Security. But I don`t think Social
Security needs to be on the table.

HAYES: Yes. It doesn`t seem like it can. I think we all agree that
--

PEEBLES: I think Medicare is being discussed.

HAYES: Right, same dynamic.

PEEBLES: But, again, I don`t think that we can ask the American
people, especially job generators at the top end, to pay more in taxes
other than what`s being discussed now.

(CROSSTALK)

SEDER: You`re saying you want job generators to pay more for their
health insurance.

PEEBLES: Absolutely. It`s a time of consumption. It`s a time --
give it to you in the front end and trust you to spend it well now. I
trust the government to spend it well now --

SEDER: I trust the government to spend things as well as anybody
else, frankly, and so --

PEEBLES: Well, that`s a frightening thought there.

HAYES: But let`s talk specifically -- wait a second though. When
we`re talking about this, I mean, we could talk about -- we should just be
very clear, right, about how this actually all works, right? There are --
Social Security and Medicare have dedicated tax revenue streams, right?
So, when you`re talking about --

SEDER: Some of Medicare comes from the general fund.

HAYES: Some of it comes from the general fund, but there`s income
taxes and there`s a bunch of other taxes in the tax code and then there`s
payroll taxes that you pay that create this distinct funding mechanism for
these programs.

ARENBERG: And some of the money in the general fund comes from the
Social Security trust fund.

HAYES: Right. Right.

SEDER: That`s right.

VICTORIA DEFRANCESCO SOTO, MSNBC CONTRIBUTOR: I wanted to get more to
the political aspect of it. So maybe popularly people don`t want to see
Medicaid -- I`m sorry, Medicare touched. But the Beltway folks, the folks
that are going to be voting on this do want to see that.

PEEBLES: Yes, they do.

SOTO: What are we going to bring to the table? Are we just going to
say we`re not going to bargain with you? I mean, at what level do we allow
for, say, means testing? We may not like it, but that`s what it`s going to
allow.

SEDER: Means testing, we can do means testing. If you want to do
means testing, there`s a very efficient way of doing it. We will raise
your taxes on --

HAYES: Yes, if you have more money.

(CROSSTALK)

SOTO: -- the grand bargain.

PEEBLES: The reality is that`s not going to happen.

SEDER: But wait a second.

PEEBLES: That`s not going to happen. We can talk about -- look, we
can talk about --

(CROSSTALK)

SEDER: -- the reason why that`s not going to happen --

PEEBLES: And cut defense spending 20 percent and put that into the
general fund as well and we would be able to reduce a lot -- hold
everybody`s taxes. That`s an action that`s never going to take place.

HAYES: Hold on a second.

PEEBLES: So, the reality, what she`s talking about -- what she said
was actually very valid. The fact is that there`s going to have to be some
give and take. However, the president has played a very powerful hand by
saying, OK, tell us what you want.

HAYES: So, let me -- on the give and take --

SEDER: There`s a reason why we can sit here and say it`s never going
to happen. It will never happen until people acknowledge the reality of
the situation from a policy standpoint. You can say that the Republicans
are never going to allow for a more efficient way of means testing which is
to raise taxes --

PEEBLES: That`s your opinion.

SEDER: No. No. No.

PEEBLES: That`s not -- the -- you`re not even going to get Democrats
to buy into that.

SEDER: You`re talking politically.

PEEBLES: Isn`t that reality? OK.

SEDER: In reality --

PEEBLES: The fantasy morning --

(CROSSTALK)

SEDER: In reality, if you join me in acknowledging the reality that
the most efficient way of means testing Medicare would be to raise Medicare
taxes now, that`s a reality. Whether or not that`s going to happen is
another issue.

PEEBLES: Not necessarily because -- not necessarily. Wait. Hold on
a second. Think about it this way.

We just had -- we came off in the early to mid-2000s the biggest boom
in the nation`s history. Then we went to the second biggest recession in
the nation`s history. So, wealth has been redistributed and lost.

HAYES: Right.

PEEBLES: Now, Imagine that concept that you just talked about where
these people have paid into it and now they`re in a different income
position. That doesn`t make sense.

We should be tack -- this is -- any kind of means test should be done
at the time of consumption. For example, if I can afford to pay my health
care I should pay for it.

SEDER: It`s going to cost more money. I mean, if we really care
about the deficit and debt issues that we`re talking about --

HAYES: Yes, the key thing which is my mantra is that no one cares
about the deficit and debt.

(CROSSTALK)

PEEBLES: Well said.

HAYES: They don`t talk about it -- it`s the word they give to the
stuff they really care about.

Richard Arenberg from the Strengthen Social Security Campaign, Sam
Seder of "The Majority Report", Don Peebles of the president`s National
Finance Committee, and MSNBC contributor Victoria DeFrancesco Soto, thanks
for being here. That was great.

All right. Has Obama ended his war on whistleblowers? That`s next.

(COMMERCIAL BREAK)

HAYES: All right. This week, President Obama signed the
Whistleblower Protection Act -- a genuinely landmark piece of legislation
that both expands and restores a number of protections for whistleblowers.
The bill, which has been fought for by whistle-blower rights organizations
for over a decade passed both houses of Congress by unanimous consent and
was signed by the president on Tuesday.

It was left relatively untrumpeted by the White House. And this could
be because up until now, the Obama administration`s record on
whistleblowing has been problematic, to say the least. As the Obama
campaign itself highlighted in an August document defending the
administration`s record on leaks, the Obama administration has prosecuted
twice as many cases under be the Espionage Act as all other administrations
combined. And the Justice Department has prosecuted six cases regarding
national security leaks.

The Obama administration`s history of aggressively prosecuting leakers
has disturbed lawmakers and activists from both the left and the right
because of the essential role of whistleblowers in rooting out government
malfeasance. The president`s record on the issue is almost a perfect
embodiment of his presidency as a whole, with all of its accomplishments
and frustrating limitations. Barack Obama has managed to both prosecute a
record number of leakers and sign genuine concrete legislation to protect
whistleblowers.

Now, who deserves whistleblower protections is very much up for debate
and the meaning of that term as well. And no case illustrates that more
acutely than Bradley Manning -- the Army private who is accused of leaking
classified documents to Web site WikiLeaks. This week, he testified for
the first time in military on the conditions of his detention over the past
two years.

Joining me is Danielle Brian, executive director of the Project on
Government Oversight.

Eyal Press, author of "Beautiful Souls: Saying No, Breaking Ranks, and
Heeding the Voice of Conscience in Dark Times", and a contributing writer
at "The Nation" magazine.

Ed Pilkington, chief reporter for "The Guardian U.S". He`s been
covering Bradley Manning`s trial from the courtroom this week.

And Zachary Iscol, a fellow at the Truman National Security Project.
And he`s a former marine.

Great to have you here. Great to have all of you here.

Let`s start with the Manning case because I think in some ways, the
Manning case is kind of the edge case, right? It`s the hardest case. It`s
the most controversial case. It`s the place where the rubber hits the road
most intensely about how we feel about this cluster of issues.

And you just got back from covering the case. What happened this
week? We heard from Bradley Manning for the first time in two years.
Isn`t that right?

ED PILKINGTON, GUARDIAN.CO.UK: Yes. We heard from him verbally for
the first time in two years. He was called by the defense in a defense
motion which is trying to get all the charges against him, 22 counts,
thrown out, on the grounds that he was subjected to pretrial punishment.

So, whatever you think about him as a whistleblower, whatever you
think about what he did, this week was not about that. It was about should
he have been treated as he was during the nine months he was at Quantico,
which is a Marine base in Virginia.

We just heard this extraordinary narrative from him and his lawyer,
David Coombs, about the things that happened to him in his eight-by-six
cell. They even drew the cell on the floor of the court. It was a very
theatrical moment.

HAYES: What was the treatment like? I mean, I was reading through
some of it and reading through the testimony. It`s pretty harrowing stuff.
I mean, it`s really hard to think about the justification for it if I might
say so.

PILKINGTON: Yes. Harrowing -- I mean, so many harrowing details. I
can think for the coming hour which we won`t.

I`ll give you two. He talked about how for several weeks, even into
months, he was given 20 minutes of sunshine call. Now sunshine calls are
fantastic. There are so many euphemisms and wonderful paradoxes. Sunshine
call is when you`re taken out of your cell.

For him that meant he was in full restraint. So, he had handcuffs on
his hands and stopped around his waist. I mean, his hands were essentially
tied to his bellybutton and he had a chain around his legs. He had to be
held by a guard as he was taken out of his cell.

The rest of the facility was in lockdown. So, he saw no one else. He
was taken to an exercise yard for 20 minutes. So, he had 23 hours and 40
minutes in his cell.

HAYES: That was an eight-by-six.

PILKINGTON: Eight-by-six. And 20 minutes outside in full restraint.

And the other thing that struck was he`s a guy -- he describes himself
as someone who loves the sunshine, hates the winter. And so, he was asked
about what natural light he had in his cell. He said if he lent his head
against the wall of the cell and looked through the crack he could see down
the corridor a reflection of the window, reflection of the window. And
then there was sunlight in the hall coming down. f he looked at a
different angle he could see the reflection of the reflection of the
sunlight.

So, that`s the kind of things that you heard which were very, very
moving I thought -- just pure human level.

HAYES: Yes.

PILKINGTON: Nothing political, nothing whistleblower, just purely
human. And it went on for nine months.

HAYES: I was struck by this other detail about there was no toilet
paper in the cell, so when he used the toilet that was in the cell, he
would have to call out and request toilet paper, which seemed like an
incredibly humiliating ritual to go through.

Zach, I guess I want to get your thoughts, your reaction to hearing
about this as someone who himself was -- you know, voluntarily became
subject to the Uniform Code of Military Justice, right? When you sign up,
you put yourself under essentially a different legal regime. And you go in
eyes wide open about what that legal regime.

What your response is hearing about the Bradley Manning ordeal, first
of all? We`ll get to what he did or what he`s alleged to have done,
although it seems like he`s essentially admitting to it now. But this
aspect of it, I`m curious about what your reaction is.

ZACHARY ISCOL, TRUMAN NATL. SECURITY PROJECT: My initial reaction is
that I was not there.

HAYES: Right.

ISCOL: And I think in terms of his time in the brig, essentially, I
think the one thing I really took away from my military experience is that
I`m very hesitant to judge people for actions they take when I`m not there.
I wasn`t one of his jailers. I`m not in the command. I`ve never spent
time in a brig. I`ve visited a brig. Are there extenuating circumstances
that led to that?

HAYES: And they argue there was, right? Suicide watch.

(CROSSTALK)

ISCOL: And that`s also another interesting point that sort of put to
the side of this is what kind of conversation would we be having had he
committed suicide.

HAYES: Right.

ISCOL: Would we be having a different conversation that he had not
done --

HAYES: Yes, of course.

ISCOL: -- that they had not done enough to protect him from himself.

PILKINGTON: I wanted to leap in there. Yes, that`s what they`re
saying that over the nine months, he`s essentially in suicide watch. We
heard from psychiatrists this week --

HAYES: This is important.

PILKINGTON: -- who gave important evidence. They were the people who
treated them. They were the psychiatrists. They had the training.

They said within about two weeks of him arriving at Quantico, they
said he was no threat to himself or anyone else and they recommended he be
taken fully off any suicide watch.

HAYES: This I think tees up a provocative question which gets us to
what Bradley Manning is alleged to have done and the way the state reacts
to someone that has violated this sort of fundamental principle, because I
think there are people who are advocates of Bradley Manning who say it is
not -- this treatment is not an accident, that this is essentially pretrial
punishment for having committed this or having allegedly committed this
sin.

But I`m curious to hear you guys weigh in on that and talk about the
Manning case right after this.

(COMMERCIAL BREAK)

HAYES: Danielle, A.L., I`d like to hear your thoughts on the Manning
case because -- like I was saying before we went to break -- I think the
people that are supportive of Bradley Manning draw on an argument in which
his treatment is not some contingent accident, right? It is actually an
expression of the contempt that the national security state holds for
people that violate its inviolable principles.

And I wonder if that`s a compelling story for you, Eyal?

EYAL PRESS, AUTHOR, "BEAUTIFUL SOULS": Yes, it is. I think I`m less
hesitant than Zachary to condemn the treatment which seems entirely
excessive to me. And also comes in the context of as you laid out in the
beginning, that we have six Espionage Act prosecutions for leaks,
unprecedented historically, twice the number in all -- under all previous
administrations combined, spanning cases like Thomas Drake where there`s
very little debate that Drake was a whistle-blower.

I think the debate about Manning, at least as I`ve heard it, including
from whistleblower advocates, is about the method, the sort of -- the
release of a massive number of documents all at once.

HAYES: Yes.

PRESS: That presumably he didn`t sift through and read and I think --

HAYES: I think there`s no way --

PRESS: There`s no way.

HAYES: -- logistically he could have.

DANIELLE BRIAN, PROJECT ON GOVERNMENT OVERSIGHT: Yes.

PRESS: And so, you know, in my mind, the first question is, what were
the motivations? Was he trying to expose public malfeasance of some kind?
Was he out to inform the public of something that he felt was harmful to
all of us?

From what I know about the case -- yes. You know, I don`t think --
maybe I`m wrong about that, but it seems that a genuine motivation, concern
for, you know, what was happening in these wars and what Americans weren`t
being told was being done in their name.

The debate comes to the question of: is that the right way to do it?
Is that the most effective way to do it? Should it -- would he have been
better off going to a place like --

HAYES: Also, is it defensible? I mean --

PRESS: Is it defensible?

HAYES: Right.

PRESS: And if you really believe that certain things need to be
known, would you be better off going to a whistleblower advocacy group
saying, here`s what I think is happening, what should I release?

HAYES: Yes. Do you think Bradley Manning is a whistleblower?

BRIAN: Ooh, Chris, that`s such a hard -- I -- well, first of all, the
first question you`ve asked is no one should be treated the way he`s been
treated. So I think, you know, whether he`s a whistleblower or not, I
mean, it`s a sign of what I see as almost a near hysteria.

HAYES: Let me say one thing that`s clear for the historical record,
the treatment we`re talking about lasted nine months. And I think the
reaction to it was so -- there was a decision made that that treatment had
to stop, right? He`s in very different conditions since moving.

BRIAN: It`s part of a context, right. So, we`re seeing that happen.
We`re seeing the prosecutions. All of this, actually, is I think
derivative of what happened with WikiLeaks. The administration and the
Congress freaked out when this happened.

And so, we`re seeing not just the prosecutions, but we`re seeing anti-
leak memos that are coming down from Panetta that are -- you know, warning
everyone who has a clearance, you need to remember that we are going to use
the full extent of the law if you leak any classified information anywhere.

So, all of this is happening in the context of -- in fact, the
Whistleblower Enhancement Protection Act that you referenced in the
beginning was poised to pass two years ago with protections for intel
agency employees. WikiLeaks happens --

HAYES: Everyone ran away from it.

BRIAN: Everyone runs away. They think, oh my God, I`m not going to
pass a law that`s going to protect someone like Bradley -- in fact, of
course, it didn`t and it was never going to protect the release of
classified information, but even the concept that it might did it in.

HAYES: Yes, exactly.

ISCOL: Yes. You know, there`s two very different things going on
here. One, you mentioned Thomas Drake who, to me, is somebody -- you know,
this is a guy, Thomas Drake, who went through the proper channels.

HAYES: Yes. He did everything he could possibly do.

BRIAN: Right.

ISCOL: He did everything he possibly could to reveal these
inconsistencies in contracting and this expensive intelligence system.

HAYES: Wastes of money, and yes.

ISCOL: Wastes of money.

BRIAN: Yes.

ISCOL: That`s very different than Bradley Manning.

I know when I -- when I was in the Marine Corps, I had a translator in
Iraq I became very close to. Eventually he and his family were threatened.
We tried to get him over to the States. I couldn`t get him through the
State Department channels. I got asked to testify before the U.S. Senate
on active duty, and I went through the proper channels.

And my chain of command, largely, for the most part, not everybody,
but most of my chain of command was very supportive of what I was doing
because they recognized it was the right thing. And that, to me, is my
biggest issue with Bradley Manning, is he going to do that?

HAYES: Ed?

PILKINGTON: Yes, let me put the counter point. I think the Bradley
Manning case is difficult in terms of what he did.

But let me make the counter point which is that here is a guy who was
in contact through his job with massive amounts of information. What
sparked off his interest in leaking, and he has largely admitted that he
did pass information to WikiLeaks now, was that he came across, first of
all, evidence that his superiors were treating local Iraqi employees very,
very badly indeed and actually being duplicitous with them, that made him
really angry. And we know that from web chats he`s alleged to have had
with his hacker, Adrian Lamo, (INAUDIBLE) to the authorities.

And he also came across the famous collateral damage which was an
Apache helicopter attack.

HAYES: "Collateral Murder" was actually the title of the release -

(CROSSTALK)

PILKINGTON: Sorry. Yes, in which a "Reuters" journalist and some
civilians were killed. That made him fully angry.

And then he is maybe a unique point in history because he had this
access to a massive digital load of information. It never happened before.
We never had access to such information.

HAYES: Right.

PILKINGTON: And it was never possible for at the touch of a button,
he actually had to do a little bit more than that. He had to download some
software. But few steps, and he was able to pass massive amounts of
information to another party, which has never been able to be done before.

HAYES: Which connects -- which connects with the -- you know, you
called it hysteria, or fear, depending how you interpret this, of the
vulnerability essentially of the entire, you know, edifice of security.

(CROSSTALK)

HAYES: You guys can weigh on it right after we take a break.

BRIAN: Yes. That`s right.

(COMMERCIAL BREAK)

HAYES: Talking about secrecy and the state`s concern with preserving
that secrecy, and I think that secrecy is overly broad and overly used.
But there are some secrets that, you know, one would want to keep.

BRIAN: How can you do that when you have so much information that`s
over classified? I mean, that`s one of the, sort of, unspoken issues that
have come out of this, is how much of that information really needed to be
classified? And that is something the Obama administration when they first
came in the last term said, we`re going to deal with this over
classification and start declassifying information.

And they actually set a schedule of doing. And they`re not going to
meet the schedule. But some of our colleagues in the open government
community have recently had meeting that said, actually they`re starting to
be meaningful efforts in that regard. So, that`s sort of a good sign.

But that`s -- you know, you have 5 million people who have clearances
at the level of --

HAYES: Bradley Manning.

BRIAN: Five million.

HAYES: That`s was so crazy. When you think about, oh, this is a
secret. When you think about secrets you don`t think about a thing that 5
million people --

BRIAN: It came to me.

HAYES: I`m serious. In terms of what that word means in everyday
language.

BRIAN: Right.

PRESS: To get back to whether this is whistle blowing and how we
judge that. The whistle-blower protection law that was just passed does
not cover national security federal employees as far as I`m concerned -- as
far as I`m aware.

BRIAN: That`s right.

HAYES: Executive director.

BRIAN: Thank you.

PRESS: But the executive directive is viewed by some as toothless.
It doesn`t have -- it doesn`t affirm a new right as far as I know. Now,
national security information just to -- just to -- so the public right to
know is probably most important in the national security realm.

On the other hand, the sensitivity of secrets is most sensitive in the
national security realm.

BRIAN: Right.

PRESS: So what I would like to see happen with the Bradley Manning
case is some playing out of that. Unfortunately, all we`ve had so far is a
conversation about the treatment, about the kind of pre-trial,
understandably so. But at some point, I think the public deserves to know
what was the harm done --

HAYES: Right, yes.

PRESS: -- by the release of all of this --

HAYES: It should be -- yes.

PRESS: -- versus what did we gain potentially --

HAYES: Yes, right.

PRESS: -- from the release of all of this?

PILKINGTON: Yes, can I tie that into the Bradley Manning case again?

HAYES: Yes, sure.

PILKINGTON: Because it`s not just his treatment in Quantico that is
causing this chilling effect. You have to bear in mind that the main
charge, charge number one against him, is aiding the enemy. Now this is a
massively chilling thing.

What he`s being accused of is by posting something via WikiLeaks on
the Internet, that by doing so he effectively had it to Osama bin Laden.
They don`t have to show in the prosecution`s mind, the government`s mind,
they don`t have to show that he intended to do that. They`re just saying
by the sheer act of putting it on the Internet, it was available to al
Qaeda. Now, that --

HAYES: But that`s true, isn`t it?

PILKINGTON: Yes. You cannot have a more chilling effect in the age
of the Internet on people, than by putting -- by charging someone with
aiding the enemy, by helping Osama bin Laden, by posting, by leaking
information. And that carries the death penalty, that charge. They won`t
carry that out. It will be life in prison if he`s found guilty.

ISCOL: But into this -- the battlefield of today is very asymmetric.
It`s highly network. You have enemies who are members of al Qaeda, and
enemies who are affiliates of al Qaeda and enemies who have nothing to do
with al Qaeda. You know, Shiite militias in Iraq, for example.

But I think the big thing or one of the big things is the release of
names of people who were allies and who are now put in danger. That is
aiding and abetting. That is providing a target list to people to target
people who we`re working with.

And so, as opposed to sensationalizing it with the name of Osama bin
Laden, we certainly did aid people who do not have our best interests in
mind, certainly in being able to target --

(CROSSTALK)

HAYES: Let me say one thing though. Factually, I think, one of the
things I think that needs to be established -- that would be established in
a trial process that has not to my mind been definitively established is
the degree to which that happened, right?

I mean, there have been out -- the government has said it`s happened
but we don`t know -- it has not been established that that has happened.
It seems plausible to me that it has. I`m not saying it has. I`m just
saying we do not know definitively in which instances and what harm was
caused.

ISCOL: Even WikiLeaks response was, you know, if somebody was -- if a
translator, or an interpreter --

HAYES: Right.

ISCOL: -- or an intelligence asset was killed in Iraq, Afghanistan,
or any number of places, those are dangerous places. We don`t know if we
can directly attribute it to WikiLeaks and to --

(CROSSTALK)

BRIAN: But Julian Assange`s approach to this, that essentially there
are no legitimate secrets and all information should be public. And that`s
part of why, as Eyal said, I wish frankly Bradley had come to POGO or an
organization that works with whistleblowers, to help protect him from
himself and say, OK, let`s focus here. What we can do that matters?

What can we make sure that we`re doing to -- not have him go through
now. Bring him to Congress. You know, there are ways this could have been
done that would have dramatically changed his future, as well as making the
information that should have come out go to the right places.

HAYES: I want to talk about this, what you call the chilling effect,
because I think this sort of idea about the leaks that become something
that`s hotly debated in Washington and there -- who they help and who they
hurt and whether we should have more or less of them. Who should be doing
the leaking -- let`s talk about that right after this break.

(COMMERCIAL BREAK)

HAYES: There`s been all this talk in Washington recently about leaks
and how evil leaks are. Here`s David Axelrod speaking to ABC in June about
the accusations that the White House has been leaking information,
particularly that will put them in a good light with respect to, say, the
raid that killed Osama bin Laden. Take a look.

(BEGIN VIDEO CLIP)

DAVID AXELROD, WHITE HOUSE SENIOR ADVISOR: We`ve come under attack
because we`ve been tougher on leaks than any administration in recent
history. We`ve been criticized for that. It`s the right thing to do
because of the very issue that`s been raised. We want to make sure that
the people we assign to these very difficult tasks are safe or as safe as
they can be.

(END VIDEO CLIP)

HAYES: Now, I want to say there`s an incredible double standard here,
which is that it`s very clear that people inside in the administration are
going to reporters and telling them lots of stuff about -- I mean, all the
articles you see on the front page couldn`t happen --

BRIAN: How about SEAL Team 6 who goes and works with the video gaming
and they get a slap on their wrist because they`re popular?

HAYES: Right.

BRIAN: And they don`t get in trouble.

But there are definitely times when you needed to leak. You go
through the system. Tom Drake is one of the examples that we talked about.
But he tried internally.

HAYES: Right.

BRIAN: Had to finally stop real criminal activity by our government.

Tom Kim (ph) was another case that we didn`t talk about. Justice
Department also about the warrantless wiretaps, tries the Congress, tries
internally. Nothing happens. You have to go public to stop when the
government is doing something wrong. Sometimes you have to have leaks.

PRESS: There`s no question leaks are selectively prosecuted. The
critics -- in the last four years, the critics of embarrassing government
policies, ironically policies that were implemented under the Bush
administration or implemented under the Bush administration have been
prosecuted most harshly. Has anyone been prosecuted for over-classifying
information?

As far as I know -- no.

HAYES: Right.

PRESS: So that`s another debate that I think has to happen.

In terms of Congress, though, you know, I don`t know that that will
get people very far. From what I understand, Congress has been pressuring
the Obama administration to crack down harder on leaks.

HAYES: Yes.

PRESS: Not to do less.

BRIAN: They`re jumping on top of each other --

PRESS: It`s not just the administration. It`s sort of the aftermath
of WikiLeaks, congressional pressure which as far as I know is bipartisan.

BRIAN: Yes.

PRESS: Yes?

HAYES: I just think the elephant in the room here is the growth of
government secrecy. I mean, that is really the issue.

So, the question is: what are -- particularly in the age of the
unending war on terror, right? What do we as citizens have access to? And
there`s been a massive growth of what is secret, and this has been well-
documented in the "Top Secret America" series.

When we talk about five -- just the number of people that --

BRIAN: Yes.

HAYES: -- that have access to classified information at 5 million
people, right? The number of people, private contractors and government
employees --

BRIAN: Right.

HAYES: -- and all sorts of people who have access to this
information. And more and more information about what the government is
doing put behind the curtain of secrecy, behind the curtain of
classification and there are no mechanisms in place as far as I can tell
with real teeth and real strength that can ever incentivize people to err
on the side of openness.

BRIAN: Well, there`s actually --

HAYES: You`re always going to err on the side and for reasons that
are in some cases incredibly compelling life or death reasons, right? It`s
not like people are necessarily nefarious. It`s that if you`re making a
tough call on secrecy or openness, the risk of putting something out there
that shouldn`t be seems to you as the person making that judgment much
larger --

BRIAN: Always.

HAYES: -- than keeping something hidden that shouldn`t be open.

BRIAN: But there`s one -- as I was referencing, it is almost never
been true but there is one case, it`s pretty fascinating, where Bill
Leonard (ph), a former federal official was working on the Drake case saw
where there had been clearly a document that should not have been
classified. He used to run for the government the Information Security
Oversight Office.

He`s actually filed a complaint -- it`s the first I`ve ever heard of -
- against the federal officials who had classified something they should
not have. Everything that we`re seeing is they don`t know how to handle
this because it`s never happened before.

HAYES: That`s fascinating.

PRESS: I think there`s an even larger question than secrecy which is:
how much does the public actually want to know at this point?

HAYES: That`s maybe the deeper question. What do we know -- what do
we know that we didn`t know last week? My answer after this.

(COMMERCIAL BREAK)

HAYES: In just a moment, what we know now that we didn`t know last
week. But, first, a quick update on a story we did last weekend.

On Saturday, we took a look at the cultural phenomenon that is Black
Friday. We discussed consumer behavior, the line waiting and getting up
too early, where we specifically focused on the amount of money big box
stores like Wal-Mart can make on Black Friday, which can be up to 40
percent of their annual sales.

I`m compelled to mention this after a fire last weekend in a
Bangladesh garment factory killed 112 workers. The cost of those lives
should bear significant cost to Wal-Mart`s reputation, because Walmart,
along with the Walt Disney Company and Sears, use the factories to make
their clothes. Retailers have a responsibility to make sure the overseas
factories that manufacture their products are safe.

Wal-Mart has said they were aware of safety problems of the factory
and said they decided to the stop doing business with it. They said a
supplier had continued to use the factory without their authorization.

Sears has tried to distant itself from culpability by issuing a
similar statement.

Sean P. Diddy Combs, whose clothing label, ENYCE, had clothes still on
the sewing machines inside the factory, has agreed to pay the family
members of the dead workers $1,200 each.

So, what do we know now that we didn`t know last week? We now know
that Wal-Mart workers here in the U.S. aren`t the only low wage workers in
the front line of the service economy fighting to build worker power and
raise their standards of living. On Thursday, over 200 worker in over two
dozen fast food restaurants, including McDonald`s, Burger King, Wendy`s and
others walked off the job, demanding a wage to a living wage of $15 an
hour, as well as recognition of their newly formed independent union.

We know the median pay for the workers who struck is $8.90 an hour, or
about $18,000 a year, which is literally the poverty level for a family of
three.

And we know that according to the Bureau of Labor Statistics, fast
food workers are also literally the lowest paid category of employees in
the country. We know that building sufficient labor power in those air why
is of service economy where job creation is strongest, retail, service,
home care, is one of the key steps to reducing the accelerating and
expanding inequality that threatens the convert into a perpetually crisis-
prone tax-based economy.

And speaking of building economy, sadly this week, we know that
baseball and the American labor movement have lost one of their giants,
Marvin Miller, the legendary economist and baseball player`s union leader
died this week at the age of 95. Miller was chosen as head of the players
union in 1966, fresh from a job with the United Steelworkers of America.
And he set about revolutionizing the relationships between players and
management.

Before the Miller era, players were owned almost like thoroughbred
horses and had no ability to solicit bids from competing teams for their
services. I had the pleasure of interviewing Miller in 2011 from my book
"Twilight of the Elites". And he described the situation this way: The
beginning was actually the worse because of the hard line owners today,
unionism was treason. There`s no other way to describe it. For very
wealthy people who owned franchises, baseball was a respite of the tension
and problems elsewhere. Here you could control everything, no unions,
reserved clubs that made players prisoners, no grievance procedure, no
salary arbitration, no nothing.

But Miller changed all that by inculcating the players with notions of
solidarity and confronting the owners for a series of strikes, Miller
helped create the modern free agency system in which players make a fair
share of the tremendous amount of revenue they generate for the owners. As
I mentioned in my book, if the median American wage earner had been able to
join a Marvin Miller union, that wage earner who have seep his or her
inflation-adjusted wages increase from just under $5,000 in 1966 to just
over $62,000 by 1986.

We also know that despite his titanic impact on baseball, Marvin
Miller is not in baseball`s Hall of Fame. We now know that is time for
that to change.

I want to find out what my guests know that they didn`t know at the
beginning of the week.

We`ll begin with you, Danielle.

BRIAN: Matt Diaz, another (INAUDIBLE) award winner like Tom Drake and
Tom Kim (ph) before him, was just disbarred this week as an attorney. This
is a Navy JAG officer down at Guantanamo who thought at the time we can`t
be legally detaining these people without acknowledging who they were. He
leaked their names to a civil rights organization, served time in the brig
for that. Later, the Supreme Court vindicated that he was right, it was
unconstitutional.

But now, despite that, he is no longer allowed to be an attorney.
It`s a real crime.

HAYES: Eyal Press?

PRESS: What we know or what we should know is that the passage of the
landmark Whistleblower Protection Act does not mean that whistleblowers
will be protected. That happened in 2002 with Sarbanes-Oxley supposedly
protecting private sector workers. Eight years later, all the workers who
tried to file for complaints under that, 99 percent of them did not get
protected from reprisal and so forth. It is always up to the public to
stand firm to keep abreast of what happens when these laws are actually
implemented.

One other thing we should, I want to plug a terrific piece of long-
form journalism also on the subject of labor rights. Scott Sherman in
"Vanity Fair" writing about the great newspaper strike that happened 50
years, 1962-`63, in this town, changing the face of this profession.

HAYES: Take a look.

Ed?

PILKINGTON: We now know that two major New York media figures have
pretty heavy questions to answer as a result of the inquiry in the U.K.
into press behavior as a result of the phone hacking scandal. It`s 1
million pages long, these reports going to that. But tiny bits of it are
very important here in New York, because James Murdoch, son of Rupert and
some people think heir to the huge empire, Leveson asks why he was so
unethically engaged in what was going on and did he know more than he told
us.

Colin Myler, editor of the "Daily News", Leveson also asked, why did
Colin Myler, who is the final editor of the "News of the World" before it
shut down, why didn`t he investigate more deeply into what was going on?

HAYES: Zach?

ISCOL: We know that we -- we have know that we`ve, sort of different
subject, we`ve been losing a number of troops to suicide. Rates are higher
than they have ever been, approximately 18 veterans a day. The Department
of Defense is now taking a look at decriminalizing suicide attempts in the
Department of Defense.

HAYES: Under the Uniform Code of Military Justice, it is criminal and
can bring sanction of there`s an unsuccessful attempt.

ISCOL: Correct.

HAYES: That`s something I was just saying to you during the break. I
would love to have you back on the show to talk about the really important
issue.

My thanks to Danielle Brian for the Project of Government Oversight,
Eyal Press, author of "Beautiful Souls: Saying No, Breaking Ranks and
Heeding the Voice Conscience in Dark Times" -- a really fantastic book you
should check out -- Ed Pilkington from "The Guardian U.S.", and Zachary
Iscol from the Truman National Security Project -- thank you all for
getting up.

Thank you for joining us today for UP. Join us tomorrow, Sunday
morning at 8:00, when I`ll have Connecticut Governor Daniel Malloy, talking
about Washington`s tax battle and what his state done to respond to the
budget crunching.

Coming up next is "MELISSA HARRIS-PERRY". On today`s "MHP": is
President Obama pulling a move from Mario Puzo`s "The Godfather" when it
comes to the tax rate debate with the GOP? And will Republicans come to
understand this is an offer they simply cannot refuse? That and the woman
suing the Pentagon so they can fight in combat. That`s "MARISSA HARRIS-
PERRY" coming up next.

We`ll see you right here tomorrow at 8:00. Thanks for getting UP.

(COMMERCIAL BREAK)

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY
BE UPDATED.
END

<Copy: Content and programming copyright 2012 MSNBC. ALL RIGHTS RESERVED.
Copyright 2012 Roll Call, Inc. All materials herein are protected by
United States copyright law and may not be reproduced, distributed,
transmitted, displayed, published or broadcast without the prior written
permission of Roll Call. You may not alter or remove any trademark,
copyright or other notice from copies of the content.>

WATCH 'UP W/CHRIS HAYES' SATURDAY AND SUNDAY FROM 8:00A.M. ET TO 10:00 A.M. ET ON MSNBC.


Sponsored links

Resource guide