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'Up w/Chris Hayes' for Sunday, December 16th, 2012

Read the transcript to the Sunday show

December 16, 2012

Guests: Ezra Klein, David Sirota, Goldie Taylor, Akhil Amar, Sarah Deer, Peter Moskos, Saket Soni, Jane McAlevey, Lily Eskelsen

CHRIS HAYES, MSNBC ANCHOR: Good morning from New York, I`m Chris Hayes.
President Obama will travel later today to Newtown, Connecticut, to visit
with the families of the victims of Friday shooting at Sandy Hook
Elementary School. The visit comes as several new facts have emerged about
the shooting over the last day.

The nation is now beginning to know the faces of those who died. Officials
yesterday released the names and ages of all 26 of the victims at the
school. Of the 20 children who were killed, all were ages six and seven.
And in addition to the name and ages of the adults killed we now have more
details about some of their actions. Victoria Soto, a 27-year-old teacher,
for instance, was killed while trying to protect her children.

Police now say that Adam Lanza shot his way into the school forcing his way
in, and the state medical examiner has confirmed that all the children were
shot multiple times by a "long-range rifle", a Bushmaster 233 semiautomatic
rifle was one of three weapons recovered at the scene. Lanza apparently
took the guns from his mother, who according to reports appears to have
been a gun enthusiast.

Joining me today, we have MSNBC policy analyst Ezra Klein, editor of
Wonkblog and a columnist of "The Washington Post"; columnist David Sirota,
contributor at and host of KHOW AM`S radio show "The Rundown with
Sirota and Brown" of Denver; MSNBC contributor Goldie Taylor; and Akhil
Amar back to the table in Yale Law School, Sterling Professor of Law.

It`s great to have you all here. The reporting has been difficult and I
thought, my wife and I were having this conversation yesterday just about
things that we thought we knew that we didn`t know. The wrong name of the
shooter, you know, identically and initially. And if you go back and you
look at early reports coming out of Katrina, if you look at early reports
coming out of 9/11, if you look at early reports of Benghazi, one of the
conclusions is that, you know, in the midst of this sort of horrific
incident it`s very hard to piece the facts together, and so everything
we`re saying today we`re giving you the most recent confirmed reporting we
have and trying to be very specific and clear about what we know and what
we don`t know. And not get out ahead of the facts.

One of the things that does increasingly become clear, though, is that this
weapon was used. And it`s the same weapon, a variety of that weapon is
used by military forces. It was the same weapon, a variety of which was
used by the D.C. snipers and the fact that -- the image, I think, of this
person armed for combat with this long rifle, with five year olds and seven
year olds on the other side of it, I think, is going to heighten the
intensity of the political debate over guns in the wake of this. And
there`s already articles.

There`s a "New York Times" article today by Michael Cooper about what`s
going to happen with the gun debate nationally. And we`ve had those sorts
of stories written after Gabby Giffords was shot. We`ve had those stories
written after Aurora in Colorado. It feels to me like there`s a little bit
of a tipping point here, that something has changed and maybe it`s just
because of the object moral obscenity of the act, that it is so past
anything conceivable.

And so, I wanted to trace for a moment, as we`re thinking about where the
White House is going to be on this. Because everyone is talking about the
president, where the president has been in the past. What the trajectory
of his stance on this issue is. Then, because it`s -- he`s moved in one
direction and quite unidirectionally without much wavering back and forth.
I mean he was as a young politician in an area of the country ravished by
gun violence, with some of the strictest -- the strictest enforcement
regime and gun safety regime in the country and incredible political
constituency for that. He was a strong advocate.

In 1996, when running for State Senate Illinois Barack Obama on a candidate
questionnaire when asked, do you support legislation to ban the
manufacture, sale and possession of handguns, he answered, "Yes." Later a
staff in 2007 of his campaign told Politico that a staff member had
answered that questionnaire for him incorrectly.

During a 1998 conference at Loyola University of Chicago then state Senator
Barack Obama said this about public support for gun control.


Americans would like to see serious gun control. It does not pass. Why
does it not pass? It doesn`t pass because there is this huge disconnect
between what people think and what legislators think and are willing to act


HAYES: In the 2000 editorial for the Chicago newspaper "The Hyde Park
Herald" then state senator Obama wrote "As those of you familiar with my
record know I have consistently made gun control one of my top priorities.
It`s absolutely critical that we pass strong gun control at the federal
level as well as the state level. I`ll work for increased penalties for
the use of guns, a one gun per month law for buyers, money for violence
prevention and tougher laws stopping sales of firearms at gun shows.

And then in 2008 when Senator Barack Obama was running for president, a
landmark decision was handed down by the Supreme Court in Heller case,
which really kind of upended the previous jurisprudence on the Second
Amendment, found an individual right to a gun and then Senator Barack Obama
on the campaign trail said, "Today`s ruling, the first clear statement on
this issue in 127 years will provide much-needed guidance to local
jurisdictions around the country."

Now, keep in mind this was a ruling that was absolutely devastating to the
entire community of people who are activists on this issue for (INAUDIBLE).
So that`s the trajectory that we`ve seen so far and I want to start out by
saying, where do you, at the table, see it going from here?

EZRA KLEIN, MSNBC CONTRIBUTOR: Not that quickly. I think this is
different. I genuinely think this time is different. I think it`s
different than Aurora, I think it is different than the Wisconsin shooting,
I think it is different because we`ve had so many happen so quickly. But
for all the reasons you laid out, I don`t think there`s a very clear sense
of what exactly to do. And that is going to be one of the tougher problems
they`re going to have to face in the coming days.

So, it was great reporting by Charlie Savage at the "New York Times", that
the Justice Department was thinking about how to increase ability to do
background checks, was thinking about how to try to make some of this a
little bit more stringent back in 2011 and they shelved it, he implied, due
to the election. So stuff like that could come off the shelf, but with the
House Republican Majority and a deep fear of this issue among Democratic
politicians. And then finally, a sense, still, I think, of confusion about
what could you do here that would work? Is it gun control?

HAYES: Right.

KLEIN: Is it mental health? Is it background checks? Is it changing what
kinds of guns you can buy? It is -- I think what we can hope for is a very
genuine conversation moving towards solutions. But I don`t think they have
anything sitting in the back room they can take off the shelf that is ready
for this moment.

HAYES: I mean let me just say, Congresswoman Carolyn McCarthy who was here
yesterday, does have this. I mean she`s got a bill.

KLEIN: No, she does have a bill, and there are other bills in Congress,
but I don`t think the Obama administration actually knows what it thinks
it should do yet?

DAVID SIROTA, SALON.COM: And I think you`re going to see some movements in
states, though. I mean I do think -- on the Friday morning of the shooting
before it happens, really, it was -- the quote was on Thursday, the
frontpage of "The Denver Post" in Colorado was that the governor of
Colorado said that we need to have a debate in the legislature over gun

Now, he is a conservative Democrat who six months before said, we don`t
want to talk about gun control. He said now it`s finally the time to talk
about it after the Aurora shooting, so I think what you might see, in lieu
of the White House actually saying here`s a federal policy, you may see a
number of states, at least, even in a pro gun state like Colorado, which, I
mean, frankly, I was pretty surprised to see this governor say this in a
state like Colorado, saying, the legislature needs to have a debate.

Now, of course, I should add that upon that news that new Democratic
speaker of the House in Colorado said well, the problem is, how do you
define what an assault weapon is, how do you define this and that. And I`m
not saying that the speaker doesn`t want that to go forward, I don`t know
where he is. But the point is, I think to your point, Democrats, I think,
know they want to do something. It`s what exactly should we do?



GOLDIE TAYLOR, MSNBC CONTRIBUTOR: I think there are a set of solutions to
be had here. They both have to do with a weapon and with the human
involved in this. And so, there are a couple of things. One, you`ve got
to close the gun show loophole. 40 percent of all guns that are sold in
this country are sold without background check or identification through
private sales. So, you must do that today. The second thing about it,
you`ve got to crackdown on illegal guns. The vast majority of gun violence
in this country in places like Chicago, Los Angeles, Atlanta ...


TAYLOR: ... happens with guns that are obtained illegally. The sentence
for possession an illegal gun is about a year. I say you make it a
mandatory ten. And so, I think there are just ...

HAYES: Totally disagree, continue.

TAYLOR: I think -- but I think here, but you know, and people -- and
people are dying.

HAYES: Right.

TAYLOR: Because illegal guns are being -- I can walk out of here and 15
minutes from now get myself a 9 millimeter.

HAYES: Sure.

TAYLOR: You know, a subway right away. That shouldn`t be. I can get --
it takes me a more difficult time to get through airport screeners. You
know? To get touched up and pushed down and understood who I am and
providing positive I.D., Than it is for me to get a handgun in this
country. I`m a gun owner. Or I will be until Monday morning, but yeah ...

HAYES: You`re giving it up on Monday?

TAYLOR: Yeah, I`m giving it up on Monday.

HAYES: Why are you giving it up?

TAYLOR: Because there`s another (INAUDIBLE) step out there that says even
legal gun owners, we`re more likely to hurt ourselves ...


TAYLOR: or someone we care about or someone we care about is more likely
to get a hold of that weapon and use it against us or you know, someone in
the household. That`s what happens primarily with private ownership.

HAYES: We had Jackie Hilly yesterday on from New Yorkers Against Gun
Violence, and she was making this point, which I make every time that we
talk about gun violence, which is, you know, we have 35,000 more or less
gun deaths in this country a year. The majority, a solid majority are
suicides and we think about gun violence in the context of the shooting on
the streets of Chicago and that`s a big part of what it is.

But the majority are suicides and those suicides in many cases are
happening that could be with the right intervention, could be prevented and
if the gun isn`t there, some other much less lethal method might be used.
So, there`s -- there`s a risk to the gun owner of having a gun in the home.
Akhil Amar, I want you to walk us through in this new jurisprudential

After Heller, there is a big case just handed down by Judge Richard Posner
in the Seventh Circuit. What would pass constitutional muster? Because
that`s the next question there. The first is what policy do you want and
then there`s real open question, because this is just a new line of cases
that only started a few years ago, of what is constitutional under the
court`s new conception of the Second Amendment. We`re going to talk about
that right after this break.


HAYES: We`re discussing the gun safety debate in the wake of the horrific
shooting that happened on Friday in Connecticut, and what I think is going
to be inevitable political pressure to, quote, do something. I mean that`s
what happens in the wake of horrible tragedies, often. And what that
something is going to be, it`s going to be an interesting political story
to follow and what that something is going to be is going to be constrained
by the court`s views of the Second Amendment. And Akhil, I want you to
talk about what do we think, based on what the court has said, policy
makers will able to do and not do?

AKHIL AMAR, YALE LAW SCHOOL: Well, there`re really three different
constitutional provisions here. We`ve been talking about the Second
Amendment. But strictly speaking that binds only the federal government
and D.C. and other federal enclaves. But when the Heller case, which first
recognized the individual right under the Second Amendment came down, the
quote we had from Barack Obama talked about giving guidance to local
jurisdictions, so what`s up with that? But what`s up with that is he, as a
constitutional law professor, realized that the next step would be the 14th
Amendment issue, which is applying this individual right to have a gun
announced in Heller to state and local governments.

HAYES: Yeah, and let me just say, that, you know, obviously, the amendment
is -- Congress shall make no law, and we see this play out with many of
these things, and they are litigated that there`s a first federal test case
and then there`s incorporation, right? There is the idea that oh, if the
principle exists for federal law, we`re going to actually incorporate it
into the states and states cannot make a law that violates this.

AMAR: The original Bill of Rights reflected fear of the central government

HAYES: Exactly.

AMAR: What we just got, a localist revolution against an imperial center.
So, the entire Bill of Rights, originally, is about Congress and the
federal government. Congress shall make no law, but after the Civil War, a
new bill of rights basically emerged saying, you know, states have
misbehaved, and we need to regulate them. They have to abide by
fundamental rights. The language is no state shall make or enforce any
law, which shall abridge the privileges or immunities of citizens of the
United States. Now, what are those privileges and immunities? Free
speech, free press, free exercise -- and now ...

HAYES: Right.

AMAR: ... guns in homes. Two years after Heller, in Barack Obama`s
hometown, Chicago, a case emerged and it rose to the Supreme Court and by
five to four, the same vote as Heller, the justices said that individual
right to have a gun under the Second Amendment that we announced in Heller,
that`s true for states and localities, too. So that`s the second
constitutional provision. The Second Amendment and the 14th. And then
there are state constitutions ...

HAYES: Right. Right,.

AMAR: ... to think about. 40 state constitutions, at least, according to
Adam Winkler and other scholars affirm an individual right to keep and bear
or carry arms outside of the military context. And so even if the state
wants to do something and the federal government doesn`t intervene.

HAYES: It has its own constitution. And I think one of the things that`s
very unclear is something like -- something like the assault weapons` ban,
let`s say, right, which was a signature piece of gun safety legislation
passed during the Clinton years and then allowed to expire after George W.
Bush said he wouldn`t allow it to expire, but he did allow it to expire.
You will forget that, but it`s important to remember. That it`s unclear, I
think, would you say, whether that would be upheld, the assault weapons`
ban by this five-vote majority in the Supreme Court?

AMAR: All the Supreme Court has said thus far is that there`s a core
traditional and textual right to have a gun in the home for self
protection. Now, the big issues going forward are going to be carrying
guns outside the home whether they`re concealed or opened, whether the
state can absolutely prohibit that, whether it can regulate that, whether
it can regulate the kind of ammunition, the size of the clip ...

HAYES: This is all -- everything you`re saying we do not know, right? I
mean this is all sort of unplowed terrain and there haven`t been a lot of
test cases because it hadn`t been like legislators around the country are
rushing to pass new gun safety laws.

KLEIN: That`s the key of this, at least for a while. I mean my
understanding of Heller and from talking to you as well , this is that the
distance between what we think the court will permit and what politicians
have been willing to do for about the last decade ...

HAYES: Right.

KLEIN: ... is vast. It is possible that there are ...

HAYES: I see.

You`re saying the primary obstacle is not a constitutional one, it`s a
political one?

KLEIN: The constitutional obstacle, I think is occasionally levied in
order to create the sense of fatal around gun control, but it`s not
actually warranted ...

HAYES: That`s right.

KLEIN: ... in terms of what the politicians are willing to do. That
particularly after the `94 elections, which I think is the history David
knows better that I do, Democrats really came to the belief that the gun
issue they were not getting that far and it was destroying them in rural
America. And they backed off of it pretty much entirely and you see that
nationally, and you see that in President Obama`s sort of transition here.
There`s a lot we can do and Goldie mentioned something including gun show
loophole that really is -- we don`t expect will be in any way, obstructed
by the court. We`re not anywhere near flopping up against the limits of
what they`ve given us.

AMAR: And ironically, the fact that the court has affirmed this core right
to have a gun in the home for self-protection could make other kinds of gun
regulation easier, because the argument is, this won`t be the first step on
the slippery slope to total confiscation ...

HAYES: Now, that it`s actually been declared?

AMAR: And so, we won`t slide all the way down. We might have reasonable
regulation and people can still have a right to a gun in the home for self-

HAYES: David and Goldie, I want you to weigh in on that right after we
take a break.


HAYES: Discussing the political landscape for gun legislation and movement
on that, David?

SIROTA: I mean there`s a couple of things about whether we`re going to see
a challenge to these constitutional issues from the state. I mean first of
all I think the fact that since the Democrats turned way from gun control
in the mid to late `90s, they have lost more and more of the south to the
point where I think the 2012 election was this moment where I think a lot
of people in the party said, listen, we can actually move forward
completely without the south, that the Republican Party is a southern

HAYES: Right.

SIROTA: Gun rights are a big political deal. I mean they`re a big
political deal in a lot of places, but in particular in the south.


SIROTA: So, if the Democratic Party perceives itself to be a party that
can exist without the south, then it becomes more empowered to actually
push gun laws at the state level.

HAYES: Right, and the Obama collision, this is really, really important
point, which is the Obama collision is liberated from having to win, say,
Tennessee, which if Al Gore had won he would have carried the election in
2000, right? And a lot of people said well, his support for assault
weapons ban meant that he didn`t win at home state of Tennessee, and he won
state, he`d been the president, and blah, blah, blah, blah. But the Obama
coalition is such that it`s constituted in a way, which is no longer,
perhaps quite as dependent upon the kinds of votes one would win.

SIROTA: That`s right, now, the one thing I would say about that, though is
that in a lot of the swing states including where I`m from in Colorado, the
gun debate is still so polarized. I mean I talked to callers every day,
I`m on a right-leaning station. And the callers when you talk about gun
control, or you talk about guns in the wake of a Connecticut shooting,
you`ll get seven, eight of ten callers saying if only there were more guns
in schools.

HAYES: Right.

SIROTA: If only this wasn`t a gun-free zone. If -- and don`t try to take
my gun away from me as a law-abiding citizen in order to deal with the
people who are out there who are doing these horrible things.

HAYES: Because of that, I want to go back to you, Goldie, about, you wrote
a piece for the MSNBC Web site about -- about this decision to give up your
gun ...


HAYES: And about a context for you. And I want you to talk about the full
context for that. Because it was very moving to me and also, I think, the
psychology of this is important. And I don`t want to underplay, I don`t
want to sit here as, you know a never having owned a gun liberal and sort
of pooh-pooh the psychology of people that do own it, because that`s not
something I have subjective access to and obviously, there`s a lot of
people who feel very strongly about that.

TAYLOR: You know, I live in the American south, ground zero for the NRA,
but probably even more further to the right of gun owners of America. I
mean it is -- it is` a part of our culture. I was raised in a household
with guns. My mother later on, you know, when she was widowed, had guns.
But I will tell you, you know, my father was -- he was my first hero. And
I describe in the piece, I think, for the first time publicly, how he was
murdered. And it was not an AK-47. It was not a Bushmaster. It was a 22,
four bullets to the head. 20 years later, my brother Krystofer, you know,
we`re just a few months apart really in age, he was murdered in a
remarkably similar fashion. Both of them were gun owners.

Neither of them had an opportunity to defend themselves. They were
ambushed. And so, as a growing person and joining the Marine Corps, where
you were taught, you know, everything about weaponry there is. I left the
Marine Corps and have owned a gun nearly every day since. One, because I
was a single mother. And with small children in a home and just me, not
living in the most desirable neighborhood, I slept near the front door. I
was raised in East St. Louis and sleeping near the front door was a thing
you did. And so, I did that with a gun under the cushion of the couch.
Because if anybody were coming into that place on my children I was going
to be prepared. And so the gun was clean, loaded and locked with me. And
so that`s -- that`s how, you know ...

HAYES: Did it make you feel more secure? I mean, did it?

TAYLOR: It did. There was a both an emotional feeling of security that
you don`t get from any other thing. Not from a bolt on your door or for a
double locks, you don`t get this kind of -- and there`s a bravado that
comes with it, I have to tell you ...


TAYLOR: ... that gets -- that becomes a trigger later on. I decided, my
children are grown. They`re all in their 20s. And I decided for myself,
looking at some of the other statistics out there, that that gun is more
likely to be used on me.

HAYES: Right.

TAYLOR: ... than anyone else and I`m the buyer. And then when I look back
at how my father and brother were murdered, illegal handguns both, the gun
that killed my brother was used three years later for a murder in Texas.
And so, you know, and they followed this gun around the country. I think
this gun is still in use. You know, all these many years later, but at the
end of the day we`ve got to crackdown on illegal guns. There are guns out
there that just simply should not be used, should not be allowed for
personal use. If we can regulate poisons, you know, consumer products. I
can`t get certain sinus medicines over-the-counter.


TAYLOR: If we can regulate those kinds of products why can`t we regulate
the most dangerous product out there?

HAYES: I think that`s a very strong point.

SIROTA: And that used to be the NRA`s position way back.


SIROTA: I mean there`s the history the NRA used to lobby back in the `30s,
during the Capone and the mafia times, they used to lobby for in part
tougher gun laws on that -- to that point, and now, essentially the NRA
works to undo its own legislation.

HAYES: There`s political pressure now to do, like I said, to do something
and the question that something brings us to, I think, what I`ve seen the
very beginnings of some political talk about some ways to address what
happened, horrible (INAUDIBLE) what happened on Friday that are deeply
disturbing to me and I want to talk about those because I kind of want to
state an early intervention to nip that in the bud after this.


HAYES: So there can be political pressure to respond to this tragedy and
one thing I can see playing out and I`ve already started to see a little
bit, and if you look actually at the way that the Virginia legislature
responded to Virginia Tech, right, Virginia is a state where you can`t do
anything about guns, because of the policy there, there was this focus on
mental health. Now, focusing on the mental health policy is great because
it is an absolutely under-investigated area of policy. And I should state
for the record we know nothing, really, about the mental health profile of
the person in question in this case and what interventions conceivably
could have worked, et cetera.

But there`s also a way of thinking about this that is extremely troublesome
to me and we had Congressman Jim Langevin on our air yesterday, and Craig
Melvin did a great interview with him. And this is something the
congressman said that I was sitting at my desk working on the next day
scripts and I -- my ears perked up. Take a listen.


REP. JAMES LANGEVIN (D), RHODE ISLAND: We need to look at both mental
health issues and early intervention, perhaps even working with the United
States Secret Service who are clearly experts at identifying threat
situations and how to prevent them.


HAYES: "Working with the Secret Service who are clearly experts at
identifying threat situations and how to prevent them. I can absolutely
see because of the politics involved, saying, and because of the way that
we`ve accustomed ourselves to think about security post 9/11, which is OK,
here`s what we need to do. We need to created a whole new profiling regime
to keep track on people with diagnosed mental illness and essentially
follow them around like suspected terrorists to make sure that they don`t
do something like this.

And that is a really chilling thought to me, also, it seem like not a
particularly productive policy, but I can absolutely see they are being --
that being a very appealing policy because it kind of threads the needle
that is now on the table, which is do something, don`t do something.

SIROTA: Except there`s one thing, and I agree with you the idea of the
Orwellian nature of it. This is how we deal with it. Essentially, more
surveillance and more big government in that sense. The issue with it will
be politically, I think, the profile is white men. The profile, that`s a
profile that`s not essentially in America, allowed to be profiled. That`s
the one profile in America that`s not allowed to be profiled. If this was
any other kind of demographic, you would be hearing that I think, in a much
different way.

HAYES: Oh, yeah.

SIROTA: A much more -- a much uglier way.

HAYES: Oh, I said yesterday, if the name of the guy who did this, was
Abdulmutallab ...

SIROTA: Exactly.

HAYES: Everything about this is completely different, and every discussion
is completely different and ...

SIROTA: So, all I`m saying is I wonder if that is the way to politically
thread the needle.

HAYES: That`s right.

SIROTA: Will you see the same reaction, for instance, that you saw from
the Republican Party back when there was the Department of Homeland
Security report that came out raising flags over right-wing militias,
veterans are sometimes susceptible to appeals from - this is the DHS
report, it was written by the Bush administration, it came out under Obama,
and the Republicans said, this is the way to demonize essentially, white
America, or good God-fearing Americans. So I don`t know if that`s


HAYES: Yeah, absolutely.

AMAR: Just to connect to the theme that you`ve and Ezra both covered in
other segments, marijuana, you can have a criminal approach to it, you
could have a medical approach or other sorts of drug addiction. And so I
could imagine a mental health approach being a constructive one if it were
a medical intervention approach.

HAYES: I agree, but I think the macros that we have installed in our
policy apparatus is that you punch a key and the solution is
criminalization. The solution is "get tough," right? That becomes the way
of dealing with problems.

TAYLOR: but I think there are a couple of things about that. One, we`ve
got to train those people who are most in contact. School teachers, social
workers, other community leaders, on how to spot and get -- and then ...

HAYES: And there`s been some success in that, post Columbine, Columbine,
that has been --


TAYLOR: There has been (INAUDIBLE) and I think there`s a lot more to be
had. You know, if we increase access, you know, not just to meaningful
health care, but to the meaningful mental health care, the thing that is
most stigmatized in the African-American community. You are going to see,
you know, a shrink, you know, isn`t exactly the thing that you want to do.
The part of this is, you don`t want to profile people who have some mental
infirmities. The lion`s share of people with mental infirmities don`t harm

HAYES: Of course, yes.

TAYLOR: In fact, they are more likely to be harmed.


TAYLOR: And so I think that we get into ...

HAYES: That`s very important, very important to know.

TAYLOR: ... a very, very -- and I got this feedback over Twitter. You
know, I put out, you know, well, let`s talk about depression and other
things. Immediate pushback that look here, we don`t want to profile mental
health patients because of that.

HAYES: Akhil Amar, Yale Law School, Sterling Professor of Law, thanks for
coming on this morning. Always incredibly lucid and edifying.

Why House Republicans are blocking renewal of the Violence Against Women
Act, next.


HAYES: We`ve been talking about the tragedy in Newtown, Connecticut. And
the future of gun policy in America. That was not the only news story this
week. There is one important story this week that was undercovered even
before the Friday shooting. The future of the Violence Against Women Act,
the act, which is among other things, provided billions of dollars to
investigate and prosecute violent crimes against women, expired last year.
The Senate voted in April to reauthorize and expand the bill, and a new
protection for same-sex couples, American Indians and undocumented

But conservatives in the House balked at those provisions, so on Tuesday,
in a rare show of defiance in their own party leadership ten House
Republicans signed on to a letter written by Democrats asking House Speaker
John Boehner and Majority Leader Eric Cantor to "move quickly on the
reauthorization of the Violence Against Women Act" by bringing a bill
inclusive of protections for all victims of domestic violence, similar to
that, which has already passed to the Senate, to the House floor for a
vote. They must send the president a strong bipartisan bill that protects
all those vulnerable to domestic violence."

Some Senate Republicans who voted against the expanded version are now
saying they are willing to support it, but conservatives in the House,
particularly Eric Cantor, remain opposed. The bill failed to reach the
floor before the current Congress left town.

One of the major sticking points is a provision that would give local
authorities on tribal lands the power to investigate and prosecute
perpetrators of domestic violence who aren`t American Indians. Right now
those perpetrators essentially have a jurisdictional free pass. Tribal
authorities can`t prosecute them and U.S. authorities often decline to take
the cases. In a speech last week to the Tribal Nations Conference,
President Obama promised to restore for tribal authorities the power to
investigate crimes committed on tribal land.


OBAMA: With domestic violence so prevalent on reservations, we are pushing
Congress to restore you power to bring to justice anyone, Indian or non-
Indian, who hurts a woman.


HAYES: Joining us now is Sarah Deer, assistant professor at William
Mitchell College of Law, citizen of the Muscogee Creek Nation of Oklahoma
who works in the Justice Department`s office of violence against women
under the Clinton and Bush administrations. And Peter Moskos is a former
Baltimore City police officer who`s currently an associate professor at
John Jay College of Criminal Justice. Great to have you back.


HAYES: Sarah, can you walk me through a little bit of the - contours of
this, this issue and why it has emerged.

U.S. Supreme Court ruled on a case called Oliphant vs. Suquamish Indian
Tribe. And it was an interesting case for a number of reasons, but for
victims, what it means is that if your perpetrator is not a tribal member,
the tribal government can`t do anything to protect you and as a result
we`ve seen a skyrocketing crime in tribal communities largely committed by
non-Indians because they know they`re outside the law.

HAYES: The official jurisdiction is the local U.S. Attorney, right, for
those - for those crimes. But of course, you`re talking then about a
federal U.S. attorney and bringing them, say, a domestic violence case and
they are - they have, quote, bigger fish to fry, is basically what it comes
down to.

DEER: Exactly. And I think we`ve seen some change in the U.S. Attorney`s
prioritization, especially after Amnesty International release a report in
2007 that called out the United States for human rights violations on
Indian reservations. So we`ve seen some change, but it`s still the case
that a native woman can`t rely on her own government to protect her and
that`s what we`re trying to change in the Violence Against Women Act.

HAYES: There`s some staggering statistics on this. This comes from the
CDC, these are rates of rape, physical violence and stalking by intimate
partner and broken down by different demographic groups. And you see the
rate is highest among American Indian women, they are 46 percent, which is
pretty staggering statistic. And assault, sexual abuse cases from Indian
country declined by U.S. attorney`s offices. 46 percent of assault cases
are declined. 67 percent of sexual abuse cases are declined.

Ezra, what are the politics of this? You know, this is one of these, it
seems, in some ways, like this classic microcosm of our current
dysfunction, which is that this has traditionally been a very bipartisan
bill. It`s been a bipartisan bill in the beginning, it`s been reauthorized
a number of times for bipartisan reasons, and now isn`t. And each side is
saying the other side is essentially intentionally politically loading the
dice so that they can win a win as opposed to get the bill passed.

KLEIN: And I think we should say, this remains a bipartisan bill. The
Senate version of the bill, which is one that is inclusive for Native
Americans, for GLBT, for illegal immigrants, that passed if I`m not
incorrect, with 68 votes. Democrats do not -- did not have a 68-vote
majority to pass the bill. A fair amount of Republicans for it -- frankly
in this context, that`s a very bipartisan bill.

The House bill was a partisan bill. It passed, I believe, with either
very, very, very few or no Democratic votes at all, and in more recent
weeks you are seeing, as with that letter and with a couple of other
statements being made, particularly among Republican female legislators,
pressure on House Republicans to pass it.

But as you say, it does feels as if the two sides were just kind of
trenched in. And there wasn`t a lot of reason for it. You`re not hearing
good arguments made particularly among House Republicans, you`re not
furious about a provision, at least not most of them. They`re upset about,
they are worried about the legal immigrant side, because they think and
it`s kind of striking argument, that they`ll all be fraud in the sense that
an illegal immigrant would have somebody beat her in order to go and apply
for a temporary visa, which is not an argument that you`ll hear publicly
all that often, but it is one, it is being made and it`s a little bit, I
think, frankly, stomach-turning.

But so, it does, I think this is going to be a case where the Republican
opposition on this is currently and will crumble. But prior to the
election when everything was gridlocked it wasn`t.

HAYES: And I think part of the reason, also, is that it`s flown underneath
the radar. It hasn`t gotten -- it`s - I think it`s a difficult position
and right now it`s getting more attention.

TAYLOR: Domestic violence doesn`t have a lobbyist. You know, we don`t --
the statistics around this are maddening. That you know, every day, three
women are killed by their intimate partner. The number one cause of death
for pregnant women in this country is not the pregnancy. It`s not other
health care things. It`s not even car accidents. It is homicide. Being
murdered by, typically, the child`s father. And so if we look at issues
like this and we can`t come together as a nation, we need to check who
we`re sending to Washington. Or who we ought to be bringing home. Issues
like this ought to be just straightforward. There are great organizations
out there, one is Men Stopping Violence ...


TAYLOR: -- who go into re-educate communities, retrain men who have been,
you know, on the aggressive side of these issues and women, too, are
abusers according to the statistics. But to say that we don`t have the
political will as a country, to step forward and protect the least of these

HAYES: Right.

TAYLOR: ... women who have been hit, (INAUDIBLE), locked in, beaten,
stabbed, shot -- we can`t do anything about that?

HAYES: Peter, you were a police officer in Baltimore and one of the things
that`s always struck me when I`ve been reporting and I`ve talked to cops,
in reporting, is how much of being a police officer, a beat cop, is
domestic violence calls?

I mean, it might even be the majority of what you do as a police officer.

MOSKOS: It`s outside of clearing drug dealers off corners, it`s a huge
part. Usually when the cops show up, there`s been a fight, and basically,
cops arrest the winner. In part of -- it`s a sort of law of unintended
consequences, but the Violence Against Women`s Act strongly encourage
mandatory or pro-arrest policies, which mean if there`s any sign of injury
cops go in and arrest whoever is less injured. The problem is, mandatory
arrest has increased domestic-related homicide, substantially. It doesn`t
work. So this is another case of well-intentioned policies going the wrong
way when the rubber hits the road.

HAYES: I think you probably feel slightly different on that about the
efficacy. Because I actually -- this gets us to the deeper point about the
first beat of this debate is extend the Violence Against Women Act and -
and expand its protections ...

KLEIN Which seems very fair.

HAYES: Which seems very fair, and I agree with, but then there`s deeper
question about how we deal with domestic violence and whether, essentially
the lens that we use of get tough and kind of criminalization that`s been
used in so many other policy areas is being applied here and if there are
drawbacks to that. I want to get to that question after this break.


HAYES: According to the National Network to End Domestic Violence, there`s
been a marked increase in reporting of intimate partner violence since
passage of Violence Against Women Act. Among women, 51 percent increase,
among men, a 37 percent increase. And a significant decline, and this
actually - is intention of what you just said. So, we should adjudicate
the statistics. And National Network to End Domestic Violence says that
there`s been a decrease in non-fatal violence by intimate partners by 63
percent since passage and a 24 percent decrease in fatal violence.

MOSKOS: Which is less than the overall decrease in crime during this

HAYES: Oh, I see, that`s very interesting. Right, so I see. So you have
to (INAUDIBLE) part of the factor that we`ve actually had this incredible
decrease in crime in that same period of time, and intimate partner
violence is a subcategory of that, and that actually the decline in
fatalities in that category is less than what it is in the broader

MOSKOS: Exactly, exactly.

HAYES: What does the violence against women act do actually? Because we
talk about it and it`s actually a very large piece of legislation with a
lot of moving parts. So, just lay out for folks. What does the bill
actually do?

DEER: Well, I think what most advocates out there are familiar with, is
the funding. It applies a shelter program directly to the federal
government and get $100,000 to $200,000 to set up a shelter program, to
make sure they`re staffed and it also created federal crime. So if you
cross jurisdictions and commit and an act of domestic violence or violate a
protection order as you`re crossing state lines or in the travel
communities, that can become a federal crime. So, you know, it`s given the
funding piece of it but it`s also tried to fill gaps and the last gap we
have left is the tribal gap, and that`s why it`s so important that the
Senate version is the version that ultimately passes.

HAYES: Do you think - do you think this as model of mandatory arrest,
which the law sort of incentivizes, basically, right?

DEER: Yes.

HAYES: I mean that there`s kind of money for jurisdictions and they have
to -- it`s sort of a "race to the top" kind of model.

MOSKOS: Technically, it`s not mandatory anymore, it`s pro-arrest, but for
a police officer it means the same thing. You don`t take the chance. If
there`s any injury you`ll arrest the other person even if both people don`t
want that arrest. And that`s part of the problem. It goes against often
what the victim wants. I mean, I arrested a woman once who punched her man
because he confessed he was having an affair. They seemed happy with that
resolution, but you have to go, because he had injury. When you take that
discretion away from police officers, you can make - you can make bad
problems worse.

HAYES: Right. Although I think the case against that is that discretion
in the past particularly with an overwhelmingly male police force was not a
kind of neutral discretion.

MOSKOS: But that (INAUDIBLE). That was a useful change from the idea that
back in the `70s and even `80s when this wasn`t considered a crime ...

HAYES: At all. Right.

MOSKOS: That, I think, has changed. We`re in a different generation. So,
now, the question is, we accept that domestic violence is a crime. What
are we going to do about it? And it`s the social funding that we need more
of. Tying the hands of cops and telling them to arrest everybody is always
a bad idea.

TAYLOR: Do you agree with that?

DEER: Well, I think here`s the really interesting thing. Is that travel
governments have traditionally had more of a restorative angle to their
justice systems and law enforcement are often trained from the tribal
perspective to work with the victims and work with their families. And if
tribes are given that jurisdiction back maybe we can create models that
could be applied in a mainstream American --

HAYES: That`s interesting.

MOSKOS: There`s a lot going on in tribal governments and no one ever looks
at that.

DEER: Exactly. Exactly.

HAYES: Goldie, I`m curious what you think about this.

TAYLOR: You know, I`ve been the woman standing at the door when the cops
arrive, afraid to talk. And because I could not talk, there was no arrest.
It took me getting stabbed for an arrest to be made, for him to have to
show up in court. And then he pled down to a misdemeanor. And an attempt
- clear attempt on my life.

HAYES: Right.

TAYLOR: That man contacted me a few years ago on Facebook. And I was
still in his words, his princess. Princess was battered, bruised, scared,
90 pounds. And there was no place in the justice system that I could go
and get meaningful help that a restraining order is worthless. It is ...

HAYES: Around what year is this? Is it?

TAYLOR: This is in 1987.

HAYES: OK, this is before the act?

TAYLOR: Uh-huh. This is before the act. But even today when you see a
restraining order come out, they certainly aren`t abided by, because police
can`t get there in time before something very bad, you know, really
happens. I think there are a couple of things that have to happen here.
Yes, there has to be reform on the judicial side. But there has to be a
place where families can go to get help. Where the men themselves ...


TAYLOR: ... can go to get help without stigma.

HAYES: Yeah. And there`s been a lot of -- I mean part of what makes a
Violence Against Women Act so important is the funding and to create this
sort of archipelago of social services agencies to do this. And, you know,
navigating this system, my wife worked in the misdemeanor domestic violence
court in Chicago and she was working as a victim advocate in the domestic
violence court in Chicago and navigating the system as a victim of
domestic violence is just incredibly difficult. There is no one
essentially standing in there for you. There is the prosecutor, but the
prosecutor`s interests are not ...


HAYES: ... necessarily your interests.

TAYLOR: Move the case.

HAYES: Right. Exactly. Those are different interests. And so I want to
talk about also the tension between taking this issue seriously as crime
and, also, the fact that we just have this kind of arrest model that means
that we`re criminalizing larger and larger percentages of the population.
We`ll take a break.


HAYES: Hello from New York, I`m Chris Hayes, here MSNBC contributor Ezra
Klein, Sarah Deer, William Mitchell College of Law, MSNBC contributor
Goldie Taylor and Peter Moskos of the John Jay College of Criminal Justice.

We`re discussing the Violence Against Women Act, which has run into a
political roadblock and is set to expire unless there`s congressional
action. Right now, the problem is that the Senate version of the bill,
which has passed with bipartisan support, as Ezra noted, even cleared the
filibuster hurdle, is not being passed in the House and not being brought
to the floor in the House over basically, three provisions.

A provision about the jurisdiction for non-Indian perpetrators on tribal
lands and whether tribal courts can adjudicate them, can prosecute them.
Increased protections for undocumented women and undocumented victims, I
should say, it`s not just women who are victims of domestic violence, and
LGBT victims.

And one of the things we`ve been talking about is the model that we deal
with this and the kind of pro-arrest policy that was part of what was put
in place into the Violence Against Women Act back when it was originally
passed. Peter is a former police officer and a criminologist, you`re
somewhat skeptical of that. You were just in the break telling Ezra about
some of the studies on this, about whether having this kind of automatic
arrest policy when you show up at the door actually helps with the problem.

MOSKOS: The pro-arrest policy in large part was based on the Minneapolis
domestic violence experiment, where cops tried different techniques,
supposedly at random. Since that study showed that mandatory arrest was
the answer, the problem was that the author, Larry Sherman, admits the
study was flawed because cops were literally stacking the deck. Instead of
doing it randomly, they did what they thought was best.

It`s been replicated a lot of times since, with some mixed results, but
consistently shows that mandatory arrest is not the best solution,
especially for the most dangerous repeat of violent offenders.

And what often is the best answer -- and the problem is, it doesn`t work in
every case -- but is officer discretion. Because sometimes mediation is
the answer. Sometimes referral to social services is the answer. But the
officer on the scene is not the perfect solution, but at least, it`s one
person from the outside who can try and help.

DEER: For Native women, sometimes we don`t get anyone showing up when we
call 911.

HAYES: Right, that seems like the bigger problem.

DEER: If we have 911. Nobody comes, or they come three days later, and by
that time it`s too late.

TAYLOR: I think one of the -- I know we`re having a policy discussion, but
I think one of the things we`ve got to do, especially in our community, the
African-American community, is we have to remove the culture of silence.
That there are statistics showing sort of the pervasiveness of this, but
I`m going to suggest to you that they`re much higher. That even in our
family coming up, knew the phrase was what happens between that man and
that woman is between that man and that woman. That we didn`t air our
dirty laundry in the street.

And so there has to be -- we have grassroots intervention on asthma. We
have got grassroots intervention on diabetes. And we`re holding -- why not
grassroots intervention on domestic violence? Where women have a -- women
and men have a safe place to go to get help? And maybe that means bringing
an entire family unit in, because typically, she isn`t the only one being
abused. It is the entire family.

HAYES: And one of the things that I think I -- one of the things about
domestic violence is that at some level, it`s -- there`s a certain
simplicity to it about right and wrong and good and bad, but it`s also
tremendously complex on the ground, which I think is what you`re getting
to. Right, when you`re dealing with it, adjudicating it.

And one of the political issues that`s now risen is that the House version
of the bill in their own kind of way of slipping a poisoned pill into the
bill, they`re calling for mandatory minimums for some forms of domestic
violence, and this is a way of for them, kind of threading the needle.
Right, they`re getting tough, they`re responding to the idea that they`re
blocking the Violence Against Women Act, but this is something that
Democrats aren`t going to vote for, because we`ve seen mandatory minimums
as having really disastrous policy consequences.

MOSKOS: We know mandatory minimums whether it`s -- drugs immediately comes
to mind. It ends up just incarcerating a huge chunk of our population
without solving the problem.

Some problems are not solved through incarceration. I don`t know how many
times I have to tell people that, and no one seems to be getting the

HAYES: Nonsense.

MOSKOS: But there are better ways to do it, and these grassroots
organization, social programs. Stop thinking that putting someone in a
jail cell is the answer, because when they get out, they`re going to be
pissed off.

HAYES: Is one of the fears that people are articulating about this new
provision in the law that would allow tribal courts to prosecute non-Indian
perpetrators is there is a fear about what that would do in terms of
precedent, in terms of what that jurisdictional universe looks like?

DEER: I think so. I just think there`s a lot of education that hasn`t
happened, and we have a couple of House leaders with no Indian country in
their jurisdictions. So they don`t -- they have, maybe, a mythology about
what tribal courts do. That it`s this mysterious, unfair system. And in
fact, tribal courts are very fair, and the fact that we can`t prosecute
non-Indians is leaving a huge hole in our communities in terms of safety.
So if we can educate our House leaders as to what tribal courts can and
cannot do, and that we need this jurisdiction, I think we`ll be able to
help more victims.

HAYES: This is an ignorant question, and I`ll just, like, stipulate that
at the top. How much variance is there in the legal regimes across
different tribal courts?

DEER: Well, there is 566 federally-recognized tribes, and each of them is
their own sovereign and each of them has their own system, and there`s a
variety of different approaches. But we do have a lot of -- a lot of
tribes have very western style courts. They would look like what a state
courtroom would look like, albeit it maybe with less flair, because we
don`t have the tax base to pay for very nice courthouses.

But we`re talking about licensed attorneys, we`re talking about educated
judges. We`re talking about, you know, fairness. We are talking about due
process. And I think a lot of people don`t realize that that`s actually
the case. They think that tribal courts are somehow outside the
Constitution. In fact, we do have our own constitutions, and they`re very
consistent with what we have in the American system.

HAYES: And Ezra, do you think that the -- you sounded in the previous
block optimistic that the House letter that was signed now by ten
Republicans, the fact that there is bipartisan -- there is bipartisan
majority in the Senate, meant that this, the Violence Against Women Act,
was not going to die some sort of death of neglect over these issues? Is
that generally your feeling, that this is going to get done?

KLEIN: I`m not going to say it is not going to last, but I think, yes,
over the next couple of months, I think you`ll see a resolution.

That said, Congress does surprise to the downside, it happens all the time.
But I don`t believe you`re going to have on this issue a very extended
period going well into 2013 in which you don`t have a bill in authority.
It has been long going negotiations between House Majority Leader Eric
Cantor and Vice President Joe Biden, who of course was the original lead
sponsor of VAWA. And those were productive. I think that a lot of things
got on hold for the election, and now that the election is over, I think
there`s still gridlock and anger, I think that eventually something will
happen. But again, I wouldn`t -- my reporting on this is somewhat -- is

MOSKOS: Ezra, if it does lapse, does the funding for the social programs
just get cut cold turkey?

KLEIN: What will usually happen in that scenario is they`ll pass an
interim stop-gap measure so you`ll have -- the funding will be extended for
two weeks while they try to work out a negotiation, or one month while they
try to work out a negotiation. This, probably (ph) speaking is not how we
run everything.


HAYES: Exactly.

KLEIN: Not a great trend, but it tends to be what they do in these
situations, although, again, I`ve not seen a Violence Against Women Act
lapse before, so it`s possible something different could happen in this

HAYES: Sarah Deer, assistant professor at William Mitchell College of Law
and a citizen of the Muscogee Nation of Oklahoma, and Peter Moskos, former
Baltimore City police officer, now an assistant professor at John Jay
College of Criminal Justice, thank you both for joining us this morning.

Appreciate it.

This week`s stunning blow against working men and women, after this.


HAYES: It was not until last week that Michigan`s Governor Rick Snyder
announced that he even supported a right-to-work law. Five days later,
after making that support known, the bill was finished and signed, and so
on Tuesday, Michigan became the 24th right to work state, rushing through
legislation that substantially reduces union power by banning unions from
requiring workers to pay union dues and union shops that pay union wages.
Governor Snyder adopted the conservative argument that he`s freeing workers
from having to pay union dues.


GOV. RICK SNYDER (R), MICHIGAN: This is not anti-union. I hope it
actually gives the unions an opportunity to be more successful by having an
opportunity that really have to listen to all the workers there. And say,
why are they delivering a value proposition that workers can stand up and
choose to join?


HAYES: The latest wave of union curbing setbacks to hit the Midwest and
states where organized labor is traditionally strong, like in Wisconsin and
Indiana. This time, however, it happened in Michigan, the heartland of the
American labor movement. A state that`s long been the spiritual center of
postwar American unionism.

Governor Snyder is a smart enough politician to recognize just how powerful
that history is with his state`s voters, and revealingly, had up until now
steered clear of explicit anti-union language, parsing his words carefully
when he was asked about the right to work legislation at a congressional
hearing back in February.


UNIDENTIFIED MALE: The state legislature in Indiana has recently -- and
this is a state issue -- taken up right to work. Which is a controversial
subject, as you know. Governor Snyder, are there any discussions in your
state, which neighbors mine, concerning this type of action at the state

SNYDER: It is under discussion. There are a number of legislators s that
are promoting it. And my perspective is, is I made it clear it is not on
my agenda. Right to work is an issue that`s a very divisive issue. People
feel very strongly about. Right to work is an issue that may have its time
and place, but I don`t believe it`s appropriate in Michigan during 2012.


HAYES: Not appropriate in Michigan in 2012. Not on my agenda. Just
signed into law.

I want to bring in Saket Soni, executive director of the New Orleans
Worker`s Center for Racial Justice. Jane McAlevey, the author of "Raising
Expectations and Raising Hell: My Decade of Fighting for the Labor
Movement." She`s worked with both the AFL-CIO and SEIU among others. Lily
Eskelsen, vice president of the nation`s largest union, the National
Education Association. And David Sirota still at the table.

And the question I want to begin with is -- why now? Why is this happening


HAYES: Please.

ESKELSEN: This is a lot of political payback. There`s a three-pronged
approach that the Koch brothers and their ilk are taking. And it`s all
about winning elections to win something for them. So you have to say,
corporations are people, meaning money is people. You have to voter
suppress. When moms and grandmas and college students and minorities show
up, the Koch brothers lose. So why did we see six-hour waiting lines? So
they understand that.

The third thing, labor unions. Where was the ground game for this? Where
are the people that got people to the polls and did the phone calls? More
than that, labor folks are your neighbors. One in every 100 Americans is a
member of the National Education Association. We live in neighborhoods
that --

HAYES: If you live in a big enough apartment building.

ESKELSEN: You`re going to know somebody who`s a teacher and works in a
public school.

HAYES: Right.

ESKELSEN: And so they are systematically saying, now how do we dismantle
something like a labor union? Whenever anyone comes up to you and goes,
the Koch brothers really care about working families, there ought to be
some alarms that are going off.

little bit just historically. You know, there are two things that are true
in this country. From World War II right up until 1973, two things were
true. One, more Americans were members of unions than at any time in this
country, and two, not surprisingly, wages were going up that entire time.

In 1973, that change begins. One, union density or the number of people in
unions begins to decline, and secondly, real wages begins to fall.

So what happens in 1973? 1973, something called the Business Roundtable
forms. It is a bunch of corporations who decide they want to roll the
clock back to make this country work only for 1 percent of America and roll
back the kind of gains that middle-class workers made in this country.

They began a three-part deliberate plan. One, they began to offshore the
unionized jobs in this country. That`s a deliberate trade policy made in
advance by the Business Roundtable. So suddenly, you have got an auto
worker in Michigan who had a decent middle-class standard wage, not making
too much money, put up against a worker making $1 in Mexico in the
maquiladora factories, later Burma, later China.

So suddenly they have a narrative that they start to run that says American
auto workers make more money than people in Mexico or China, and it`s crazy
right? Those workers have no rights. Ordinary citizens in those countries
have no rights to change their traditions, and suddenly we now create a
narrative that says American auto workers make too much, when in fact, they
don`t make too much.

Point two of the strategy that began in 1973 that undid labor law in this
country was to undo labor law. We had Ronald Reagan come in, in 1981, and
Reagan, as we famously know--


HAYES: Let me stop you there, let me stop you there in that narrative,
because the undoing of labor law starts much earlier.

MCALEVEY: Absolutely. I`m just trying to --


HAYES: I know, but `47 is when it really starts. Right? `47. To say
what happens in `47. In some ways `47 is the first, the opening salvo in
this battle is really `47.

MCALEVEY: But let me just start at `35, because no one in America
understands, (INAUDIBLE) how change works--

HAYES: Hear that, America? None of you understand this.

MCALEVEY: How change is going to happen on gun safety, on restoring
American workers to a middle class standard, it`s all on a continuum.
Right? So let`s go back to 1935, the National Relations Act is passed, the

By 1947, something called the Taft-Hartley Act is passed, and that begins a
systematic rollback of labor law in this country. It`s just that it takes
a little while for it to work through the courts, so that the courts begin
to make more and more and more increased rulings that effectively strip
American workers from having a right to form a union.

It`s in `73, so in `47 Taft-Hartley begins a systematic attack. They say
workers can no longer do solidarity strikes. Fundamentally, they--

HAYES: Explain what that means.

MCALEVEY: It means that if the nurses in the hospital say to defend our
patients, we`re going to wind up taking a strike or do something, it means
that the UPS driver who is delivering--

HAYES: Can`t go on strike in solidarity.

MCALEVEY: Can`t go on strike in solidarity with them. So that is
fundamental. Workers literally in this country are barred from legally
having solidarity. That`s one.

Two, the second thing that Taft-Hartley did that was devastating, and this
is the part where American labor leaders need to change their own position
on the issue, frankly, is that they said that unions can only bargain and
negotiate over wages and working conditions. That is what began to break
the relationship between American unions and American communities.

American unions have to go back to fighting over the issues that matter to
all laboring people in America to regain the hearts and minds of American

HAYES: I want to pick up there, because there`s a few things about the
right to work in Michigan. One is, if they can do it in Michigan, they can
do it anywhere. So there`s this question of like, is this basically
Waterloo? Is this actually like the ultimate defeat?


HAYES: I want you to convince me that it`s not. I want you to convince me
that it`s not after we take this break.


HAYES: So I asked before we went to the break whether this was Waterloo
for the American labor movement. And before I think answering that
question, can you just explain what these provisions are? I`m not going to
use the phrase that`s commonly used, because it`s such a ridiculous -- let
me just give people a little history here. The phrase is coined by the guy
by the name of Vance Muse (ph), who was an oil industry lobbyist in
Houston, Texas, in the 1930s, who was a white supremacist and
segregationist. Who -- that`s when the term is first brought into use to
fight against unions as sites of forced racial integration. The origin of
this movement is an origin of a movement of the segregationist white
supremacist South against the labor unions as a site of forced racial
integration. That`s the genesis of this, just so people understand where
that phrase comes from and why I`m uncomfortable calling it by what it is.
But what does it mean for unions and why has it hurt so much?

ESKELSEN: I taught for 20 years in the great state of Utah, a right to
work for less state. And we have a very strong union there. So it`s not a
Waterloo. It`s not like if this passes, it`s the end of everything. The
only thing that this provision, and I agree, I have got to think of
something better to call it, too. It means that if you`re the recognized
representative of these teachers at my school, the labor union has the
obligation to bargain a contract for everyone. And in Michigan, you could
then charge people who didn`t want to belong to a union, you could charge
them a fee for a service you were required to give them.

HAYES: So the law says you have to bargain for everyone.

ESKELSEN: Exactly.

HAYES: The union has to by law bargain for everyone, but then, in states
in which (INAUDIBLE) didn`t pass, cannot essentially assess the fee of
providing that representation to everyone?

ESKELSEN: So it`s the right of a nonunion member to get free union.

HAYES: It`s a free rider problem, right.

ESKELSEN: Exactly.

HAYES: Which is -- the best place to be is to be someone who is in a union
shop with a union, you know, paying people to bargain on your behalf and
getting you higher wages, but not have to pay for it. Right, that`s the
ideal situation.

ESKELSEN: So how does this break a union or cause it to diminish the
union? In my school, almost everybody belonged to the union, paid their
dues, but there were always one or two people that went, oh, I get this for
free? OK, then I don`t want to (INAUDIBLE).

SIROTA: And I think we have to remember what a state is doing when they
pass a so-called right to work law. Milton Friedman, the conservative
economist, was against right-to-work laws for this very reason -- a right
to work law is the state using the power of huge government to intervene in
a contract between an employer and their employees. So if the union uses
its economic power to say to an employer, we want you to agree to hire
union workers and to then, when you pay people, take out for dues, the
state is actually saying -- you and the employer --

HAYES: You can`t have that contract between those two parties.

SAKET SONI, NOWCRI.ORG: Chris, I would say instead of thinking about this
as Waterloo or a death knell or a eulogy for the labor movement, I would
say this is an opportunity, perhaps the best yet, to think about the
underlying causes and economic shifts that got working people in America
where they are today, where they are working more hours than ever for less
than ever. And I would say that there are three big shifts that we need to
talk about and organize around to really rebuild a labor movement in the
21st century.

Firstly, you know, you talked about the industrial era. The nature of
employment has changed since the `30s. Most employers have completely
abandoned responsibilities for their workers. 42.6 million employees work
contingent. Part-time, temporary, subcontracted, not directly employed.
That`s a third of the workforce that doesn`t know who their boss is, and
they`re saying you`re not working for us, we`re not working for a real boss
so we don`t know who we`re bargaining with.

The second big thing is that while unemployment has changed -- while
employment has changed, so has unemployment. 40 percent of the workforce
that is unemployed has been unemployed for six months or more. That means
them can`t access the safety net.

And thirdly, the workforce has changed. 49 percent of the workers now are
women. Large and growing numbers of immigrant women, documented and
undocumented. People of color in the workforce, a growing service

We have to rebuild the labor movement out of these conditions. If
anything, we need to strengthen the labor movement and build the power to
beat that right to work, not as a project in itself. But we need to, you
know, start a whole new set of organizing and re-imagine the safety net in
order to really rebuild a 21st century labor movement.

HAYES: So the idea here, and this is important, which I`m getting from all
three of you as someone who, is that this is -- this hurts unions,
obviously, but it is a surmountable -- essentially you`re saying good
organizing can overcome the legislative hurdle?

MCALEVEY: Yes, absolutely. Good organizing can absolutely overcome a
legislative hurdle, and I want to both back up what you just said and also
say, that, look, part of the history lesson in this country is that it
wasn`t like being an auto worker in 1920 was a great job. What happened is
that unions came along and workers decided to fight collectively to make
the auto sector a good job.

The same exact thing has to happen right now. What we need now -- we went
from an agrarian economy in this country to a manufacturing industrial
economy. We`ve now gone from a manufacturing industrial economy into a
service economy, and it is going to take the same conscious, deliberate
effort on the part of Americans to get together and rally around the kind
of production of low-wage jobs, form unions, and actually convert the low-
wage jobs -- right, seven out of 10 jobs being created in the next ten
years are minimum-wage jobs in this country. We`ve got to take, we`ve got
to -- unions have to embrace climate change. Unions have to embrace child
care issues. Unions have to begin to advocate for broad issues on behalf
of the laboring class, and rebuild the movement by winning over the hearts
and minds of American workers.

SONI: I think it starts with re-imagining bargaining.

HAYES: Hold that thought. I want to reimagine bargaining, but I want to
take a commercial break first.


HAYES: All right, bargaining, and how bargaining can work in the 21st
century. Because that`s the big question. I mean, I think all the trends
we know, the decline of union density, the assault on unions, the assault
on unions from the political right, which, as I said, started basically,
starts as soon as the Wagner Act is passed really in the 1930s and
continues and has been increasingly successful in picking apart the
structure of the labor law that protects the workers. And passing these
laws in different states around the country, particularly beginning in the
American South, now migrating north and Michigan.

So the question is, OK, what next? How to roll this back? And you said
you wanted to think about what bargaining looks like in the 21st century.

SONI: Part of the question is -- what`s the future of work in America?
It`s contingent work, contingent employment, not direct employment. It`s
long-term unemployment, and it`s the sourcing of workers from anywhere to

So what would bargaining look like in that context? What would organizing
look like in that context? This year, we organized -- the National Guest
Worker Alliance organized workers in a small factory in a town of Breaux
Bridge, Louisiana, that nobody had heard of before we organized there, nine
guest workers who were sourced from Mexico into a small crawfish factory,
rose up and went on strike, and they attempted not only to bargain with
their immediate employer, but with Walmart. Because they were supplying
crawfish to Walmart`s shelves.

Now, nobody listened to them at the time. Nine days later, they were in
conversations with Walmart through the pages of "Newsweek." Two months
later they were on the cover of magazines and in the editorial page of the
"New York Times." And now they`re in actual negotiations with Walmart
about supply chain conditions. These are the kinds of forms of bargaining
that we need to look at.

HAYES: Right. So the point is that`s a bargaining process that is
completely outside of the NLRB process. But there are two things that are
being said here that are in tension with each other. One is -- this is a
huge attack on workers to pass right-to-work laws, et cetera, and the other
is -- actually, that`s not that important. What matters is organizing, and
then you can have a strong union in a state that doesn`t have mandatory
fees assessed.

So which is it? Right? I mean, and your union is probably the strongest
union in the country in the states that have these kinds of laws. I think
that`s probably true, right?

ESKELSEN: Absolutely. We have got strong affiliates in right to work
states, we have strong affiliates in states that --

HAYES: But if you can do it, white can`t others? What`s the problem here?

ESKELSEN: What they know is that you`re going to have to spend an awful
lot of time and resources in organizing. So what they`re going to do --


HAYES: Isn`t that good?

ESKELSEN: And that`s what we were talking about at the break. We really
have an opportunity now to be that value proposition and say --

HAYES: Now you sound like Rick Snyder.


ESKELSEN: All right. Didn`t mean to do that. But there is something that
says -- here`s why you should belong to a union. And you have to be able
to make a case to people. If it`s on autopilot, maybe you`ve even
forgotten how to articulate why it is, not just important to my school
employees, but why is it important to the families and the kids that are --


HAYES: You are making a radical pro labor argument for right to work.
Because what you`re saying here is similar to what Rick Snyder said--

SIROTA: No, she`s putting the best face on it.


SIROTA: I do think it`s like, you know, it`s OK, we`re going to make the
best of it.

I think to your point about organizing challenges, part of this does, I
think, beg for a better labor enforcement mechanism that says -- we were
talking about permi-temps, about the freelance-ization of the economy. How
do you organize that part of the economy? Because companies are relying
increasingly subcontracting their work out to other companies, which makes
it very difficult to organize across that. So I would say some of that
requires better labor law enforcement that says you can`t do these -- some
of these kinds of things.


SONI: But that`s not enough. You can`t stop at enforcement. You have to
actually think out of the box about what the laws should be, about what the
organizing model should be.

First of all, we need to tie people`s direct bread and butter issues to the
union and to issues of the workplace. If you don`t have a union, we`re
deeper in poverty. If you`re a part-time worker, you can`t schedule
daycare, so you organize people around daycare about their immediate
issues, and as a union you can still do that. As a worker center, we
organize people around a host of issues that are outside of their workplace

Secondly, you know, you can bargain with the employer. You can bargain
with the boss of the employer, and you can bargain with the state.


HAYES: Wait a second. You can bargain unless they fire all of you, which
they can do.

MCALEVEY: But we`re talking about -- you`re talking about bargaining in a
very -- in a broader sense.


HAYES: Hold that thought. I want to hear you talk about bargaining after
this break.



HAYES: Jane McAlevey.

MCALEVEY: I want to return to a point that we were just talking about
during the break, which is this. When we say bargaining, we`re sitting at
this table talking about bargaining, we`re talking about it in this very
narrow legal construct, and the truth is there`s no reason why the current
labor movement has to stay inside the legal framework that`s been handed to
it by corporations in a series of legal rulings.

So the kind of bargaining you`re talking about doing in Louisiana for those
workers against Walmart, who by the way -- the Walmart Corporation -- can
we just say this? The Walmart, the Walton family, who owns Walmart, now
has more net wealth as a single family than the bottom 40 percent of
incomes combined in this country. That`s the change from `73 to 2012 in
America, and we have got to turn that around.

And the way to do that is to have the labor movement say -- forget Taft-
Hartley. Forget the narrow boxes of labor law. We`re going to go out and
re-introduce ourselves to the 90 percent of American workers who don`t have
a union right now, and we`re going to do that on issues like childcare, and
we`re going to do that on issues like immigration, and we`re going to do
that on issues like affordable housing and the mortgage crisis in this
country, and we`re going to start to bargain as the labor movement on
behalf of laboring people.

And I`m not talking about sitting down at a table. I was an official
negotiator for a union, right, for years, and we found lots of creative
ways to bargain for things like housing trust funds, so you begin to go out
and relate to the broader community as labor.

HAYES: But bargaining is something you do when you have leverage sitting
across from someone. Bargaining is not what you do when you have no
leverage. The question is, how do you get to leverage so you can bargain?

MCALEVEY: So here`s how you get to leverage so you can bargain. So in
Stamford, Connecticut, where we were forming unions in a very non-union
environment several years ago, and God bless the people in that part of the
country right now.

But when we were forming unions there about a decade ago, almost no worker
had a union. And so people say, well, there`s no leverage there. Well, we
created a bottom-up structure that said we`re going to talk to all the
workers in the region, then we`re going to have every single worker in the
region talk to their religious leader in the region about why having a
union matters because they can`t get one. And then we`re going to have
them all talk to their PTA and their Little League and their soccer coach
and the soccer mom, and we began a broad-based, grassroots strategy to
reeducate people about how we created good jobs in this country.

And from a base that came from the churches, the synagogues, the mosques,
the parent-teacher associations, the Little Leagues and the soccer fields,
we collectively formed an organization to begin to fight. And that`s
leverage at the polls, it was leverage against the employers. It was a
grassroots effort by a whole community rising up and saying, right, we have
to actually create the jobs by forming unions, and defending workers and
forming unions, and we shifted an entire market in southern Connecticut
from nonunion to union in several years by taking that approach, because we
said childcare matters, affordable housing matters, every issue in this
community. Racism, resegregating public schools. It all matters. Take up
the issues as labor unions, begin to bargain, create leverage, and the
community will begin to embrace unions again and stand up and defend
workers trying to form unions in the service economy. That`s what we have
to do.

SONI: Let me just -- go ahead.

SIROTA: I think you`re right. I think that what we`re really talking
about is, I think your point about reintroducing the concept of what a
union is to people becomes ever more acute as more and more people have
fewer and fewer ties to unions themselves. I mean, as the population gets
older, I don`t want to be morbid here, but there are fewer and fewer people
who say my dad or my grandfather--


SIROTA: -- was a union member. There`s a whole vacuum there that says, a
whole generation says -- I don`t even know what a union is. What does that
even mean?


SONI: There are places in the country where it`s happening, and this is
not -- we`re not creating the world anew. In New Orleans, after Hurricane
Katrina, there was a completely nonunion construction industry and high
levels of long-term unemployment that didn`t even show up on the DOL
numbers, because the way you show up is by applying for unemployment
insurance. Which the long-term unemployed don`t, right?

Louisiana went right to work in `76. They had a 33 percent union rate in
construction then. By the time 29 years later after Hurricane Katrina,
they were down to 3 percent. And a group of unemployed people decided to
build power to bargain with the state for a pathway back into that iconic
American construction job that was a path and a career ladder to the middle

So what their strategy was, not to simply bargain with contractors, but to
actually bargain with the housing authority. And what they`ve won this
year is a preconstruction mandatory collective bargaining agreement on a
set of construction sites. They`re now going to enter unions, and they are
going to ride up career ladders, not be sourced through temp agencies, into
apprenticeship programs and good jobs.

HAYES: And this is something that I thought about, which is -- if
conservatives have used the states as laboratories to sort of go after
unions, right, progressives could use the states as laboratories to
strengthen unions. There`s stuff you can do at the state level with
domestic workers in California, with you know --

SIROTA: It`s been a hugely wasted opportunity or opportunity not taken
advantage of. If the right is using its Republicans in office to wage a
war on unions, Democrats need to do -- labor needs to do a better job with

HAYES: And look at the asymmetry, right? What happens when Republicans
take over the state house? They go right after the unions. What happens
when the Democrats take over the state house? Crickets. Crickets.


SONI: You mentioned the domestic worker bill of rights. It passed in New
York, and it is going to pass in California. It`s inevitable, maybe not
the first time but next year, the second time, we believe it.

In Pennsylvania, the National Guest Worker Alliance organized in the
Hershey factory workers who were earning $1 to $5 an hour under five layers
of subcontracting. They organized not against the subcontractor, but they
organized against Hershey, and they won not only rights for themselves, but
they basically turned an entire warehousing industry into compliance.

HAYES: Saket Soni from the New Orleans Worker Center for Racial Justice.
Thanks for your time this morning.

What you should know for the new week ahead, coming up next.


HAYES: In just a moment, what you should know for the week ahead, but
first, a few updates on some stories we`ve been following.

We talked to you recently about Washington and Colorado`s fascinating
experiments with legalizing marijuana. One question we asked was whether
federal officials would tolerate the new marijuana policy, perhaps the most
liberal in the world. In an interview that aired Friday, President Obama
told ABC that prosecuting pot users would not be a priority for his


BARBARA WALTERS, ABC NEWS: Do you think that marijuana should be

OBAMA: I wouldn`t go that far, but what I think is that at this point,
Washington and Colorado, you`ve seen the voters speak on this issue. And
as it is, the federal government has a lot to do when it comes to criminal
prosecutions. It does not make sense from a prioritization point of view
for us to focus on recreational drug users in a state that has already said
that under state law, that`s legal.


HAYES: It does remain to be seen, of course, to what extent that sentiment
will inform federal policy in Washington or in Colorado.

Also last week, we played a tape of Kentucky Senator Rand Paul mocking the
notion of Kentucky native Ashley Judd running against Mitch McConnell for a
Senate seat in 2014, but according to a poll released on Tuesday by the
Democratic firm Public Policy Polling, Judd would be the top choice of the
state`s Democratic primary voters, and in a hypothetical head-to-head
matchup with McConnell, Judd trailed by just 4 points, 47 to 43.

And finally, last year, when the Martin Luther King memorial was unveiled
in Washington, D.C., we discussed how one of the inscriptions on the
memorial was truncated in a way that lost the full quote`s original sense.
This week, Interior Secretary Ken Salazar endorsed the plan to remove that
quote. The paraphrase on the MLK monument right now has him as saying,
quote, "I was a drum major for justice, peace and righteousness."

The full quote is quite different. In a sermon about two months before his
assassination in 1968, King said, quote, "Yes, if you want to say I was a
drum major, say that I was a drum major for justice, say I was a drum major
for peace, I was a drum major for righteousness, and all the other shallow
things will not matter." King`s family in a statement endorsed the plan to
remove the quote.

So what should you know for the week coming up? There`s a Twitter account
you should follow if you want to watch in real time how a technology that
connects us through communication can respond to technology that divides us
through death and destruction.

NYU grad student Josh Begley this week decided to start tweeting every U.S.
drone strike. You can follow him on Twitter, @dronestream. His original
plan when he started on Tuesday was to tweet every known U.S. drone strike
over the course of ten minutes. You should know it turned out that ten
minutes wasn`t long enough. So, he`s going to keep going as long as the
drone strikes do.

You should know that too big to fail empowers those who run the biggest
banks not just to take financial risks with impunity, but also to take
legal risks with impunity. The British-based bank HSBC this week agreed to
a record of $1.9 billion with a "b" settlement with the U.S. Justice
Department, which was investigating alleged money laundering of drug money
from Mexico and for U.S. sanctioned nations including Iran and North Korea.

"The New York Times" reports some prosecutors wanted to bring criminal
charges, but the U.S. officials were concerned the consequence of
conviction could have crippled the bank in the U.S. and threaten the global
economy. In a statement, HSBC chief executive Stuart Gulliver said the
bank was quote, "profoundly sorry."

You should know that before taxes, HSBC made $12.7 billion in profits the
first half of this year, which makes it apparently too big to prosecute.

You should know that as of Friday`s deadline, 17 states and the District of
Columbia said they intend to establish health care exchanges as defined by
the Affordable Care Act, in which their residents can purchase health
insurance that meets the criteria for coverage and affordability. Another
nine states will set up versions requiring considerable federal
involvement. Utah and Florida are still undecided. And that leaves 22
states, who, because they so oppose the president, will now rely the most
on the Obama administration to make health care coverage available to those
of their residents least able to afford it.

And finally, you should know where unions stand with the man who served as
President Obama`s chief of staff, Chicago Mayor Rahm Emanuel. In the same
week his former boss lamented Michigan`s new anti-union law, Mayor Emanuel
defended his decision to switch a mayoral custodial contract to a non-union
contractor, even though it means 300 union members will be losing their
jobs. Even though it means workers at the new contractor will not have
guaranteed full-time work, even though it means they won`t have health care
coverage. And even though the new contractor is owned by the former
business partner of a man described by prosecutors as a reputed mobster.

So, while Republicans are openly committed to dismantling the labor force
that helped produce a thriving American class, you should know that
Democrats are perfectly willing to do their part, too.

I want to find out what my guests think you should know. Goldie Taylor.

TAYLOR: But first I want to say that, you know, my daughter, Kathryn has
been accepted to Teach for America.

HAYES: Awesome.

TAYLOR: And so, you should know that she`s wanted to be a teacher all of
her life and that dream is coming true. So, I`m excited for her. You
should also know there have been 30,000 gun deaths in this country last
year. You should know that according to the University of Chicago, at
least one in five children who are shot were not the intended target. And
so, you should know that there is collateral damage in this war happening
in our streets. You should also know that in the 24 hours following the
tragedy in Newtown, ten people were shot in Chicago. You should know.

HAYES: 24 hours. Jane?

MCALEVEY: In the next week, aside from keeping our hearts and mind and
support trained on Newtown, Connecticut, you should know that we are
staring down a future where seven out of ten jobs in this country according
to the Bureau of Labor Statistics will be poverty level jobs. And the
question is, how will we lift up children and families that are sort of on
the slow-moving tragedy that`s taking place in this country. And lift
people out of poverty when seven out of ten jobs going forward are going to
be poverty jobs in this country.


ESKELSEN: You should know that this is going to be a very, very hard week
for teachers, for education support staff, for principals, for moms and
dads and the kids. I can`t talk about this without crying. It`s just
hitting us what`s happened, and the magnitude of what`s happened. You
should know that this would be a really good week to hug your kids, to tell
them you love them and to hug a teacher, a school custodian, a principal,
those were also people who died trying to save those kids.

HAYES: Some of the stories that have come out, and again, these facts are
so difficult to come by that I don`t want to get out too far ahead. The
reporting we do have indicates there were incidents of just tremendous,
tremendous courage.

ESKELSEN: If these teachers were union members or not, it doesn`t matter.
We just love our kids. And they acted -- they acted out of complete
bravery because it was just something they had to do. Whether they were
union members or not. But, I have had friends who I haven`t heard from a
long time, just give me a call because they know I`m a teacher. And they
say I know this is a tough time for you. And it meant something to me. I
don`t - I wasn`t expecting a phone call. But if you know someone who could
use a little love, send us your prayers, send us your love, we`ll need it.

HAYES: David.

SIROTA: You should know that when conservatives or really anybody say that
we shouldn`t have a conversation about gun control or gun regulations or
that we are not allowed to have that conversation, that what you are being
subjected to is the new form of PC police in America. That the same people
who decry political correctness against liberals when liberals criticize
words, dehumanizing words like "illegal immigrant" or "anchor babies",
these same voices are now out there saying that we have no right to talk
about sensible gun regulations. And what you should know is that is then
trying to impose a political correctness on you, that tells you to be quiet
when it`s your responsibility as a citizen to speak up.

HAYES: I think people should go Google the gun that we think was the
shooter was using when he murdered those children and think about that gun,
and whether they think that`s a gun that should be broadly distributed in

I want to thank my guests today, MSNBC contributor Goldie Taylor, Lily
Eskelsen from the National Education Association, Jane McAlevey, author of
"Raising Expectations and Raising Hell," and columnist David Sirota. Thank
you all. Thank you for joining us.

We`ll be back next weekend, Saturday and Sunday, at 8:00 Eastern Time. Our
guests will include contributor Glenn Greenwald. We are going to
take a look at the new film "Zero Dark Thirty". I`m really excited about

Coming up next is "MELISSA HARRIS-PERRY". On today`s "MHP," the big
important fight about nothing. Melissa explains how the decision by
Ambassador Susan Rice to withdraw from consideration for Secretary of State
prevents the Obama administration from having the very kind of political
battle it should be having.

That`s "MELISSA HARRIS-PERRY" coming up next. We`ll see you next week here
on UP.


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