by Al Franken
The Angel’s Devil rolled his eyes at this little bit of posturing.
“But,” the Devil’s Angel continued, “I think he’ll live with it if you promise me that you’ll get your boss to look for some opportunities to be funny that are less high-risk.”
The Angel’s Devil put out his hand. “We’ve got a deal.”
I was relieved. This was very good staff work. And just in time.
“Senator Franken,” said Chairman Harkin.
I turned to my prepared remarks.
Growing up, my kids read in history books about a time in our country when it was perfectly legal to fire somebody or refuse to hire somebody because they were black or a woman. For them it was a concept that they couldn’t understand. I hope that my future grandkids will only read about when it was legal to fire someone because they’re gay or transgender.
As I read my opening statement, I thought of my actual staff up in our office blithely watching their boss on TV with no inkling of the anguished psychodrama I had endured and how, for the moment, anyway, my reputation, and their jobs, were secure.
When it came around to me for my five minutes of questioning of Tom Perez, then assistant attorney general for civil rights and eventually labor secretary and DNC chair, I thought back to the deal that the Angel’s Devil and the Devil’s Angel had struck. I decided it was finally time for a little good-natured humor.
ME: I’ve also seen a real change in attitudes about gay and LBGT people. I’d say my kids’ generation—I have kids in their twenties—thinks whether someone is gay or not is about as interesting as if they’re left-handed.* I think it’s more interesting than being left-handed,† but—
[Laughter.]
TOM: I’m ambidextrous.
ME: Yes.
[Laughter.]
I’m not going to touch that.
[Laughter.]
And from that day forward it was okay for me to be mildly funny. In spots. Also, the Devil’s Angel got fired, but sometimes you have to stick up for what you believe in.
Final note: Four years and two days later, on November 7, 2013, Merkley’s ENDA legislation passed in the Senate on a 64–32 vote, with ten Republicans voting in favor.
The Republican-controlled House, of course, refused to even consider the bill. And a majority of states still don’t have protections against discrimination for LGBT employees on the books.
And as for the deal the Devil and the Angel made? Well, the Angel got what he wanted. I behaved myself and resisted the self-destructive impulse to tell a joke regardless of consequences. And the Devil got what he wanted: this book.
Chapter 29
Never Give the Staff Credit
When I was in Iraq and Afghanistan with the USO, I found myself paying particular attention to defense contractors and their employees. Many of these men and women serve with incredible courage and distinction, but there definitely seemed to be something of a rough-and-tumble culture among contractors. And of course, as civilians, they are not subject to military discipline. That’s why, in addition to the widespread waste, fraud, and abuse that contributed so egregiously to the chaos in Iraq and Afghanistan, it didn’t surprise me when I heard reports that many female employees of those contractors had been the victims of sexual assault.
If women in the military had little recourse in that horrific situation, their sisters who worked for contractors had even less. They had signed employment contracts that contained mandatory arbitration clauses. A mandatory arbitration clause requires the employee to resolve any employment dispute through a private arbitrator, often one selected by the employer.
This meant that a female employee of a defense contractor who had been raped by a fellow employee in a war zone could not go to court against the contractor, even if the contractor had been grossly negligent in allowing the assault to happen. Her only recourse would be to go before an arbitrator selected by the contractor.
Which brings me to Jamie Leigh Jones, an employee of Kellogg, Brown, and Root (better known as KBR), who alleged that she had been drugged and gang-raped in 2005 by a group of KBR employees at the base in Iraq where she’d been quartered along with dozens of men.
When I got to the Senate, she had been trying for four years to take KBR to court—despite the mandatory arbitration agreement she had been forced to sign as a condition of employment. The Fifth Circuit in Texas had ruled in her favor, but KBR was appealing to the Supreme Court, which, in a number of 5–4 decisions before and since, had voted to expand the power of mandatory arbitration agreements and limit the rights of employees (and consumers) to get justice through the court system.
Drew had the idea of introducing an amendment to a defense bill currently on the floor that would prohibit the Defense Department from hiring contractors who enforce arbitration agreements in cases of sexual assault, wrongful imprisonment, and other civil rights violations.
Great idea, Drew. Let’s do it!
I rounded up a number of cosponsors and brought the amendment to the floor, where we got word that the Republicans opposing it, led by Jeff Sessions, were planning to argue that the amendment was unconstitutional.
So my Judiciary counsel quickly got letters from three eminent law scholars—one conservative, one liberal, one middle-of-the-road—arguing for the amendment’s constitutionality, and I asked the Senate pages to place copies on every member’s desk in the chamber before the debate.
In the end, we won the vote, 70–30, with only (male) Republicans voting against it. Defense contractors would no longer be able to enforce mandatory arbitration agreements against employees who claimed they had been sexually assaulted.*
Immediately following the vote, I held an impromptu press conference with a crush of press.
“How’d you get the idea for the amendment?” a reporter asked.
“My chief of staff, Drew Littman, came up with it.” I turned to acknowledge Drew, only to notice that his bald head was turning an angry shade of red.
When we got back to my office, Drew calmly asked if he could have a moment with me alone.
As soon as the door closed, he wheeled and bellowed, “Never give the staff credit! NEVER!”
I was taken aback. “But I was asked a question…”
Here’s the concept Drew explained to me that day. The senator is elected to office by the people of his or her state. Everything emanates from the senator. Every accomplishment belongs to the senator. Every once in a while, there is something called “staff error,” where a staffer can be blamed for something you screwed up. But any positive achievement? That came from you.
So, the idea of “never giving the staff credit”? That was all mine.
When my grandson, Joe, was just thirty minutes old, I held him in my arms for the first time, looked down at his angelic face, and told him, “It’s all staff.”
Let me explain what I mean to you, who might understand what I’m talking about. Because the point was completely lost on Joe.
As a senator, my main focus is on my committee work. For example, I serve on the Health, Education, Labor, and Pensions Committee. That committee is only important if you care about your health, or your family’s health, or your education, or your kids’ education, or your grandkids’ education, or if you work, or if you plan to work someday, or if you plan to stop working someday and retire.
That’s one of my committees. Then there’s the Judiciary Committee, which involves everything from Supreme Court confirmation hearings to immigration reform to law enforcement oversight to civil liberties and privacy issues, all of which are fascinating. And then there’s patent law.
I’m also on the Indian Affairs Committee, which covers a whole range of neglected and very thorny issues. And, oh yeah, Energy and Natural Resources, which deals with everything from water policy to nuclear labs to land management to the electric grid to, you know, climate change. That thing.
Yes, so my “main focus” is on literally all of those issues. I also have to cast votes
on other issues. Like whether or not to bomb Syria.
And for every issue, there aren’t just two sides, there are dozens of sides. And each of those dozens of sides has advocates making the case who deserve to be heard and whose perspective I need in order to make the right decision. Plus, each issue has a ton of experts out there who have spent their entire lives learning about it—as opposed to me, who perhaps once wrote a funny sketch that sort of touched on it.
Sometimes people ask me, “How do you keep track of all this information? How do you keep up on all these issues?” And the answer is, I don’t.
You only have time for so many meetings in a day. And you (or, at least, I) only have room in your (or, at least, my) brain for so much information at once.
So your staff takes all the meetings you can’t take, and knows all the stuff you don’t know. They’re not just your eyes and ears, not just your representatives—they’re the external hard drive for the computer or, in some of my colleagues’ cases, the old-fashioned mechanical adding machine in your brain.
On top of that, keep in mind that when you’re a senator, you aren’t just a senator. You are the public face of the Office of the Senator. That office is its own entity that communicates with the press, answers correspondence from the public, helps constituents with problems like delayed Social Security checks and visas for relatives living overseas, determines where you need to be and how you’re going to get there, and a million other things that you have neither the time nor the expertise to do personally.
You need people to do all this stuff, and people to manage all the people who do this stuff, and make sure they get their paychecks on time, and that there’s paper in the printer, and also, in addition to your office in D.C., you have offices back in your state, and perhaps by now you’re beginning to understand why I have more than forty people working for me.
Congressional staff are chronically underpaid and underappreciated, and, frankly, I don’t have time to deal with either problem right now. I’ll try to remember to put someone on it.
But if you’ve ever been watching C-SPAN and seen two senators engaging in a colloquy where they graciously thank each other for the long hours of work they’d each put in hashing out a compromise and hammering out the details of a piece of legislation, remember: They probably didn’t do much of that. All the hashing and hammering was probably done by a handful of people in their mid-to-late twenties with hundreds of thousands of dollars in graduate school debt.
It’s possible that the two senators supervised their respective staffs every step of the way, getting into the weeds on the policy, receiving constant updates on progress, and giving strategic guidance at every turn.
It’s also possible that at least one of the senators needs his chief of staff to remind him whether his staffer’s name is Jennifer or Jessica.
The point is: It’s all staff.
On the other hand.
When you’re the senator, you’re the only one who has to know at least something about everything. Your energy staffer is an expert on utility regulation, and knows way more about it than you do, and that’s great.
But you still have to know enough about utility regulation to have a conversation with thirty members of the Rural Electric Co-op Association who are coming to see you at 10:00. And also enough about Medicare payments to Critical Access Hospitals to have a conversation with the Crow Wing County executive, who’s got an appointment with you at 10:30. And also enough about patent law to not look like an idiot when the president of the University of Minnesota and the CEO of 3M drop by at 10:45 to hear the latest on the very complicated patent reform bill that is somehow the single most frustratingly complex subject the Judiciary Committee deals with.
Oh, and you still have to decide whether you want to vote to bomb Syria.
You’re the only one who has to know something about all of these issues and take all of these meetings—and not just in Washington, because you’re also the only one who constantly goes back and forth between D.C. and your state, and travels to every corner of your state.
You’re the only one in the caucus lunches with the other senators in your party. You’re the only one in the classified briefings down in the SCIF (the Sensitive Compartmented Information Facility, a secure room where you can’t even bring your cell phone in). You’re the only one who makes calls to the parents of service members who have died. You’re the only one who has to cast the tough votes.
And, by the way, you’re the only one who’s responsible for getting reelected every six years so that everyone else doesn’t lose their job and have to go make twice as much money in the private sector.
So, yeah, it’s all staff. But actually, as I tell my staff, it all comes from the top.
Chapter 30
Letting My Id Run Amok
It didn’t take long for me and Franni to establish a routine in Washington. I’d walk home from my office to the little house we had rented on Capitol Hill—Franni found it on Craigslist—where, during a quick but always delicious dinner prepared by Franni, we would discuss each other’s days and muse about our hopes and dreams for our children, our country, and the world.
But mainly I would complain about how much work I had to do.
You see, after dinner, I would go to my den to do my homework. Mostly, that’s reading.
Every night, I go home from the office with a binder. Inside the binder is a schedule for the next day, usually loaded up with a wide variety of meetings, along with briefings for each one so I know what I’m talking about when I sit down with those labor leaders, or those activists for Alzheimer’s research, or some guy who wants to pitch a new postage stamp honoring Danish pianist Victor Borge.*
That’s my binder. Well, it’s one of them. The “daily” binder. In addition to that one, I have a binder for each hearing I’m going to attend the next day.
One thing I didn’t know before I got to the Senate is that witnesses customarily submit testimony in writing before the hearing itself—which means we senators get to read it the night before we question them!
Not long after the press conference where I stupidly gave Drew credit for his—I mean, my—idea on mandatory arbitration, Judiciary Committee chairman Pat Leahy scheduled a hearing on the issue. At hearings, each side gets to invite witnesses. Not surprisingly, Republicans had invited a witness who would testify in support of mandatory arbitration agreements: a lawyer representing the U.S. Chamber of Commerce.
The night before that hearing, I opened my Judiciary binder and flipped directly to the testimony from the Chamber stooge who was going to try to defend these indefensible agreements, a guy named Mark A. de Bernardo.
A passage immediately caught my eye: The employee actually benefits from mandatory arbitration clauses, Mr. de Bernardo argued, because under arbitration the employee prevails 63 percent of the time, compared to prevailing just 43 percent of the time in court.
Hmmm, I thought. As a trained lie-spotter, I had become intimately familiar with the right wing’s most common techniques—including the deceptive use of statistics. And that one seemed downright suspect, especially since he used a very particular word like “prevails.” What exactly did that word mean in this context?
I decided to dig a little deeper. In a footnote, de Bernardo had cited a source for his statistic: page 30 of a Congressional Research Service study. I called my Judiciary Committee staffer and asked him to track down the study so I could take a closer look. He found the study. It was only ten pages long. Kinda hard to analyze a statistic that appears on page 30 of a ten-page report.
The next morning, I woke up with a song in my heart and adrenaline in my blood. I took my seat at the end of the dais and waited patiently for my chance to question de Bernardo. Finally, it was my turn.
Would a rape victim, I asked him, be deemed to have “prevailed” in an arbitration proceeding if she was awarded fifty dollars?
De Bernardo started fumfering.
“Please answer
yes or no,” I instructed him.
He paused uncomfortably. “I say no.”
I had him.
Okay. Would a rape victim, under his definition of “prevailing,” be considered to have “prevailed” if she was awarded… one hundred dollars?
“You know, I think this is a distinction without a difference. What we are talking about—”
By now, I recognized a pivot when I saw one. Nice try.
“Answer yes or no, please, sir.”
He knew he was cooked. “The question is, ‘What is the number that counts as prevailing?’”
“I think that is sort of the question, isn’t it?” I said, trying not to flash my incisors.
De Bernardo stammered a bit more before giving up: “I don’t know.”
Aha. “So when you said no, you didn’t know whether that was true or not, did you?”
“Well…”
“Did you? Did you!? DID YOU!?!?!?”
Okay, the last two “did you!?”s were silent.
Now, I’ll bet Mark A. de Bernardo is a good husband and father, who just wants to provide for his family by defending a corporation’s right to heartlessly exploit its employees and rip off its customers. But I was enjoying this. Perhaps a little too much.
Truth be told, I recognized the feeling. It was the same feeling I had gotten back in the old days when I realized just how far up Liar’s Creek Bill O’Reilly was, claiming he had won two Peabody Awards and then claiming he hadn’t said that. I can’t help it. I love getting these guys.
But now, instead of simply exposing the mendacity of a right-wing lying liar, I was standing up for everyone who had been the victim of a mandatory arbitration clause. The family who had to go before an arbitrator chosen by the nursing home that had allowed Grandma to die of dehydration. The women employees who had been paid less than their male counterparts at Walmart but couldn’t file a class action lawsuit because the Supreme Court had decided (in another 5–4 Roberts Court decision) that they had to go into arbitration as individuals.
