Originally published in The Intercept on December 22, 2020.
IN LATE MARCH, following an employee walkout at an Amazon warehouse in Staten Island to protest the lack of safety protections amid the new pandemic, Amazon fired the lead organizer, Chris Smalls, with the public rationale that he had violated rules around social distancing. Under pressure, Amazon pledged in early April to ramp up its distribution of personal protective equipment, but a leaked memo from a private meeting revealed company executives had discussed how to smear Smalls and damage any potential union efforts. Smalls is “not smart, or articulate,” argued Amazon’s general counsel David Zapolsky, who urged the company to tell reporters Smalls’s conduct was “immoral, unacceptable, and arguably illegal.”
Zapolsky’s comments outraged many left-leaning groups, including a group of lawyers and law students affiliated with the American Constitution Society, a self-described progressive legal organization that was created in 2001 to help build the bench of liberal judges and act as a countervailing force to the conservative Federalist Society. More than 100 individuals sent a letter to ACS’s president, Russ Feingold, the former Democratic senator from Wisconsin, and the ACS board of directors protesting the inclusion of a deputy of Zapolsky’s, Andrew DeVore, in its leadership ranks. DeVore, an Amazon vice president and associate general counsel, reports to Zapolsky and manages Amazon’s “labor and employment” issues, among other areas.
The signatories argued that Amazon’s conduct around Smalls was no isolated incident when it comes to “trampling worker rights” and also blasted the company’s record on privacy, surveillance, tax avoidance, anticompetitive practices, contracts with ICE, and bullying of local governments. “We urge you to ask for Mr. DeVore’s immediate resignation from the Board of Directors,” the letter read. DeVore was appointed in 2017.
Following the letter, ACS sought to handle the internal uprising in several ways, including organizing a virtual town hall for local chapter leaders with Feingold to discuss their concerns.
Feingold “expressed ACS’s respect for workers rights, but my feeling was he treated the meeting like a politician as a way to pacify the opposition rather than committing to specific actions,” said Hooman Hedayati, a member of the Washington, D.C., ACS chapter board who attended the town hall. Feingold declined to share with attendees how much money ACS receives from Amazon (it’s listed as a 2020 corporate sponsor on its website) but insisted the amount was negligible.
ACS also released a public statement reiterating the organization’s support for workers’s rights, and urged “employers to support the right of their employees” to form unions and demand safe working conditions.
Hedayati noted the statement failed to name-check Amazon specifically. “I think it was very concerning that ACS as a progressive organization won’t make a statement that specifically calls out Amazon and its bad track record,” he told The Intercept. “It makes me question to what degree they’d really be willing to speak up in support of the labor movement.”
Feingold also made a few personal calls, including to Leo Gertner, a labor lawyer and lead organizer of the letter, to suggest that the problem will basically go away when DeVore’s three-year term expires at the end of the year. “Feingold was very nice, diplomatic, and courteous and told me he was very supportive of our effort, but that the board was not interested in voting to remove Mr. DeVore or change his status in any way,” Gertner said. “But he told me DeVore was up for reappointment soon and his term was going to end this year.”
Since April, Amazon has continued to face charges of anti-worker activity, most recently this month, when attorneys for the company sought to blunt a union effort at an Alabama warehouse.
But in response to questioning, ACS confirmed to The Intercept that DeVore’s position on the board was actually renewed this year for another three-year term. David Lyle, ACS’s senior counsel for communications, said in a statement that keeping DeVore on “does not affect ACS programming or other decisions, at the national or chapter levels,” but maintained that leadership found him “to be a very engaged board member” and “valu[ed] representation of a diversity of experiences.”
ACS’S TIES TO Silicon Valley do not end with DeVore. Apple’s in-house counsel, Philippa Scarlett, was appointed to the board of directors in 2017, and now serves on ACS’s board of advisers, though her affiliation with Apple is not actually disclosed in her bio.
Over the last decade, ACS has taken at least $290,000 from Google, Microsoft, and Facebook, with other corporate sponsorships coming from Verizon and Amazon, according to pages detailing ACS convention donors. The contributions have raised questions among its members about how ACS positions itself on matters of antitrust, bankruptcy, and corporate power — areas where ACS has less clear stances than it does on issues around reproductive and civil rights. Some members say this is because ACS has molded its politics in the image of the corporate-minded Senate that serves as gatekeeper to the judiciary.
“ACS is an elite-driven organization based in D.C. with a board of directors full of Harvard, Yale, and Stanford alums, where most of those folks cut their teeth in corporate law and advised those megacorporations,” said Gertner. “I think they have an interest in putting themselves out as liberal and progressive because they have genuinely pro-choice views and are mildly anti-war, but the capture of the elite stratum by corporations is pretty much complete.”
ACS doesn’t shy away from questioning corporate power, though the bulk of its interrogation has been confined to panel discussions. Anti-monopoly advocate Barry Lynn of the Open Markets Institute says ACS could be doing more to offer a progressive vision on these issues, in the way the Federalist Society helps train and educate its conservative members on monopoly and antitrust.
Following the election of Donald Trump, some antitrust advocates, including Lynn, reached out to ACS to encourage the legal organization to take a firmer stance on these issues. In February 2017, Lynn, his colleague Lina Khan, antitrust attorney Jonathan Kanter, and Andy Green of the Center for American Progress met with Kara Stein, ACS’s vice president of policy and program.
“We said, ‘Hey, at least do no harm, don’t support people who are hardcore conservative on corporate welfare,’” Lynn said. “We want them to be a counterweight to the Federalist Society. Maybe they won’t take as radical a position as us, but we do think they should be pretty critical and at least work to educate its members about why the right takes the positions it does.” Lynn says the response they received was relative openness — if anti-monopoly advocates could fundraise for the work.
“They basically told us, ‘Well, if you really want us to engage on these issues around monopoly, then the way to do it would be to give us some money, build up a program,’” Lynn said, adding that Washington, D.C., “is full of these pay-to-play places.” David Lyle, ACS’s senior counsel for communications, didn’t deny Lynn’s characterization of the meeting and said it “was like many ACS holds regularly to explore partnerships and ways to collaborate on topics and issues.”
ACS has sponsored local and national events that have been critical of corporate power and encouraged stronger antitrust work, including an antitrust conference Khan organized at Yale. Hedayati says his ACS chapter has hosted several antitrust events in recent years — including one last month on political influence around antitrust investigations and a film screening in 2019 where members discussed shortcomings of antitrust law.
In response to questions, Lyle also pointed to a national panel ACS sponsored on consolidation of wealth and power in 2017, one on the constitutional dilemmas of Big Tech in 2018, and one on tech regulation in July. He also noted ACS has “been pleased” to publish scholars like Khan in ACS’s official law journal, and that the organization is publishing an essay by her this week with policy recommendations for the Biden administration.
In a statement to The Intercept, Khan said, “ACS’s leadership choices speak to the organization’s values, and it’s inappropriate for ACS to use my willingness to participate in past events as cover for its troubling choice to reappoint a top Amazon lawyer to the board.”
ACS declined to comment on the donations it receives from tech companies or make Feingold available for an interview. “Our work in this field, including the promotion of leading advocates of more strict antitrust enforcement and critics of technology companies speaks for itself,” said Lyle. As a U.S. senator, Feingold was a leading champion on campaign finance reform, pushing major legislation to curb the influence of money in politics. He was also known among his colleagues — and often privately resented — for his strict and obsessive fealty to the spirit of Senate ethics rules.
Lynn told The Intercept that ACS’s corporate tech donations “can’t help but affect” the organization. “When those sorts of folks are in the room they’re going to affect the policy,” he said.
Other members argue ACS’s murkiness on corporate power is less a reflection of rank corruption and points more to the reality that ACS’s aim to be a “big-tent” organization for liberals means it effectively becomes more of a networking group, with inevitable vague policy positions palatable to the full Democratic Party. In the absence of drawing clearer lines in the sand and providing a sharper vision for what progressive lawyering means in the realms of corporate power and bankruptcy law, newer organizations like Demand Justice, the People’s Parity Project, and the Law and Political Economy Project will continue to fill what its supporters say is an intellectual and advocacy void for lawyers on the left.
The Biden administration, for its part, has recently appointed a number of leaders and alumni from big tech companies, though maintains it will continue serious investigations into the practices of these firms. The Trump administration filed a major antitrust suit against Google, which will continue under the Biden administration. The suit is seen as potentially the first of several such clashes with tech titans.
“I think antitrust and antimonopoly people feel listened to on the substance by the Biden administration,” said Jeff Hauser, the director of the Revolving Door Project, which advocates for progressive executive branch appointments. “But the question is whether there will be people appointed who will be able to slow the move of the government against these companies.”