When that flashed, drivers knew the truck would soon stall. The problem was a faulty engine sensor that would often trip in winding hills and valleys, forcing a restart of the truck. When Coron and his colleagues would tell the manager of their Airgas branch about the issue, he might schedule an inspection, but would almost never take the truck out of service. The branch had no backup vehicle, and between 30 and 45 deliveries of food-grade carbon dioxide had to be made throughout Arizona every day.

There was no shoulder on the downhill road, and orange cones narrowed the bridge to two lanes, with no space to pull over. After crossing the V-shaped ravine, the road immediately veered to the right and climbed up the other side of the canyon. Coron was traveling at about 55 miles per hour. He figured he needed a working engine for eight more seconds to get over the bridge, make the right turn, and pull off onto the shoulder.

8, 7, 6 —

The stall would kill the power steering; Coron wouldn’t have the physical strength to negotiate that sharp right in a heavy truck.

5, 4, 3 —

He spun the wheel as the turn approached.

2, 1 —

The truck stalled just as Coron reached the shoulder. “If it happened literally one or two seconds earlier, I would not have been able to make that right-hand turn,” he told me over Zoom. “I don’t know if I would have had the physical ability to pull the steering wheel to stay in the lane or if I would have actually entered into oncoming traffic and killed myself.”

He told the story with a flat tone; for Coron, the near-death experience was just another day exposed to risk. Heavy-duty trucking saw the second-most fatalities of any profession in 2020, the last year studied, only narrowly behind construction, a sector with 3 million more workers. With nearly two decades of experience in the industry, Coron was used to being seen as a disposable part.

“People like me, we encounter that shit on a regular basis,” he said. “We have a nihilistic sense of humor about it. And it’s not a good thing. You shouldn’t be accustomed to what is not acceptable.”

What was really not acceptable to Coron was that he and his colleagues had been complaining for months to management about that “STOP” engine light. After reaching a safe spot to wait for a tow truck, Coron fired off an email with a picture of the scene. “Using a driver’s personal safety to test out whether or not the issue has been fixed is reckless,” he wrote.

The engine wasn’t the only problem, Coron said. Years earlier, Coron’s truck failed a pre-trip brake inspection; a copy of the inspection records an “ongoing unaddressed air leak.” When he reported it, the manager instructed him to leave the truck running during deliveries to keep the air pressure in the brakes from falling. At that point, Coron refused to drive the vehicle. Drivers knew it often took that kind of escalation to get a mechanic.

The Federal Motor Carrier Safety Administration conducts 3 million truck inspections annually, and Airgas actually has a pretty good safety record by the agency’s metrics. But with hundreds of millions of truck trips, regulators see just a fraction of what’s on the road. Coron said he was only pulled over for inspection with an Airgas vehicle twice in five years.

“A clean truck does not get inspected,” he told me. “Every weekend, every fucking truck in that yard gets fucking washed and cleaned. The ones that you’ll see with the worst records are the smaller operations that don’t pay for their shit to get cleaned on a regular basis.” In other words, Airgas literally whitewashed its safety issues. To hear Coron tell it, that wasn’t the only example.

Coron has done everything he can to raise attention to the problems at the company, from the inside and outside. Through emails, pictures, recordings of conference calls with upper management, and thousands of delivery tickets, Coron has captured a portrait of serious neglect at Airgas, the largest distributor of packaged gas in the United States, with over 1 million customers.

He also sent filings to three state and federal agencies, according to submissions reviewed by The American Prospect and The Intercept: a regional office of the Food and Drug Administration, the Arizona Department of Agriculture, and the Arizona Attorney General’s Office. All of his documentation has now been posted on a website, Airgasfraud.com, as Coron goes public with what he has been trying to tell the government for years.

Based on Coron’s information, not only were Airgas National Carbonation employees in Phoenix expected to drive dangerous vehicles, but they were also delivering unknown quantities of gases to customers while being ordered to issue inaccurate delivery tickets and purity tests to cover that up. In Coron’s retelling, these practices violated federal regulations and may have led to customers paying for products they did not receive.

Coron’s allegations were corroborated by another former ANC driver, Jim Bascone. “ANC was grossly understaffed and undertrucked, almost everywhere,” Bascone said in an interview. “That was the underlying issue.”

Though Coron’s evidence focuses mostly on carbon dioxide deliveries in Phoenix, there are several indications of wider problems. In a conference call last September, Eric Page, at the time Airgas’s senior compliance officer and today the chief financial officer for Airgas Safety, told Coron, “We have had conversations at the highest levels of leadership, the highest levels, about this issue [with the truck equipment].” Two top executives, Dennis Harris and Matt Sebuck, were fired in 2020, “because they’re not watching the fundamentals of the business, and that is the repair of the trucks.” But nothing changed, Coron said.

“ANC was grossly understaffed and undertrucked, almost everywhere. That was the underlying issue.”

Airgas spokesperson Kim Menard confirmed that the company investigated some of Coron’s allegations last year and “took appropriate action in response.” Menard said Airgas operates business “in accordance with high standards of professional and ethical conduct” and encourages whistleblowers to come forward with information about improper behavior, including through a confidential hotline. After being told about the allegations in this story, Menard said some of them were new to the company and that it has initiated a new investigation to review the matter. “Any required actions to remedy issues will be promptly implemented,” Menard said.

The situation reflects the uneven power relationship between the roughly 2 million heavy and tractor-trailer truck drivers in the U.S. and the companies they work for. Truckers who need steady work feel pressure to comply, no matter the repercussions to their safety or to customers. “The driver has the right to say no,” said Thomas Corsi, a professor of logistics at the University of Maryland. “But then the driver can be fired.”

Coron claims that he was retaliated against for trying to bring issues to management’s attention, threatened with more hazardous shifts and written up for disciplinary action. Airgas said it “does not permit any form of retaliation.” For unrelated reasons, Coron’s no longer at Airgas.

The documentary evidence, which spans five years of employment, is meticulously arranged. Coron sees it as his shield. “If I don’t have a record, it’s my word against their word,” he told me. “I’m white trash. I’m not credentialed. I’m a liar until I can prove that I’m not lying.”

The job entailed delivering food-grade carbon dioxide. Restaurants and truck stops and breweries need CO₂ for soda and beer, and it’s also used in water treatment, health care, manufacturing, and agriculture (particularly cannabis production). Deliveries were made on demand and often guaranteed to customers within 24 hours. The Phoenix branch had just three drivers and two trucks to pull that off.

Coron expected Airgas to be hyperprofessional. “I thought it would be buttoned up because it’s so damn big,” he said. Airgas was founded in 1982 and formed through over 500 mergers, as it boasts on its website. One division sells gases, another sells welding helmets and MIG guns, another sells saw blades and other construction products, and still another sells safety items like first-aid kits. In 2016, Airgas was purchased by a French conglomerate named Air Liquide, which vies with Linde for the title of the world’s largest industrial gas company. Air Liquide had 23.3 billion euros (about $24.6 billion) in revenues in 2021.

The corporation’s byzantine structure, with numerous divisions and management layers, meant that there were no standard protocols for workers, Coron said. Accounting procedures, software, maintenance rules, and compliance benchmarks were confused and inconsistent.

Coron quickly saw this play out with his CO₂ deliveries. On a typical day, drivers were supposed to fill their trucks at a stand tank, which could hold up to 28,000 pounds of gas. They were to test the CO₂ for purity and then drive out to service customers. At the delivery sites, they would measure totals in customer tanks through an electronic meter on the truck. They would take pictures of the meter at the beginning and end of delivery, placing those onto a digital ticket that was automatically forwarded to customers, who were charged per pound of CO₂.

The problem, Coron explained, is that none of the equipment required to do this job functioned consistently — not the stand tanks, not the truck gauges or meters, and not the testing equipment.

“The meter stopped working,” Coron wrote in an email to his manager, Luis Reyes, on September 23, 2019. “The volume gauge on the truck has never worked.”

Four months later, he emailed again: “This meter is malfunctioning on a daily basis. What will it take to get the parts ordered & installed?”

Then a month later: “Meter stopped working again for the umpteenth time.”

There are dozens of emails like this in Coron’s files: notices from Coron and his Phoenix branch colleague Bascone that the meters (which register how much gas is delivered to a customer) and volume gauges (which record how much gas is left in the truck) were faulty, uncalibrated, inaccurate, or just plain broken.

Last year, Coron took a video of a digital meter display on the truck showing 0 pounds of CO₂ released, even as the hose connected from the truck to a tank is hopping, indicating gas moving through it.

The stand tank volume gauge was also broken, often reading as full regardless of the amount inside. (“The Phoenix drivers have been complaining to Luis about this for years,” Coron wrote in an August 2021 email.) One result was that the branch periodically ran out of CO₂, because its supplier wouldn’t deliver to the stand tank if it read as full. The only way to find out if it was empty was to run the pump dry and burn it out; replacement pumps cost thousands of dollars.

But inaccurate counts were not limited to Phoenix. Monthly loss reports from 2019 to 2021 show discrepancies of up to 200 percent between the amounts loaded onto trucks and the amounts delivered to customers. One November 2019 report showed an overall net loss of 37.9 percent. That’s well beyond normal boil-off rates in CO₂ tanks.

In a separate report in February 2021, a 52,000-pound stand tank in San Diego was listed as being short by 37,450 pounds. A truck in Renton, Washington, with a 7,500-pound capacity was short 17,061 pounds. A separate 7,000-pound truck in Oklahoma City was short 12,584 pounds. “Anything out of the main office was a mess,” Bascone said. “You had someone wearing six hats in charge of inventory.”

In demanding an explanation for these discrepancies, Reyes did not blame the broken equipment. “I understand truck meters need to be calibrated and Stand Tank gauges aren’t correct but I believe some amounts entered … are way off (Driver Error?),” he wrote in an August 2020 email.

“That’s literally corporate America all in one fucking short sentence,” Coron told me. “Broken meter, broken gauge, nothing on the truck works — it’s your fault.”

The roots of the problem were illuminated in an August 2020 message sent to Airgas National Carbonation branches from Hubert Booth, a fleet and compliance manager. “I have received several requests for meters today,” Booth wrote. “New meters are $6,000 to $8,000 depending on how much of the system you replace and the labor.”

Instead of incurring that expense, Booth said, Airgas would repair broken parts — although he noted that some of the meters were so old that the parts “have been discontinued.” Even if the refurbished meters were fixed, they wouldn’t stay fixed; for example, the repaired turbines would “stick” instead of turning as gas is released.

“You would send them back the old meter, they would send back another one more beat up,” Bascone explained. “We got one meter in [that] hadn’t been calibrated in 11 years.”

Attached to Booth’s email were manuals directing drivers how to troubleshoot and fix the meters themselves. But truckers aren’t certified mechanics, and expecting them to fix equipment didn’t work. In reply to Coron’s September 2019 email about the broken meter, Bascone, whose acerbic humor comes through, suggested: “maybe bang it with the orange hammer.” When Reyes directed instead to check the wiring connections, Bascone deadpanned, “I think the hammer is the better way to go.”

With no way to accurately gauge how much CO₂ was being dispensed, the Phoenix branch had two options: take the trucks off the road until the meters were fixed or continue to deliver gas while guessing at the amounts. Which decision was made can be seen in over 2,800 delivery tickets from 2017 to 2021, which Coron kept.

All of them are missing the before-and-after meter pictures that confirm how much CO₂ was delivered and therefore the amount owed. Some tickets show the meter reading at 0 pounds before delivery and a picture of a logbook after. Some have blank squares where the pictures should be. Coron and Bascone claim that this was a widespread practice and that Airgas would have “tens of thousands” more of these tickets from Phoenix deliveries.

According to them, drivers would make up numbers for the “total quantity delivered” line on the tickets, hypothesizing from past performance. If the meter was running 30 percent off, they would add 30 pounds per 100 to the order. Bascone once joked, “I hold the route sheets up to my forehead and come up with a number.” Reyes told drivers to use the volume gauges on the customer tanks, but they were often busted too.

The mismeasurement meant that thousands of customers were not necessarily getting what they were charged for. It’s impossible to know whether they were being overcharged or undercharged; that depends on how accurate the drivers’ guesses were. Bascone believed that his figures were reasonably accurate. But one ticket, from February 2020, may be instructive. It shows that Airgas delivered 8,022 pounds of CO₂ to Alsco, a large laundry services company in Phoenix. That’s impossible: The trucks only carried 7,000 pounds.

So an overcharge of 1,022 pounds could translate to less than $1,000 in improper payment or as much as $7,000. With tens of thousands of records over years, that could add up. In his complaint to the Arizona Attorney General’s Office, Coron estimated customer overpayments in Phoenix at above $500,000.

For the first couple of years, Coron says he received verbal instructions from his manager to estimate delivery tickets. But later on, there are specific instances of the supervisor telling him to do so in writing.

In September 2019, Coron told Reyes that he was “literally making up #’s on deliveries.” Reyes told the drivers to “estimate the amount and take a pic of the [customer] tank if possible.” In March 2020, Reyes said the same thing: “Estimate readings based on prior fills.” In a separate email, he said, “Don’t use the meter readings for now until we figure out how to correct this.” At no time did Reyes instruct drivers not to deliver until problems were fixed. Customers were not informed on delivery tickets that the totals were estimates.

Coron alleges that during a March 2020 phone call, Reyes told him to put his finger in front of the camera lens he used to take pictures of the meters. Many of the delivery tickets going back to 2017 show black or red squares: If the flash was on, the finger over the lens would read as red. “It just looks like a glitch,” Coron said. “So that nobody can be blamed for what’s happening.” Bascone confirmed that “[drivers] just covered up the lens” to finish the delivery ticket.

There’s after-the-fact evidence of this happening in an August 2021 email, in which Reyes tells drivers that the meters were fixed for the time being. “In the future, if the meter goes out, don’t cover the screen when taking a picture of the meter but take a picture of the bulk tank contents gauge before and after a fill and note on the comments that the meter isn’t working properly,” Reyes wrote. (Reyes left the company last fall and could not be reached for comment.)

It was difficult for customers to notice what was going on, Coron explained. Deliveries were often made when businesses were closed, either early in the morning or late at night. Delivery tickets were supposed to be sent electronically to an email on file, but those emails were not regularly updated, and many companies didn’t have emails listed at all, Coron claimed.

Nevertheless, some customers did occasionally complain that their CO₂ tanks would run out earlier than expected after a refill. Coron told Eric Page, the Airgas senior compliance officer, on their conference call that he had heard from a couple of customers about this. Page responded unwittingly with a completely different issue, one that Coron says he never saw: “During Covid … some of the bars and restaurants on account were getting billed for the same amount, but they weren’t open, they weren’t using CO₂,” Page acknowledged.

The Prospect and The Intercept attempted to contact 70 businesses across Arizona that were listed on the delivery tickets, roughly 2.5 percent of the total Coron supplied. Most of the 11 businesses that responded said they rarely, if ever, saw delivery drivers.

One customer, a Shell gas station in Phoenix, said that Airgas prices had gone up recently and that “we have had a couple of emergency deliveries because we’ve had our gas run out” faster than expected. A Chick-fil-A in Prescott Valley also experienced shortages, overbilling, and underdelivery, to the extent that it found a different CO₂ supplier. A McDonald’s in Florence, a Sonic in Phoenix, and a Fuddruckers in Mesa also had CO₂ run out suddenly. Another Fuddruckers in Phoenix talked about issues with overbilling and underdelivery, though both Fuddruckers employees chalked it up to internal issues at the restaurant.

An employee at Marco’s Pizza in Flagstaff said they had experienced no problems, but that there wouldn’t be much recourse if they did. Speaking of Airgas, the employee said: “They’re the only game in town.”

In addition, because some of the CO₂ that Airgas delivered was used in beverages, it fell under regulation from the Food and Drug Administration. Following the “good manufacturing practice” guidelines for production and distribution, Airgas required food-grade CO₂ to be tested for purity before delivery to customers. Drivers were instructed to hook up a Zahm & Nagel testing device as the truck was filled at the stand tank and fill out a form confirming a successful test. Airgas had drivers sign annual forms saying that they were trained to do testing and that they followed all protocols.

But drivers never were given the proper equipment to perform the test, Coron said. Sometimes the Zahm & Nagel kit was not in the truck. And the hose connecting the kit to the truck, an item that costs no more than $9, was lacking. A metal device that attaches to the testing port on the stand tank was also missing, so drivers couldn’t test at the stand tank.

“We were told it was Airgas’s policy to test each load. But it ended there.”

“Phoenix does not and has not tested a single CO₂ load on truck #303672 since it arrived in Phoenix,” Coron wrote in an email to superiors in January 2018. “Truck #307243 hasn’t tested a single CO₂ load since it arrived in Phoenix. … These are the only trucks we use.”

Bascone backed this up. “We were told it was Airgas’s policy to test each load,” he said. “But it ended there. They didn’t supply the equipment. Nobody was in charge of it.”

In September 2021, a regional operations manager, Vincent Wise, told drivers that a new Zahm & Nagel device would soon be shipped to Phoenix. In the same email, however, he admitted that other parts had not been ordered, meaning tests still could not be conducted. “I ask that you work with the Ops Manager … to see if we can source one,” Wise, himself the operations manager, wrote.

Instead of shutting down deliveries until testing equipment was made available, drivers were instructed to fill out the testing forms anyway, according to Coron. “We always wrote down 99.9 percent [pure], always,” he told me. “If it was less than that then you couldn’t make the delivery.” Bascone said that drivers would just transfer the purity figures from the supplier to the Airgas form.

“Is it acceptable for me to continue not testing bulk CO₂ loads & write on the loading document that the test was actually performed and document testing results that don’t actually exist?” Coron asked in a 2018 email. He did not receive an answer, and loads continued to be delivered.

There is no indication that impure CO₂ was delivered, nor were there any complaints of illnesses from drinking impure soda.

When Coron told higher-ups at Airgas National Carbonation about this, some were unaware that purity testing was even done on the CO₂ loads. “I know that we test shit because I’m the one that tests it,” Coron said. “The people on top literally do not know the fundamentals about the business.”

“The people on top literally do not know the fundamentals about the business.”

The Airgas website touts that its food-grade gases comply with the Food Safety Modernization Act and other purity specifications. It adds that food-grade gas is tested “throughout the supply chain — from production to delivery.”

The FDA food-grade gas recommendations include that “training be provided annually and that manufacturers keep training records.” Those records were kept by the Phoenix branch and were available for review by FDA regional officers during audits. But in a 2018 email to a safety and compliance manager, Coron wrote, “All 3 of us drivers in Phoenix are untrained on the current testing protocol.” So for at least some of his employment, training wasn’t kept up.

Experts were unclear on the specifics of food-grade gas requirements, though Peter Lurie, a former FDA official who is now the executive director of the Center for Science in the Public Interest, said that the internal training records would be key. Lurie said it is always a problem when records reviewed by the FDA are not accurate. “I would think falsifying an attestation that ultimately came into the agency’s hands, that strikes me as criminal activity.”

From his earliest days with Airgas, Coron attempted to get upper management interested in safety and compliance issues in Phoenix. He showed me email exchanges with eight different compliance managers, senior vice presidents, and even the former president of Airgas National Carbonation, Dennis Harris.

In late 2017, Coron approached ANC Vice President Matt Sebuck and ANC safety compliance manager Scott Burgess. Coron was invited to a conference call with Harris and Burgess in early 2018, but after the call, Coron’s 2017 annual review asserted that he had “regress[ed]” over the year and included a number of negative comments. “Cyrus isn’t always content with management decisions on resolving issues. … Cyrus spends too much time writing long emails to management and Customer care. … Cyrus sought immediate resolution with upper management without consulting [Reyes, his supervisor] on several issues.” The review was signed by Reyes and Sebuck.

Coron added that Reyes made verbal threats to fire him, though the company never did so. I asked him why. “Those emails to corporate were crazy fucking detailed,” he responded. “Those weren’t like rando complaints. They knew that I had that.”

Despite the leverage, nothing changed in Phoenix. Years of back-and-forth complaints culminated in a phone call between Coron and Reyes in February 2020, which Coron memorialized in an email. “He gave me the ultimatum, if I did not stop questioning his judgment on safety issues … and ‘complaining’ about overcharging customers … then he would change my shift to a night shift, with the expectation that it would ‘force’ me to ‘quit.’” A night shift job is more dangerous, so Coron kept his mouth shut for a while.

But soon he started writing upper management again. Wise, the regional operations manager and Reyes’s supervisor, responded to specific concerns but never wrote Coron about his broader claims. Sean Eggett, a safety and compliance official, never wrote back. Amber Vanderkooy, vice president of operations at Airgas National Carbonation, never wrote back. Coron actually met with Mike Pelaez, another safety and compliance official, that June, and there were follow-up calls and emails. Pelaez thanked Coron for his feedback and ensured him that it would remain confidential. “This helps, but a quick fix is never quick,” Pelaez said after one email in August, two months after the initial contact.

Around the same time, Reyes and Wise wrote up Coron over allegedly not following safety protocols during a CO₂ delivery at a McDonald’s in Chandler, Arizona. An “anonymous source” sent photos of Coron “inside the truck cab” during delivery, they said, with no safety cones around the truck. Coron disputes the characterization; how a random bystander would know to send photos of an Airgas employee in Arizona to a remote manager in Las Vegas was not explained.

Nevertheless, Reyes and Wise insisted that Coron sign a “coaching action form” confirming the write-up. The form was contradictory: It said that Coron acknowledged the failure to comply with protocols yet added, “Your signature does not indicate that you agree with the statement made.” Coron felt trapped. “I needed the job, my wife is in school full time,” he said. “I don’t have the luxury of going two weeks without a paycheck.” He signed the form.

Finally, Coron escalated to Page, Airgas’s senior director of compliance and controls, who got back immediately and promised to start an investigation. Coron gave him access to all of his files, and on September 3, 2021, Coron, Page, and Page’s colleague held an unusually candid hourlong conference call.

Page seemed aware of the meter calibration, inventory, and accounting issues. “There is definitely a sentiment that you’re absolutely right,” he said. “That’s why a couple [senior managers] were fired last year.”

“Dennis Harris and Matt Sebuck?” asked Coron.

“Yeah,” Page confirmed.

Would an isolated problem at one branch bring down such senior officials?

“I guarantee you that this is not just a one-off,” Coron told Page. “You’re only hearing from me because I’m a driver who comes from a highly regulated background where I’ve never seen this before so I’m not cool with it.”

Page did not question that assertion. His message was that management was interested in shaping up the organization. He told Coron that they would finish their investigation and expose it publicly throughout Airgas National Carbonation within the next couple of weeks. “I can tell you that the leadership at National Carbonation, especially the new president,” Page said, “recognize that things were ignored and they’re playing catch-up. They don’t know what’s out there, they’re still uncovering kind of the hidden secrets and the mess. … We’ll get to the bottom of it.”

Page and his colleague asked Coron for emails and files for about three weeks. Coron never heard anything after that.

Coron then tried the Arizona Department of Agriculture’s Weights and Measures Services Division. After an initial phone call, he sent them information about the faulty meters and inaccurate deliveries. Associate Director Kevin Allen told The Prospect and The Intercept that the department “attempted to reach out to Airgas to witness a meter test and calibration, however we were unable to coordinate due to COVID-19 protocols.”

Once Coron got back in touch, the department suggested that he contact the consumer fraud division in the state attorney general’s office. Coron filed an online complaint, citing consumer fraud of over $500,000, and followed up with a unit manager in the consumer information section. While the office declined to initiate a criminal investigation, the case was assigned to a special investigator with the consumer section, Richard Perez, whom Coron met with in October 2021, giving him all the files on a thumb drive. Perez promised to follow up, but Coron hasn’t heard from him since last fall.

The attorney general’s office hasn’t responded to a request for comment.

By this time, Coron was on long-term leave from Airgas. He had picked up Covid from a co-worker and went on short-term disability when the symptoms didn’t go away. “Straight up, I had long Covid,” he told me. “I thought it was bogus until I actually had it.” He would get bouts of brain fog, and random parts of his body would suddenly go numb. Combined with the pressures of long workdays and the retaliation he was experiencing, it was too much. “I went to a neurologist,” Coron explained, “and the guy said, ‘You’ve got to get your ass out of a fucking truck, dude.’”

He never returned to Airgas. In January, he got a new job outside the trucking industry.

Although removed from Airgas, Coron wants the public to understand what is happening there and the structures that make corporate wrongdoing widespread. “Because I’m white trash, I don’t like people who expect me to break the law, it makes me really mad,” he told me. He sketched a vision of business school graduates in suits seeking market share, making decisions that push criminality down the ladder.

“I swear to God it’s like a class thing,” he added. “The level of criminality from the college class, they’re taught to be predators. Lazy-ass predators, but predators nonetheless.”

Jeffrey Dewey, Isabelle Gius, and Alex Weatherhead contributed reporting.

The post A Carbon Dioxide Delivery Driver’s Long Journey to Expose Airgas appeared first on The Intercept.

As the House of Representatives begins debating Democrats’ landmark budget reconciliation package, 22 Democratic lawmakers have publicly committed to keeping the legislation tied to the bipartisan infrastructure bill, according to an unofficial whip count conducted by The Daily Poster, The Intercept, and The American Prospect.

The whip count of legislators’ statements on the issue can be viewed here, and this document will be updated to reflect the changing positions of lawmakers. Since publication, six more representatives have committed to voting against the infrastructure bill if it is not paired with reconciliation, bringing the total count to 22.

If there are not enough progressive Democrats willing to oppose an anticipated late-September vote on the bipartisan infrastructure bill and keep the two bills together, then business-aligned Democratic lawmakers could be empowered to pass the infrastructure bill and kill the much larger reconciliation bill that corporate lobbyists are frantically trying to stop.

The progressive strategy, which has been endorsed by House Speaker Nancy Pelosi and President Joe Biden, has been to pair the bipartisan infrastructure bill with the larger reconciliation package — either both pass or neither do. In August, a group led by Rep. Josh Gottheimer, D-N.J., backed by the dark-money group No Labels, successfully split the two packages apart by winning a promise of a vote on the bipartisan bill on September 27. In order to keep the two together, progressives must either complete work on their larger bill by that date, or defeat or stall the bipartisan bill on September 27. Gottheimer was offered a vote, not passage, after all.

Pelosi has said that if the votes are not there to pass the bipartisan bill on Monday, she won’t put it on the floor.

Backers of the bipartisan bill say they expect Republican support to be in the low double digits; Rep. Henry Cuellar, D-Texas, pegged it at 10 to 12 in August, though that number may have fallen as Minority Leader Kevin McCarthy and former President Donald Trump have been discouraging Republicans from giving Democrats a win. Only seven Republicans have so far committed to back the bill.

The math is straightforward: Democrats have a four-seat majority, so adding 12 Republicans gives a cushion of 16 votes — meaning progressives have just enough committed “no” votes for a razor-thin margin. Dozens of Democrats did not immediately respond to our request for comment, so the figure of 16 may undershoot the count, and this article will be updated as new responses come in. (As of September 26, the count is 22.) The Congressional Progressive Caucus has previously said that it has the private commitments of a majority of their 95 members for the two-track strategy.

“There are a lot more but not everyone is ready to be public,” said Rep. Pramila Jayapal, D-Wash., chair of the CPC. “We had the majority of our caucus in our previous whip counts and we expect the same now. We will release names later if we have to. But I feel confident of our numbers.”

The reconciliation bill, called the Build Back Better Act, includes trillions of dollars to address poverty and climate change; as well as runaway costs for health care, child care, and education; and raises taxes on the wealthy and corporations. It needs only a simple majority in both the House and the Senate to pass, because the filibuster doesn’t apply to the reconciliation process.

Some conservative Democrats bankrolled by pharmaceutical companies, private equity barons, and fossil fuel giants have been threatening to vote against the reconciliation bill. This is why strategists believe the only way to get their much-needed votes for the package is for other Democrats to withhold enough votes for the infrastructure bill to block its passage unless the reconciliation bill also passes.

Over the weekend, Sen. Joe Manchin, D-W.Va., announced that he intends to vote against the reconciliation bill when it comes to the Senate for a vote. Sen. Bernie Sanders, I-Vt., responded, making his position clear: “No infrastructure bill without the $3.5 trillion reconciliation bill,” he said in a tweet.

The bipartisan infrastructure bill has already passed the Senate. The question now is whether enough Democrats in the House are willing to make their support for the legislation contingent on reconciliation’s passage to block it from passing the House, even with Republican support, without their votes.

The Daily Poster, The Intercept, and The American Prospect reached out to every voting Democrat’s office in the House of Representatives and asked whether they would publicly commit to this strategy. The following representatives said they would, or have issued public statements saying they would: Reps. Jamaal Bowman, Brendan Boyle, Cori Bush, Veronica Escobar, Pramila Jayapal, Mondaire Jones, Ro Khanna, Andy Levin, Alexandria Ocasio-Cortez, Ilhan Omar, Mark Pocan, Katie Porter, Ayanna Pressley, Jan Schakowsky, Rashida Tlaib, and Bonnie Watson Coleman.

“I am absolutely firm that we are yoking these two bills together,” Levin said at a press event on Monday. He declined to get into “the minutiae of process.”

Similarly, Ocasio-Cortez stated publicly in a livestreaming session, “Nothing would give me more pleasure than to tank a billionaire, dark-money, fossil fuel, Exxon lobbyist-drafted ‘energy’ infrastructure bill if they come after our child care and climate priorities.”

“A Robust Package”

The Congressional Progressive Caucus, of which 95 representatives are members, announced the two-track strategy in an August 10 letter to leadership. According to the letter — signed by Jayapal, Porter, and Omar — a majority of CPC members intend to withhold their votes on the infrastructure bill “until the Senate [adopts] a robust reconciliation package.”

The CPC did not release names at that time. The whip count indicates that some members are as yet unwilling to put their names on the record.

One caveat, which may threaten the entire strategy, is that the CPC has not specified the size of the reconciliation package that will meet the standard of “robustness,” nor any nonnegotiable provisions for the bill. That leaves open the possibility that they might vote for a pared-back reconciliation bill that has been gutted by conservative Democratic legislators.

Some lawmakers have drawn their own lines in the sand. Tlaib, for example, tweeted last week, “$3.5 trillion is the floor.”

Regardless of the size of the bill, the most important line in the sand is whether the two bills stay together.

Update: September 17, 2021

This story previously included Rep. Ed Perlmutter, D-Colo., among the list of Democrats committed to linking their votes on the reconciliation and infrastructure bills. After publication, Perlmutter’s office said his statement supporting a “two-track strategy” was “not a yes or no answer” on whether he would vote down the infrastructure bill if it is delinked from the reconciliation bill.

Update: September 24, 2021

Since this story was published, Reps. Yvette Clarke, D-N.Y., Mark DeSaulnier, D-Calif., Lloyd Doggett, D-Texas, Jared Huffman, D-Calif., Chuy Garcia, D-Ill., and Hank Johnson, D-Ga. have said they would vote against the infrastructure bill if it is delinked from the reconciliation bill. The total count is now 22.

The post Whip Count: The 22 Democrats Who Support the Progressive Reconciliation Strategy appeared first on The Intercept.

Renata Hesse, a former Justice Department official under President Barack Obama, worked alongside Sen. Ted Cruz defending Google a decade ago, helped shepherd through the Amazon/Whole Foods merger, and represented several pharmaceutical companies and other clients in antitrust cases. She is the leading contender for the assistant attorney general for antitrust position, multiple sources told the Prospect and The Intercept on Friday. Sources also said that Juan Arteaga, another Obama Justice Department veteran who defended JPMorgan Chase and several other financial firms in fraud cases and represented AT&T in its merger with Time Warner, was also being considered but was more likely to be appointed deputy assistant attorney general in the antitrust division. Reuters on Sunday reported that Hesse and Arteaga were the leading candidates for AAG.

The Big Tech ties have progressives particularly exercised by the possible Hesse pick, though Arteaga’s long track record of working on behalf of consolidation is also alarming. There are active anti-monopoly cases at the antitrust division against Google and Facebook, the biggest such cases in 20 years. Hesse’s work for Google would likely force her to recuse herself from the former. There is bipartisan support for reining in Big Tech and a blueprint for how to do it in an exhaustive report from the House Antitrust Subcommittee. Picking a Big Tech lawyer would open up Biden to criticism from the left and right, aside from the unusual circumstance of the top attorney in the division recusing herself from the most important case under her watch.

“Bringing in anybody from Big Tech to a leadership role in antitrust is a political, policy, and managerial disaster,” said Zephyr Teachout, author of “Break ’Em Up” and a frequent Big Tech critic, referring to Hesse. “We know how the revolving door works. The ideology of big companies shapes the ideology of government.”

As recently as a couple years ago, Hesse seemed to dismiss antitrust concerns from Google’s control of the online search market. “The reason why people use Google Search, generally, is because they like it better,” Hesse said at a Federal Trade Commission field hearing. “This is when I start to worry about, are we gonna punish someone because they did a great job?” She also said that it’s “really easy to switch” away from Google if users don’t like the product. Hesse noted at the hearing that Google was a former but not a current client of hers.

The final decision on who will take the AAG position has not been made, but the current candidates for the top job and the deputy positions include a number of additional corporate attorneys, as well as at least one with progressive backing. Jonathan Kanter, a plaintiff’s lawyer who helped design the cases against Google and Facebook, remains in the mix for the AAG job. Gene Kimmelman is being considered for a deputy position, and while he brings consumer protection experience and has some progressive support, a recent paper of his suggesting that an entirely new agency is needed to tackle digital platforms has some reformers skeptical of his commitment to aggressive antitrust enforcement. Floating his name could be a way for the Biden team to make a show of progressive inclusion without changing the actual dynamic.

The elevation of Hesse and Arteaga suggests that Biden loyalist Terrell McSweeny may be disinclined to take the job. People close to the process have said that it has long been hers if she wanted it, but a recent family tragedy is weighing on the decision. If she passes, Biden is said to be willing to create a White House position for her that would coordinate antitrust policy across the FTC and Justice Department.

Hesse, Arteaga, and others short-listed for deputy positions immediately raised eyebrows among progressive groups. “American democracy is in crisis, and it is in some ways a result of social media corporations who have killed local newspapers and structured their business models to engage, radicalize, and addict users so they can monopolize ad markets,” reads a letter to Biden led by Public Citizen and the American Economic Liberties Project, and organized within a couple days. By Monday 40 groups had signed on. “We believe that appointing antitrust enforcers with no ties to dominant corporations in the industries they will be tasked with overseeing — particularly in regard to the technology sector — will help reestablish public trust in government at a critically important moment in our country’s history.”

Hesse has gone in and out of the antitrust division and corporate defense law firms since the 1990s. A stint at the Justice Department from 2002 to 2006 featured one notable action: advising the IRS in 2005 that it could restrict free tax filing services for taxpayers making above $50,000 per year. If private companies did so, they would be engaging in illegal price fixing. Because the IRS took the action, blessed by Hesse’s advice, it went through, ruining an effort by TaxAct to give free tax filing services to everyone. This allowed market leader Intuit (makers of TurboTax) to dominate and gouge consumers for tax preparation.

After the Justice Department service, Hesse spent five years practicing at Wilson Sonsini Goodrich & Rosati, Google’s go-to law firm. She did significant antitrust work for Google during this time, including defending the company against state attorney general investigations. Advocating for Google in a case in Texas in 2010, she teamed up with a lawyer from Morgan, Lewis & Bockius named Ted Cruz, accompanying him to numerous meetings with the Texas attorney general. Ultimately, Hesse and Cruz were successful, and no action was taken against the company.

Cruz is currently fighting to retain his law degree and bar license after contributing to the incitement of a riot at the U.S. Capitol, an event promoted on Big Tech platforms like Google’s YouTube. Hesse is on the verge of getting a promotion.

She went back to the Justice Department in 2012, overseeing the Comcast/NBCUniversal deal, which kicked off a trend of vertical combination in media of networks, movie studios, and cable distributors. She waved through Humana’s purchase of insurance provider Arcadian and the acquisition of Virgin America by Alaska Airlines, among other deals.

Hesse rose to become acting assistant attorney general for the antitrust division from July 2016 until the end of the Obama administration. In September 2016, at a time when the Obama administration was reckoning with economic consolidation on their watch, Hesse gave a speech that was lauded for its willingness to criticize traditional economics-based approaches to antitrust and its endorsement of “looking more broadly at the effects of business practices on competition.” That approach dovetails with the one anti-monopoly advocates are pushing.

Hesse argued that mergers between large competing firms that would result in significant market share should automatically be looked at skeptically, even if it couldn’t be proven that consumers would suffer through higher prices immediately. (Then-Vice President Biden’s office reportedly helped write the speech.)

“Nobody out there thinks Obama’s administration was strong on antitrust. There’s no need to go back to a weak, ineffective regime.”

The speech hit a nerve, as evidenced from the Heritage Foundation’s concern over sending the “wrong signals” to businesses. But notably absent in the speech was any reference to the big technology platforms, which at the time were dominating the conversation about the need for stronger antitrust enforcement. Within a few months, the Obama term was up, and Hesse was out of the Justice Department. And she more than made up for her heresies.

She became a partner and co-head of the antitrust group at Sullivan & Cromwell, a major corporate law firm, where she now works. The hiring announcement cited Hesse’s “deep and highly relevant government experience.” It almost immediately paid off. Later on, accepting the “Competition Group of the Year” award by Law360 in 2019, Hesse highlighted how the firm’s small teams were able to clear giant mergers, because “the quality of the resources is what really matters.”

Hesse was a lead adviser to Amazon on its $13.7 billion purchase of Whole Foods, which elevated the e-commerce giant into physical retail. She worked for drugmakers Merck, Novartis, and Amgen on various mergers. She advised Fiserv’s $22 billion acquisition of First Data, which created a near-monopoly in financial services technology solutions. She advised Praxair’s $80 billion merger with Linde, creating a market-leading industrial gas giant. She worked on the Harris/L3 Technologies defense contractor combination. She helped push through American Express’s purchase of online lender Kabbage.

These numerous involvements with major companies whose future deals would come under the purview of the Justice Department present a significant problem for Hesse, Teachout noted. Large swaths of the pharmaceutical, technology, and banking sectors would probably have to draw a recusal from the head of the department. “You would have Hesse recusing from the biggest ongoing antitrust case that key decisions have to be made on,” she said, citing Hesse’s work with Google. “It’s weird and awkward; it creates weird management questions. Who will be running the Google case then?”

Hesse’s involvement with Google is a family affair. Her husband, Joshua Soven, a partner at Wilson Sonsini Goodrich & Rosati, is currently working for Google. He’s also represented Grubhub, LinkedIn, Marriott, Tenet Healthcare, Hewlett-Packard, and BNSF Railway, and he was lead counsel for T-Mobile in its successful acquisition of Sprint. Soven, who worked in President George W. Bush’s antitrust division, is a regular donor to Republican candidates, including Sens. Josh Hawley, Mo.; Ron Johnson, Wisc.; Pat Toomey, Pa.; and Susan Collins of Maine. His antitrust work could also trigger Hesse’s recusal from various cases.

For her part, Hesse maxed out donations to Biden’s presidential campaign and has contributed over $27,000 to the Democratic National Committee since 2008. To reformers, relying so heavily on Obama alumni is setting the antitrust agenda up for failure. “If you put in Obama alumni, you have evidence that they’ve done a bad job before, and there’s a natural human nature to believe that your previous decisions were the right ones,” said Teachout. “Nobody out there thinks Obama’s administration was strong on antitrust. There’s no need to go back to a weak, ineffective regime.”

Monopoly opponents remain hopeful that Kanter could emerge from all the jockeying if the decision is elevated to the highest levels. Bruce Reed, a longtime Biden friend and ally, has long stood on the furthest-right end of the spectrum within Democratic politics, but the politics of monopoly scramble the conventional calculus, and Reed happens to be a longtime critic of Big Tech’s dominance.

Biden chief of staff Ron Klain has traditionally not been seen as a skeptic of Silicon Valley, but the politics on the issue have moved fast. Klain has spent parts of the past 15 years as general counsel for a venture capital shop called Revolution, founded by AOL chief executive Steve Case. He also has advised Higher Ground Labs, an investment firm focused on campaign tech backed by Reid Hoffman, cofounder of LinkedIn.

The staffing decisions take on added import now that Biden has chosen FTC Commissioner Rohit Chopra to head the Consumer Financial Protection Bureau. Consumer finance advocates cheered the selection of Chopra, known as an unapologetic ally of the little guy. But his exit from the FTC leaves a gaping hole that is wider than just his one vote, as Chopra’s depth of knowledge and political dexterity shifted the balance of power on the commission and allowed him to create unlikely coalitions against the power of Big Tech and other consolidated industries. Unless he is replaced by someone of similar stature, such as Columbia law professor Lina Khan, a leading anti-monopoly voice who co-authored the House Antitrust Subcommittee report and is being pushed by advocates of checking consolidation, tech titans will have an easier time before the commission. Chopra’s move from the FTC to the CFPB also underscores a major problem plaguing progressives in Washington: Even as the conversation gravitates toward their perspective, the bench is so thin from four decades of neoliberal hegemony that there aren’t enough bodies to execute that vision.

In the absence of that progressive bench, several Obama-era colleagues could reunite at the Justice Department’s antitrust division, according to several sources. Arteaga (if he doesn’t get the AAG job), Sonia Pfaffenroth, and Kimmelman are among those likely to be placed in senior positions. No appointments have been made as of yet.

Arteaga, a partner at Crowell & Moring, served in the antitrust division from 2013 to 2017. At Crowell, he has defended JPMorgan Chase from charges that it manipulated benchmark interest rates known as LIBOR; Royal Bank of Scotland, UBS, and Deutsche Bank in litigation involving corruption in the mortgage-backed securities market; Morgan Stanley in a securities fraud case; a “global investment bank” in a separate mortgage-backed securities case; and Mastercard in antitrust litigation brought by American Express and Discover. Arteaga has also worked on numerous cases involving AT&T, a top Crowell client, including its acquisition of DirecTV and its purchase of Time Warner. He represented United Technologies in its acquisition of Rockwell Collins and defended private equity giant KKR against accusations that it purchased grocery chain Bruno’s and forced it into bankruptcy while extracting value.

Pfaffenroth has also gone back and forth between top corporate antitrust law firm Arnold & Porter and the Justice Department. Pfaffenroth’s clients in private practice have included Mallinckrodt Pharmaceuticals, Bayer, Koito Manufacturing, Fujikura Ltd., Snapfish, Unilever, Boston Scientific, mining company Bucyrus International, and more.

Kimmelman was chief counsel for the antitrust division in the Obama administration and has served in several Washington, D.C., think tanks and organizations like the New America Foundation, Consumers Union, the Consumer Federation of America, and Public Citizen. He was CEO of the telecom-focused Public Knowledge and is now a senior adviser there.

Public Knowledge takes a modest amount of money from Google, but Kimmelman is normally described as a critic of Big Tech. He recently co-wrote a paper for the Brookings Institution with former Federal Communications Commission chair Tom Wheeler that called for a separate agency focused on digital platforms to regulate large technology firms. This irked some reformers who believe that a new agency would only muddle already clear anti-monopoly cases against the platforms and would be subject to corporate capture.

Other tech critics have not forgiven Kimmelman for his role in the Justice Department suing book publishers early in the Obama administration for teaming up with Apple on a pricing system for e-books to defend themselves against Amazon’s market power. “Instead of suing Amazon for monopolizing the book market, Kimmelman chose to sue publishers for defending themselves against Jeff Bezos,” said Matt Stoller, author of “Goliath” and director of research at the American Economic Liberties Project. “That is an example of using antitrust law to help monopolists.”

Obama’s performance on antitrust and corporate power was savagely criticized last week in a comprehensive report from the American Economic Liberties Project, showing how economic concentration tightened across a host of industries in the Obama era and federal regulators did little to stop it. The report recommended that Biden move on from the failed philosophy of the past and choose aggressive reformers to crack down on monopolies. The names being floated oversaw several disastrous mergers in the Obama era, including American/US Airways, Anheuser-Busch InBev/SABMiller, and Comcast/NBCUniversal.

“An Obama restoration in antitrust is the worst possible outcome,” said Jeff Hauser of the Revolving Door Project, another Big Tech critic. “Hesse would represent Obama 2.0 on antitrust, which would give us ever-strengthened Big Tech platform monopolies and so much more.”

The title of the report, “The Courage to Learn,” was a nod toward the likelihood that at least some Obama alumni would wind up in positions of power, coupled with the demand that they learn from their previous mistakes. But combining a record of reticence to enforce antitrust laws with experience working on behalf of the very firms now being sued was a bit much, said Sarah Miller, executive director of AELP, which produced the report. “Especially at this moment, it’s critical to avoid appointments that have a track record of helping monopolies like Google and Amazon consolidate power,” she said. “Elevating aggressive state enforcers or experienced plaintiffs’ side attorneys will set the department up for success rather than looking backwards to those who oversaw a catastrophic era of lethargy.”

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