When it comes to Sen. Al Franken, sometimes it’s hard to tell if the joke’s on him or on all of us.
In early October, Franken — a former Saturday Night Live comic and now the junior senator from Minnesota — presented legislation designed to paint Republicans into an uncomfortable corner, to let him claim the moral high ground of standing up for women’s rights, and to enrich some of his biggest campaign donors. Specifically, Franken introduced an amendment to the defense appropriations bill that would bar the Pentagon from doing business with any contractor or subcontractor that requires its employees to submit to arbitration (and thus avoid court proceedings) over any civil-rights claims or actions related to sexual assault.
Franken and the Left styled the measure as “anti-rape” legislation, when in fact it’s really a thinly veiled gift to trial lawyers, to whom the Democratic party is largely in thrall. Federal law already precludes arbitration for such serious crimes, and the amendment would sweep in all manner of ordinary employment disputes.
That’s why 30 Republican senators voted against it. For their efforts, they were lambasted in the liberal blogosphere as “pro-rape” politicians harboring a deep-seated hatred for women. A scurrilous website emerged called RepublicansForRape.org, while Huffington Post bloggers and Jon Stewart teed off on the GOP’s supposed patriarchy.
No matter that the Defense Department itself opposed the amendment, or that the Obama White House would go only so far as to support its “intent,” but not its content. Republicans would be made to suffer for Franken’s clever sleight-of-hand.
So let’s look in detail at the measure’s flaws. Here’s the relevant language:
None of the funds appropriated or otherwise made available by this Act may be used for any existing or new Federal contract if the contractor or a subcontractor at any tier requires that an employee or independent contractor, as a condition of employment, sign a contract that mandates that the employee or independent contractor performing work under the contract or subcontract resolve through arbitration any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention. (Emphases added.)
The amendment requires two categories of claims to be litigated in courts: anything arising under Title VII of the 1964 Civil Rights Act (underlined), and any tort “related to or arising out of” sexual assault or harassment (italicized) — a list that includes a wide variety of actions.
Let’s start with the italicized language, which was explicitly designed by Franken to reflect the horrifying situation of Jamie Leigh Jones, an employee of a Halliburton subsidiary who was (allegedly) gang-raped and imprisoned by her coworkers in Iraq. When she sued her employer in federal court, Halliburton sought to dismiss the case because of an arbitration clause in her employment agreement.
But in a detailed opinion, the Fifth Circuit Court of Appeals in September rejected the contractor’s argument, finding that criminal actions like sexual assault — and other torts arising out of such actions, like battery, false imprisonment, and intentional infliction of emotional distress — could not be arbitrated, as they were in no way related to her employment, and therefore fall outside the scope of the arbitration clause. In other words, the very relief that Franken’s amendment seeks to provide already exists under federal law: Employees cannot be required to arbitrate civil actions stemming from criminal conduct. (While the Fifth Circuit is only one court among many, it’s considered the most conservative of the courts of appeals.)
The amendment’s language is also unclear with respect to the final three items, namely negligent hiring, supervision, or retention. Must these torts arise out of an act of sexual assault or sexual harassment to warrant exclusion from arbitration? Or are they necessarily “related to” them? In other words, the scope of the amendment appears to cover negligent hiring, supervision, or retention even if they do not “arise out of” an act like rape.
This is connected to the second major problem with the amendment: the underlined language regarding civil-rights violations. Title VII includes a huge range of activities within its ambit, everything from discriminatory hiring practices, to improper training programs, to inappropriate use of test scores, to punishing employees for testimony in enforcement proceedings. All of these practices are problematic, but they’re quite far afield from sexual assault, and there doesn’t appear to be any compelling need to litigate them instead of arbitrating them.
Requiring that courts hear these various employment torts will prove quite costly, for two reasons. First, litigation in the courtroom — think judges, juries, and lengthy proceedings — is vastly more expensive than arbitration, which was designed precisely to conserve resources. Second, juries tend to be more sympathetic than arbitrators to employees — even those with arguably frivolous claims — and are therefore more likely to award large sums in damages.
What’s wrong with sticking defense contractors with a higher cost of doing business? Lots. Even the Left, which has no love lost for Halliburton and the like, can appreciate that higher costs for the contractors will simply get passed along to the Pentagon; if labor costs increase across the board for all contractors, bids will be higher and taxpayers will shell out more for the same goods and services. Plus, under the amendment, some poor shlub (or team of shlubs) in the Pentagon’s general counsel’s office will have to parse the employment contracts of each of its contractors and subcontractors at any tier to determine compliance with Franken’s wishes. For these reasons, Defense and the Obama administration haven’t supported the measure.
But this is the beauty of Franken’s legislation: By lumping these relatively minor (although costly) torts with the horrifying and attention-grabbing crime of rape, it becomes impossible — in the eyes of liberals — to oppose the legislation without also promoting sexual assault. Democratic candidates have wasted no time trying to capitalize on Republican opposition. Rep. Charlie Melancon (D., La.), who’s chasing Sen. David Vitter’s (R.) seat, slammed Vitter in a campaign mailer for “allow[ing] taxpayer-funded companies to sweep rape charges under the rug.” And at a town-hall meeting in Baton Rouge hosted by Vitter in late October, a woman identifying herself as a rape victim challenged the position of the senator, who took refuge in the Pentagon’s and White House’s opposition to it.
Yet Franken’s amendment does something more than make Republicans whipping boys for liberals: It moves the employer-employee relationship one step closer to a key goal of the plaintiffs’ bar, namely, the abolition of arbitration clauses. For all the reasons explained above — higher legal costs, bigger jury paydays — trial attorneys have long loathed the power of employers to bypass court battles via arbitration.
And it’s not surprising that Franken and his brethren are doing their bidding. Indeed, Franken between 2005 and 2009 raked in over $1.2 million in campaign contributions from the legal profession, more than from any other industry group. According to Paul Mouton, a political consultant who specializes in tracking contributions, Franken’s legal take exceeds $1.6 million. Likewise, during the same time period, Sen. Mary Landrieu (D., La.), who co-sponsored the amendment with Franken, raised more than $1.2 million from lawyers — in her case, four times more money than she raised from any other industry.
But rather than entertaining an honest debate about killing arbitration clauses, Franken and company are back-dooring the holy grail of the plaintiffs’ bar. Pentagon officials called them out, writing in a letter that “it may be more effective to seek a statutory prohibition of all such arrangements in any business transaction entered into within the jurisdiction of the United States, if these arrangements are deemed to pose an unacceptable method of recourse.” Still, Senate Democrats appear unwilling to confront the issue head-on.
The good news, according to the scuttlebutt around Capitol Hill, is that the White House will ask the House and Senate conferees to remove or weaken the Franken amendment during conference. This would be a fitting — and embarrassing — result for this ill-conceived measure. Is it too much to hope that Franken and his ilk will learn something from this process, about the importance of arguing the merits of legislation rather than corroding democracy by demonizing adversaries through linking them to horrific crimes?
– Michael M. Rosen is an attorney and Republican activist in San Diego.