Randy suggested a couple of days back that we have a string on the Franken amendment vote, which, according to some of my friends here on the blog, can be summarized as, “Graham and DeMint were among 30 Republicans who sided against rape victims.”
Personally, I still don’t know who was right about this. But I had, and still do, a suspicion over a vote that allows one side to paint the other that black. The world isn’t that simple. And I know Lindsey Graham — he’s not a guy to vote for “pure evil” over good, particularly not for the sake of party solidarity. This is a guy who breaks with his side when he thinks it’s wrong.
The idea that he had suddenly become a different sort of guy just didn’t smell right to me. What it smelled like was one of these deals where one side or the other sets up a vote on something just to get the other side to vote against it, so the party of the first part can use it against the party of the second part politically.
This is going to drive Kathryn and others crazy (they hate it that I sometimes base my initial impressions on things on the degree to which the people doing the advocating have or have not earned my trust over time, but you know what? our entire system of representative democracy is based on that, to a huge degree), but just as I have come to trust Graham over time to have a good reason for his vote (even when he’s wrong, as on health care), I do not have a similar level of trust with Al Franken. Maybe I’ll get to the point where I do, but so far he’s still the guy with the “Al Franken Decade,” the guy who started a radio network because he thought the left needed its own Rush Limbaugh — in other words, just the sort of guy who likes to strike poses, whether for laughs or for partisan advantage.
And folks, this initially started as a discussion about character. I called Roman Polansky a perv, that got us on the subject of rape, and next we were talking about how horrible those Republicans were to vote against this measure.
So, in the process of trying to make up my mind on this so I could post something, I e-mailed Kevin Bishop in Graham’s office yesterday to ask whether they had any releases or written position on the subject. In other words, what did the senator have to say for himself? Kevin responded promptly (probably thinking I was about to post), but I got too tied up to blog yesterday, so I’m just sharing this now:
We did not send out a release….here is some background information on the Franken Amendment.
It’s also important to note the Department of Defense—ie the Obama Administration — opposed the Franken Amendment:
Proposed Franken Amendment (# 2588) re: H.R. 3326 Prohibition against requiring arbitration of 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.
- The DoD opposes the proposed amendment.
- The proposed amendment effectively would require debarment of any contractor or subcontractor or would require termination of any contract if the contractor or a subcontractor, at any tier, compels an employee or independent contractor, as a condition of employment, to agree to the use of arbitration to resolve sexual harassment claims of all sorts. The Department of Defense, the prime contractor, and higher tier subcontractors may not be in a position to know about such things. Enforcement would be problematic, especially in cases where privity of contract does not exist between parties within the supply chain that supports a contract.
- 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
Here is some additional background on the amendment from the Senate Republican Policy Committee:
As you recall, Franken amendment 2588 to the defense appropriations bill banned the Department of Defense from using any funds to pay for an existing defense contract if the contractor decides with its employees to agree to arbitration of certain civil rights claims and torts. In effect, it bans the Department from doing business with any defense contractor with an arbitration clause with its employees. This would have an enormous negative impact on any state with any sort of defense contractor presence, or any state with a military base for which contractors perform support services. It is our understanding that many offices that opposed the Franken amendment are the subject of ridiculous media campaigns attacking the offices for favoring Halliburton over rape victims, amongst other scurrilous charges. As an after action report, we pass along the following points:
- First and foremost, the Obama Department of Defense opposed the amendment.
- The Franken amendment was marketed as providing protections to victims of sexual assault. Groups have then denigrated those who voted against the Franken Amendment as seeking to deny rape victims their day in court.
- The Franken Amendment seems particularly to be an overreaction given that Jamie Leigh Jones, the main case to which Senator Franken cites as demonstrating that his amendment is necessary, has not been denied her day in court.
o A federal appellate court recently found that her employment arbitration agreement does not cover claims of (1) assault and battery; (2) intentional infliction of emotional distress arising out of the alleged assault; (3) negligent hiring, retention, and supervision of employees involved in the alleged assault; and (4) false imprisonment.
o This means that the arbitration agreement Ms. Jones signed does not foreclose her from bringing these causes of action against her employer in a federal court.
- Proponents of the amendment have argued that it was necessary so that justice is done in cases of crimes and serious civil rights violations. They fail to note that arbitration clauses only bind the parties, and thus cannot prohibit prosecution of crimes. Crimes and civil rights violations can still be prosecuted by the government through criminal and other means.
o The Franken anti-arbitration amendment is less directed at rape or assault and more designed to prohibit the Department of Defense from paying for a contract with a contractor who chooses with its employees in employment contracts to have a clause pertaining to arbitration as alternative dispute resolution.
- Since the Franken amendment applies to existing contracts, it would disallow the use of federal funds to pay a federal contractor, for example, to provide protective services for American personnel in Iraq if that contractor has an arbitration agreement in its contract with its employees.
o This raises substantial risk of disruption of services to troops in the field, as the existing contracts would have to be stopped and some substitute contract negotiated and agreed to.
o Moreover, to the extent this amendment forces the Department to default on existing contracts, even where the contractors are providing exceptional results, this would likely place the Department at great risk for substantial liability grounded in breach of contract.
- The real motivation behind this amendment is, of course, Democrat hostility to all things arbitration, on behalf of trial lawyers. This is exemplified by the last sentence of DOD’s opposition to the amendment, which suggests that all arbitration agreements be prohibited, stating “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.”
o Providing further evidence of this interest is Senator Feingold’s so-called Arbitration Fairness Act (S. 931), which would invalidate all arbitration agreements related to employment, consumer, franchise, and civil rights disputes.
- This is contrary to long-standing federal law and policy, as the Federal Arbitration Act of 1925 seeks to ensure the enforcement of arbitration agreements, and, as the non-partisan Congressional Research Service describes, the “FAA evidences a national policy favoring arbitration.” CRS Rpt. RL30934.
o The FAA specifically contemplates mandatory arbitration clauses, providing that “A written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2.
- The Federal Arbitration Act includes provisions to ensure that proceedings are fair. Additionally, arbitration clauses will not be enforced if the contract itself or its arbitration provisions are entered into unlawfully.
- To the extent there are jurisdictional problems making it difficult to prosecute some of the cases animating the Franken amendment, more targeted responses are in order rather than the wholesale jettisoning of arbitration clauses in employment agreements.
o For example, the Military Extraterritorial Jurisdiction Act (MEJA) was initially intended to provide extraterritorial federal jurisdiction for certain crimes over U.S. defense contractors working overseas. A Republican-led Congress in 2004 expanded MEJA to cover other U.S. government contractors working overseas where their employment relates to supporting the mission of the Department of Defense overseas.
Conservative Heritage Foundation
As I said, I still don’t know what to think, but I think it’s more complex than Lindsey Graham voting against rape victims. What do y’all think?