CD249: A Few Good Laws
Release Date: 03/20/2022
On February 3rd, a train carrying 20 cars with poisonous, flammable chemicals derailed in East Palestine, OH. In this episode, we’re going to get some answers. Using testimony from four Congressional hearings, community meeting footage, National Transportation Safety Board preliminary reports, and lots of articles from local and mainstream press, you will learn what Congress is being told as they write the Rail Safety Act, which both parts of Congress are working on in response to the East Palestine train derailment. Please Support Congressional Dish – Quick Links Contribute monthly or a...info_outline CD273: Inside Congressional Committees with Dr. Maya Kornberg
For this episode, Jen sat down for an interview with fellow Congress nerd Dr. Maya Kornberg. Dr. Kornberg is a Research Fellow for the Brennan Center for Justice's Elections and Government Program and author of Inside Congressional Committees: Function and Dysfunction in the Legislative Process. They talk about how and why the power of committees has shifted over time, how witnesses are selected for hearings, why the hearing archives disappeared, resources for information that Congress has that we don’t have access to, and where we can find hope for improvements in terms of how Congress...info_outline CD272: What is Taiwan?
Taiwan’s status in the world has never been clear and neither has the United States’ position on the issue. In this Congressional Dish, via footage from the C-SPAN archive dating back into the 1960s, we examine the history of Taiwan since World War II in order to see the dramatic shift in Taiwan policy that is happening in Congress - and in law - right now. Please Support Congressional Dish – Quick Links Contribute monthly or a lump sum via Support Congressional Dish via (donations per episode) Send Zelle payments to: [email protected] Send Venmo payments to:...info_outline CD271: RESTRICTing TikTok
TikTok might be banned from the United States. In this episode, hear testimony from TikTok’s CEO and judge for yourself if you think the arrangement that TikTok has negotiated with the U.S. government is enough to ensure that the Chinese government will not have the ability to manipulate the app or acquire your data. We also take a detailed look at the bill that would ban TikTok (by granting vast new authorities to the government) and we examine the big picture arena in which TikTok and the RESTRICT Act are merely sideshows. Please Support Congressional Dish – Quick Links Contribute...info_outline CD270: The Twitter Files
The First Amendment prohibits the U.S. government from censoring speech. In this episode, drawing from internal Twitter documents known as “the Twitter files” and Congressional testimony from tech executives, former Twitter employees, and journalists, we examine the shocking formal system of censorship in which government employees are using their influence over private companies to indirectly censor speech in a way that they are clearly prohibited from doing directly. Please Support Congressional Dish – Quick Links Contribute monthly or a lump sum via Support Congressional Dish via ...info_outline CD269: NDAA 2023/Plan Ecuador
The annual war authorization (NDAA) is an excellent opportunity to examine our military’s roles and goals in the world. In this episode, learn about how much of our tax money Congress provided the Defense Department, including how much of that money is classified, how much more money was dedicated to war than was requested, and what they are authorized to use the money for. This episode also examines our Foreign Military Financing programs with a deep dive into a new partner country: Ecuador. Please Support Congressional Dish – Quick Links Contribute monthly or a lump sum via Support...info_outline CD268: Disappearing Oversight: The NFL Sexual Misconduct Investigation
In December, the House Oversight and Reform Committee released a final report from their investigation into allegations of sexual assault committed by Washington Commanders team owner Dan Snyder. In this episode, you will hear the testimony and discover what the NFL did - or didn’t do - to punish the people who sexually harassed their employees. You will also learn that in the process of researching this episode, the Congressional Dish team discovered that the hearings related to this investigation, among others, have recently vanished from the committee archives, raising questions about how...info_outline CD267: The Monopoly Powers of Live Nation/Ticketmaster
Live Nation and Ticketmaster merged over a decade ago and Congress is concerned - for good reason - that the company is exerting monopoly powers over the live event industry. In this episode, learn how the merger was allowed to happen in the first place, the problems that industry participants and competitors are having with the company, and what Congress is thinking of doing about it. Please Support Congressional Dish – Quick Links Contribute monthly or a lump sum via Support Congressional Dish via (donations per episode) Send Zelle payments to: [email protected] Send Venmo...info_outline CD266: Contriving January 6th
The January 6th Committee investigation is over and four criminal charges against former President Donald Trump have been referred to the Justice Department by the Committee. In this episode, hear a summary of 23 hours of testimony and evidence presented by the Committee which prove that former President Trump went to extraordinary and illegal lengths to remain President, despite losing the 2020 Election. Executive Producers: Michael Constantino, Shelley Stracener, Daniel Slaughter, and Christine Brendle Please Support Congressional Dish – Quick Links Contribute monthly or a lump sum via ...info_outline CD265: Policing FTX
FTX, at one point the world’s third largest cryptocurrency exchange, went bankrupt, causing the entire cryptocurrency industry to crash. In this episode, hear highlights from Congressional testimony that will explain how FTX was able to grow so large while committing blatant fraud, how it’s possible that the government didn’t know and didn’t do anything to stop it, and hear about a Senate bill that’s branded as a solution but has concerning flaws of it’s own. Executive Producer: Brandon Lewis Please Support Congressional Dish – Quick Links Contribute monthly or a lump sum via ...info_outline
We have some new laws! In this episode, a brief overview of the government funding law that (finally) funds the government for 2022 and provides money and weapons to Ukraine, a new law that protects drinking water, a new law that slightly reduces the corruption of Puerto Rico’s financial oversight board, and a new law that guarantees you rights that corporate contracts have been taking away.
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Executive Producer Recommended Congressional Dish Episode
CD076: Weapons for the World
Recommended Congressional Dish Episodes
CD248: Understanding the Enemy
CD244: Keeping Ukraine
CD229: Target Belarus
CD170: Electrifying Puerto Rico
CD147: Controlling Puerto Rico
CD128: Crisis in Puerto Rico
Recommended Congressional Dish YouTube Videos
What is the World Trade System?
Revolution of Dignity or Regime Change? Ukraine 2014 Explained.
Jamie Dupree. Mar 10, 2022. “Russian oil ban heads to Senate.” Regular Order by Jamie Dupree.
Mary Ellen McIntire. Mar 9, 2022. “House Democrats’ retreat upended by spending bill delays.” Roll Call.
Ballotpedia. Updated February 11, 2021. “Election results, 2020: Incumbent win rates by state.”
Red Hill Water Contamination
Sophia McCullough. Mar 7, 2022. “Pentagon to permanently shut down leaking Red Hill fuel tank facility.” Hawai’i Public Radio.
Scott Kim. Mar 4, 2022. “Tap water declared safe for 3 more Pearl Harbor neighborhood zones.” Hawai’i Public Radio.
Sophia McCullough. Mar 1, 2022. “Confused about the timeline for the Red Hill fuel storage facility and contaminated water? Read this.” Hawai’i Public Radio.
Associated Press, HPR News Staff. Nov 22, 2021. “Navy says 14K gallons of fuel and water leaked from a 'drain line' near the Red Hill facility.” Hawai’i Public Radio.
Scott Kim and Catherine Cruz. Oct 27, 2021. “Navy says operator error was the cause of a May fuel leak from the Red Hill storage facility.” Hawai’i Public Radio.
Karen Pinchin. Sep 10, 2019. “The EPA Says Flint’s Water is Safe — Scientists Aren’t So Sure.” Frontline.
Brittany Greeson. “Lead Pipes Are Widespread and Used in Every State.” Natural Resources Defense Council.
Financial Oversight and Management Board for Puerto Rico
U.S. District Court for the District of Puerto Rico. Feb 18, 2019. “Informative Motion Regarding Publication and Filing of Final Investigative Report – McKinsey & Company, Inc.” Case: 17-03283-LTS.
Matt Stoller. Mar 7, 2022. “Monopolies Take a Fifth of Your Wages.” BIG.
H.R.2471 - Consolidated Appropriations Act, 2022
DIVISION C: DEPARTMENT OF DEFENSE
Title VII: General Provisions
Sec. 8139: $300 million from the "Operation and Maintenance, Defense-Wide" account must be used for the Ukraine Security Assistance Initiative
- The money can be used for "salaries and stipends" of Ukraine's military in addition to equipment and support
Sec. 8140: Prohibitions against Russia will not be lifted until "the armed forces of the Russian Federation have withdrawn from Crimea, other than armed forces present on military bases" agreed upon by the Russian and Ukrainian governments.
Sec. 8141: "None of the funds made available by this Act may be used to provide arms, training or other assistance to the Azov Battalion.
DIVISION K - DEPARTMENT OF STATE, FOREIGN OPERATIONS, AND RELATED PROGRAMS
Title VII: General Provisions
Sec. 7047: "None of the funds appropriated by this Act may be made available for the implementation of any action or policy that recognizes the sovereignty of the Russian Federation over Crimea or other territory in Ukraine." This will end when the Secretary of State certifies that "the Government of Ukraine has reestablished sovereignty over Crimea and other territory in Ukraine under the control of Russian-backed separatists."
DIVISION N: UKRAINE SUPPLEMENTAL APPROPRIATIONS ACT
Title I: Department of Agriculture
- $100 million for Food for Peace grants
Title III: Department of Defense
- $195.5 million for US military personnel
- $213 million for Air Force procurement
- $5.5 billion for operations and maintenance
- $3.5 billion of this is for replacing weapons given to Ukraine and for "defense services" and "military eduction and training" provided to the Government of Ukraine.
- Authorizes $4 billion for direct loans to Ukraine and NATO countries, along with permission to reduce or cancel their obligations to pay us back. Amount provided this way "shall not be considered assistance for the purposes of provisions of law limiting assistance to a country"
- $2.65 billion to countries housing Ukrainians refugees for emergency food and shelter
- $1.4 billion for refugees
- $1.12 billion for Ukraine and "other countries" - Poland and Hungary in particular - that are enacting IMF economic reforms and expanding the private sector
- $650 million for the "foreign military financing program" for Ukraine "and countries impacted by the situation"
- $647 million for the "Economic Support Fund" which can be transferred to fund activities "related to public engagement, messaging, and countering disinformation."
- Expands the emergency powers of the President in 2022 to allow him to provide $3 billion in military equipment, services and money to foreign countries and international organizations, instead of the usual limit of $100 million per year
- Increases the amount of weapons that are allowed to be exported from $2.05 billion to $3.1 billion
- $120 million for "Transition Initiatives"
H.R.6617 - Further Additional Extending Government Funding Act
DIVISION A - FURTHERING ADDITIONAL CONTINUING APPROPRIATIONS ACT, 2022
- Extends government funding at 2021 levels until March 11, 2022.
- Allows the Department of Defense to spend their Operations and Maintenance and emergency funds to respond to the Red Hill Bulk Storage Facility spill but caps the spending at $53 million.
- Adds $250 million to their budget for 2022 to address drinking water contamination caused by the spill.
- Adds $100 to their budget so they can comply with the Hawaii state order to remove the fuel from the Red Hill facility.
H.R.1192 - Puerto Rico Recovery Accuracy in Disclosures Act of 2021
House vote: 429-0
Senate: Unanimous Consent
Sec 2: Disclosure by Professional Persons Seeking Approval of Compensation Under Section 316 or 317 of PROMESA
- Requires attorneys, accountants, appraisers, auctioneers, agents, and other professional persons to file a disclosure listing their conflicts of interest with debtors, creditors - or their attorneys and accountants - and the oversight board members, directors, and employees. Failure to file the disclosure, or an incomplete disclosure, will prevent that person from being paid. Being "not a disinterested person" or having an "adverse interest" will also disqualify that person from compensation.
- This will only apply to cases filed AFTER enactment of this law (January 20, 2022)
H.R.4445 - Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021
Sec. 2: Predispute Arbitration of Disputes Involving Sexual Assault and Sexual Harassment.
- Invalidates predispute arbitration clauses in contracts if the person alleging sexual harassment or sexual assault or a representative of a class action lawsuit elects to go to court instead of use arbitration. This will apply whether the case is to be filed in Federal, Tribal, or State court. The decision over where the case will be heard will be made by a court, not by an arbitrator regardless of what is in the contract.
Sec 3: Applicability
- Will only apply to any dispute or claim that "arises or accrues" on or after the date of enactment.
Hearings and Debate
House Debate on H.R. 1192: Puerto Rico Recovery Accuracy in Disclosures Act of 2021
February 23, 2022
Highlighted PDF of debate on the house floor
1:19:09 Jennifer Gonzalez-Colon: Representative Velazquez and myself have proposed this bipartisan initiative in the last two congresses having achieved passage in the house during the last session
Rep. Sheila Jackson Lee (D-TX): In response to dire fiscal issues facing Puerto Rico at the time, Congress passed the Puerto Rico oversight management and economic stability Act, or Preska in 2016. That legislation established the financial oversight and management board with control over Puerto Rico's budget laws, financial plans and regulations and the authority to retain professionals to assist the board in executing its responsibilities.
Rep. Nydia Velázquez (D-NY): The Puerto Rico recovery accuracy in disclosures act of 2021 or product eliminates a double standard currently facing Puerto Rico. On the US Code and federal bankruptcy procedure. Any conflicts of interest or even the perception of such conflict between those working on the bankruptcy and the debtor there are required to be disclosed. However, a loophole in the current law prevents this requirement from being extended to the people of Puerto Rico.
Rep. Dan Bishop (R-NC): Most significantly the gap in the 2016 law created a potential for undisclosed compensation terms and undiscovered conflicts of interest visa vi parties and interest for professional serving in Puerto Rico's bankruptcy.
Resident Commissioner Jenniffer González Colon: Learning that someone was involved in businesses of one of the parties in the case only after they are named and working on the case does not create assurance of their commitment to the best interest of Puerto Rico or even managing the depth.
Rep. Dan Bishop (R-NC): This builds disclosure and oversight requirements increase the likelihood that conflicts of interest will be caught and timely addressed before compensation decisions are made.
Rep. Nydia Velázquez (D-NY): While we can have different opinions on how effectively the oversight board is carrying out its mission, one thing should be clear. The island's residents should be entitled to the same rights and protections of any debtor on the mainland.
House Debate on H.R.4445 - Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021
February 7, 2022
Highlighted PDF of debate on the house floor
9:21 Rep. Michelle Fischbach (R-MN): If H.R. 4445 becomes law contracts will be far less likely to include the option to arbitrate.
10:28 Rep. Michelle Fischbach (R-MN): Why are some in Congress so intent on taking this legislation forward today? For years, Democrats have tried to gut arbitration agreements for all kinds of different claims and plaintiffs. If Democrats had their way, everyone from consumers to civil rights plaintiffs, to those with antitrust claims, to individuals using financial service products and others would not be able to contract in advance to resolve disputes through arbitration.
47:33 Rep. Jim Jordan (R-OH): We know that if parties can’t agree in advance to arbitrate then they are unlikely to agree to arbitrate after there has been a dispute. As a result, the plaintiff may never get to arbitration.
Red Hill Bulk Fuel Storage Facility: The Current Crisis, the Response, and the Way Forward
House Armed Services Committee, Subcommittee on Readiness
January 11, 2022
This hearing conducted oversight into the Navy’s maintenance of the Red Hill Bulk Fuel Storage Facility, the Navy’s investigation into and response to the November 2021 release of fuel from Red Hill facility impacting drinking water, its impacts on service members and civilians, clean-up and remediation efforts, and next steps forward.
Vice Admiral Yancy Lindsey, Commander, Navy Installations Command
Rear Admiral Blake Converse, Deputy Command, U.S. Pacific Fleet
Rear Admiral John K. Korka, Commander, Naval Facilities Engineering Systems Command Chief of Civil Engineers
Rear Admiral Peter Stamatopoulos, Supply Corps, United States Navy, Commander, Naval Supply Systems Command and 49th Chief of Supply Corps
Captain Michael McGinnis Pacific Fleet Surgeon, Commander, U.S. Pacific Fleet
9:05 Rep. John Garamendi (D-CA): Why does Red Hill exist in the first place? Even before the attack on Pearl Harbor, the United States had grown concerned about the vulnerability of above ground fuel storage tanks in 1940. The construction began on the Red Hill bulk fuel storage facility, a one in a kind engineering innovation that secured the fuel from enemy aerial attack. The facility holds 250 million gallons of fuel in 20 steel lined underground tanks encased in concrete. These tanks are connected to three gravity fed pipelines, running two and a half miles to Pearl Harbor fuel appears. However, a statistic less commonly quoted by the DoD is that the facility is also 100 feet above the groundwater aquifer that provides water to the residents of Oahu. Thus, it has always been the responsibility of the military to ensure that these tanks are maintained in a manner that not only protects the wartime fuel supply, but the people have a Oahu water supply
18:45 Rear Admiral Blake Converse: I want to start by saying that the Navy caused this problem, we own it, and we're gonna fix it.
19:45 Rear Admiral Blake Converse: Beginning on November 28, residents of certain neighborhoods on our Joint Base Pearl Harbor Hickam here in Hawaii in military housing began recording vapors, discoloration and contamination of the water provided by the Navy. The Red Hill shaft well, which sits near the Navy's Red Hill bulk fuel storage facility was immediately suspected to be the source of this contamination as that was the source of the drinking water for those affected neighborhoods. So it was shut down that evening, November 28. And it just remained isolated since that day. Later, samples from the Red Hill shaft well would confirm the presence of petroleum contamination.
39:40 Captain Michael McGinnis: Medical teams have screened over 5900 patients during this event. The vast majority were conducted within the first two weeks of our response. patient's symptoms were consistent with an acute environmental exposure event. patient's symptoms consistent with the following nausea, vomiting, headache, diarrhea, skin or eye irritation. Once patients were removed from the water source, the symptoms rapidly resolved.
42:12 Rear Admiral Blake Converse: Our best information is that this recent spill was due to operator error.
1:31:45 Rep. Kaiali'i Kahele (D-HI): Tanks number three, number four and number 11 have not been inspected for approximately 40 years. So my question to Navy Supply Systems Command is why are these tanks still in operation? And how can you assure this committee and the people of Hawaii that tanks three, four and 11, that have not even been looked at in the last 40 years, are safe to use and meet current API 653 guidelines for bulk fuel storage underground facilities. Rear Admiral Peter Stamatopoulos: Yes, sir. Thank you for the question. Yes, you are correct. There are tanks, as you mentioned, that have been out of periodicity for quite a long time.
1:41:27 Rep. Jackie Speier: Are the commanding officers and our executive officers that are assigned to Red Hill trained in petroleum management? Rear Admiral Peter Stamatopoulos: I'll take that question ma'am. The answer is no.
Impact of Continuing Resolutions on the Department of Defense and Services
House Committee on Appropriations, Subcommittee on Defense
January 12, 2022
- General David H. Berger, Commandant of the U.S. Marine Corps
- General Charles Q. Brown, Jr., Chief of Staff of the U.S. Air Force
- Admiral Michael Gilday, Chief of Naval Operations of the U.S. Navy
- General Joseph M. Martin, Vice Chief of Staff of the U.S. Army
- Mike McCord, Under Secretary of Defense (Comptroller)
- General John W. Raymond, Chief of Space Operations of the U.S. Space Force
29:51 Mike McCord: First, as I believe you're all aware a full year CR, we reduce our funding level below what we requested and what we believe we need. On the surface at the department level as a whole, the reduction to our accounts would appear to be about a billion dollars below our request, which would be significant. Even if that was the only impact. The actual reduction in practice will be much greater. Because we would have significant funding that's misaligned, trapped or frozen in the wrong places and unusable because we don't have the tools or flexibilities to realign funds on anything like the scam we would need to fix all the problems that the chiefs are going to describe.
30:27 Mike McCord: I know all of you are very familiar with the fact that virtually all military construction projects in each year's budget including the FY 22 budget are new starts that cannot be executed under a CR.
34:00 Mike McCord: The six longest CRs in the history of the Defense Department have all occurred in this last 12 year period. We have turned a 12 month fiscal year into an eight month fiscal year in terms of our ability to initiate new starts and enter contracts. This should be unacceptable and not the new normal. It's hard to see this full impact because or in the inefficiency from looking from outside because the organization has of course adapted to its circumstances just as organisms do. Nobody plans to enter into contracts in the first quarter of a fiscal year now because the odds that we would actually be able to do so are so low. Therefore we in turn, have no significant contract delays to report to you when we're under a CR.
1:44:02 Rep. Mike Rogers (R-MI): This is about decreasing domestic spending and increasing defense spending.
1:44:20 **Rep. Betty McCollum (D-MN):**This was my effort to quash those who are talking about year long CRs. No one on the Appropriations Committee is, yet you see things in the news. And unfortunately, sir, it's usually from your side of the aisle, and I'll pull it again. And it's a December 1 quote, and I can get you the gentlemen, the person who said it. Republicans should be in favor of a CR until Biden is out of office, so they're not going to talk about a one year CR. That would be the proper Republican thing to do. And anybody saying otherwise is deeply foolish. I know you and I, sir, do not agree with that sentiment. And my my goal here is to educate other members who don't understand the appropriations process as well as you and I, and many other of our colleagues that we serve alongside with.
Silenced: How Forced Arbitration Keeps Victims of Sexual Violence and Sexual Harassment in the Shadows
House Committee on the Judiciary, Subcommittee on Antitrust, Commercial, and Administrative Law
January 16, 2019
- Eliza Dushku, Actor/Producer & Graduate Student
- Myriam Gilles, Professor of Law, Paul R. Verkuil Chair in Public Law, Benjamin N. Cardozo School of Law
- Lora Henry, Canton, OH
- Andowah Newton, New York, NY
- Sarah Parshall Perry, Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation
- Tatiana Spottiswoode, Law Student, Columbia Law School
- Anna St. John, President and General Counsel, Hamilton Lincoln Law Institute
30:59 Anna St. John: Instead, it's worth considering that taking away the possibility of arbitration for these victims is a top-down, heavy handed approach that denies them the advantages of arbitration as a means of adjudicating their claims.
41:04 Sarah Parshall Perry: Since the 1980s, the progressive leadership of this and the upper chamber has sought to curtail the protections of the Federal Arbitration Act through bills including the Arbitration Fairness Act, Arbitration Fairness for Students Act, Consumer Mobile Fairness Act, Fairness and Nursing Homes Act, Sonsumer Fairness Act, Restoring Statutory Rights and Interests of the States Act, the Forced Arbitration Justice Repeal Act and many, many more.
47:13 Sarah Parshall Perry: arbitration agreements are not mandatory. No one, and the Supreme Court has held, is forced to sign a contract. But curtailing access to arbitration would injure, in the end, the very people that Congress has sought for nearly a century to protect.
54:50 Myriam Gilles: First, the entire regime is shrouded in secrecy. And not just because victims want to keep these issues confidential, which by the way is up to them, right? They should have the autonomy and the choice to decide. But because companies want to keep this stuff under wraps, they want to hide and shield sexual predators, and they don't want their business in the public eye. They don't want to deal with regulators or even with lawsuits. The secrecy here on its own just makes this a terrible way to deal with sexual harassment because it means that victims of sexual violence in the workplace who bravely tried to come forward are prohibited from telling their stories in a public forum. Instead, they're forced into this private process where everything is under wraps and siloed. Right, so this is the second bad thing. Victims can join together, even when their injuries stem from the same wrongdoing, even when they've occurred at the hands of the same perpetrator. Even when the company's tolerance for sexual harassment is structural and pervasive. Victims have to go it alone, never knowing about one another. They have to go into arbitration single file. I don't know where all these statistics are coming from about how great arbitration is how people win it all the time, because the truth is, no one goes into arbitration because it's siloed because it's secret because they don't know about what else is going on in the workplace. The secrecy that blankets these individualized proceedings prevents one victim from ever learning whether others right in the cubicle next to them might have experienced the same, the same tragedies, the same traumas and when vid when survivors are in the dark about cases filed by others in the workplace that makes coming forward that makes being the first person to come forward that much harder. As a corollary, and this is an important corollary, the relief that is available to the individual claimant doesn't prevent the wrongdoer from preying on other women doesn't prevent the predator from having all sorts of misconduct against other women in the workplace. The proceedings are one on one and the relief that arbitrators are allowed by contract to grant is individualized. They can't ever order any changes beyond what can help this one individual that happens to have the courage to come before them. I mean, can you imagine a worse system for dealing with toxic corporate culture because I can't. Third, and I think this is really important and all the survivors who've spoken about this forced arbitration is a system where the employers write the rules, and they pick the arbitral provider. Which means that victims of sexual harassment are shunted into a regime that stacked against them from the get go. First, because the arbitrators economic interest is to be very good to the repeat player employer so that they can be chosen for another arbitration next time. So the repeat player problem has been well documented, and I think it's alive and well in arbitration. And the secrecy protects that. And second, because the employer designs the entire arbitration process, it does so to serve its interests, not the interests of its workers, but its interests which again, are to keep discrimination and harassment under a veil of secrecy and out of the public eye. So given all of these things, given how bad this system is for victims of sexual harassment, it's no wonder that so few ever decide to go into private arbitration. I wouldn't. I think it sounds terrible.
1:04:00 Myriam Gilles: When an arbitration complaint is filed, it's filed in secret. In other words, the only entities that know that the arbitration has even been filed are the the employer, the employer, the complaining employee and the arbitration entity. The AAA or JAMS are one of these arbitration providers. Nobody else knows. Contrast that with court. I go down to the DC District Court today and I file a complaint, that complaint is on the public record. Right. And so as the defendants answer or motion to dismiss all the pleadings, their public litigation in the public court system, it has power, and the power it has is the power of signaling, not only to the defendant that I've sued, but to all similarly situated defendants that this is a wrong. This person has complained about something she's told her story, and she plans to prove it. None of that happens in arbitration from the beginning. It is private throughout the entire proceeding, which is held in a secret location, no public no press. All of it is private. Arbitrators don't write decisions. There are only three states in the union that currently require minimal disclosure of arbitrations pretty redacted and hard to read. If you're a researcher like I am about these issues. Other than that, everything that happens in arbitration is a black box.
1:32:18 Tatiana Spottiswoode: And the forced arbitration is so unfair. Rep. Darrell Issa (R-CA): I understand you you think forced arbitration is unfair, that's great. Most of the people on that side want to eliminate it for everything not just situations like this. Other representative: will the gentleman yield for a question? Rep. Darrell Issa: I will not.
1:49:15 Myriam Gilles: The FAA was enacted in 1925. But it was enacted so that sophisticated business people could negotiate for arbitration provisions and those provisions would be respected by courts. It was never intended to be imposed via standard form contract. And in fact, if you read the legislative history, if you read the legislation, it accepts and exempts employees. So the idea that the FAA applies to employees is something that was created by a conservative majority of the Supreme Court in 1991, in a case called Circuit City, sorry, first actually was Gilmer and then Circuit City, I can't keep all the bad cases straight. And those are the cases in which the Court interpreted, I would say misinterpreted, the FAA to apply to employees like this. So that now employers can just stick these clauses into job applications, orientation materials, even an innocuous email from HR can include a forced arbitration clause. That was not what the 1925 Congress intended they they'd be rolled, they should be rolling in their in their grades. This is not what they intended. This is what a Supreme Court intent on protecting corporations intended beginning in the 1990s.
2:39:26 Rep. Michelle Fischbach (R-MN): You know what's happened to so many women and others in the workplace is terrible but I really am concerned that by involving the government in these contracts between adults in the area of sexual harassment and assault we're opening a door for more government involvement in other areas of contracts.
2:42:09 Rep. Michelle Fischbach (R-MN): And I would argue that you have you sign it it is not you know even though we use the it's forced arbitration as people are saying it's not really you you have signed something that you have agreed to it.
Justice Denied: Forced Arbitration and the Erosion of Our Legal System
House Committee on the Judiciary
November 16, 2021
- Gretchen Carlson, Journalist and Advocate
- Myriam Gilles, Paul R. Verkuil Chair in Public Law, Benjamin N. Cardozo School of Law
- Phil Goldberg, Managing Partner, Shook, Hardy & Bacon L.L.P.
- Deepak Gupta, Founding Principal, Gupta Wessler PLLC
- Andrew Pincus, Partner, Mayer Brown L.L.P.
- Lieutenant Commander Kevin Ziober, Lieutenant Commander, U.S. Navy Reserves
26:35 Rep. James Sensenbrenner (R-WI): You'll hear a different view from me. Eliminating arbitration achieves one thing, it enriches trial attorneys.
29:11 Rep. James Sensenbrenner (R-WI): The AAJ, or American Association for Justice, is the nice sounding name of the plaintiffs attorneys lobbying organization. It also happens to be a huge donor to Democratic candidates, contributing millions of dollars each cycle to their campaigns.
29:52 Rep. Jamie Raskin (D-MD): Mr. Chairman, point of order. Rep. David Cicilline (D-RI) What is your point of order? Rep. Jamie Raskin: My question is just can we impute the policy positions that members of the committee take to campaign contributions? Because if so, I think I'd be doing it a lot more frequently. I thought that's something that we don't do. Rep. David Cicilline: It's an excellent point of order, I'm sure Mr. Sensenbrenner didn't intend to communicate that in that way. Rep. Jamie Raskin: We're gonna be hearing a lot more of that in our committee if that's permissible, but I'm just curious. Maybe we can have some research done. Rep. James Sensenbrenner: Will the gentleman yield? Rep. David Cicilline: I think we don't need to engage with you. I this is an important issue with strongly held beliefs on both sides. [crosstalk]
36:00 Rep. Jerry Nadler (D-NY): We used to have a concept in law. When I went to law school they still taught it called contracts of adhesion where a contract was unenforceable if one party had no choice in entering into it. All of these arbitration clauses almost are contracts of adhesion. You try when you want to get a credit card, try crossing out the fine print if you can find it without the magnifying glass that that says that you will settle all all disputes in arbitration, cross it out, see if you get the credit card. See if you get the bank loans if you get the mortgage. You have no see if you get the car loan, you have no choice.
1:42:00 Gretchen Carlson: arbitration means that you have no way of knowing that anyone else is facing the same thing within the confines of the workplace structure. There's no way to know because the whole process is secret. And as I described during my testimony, if you do muster up the courage to go and complain, and you have an arbitration clause, that's a good day for the company, because no one will ever know anything about your story. The worst ramification of all of this is that the perpetrator gets to stay in the job. And I think one of the reasons that we've seen this cultural revolution that we're experiencing right now is because the American public was actually so angry about hearing about these stories, and they were wondering, why didn't we know about this? And the reason they didn't know about it, is because of forced arbitration.
2:00:30 Deepak Gupta: I've gone back and looked at the history of the act from 1925. People weren't blind to the possibility of abuse. They raised these concerns before this, this committee, in fact, and the and the architects of the legislation were clear, this is about letting businesses have equal bargaining power that want to resolve their disputes out of court, letting them do that, and I have no objection to that. That makes perfect sense. But but the the drafters were clear this is not about foisting this on people who don't consent through, take it or leave it contracts. And in fact, Congress put in a provision section one of the Federal Arbitration Act that says this shall not apply to any class of workers. Remarkably, the Supreme Court has read that language to mean precisely the opposite. And now it can apply to any class of workers. And so so we have just we've strayed so far away from what Congress intended in 1925. And that's why only this body Congress can set things right.
Design by Only Child Imaginations
Music Presented in This Episode
Intro & Exit: Tired of Being Lied To by David Ippolito (found on Music Alley by mevio)