WUNRN
USA - SENATE PASSES FRANKEN
AMENDMENT AIMED AT DEFENSE CONTRACTORS RE: WORKPLACE SEXUAL ASSAULT &
DISCRIMINATION
WASHINGTON, D.C. — In one of the most public tests of his political skills
since taking office in July, Sen. Al Franken pushed
through an amendment (http://thomas.loc.gov:80/cgi-bin/bdquery/D?d111:10:./temp/~bdRY1g::|/bss/)
Tuesday that would withhold defense contracts from companies like
Halliburton if they restrict their employees from taking workplace sexual
assault, battery and discrimination cases to court.
The floor debate preceding the vote brought Minnesota's junior senator, a
Democrat, head-to-head with the top Republican on the Senate Judiciary
Committee, Sen. Jeff Sessions of Alabama, who maintained that Franken's
amendment overreached into the private sector and suggested that it violated
the due process clause of the U.S. Constitution. Sessions also pointed out that
the Department of Defense opposed the amendment.
But Franken held his ground. First, he argued against Sessions' constitutional
argument.
"Article 1 Section 8 of our Constitution gives Congress the right to
spend money for the welfare of our citizens. Because of this, Chief Justice
Rehnquist wrote, 'Congress may attach conditions on the receipt of federal
funds and has repeatedly employed that power to further broad policy
objectives,'" Franken said. "That is why Congress could pass laws
cutting off highway funds to states that didn't raise their drinking age to 21.
That's why this whole bill [the Defense Appropriations bill] is full of
limitations on contractors — what bonuses they can give and what kind of health
care they can offer. The spending power is a broad power and my amendment is
well within it."
Franken then described the case that prompted his amendment, that of former
Halliburton employee Jamie Leigh Jones, who alleged in 2007 that she was raped
by multiple co-workers while serving in Iraq in 2005.
Limited to arbitration
Although Jones sought to take Halliburton and its former subsidiary KBR to
court, her employment agreement required her to pursue her claim through
arbitration instead. Arbitration is a process in which a designated third-party
(often chosen by the company) reviews the case and makes a judgment outside of
the court system. Under binding arbitration agreements, there is usually no
way, or very limited ways, to appeal the decision.
Halliburton and KBR have disputed Jones' claims.
"The constitution gives everybody the right to due process of law,"
Franken said. "And today, defense contractors are using fine print in
their contracts do deny women like Jamie Leigh Jones their day in court… The
victims of rape and discrimination deserve their day in court [and] Congress
plainly has the constitutional power to make that happen."
As the senators gathered to vote on his amendment, Franken worked the front of
the room — shaking hands, patting backs and chitchatting with Democratic and
Republican lawmakers.
In the end, his amendment to the Defense Appropriations bill passed easily,
68 to 30. Democratic Sens. Robert Byrd of West Virginia and Arlen Specter of
Pennsylvania did not vote. The remaining Democrats voted in favor of Franken's
legislation. They were joined by 10 Republican senators, including all the
female GOP senators. Minnesota's Amy Klobuchar, a Democrat, co-sponsored the
amendment and voted for it.
"We need to put assurances into the law that those kind of instances [the
Jamie Leigh Jones case] are not capable of being repeated," said
Republican Sen. Lisa Murkowski of Alaska, who voted in favor of Franken's
amendment. "I want to make sure that a woman, any individual who is a
victim of a terrible act, knows that they have got protections."
Murkowski said that she considered the arguments that Sessions made about the
amendment being too expansive before she decided to vote for the legislation.
"I looked at it," said Murkowski. "And, I tell you, you look at
some of the things we do and you have to say, 'OK, you have a specific instance
we're trying to address and does this go above and beyond?' But when you have
to err on the side of protecting an individual, I erred on the side of greater
generosity, I guess."
Republican Sen. George LeMieux of Florida echoed some of Murkowski's
sentiments.
"I can't see in any circumstance that a woman who was a victim of sexual
assault shouldn't have her right to go to court," LeMieux said. "So,
that is why I voted for it."
Although Franken chatted up LeMieux on the Senate floor before the vote,
LeMieux said that he had already made his decision. But, LeMieux added,
Franken's talk didn't hurt.
"I had decided to vote for it before I came here, but I was happy to hear
his argument for it," LeMieux said. "He did what a senator should do,
which was he was working it. He was working for his amendment."
Bar funding
Specifically, the amendment would bar federal funds from going to defense
contractors that continue to apply mandatory arbitration clauses to claims of
sexual assault, assault and battery, intentional infliction of emotional
distress, and negligent hiring, retention and supervision. The amendment also
covers civil rights claims of workplace discrimination, according to Franken's
office.
The amendment does not require contractors to change or modify existing
employment contracts.
"This is such an important amendment such an important issue, and I wanted
to talk about it," said Franken, who appeared with Jones after the vote in
one of his first impromptu press gatherings outside the Senate chamber.
Franken added that he chose to take a voice vote on the amendment so that it
would be less likely to be taken out during conference when the Senate version
of the Defense Appropriations bill is merged with the House version.
"It means the world to me," Jones said of the amendment's passage.
"It means that every tear shed to go public and repeat my story over and
over again to make a difference for other women was worth it."
After the vote, however, Sessions reiterated that the amendment's language was
too broad and that arbitration was a useful way of resolving disputes.
Sessions pointed to the fact that an appeals court recently ruled that Jones' lawsuit could go to court, in part because it is beyond the bounds of the contract agreement. (On Tuesday, however, Halliburton filed a petition for re-hearing to try to return the case to arbitration.)
"For overall justice in the American system, I think arbitration
employment contracts is legitimate and we ought not to constrict it too
much," said Sessions.
Those in favor of the arbitration process argue that it is faster, more
private, and usually less expensive than going to court.
"The Congress should not be involved in writing or rewriting private
contracts," Sessions said. "That's just not how we should handle
matters in the United States Senate, certainly not without a lot of thought and
care and the support of, at least the opinion of, the Department of Defense."
Sessions said that the Department of Defense opposed Franken's amendment in
part because it determined that enforcement would be problematic.
But Franken dismissed that argument, indicating that the disapproval of the
Department of Defense did not necessitate abandoning the amendment.
"Sometimes you have to push bureaucracies to get change," he said.
Cynthia Dizikes covers Minnesota's congressional delegation and reports on issues and developments in Washington, D.C.
================================================================
To contact the list administrator, or to leave the list, send an email to:
wunrn_listserve-request@lists.wunrn.com. Thank you.