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Senate passes Franken amendment aimed at defense contractors

WASHINGTON, D.C. — In one of the most public tests of his political skills since taking office in July, Sen.

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 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.

Sen. Al Franken
MinnPost photo by Jay Weiner
Sen. Al Franken

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.)

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“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. She can be reached at cdizikes[at]minnpost[dot]com.