The time to ban forced arbitration is now

On Thursday, Rep. Hank Johnson (D-Ga.) and Sen. Richard Blumenthal (D-Conn.) re-introduced the Forced Arbitration Injustice Repeal Act (FAIR) Act, a measure that would ban forced arbitration clauses in employment, consumer and similar cases, to prevent corporations from breaking the law and getting away with it.

The bill would ensure that Americans can have their constitutionally guaranteed day in court. It isn’t the first time the House has considered — or passed — the legislation, but it has not previously passed in the Senate, and its reintroduction underscores the growing momentum to rid our country, and our legal system, of this corporate tool that wealthy defendants use to lock America’s courtroom doors.

Increasingly, corporations, employers and others are using forced arbitration clauses — the “fine print” clauses included in things like cell phone service contracts, nursing home admission agreements and online user agreements — to shield themselves from accountability in the courts. Indeed, the practice has become so widespread that it’s virtually impossible to do anything these days without agreeing to a forced arbitration clause. From keeping those facing workplace discrimination out of court, to keeping details about dangerous products out of the public eye, arbitration is being used in sweeping and troubling ways to essentially wipe away access to the courts.

Ending forced arbitration has also proven to be an issue that unites strange political bedfellows: Congressional champions for ending the practice include, on one side of the spectrum, Congresswoman Katie Porter (D-Calif.), and on the other side, Rep. Matt Gaetz (R-S.C.). Yet, while some GOP lawmakers have stepped forward to help end the scourge of forced arbitration, many have not.

Polls, however, show that their constituents overwhelmingly want them to do so.

A 2019 survey of voters by Hart Research found that 84 percent of Republicans strongly believe consumers should have a choice of bringing their claims in court or arbitration, but not be forced into arbitration against their will. Democratic support polled similarly at 83 percent. And 63 percent of Republicans say that, given that choice, they’d prefer to have their case heard in a court of law.

When told about the FAIR Act, a whopping 87 percent of Republican voters (and 83 percent of Democratic voters) said they support the bill. And no wonder: The same poll found that a bipartisan group of voters say “arbitration is a rigged system” and prevents people from receiving fair compensation when they are harmed.

They’re right: workers who are forced into arbitration — where the corporation almost always picks the arbitrator who will decide the outcome of their case — collect pennies on the dollar compared to those who are able to bring their cases in court. The mere prospect of arbitration ultimately keeps many others from ever seeking justice or accountability in the first place. So increasingly, using a forced arbitration clause is a “get out of jail free” card for rich and powerful corporations.

The days of congressional deference to such tactics may be coming to end, however. Last year, Republican lawmakers, including Sen. Lindsey Graham (R-S.C.), a longtime advocate of protecting Americans’ Seventh Amendment right to a jury trial, joined with Democrats to pass legislation barring arbitration in cases involving sexual harassment or discrimination. Spurred in part by former FOX News host Gretchen Carlson’s experience battling alleged sexual harassment at the network — and her advocacy shining a light on what happened when FOX and Roger Ailes invoked the arbitration clause in her contract to try and keep her out of court — Graham and others showed rare, bipartisan support for blocking such efforts from ever happening again.

Now, congressional Republicans and Democrats must show they have the political willpower to come together again and pass the FAIR Act, ending forced arbitration for all workers, consumers and others who are fighting dangerous products, discriminatory and unsafe workplaces and other corporate fraud and wrongdoing. Doing so shouldn’t be a partisan political issue, and the numbers overwhelmingly show that allvoters — Republican, Democratic and independent — overwhelmingly support the idea, and the bill.

Indeed, the FAIR Act offers a compelling opportunity to right a terrible wrong, reinforce the Seventh Amendment and show all Americans that, at a time when many have given up hope that Congress can ever come together on anything, doing the work of the people is still possible, despite our political divides.

It’s time to do just that, and pass The FAIR Act with the bipartisan support it deserves.

Paul Bland is executive director of Public Justice.