Forced Arbitration

Floor Speech

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Mr. CARTWRIGHT. Mr. Speaker, I thank the gentleman from Georgia for yielding to me and for laying out the problem.

I rise proudly to remind my colleagues in this Chamber that what--as Representative Ted Yoho of Florida just mentioned--what is in the Constitution really, really matters. In fact, I credit Ted Yoho for carrying the Constitution with him at all times. I know that he says what is particularly dear to him in the Constitution is the Bill of Rights--those first 10 Amendments to the Constitution.

And Representative Johnson alluded to it earlier, it is the Seventh Amendment that we are talking about right now. If you are scoring at home, the Seventh Amendment is the thing that gives you the right to a jury trial in a civil case. And I'll quote it: ``In suits at common law . . . the right of trial by jury shall be preserved . . .''

It is a short sentence, it is unambiguous, it is easy to understand, and it is something that makes us Americans--that we can go to court and have our disputes settled by a jury trial. It is one of the things that has made this Nation great. It is one of the things that we went to war over in the American War of Independence because the British king was trying to take that right away from us. In suits of common law, the right of trial by jury shall be preserved.

But I am here to say, Mr. Speaker, that there have been attacks on the Seventh Amendment. As Mr. Johnson pointed out so deftly, it is in the last 25 or 30 years that these attacks have come to a crescendo. Even in the Supreme Court of the United States now, they are getting so squishy on the Seventh Amendment that they think it is all right--it is a case called Concepcion from about 5 years ago--it is all right for corporations to have you enter into contracts that do away with your Seventh Amendment right to a jury trial in the event of a dispute. This is called a pre-dispute forced arbitration clause. It rears its ugly head in all sorts of ways to hurt workers and consumers and homeowners and Americans of every stripe.

Now, what is wrong with this?

What is wrong--and, again, Mr. Johnson of Georgia alluded to this. The main problem is that it is a secret system of justice. It is not out in the open. He is right. America has a tradition of open court systems, trials that you can go watch, proceedings of justice that are open and transparent and open to the sunlight so that sneaky things don't happen, things that they would be embarrassed to tell you about don't happen. That is the purifying aspect of sunlight overall, and that is why we treasure our justice system here in the United States.

It is the opposite when you talk about forced arbitrations. You are talking about arbitrators who have been selected by who knows who. Certainly not elected, certainly not appointed by elected officials. Accountable to no one. No one.

Is that really who you want deciding your case when you have a dispute?

Absolutely not.

Mr. Speaker, there is something even more insidious about these forced arbitration clauses, and that is this. It does away with any possibility of a class action.

Now, why do we care about that?

The ordinary American consumer may never get into a class action or know about one or care about one. But here is what happens.

If, for example, your credit card company--when you signed up for your credit card, you signed a boilerplate agreement. There is no way you read through that whole thing, but there was a forced arbitration clause in there. It says, in any dispute between us and the consumer, the dispute shall be decided by an arbitration.

What that means is that they can do anything they want to you. They can say, this month, in honor of it being April, we are going to charge everybody $45 for no reason. Forty-five dollars goes on your bill. If you don't pay it, they start dunning you and hurting your credit record. They can do that just for fun.

What are you going to do? Are you going to go to court over it?

No. You are going to join a class action because nobody can afford to hire a lawyer where $45 is the amount in controversy. That is why we have class actions, so the corporations don't get away with that monkey business.

In forced arbitration clauses, that precludes any possibility of going to court and, thereby, it precludes any possibility of a class action. That means a lot of wrong can happen in this country at the hands of unaccountable corporations. They can get away with it because there is no chance of a class action.

Well, I am here to raise my voice in support of something Mr. Johnson from Georgia has done. He has written something called the Arbitration Fairness Act, which remedies much of what I am talking about.

I am also here to stand up and add my voice in support of things that the administration has done: executive orders, either already done or in the works, in the Department of Education to combat forced arbitrations against for-profit universities; in the Department of Defense to combat actions of predatory lenders against our armed service men and women and our veterans; executive orders in the Consumer Financial Protection Bureau to combat arbitration clauses such as the one I discussed about a credit card company; executive orders by the CMS, Center for Medicare Services, to combat abuses in arbitration clauses in nursing homes so that you wouldn't be able to bring a court case against a nursing home because you signed on the dotted line when you put mom or dad in the home so no matter what they do to mom or dad, you can't go to court, you have to go to arbitration. CMS is working on an executive order to curb that abuse.

An executive order in the Department of Labor to enforce rules and laws about safe work places and fair pay to prevent these forced arbitration clauses from taking these cases out of the sunlight and into the dark back rooms of the arbitrations where goodness knows what is going to happen, and it is probably not justice.

We have a statue of Thomas Jefferson right outside these chambers, Mr. Speaker. Thomas Jefferson said: ``I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its Constitution.''

We need to honor those words of Thomas Jefferson, we need to honor the Seventh Amendment, we need to support Mr. Johnson in his Arbitration Fairness Act, and we need to support the administration with executive orders fighting these unfair and nontransparent mandatory forced arbitration clauses.

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