JOHN BRUMMETT: Dressed to kill

Posted: October 29, 2017 at 1:49 a.m.

U.S. Sen. Tom Cotton deserves praise for transparency.

He showed up on the Senate floor late Tuesday night wearing a consumer-shafting costume to cast a decisive vote to shaft consumers.

Let's be fairer than that to a tuxedo: It is not in itself a consumer-shafting costume. Mine isn't; it simply has become too small.

You could care about consumers and wear one.

But, in this case, Cotton was dressed apparently to attend a gala of the American Enterprise Institute (AEI), a neoconservative think tank with which he is popular, and which held its annual award dinner that evening. I say "apparently" because I was not at the gala and Cotton's office won't respond to my queries. I am relying on Internet information.

The AEI is underwritten by rich donors self-identified as conservative intellectuals. It exists, it says, among other reasons, to advance private enterprise. By prevailing conservative euphemism, that means protecting corporations against consumer lawsuits.

The AEI is not a public advocacy group. But its website contains reports contending consumers have fared better under arbitration than lawsuits and that arbitration meets constitutional principles of redress for grievances.

Cotton had to come to a night session because the Senate was voting on a bill he was co-sponsoring--one to frolic in the swamp rather than drain it.

It was to kill the Obama-era regulation assuring consumers a right to avert the private arbitration that financial institutions and credit-card companies would try to force on them. It permitted them instead to sue, perhaps by a class-action.

Republicans had only 50 votes, counting Cotton's, in which case Vice President Mike Pence would cast the tie-breaking vote.

The effect was that Cotton cast the decisive anti-consumer vote--or one of 50 decisive ones--to deny regular people a chance to sue if they felt cheated by their lobbyist-rich bank or credit-card company.

Cotton's vote was no more singularly decisive than John Boozman's. Cotton was simply more conspicuously attired. Boozman is seldom conspicuous, only compliant.

It was of major importance to the contemporary Republican agenda that Republicans protect the very Wall Street that nearly ruined American consumers in 2008. Ruination must only work one way, rich-down, you see.

Here's how consumers can get the shaft without even knowing it. Equifax suffered that big data breach. To try to atone in part, it launched a website to provide credit-monitoring for those fearing they were affected by the breach. To activate the monitoring, consumers were presented with screen-filling text after which they were asked to agree to those terms and conditions. By clicking, consumers ceded their right to sue and bound themselves to arbitration.

It wasn't as bad as it sounded. Equifax was invoking arbitration only prospectively, not for the already-occurring data breach. Anyway, it caught so much grief it announced it wasn't applying the prospective arbitration agreement.

Arbitration is not, in its truest form, unfair. Two parties agree to sit privately with their advocates before a referee, maybe a retired judge, and get their differences settled.

But big business likes it because it doesn't permit class-action complaints; it doesn't open a public file that people can see; they have input into picking the referee and thus can build a stable of ones they like; and they can avoid the risk of a jury of the consumers' peers, who, being regular people themselves, might grant the shafted consumer a big payout.

Arbitration was introduced more than a century ago mostly for business-versus-business disputes when the parties didn't want their affairs aired in a public legal case. A few decades ago, corporations began to realize it would be nice to invoke arbitration with would-be consumer litigants as well.

Here's how it can work: Your elderly mother has declined physically and mentally to the point the hospital advises you it wants to release her to a nursing home. You find yourself in an urgent situation needing to find a facility you like, or can accept. You pick one and sit down with the nursing home's social worker to sign admission documents filling a wheelbarrow.

One of the documents provides that you won't sue, but, if wanting to press a complaint, submit to arbitration. You resist because that doesn't sound right to you. Then the social worker tells you very nicely that the decision is entirely yours, but that you should know that the nursing home requires your signature on the waiver before accepting mom as a resident.

It's not that you don't like the nursing home. You need it; you appreciate it. It's not that you have ever sued anybody. It's that events have backed you against a wall and you can't get freed unless you agree to the big man's rules.

What Tuxedo Tom and other Republicans did Tuesday night was help the big man pin you to the wall.

------------v------------

John Brummett, whose column appears regularly in the Arkansas Democrat-Gazette, was inducted into the Arkansas Writers' Hall of Fame in 2014. Email him at jbrummett@arkansasonline.com. Read his @johnbrummett Twitter feed.

Editorial on 10/29/2017