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Breakthrough on forced arbitration part of an unexpected pattern

Success on the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act matters, and it's one of several recent legislative breakthroughs.


Too often, there’s an unfortunate correlation between a proposal’s controversial nature and the attention it receives. Legislative fights over the nation’s most contentious issues generate all kinds of headlines, while bills with broad support receive far less notice.

And while this dynamic is understandable, it’s also unfortunate — because sometimes, important legislative breakthroughs happen on uncontroversial bills. NBC News reported yesterday on the Senate approving legislation to end forced arbitration for workers who are victims of sexual assault and harassment.

Under the legislation, employers would be prohibited from forcing workers to settle sexual misconduct claims in closed-door arbitration venues that often favor alleged perpetrators. Employees instead would be able to file suit in court with their own legal representation.... The legislation’s ban on forced arbitration would kick in immediately, and apply retroactively to previous resolved claims unless a case is pending.

Democratic Sen. Kirsten Gillibrand of New York, who sponsored the bill, said yesterday, “This is among the largest workplace reforms, certainly in our lifetimes.” The boast has the benefit of being true.

How did the Democrat’s proposal overcome a Republican filibuster? With surprising ease: The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act passed unanimously by a voice vote, just a few days after the Democratic-led House passed the same bill, 335 to 97.

Nearly half the Republican conference in the lower chamber opposed the bill, as did the U.S. Chamber of Commerce, but even skeptics in the Senate realized the legislation had the votes to pass, and there wasn’t a political upside to fighting against it.

As a result, the bill is now headed to the White House for President Joe Biden’s signature.

Stepping back, there’s also a larger context to keep in mind: If it seems as if there’s been more progress than usual on bipartisan proposals, it’s not your imagination. NBC News noted yesterday that there’s been a “flurry of bipartisan activity” of late, and there’s a fair amount of evidence to bolster the thesis.

The bill on forced arbitration is a big breakthrough, and it comes on the heels of a bipartisan agreement on reauthorizing the Violence Against Women Act. The Postal Service Reform Act, which will dramatically improve the USPS’s finances, easily cleared the House this week with bipartisan support, and it’s likely to fare well on the Senate floor next week.

There’s even been some bipartisan talk in the Senate on a bill to strengthen U.S. competitiveness toward China by, among other things, investing in domestic semiconductor production.

What’s more, it was just four months ago when the Democratic president also signed into law a significant, bipartisan infrastructure package.

Are these historic bills that will help define the generation along the lines of the Voting Rights Act or the Affordable Care Act? Probably not. Did Republicans still derail all kinds of other worthwhile bipartisan proposals? Clearly, yes.

But for a White House eager to show that Biden and Democratic leaders can make meaningful progress on worthwhile measures that will make a difference, there’s a growing list of success stories.

As for why in the world Republican leaders are allowing this to happen, there are competing explanations, but as I see it, Senate Minority Leader Mitch McConnell & Co. are principally focused on reacquiring power. With this in mind, they’ve likely made the calculus that modest legislative victories probably won’t do much to help Biden’s approval rating, and the upcoming elections will more likely be decided by far larger concerns about the economy, the pandemic, and crime rates.

That assumption might very well be true, but for now, the president will take the wins anyway.