As a rule, American Genius isn’t about political debate. We have writers from all across the political and professional spectrum, bringing unique expertise to topics that matter in entrepreneurship, tech and business culture. That’s our offer. We’re proud of it.
But there’s a line.
Not every issue has two equal and opposite sides. On rare occasions, some things are flat out right or wrong. When that’s the case, it’s the responsibility of journalists to say so. We do. Net neutrality, for instance, is flat out right.
Vice President Pence’s tiebreaker vote to reverse the ban on mandatory arbitration clauses was flat out wrong.
Mandatory arbitration clauses aren’t universal, but they’re a common tool. Banks do it. Credit cards do it. Service providers in just about every field dealing with capital-F Finance work mandatory arbitration clauses into their agreements.
They’re also a screwjob. Invariably tucked away nice and subtle roundabout paragraph 93 of the Joycean screed titled “Terms and Conditions” on any agreement involving meaningful money, mandatory arbitration clauses do exactly what they say they do: require the signatory to submit to a particular course of arbitration in the case of a dispute.
Tl;dr – sign a form or click a box with a mandatory arbitration clause in it, and no matter how badly the owner of the box subsequently shafts you, you’re not allowed to sue. Instead, you go through an arbitration process chosen by the people who shafted you.
To state the obvious, that’s a strategy designed to benefit one party to an agreement at the expense of the other. In the abstract, that would be repugnant but nothing new. Business plays rough. Film at 11.
But this isn’t debate class. It’s 2017. It’s Equifax screwing the security of 145 million Americans despite being warned 6 months in advance. It’s Wells Fargo opening fraudulent accounts in customers’ names. Facebook. Yahoo. The list goes on.
The plain fact is that the modern business climate is defined, at least in part, by businesses either failing to keep up with the dangers of advancing tech, or fecklessly using same to mess with their customers. To some degree, that’s just the price of progress.
But if screwing up is the price of progress, it’s the screwup’s responsibility to pay it. Vice President Pence’s vote means the next Equifax or Wells Fargo have an excellent way to duck that responsibility and pass along the cost of failure to their consumers.
This isn’t political. It certainly isn’t partisan. Even the vote broke party lines: Vice President Pence’s tiebreaker vote was only necessary because Lindsey Graham of South Carolina and John Kennedy of Florida, both Republicans from deep red states, broke ranks and voted their conscience.
It’s not anti-business, either. Mandatory arbitration clauses are textbook market obstacles. Obstructing consequences for businesses that screw up makes it harder to penalize poor practice, and so fails to incentivize doing things right. That’s the opposite of how the free market needs to work.
The legalization of mandatory arbitration clauses is exactly what it sounds like: a win for badly-run businesses at the expense of consumers.
That’s unacceptable. It’s our responsibility to say so.