How Lobbying Works – and Your Constitutional Rights

“The courts of justice shall be open to every person,” promises Article I, section 14 of the Missouri Constitution. If some people had their way, this constitutional right would disappear. The latest attack is House Bill 1512, legislation that would force employees into private and often secret arbitration of any disputes they have with their employers. It was the biggest substantive topic of discussion this week in the House – but the conversations took place in the marbled hallways and rotunda as lobbyists in favor of eroding your constitutional rights button-holed legislators to try garner their support.

This is how it works: there are three main lobbying areas on the House side, one just outside the side doors on the Republican side of the chamber, a second just outside the side door on the Democratic side, and a third just behind the chamber.

This is where “lobbyists” earn the moniker. Loitering in these lobbies, they take the roster of the House and divide it up – assigning each lobbyist on their team a set of representatives. Then they go to the door, give their business card to the doorman, and ask to summon the representatives one at a time.

A representative, of course, does not have to answer the summons, but most are willing to hear what a lobbyist has to say. I should also note that any person can do this, and that, while some legislators may ignore a hired lobbyist waiting for them in the hallway, I don’t know any who would ignore a constituent.

If you know what’s going on, it is fascinating to watch the lobbyists count, and attempt to sway, votes. Body language tells you a lot – even from a long way away. And representatives quickly earn reputations: as discerning, detailed, and issue-oriented or as someone who votes on feelings and interest group politics. Over time, the lobbyists come to know for whom they need to offer logic and reasoning, whom they can bully, and whom they need never worry because they will just follow the herd.

This process happens every week as legislators and lobbyists scurry around with great hurry and worry. This week’s focus of attention was House Bill 1512.

On Monday, Attorney General Josh Hawley joined with every other Attorney General to oppose forced arbitration agreements, as would be imposed by HB 1512, in the context of sexual harassment claims. “Access to the judicial system, whether federal or state, is a fundamental right of all Americans,” Hawley’s letter states. Purported arbitration agreements “often are set forth in clauses found within the ‘fine print’ of lengthy employment contracts [and] are typically presented in boilerplate ‘take-it-or-leave-it’ fashion by the employers. As a consequence, many employees will not even recognize that they are bound by arbitration clauses until they … attempt to bring suit.”

The AG letter focused on sexual harassment claims, but its logic is true for any and every claim that an employee or an ordinary consumer may have against their employer or a company that defrauded them. Forcing employees or consumers to give up their fundamental rights is un-American.

HB 1512 would change Missouri law for the worse in three ways.

First, under current law, as the late Justice Scalia once put it, “If a party challenges the validity of … the precise agreement to arbitrate at issue, the … court must consider the challenge before ordering compliance with that agreement.” HB 1512 would reverse Justice Scalia’s rule, declaring that a private lawyer must make that determination rather than a judge.

Second, continued at-will employment has never been considered a “contract” because it can be ended by either party at any time without legal consequence. HB 1512 would reverse decades of law in Missouri and other states by declaring the opposite, but only for arbitration agreements.

Third, under current law, arbitration agreements must be binding on both parties. After all, what’s good for the goose should also be good for the gander. Many times, however, an employer will try to force an employee into arbitrating only those claims where the employee is likely to be the plaintiff, and will protect its own constitutional rights by declaring that claims where it is the plaintiff can be brought in court. HB 1512 would permit an employer to reserve its own constitutional rights while forcing their employees to give up theirs.

All three of these changes are contrary to federal law, common sense, and the fundamental rights of Missourians. I had prepared for vigorous public debate on HB 1512 this week. But, on Monday and Tuesday, it became obvious that there were serious misgivings among House Republicans. Lobbyists worked the marble halls with great fervor to bend votes their way, but they apparently failed to garner enough support, and the bill never came up for a vote. For the sake of every Missourian who cares about the Constitution and an impartial system of justice, the ideas in House Bill 1512 should die a permanent death.