Buried in the Fine Print Is a Threat to Democracy

According to an MSNBC interview on Tuesday with Charles Koch, he and his brother David are still shopping for a presidential candidate to support. They're looking to spend a cool $250 million for their chosen presidential candidate and, as Koch admitted, "I expect something in return."

They can do this in large measure because of a series of Supreme Court rulings that opened the floodgates of corporate money and private wealth, culminating in the infamous Citizens United decision in 2010. Thanks to the Court, what used to be perceived as unseemly and corrupt is now wrapped in unchallengeable constitutional legitimacy.

At the same time, corporate America is also working behind-the-scenes to capture our justice system -- frequently through obscure legal cases that are brought deliberately into the welcoming embrace of a radically conservative, business-friendly Supreme Court led by Chief Justice John Roberts.

A perfect example of how this works can be seen this week in the New York Times, which ran a series of articles on the outrageous practice of forced arbitration, with reporting that expanded on work done by Alliance for Justice in its award-winning 2014 film and awareness campaign, Lost in the Fine Print.

AFJ's work and the Times articles show that the Roberts Court has wilfully gone out of its way to help corporations not only evade the laws of the land but encourages them to set up their own parallel, private "justice" system. Through a series of increasingly aggressive decisions, the five conservatives have made sure that individuals in disputes with corporations are placed into a subordinate position with no recourse to seek justice via the federal or state courts, as they have done for over 225 years.

The forced arbitration process is insidious, and it affects anyone who has a credit card or a cell phone, uses a bank, subscribes to an online service, buys software, has cable TV, or rents a car. Many employees are subject to it, as are residents of nursing homes, students attending private educational institutions, even people using funeral homes. In other words, it touches almost everything in your life and the life of everyone you know.

Buried in the deliberately unintelligible fine print of countless contracts and agreements you have agreed to are requirements that when something goes wrong you may not under any circumstance go to court to seek justice or band together with other people harmed as you are. No matter how bad the harm or the nature of the injury, the only way to seek recourse is to enter into binding arbitration by yourself in a system set up by the company you believe has done you wrong.

Even worse, arbitrators do not need to follow precedent, they operate in secret with no rules of procedure, are completely unaccountable for their actions, and depend for their income on the companies that are parties to the dispute; yet their word is nearly always final and can't be appealed. No judge, no jury, no rules, no laws, no way out.

How did we get here? Through a series of cases skillfully steered to the Roberts Court, including AT&T Mobility v. Concepcion and American Express v. Italian Colors, two things have happened. First, forced arbitration clauses and class action bans have been found to be legal, even if they place the aggrieved party at an insurmountable disadvantage and everyone agrees that it will be impossible to obtain justice. As Justice Elena Kagan wrote in dissent, the Court's rulings send a simple message to victims of forced arbitration: "Too darn bad."

Second, even in instances where a full ban is not in effect and class actions are still permitted, the Court has rewritten the rules that govern class formation so strictly that it can be extremely difficult to form one. With a Court so hostile to civil justice, it's no surprise that companies of all kinds are rushing to include forced arbitration and class-action bans into their contracts and agreements.

You may not know these Supreme Court cases by name -- Concepcion and Italian Colors -- but they are the mechanisms by which corporate interests capture big chunks of our democracy for themselves. You already know how they acquire the executive and legislative branches; this is how they grab the law itself.

But to do that, these powerful interests need a compliant Supreme Court.

Which brings us back to the beginning and the Koch brothers' interest in the election and why they and their friends are so keen to pick a friendly and accommodating president. Remember this: There will be four Supreme Court justices over 80 during the next president's first term. Whoever wins this election may well have the power to shape the Court's future for a generation or more.

There are more numbers to know. Citizens United: 5-4; AT&T v. Concepcion: 5-4; and American Express v. Italian Colors: 5-3 (Justice Sotomayor recused).

The ability of large corporations and hugely wealthy people to control the mechanisms of American government has been established by the narrowest of margins. One vote can determine if they can have it all.

Now you know why Charles Koch is shopping for a president.


To learn more about forced arbitration and to view AFJ's award-winning short film, Lost in the Fine Print, click here.

For a deep dive into the havoc wreaked on American democracy by the conservative majority of the Supreme Court, see the October 12 special issue of The Nation, "The Case Against the Roberts Court."