Trial Magazine

You served in the New York State Assembly for more than a decade and have been in Congress for more than 25 years. What drew you to public service?

I first became interested in politics in about the seventh grade when I read accounts of U.S. Supreme Court decisions affirming criminal convictions based on confessions that were essentially beaten or coerced out of suspects. I thought this was terribly unfair, and I got angry, and I wanted to do something about it.

I later attended high school during the Vietnam War protests and at the height of the civil rights movement—the attacks on marchers in Selma, Ala., happened during my senior year. These events increased my motivation to get involved, and I chose to attend Columbia University so that I could be part of New York politics right after graduation, before I attended Fordham University School of Law.

You look around at our world today, and you see things that aren’t good or aren’t as good as they could be, and you have to change them. You have to do what you can.

In 2017, you reintroduced the “Sunshine in Litigation Act” (H.R. 1053), a version of which was first introduced in the early 1990s. What is the bill and its goal?

The bill basically says that before a federal court can approve a settlement that includes a nondisclosure agreement, the court must find that the secrecy component is in the public interest and doesn’t prejudice the public’s interest or safety in any way. Judges must consider various other factors, but that’s the primary one. The bill also contains provisions to address situations when privacy issues might arise.

I proposed this legislation to stop dangerous products from staying on the market when a corporation secretly settles with people injured by those products but leaves the public in the dark. That means that the unsafe practice can continue, harming even more people. I saw this happening, and I was enraged. I’m still enraged. A judge should not approve a settlement with a secrecy component unless he or she makes an affirmative finding that secrecy is not harmful to the public.

Why is it important to address this issue at the federal level?

Because major corporations today are organized at the national level. They may be incorporated in Delaware or another state, but they operate across the country. The states cannot really regulate this problem. If New York has a sunshine law, but the injury occurs in Montana and is caused by a corporation based in Delaware, how can New York enforce that law? It can’t, and its citizens aren’t helped.

People harmed by unsafe products live across the country. When secrecy keeps a dangerous product on the market or allows a dangerous practice to continue, people everywhere are at risk. The nature of the problem requires a federal solution.

What arguments do you hear in opposition to this bill?

I’ve never heard any good arguments against it. Some people claim that it limits judicial discretion and that judges already have the authority to limit secret settlements. Some people say that having that requirement would make litigation too cumbersome because judges aren’t in a position to make those types of determinations. That’s absurd. It’s a simple question that a judge is certainly able to answer: Is a practice or product going to pose a danger to the public if it is not exposed? If you’re settling a lawsuit over a serious injury caused when a person tripped over a ladder left in the wrong place one time, then there’s no danger in a nondisclosure agreement that keeps the location of the ladder secret. So what if it’s secret? But if brakes in millions of cars don’t work, then that’s a different matter.

If the Democrats win the House in November, then I anticipate movement on this bill. By exposing safety risks, you save lives—which is most important—and you also save judicial time and resources because you prevent future injuries and the need for more litigation. The only reason to perpetuate this cycle of secrecy is to support corporate power and businesses’ bottom lines.

How did you come to work on secrecy issues?

When I learn about a problem that’s being overlooked—especially when it’s happening to a group of people going up against powerful interests—then I ask myself how I can change that. I hold a seat in the U.S. House of Representatives—one of only 435. I serve the public, and it’s my job to figure out how best to do so. I feel that’s especially true for me because of my role on the Judiciary Committee. I’ve continued to see and hear about the harm being caused by secret settlements. It’s not something that’s going away, and it won’t until we take action.

In addition to the Sunshine in Litigation Act, I reintroduced the “State Secrets Protection Act” in 2016 (H.R. 4767). This bill will not get universal Democratic support, but it involves fighting another type of secrecy. Under the state secrets doctrine as it’s interpreted today, if you sue the government for trampling one of your rights, the government can move to dismiss your case on the ground that litigating it would involve the use of state secrets. The State Secrets Protection Act says that the government cannot move to dismiss a lawsuit on the ground of state secrets. What it can do, however, is move to suppress the evidence by proving to the judge at an in camera hearing that revealing the material in question would in fact endanger national security.

The act essentially takes the process established by the Classified Information Procedures Act (18 U.S.C. App. 3, §§1 et seq.) in the criminal context and applies that to a civil lawsuit. This is a high priority for me because we have to do something about the fact that right now the government, if it’s ruthless enough, can suppress people’s rights and civil liberties and then stop people from being able to get justice.

You’ve also focused on workers’ rights issues and publicly criticized the Supreme Court’s decision in Epic Systems Corp. v. Lewis. Tell me about your concerns.

It’s the latest in a series of decisions barring access to the courts. The Federal Arbitration Act (FAA) that Congress passed in 1925 was intended to be a mechanism for corporations with equal power to settle business disputes. But today, forced arbitration is everywhere, regardless of the party’s position or bargaining power. A person can’t get a credit card without “agreeing” to forced arbitration, and, essentially, it’s being used to close the courts to regular people. This is wrong, as is the way that class actions are being eviscerated. Class actions are meant to ensure that citizens acting together have the resources and means to address misconduct. Forced arbitration clauses are preventing that, and we see this in a wide range of cases.

"If control of the House flips, one big priority for the Judiciary Committee will be to narrow the Federal Arbitration Act to what it was originally—an instrument governing interactions between equal corporations and not one denying people access to courts."

If control of the House flips, one big priority for the Judiciary Committee will be to narrow the FAA to what it was originally—an instrument governing interactions between equal corporations and not one denying people access to the courts. We need to rein in this problem and reestablish the rights of individual citizens to band together and file class actions because we’ve seen that this is one of the only ways for people to get justice. Our courts should not serve as collection agencies for large corporations. That’s a fundamental twisting of a public forum that should be available to all.

You’ve been outspoken about the need to secure and expand protections for women and LGBT people, among others. Why are these issues so important to you?

I often say that a large part of our country’s history can be understood as a struggle to expand our understanding of those words from the Declaration of Independence that “all men are created equal.” We’ve done this work in fits and starts—inexorably in the right direction—but it’s slow. I believe that we’re going to get there, but one of the most important parts of my job is to make sure that we get there as soon as possible because people in minority groups deserve equal rights now. I went to orthodox Jewish day schools as a kid, and we learned that everyone is created in the image of God, and so to insult a person—his or her race, for example—is an insult to God. That’s a fundamental belief that I took with me, and I’ve never been willing to tolerate challenges to that belief.

What are some other top priorities for the Judiciary Committee during the next Congress?

Obviously, the election in November is key. The current Congress is not going to do anything on women’s rights, LGBT rights, consumer rights—you name it. None of those issues are going to move forward.

The committee has jurisdiction over voting rights, and we are seeing a sustained attempt to roll back these rights at the federal, state, and local levels. The Supreme Court has certainly done this—for example, in Shelby County, Ala. v. Holder (570 U.S. 529 (2013)), which found that §4 of the Voting Rights Act of 1965 is unconstitutional. The moment the Supreme Court got rid of §4 [which contained the “coverage formula” used to identify which states were bound by the preclearance requirement and needed federal approval before changing voting laws or procedures], several states started passing voter suppression acts of all kinds.

The Court invited Congress to update §4, but we have not been able to so. We need to update the Voting Rights Act and get rid of restrictions that are cutting down on people’s right to access the polls. As part of this, we also have to update campaign finance reform to make sure that our elections are truly democratic.

We also want to explore a variety of ways to protect consumers against corporations, which includes taking a hard look at the antitrust laws and revisiting the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (Pub. L. No. 109-8, 119 Stat. 23). We were promised that if we made it much harder for low-income people to get out of debt then the average consumer would benefit through lower interest rates from banks. I haven’t seen that.

Another key area is protections for pregnant workers. I introduced the “Pregnant Workers Fairness Act” several years ago and reintroduced it in 2017 (H.R. 2417). It’s a very important bill requiring employers to make reasonable accommodations for pregnant workers, but it hasn’t gotten much coverage or movement. If we get a Democratic majority, that’s going to change.

The reality is that we live in a world dominated by those with very large concentrations of power. How do you protect the individual in this environment? You can only do it by having countervailing powers—unions against corporations, for example, or the government against corporations. The reason a robust government is necessary—in addition to its role providing public services—is to serve as a check on corporate power. You can’t vote for the CEO of a corporation, but you can vote for government officials. We also depend on lawsuits and the courts. Access to justice relies on that balance, and we have to think about how we can strengthen these countervailing powers to protect and help our citizens.

Mandy Brown is an associate editor for Trial.