Senate Passes Franken Amendment Banning Mandatory Arbitration for Sexual Assault Claims by Defense Contractors, 30 Republicans Vote to Protect Corporate Impunity

The United States Senate passed the Franken Amendment by a 68-30 vote on October 6, 2009, prohibiting defense contractors receiving more than $1 million in Department of Defense funds from requiring employees to resolve sexual assault, battery, or harassment claims through mandatory arbitration. The amendment, sponsored by freshman Senator Al Franken (D-MN), was prompted by Jamie Leigh Jones’ testimony about being gang-raped by KBR coworkers in Iraq and then forced into secret arbitration proceedings that would have prevented public accountability for the assault. Jones testified before the Senate Judiciary Committee on October 7, 2009, describing how KBR’s mandatory arbitration clause had required her to fight for four years simply to have her claims heard in a public court rather than private proceedings designed to shield corporate misconduct from scrutiny.

The 30 senators who voted against the amendment—all Republicans—effectively voted to preserve defense contractors’ ability to force sexual assault victims into secret arbitration proceedings. Their opposition revealed the depth of corporate capture within the Republican caucus: faced with a straightforward choice between protecting assault victims’ constitutional right to jury trials or preserving corporate legal advantages, they chose corporate interests. The vote exposed systematic prioritization of contractor profits and legal immunity over employee safety and constitutional rights, with opponents arguing that mandatory arbitration was an essential corporate tool that Congress should not restrict despite its demonstrated use to shield sexual assault accountability.

President Obama signed the Franken Amendment into law on December 19, 2009, as part of the Fiscal Year 2010 Department of Defense Appropriations Act. The law prohibited federal defense contractors receiving appropriated DoD funds over $1 million from entering agreements requiring employees or independent contractors to arbitrate claims under Title VII of the Civil Rights Act of 1964 or “any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision or retention.” Contractors were required to certify compliance within 180 days, and the prohibition applied to all of a contractor’s employees—not just those working on the specific defense contract—ensuring that companies could not use government contracts to fund operations while maintaining arbitration shields for systematic misconduct.

The Franken Amendment represented a rare legislative victory against corporate impunity in the defense contractor industry, but its limitations revealed the challenges of imposing accountability on privatized military functions. The law applied only to Department of Defense contracts, leaving State Department contractors (like Blackwater/Constellis) outside its scope despite similar patterns of assault and mandatory arbitration. The $1 million threshold excluded smaller contractors despite evidence of systematic assault across the industry. Most critically, the amendment addressed only the symptoms of contractor accountability evasion—mandatory arbitration clauses—rather than the underlying structural problem: the privatization of military functions to corporate entities that could use legal innovations to systematically eliminate the accountability mechanisms that would automatically apply to government employees or uniformed military personnel.

The legislative battle demonstrated how corporate legal strategies had evolved to create zones of systematic impunity within government contracting. By inserting mandatory arbitration clauses in employment contracts, defense contractors had effectively privatized justice itself: assault victims faced secret proceedings with industry-friendly arbitrators, limited discovery, confidential outcomes, and no legal precedent to help future victims. The Franken Amendment’s passage showed that these corporate accountability shields could be legislatively constrained when specific abuses became politically untenable, but the 30 Republican votes against the amendment revealed that substantial political forces remained committed to preserving corporate impunity even in cases of sexual assault. The vote demonstrated that accountability for contractor misconduct would require continued legislative battles against corporate interests and their political allies, with each reform addressing specific accountability gaps while companies developed new legal innovations to evade oversight and consequences.