So-called “dark money” groups have reported spending more than $800 million on campaign-related activities between January 2010 and December 2016, the last full election cycle.
The top spender on the Federal Elections Commission’s list was the U.S. Chamber of Commerce, a conservative, profit-making group that laundered $130 million for … who knows?
While dark money is widely associated with political campaigns, including judicial campaigns, it also influences the machinations of federal courts and has reached the front lines of worker rights at the U.S. Equal Employment Opportunities Commission (EEOC).
Dark money is money collected by a front or middle-man organization, usually with a vaguely positive sounding name, that is distributed to influence public policy. The source of the money is anonymous so the public is clueless about the donor’s intentions. The U.S. Supreme Court legalized dark money in Citizens United v. FEC (2010).
Dark money strips workers of justice in federal courts and at the EEOC.
The EEOC is designated by the U.S. Congress to enforce the nation’s federal discrimination laws. Congress requires every discrimination complaint go first through the EEOC before it can be filed as a lawsuit in federal court. It appears the Chamber has realized that it can avoid the nuisance and expense of a federal discrimination lawsuit altogether by quashing complaints at the EEOC level, long before they ever get to court.
The Chamber’s goal is to quash complaints at the EEOC stage before they become costly lawsuits.
The Chamber’s strategy is to urge the EEOC to focus on compliance assistance – settlement talks, mediation and education- rather than costly lawsuits, which involves discovery, court time and potential risk to reputation. And the Chamber’s strategy is working.
In January, Randel K. Johnson, a senior vice president of the Chamber, sent a letter to the EEOC commending the Agency for focusing on “compliance assistance” rather than enforcement and litigation in the EEOC’s proposed new strategic plan for 2018-2022. The Chamber “emphasizes compliance assistance should be a key priority of the agency moving forward,” wrote Johnson.
The EEOC began a new “training institute”in 2017 to provide compliance training to business.
Johnson’s letter tacitly acknowledges the success of the Chamber’s incendiary anti-EEOC report to Congress in 2014 that claimed the EEOC was misusing its authority. Chamber-backed Congressional representatives railed about supposed overreach by the EEOC, which, ironically, was litigating its fewest number of cases in modern history at the time – 148 in 2013 compared to 416 in 2005.
In February, the EEOC heeded the Chamber’s advice.
The EEOC adopted as one of three Strategic Objectives in its strategic plan the goal of promoting “inclusive workplaces through education and outreach.” Presumably, the EEOC intends to educate employers who are unaware that discrimination became illegal some 50 years ago.
Of course, the Chamber recognizes the EEOC will still file lawsuits because it has to keep up appearances. The Chamber has never stopped lobbying the federal courts. If discrimination victims cannot quash a lawsuit at the EEOC, they will face tremendous headwinds in the federal courts, where the vast majority of discrimination lawsuits are summarily dismissed prior to trial.
The Chamber, for example, persuaded the U.S. Supreme Court in 2015 in Mach Mining, LLC v. EEOC to allow employers to raise an affirmative “failure to conciliate” defense in employment discrimination cases. If an EEOC investigation finds reasonable cause to believe a violation occurred, the Agency is required by law to attempt conciliation between the employee and employer to attempt to resolve and remedy the discrimination. The “failure to conciliate” defense allows employers to stall litigation by arguing the EEOC failed its statutory obligation to engage in good faith settlement negotiations prior to filing a lawsuit.
The EEOC has long offered free mediation services to business but this program has increasingly become a priority at the Agency.
Mediation is a poor substitute for litigation because it does not reach systemic discrimination and most complainants are at a considerable disadvantage in the process.
Employers are almost always represented by experienced, savvy employment attorneys while litigants typically have no attorney and no comprehension of the law or potential damages. Many, if not most, victims have lost their jobs, have no income, and are forced to accept even a paltry settlement to pay the rent. Meanwhile, discriminatory employers avoid potentially catastrophic attorney fees, court costs and damages. Taxpayers pick up the tab for EEOC mediation. And mediation is confidential so the public and co-workers are kept in the dark.
A supposedly “neutral” EEOC mediator cannot level a playing field that is so wildly out of whack.
There appears to be no recognition or understanding in our antiquated, pro-business federal court system (or, for that matter, at the weak-willed, leaderless EEOC) that dark money is working night and day behind the scenes to influence their actions. Or maybe they know and they feel the system exists to protect business, and so workers should be satisfied crumbs.
Either way, American workers are being deprived of an independent and fair system of justice. The blindfold is gone. Justice is being shaped and defined by anonymous entities with something to hide. And that is a shame.