The floor debate preceding the vote brought Minnesota’s junior senator, a Democrat, head-to-head with the top Republican on the Senate Judiciary Committee, Sen. Jeff Sessions of Alabama, who maintained that Franken’s amendment overreached into the private sector and suggested that it violated the due process clause of the U.S. Constitution. Sessions also pointed out that the Department of Defense opposed the amendment.

But Franken held his ground. First, he argued against Sessions’ constitutional argument.

“Article 1 Section 8 of our Constitution gives Congress the right to spend money for the welfare of our citizens. Because of this, Chief Justice Rehnquist wrote, ‘Congress may attach conditions on the receipt of federal funds and has repeatedly employed that power to further broad policy objectives,’” Franken said. “That is why Congress could pass laws cutting off highway funds to states that didn’t raise their drinking age to 21. That’s why this whole bill [the Defense Appropriations bill] is full of limitations on contractors — what bonuses they can give and what kind of health care they can offer. The spending power is a broad power and my amendment is well within it.”

After the vote, however, Sessions reiterated that the amendment’s language was too broad and that arbitration was a useful way of resolving disputes.
Sessions pointed to the fact that an appeals court recently ruled that Jones’ lawsuit could go to court, in part because it is beyond the bounds of the contract agreement. (On Tuesday, however, Halliburton filed a petition for re-hearing to try to return the case to arbitration.)
“For overall justice in the American system, I think arbitration employment contracts is legitimate and we ought not to constrict it too much,” said Sessions.

Those in favor of the arbitration process argue that it is faster, more private, and usually less expensive than going to court.

“The Congress should not be involved in writing or rewriting private contracts,” Sessions said. “That’s just not how we should handle matters in the United States Senate, certainly not without a lot of thought and care and the support of, at least the opinion of, the Department of Defense.”

Sessions said that the Department of Defense opposed Franken’s amendment in part because it determined that enforcement would be problematic.

But Franken dismissed that argument, indicating that the disapproval of the Department of Defense did not necessitate abandoning the amendment.

“Sometimes you have to push bureaucracies to get change,” he said