In the coming days, the U.S. Senate will vote on whether to repeal a common-sense rule established in July by the Consumer Financial Protection Bureau after studying the numbers related to class action lawsuits and private arbitration of consumer claims.

The bureau concluded what most of us know instinctively: The playing field is not level between consumers and big businesses, especially in the financial sector, and the market is not free. The new rule codifies what should be obvious: Taxpaying consumers get their day in court and can join together to enjoy the economies of scale like everyone else. The rule says financial companies can’t force customers to privately arbitrate disputes instead of publicly accessing the U.S. justice system – but beware of charlatans trumpeting political ideology in the fight for votes. Access to justice in civil courts is about money. Profit and consumer protection – not politics – are at stake.

Seventh Circuit Judge Diane Sykes didn’t stick a fork in the Subway footlong class action lawsuit just because she’s “conservative.” Anyone who’s spent time in a kitchen knows you can’t coerce bread dough.

“Early discovery established that Subway’s unbaked bread sticks are uniform, and the baked rolls rarely fall short of 12 inches. The minor variations that do occur are wholly attributable to the natural variability in the baking process and cannot be prevented. That much is common sense,” the judge wrote. “A class action seeking “only worthless benefits for the class” and “yields (only) fees for class counsel” is “no better than a racket” and “should be dismissed out of hand,” she said, and did; therefore, the case was dismissed.

This case and a very small handful of others are typically held out as evidence of an alleged flood of litigation holding back the U.S. economy. Too many frivolous lawsuits driven by unscrupulous liberal lawyers justify, they say, blocking class actions altogether, implying judges aren’t capable to be nonpartisan gatekeepers. Using the familiar hyperpartisan frame, business lobby groups paint deregulation, forced arbitration and the justice system in shades of red and blue when the true color of efforts to force individual arbitration and deny class actions is green.

“When a bank charges illegal fees to millions of customers and then blocks them from suing together, a result is not millions of individual claims, but zero. So the bank gets to pocket millions in ill-gotten gains,” said Richard Cordray, bureau director, in a recent New York Times op-ed.

Cordray’s statements are not talking points. Research the bureau did pursuant to the 2010 Dodd-Frank law, supported by Maine Sens. Susan Collins and Olympia Snowe, proved what common sense would suggest. Lawyers are not bilking consumers as much as unregulated corporate behemoths are.

It wasn’t lawyers who installed secret software in Volkswagen’s “clean diesel” cars to purposefully cheat emissions tests – it was engineers and bean counters. And it wasn’t lawyers at Wells Fargo who signed up a bunch of customers for accounts they did not want or authorize, then hosed them with hidden fees and then gallingly hosed them even more with obnoxious debt collection of the fees plus interest. In both the VW and the Wells Fargo cases, consumers benefited substantially by joining forces and streamlining the hassle and expense of litigation with a class action lawsuit – now the stepchild of certain Republican lawmakers who brag about business acumen but are blinded by supply and demand of campaign cash.

Basic fairness is not a Republican or a Democratic ideal. Wells Fargo did not discriminate between liberals and conservatives when it perpetuated a massive fraud opening thousands of unauthorized accounts, and hackers who broke into Equifax were not partisan. Real injury was inflicted on millions of consumers, regardless of their political stripes, and they should be allowed to join together and seek redress for their non-frivolous claims. A simple rule barring mandatory arbitration of consumer claims should not be analyzed through a lazy partisan lens.

Banks and financial companies do not insert mandatory arbitration clauses in non-negotiable boilerplate contracts to protect themselves from frivolous lawsuits. A system to do that is already in place – just ask Judge Sykes. Big financial companies insert mandatory arbitration clauses in nonnegotiable contracts to insulate them from all lawsuits and, therefore, pad the bottom line.

Maybe we can’t blame profit-driven companies that deal in cash for chasing profit – but we are fools thinking these companies are suffering under an imaginary weight of consumer protection laws. The financial services sector now makes up around 8 percent of the GDP, and profits have soared since the Great Recession to staggering amounts. Compared to gains made by consumers, the industry crying about red tape is awash in green and gold. This kind of unregulated financial frenzy is like a keg party fraught with opportunity to get sloppy. Simple and fair rules are the responsible thing to do.

The Consumer Financial Protection Bureau rule allows consumers to join forces and throw open the doors to the courthouse in solidarity to have claims against big financial corporations decided in public by a judge or jury sworn to uphold the Constitution, instead of going it alone in a private conference room with an arbitrator. It’s a good rule and should not be repealed. Some businesses under pressure to perform reach a calculated decision it is more profitable to cheat because in fact absent laws that are enforced by courts it is more profitable to cheat.

Lawmakers who are passionate to punish Dreamers these days for their unintentional violation of immigration laws are the same ones who want to repeal the rule that will hold cheating corporations’ feet to the fire. Pardoning young, dark-skinned people is “amnesty” and, therefore, out of the question – but when companies such as Wells Fargo and VW flagrantly violate consumer protection laws, these same lawmakers don’t blink. They are convinced by campaign checks that it isn’t businesses cheating consumers it’s lawyers making stuff up to get rich. Don’t buy it.

Common sense says a Facebook meme about an 11-inch sandwich purporting to be a “footlong” does not cause harm simply because it goes viral, and common sense says consumers should have access to justice for valid complaints.

Cynthia Dill is a civil rights lawyer and former state senator. She can be contacted at:

[email protected]

Twitter: dillesquire

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