A reality based independent journal of observation & analysis, serving the Flathead Valley & Montana since 2006. © James Conner.

26 January 2018 — 1221 mst

Non-disclosure agreements in political campaigns undermine democracy

During Hillary Clinton’s 2008 campaign, reports the New York Times this morning, she refused to fire a staffer against whom there were accusations of sexual harassment. Instead, he was ordered to submit to counseling and his pay was docked. The women he allegedly harassed was moved to a different job.

This can be viewed either as Hillary’s giving a sinner a second chance, or as her turning a blind eye to misbehavior. My personal opinion, based on the story, is that giving the guy a second chance was the correct decision.

But what most struck me in the story was this:

The woman who made the accusation against Mr. Strider in 2008 has not spoken publicly about it. She, like most campaign staffers, signed a nondisclosure agreement that barred employees from publicly discussing internal dynamics on the campaign, according to two people with direct knowledge of the contract. Reached by a reporter, she declined to comment.

There might be an argument for an NDA lasting the duration of the campaign. No candidate wants the dirty linen aired before election day. It’s a weak argument, as it might be in the national interest for a campaign’s employee to tell the voters about nefarious doings within the campaign. But an NDA for life is a flat out cover-up designed to protect the candidate’s reputation by keeping the voters in the dark. That’s not in the national interest. In fact, it’s against the national interest.

NDAs probably explains why so many books and articles about campaigns are based on anonymous sources. Allowing a reporter to use one’s name could subject a person to a lawsuit. Ask anyone who’s worked for Donald Trump.

Are Hillary Clinton and Donald Trump the only political candidates who inflict NDAs on their campaign’s staff? Probably not. I suspect there also are non-competition agreements that prevent a campaign’s employee from working for another campaign.

In theory, an NDA can be a way of protecting privacy. That’s certainly the argument most often advanced in their defense. But in practice, I suspect most NDAs are cover-ups. A good example would be an NDA as part of a settlement of a medical malpractice lawsuit. Yes, that NDA might protect the privacy of the person suing the surgeon who butchered him, but it would also conceal the identity and conduct of the butcher — and protecting the butcher would be the real reason for the NDA.

One of the craziest, and most egregious, noncompete agreements was a condition of employment at Jimmy John’s, the sandwich shop known for its troubles with sprouts that sicken customers. Another sandwich shop, Subway, actually enforced a noncompete, reports LawGeek:

The New York Times and the Huffington Post recently reported on non-compete clauses for fast-food workers. A former Subway employee got a letter from her company reminding her of the non-compete she’d signed. When she started work at another sandwich shop in the area, Subway contacted her new boss. She got fired as a result.

As the NYT reported last year, noncompete agreements can keep employees locked into dead end jobs. That may not be slavery, but it’s certainly the modern equivalent of indentured servitude. And, of course, it’s covered-up by NDAs.

Our laws should protect employees from this kind of abuse. But that’s not likely to happen when the lawmakers themselves use NDAs and noncompetes to cover-up how they really got elected. Given their penchant for NDAs, it’s hard to argue that Trump is a greater threat to the working class than Hillary.