Monday, August 8, 2022
Another semester teaching business associations law is just around the corner. In fact, our fall semester begins next week. This post is dedicated to those who, like me, are prepping for and teaching that course this semester.
I was invited to participate in a discussion group entitled "Pressure on and Backlash against Corporations as Political Actors" at the 2022 Southeastern Association of Law Schools (SEALS) annual conference last week. The description for the session is as follows:
When businesses wade into political issues like abortion, the environment, gun control, LGBTQ rights, Black Lives Matter, and international affairs, they potentially face consumer backlash and even governmental retribution. Remaining silent can also be risky, potentially upsetting other consumers and employees. And silence/inaction is not always an option: either a business remains in Russia after its invasion into Ukraine or closes its operations there, sometimes at considerable expense. This discussion group will analyze these issues from corporate, tax, policy, electoral, and constitutional law perspectives. Should businesses like Nike, McDonalds, Disney, and Ben & Jerry’s take political stances, stay out of politics altogether, focus on profits or something broader, and what are the practical and legal ramifications of these views? More broadly, what is the proper role of the corporation in society?
As you might guess from the program description, the discussion generated broadly (and, in cases, deeply) divergent viewpoints and engaging conversation. I offer here a rough summary (constructed from my talking points) of my personal "opener" from the session for everyone to poke at. Enjoy!
Pressure on and Backlash against Corporations as Political Actors
My thesis is that corporations come at political engagement as a natural implication of corporate theory, policy, doctrine, and practice. My work intersects with and addresses this claim in a number of ways.
Corporate boards have complex tasks. Corporate directors’ and officers’ fiduciary duties are, in most contexts in most states, owed to the corporation. So, understanding what the corporation is—as a matter of theory, policy, legal doctrine, and law practice—is critical. And folks have different views on that . . . .
My perspective? Corporations are aggregations of constituencies managed by a board of directors acting alone or through corporate officers to manage and serve those various constituencies. The constituencies include shareholders, debt holders, and other security holders. They include employees. They include suppliers, customers/clients, state, local, and national governments. My perspective is, perhaps, closest to the team production theory articulations in which the board is the mediating hierarch.
My views are rooted in the notion that corporate law exists to facilitate individuals in conducting business—business that is critical to our lives. They also are rooted in corporate doctrine, which hands overall management responsibility to the board of directors—corporations are managed by or under the direction of the board under all state statutes. Finally, my views are framed by 15 years of work on teams of lawyers that advised corporate boards—where we did not blindly advise directors that shareholders always come first in every board decision (noting a primary shareholder allegiance in certain contexts, including certain M&A transactions--especially those involving Delaware public corporations).
Corporate theory views the corporation in many different ways. And there are differences in state law—Delaware corporate law in the public company context is different from, e.g., Tennessee corporate law in the public and private company contexts. Talking in generalities in these regards is not helpful to a complete understanding.
It also bears mentioning that corporations are alternatives to government in providing for us and regulating our affairs in certain social and economic settings. Notably, corporations and other business associations are primary providers of health and welfare benefits, which are supplied by governments in other countries.
Thus, as servants to a variety of corporate constituencies and as statutory entities bearing systemic social and economic responsibility (for, e.g., employee health and welfare), corporations are natural political actors. But imv, they are not actors with a particular political viewpoint. Any political viewpoint expressed by a corporation optimally results from the board's careful consideration of the corporation's obligations to its various constituencies.