The Political Context of Business Organizations

We spend a lot of time in our Legal Environment classes and space in our textbooks covering the law-making procedures of courts.  Likewise, the administrative rule-making process is well covered. Inexplicably, we spend little or no time and space teaching about legislative law-making. Is it because we are too squeamish about the sausage-making?

Business law educators are familiar with the AACSB guidlines for undergraduate education and have lauded their recognition of the need for business education on legal and regulatory topics.  But one subject among those AACSB topic guidelines is all too often overlooked:

Standard 9: Curriculum content is appropriateto general expectations for the degree program type and learning goals.[CURRICULUM CONTENT] …

General Business and Management Knowledge Areas

· Economic, political, regulatory, legal, technological, and social contexts of organizations in a global society

· Social responsibility, including sustainability, and ethical behavior and approaches to management …

(emphasis added).

In very few business schools do we offer course work exposure to the political context of organizations in society. It would seem that some discussion of the political law-making process in our Legal Environment courses is not only justified but necessary.

Which brings up the topic of the  recently released publication, "The Confessions of Congressman X."  This 65 page pamphlet purports to be the candid inside disclosures of a longtime Congressman.  As reported in the New York Post, the pamphlet contains revelations such as:

“Business organizations and unions fork over more than $3 billion a year to those who lobby the federal government. Does that tell you something? We’re operating a f–king casino.” 

and:

“I contradict myself all the time, but few people notice. One minute I rail against excessive spending and ballooning debt. The next minute I’m demanding more spending on education, health care, unemployment benefits, conservation projects, yadda, yadda, yadda.”

And quoted in the Washington Post:

“The average man on the street actually thinks he influences how I vote. Unless it’s a hot-button issue, his thoughts are generally meaningless. I’ll politely listen, but I follow the money.”

The way that big business money affects public policy as expressed in law is as relevant to a Legal Environment class as a discussion of stare decisis.  Just because sausage such as this is sure to give one indigestion, doesn't mean our students shouldn't know about it.

House Committee on Science Once Again Called Out For Denying Science

Legislatures make law.  But what makes legislatures make law? Of what is their law constituted? Logic? Reason? Justice? Science?  Where does "law" come from?

Click here for a prior post about legislators proudly displaying their ignorance of the things upon which they legislate.

Click here or on the image below to once again be flabbergasted:

Business, Lobbying, Government and Policy

"Laws, like sausages, cease to inspire respect in proportion as we know how they are made."
     -  John Godfrey Saxe University Chronicle. University of Michigan (27 March 1869)

How is law made?

Was Daniel Shays Right?

Democracy is more or less accurately described as “rule by the majority.”  The drafters of our Constitutional scheme of government were concerned that a majority could become despotic and trample upon the rights and interests of minorities. We have seen ongoing example of this phenomenon throughout American history, particularly in the area of race relations.  American law in many states denied basic civil rights to persons based on the color of their skin - the majority races tyrannizing the minority races.  Public referendums enacting bars to same sex marriage would also seem to fall into this category.  

There is ample evidence that our founders’ concerns over the potential for “tyranny by the majority,” were not animated by a desire to protect the kinds of minorities that history has since borne out to be the victims of these injustices.  Their concern was for potential oppression of the numerically inferior but vitally important commercial interests of the nation. Shays’ Rebellion in Massachusetts caused our founders to fear that mass public uprisings and a legislative appetite for popular policies could thwart commercial interests and stifle the development of a nation.

Whether intended or not, in our Constitutional scheme, the courts have become the havens for oppressed minorities seeking relief from an overzealous oppressive majority.  As Judge Richard Posner wrote in his Federal Appeals Court opinion striking down same-sex marriage bans in Indiana and Wisconsin, “Minorities trampled on by thedemocratic process have recourse to the courts; the recourse is called constitutional law.”

That background brings us to consideration of the Supreme Court’s decision in Citizen’s United v. FEC. Laws enacted with the support of the majority limited the amount of money that corporations could spend on political election campaigns. Was this Shays’ Rebellion all over again? Was this not oppression of our nation’s vital economic interest by a self-serving and greedy majority? The court rescued the victimized corporations by declaring such restrictions constitutional. As Senate minority lead Mitch McConnell stated when he thought no one would catch him, the court had simply “level[led] the playing field for corporate speech.”  Oh, those poor oppressed corporations!

In Congress now, Senate Democrats have proposed a constitutional amendment that would undo Citizens United and allow the federal and state governments to regulate corporate monetary influence in campaigns. As is clear from this NPR report, the amendment has overwhelming public and bi-partisan support outside of Congress.  Yet, there is absolutely no chance that Congress will pass it.

When our Founders sought to protect economic interests from the political influence of the masses, they were concerned that commerce and the national economy would be stifled, financially strangling the new nation in its infancy.  The modern protectors of corporate interests from public sentiment seek to preserve the power of money – not to advance national economies and international trade –but to influence elections.  Many of those who seek to protect this corporate influence often purport to embrace the ideals of the founders for their political ideology. Somehow, I don’t think that preserving the influence of the affluent in elections was a founding ideal.

Here are some questions for our students:

What is the nature of this complex and complicated institution of democratic law-making?  Is the Supreme Court protecting huge multi-billion dollar corporations from oppression by the massed majority?  Is this the kind of “tyranny by the majority” that concerned our founders?  Is the majority always right? What should be the role of public opinion in law-making?  What should be the role of unlimited money in elections? How does that affect public policy as expressed in law?

Did Daniel Shays actually have the right idea in the first place? 

Shays' Rebellion:

Tyranny by the Majority:



Citizens United:



Constitutional Amendment:

Politics is Crazy and Politicians Make Law

According to their responses at a recent candidates forum, three candidates for the Republican nomination to run for the US Senate in Georgia would support a resolution to impeach President Obama if they had the opportunity to vote on one.  The most prominent among the candidates is Rep. Paul Broun. Rep. Broun,  was the subject of a post in this blog when, as reported by the Huffington Post, he famously opined:

"God's word is true. I've come to understand that. All that stuff I was taught about evolution and embryology and the big bang theory, all that is lies straight from the pit of Hell," said Broun, who is an MD. "It's lies to try to keep me and all the folks who were taught that from understanding that they need a savior."

Remember, these people make laws. When studying the Legal Environment of Business, it does a disservice to our student for us to focus entirely on the judicial process while ignoring the legislative process. The AACSB Accreditation Standard #9 requires as part of the Undergraduate Curriculum content:

• Economic, political, regulatory, legal, technological, and social contexts of organizations in a global society (emphasis added)

  We are not so naive as to believe the Civic's Class maxim that the law is insulated from politics. Let's make sure our student get a thorough education as well.

Click here or on image to see video of Broun and others "voting" for impeachment:

Who Makes law?

When searching for interesting talking points about the law-making process, the election season just seems to keep on giving. Recently, Missouri Congressman and senatorial candidate Todd Akin made headlines for famously proclaiming that women who are victims of "legitimate" rape rarely get pregnant. As noted in this post, Akin's ignorance of science is all the more tragic given that he serves on the House of Representatives Committee on Science, Space and Technology. Now, it is reveled that Akin's Science Committee colleague, Representative Paul Broun of Georgia, has also chosen to publicly celebrate his disdain for science with these comments:

“I’ve come to understand that all that stuff I was taught about evolution and embryology and Big Bang theory, all that is lies straight from the pit of hell." 

So, once again, we are reminded that the law is made up by people - people who have agendas and ideologies and interests that may or may not be consistent with fact and rationality.  Representative Broun's position is all the more shocking given that outside of Congress, Broun is a physician. And the final irony is that even though he wears his scientific ignorance proudly, he is assured of re-election since he is running unopposed. His obvious deficiency as a steward of public policy apparently elevates his electoral prospects to the point where he is considered unbeatable.

This is the nature of law-making.

Here is the excerpt of his speech, given in front of a wall exhibiting more than a dozen severed torsos of sentient beings.

Do We Need a Law That Says That the Law is The Law?

NPR recently reported on growing fears in Tennessee that Sharia would become the law of the land.  Apparently, the governor hired a Muslim worker in the state's Economic Development office.  This apparently set off a firestorm of protest that even figured into the Republican primary for a Congressional seat.  the incumbent, Rep. Diane Black, was apparently criticized for not taking a strong enough stand against Sharia law. The criticism prompted Black to offer, "I understand the devastation that Shariah law could mean here in our country, and I'm a sponsor of a bill that will once again say that the United States Constitution is our law and that it is the supreme law."

The law will say that the law is the law. Perhaps Black is positioning for an appointment in the Department of Redundancy Department.

Is opposition to Sharia law akin to saying, "I am against the government making currency out of ice cubes?"

This report prompted me to ask my class, "Is there widespread understanding of how law is made/where it comes from?"

Akin Exposes Law-Makin'

A big political story this last week has been the comments of Todd Akin, a Missouri Republican Congressman and US Senate candidiate, opining that women do not typically become pregnant as a result of rape.   His comments, having absolutely no basis in science, have understadnably sparked criticism from both sides of the political aisle.  And although this is a politically charged issue in an election cycle, the teachable moment form this incident is not at all political, but institutional.

Where does law come from?  Is it organic or is it fashioned by human lawmakers?  If law is constituted of human actio, what is the nature of the lawmaking process?

Akin has served 12 years as the Congressional Representative from the 2d Congressional District of Missouri. He serves on a number of committees - most notable in this instance is his appointment to the US House of Representative Committee on Science, Space and Technology.  Yes, Representative Akin, whose scientifically fantastical statements about human reproduction got him into so much trouble is actually one of the people who we rely on to make good public policy about science.  Is this like the fox guarding the hen house, or is this just the way law is made?

"Laws, like sausages, cease to inspire respect in proportion as we know how they are made."
     -  John Godfrey Saxe University Chronicle. University of Michigan (27 March 1869)