WASHINGTON, DC – The insurgency that overran the US Capitol on January 6, 2021, just as Congress was certifying the results of the 2020 presidential election, was a wake-up call for business in America. And yet, most sectors and companies have looked the other way.
To its credit, the National Association of Manufacturers responded to the insurrection with a sharply worded statement condemning the violence and calling on political leaders and law enforcement to bring the disorder to an end. “This is not law and order. This is chaos,” the association said. “It is mob rule. It is dangerous.”
The NAM statement has been widely praised in the media. Coming from a trade group that has long supported US President Donald Trump, it is certainly better than the response from those congressional Republicans who have promoted Trump’s lies about the election even after the insurrection. But the NAM statement ultimately falls short in its own way. At stake in the current political crisis is not just “law and order” but democratic constitutionalism itself.
“Law and order,” after all, is what every tinpot dictator invokes after installing themselves in office by whatever means available. In this context, mob rule is often a necessary interlude from one “order” to another. What matters is the extent to which a particular political order adheres to democratic and constitutional principles. This is the criterion by which we distinguish between orders that should be toppled (by revolution or otherwise) and those that should be protected through all constitutional means at our disposal.
Playing by the rules is critical for social peace and economic prosperity. But for too long, businesses in the US and elsewhere have paid lip service to “the rule of law” while lobbying for preferential legal changes. Much of the “law and order” that they want to uphold exists for their own benefit, irrespective of how the electorate has voted or of what average households really need from the government.
Big business controls the political process not with stronger, better arguments, but with money. And the US Supreme Court has played its own role in the problem by declaring in Citizens United vs. Federal Election Commission that spending by corporations or wealthy individuals to influence opinions is no different from the free speech exercised by natural persons.
Over the past four years, the Trump administration has delivered on pretty much everything that corporate America could have wanted. It cut corporate taxes, rolled back many of the regulations that were instituted to protect the financial system from another crisis, and gutted environmental-protection policies, even as the disastrous effects of climate change have become more obvious.
Even during the pandemic, the administration has favored large corporations over small businesses, and asset-holders over ordinary people. Last but not least, vacancies on the federal bench have been filled with conservative judges who will favor business over labor, the environment, and racial and gender equality.
After reaping these benefits for four years, corporate America might have been expected to abandon the demagogue in the White House once he had turned openly against the constitutional order upon which those gains were legally codified. Yet, most business leaders stood by as Trump spread lies about the election and the electoral certification process, and still have not spoken up even after he incited his followers to march on the Capitol. According to Bloomberg, the events of January 6, which left five people dead, have been met with “silence” from “some of the president’s wealthiest donors.”
Meanwhile, Big Tech platforms, already on the defensive after a series of lawsuits and announced antitrust investigations, have finally decided to enforce their own rules of conduct, having realized belatedly that outright lies and incitement to violence might not be so good for business after all.
In October 2019, on the cusp of the new election campaign cycle, Facebook CEO Mark Zuckerberg hid behind the First Amendment when faced with demands that he do more to control how his platform is used. Only after violent rioters had ransacked the Capitol did he finally suspend Trump’s account. Similarly, Twitter, which has served as Trump’s bully pulpit since day one of his administration, finally suspended his account after he continued to make false claims about election fraud following the insurrection.
Needless to say, Big Tech’s free-speech advocacy has always been a ruse in the service of its bottom line. None of the major social-media platforms has ever actually operated as a neutral “marketplace of ideas.” Rather, their algorithms are specifically designed to spread high-impact, emotionally charged posts, usually without distinguishing between credible news outlets and professional propagandists. Worse, the major platforms have long known that users “engage” more with outrageous lies than with subtle truths, and are more likely to be incited by hatred and tribalism than persuaded by arguments.
Trump’s false claims about voter fraud and a “stolen” election spread like wildfire across these platforms, even though none withstood scrutiny when brought before dozens of courts – including many Trump-appointed judges. In fact, Facebook and Twitter continued to disseminate lies that Trump’s own lawyers dared not repeat in court for fear of the legal repercussions.
The suspension of Trump’s social-media accounts has triggered a debate between those decrying Soviet-style censorship and those arguing that private firms can do as they please. But both sides have missed the point. Like all companies, the tech giants operate within a system of law that rests on a democratic constitutional order. Determining the rules by which social media operates is a task for elected legislatures, not for Zuckerberg, Twitter CEO Jack Dorsey, or any other Big Tech tycoon. It is lawmakers who decide whether and how these platforms should be shielded from liability for the content they carry, or whether they should be deemed utilities and regulated accordingly.
If democratic constitutionalism is to survive, democratic governance must prevail over business interests. Corporate America can hardly be trusted to stand in for democracy after it has once again demonstrated its lack of interest, if not outright contempt for, the democratic order.
Katharina Pistor, Professor of Comparative Law at Columbia Law School, is the author of The Code of Capital: How the Law Creates Wealth and Inequality.