All the big companies are suddenly finding themselves compelled to donate to Trump’s inauguration. That a bunch of large businesses with significant regulatory exposure would want to lobby the President isn’t terribly surprising. Such things are endemic, if not inherent, to any democracy. Perhaps heightened by the media, but I can’t help but think that the prospect of targeted tariffs, elimination of key visa programs, and the general animus projected towards seemingly anyone and everyone by the administration have changed the tone of this particular round of contributions. In short, it feels less like traditional lobbying and more like extortion.
“Nice business you have there. It’d be a shame if something undermined its market integrity. You know, for a few million dollars we could help you out. Pennies, really, when you think about the billions of dollars at stake.”
Which brings me to my absolutely genuine, I actually don’t the answer, question. Does a company have a fiduciary obligation to its shareholders to be a rent seeker? Is there a fiduciary obligation to give in to political extortion?
There is legal precedent that a company does not have an obligation to give in to ransom or criminal extortion. Common law duty of care (Meinhard v. Salmon, 164 N.E. 545 [N.Y. 1928]) does not extend to unlawful acts. 18 U.S.C. § 873 prohibits the receipt of funds in response to extortion. 18 U.S.C. § 1201 imposes criminal penalties for aiding or abetting kidnappers. 18 U.S.C. § 2339B may indirectly criminalize paying ransoms to terrorists. The Foreign Corrupt Practices Act (FCPA) dictates that paying bribes or ransoms may violate anti-corruption statutes.
But what if the extortion isn’t explicitly illegal? As some have suggested, certain activities are not in fact illegal if the President does it, a sentiment that has only gained legal standing. Which brings up the next point: could shareholders sue Amazon, Google, or Meta if they in fact chose not to donate to the inauguration? What if they released a joint statement that they had been approached by the administration but refused to donate? Could a civil case be launched against them on behalf of shareholders? I don’t think so, but we’re in a wild enough world where such a action could be profitable if only as a threat.
Maybe this is just another case where politicians are increasingly willing to “say the quiet part out loud”. Yes, it’s extortion, but it’s also always been extortion; the new administration is simply more willing to make political extortion more explicit. It’s just rent seeking as usual, only louder. Which, fine, it’s business as usual, but the volume does matter. Explicitness is a signal of voraciousness and intensity, that they are unlikely to be constrained by shame or the costs of overplaying a hand in the repeated game of lobbying and favorable policy outcomes that is replayed between industries and political parties across decades.
These things can and do come to a head eventually. These businesses are smart, they know how to discount repeated costs and figure out when it’s time to say no. A million here and milllion there, pretty soon you’re talking about real money. Everyone’s always asking when someone is going to stand up to a bully. The answer is straightforward, if easier said than done: when the benefits outweigh the costs. Eventually the administration is going to make promises that yield big donations. Either those donations will serve to stabilize policy, at least in the interest of the donors (which will hopefully extend to vast swaths of the US marketplace), or they will renege on those promises and then things get…interesting. The word will get out and then it will all cascade down in a hilarious carnival of vicious public statements and political threats. The collateral damage could be minimized as an administration finds its impact limited and hands tied. Or the collateral damage is maximized as influence is sought to be reestablished through chaotic political writhings of a cornered animal.
I guess we have to root for stability? I’m not excited about it, but maybe the best thing for the US is for politicla extortion to be significantly remunerative that the administrative decides the most profitable choice is to in fact release the hostage that is the US economy.
I guess I’m just hoping the lessons of Speed have been rightly lost to time.
Economist Writing Every Day 