When the Supreme Court decided in its Hobby Lobby ruling that corporations could opt out of the Affordable Care Act for religious reasons, a great many conservative groups cheered the decision for how it impacted the law. The problem is that it's another law they're likely not taking into consideration that could be problematic for them, most of all -- that would be the Law of Unintended Consequences.
The problem, you see, deals what has long been known as the "corporate veil." This is what conservatives and big business have long used as a protection for themselves. The short version is that corporate law has always created a wall that separates a corporation from the individuals running it. Contrary to Mitt Romney's infamous "Corporations are people, too, my friend," people in charge of corporations have gone to great lengths to insure that they and their companies are two very, very separate entities. This is why you can't sue the people in charge of corporations, and why those very people aren't responsible for the debts they might accrue or other corporate problems that they might cause. The "corporate veil" has always kept them completely separate.
But with the Hobby Lobby decision, a great many legal scholars believe that that the conservative justices of the Supreme Court may have taken the first step to stripping away that long-held, rock-solid protection, and made corporate executives responsible for their actions. After all, the argument goes, in allowing a corporation's owners to enforce their own personal religious beliefs over the whole corporation, then the company may not, in fact, be separate from those running it. And if so, owners may well be personally responsible now for all their corporate actions.
An excellent article here by Alex Park in Mother Jones notes a question raised by 44 other law professors, who filed a friends-of-the-court brief against Hobby Lobby. He quotes one in particular, Burt Neuborne, an NYU law professor, who stated the problem by asking --
"If religious shareholders can do it, why can’t creditors and government regulators pierce the corporate veil in the other direction?"
In other words, if the owners of a business can impose their personal beliefs on the corporation, and are therefore not separate from the corporation and its shareholders, but actually one and the same with it, why then can't those same shareholders reach back the other way and initiate lawsuits?
Indeed, these law professors argued, ruling for Hobby Lobby is at odds with the entire core concept of incorporation -- which is specifically to keep owners and their beliefs and very persons separate from the corporation. And not liable for what the corporation does.
Lest one think this is Chicken Little "the sky is falling" unwarranted cries by liberals, the reality is that while many conservatives on the religious right have been dancing their victory dance, Mr. Park notes that the very core of conservative politics -- the business community -- has been very pointedly, almost unnaturally quiet.
For instance, the U.S. Chamber of Commerce— the largest lobby in the country for big business -- has yet to chime in with one word. And even more notably: for all the outpouring of friends-of-the-court briefs in this case -- not a single Fortune 500 company (the very group who would be most anxious to support a business ruling before the Supreme Court) offered any opinion. Nothing. Complete, absolute silence. Zero.
When was the last time you saw the big business community silent over any issue that impacted them, let alone one that would become law by the Supreme Court. They must have felt caught between a rock and a hard place. Anxious to keep their corporate veil of protection, but not wanting to go against their own, fellow conservative base, anxious to deal a blow to Obamacare. In the end, silence won out. This wasn't a case of silence is golden, but rather dross.
This is not a case of "gloating." Of "ha, ha," the corporate veil has been punctured and now big business leaders are at risk." I think it's a terrible ruling for its consequences. For everyone, on all sides.
Beyond the Law of Unintended Consequences, there is another admonition that comes to the forefront, as well. Be careful what you wish for. You just might get it.
Robert J. Elisberg is a political commentator, screenwriter, novelist, tech writer and also some other things that I just tend to keep forgetting.
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