Corporate Crime Is Not 'Civil Disobedience'

Thomas McGarity

May 26, 2015

Cross-posted with ACSBlog.

The Wall Street Journal recently devoted nearly two pages of its Saturday Review section to an editorial by Charles Murray of the American Enterprise Institute urging American corporations to violate laws that they deem to be “pointless, stupid or tyrannical” as acts of civil disobedience.  The article, which is a capsule summary of his recently published book titled By the People: Rebuilding Liberty Without Permission,” betrays a profound misunderstanding of the concept of civil disobedience and a deplorable contempt for the laws that Congress and state legislatures have enacted to protect their citizens from corporate malfeasance.

This is, of course, the same Charles Murray who has made millions of dollars writing poorly documented books like The Bell Curve and Losing Ground, which were designed to allow conservative politicians to feel good about reducing welfare for the poor, limiting immigration from Latin America, and eliminating affirmative action policies.  If for no other reason than that Charles Murray is one of almost-candidate Jeb Bush’s favorite authors, his newest salvo bears close scrutiny.

The essential underlying premise of the article is that the Code of Federal Regulations is chock full of senseless regulations, the violation of which could not possibly lead to any actual harm to anyone.  This premise is an article of faith for critics of federal regulation, but it has little basis in fact.  The one actual regulation he cites (an OSHA standard requiring railings for exposed stairway floor openings to be 42 inches high) may be far more detailed in its specification than it needs to be, but it is by no means senseless.  As Murray recognizes, it is intended to prevent workers from precipitous falls.

Murray’s big idea is for companies in various regulated industries to get together and agree to engage in acts of “civil disobedience” by consciously violating regulations they deem senseless.  He points out that regulatory agencies have become so debilitated that they do not have nearly enough inspectors to detect violations of any of their regulations.  The agencies therefore depend to a great extent on voluntary compliance with their regulations.  Murray suggests that if companies just quit voluntarily complying with what they deem to be pointless, stupid or tyrannical regulations, the agencies would probably not penalize them (just as the traffic cop stationed next to a crowded freeway does not try to pull over speeders who are traveling with the flow of traffic), and the world would be a better place.  Those violators that the agencies did prosecute should fight the government tooth and nail to send the message that corporate America will no longer tolerate the injustice of senseless regulation. What’s more, he proposes that as part of this conspiracy to break the law, the corporations should create “defense funds” to which they’d all contribute, to pay the legal fees of the ones who get caught.

Murray’s idea is a gross perversion of the concept of civil disobedience as the nonviolent violation of a law that the violator deems to be unjust and the willingness to suffer the legal consequences to demonstrate the law’s injustice.

As a student in the 1960s and early 1970s, I admired the brave participants in the lunchroom sit-ins, the unpermitted street demonstrations, and the freedom rides in the South as they peacefully and with a spirit of self-sacrifice brought attention to legally enforced segregation by breaking  laws that they (and most Americans) deemed unjust.  They were dead certain they would be punished for their violations.  I did not admire the radicals who set fire to the dean’s office at my university in the dead of night to protest the Vietnam War.  They were consciously breaking the law to condemn what they (and many Americans) deemed to be an unjust war, but their method was hardly peaceful, and they were unwilling to accept punishment for violating the law.

In urging corporations to violate the regulations that protect public health, safety and the environment, and then hide behind a banner of civil disobedience, Murray is just rationalizing criminal behavior. There’s no moral high ground to be claimed by breaking laws and then scurrying off like an arsonist in the night.

It is, in fact, not at all clear that corporations may lawfully commit true civil disobedience under corporate law, because a corporate board has fiduciary obligations to its shareholders that may be inconsistent with a plan to pay criminal penalties after knowingly violating the law just to make a point about senseless regulations.  If the purpose of a corporation is to maximize shareholder value, it is unclear how paying a fine for a knowing violation of the law with predictable damage to the corporation’s reputation is consistent with that purpose.

Finally, Murray’s invitation to companies to violate laws that they consider to be pointless, stupid or tyrannical by no means ensures that the laws that they violate will not be laws that are genuinely protective of workers.  The officers of some companies deem most federal regulations that get in the way of maximizing profits to be pointless, stupid or tyrannical. 

Take, for example, the Murray Energy Company.  Owned by Robert Murray (no relation to Charles), this medium-sized coal mining company had received 324 citations at its Crandall Canyon mine near Huntington, Utah, 107 of which were for “significant and substantial” violations of the Mine Safety and Health Act, in the two years before the ceiling of the mine collapsed.  The local Assistant Attorney concluded that the company had been “operating as if there was no law.” 

Addressing the press at the scene of the accident, Murray made it abundantly clear that he regarded nearly all federal regulations governing the coal industry to be pointless, stupid and tyrannical.  His “civil disobedience” killed six miners and three rescue workers, and was neither nonviolent nor principled.  But Charles Murray’s big idea invites Robert Murray to justify his company’s violations of the Mine Safety and Health Administration’s standards, which continue to this day, as acts of civil disobedience aimed at exposing senseless federal regulations.

In the end, Charles Murray is no Henry David Thoreau, and Robert Murray is no Mahatma Gandhi.  American companies should not fool themselves into thinking that breaking laws designed to protect their workers, their consumers and the environment contributes to the greater good. They’re just in it for the money, and apparently some of them are willing to break the law to get more of it.

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