The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Goodbye to Doux Commerce

Corporate America today doesn't avoid political fights. It seeks them out.


The year 2021 is not even half over, and already corporate America has intervened in several high-profile political controversies. Take just the most recent. Last month, hundreds of executives and companies released a public letter in the New York Times and the Washington Post condemning "measures that restrict or prevent any eligible voter from having an equal and fair opportunity to cast a ballot." No legislation was specified, but the letter obviously related to controversies in Georgia, Texas, and other states that have adopted or are considering Republican-sponsored bills that critics, mostly Democrats, say discriminate against minority voters.

Put aside for a moment the merits of the debate. A debate between two political parties on legislation that relates to the electoral process is about as partisan as you can get. It is precisely the sort of debate that, according to classical liberalism, the marketplace should exclude. According to the doux commerce thesis, the market encourages people to set aside debates about big questions–partisan, religious–in order to make money. Why debate politics and religion with your customers, when doing so can get in the way of a good deal? The market, according to liberal theory, should be a neutral, politics-free zone.

So why is corporate America so invested in politics today? (Corporate America mostly intervenes on the progressive side, though some firms take conservative positions, and there are signs a backlash against progressive corporate politics may be underway). Over at the First Things site, I argue that the reason is because the doux commerce thesis was always wrong, or at least overstated. In an era as politically polarized and saturated as ours, one has to expect that politics will eventually pervade the market, too:

All this is happening because, contrary to the doux commerce thesis, people do not easily check their values at the door when they enter the marketplace. And in a society as evenly divided and politically saturated as ours, it's only natural that many people will want the firms for which they work or with which they do business to reflect their side in public debates. "Employees today…want to know what you stand for," one CEO recently told the Wall Street Journal. That goes for customers, too. In fact, firms may no longer have the option of staying silent on public controversies, since customers increasingly expect corporations to have political and social commitments. "[I]n these fraught times," a corporate lawyer recently explained at Harvard Law School's Forum on Corporate Governance, customers often construe silence on a political controversy as itself "a statement."

Liberalism depends for its success on habits of mind that liberalism itself cannot create. The doux commerce thesis works fine where people mostly agree on public controversies, or where people believe they can safely remain indifferent to them. In a society like ours, though, where views are polarized and politics is everywhere, it is naïve to think the market will be an exception, or that commerce will somehow cause people to forget about their deep disagreements. Until America reaches a new social equilibrium, our market is likely to be as contentious as everything else.

You can read the whole essay here.