The Party in Power Is Directing a Corporate Conspiracy against Its Political Opposition

As 100-plus corporate leaders gather for political activism on voting laws, the top Democratic lawyer is trying to pull the strings.

T here are fair and vigorous debates to be had over the limits of corporate political activism. At what point does free speech become anti-democratic bullying? At what point is the waging of cultural crusades a dereliction of the duty of corporate managers to the best economic interests of their shareholders? Wherever you draw that line, it should be particularly worrisome when it is done at the behest of the ruling party to attack the integrity of our election system itself to the intended disadvantage of the opposition.

The president, and his party’s lawyer, are urging multiple major corporations to combine to restrain trade for the purpose of making it harder for its political opposition to win elections, and using lies to restrict the president’s democratically elected critics from passing laws. If we saw this in another country, we would recognize it as a menacing step.

This is happening now, in the United States, in the fight over the Georgia election law. It appears likely to happen again in other states considering similar laws. As the Washington Post reported this weekend:

More than 100 chief executives and corporate leaders gathered online Saturday to discuss taking new action to combat the controversial state voting bills being considered across the country, including the one recently signed into law in Georgia. Executives from major airlines, retailers and manufacturers — plus at least one NFL owner — talked about potential ways to show they opposed the legislation, including by halting donations to politicians who support the bills and even delaying investments in states that pass the restrictive measures, according to four people who were on the call. . . . Leaders from dozens of companies such as Delta, American, United, Starbucks, Target, LinkedIn, Levi Strauss and Boston Consulting Group, along with Atlanta Falcons owner Arthur Blank, were included on the Zoom call.

The Wall Street Journal identified the CEO of Merck as one of the leading voices, and noted a parallel effort among large law firms. The Post described this as “an aggressive dialing up of corporate America’s stand against controversial voting measures nationwide, a sign that their opposition to the laws didn’t end with the fight against the Georgia legislation passed in March.”

In Restraint of Trade

Free markets are all about voluntary exchanges between willing buyers and willing sellers. The point of so many major businesses coordinating their activity is to thwart the power of citizen boycotts of companies when they disapprove of those companies’ acts. If consumers (or the states, in their own roles as consumers) see such a broad, united front, they will be less willing and able to organize themselves to impose costs on the companies involved for participating in a dishonest, anti-democratic campaign. It is one thing to boycott a single company, after all; it is much harder to boycott a hundred of the biggest ones simultaneously.

As Adam Smith — no critic of free-market capitalism — once wrote:

People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.

When the heads of major businesses with significant market power gather to agree on steps like collectively “delaying investments,” they are on dangerous ground for society, and sometimes for themselves.

Legally, the Supreme Court has had to harmonize two areas of law. The Court ruled back in 1959 that group boycotts among competitors are per se violations of the Sherman Antitrust Act. Per se violations are the nuclear weapons of antitrust law: They declare certain categories of conduct unlawful even without the need to prove that the companies involved had monopoly market power or had an unreasonable anticompetitive effect. But little in the law is ever that simple, especially in antitrust law. The Court soon after clarified, under the Noerr-Pennington rule (named for two cases in the 1960s), that the First Amendment right to petition the government for redress of grievances protects corporations lobbying the government, even if the intent of that lobbying is to obtain anticompetitive advantages. In NAACP v. Claiborne Hardware, in 1982, a case arising from a black boycott of white businesses in Mississippi, the Court also found that participation in a citizen boycott can be protected under the First Amendment.

But in 1990, in Federal Trade Commission v. Superior Court Trial Lawyers Association, the Court explained why Noerr-Pennington immunity did not protect lawyers who organized a boycott of D.C.’s indigent-defense program in order to pressure the government to raise the rates it paid them:

No violation of the [Sherman Antitrust] Act can be predicated upon mere attempts to influence the passage or enforcement of laws, . . . even if the defendants’ sole purpose is to impose a restraint upon the trade of their competitors. . . . But in the Noerr case the alleged restraint of trade was the intended consequence of public action; in this case the boycott was the means by which respondents sought to obtain favorable legislation. The restraint of trade that was implemented while the boycott lasted would have had precisely the same anticompetitive consequences during that period even if no legislation had been enacted. . . .The Noerr [immunity] doctrine does not extend to every concerted effort that is genuinely intended to influence governmental action.

The Court found that the attorneys in SCTLA were in a different position from the black citizen-boycotters in Claiborne Hardware:

Those who joined the Claiborne Hardware boycott sought no special advantage for themselves. They were black citizens in Port Gibson, Mississippi, who had been the victims of political, social, and economic discrimination for many years. They sought only the equal respect and equal treatment to which they were constitutionally entitled. They struggled to change a social order that had consistently treated them as second class citizens. . . . Equality and freedom are preconditions of the free market, and not commodities to be haggled over within it. The same cannot be said of attorney’s fees.

Undoubtedly, to the extent that some of their businesses compete with each other, the corporate executives on Saturday’s call would argue that they are seeking no advantage for their companies, and it is more likely than not — even in the perennially unpredictable forest of antitrust rules — that this argument would successfully immunize them from legal liability under federal antitrust law (state laws can be another story). But they would be doing so by openly admitting that they are wielding the resources of major corporations for no economic benefit to the shareholders, to whom they owe a fiduciary duty as stewards of corporate assets.

Corporate Tools of Federal Power

If this were simply a matter of corporate conspiracy against honest and orderly elections, the discussion would end there. It does not, though, because these are not just independent citizens petitioning the government. Almost all of them have business interests in favorable treatment by the federal government, and their collective action will curry favor with the party that runs all of its elected branches. Democrats, after all, currently control the White House, the House, and the Senate; they also hold both of Georgia’s Senate seats, and won the state in the last presidential election. Nobody on the call could have been unaware of whose side they were taking.

Democrats do not actually believe their own “Jim Crow” rhetoric or their lies about what the law does, but they argue openly that the Georgia law would make it easier for the opposition party to win elections. Democrats thus see this as a zero-sum partisan power struggle, and are enlisting their business allies to crush the political opposition.

A crucial link in this chain of events is the Democrats’ high-profile elections lawyer, Marc Elias. Joe Biden, speaking from the bully pulpit of the presidency, has already publicly voiced his support for corporate action against Georgia for passing its election law. But as Biden, his press secretary, and Georgia Democrats have grown increasingly gun-shy about being seen to direct this effort, Elias posted marching orders Friday at his site “Democracy Docket” under the headline, “The Business Community Must Act.” It is unlikely that the timing of these public directions were coincidental to Saturday’s call. Among his dictation to corporations seeking favor with his Democratic clients:

Don’t just speak out, take action as well. Corporations are important stakeholders in their states. They create jobs and drive economic growth. Now is not the time to minimize your influence over state legislatures and other public officials. Use your existing lobbying power and influence to fight suppressive voting laws and to advocate for voting. If large corporations made clear to local government officials that voting rights will define the relationship between them and the state, it would make a real difference in what bills are passed and which ones are signed.

Elias also urges companies to use their coordinated power across the map to dictate terms to states that do not follow the Democratic Party line on elections administration:

Recognize that threats to voting and democracy anywhere in America are a business concern and require action. Don’t narrow your geographic lens to only those places where you are headquartered or where the national media is focused. Georgia…is not the only state enacting laws worth opposing, and businesses need to take the same actions against the voter suppression law enacted in Iowa or the bills being advanced in Arizona, Florida, Missouri, Montana, New Hampshire and Texas . . .

He also openly solicits financial and in-kind contributions to support the Democrats’ side in litigation:

Finally, do not be afraid to join the legal fight. For some companies this will mean providing donations and grants to organizations combatting voter suppression. For others, however, it should mean offering legal support by way of trial evidence and amicus briefing. Most large businesses have sophisticated legal departments that are experienced at gathering information and filing in court. When it involves their business interests, companies easily find the courthouse door. It is time they lend this muscle to voting rights. Providing litigation support, witnesses testimony, expert analysis, and data at the trial level can mean the difference between winning and losing. Filing amicus briefs in support of voting rights at all levels can also make a big difference in how judges view stakes of a case.

The Democrats’ Docket

Who are Marc Elias and Democracy Docket, you ask? A partner at Perkins Coie, Elias is so deeply entwined with the power structure of the party in power that a 2014 profile was entitled, “Marc Elias Represents Nearly Every Dem. Senator” and continued that his law firm’s “client list also includes the Democratic Congressional Campaign Committee, the Democratic National Committee and the Democratic Governors Association.” Roll Call then called him “the Democrats’ go-to attorney.” He worked for a lawyer who became White House counsel under Barack Obama, and “worked extensively with the DCCC drafting ethics and Federal Election Commission complaints” against Newt Gingrich.

Elias’ own bio on the Perkins Coie website touts how closely he is identified with the Democratic Party:

Marc represents dozens of U.S. senators, governors, representatives and their campaigns as well as the Democratic National Committee, Democratic Senatorial Campaign Committee, Democratic Congressional Campaign Committee, National Democratic Redistricting Committee, Priorities USA, Senate Majority PAC and House Majority PAC. Marc served as general counsel to Hillary Clinton’s presidential campaign in 2016 and John Kerry’s presidential campaign in 2004 . . .

In 2016, Marc successfully represented Governor Roy Cooper in the North Carolina post-election and recount process. He served in the same role for Attorney General Mark Herring in the Virginia attorney general’s successful recount in 2013. Marc also served as lead counsel for Senator Al Franken in the 2008 Minnesota senate election recount and contest.

His bio is loaded as well with media quotes calling him a “Democratic power lawyer,” a “Democratic election mega-lawyer,” a “Democratic super lawyer,” “arguably one of the most influential of unelected Democrats in Washington,” “the most prominent election lawyer in Democratic circles,” and “an indispensable figure in the party.” As The Hill observed in 2018, Elias “occupies a unique and virtually unmatched position within the Democratic legal universe,” and the Democrats keep a plane ready to fly Elias wherever they need him on or after Election Day. Elias’ work for the Democrats is massively lucrative:

[In 2020,] Perkins Coie billed the Democratic National Committee, the Democratic Senatorial Campaign Committee, and the Democratic Congressional Campaign Committee a combined total of $27 million, more than twice the amount it billed the same organizations and Hillary for America in 2016.

Elias’ reach and visibility only grew in 2020, when he represented Biden’s campaign and virtually every arm of the Democratic Party in court while making the rounds of Democrat-friendly cable TV networks and accruing nearly half a million Twitter followers. He was the lead lawyer in nearly every court fight over the 2020 election.

Elias’ work is more consistent in its partisanship than in any sort of principle — he does what Democrats need. The Florida recount and his work for Harry Reid led him to see his cases as “extensions of the campaigns themselves, in which battles over media narratives could determine the ultimate winner of a contest.” He may argue that election fraud is a myth, but as his own bio brags:

In 2019, Marc successfully represented Democratic candidate Dan McCready during an election fraud hearing that resulted in North Carolina ordering a new congressional election in NC-9 — the first and only time a state has set aside a federal election as a result of fraudulent activity.

In some quarters, Elias is “perhaps best known for his role in the Russia collusion story. As the attorney for both the DNC and Hillary Clinton campaigns, he helped bankroll research by Fusion GPS that created the now-discredited ‘Steele dossier’ used to obtain FISA warrants to spy on the Trump campaign during the 2016 race.” That effort was directly bankrolled by the Democrats: “Elias told the U.S. House of Representatives’ Permanent Select Committee on Intelligence that the Clinton campaign and the DNC paid Fusion GPS, through Perkins Coie, more than $400,000 to conduct the opposition research.” He represented Iowa Democrat Rita Hart in an ultimately failed bid to get House Democrats — his own clients — to throw out the results of her election loss. He represented another losing House Democrat, Anthony Brindisi of New York, in claiming that his election had been stolen by voting machines. He and his team are currently fighting sanctions imposed by a federal court in Texas “for filing a motion in a Texas voting rights lawsuit without mentioning they had unsuccessfully filed a nearly identical motion last September.”

Nor are his statements on the Democracy Docket platform plausibly shrugged off as separate from Elias’ role as the Democrats’ mouthpiece. Who funds Democracy Docket, a Virginia LLC that is separate from Perkins Coie? That, we do not entirely know, although it publicly solicits funds through ActBlue, the main public platform for the Democrats’ fundraising, and the Democracy Docket website is linked directly on Elias’ Perkins Coie bio page. If his work on Democracy Docket is not actually billable work for his Democratic clients, it surely reflects the public profile of that representation, serving his clients’ interests. It is synonymous with Elias, as Elias is synonymous with the Democratic Party.

In short: No reader of Marc Elias’ bio or press notices, or observer of his client list, would see him simply as a random hired gun who speaks only for himself. When he tells corporate America what it “must” do, every boardroom in the country knows that he is expressing the desires of the party that runs both the White House and Congress. And when those companies gather to carry out those directions to take the Democrats’ side in a nakedly partisan dispute over elections, they are seeking favor with those in power against the domestic political opposition. You can call that a lot of things, but it is very far removed from the operation of a free market in goods, services, or ideas.

Correction: An earlier version of this article stated that Marc Elias had worked for Al Gore in the Florida recount. Mr. Elias states that he did not.