Corporations Embracing ESG Must Lose Their Legal Protection

Authored by Bruce Abramson via RealClear Wire,

ESG, an acronym for Environmental, Social, and Governance, is everywhere. If you work for, advise, invest in, regulate, study, or otherwise care about one or more corporations, you’ve likely encountered the term. Consultancies, banks, investment funds, managers, governments, and international organizations trip over themselves touting their ESG scores and credentials.

So what is ESG, and why should we care?

Though the term calls for incorporating concern with global warming (“E”), systemic racism (“S”), and other “woke” priorities into corporate governance (“G”), specifics can be elusive. The basic effect, however, is clear. ESG’s redefinition of “the corporation” threatens to undermine the stock market, the global economy, and large swathes of American law.

Its radicalism is hardly coincidental. ESG is an outgrowth of “stakeholder capitalism,” a theory first forwarded decades ago as an alternative to “shareholder capitalism.” Its earliest advocates thought that corporations whose sole purpose is to serve their owners—or shareholders—are cold and uncaring. Shouldn’t corporations also care about their employees, customers, neighbors, and all others whose lives they touch?

Under stakeholder capitalism, those people would gain a say over corporate decision-making. Under ESG, if all human activity affects problems like climate change and systemic racism, then all corporate decisions should incorporate such concerns. Corporations operating under this stakeholder model are thus a different species from the familiar shareholder corporation.

But corporations don’t exist in nature, and they don’t evolve. They’re legal constructs, subject to certain assumptions and constraints. Their legal and financial treatment is designed to make sense given the consequent model of corporate behavior. Alter the conceptual model of the corporation, and the bases of both corporate law and corporate finance collapse.

Shareholder corporations answer to a single moral imperative: maximize shareholder value. Whether you like the implicit morality or not, the behavior of entities following a single rule is predictable. Every existing element of both corporate law and corporate finance assumes that corporations are predictable profit-maximizers.

Stakeholder corporations undermine that assumption. Though stakeholder corporations can return value to shareholders, any corporation claiming proudly to consider multiple potentially conflicting tradeoffs cannot be assumed to work toward maximizing shareholder value. Stakeholder corporations are more complex entities than shareholder corporations—requiring corresponding complexity in their legal and financial treatment.

The World Economic Forum’s Klaus Schwab, arguably the most influential and prominent advocate of the ESG movement, was an early champion of stakeholder capitalism. In his recent Great Reset and Great Narrative books, Schwab shows how the stakeholder model, filtered through ESG, will centralize decision-making authority among a small cadre of corporate leaders and government bureaucrats—who, unencumbered by annoying shareholders or voters, will be free to focus on the common good.

For those of us who wish to prevent ESG’s takeover of the corporate landscape, corporate law offers a promising avenue of counterattack. The predictability of shareholder corporations earned them a simplified legal treatment subject to many helpful presumptions. Proud of their “evolved” ethical codes, stakeholder corporations have announced that such presumptions are misplaced.

Fair enough. Let the law take them at their word. Litigation and legislation must sever the legal treatment of stakeholder corporations from that of shareholder corporations.

Perhaps the cleanest—and potentially the most consequential—place to start is the Business Judgment Rule. This legal presumption allows every corporate defendant to arrive in the courtroom asserting that its decisions—including those that prove disastrous for shareholders—were made in the service of maximizing shareholder value. Plaintiffs—whether employees, shareholders, or business partners—complaining about corporate actions that failed to deliver bear the burden of proving bad faith, rather than mere errors in judgment.

The Business Judgment Rule makes sense when applied to shareholder corporations—but not to stakeholder corporations. Any corporation with an ESG statement has explicitly proclaimed that it will subvert some shareholder interests in favor of pressing environmental or social concerns.

The campaign to restore shareholder capitalism would snowball from there. Stakeholder corporations shorn of such legal benefits would sue the lawyers and consultants who guided them away from the legally beneficial shareholder model towards ESG—assuming only that even the most woke American corporations still value their own corporate interests. The legal and consulting classes will get the message.

ESG will persist as long as corporate leaders view it as cheap virtue signaling, would-be overlords see it as a path to power, and lawyers and consultants can milk it for revenues. The best way to defeat ESG is to rely on the same self-interest driving its current embrace: if the costs of ESG become exorbitant and obvious, the entire edifice will fall.

Like all utopian schemes, ESG is an attack on global freedom and prosperity. If you’re really dedicated to improving the lives of all stakeholders, you should work for an end to ESG.

Bruce Abramson, PhD, JD, is the author of five books, most recently “The New Civil War: Exposing Elites, Fighting Utopian Leftism, and Restoring America” (RealClear Publishing, 2021). He is president of the strategic consultancy Informationism, Inc. and a director of the American Center for Education and Knowledge.