The post-midterms playbook for America Inc
Robust institutions have been and always will be the bedrock of US capitalism
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There were at least two victories in Tuesday’s US midterm elections. The first is obvious: the Democrats grabbed control of Congress, propelled by a protest vote against President Donald Trump and the organising force of grassroots networks such as Indivisible, with its “No Kings” campaign.
The second victory was for the rule of law. This is less headline-grabbing than the “blue wave”. But it matters at least as much for investors and business leaders as the congressional count — if not more, given the degree to which Trump has subverted legal norms in recent years, and the failure of parts of the corporate world to call him out.
Think about it. During Trump’s time in office, there has been widespread concern that the rule of law has been under attack. The president has lambasted courts that challenged him (over tariffs, for example); he has tolerated corruption; denied the 2020 election results; and filed three dozen cases around the midterm elections, seemingly in a bid to shape these.
Indeed a whopping 94 per cent of federal judges, elite lawyers and law professors said that Trump was a bigger threat to the rule of law in this term than in his previous administration (for conservative lawyers, it was 73 per cent). Only 30 per cent still viewed the Supreme Court as truly impartial; 80 per cent said that Trump officials were flouting courts; nearly a fifth feared that law firms were self-censoring; and almost half of federal judges were “concerned about harassment if they rule against the federal government”. This is shocking.
Of course, the White House denies it wants to undermine the judiciary — and insists it is actually the Democrats who are the threat. Hence, they have dismissed prior investigations into Trump as “lawfare” and last week the Department of Justice pledged to send 1,000 monitors to the polls, allegedly to combat Democrat interference.
However, Trump’s rejection of the 2020 election results sowed such alarm that earlier this year a group of legal scholars, including Norm Eisen, quietly organised a bipartisan pro bono network of lawyers who were ready to file suits to protect voting — if challenged.
The good news is that their services were barely needed: not only did the courts toss out Trump’s prior legal challenges to the electoral process, but there were few reported voting irregularities, it seems. Thus far, Trump seems to have accepted the outcome. Voting law has triumphed.
And Democrats now want to go further in defence of legal norms by investigating the alleged “professionalised corruption” around Trump’s circle. A House committee claims there are some $9.7bn in illicit gains. Democrats have vowed to investigate allegations of corruption and self-dealing in the Trump administration.
That will make some in America’s C-suites wince. After all, no corporate board wants to face a blitz of subpoenas from prosecutors trying to create a paper trail around the Trump team’s dealings with business. At best, it is a distraction, and at worst it may put some executives in investigators’ crosshairs.
But, ugly or not, the call for tighter legal standards and accountability is one that corporate leaders should welcome. Respect for the rule of law is a key reason why American capitalism has flourished; it is the bedrock for its capital markets.
And as the economists Simon Johnson, Daron Acemoglu and James Robinson have shown in their Nobel-prize-winning research, countries that embrace corrupt authoritarianism typically have lower growth rates and less innovation than those that respect the law. In other words, institutions matter.
In any case, the C-suite has a strong political self-interest in backing this campaign. One way to make sense of the blue wave was that it was a howl of populist rage against elites in a “K-shaped” economy where rich asset owners are winning at the expense of ordinary workers. Indeed, just before the vote it emerged that the proportion of corporate profits flowing to capital, relative to labour, hit a record high.
If this trend continues, it could spark metaphorical — if not actual — civil war, according to Ray Dalio, founder of the Bridgewater hedge fund, particularly given anger about perceived corruption.
So future historians might yet view these midterm elections as a safety valve for the political pressure cooker that is America today — a chance to let off some steam. At least they will if Democrats can do anything to give more gains to workers, and to create a widely held sense that there is a fair legal framework that works for all.
Can they?
A lot depends on whether the Democrats can remain unified. But what is clear is that those running America’s richest companies need to back the drive to reinforce the rule of law — particularly since so many of them have been shamefully quiet about corruption over the past two years. If they don’t, expect pitchforks.


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