Vivek Ramaswamy—pharmaceutical entrepreneur, son of immigrants, Yale Law grad, Hindu, and political conservative—is a capitalist with a lot of strong criticism for big business today. According to Ramaswamy, “there’s a new invisible force at work in the highest ranks of corporate America” that “robs you of not only your money but your voice and your identity.” That force, as the title of his new book, Woke, Inc.,suggests, is the current politically correct emphasis on identity politics and liberal guilt generally referred to as “wokeness.” To counter this threat, he proposes a number of significant policy changes and legal strategies, ranging from insightful to alarming.
In Ramaswamy’s view, corporations that conduct anti-racist employee training seminars, publicly promote gender diversity, and pledge to curtail their greenhouse gas emissions are in all likelihood not interested in actually advancing the progressive social and environmental goals associated with those activities. They are probably attempting to hoodwink you, the honest consumer and shareholder, with feigned ethical concerns in an attempt to maximize the one thing they actually do care about: profit. Their social justice proclamations are merely a self-interested scam.
Ramaswamy is, of course, not alone in accusing big corporations of acting enlightened only as a marketing ploy. Diversity consultants Erin Dowell and Marlette Jackson’s Harvard Business Review 2020 article, “‘Woke-Washing’ Your Company Won’t Cut It,” documented the “outright outrage” over firms that, for example, call out the existence of racial injustice but don’t appear to take substantive action on the issue themselves. Arwa Mahdawi of The Guardian called out lazy and hypocritical “woke-washing” back in 2018. This charge echoes the older environmentally focused charge of “greenwashing” and the concept of “pinkwashing,” a similarly shallow and cynical attempt to elevate the concerns of LGBT consumers.
But Ramaswamy’s righteousness indignation would make more sense if he, like most other critics of woke-washing, actually believed in woke goals. As a conservative, he generally does not, which makes for an odd dissonance when he lambastes CEOs and asset managers for not really believing in those progressive goals themselves. If corporations are supposed to be focused on maximizing profit for shareholders rather than social goals anyway, why should we be upset that big corporations are less woke than they pretend to be? Isn’t that the preferable option?
As it turns out no, because in Ramaswamy’s view, even corporate America’s allegedly facile and shallow allegiance to progressive social goals is “quietly wreaking havoc on American democracy.” But Woke, Inc. is short on examples of why that is the case. Companies are supposedly “us[ing] their market power to make moral rules.” CEOs allegedly “tell people what they’re supposed to think about moral questions” by “issuing moral fiats from Davos.”
But Ramaswamy must have a hair trigger for being oppressed by the moral imperiousness of corporate executives. It’s not clear how the average consumer or citizen is compelled to any action by the CEO of Netflix promising to invest $100 million in Black-owned financial institutions or U.S. Bank sponsoring Pride Month celebrations. Some shareholders and customers might not like this, and they’re perfectly justified in either ignoring it or refusing to buy what the company in question has on offer (as many politically aware consumers already have). Given the controversial nature of the race, gender, and sexuality-based topics at issue, large corporations would likely be much better eschewing the woke-signaling and going back to neutral. But their choice to step into the fray does not, on its own, “force” anyone to endorse the same positions. Being annoyed is not the same as being compelled.
But, like many conservatives, Ramaswamy is also concerned about more specific permutations of corporate wokeism, like alleged disparities in content moderation on social media platforms. It’s a longstanding beef (among Trump supporters in particular) that Twitter suppresses right-wing voices while allowing left-wing accounts to violate the platform’s supposedly neutral rules. Nothing is this book is likely to change anyone’s position on that, though Ramaswamy notes that eliminating Section 230 of the Communications Decency Act, a frequently proposed course of action, is not the solution, writing that such a move “may even do more harm than good.”
It turns out that the one weird trick to solve the problem of Twitter unfairness is neither Section 230 reform nor more robust antitrust enforcement, but the designation of Big Tech companies as state actors. In a January 2021 op-ed for The Wall Street Journal, Ramaswamy and Yale Law Professor Jed Rubenfeld laid out the argument, recapitulated in the book, that “Google, Facebook and Twitter should be treated as state actors under existing legal doctrines.” The Supreme Court, in Norwood v. Harrison (1973), has made it clear that the government may not “may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.” According to Ramaswamy and Rubenfeld, “That’s what Congress did by enacting Section 230.”
To illustrate this relationship, they cite recent complaints from Democratic members of Congress who have attempted to pressure Google and Facebook into changing their content moderation policies. They then cite subsequent corporate decisions consistent with those demands as evidence of the unholy deal, and offer a parallel scenario on a different issue: “Suppose a Republican Congress enacted a statute giving legal immunity to any private party that obstructs access to abortion clinics.”
That partisan counterexample might be more alarming if it tracked anywhere close to the relevant legislative history of content moderation. The House Speaker during the 104th Congress—which passed the Communications Decency Act as part of Telecommunications Act of 1996—was Newt Gingrich. The Senate Majority Leader at the time was Bob Dole. While the final bill was signed into law by Democratic President Bill Clinton, Section 230 was the product of “a Republican Congress.” Are we supposed to imagine that the Republican leadership of Congress at the time—Newt Gingrich, Dick Armey, Tom DeLay, Bob Dole, Trent Lott, and Strom Thurmond—all somehow conspired on selling out free speech so Big Tech companies would one day silence conservatives?
We don’t need to reach that far back to question the reasoning of the doctrine of Section 230 as state actor. Ramaswamy presents it as obvious that Big Tech CEOs caved to the demands of members of Congress like Rep. Cedric Richmond (D-LA) and Rep. Jerrold Nadler (D-NY) in 2019, fearing the imposition of unwanted future regulations. But if they were so responsive to the demands of two outspoken Democratic members of Congress then, why were they not similarly responsive to Republicans before 2019, when the GOP controlled both Houses of Congress and the White House? Were they somehow immune to the threats—sometimes explicit and aggressive—of Sen. Ted Cruz (R-MO), Rep. Jim Jordan (R-OH), and President Trump himself?
Whether federal courts will run with the proposed recognition of Twitter and Google as state actors will be a matter for the nation’s judges to decide. But Ramaswamy has another major proposal for remedying the depredations of woke capitalism. In his second legal gambit, he suggests that the Civil Rights Act of 1964 be extended to cover employees’ social and political views, such as in the case of Google engineer James Damore, who was infamously terminated after sharing a memo examining research on gender disparities in STEM fields.
Ramaswamy cites the Supreme Court’s opinion in Bostock v Clayton County (2020), which found that Title VII of the Civil Rights Act of 1964 protects Americans against discrimination based on their sexual orientation and gender identity. Under Bostock, even though the original law does not mention gay or transgender people, a straight man married to a woman would suffer no consequences from an anti-gay hiring policy, but a man married to a man would, so such treatment is covered under the 1964 Act’s provisions forbidding disparate treatment “because of sex.”
Ramaswamy then suggests that current protections for religious conscience could be expanded using the reasoning from Bostock. Title VII also forbids employers from firing someone because of their religion, including their lack of a professed religion. So, if a religious employee is protected from saying something anti-woke related to their religious faith, a non-religious person should receive the same protections, since treating that person differently for the same actions would consitute discrimination on the basis of religion, which is analogous to the forbidden conduct in Bostock.
The argument goes even further, as Ramaswamy suggests, if woke ideology itself is considered a religion. In this view, Damore might have had the basis for a religious discrimination lawsuit against Google, under the assumption that he was fired for not professing a belief in the church of secular humanist woke-ism. Ramaswamy argues that, under current religious freedom precedent and Equal Employment Opportunity Commission (EEOC) policy, woke political beliefs are consistent with the federal government’s longstanding definition of religion. As he says, “Like Christianity or Islam, wokeness purports to provide a system of beliefs that explains everything.”
There’s no brighter and more joyous gleam than in the eyes of a conservative turns left-wing talking points against his foes. And Ramaswamy’s self-satisfaction at turning a pro-LGBT court decision into a pro-James Damore one comes across in the text. There are a couple of concerns with all of this cleverness, however, including the obvious one that, unlike Christianity and Islam, wokeness has no unified theology or acknowledged apostles. An employee can sue an employer who attempts to evangelize her into accepting the tenets of Christianity. Can that same employee effectively object to being evangelized by a religious belief system that the employer refuses to admit even exists?
Ramaswamy cites supposedly-secular fringe belief systems called “Creativity” and “Onionhead,” which were judged to be religions under EEOC policy, but the importance difference was that even those wacky ideas had an identifiable set of beliefs and people affirmatively promoting them by name. Whether any judges or EEOC commissioners will consider that to be true of wokeness is unclear.
Whether conservatives and libertarians should want to open a new employment law front in the culture war is a larger question. Ramaswamy, like some other conservatives today, is abrupt and dismissive when it comes to small-government critiques of his strategy; the libertarian perspective on how market incentives can counteract discrimination is, he writes, “irrelevant.” Since we’re stuck with existing antidiscrimination law, his argument goes, we might as well expand it in a way that will benefit the anti-woke among us.
But will a massive increase in workplace discrimination lawsuits and employer liability make us better off? It is easy to imagine employees weaponizing these supposedly principled protections for reasons that have nothing to do with either religion or politics. For example, conservatives and libertarians have lamented for decades that federal civil service rules allow thousands of government employees to draw a paycheck while doing little work because they have mastered the art of filing frivolous lawsuits and union complaints. Do we want to hand such people a new set of tools to use against every private employer in the country?
Ramaswamy mentions a handful of high-profile firings that have galvanized anti-woke activists in recent years—including Damore, literary agent Sasha White, and Emmanuel Cafferty, the Hispanic truck driver fired for allegedly making the “OK” hand sign in a viral video—but he doesn’t make a case that these are representative of widespread employment trends, or that there more people are fired in the United States for being right-wing than being left-wing. It may be that a large number of Americans are unfairly fired for transgressing unreasonable demands of identity politics, but we don’t hear about it beyond some infamous anecdotes.
Ramaswamy is clearly smart and passionate and has an impressive background in business, so it’s surprising he doesn’t take more time to mention the actual policies being implemented by government agencies that would directly force the adoption of socially liberal policies, like environmental, social, and governance (ESG) regulations from the Securities and Exchange Commission or attempts by central banks to throttle capital for fossil fuel projects.
At times Ramaswamy’s own assessment of the state of American society seems to undercut the case that cultural complaints like Twitter unfairness, to the extent that it exists, is a serious threat to the nation’s future. In a chapter about divisiveness, he writes that social media companies merely “provide echo chambers where like-minded people reinforce each other’s biases.” Yet, a 2019 Pew Research Center analysis found that the number of people who tweet about politics was relatively small: 97 percent of tweets about national politics were generated by only 10 percent of active users. So, if political Twitter is just two relatively small, opposing camps posting furiously without persuading anyone, why exactly is this such a worry for conservatives? Twitter can stop you from retweeting a link to a New York Post article about Hunter Biden’s laptop, but they can’t stop you from going to the newspaper’s website and reading it.
Woke, Inc. makes some important points about the misguided nature of ESG investing, the folly of attempting to inject politics into business, and what we can learn from previous economic crises: that socially driven economic policy risks creating asset bubbles. Worries about short-termism in investing doesn’t require us to reinvent the rules of global capitalism. And it’s definitely a threat when business leaders use their influence “to implement radical agendas that Democrats could never pass in Congress.” But the most important concern is the possibility the government forcing every market participant to comply with one particular policy.
The more broad-based social worries—that American society is trending in a direction we don’t like or recognize, or that CEOs aren’t like the pinstripe-wearing avatars of our youth—are valid, but they aren’t necessarily amendable to litigation or reform via legislation. The strongest argument against the progressive social agenda has always been not that it endorses the wrong goals (although it frequently does), but that it doesn’t work in the first place. Progressive social reform policies helped to create generations of welfare dependency, family breakdown, poor educational outcomes, and stunted economic growth. Are today’s conservative activists so certain that fairness for MAGA Twitter is worth going down the same path of attempting to reverse-engineer society from the top down?