In 1828, Congress enacted a tariff on European goods, which basically benefited the northern states and hurt the southern ones. To get a sense of how badly the North and South split on this issue, just google “Tariff of Abominations.” President Andrew Jackson supported the tariff, and he believed that federal laws, whether states agreed with them or not, were the law of the land. Vice President John Calhoun (a South Carolinian) disagreed violently about both the wisdom of the tariff and a single state’s ability to nullify federal law. Calhoun thought that it violated local “liberty” to have the federal government enact laws that bound the states against their will.
Thus, at a dinner in 1830 to celebrate an anniversary of Thomas Jefferson’s birth, Jackson proposed a toast: “Our Union: It must be preserved.”
Calhoun followed up with another toast: “The Union — next to our Liberty, the most dear.”
Now that’s a president and a vice president who publicly disagreed with each other.
A couple of weeks ago, when Secretary of Defense Mark Esper had the temerity to suggest that maybe the American military should be used only sparingly against the American people, President Donald Trump was ready to fire him.
In today’s executive branch, that feels like dissent.
But those are the exceptions.
Most people are very reluctant to disagree with the boss: The boss is naturally likely to think that his or her ideas are good ones. The boss hears plenty of complaining about things that are happening within the organization, the boss doesn’t need to hear more. (During a global partners’ meeting many years ago, the managing partner of a major law firm displayed a slide to the group: “No whining.” Do you suppose anyone in the audience read that to mean, “Oh! The managing partner wants to hear important suggestions that disagree with the managing partner’s own opinions”?) Basically, it’s no skin off your teeth not to propose ideas that go against the grain. The muckety-mucks propose stupid stuff. You do it. They pay you. That’s the deal, isn’t it?
I suspect that two institutional factors increase the stifling of dissent. First, the longer the boss serves, the less the boss wants to hear dissent. Over time, the boss has been flattered for a long time and becomes accustomed to flattery. The boss starts to think that the boss’s jokes really are funny and that the boss’s ideas are uniformly good. The boss doesn’t need to hear dissenting views.
Second, the larger the size of the organization, the bigger the problem. Suppose the boss really does like to hear dissent. The boss encourages those in the inner circle to challenge the boss. That may encourage the expression of dissent within the inner circle, but it does nothing for those in the outer circle, the seventh circle, or no circle at all. Mere plebeians naturally think: “That’s the boss. I should agree.”
How can you fix this?
You can’t, but you can hedge against it. You can assign people the role of dissident. Thus, when the company is considering an acquisition, assign a group of people to oppose the acquisition, making all of the arguments as to why the deal would be a bad idea. Those folks may get voted down, of course, but the institution has at least guaranteed that the dissenting view is presented. Those who express a strong dissenting view are doing their job well and are likely to be credited for it.
It may, sadly, take those sorts of formal assignments to overcome the tendency to agree with the boss. It won’t work for the boss simply to say, at the end of the meeting, “Of course you should let me know if you disagree with this.” That’s a call for crickets.
I’m not calling for crickets.
I’m calling for John Calhoun.
(Wait! Wait! That’s just a rhetorical flourish. I’m not really calling for John Calhoun. States’ rights Southerners before the Civil War held beliefs that any sentient person today rejects, as do I. Or am I perhaps more sensitive about this than I should be?)
Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.