California Codifies Discrimination With Illiberal Corporate Boardroom Policy

California’s reputation as a liberal stronghold is deeply entrenched in the American political system.  Because California has the largest State economy and, subsequently, the largest State population, it holds a great deal of sway over US elections and public policy.  It also often takes the first steps forward in major social changes while setting regulatory standards for the whole country by virtue of the economic and political leverage it holds.  Through California’s pursuit of liberal laws and regulations, it is able to defend the rights and freedoms of individual Americans, including those who live beyond its borders.  California’s new net neutrality law, for example, takes action to protect internet users and content providers from the whims of internet service providers at a time when the Trump Administration has stripped away Obama-era protections.  The liberalism of California is, therefore, beneficial to Americans.  There are, however, times when that liberalism becomes illiberal to the detriment of Californians and all other Americans.   

​Public policies become illiberal when they are presented as way to protect individual freedoms, yet they actually undermine the rights of individuals.  When an individual acts on a right and the exercise of that right harms others, it creates a public policy paradox.  In public policy, there is often a need to balance the rights and freedoms of one group with the rights and freedoms of another.  While government must protect the rights and freedoms of individuals in order to give Constitutionally guaranteed rights value, it cannot do so by oppressing others.  It is a challenge that a political heavyweight like California too often struggles and fails to triumph over.  As a socially liberal State, California is inclined to favor the rights and freedoms of individuals belonging to groups championed by progressive political movements.  Because of the Equal Protection Clause of the Fourteenth Amendment ensures government cannot discriminate against people, California cannot simply succumb to illiberal forces.
 
California, for example, has just become the first State to require publicly traded companies to have one or more women on their board of directors.  Despite Supreme Court rulings like Citizens United, which determines how businesses are treated by the US legal system, corporations are legal entities and not individual citizens, thus they do not enjoy the protections of the US Constitution given to individuals.  The ability of Federal and State legislators to regulate them stems from the Commerce Clause of the US Constitution and various provisions of State Constitutions.  Corporations are, however, owned by individuals who have property rights.  Government has the capacity to regulate corporations, but government must still protect the property rights of shareholders.  Not only does the regulation of interstate and national corporations headquartered in California inherently setup a constitutional conflict between State and Federal regulators, this particular regulatory burden raises concerns of unequal protection that most likely violate the US Constitution.  
 
Women have been disenfranchised over the course of human history throughout the vast majority of the world.  Despite major gains since the Civil Rights Movement, women as a group continue to be disenfranchised, particularly when it comes to financial and economic equality.  Barring businesses from favoring men over women when it comes to hiring and pay practices is one way of protecting the economic interests of women.  As ensuring the financial and economic security of the US population is a pressing interest for the US government, government has an interest in protecting women from economic disenfranchisement.  Protecting the ability of women to secure work and a living wage is a concern for both society and government.  For that reason, protecting the ability of women to progress in their careers is also an interest.  On the other hand, government does not have the interest in, or authority, to dictate who shareholders elect to their board of directors.  Government can simply act against those who discriminate against people based on their inherent characteristics.
 
All work, skills, and experience being equal, there should be no different in the pay between any two employees on the same level.  Looking at what socioeconomic groups of women are economically disenfranchised, compelling businesses to diversify their boards is not going to help women as a whole.  The reality that children and unmarried women are more likely to live in poverty than any other Americans suggests the existing “gender gap” increasingly comes from a growing trend toward income inequality that affects women and men alike.  The fact that top female earners tend to be married also suggests those at the top of the socioeconomic pyramid have largely overcome the gender gap, thus affirmative action of this nature do not actually helping people who are discriminated against.  California’s boardroom requirement is largely just going to give elitist women an noncompetitive advantage over their male counterparts.  If California truly wanted to encourage diversity in the boardroom, they would find some way of expanding the representation of those with more diverse geographic and socioeconomic backgrounds in corporate governance.  They would also seek to crackdown on discriminatory practices instead of adopting regulations that codify reverse discrimination with illiberal public policies.