2

THE WILL TO POWER

It was 1971 and Lewis Powell, a corporate lawyer in Richmond, Virginia, who had been president of the American Bar Association, a member of the board of the giant tobacco company Philip Morris, and represented the Tobacco Institute and several tobacco companies, had come to believe that American capitalism was facing a dire threat. Americans were angry about corporate pollution; President Richard M. Nixon had responded by signing the National Environmental Policy Act, which established the White House Council on Environmental Quality, and by creating the Environmental Protection Agency through executive order. Across the country, activists marched for Earth Day and Congress passed the first air pollution standards.¹ Ralph Nader and other consumer advocates had successfully fought for safer cars and other products. It was a transitional moment, according to historian Kim Phillips-Fein, as “the environmental movement charged industry with poisoning the land, air, and water of the country, while the consumer movement accused business of manipulating consumers into buying dangerous products.”²

Business leaders saw the new government agencies as a direct, and ominous, result of the activists’ grassroots and legislative actions that were pushing corporate America off its pedestal.Americans no longer reflexively believed the statement of Charles Erwin Wilson, CEO of General Motors, that “what’s good for GM is good for America.”³ Powell’s concern was reflected in the files he kept on Nader and others, including a long article about the consumer activist that appeared in Fortune, calling Nader a “passionate man” who sought to “smash … corporate power.”⁴

Powell believed that corporate America needed a decisive response to the perceived threat to the free enterprise system. In a lengthy memo, the soon-to-be Supreme Court justice laid out his concerns and proposed responses to the Chamber of Commerce, where he served as chairman of the education committee. Powell argued that business needed to protect itself over the long term with an aggressive strategy to rebut the left-wing criticism of capitalism coming “from the college campus, the pulpit, the media, the intellectual and literary journals,” and particularly from Ralph Nader and his ilk, who had made effective use of public interest litigation combined with savvy communications strategies.⁵

The document he penned, now known as the Powell Memo, has been described as the road map for conservative dominance of public policymaking. For any such plan to be successful, Powell understood, conservatives would have to fund a broad array of institutions that would exert control over the instrumentalities of power, including the courts, the legislature, and the media. Importantly, the tobacco lawyer insisted, it would require “careful long-range planning and implementation, in consistency of action over an indefinite period of years, in the scale of financing available only through joint effort, and in the political power available only through united action and national organizations.”⁶ What Powell grasped is that policy victories come after gaining control of the levers of power—and not before.

The Powell Memo found a receptive audience in the business world and with libertarian and pro-business donors, helping to shape the coordination among corporate and foundation money, legal strategists, and campaign operatives to build long-term victories. Moneyed individuals and entities invested heavily in building infrastructure—think tanks to develop proposals, media outlets to disseminate them, legislative strategies to equip their side with bills and talking points, electoral schemes to secure political advantage, and legal efforts to stack the courts with ideological judges armed with pro-corporate and anti–civil rights views and assisted by rules limiting courtroom access that would skew the odds further in favor of the plutocrats and right-wing donors.

The impact has been devastating.

Right away, Powell’s memo reverberated with corporate America. Eugene Sydnor, the Chamber of Commerce’s education director, wrote to Powell that he had made a “vitally important case for American Business to go on the offensive after such a long period of inaction and indecision in telling the American people the facts of life as they unhappily exist today.”⁷ Soon after receiving the memorandum, the chamber organized a task force of forty business leaders to review its contents and make plans for implementation.⁸ Powell separately sent a personal note to Ross Malone, vice president and general counsel at General Motors, to see if the “top management of GM might be interested in encouraging the chamber to become a vital force to defend the enterprise system and the freedoms which it sustains.”⁹ Corporate executives circulated the memo, including a member of the legal staff of DuPont who sent it to the CEO, calling it “useful.”¹⁰ The ideas gained currency among corporate leaders such as Donald Kendall, the CEO of PepsiCo; were discussed in corporate reports from GE, H.J. Heinz, and Standard Oil; and were embraced by conservative scholars and intellectuals, including Robert Bork and Irving Kristol, writing for the Wall Street Journal.¹¹ Business groups quickly founded the Business Roundtable to provide coordinated lobbying power on Capitol Hill. Founded in 1972, within five years, it brought together over half of the Fortune 200 corporations, together valued at 50 percent of the entire American economy.¹² And the chamber invested in professionalizing its staff, making the CEO a permanent position, bulking up its lobbying operation to become the biggest player in Washington, which it remains, and becoming one of the leading conduits for independent expenditures in political campaigns.¹³

In the early 1970s, corporate America was eager to find a way to thwart the progressive tide, says historian Kim Phillips-Fine: “Strident, melodramatic, and alarmist, Powell’s memorandum … struck a nerve in the tense political world of the early 1970s, giving voice to sentiments that, no matter how extreme they might have seemed, were coming to sound like common sense in the business world during those anxious years.”¹⁴ The New Deal had initiated a long period of restraints on corporate power—companies had to pay minimum wage and overtime, bargain with unions, cease to discriminate, stop polluting—all anathema to the ethos of the “free market,” which they believed meant that the corporation existed solely to benefit its shareholders and executives and not workers or communities.

But what really put action behind Powell’s words was Watergate. Soon after Powell sent his memo to the chamber, the business community began to see storm clouds on the horizon, despite President Nixon’s landslide 1972 election win. Nixon’s criminal conduct was leading to impeachment hearings and allowed Democrats to ride a wave of anti-Republican fervor, winning a significant majority in Congress in 1974. “The danger had suddenly escalated,” recalled Bryce Harlow, a lobbyist for Procter & Gamble, who had been instrumental in organizing the business community to get involved in politics and right-wing infrastructure building.¹⁵ Powell’s warnings seemed even more on point, and conservatives began serious efforts to create a set of institutions that would support their interests over the long term, during Republican and Democratic administrations, but also lead to structural changes that would embed Republicans and probusiness policies in government permanently.

Perhaps the most important readers of the memo were people with a great deal of wealth. John M. Olin, who made his fortune in chemicals and founded the Olin Foundation, wrote William Baroody Sr., the president of the American Enterprise Institute, that “the Powell Memorandum gives a reason for a well organized effort to re-establish the validity and importance of the American free enterprise system.”¹⁶ As an activist business movement came into being, new conservative family and corporate philanthropies emerged to partner in funding a plan to ensure longterm control of power—Coors, Olin, Bradley, Scaife, and Koch, to name a few funders. Presenting to the conservative Philanthropy Roundtable, Koch operative Richard Fink urged funders to think about Friedrich Hayek’s description of the production process as a model for their giving, arguing that transformation necessitated the “development of intellectual raw materials, their conversion into specific policy products, and the marketing and distribution of these products to citizen consumers.”¹⁷ It was a vertical monopoly model, driven by wealthy donors who would put money into an infrastructure for producing ideas and then marketing them.

Funders quickly aligned to identify a set of groups, occupying different but complementary roles at the state and national levels, that they would invest in for the long term, understanding that generating intellectual capital was a necessary precondition of successful litigation and public policy efforts. In her book on the conservative legal movement, law professor Ann Southworth observes that “conservative foundations focused on organizations they expected to succeed, rather than distributing grants more broadly, and they coordinated their philanthropy to maximize its impact.”¹⁸ These funders nurtured groups focused on power and long-term change rather than simply funding their pet issues. A report for the National Committee for Responsive Philanthropy found that “conservative grantmaking has focused on building strong institutions by providing general operating support, rather than project-specific grants…. The foundations funded their grantees for the long term—in some cases for two decades or more.”¹⁹ They provided space for the organizations to grow and to cultivate scholarship, knowing that the groundwork for meaningful and lasting change requires patience.

And thus the plan was adopted, with a concentrated effort to gain power by developing ideas through think tanks and academic “fellowships”; disseminating viewpoints and publications via a new right-wing media, along with an arm to attack mainstream media as fatally biased; filling judgeships with movement conservatives; and creating a pipeline of elected and appointed leaders through electoral strategies and mentoring. Where Lewis Powell’s memo was most potent was in its recognition that public policy victories depend on political power, power that must be, Powell underscored, “assiduously cultivated; and that when necessary, it must be used aggressively and with determination—without embarrassment and without the reluctance which has been so characteristic of American business.”²⁰

WINNER-TAKE-ALL THOUGHT LEADERSHIP

One of the founders of the Heritage Foundation, beer magnate Joseph Coors, was deeply affected by the Powell Memo, recalling many years later how reading it had “stirred him.”²¹ Powell had been insistent that corporate America needed to fund a stable of scholars who would promote a pro-capitalist message in scholarly journals as well as in the popular press, where their academic status would give weight to their arguments.²² Coors, along with hard-right leader Paul Weyrich, heeded Powell’s call that the Right needed to counter liberal academia with thought leadership, founding the Heritage Foundation as an affirmatively hard-edged political and partisan organization.²³ The Heritage Foundation quickly gained “iconic” status—its prodigious publication of policy papers causing Senator Daniel Patrick Moynihan to remark that the “GOP has become a party of ideas.”²⁴

The goal of the Heritage Foundation and like-minded think tanks was and remains to influence public opinion in policy debates and build support for conservative initiatives. The media relations component, which Powell called a “war room,” included a speakers’ bureau to provide rapid response and to counter the perceived liberalism of the press. With a mission of persuasion, the think tanks did not operate under the evidence-based strictures of academe. Instead, their publications were structured to drive a political narrative, providing rhetorical and “scholarly” support for conservative goals, and their personnel were groomed to march through the revolving door to provide a steady pipeline of trustworthy policy experts to serve in government.²⁵ Mark Schmitt, a director at the New America foundation, argues that this approach sets conservative think tanks apart from those on the left, finding that “one side plays it as winner-take-all competition, the other mildly seeks consensus, ultimately winning the other side’s agreement not to reverse the most uncontroversial bit of the status quo, after which both sides and their funders congratulate themselves on having found common ground.”²⁶ The Heritage Foundation’s budget, in contrast to the more liberal Brookings Institution, for example, devotes far more resources to the dissemination of its viewpoints, or marketing, to make the ideas more accessible for members of Congress, local leaders, and other Republican officials. Scholars Jacob Hacker and Paul Pierson comment that Brookings’s mission statement “reads like a university brochure (‘an independent, nonpartisan organization devoted to research and public education’); the Heritage Foundation’s, a manifesto (‘a think tank … whose mission is to formulate and promote conservative public policies based on the principles of free enterprise, limited government, individual freedom, traditional American values, and a strong national defense’).”²⁷

The American Enterprise Institute’s Baroody shared Powell’s view that the corporate world needed to compete in the “marketplace of ideas,” challenging what he saw as the dominance of left-wing perspectives in the “intellectual mainstream.”²⁸ The American Enterprise Institute had been a studiously nonpartisan although quite conservative think tank, founded in the 1930s to protect free enterprise from the perceived socialism of the New Deal. Baroody thought that the Right had been outmaneuvered by the Left “through systematic employment of techniques and devices designed to establish what might loosely be referred to as an intellectual reservoir of leftist ideology” in universities that gave an “aura of respectability” unmatched by “existing resources on the conservative side of the fence.”²⁹ Establishing a new Center for the Study of Government Regulation, Baroody hired a young legal scholar—Antonin Scalia—to edit its journal, which set out to attack regulation through scholarly analysis rather than by simply disagreeing with it. Backing up the antiregulatory position with studies that showed an alleged harm to the economy or productivity was more likely to win converts and influence the American public, Baroody believed.³⁰ Like the other leaders influenced by the Powell Memo, he saw the need for a varied set of organizations to provide support for business-friendly policies. He was instrumental in founding several other think tanks to fill out the areas of necessary thought leadership, including the Center for Strategic and International Studies at Georgetown, to provide a hawkish perspective on foreign policy, and the Hoover Institution at Stanford. Baroody even built relationships overseas, with the goal of creating an international alliance of conservative organizations generating and cultivating public opinion.³¹

Appearing on Fox News in 2015 to denounce President Obama’s comments about ISIS, John Bolton, a Bush-era ambassador to the United Nations, sported a Heritage Foundation tie. Heritage proudly later pitched the necktie on its website with a photo of Bolton, asking, “What can you wear to reinforce your conservative bona fides?”³² And conservative bona fides are exactly what Fox and other right-wing “news” outlets are looking for—the close ties between the think tanks designed to spout talking points and policy reports in service of conservative political objectives and their allied cable and web news outlets could not be more obvious. These news organizations rely on the reports and talking heads from the right-wing think tanks to disseminate and give traction to an extremist agenda. The news companies need content—and the think tanks supply it.

(UN)FAIR AND (UN)BALANCED

The campaign of 2016 may have seemed unique, with the aggressive role played by Fox News on cable and Breitbart online in supporting Donald Trump, but the architecture of right-wing media was first imagined in the 1950s. In 1954, Clarence Manion, an early prototype of Steve Bannon, began to build the echo chamber for conservative candidates through his radio program, which created a template for the inflammatory talk radio later practiced by Rush Limbaugh. Manion’s show became a platform for emerging leaders on the far right and began to push the Republican Party in that direction, even supporting a third-party challenger to President Dwight D. Eisenhower. Like many current purveyors of “alternative facts,” Manion chose an anti-establishment and anti-elite frame to shake up the mainstream party. National Review, also founded around this time, aligned with Manion in attacking Eisenhower, giving off more than a whiff of anti-Semitism in the process. According to its first issue, in 1955, “a small band of Eastern financiers, international bankers and industrialists organized the Eisenhower boom and entrusted its inflation to a New York advertising firm. The rest is history.”³³ The conservative magazine Human Events shared the mission of presenting overtly biased reporting. The magazine stated that “in reporting the news, Human Events is objective; it aims for accurate representation of the facts. But it is not impartial. It looks at events through eyes that are biased in favor of limited constitutional government, local self-government, private enterprise, and individual freedom.”³⁴ Bias, these publications posited, is a valid approach to journalism. The leaders of each publication and program worked closely with one another, sharing an overlap in donors and leadership, with Manion sitting on the board of the National Weekly, the parent of National Review, and editors and writers for Human Events and National Review appearing on his radio program.³⁵

But these efforts still existed on the political fringes, with limited impact on the majority of Americans. Conservatives, Powell among them, realized that they could not simply talk to each other. To protect the free enterprise system they saw as under threat, they needed to move public opinion, and ultimately public policy, and this required capturing some of the audience from the networks and newspapers that provided news to the majority of Americans. William J. Gill, who pioneered an early effort to bring conservative voices into the mainstream media, agreed with Powell that the Right needed to “shape the public’s opinion on issues, to further develop conservative media organizations and to bring the right’s point of view to the public.”³⁶ Powell’s memo reflected his agreement with Gill that the major news agencies were not providing adequate coverage of conservative points of view and that without “a truly national vehicle for dissemination of the news on a day-in-day-out basis, we could never hope to correct some of the grave problems afflicting our country.”³⁷

Nicole Hemmer, who has studied the rise of the conservative media, said that leaders on the right recognized that “they had to do more than sell Americans on conservative ideas. They had to discredit the established media. That’s because in mid-century, most Americans believed that the news they heard on networks and read in newspapers was objective…. [The conservatives] argued that objectivity was a mask covering entrenched liberal bias, and they saw their new media ventures as an answer to that bias.”³⁸ Debunking the dominant frame was an essential part of advancing the counternarrative these conservatives preferred. Powell himself was quite taken with The News Twisters, a book by Edith Efron, a writer for TV Guide who had reviewed TV news coverage during several weeks of the 1968 election, counting one hundred thousand words she had picked describing Hubert Humphrey and Richard Nixon, the Democratic and Republican presidential candidates. Verdict: the news organizations toed “the elitist-liberal-left line in all controversies.”³⁹ Writing to Gene Sydnor of the Chamber of Commerce, Powell commented that “Miss Efron’s technique is precisely in accord with one of the suggestions in my memorandum of September 23, namely, the monitoring of television programs to determine factually and in detail the extent of biased and unfair treatment of business and the enterprise system.” He then suggested to Sydnor that the chamber fund a serious effort for continuous monitoring of media.⁴⁰ He also advised the chamber in another letter to help support organizations that would monitor both media and textbooks for what he considered to be anti-capitalist rhetoric and teaching, saying that both should be “kept under constant surveillance.”⁴¹

With the election of Richard Nixon, the conservative media had an ally with an even bigger bully pulpit. The administration joined the critique of the networks and large newspapers, marking the beginning of a significant shift in the media on the national stage. In a concerted effort to assert “liberal bias,” the Right won a victory in making the corporate news organizations begin to question their approach to reporting and forcing them to feature voices that were explicitly conservative as opposed to allegedly neutral. Hemmer writes that by 1971, “CBS Radio had launched Spectrum, a debate show featuring conservatives like Stan Evans, James Kilpatrick, and Phyllis Schlafly. That same year 60 Minutes pitted conservative Kilpatrick against liberal Nicholas von Hoffman in a regular segment called ‘Point/Counterpoint.’ By then, even the publisher of Human Events, in the midst of selling his paper as an alternative to liberal media, had to admit that conservatives were popping up all over established media—even on the editorial pages of ‘that holy house organ of Liberalism—the New York Times.’”⁴²

With a growing opportunity to advance its own views on the news, the Right invested even more in building the counternarrative, and this required reports, talking heads, and other content to flow both to these mainstream channels and to the growing set of alternative outlets that catered to conservative readers and viewers. The Media Research Center was founded in 1987 specifically to “document, expose and neutralize the liberal media bias.” Internally, it consists of divisions to monitor the news on all outlets, to call out alleged anti-capitalist reporting, and to disseminate right-wing ideas to the broader public; today it also has an online news service for the Right.⁴³ In line with their longterm view, the funders also provided significant backing to college newspapers and radio stations to train and nurture future reporters. Their interest was not simply in having an immediate counter to what they perceived as a hostile media environment, but in building a pipeline of journalists who could go from the Dartmouth Review to Fox News and the Wall Street Journal, like the Journal’s Hugo Restall or Fox’s Laura Ingraham.

It is hard to overestimate the impact of this effort. From attacks on the allegedly liberal media to the vast array of voices on the right establishing a counternarrative of “alternative facts,” Fox News and Breitbart now command an enormous audience and exert a tremendous influence on what is considered news.

ED MEESE’S REVENGE

Corporate America was not going to protect itself solely through thought leadership and PR, however, it also needed an activist legal counterpart to engage in litigation and control the courts. “This is a vast area of opportunity for the Chamber,” Powell wrote, “if it is willing to undertake the role of spokesman for American business and if, in turn, business is willing to provide the funds.”⁴⁴ Being a lawyer, he knew the importance of strategic litigation to advance the interests of corporate America as well as having courtroom rules tilted toward business litigants. The Right quickly lined up funding and fervent advocacy behind new litigating groups—or “public interest law firms”—to fight affirmative action, environmental rules, reproductive rights, and the labor movement, as well as efforts to influence the rules by which the courts consider cases. The Chamber of Commerce’s Litigation Center, created in 1977, has enjoyed an incredibly successful run in the current conservative and pro-business Supreme Court, estimated to have an almost 70 percent win record since Chief Justice Roberts took the court’s helm in 2005. Legal observers calculate that the chamber’s advocacy has helped make the Roberts Court the “most pro-business high tribunal since the 1930s.”⁴⁵ As scholar Erwin Chemerinsky points out, pro-business means anti-worker, anti-consumer, anti–civil rights, and anti-environment.⁴⁶

Other legal groups fight to expand the role of churches in public life and to attack women’s reproductive rights; to challenge affirmative action and other civil rights protections, including in the voting sphere; and to undermine environmental and land-use regulations.⁴⁷ For example, the National Right to Work Legal Defense Foundation has brought cases with novel legal theories to challenge the laws that allow unions to bargain collectively and represent workers effectively—which harms and demoralizes workers and also strikes at the heart of financial support for the Democratic Party. The Center for Individual Rights attacks the separation of church and state as an avenue to undermine women’s reproductive rights and LGBT job protections and access to public services (like ordering a wedding cake or hiring a videographer to cover gay nuptials). In the public spotlight for its efforts to acquire Secretary of State Hillary Clinton’s emails through Freedom of Information Act ligation, Judicial Watch was established in 1994 to sue the Clintons and has not stopped since.⁴⁸

Powell argued, however, not just for an affirmative strategy but also for defensive mechanisms to keep Naderites and other corporate foes out of the courtroom altogether and thus to make sure the rules governing litigation would favor business and not consumers or workers. Civil justice “reform” was the sine qua non for protecting the private enterprise system Powell so revered. Senator Sheldon Whitehouse, in his book Captured, documents how corporations have swung the rules in their favor. In 1998, Whitehouse writes, the chamber followed Powell’s advice and launched its Institute for Legal Reform, a “national legal reform advocate … working to change the laws, [and] also changing the legal climate.”⁴⁹ Its stated goal is curbing lawsuit abuse by lobbying governments at all levels—even international bodies—to make it hard for victims of corporate wrongdoing to have any legal recourse.⁵⁰ Aided and abetted by the chamber and conservative think tanks, judges and legislatures have adopted rules to keep defrauded consumers, victims of sexual harassment, misclassified workers, and children harmed by lead out of the courtroom.

Once Ronald Reagan was in the White House, Powell would see his memo’s recommendations on legal reform gain momentum. Elected on an agenda of rolling back regulations, Reagan and his political appointees saw private rights of action as an impediment to reining in so-called big government. In particular, they believed that provisions providing lawyers’ fees encouraged lawsuits against companies and government agencies and that the litigation itself was engineered by liberal activists to shape agency policy and the interpretation of federal statutes. Similarly, they faulted the use of class actions that enabled activists to influence corporate behavior through large damage awards, with lawyers like Ralph Nader coercing carmakers to build safer vehicles through threats of further lawsuits. Reagan called these liberal groups “a bunch of ideological ambulance chasers doing their own thing at the expense of the … poor who actually need help” and as “working for left-wing special interest groups at the expense of the public.”⁵¹ While this period did not spell the end of progressive litigation groups, it certainly did portend a strong and effective counterforce from corporate America. Some argue that corporations simply pushing back hobbled the left-wing advocates. Others point to an America that was fatigued with an anti-corporate agenda—undoubtedly, Reagan’s election demonstrated a country that was out of sync with attacks on the “free enterprise system” and susceptible to anti-regulatory arguments. Defensive work is less exciting than aggressive challenges to government and private sector abuses—and Nader and his allies fell out of the news cycle.⁵²

Reagan hired many lawyers from the nascent anti-regulatory legal organizations to fill positions in Washington where they could continue, from the inside, to dismantle federal statutory protections. Enraged by what they saw as anti-corporate litigation that had spiraled out of control between Nixon’s presidency and Reagan’s election—much of it in the environmental and consumer areas—they were eager to reassert the importance of private property and assumption of risk by consumers, workers, and victims of pollution. Pushing legislation to cut fees for any lawsuit against the federal government in his first year, President Reagan also directed his Office of Legal Policy in the Department of Justice to look at how to cut back on damage suits brought against state government officials accused of violations of federally protected rights.⁵³

With Democrats still wielding power on the Hill, Reagan and his allies had little success with legislation. Deputy Attorney General Edward Schmults recognized that the Supreme Court, with Lewis Powell serving as one of the nine justices, would be a more hospitable environment to craft restrictive policies to block lawsuits. In a letter to then counselor to the president Edwin Meese about the legislation to limit fees, Schmults wrote, “From a political standpoint,… it is probable that a serious fee reform bill would sharply divide Congress … [and] like other controversial legislation, it is unlikely that the bill would be enacted into law…. As in the past, real progress in curtailing abuses in the award of attorneys’ fees is likely to be gained through the Supreme Court, where we have enjoyed considerable success in recent years…. An administration fee reform bill will bring to the public eye many of the policies we have been espousing before the courts.”⁵⁴ In other words, keep this out of the press and achieve the same goal through the courts. Indeed, these efforts bore fruit as the Supreme Court went on to issue sweeping decisions protecting corporate America.

That’s why the Federalist Society, which works to ensure that judges will be favorable to these cases, has long been a priority of right-wing funders—Powell himself, sitting on the Supreme Court when the group was founded, embodied how important courts were to fulfillment of his plan. From its beginnings in 1982, the Federalist Society benefited from the methodical and thoughtful support of the philanthropists influenced by, or in alignment with, the goals of the Powell Memo, receiving funding from its beginnings as a small law student group to its current powerhouse status.⁵⁵ James Piereson, former president of the Olin Foundation, describes the patient approach these funders took to their grantees. According to Piereson, “they know that the world is going to be changed in increments, by and large.”⁵⁶ With its inordinate influence on the selection of judges and promotion of “originalist” legal theory, the group has been described—by former vice president Dick Cheney—as “one of the most influential in the world of law and public policy.” Olin’s dollars, and those of other conservative foundations, made this possible through the steady and unquestioning support they gave the Federalist Society over decades.⁵⁷ The funders allowed the organization room to both grow and make decisions independently and did not flinch when it adopted strong ideological positions—indeed, that was the goal.

The Federalist Society quickly made an outsize imprint on the development of the law and legal policy. Scholars Michael Avery and Danielle McLaughlin provide a good thumbnail sketch.

Four Supreme Court justices—Antonin Scalia, Clarence Thomas, John Roberts, and Samuel Alito—are current or former members of the Federalist Society. [New justices Neil Gorsuch and Brett Kavanaugh are also members; Scalia died in 2016.] Every single federal judge appointed by President George H.W. Bush or President George W. Bush was either a member or approved by members of the society. During the Bush years, young Federalist Society lawyers dominated the legal staffs of the Justice Department and other important government agencies. The dockets of the federal courts are brimming with test cases brought or defended by Federalist Society members in the government and in conservative public interest firms to challenge government regulation of the economy; roll back affirmative action; invalidate laws providing access to the courts by aggrieved workers, consumers, and environmentalists; expand state support for religious institutions and programs; oppose marriage equality; increase statutory impediments to women’s ability to obtain an abortion; defend state’s rights; increase presidential power; and otherwise advance a broad conservative agenda.⁵⁸

The society was founded at a propitious moment. With Ronald Reagan’s election, the Justice Department took on the role of incubator for right-wing legal theories and became a proving ground for young idealistic and ideological attorneys coming out of the Federalist Society chapters. Society membership became a “tell” for conservatives, signaling a clear ideological identity and willingness to fight on the front lines of policy battles. Moreover,for nonmembers, it was clear how joining could advance one’s career. Writes scholar Steven Teles, it was a “a very powerful message that the terms of advancement associated with political ambition were being set on their head; clear ideological positioning, not cautiousness, was now an affirmative qualification for appointed office.”⁵⁹ Federalist Society members quickly vaulted into the most prestigious clerkships. Judge Robert Bork and Judge Antonin Scalia, who as faculty had helped with the founding of the society, hired law clerks from society chapters when they joined the Court of Appeals for the DC Circuit, as did other Reagan judges.

The young conservatives were particularly emboldened to fight against liberal understandings of the Constitution, developing and honing a theory of interpretation that would lead to more conservative victories. Reagan’s attorney general Ed Meese himself saw the utility of originalism and used the vast resources of the Justice Department to elaborate on the theory and market it; in 1987, the department’s Office of Legal Policy published Original Meaning Jurisprudence: A Sourcebook, a manual on how to reach preferred constitutional outcomes in critical areas such as reproductive rights and property protections as well as a broad theory of constitutional interpretation.⁶⁰ Journalist Charlie Savage writes that Meese turned the Justice Department into “a giant think tank where these passionate young conservative legal activists developed new legal theories to advance the Reagan agenda.”⁶¹

With chapters at law schools and in major cities, the membership of the Federalist Society is not that large, but it is powerful. It holds events that reach a much broader number than the thirteen thousand dues-paying members it claimed in 2013.⁶² The network has become more and more powerful over time, with certain judges hiring only Federalist Society law clerks, creating a pipeline for the next generation of jurists. Witness the elevation of Justice Neil Gorsuch, a regular participant in the society’s activities, a former law clerk to Justice Anthony Kennedy, and someone who made the organization’s short list for the Supreme Court, President Donald Trump’s only source for candidates. President Trump inherited a record number of vacancies on the federal bench to fill, due to the very effective Senate Republican obstruction of President Obama’s nominees. Not just the Supreme Court, but also the courts of appeal and the federal trial courts will bear the imprint of Donald Trump—and the Federalist Society—for decades. Lifetime appointments mean that the courts can become out of sync with the American public, and there’s little recourse.

Leonard Leo, a high-ranking Federalist Society official, suggests that any criticism of the organization’s role in selecting judges for the Trump administration is misplaced. “The institution is not embarrassed by the fact that we want a judiciary that will say what the law is and not what it should be, so this idea that somehow we are in the dark shadows of Washington trying to pack the courts is really utter nonsense,” Mr. Leo said. “Some senators just don’t really understand who we are and what we do.”⁶³ But Leo himself refuted his own statement, crowing in May 2017 that “I would love to see the courts unrecognizable.”⁶⁴ And all we need to do is review the most devastating legal decisions in recent years to see the impact of the organization and its members. From Citizens United v. Federal Election Commission, which allowed dark money to flood into political campaigns, to National Federation of Independent Business v. Sebelius, which challenged the constitutionality of the Affordable Care Act and resulted in major harm to the Medicaid provisions of the law, Federalist Society members have driven the litigation, and the organization has served as an incubator of the theories and as a cheerleader for the efforts, with allied judges providing a friendly audience.⁶⁵

In 2006, the Wall Street Journal applauded the ascendency of Federalist Society members into the judiciary, including the Supreme Court, writing that “they are now poised to influence the law and culture for 20 years or more. All those Federalist Society seminars may have finally paid off. Call it Ed Meese’s revenge.”⁶⁶

The legal table had now been set to please the palate of American business and conservative interests. The Right had a strong network to nurture and promote right-wing lawyers to the bench, an academic cohort to supply ideas and strategies for litigation, a bevy of legal groups to bring the cases, and a court system hostile to claims against corporations.

BLOCKING THE BOX—THE BALLOT BOX, THAT IS

The courts, think tanks, and media operations were all designed to promote and defend policy preferences—but for preferences to become law, conservative funders and corporations recognized that they needed a strategy to win legislative and electoral battles. Networking conservative legislators with corporate lobbyists and equipping them with legislative ideas was a piece of that plan. In 1973, Paul Weyrich, the co-founder of the Heritage Foundation, helped create the American Legislative Exchange Council, or ALEC.⁶⁷ Also credited with co-founding the Moral Majority with Jerry Falwell,⁶⁸ Weyrich’s “articulate fervor and organization-building skills were instrumental in propelling the right wing of the Republican Party to power and prominence in the 1980s and ’90s,” said the New York Times in his obituary.⁶⁹ Weyrich saw ALEC as a vital pillar of the conservative landscape, advancing both free enterprise and fundamentalist religious values through legislation. ALEC’s birth was witnessed by many godfathers. According to ALEC’s website, a rogues’ gallery of current and future conservative leaders came together to support the organization.

At [a] meeting, in September 1973, state legislators, including then Illinois State Rep. Henry Hyde, conservative activist Paul Weyrich, and Lou Barnett, a veteran of then Gov. Ronald Reagan’s 1968 presidential campaign, together with a handful of others, launched the American Legislative Exchange Council. Among those who were involved with ALEC in its formative years were: Robert Kasten and Tommy Thompson of Wisconsin; John Engler of Michigan; Terry Branstad of Iowa, and John Kasich of Ohio, all of whom moved on to become governors or members of Congress. Congressional members who were active during this same period included Senators John Buckley of New York and Jesse Helms of North Carolina, and Congressmen Phil Crane of Illinois and Jack Kemp of New York.⁷⁰

ALEC’s focus is on recruiting and supporting conservative legislators by providing them with model legislation drafted by its task forces helmed by corporate lobbyists. Seeing the value of advancing identical bills in state legislatures across the country, ALEC’s founders recognized that state and local victories could translate ultimately into national policy. Though ALEC describes itself as “the nation’s largest, non-partisan, individual public-private membership association of state legislators,” its orientation is decidedly right-wing, anti-worker, anti-environment, and anti–civil rights. Its legislative agenda makes that abundantly clear. Former head of Trump’s Environmental Protection Agency Scott Pruitt was an ALEC task force chairman as an Oklahoma state legislator, and he found nothing wrong with putting corporate lobbyists and elected officials together to draft bills. In 2003, he spoke to Governing magazine about ALEC, saying, “ALEC is unique in the sense that it puts legislators and companies together and they create policy collectively.” That’s the right approach, Pruitt argued, because “the actual stakeholders who are affected by policy aren’t at the table as much as they should be. Serving with them is very beneficial, in my opinion.”⁷¹

In addition to the Koch brothers, who have given in excess of $1 million to ALEC, other key funders have included the Olin and Bradley Foundations, as well as Richard Scaife and Peter Coors’s Castle Rock Foundation.⁷² And corporate America has had very self-interested reasons for supporting ALEC; in addition to the tax write-off they get for giving to a “charity,” corporations can write the laws that benefit them the most, out of public view. Brendan Fischer, former general counsel with the Center for Media and Democracy, says ALEC’s game plan is to move lawmaking into the shadows. Unlike typical lobbying in the statehouse, where a corporate executive might grab a few minutes of a legislator’s time, “with ALEC, legislators fly to ALEC meetings, usually on the corporate dime. Meetings are held in places like Amelia Island, Florida, or New Orleans, or [in 2013] in Chicago, usually at the nicest hotel in town. The corporate members that benefit from ALEC model legislation are footing the bill for legislators’ travel expenses.” Wined and dined, the legislators spend quality time with a range of corporate lobbyists who feed them ideas and talking points so that “by the time legislators get back to the state, they are the ones who are already convinced that a particular bill or policy idea is right for the state.”⁷³

The impact has been dramatic. With its task forces pumping out legislation, ALEC has its fingerprints on over 1,500 bills introduced in statehouses per year. A Brookings report documents a very high success rate for ALEC legislation. The researcher, Molly Jackman, makes three major findings: “First, ALEC model bills are, word-for-word, introduced in our state legislatures at a non-trivial rate. Second, they have a good chance—better than most legislation—of being enacted into law. Finally, the bills that pass are most often linked to controversial social and economic issues.”⁷⁴ While ALEC’s initial focus, in keeping with Weyrich’s hard-right social agenda, was fighting women’s reproductive rights and the Equal Rights Amendment, the task forces now place more emphasis on regulatory and economic issues⁷⁵—although ALEC has also been a big player on “stand your ground” legislation and anti–gun control efforts, as well as devastating attacks on unions.

ALEC’s funding from the Kochs, Scaife, et al. has enabled it to build a strong advantage over its liberal competitors. In 2011, the investigative organization ProPublica provided a public service by creating an online database of ALEC bills that allows users to connect the organization, corporate donors, and legislative outcomes. ProPublica created the database in part to provide a bit of help to a vastly underfunded progressive infrastructure, noting that “ALEC has no real counterpart on the left.”⁷⁶ Founded in 2014, the State Innovation Exchange, or SIX, hopes to provide a counterpart to ALEC on the left by supporting and networking progressive state legislators. It is a necessary addition to the landscape and we must hope—and work to ensure that—it succeeds. SIX has had an impressive beginning and is benefiting from a greater focus by progressive funders on the states. But the Left must remain engaged in the states to have any hope of the impact long wielded by ALEC, and not just for the next two years but for the next twenty, thirty, and beyond. ALEC has been a potent enemy of democracy, systematically undermining principles many thought were rock solid, and it has worked to erect barriers to voting and to destroy a major funding mechanism for progressive candidates, organizations, and issue campaigns as well as protector of workers—the labor movement.⁷⁷ And of course, its effort to strip the courts of jurisdiction has gone hand in glove with its substantive work; the beauty of it, from conservatives’ perspective, is that few pay attention to changes to court rules and thus they happen more or less in the dark. Statutory rights are still on the books, but no one can exercise them because the courthouse doors are now closed.

The private prison industry provides a good window into how ALEC operates—and wins. Teaming up with ALEC, the Corrections Corporation of America (now known as CoreCivic) lavishly funded the campaigns of Arizona officials and worked with the ALEC-affiliated members of the state legislature on SB 1070, an infamous bill that allowed local law enforcement to arrest and imprison undocumented immigrants. More state funding for private prisons, ALEC and the company argued, was a necessary companion to the detention bill they had fought for because there would be so many new inmates. The joining of proposals to detain immigrants in private prisons was a gold mine for Corrections Corporation’s executives and ALEC politicians.⁷⁸

Along with the pro-corporate and anti-regulatory policies pushed by ALEC, it has also embraced an agenda of vote suppression and gerrymandering, designed to keep statehouses and congressional seats in Republican hands. For a decade ALEC has pushed voter ID laws to make it harder for younger and older people, poorer communities and people of color to participate in the franchise. Similarly, ALEC has advanced a legislative agenda to curb early voting, make registration more complicated and expensive, require proof of citizenship, and limit ballot initiatives.⁷⁹ In a similar vein, conservative leaders understood that having a well-financed bill-drafting operation was not enough.To really cement their wins, they needed the right legislators. But how to get them? As a corollary to ALEC’s legislative work to limit access to the ballot box for Democrats and minority voters, conservative activists saw that they could exert even more control over electoral outcomes by drafting district maps to maximize their partisan advantage. Drawing district lines to favor one political party over another has a long history. The practice of gerrymandering is named after Elbridge Gerry, who as governor of Massachusetts in 1812 created a very favorable state map for his Democratic-Republican party. The shape of one district, drawn to limit the ability of the Federalist Party to elect representatives, looked rather like a salamander, allowing a clever cartoonist to draw it and dub it a “gerrymander,” after its amphibious doppelganger.⁸⁰ The results demonstrate why partisans have used the gerrymander ever since: in the 1812 election, Gerry’s party received 50,164 votes and won 29 seats; the opposing Federalists’ vote total exceeded that by over 1,500 votes, but they won only 11 seats because of how the districts were drawn.⁸¹ Now with algorithms, stronger voter alignment with a political party—more voters who vote the straight party ticket—and more data about people’s voting history, it has become easier and easier to create electoral maps that provide almost 100 percent certainty of which party will win. Karl Rove could not have said it any more clearly: “He who controls the pen draws the line, and he who draws the line decides the outcome of most contests.”⁸²

In the late 2000s, the Republican Party was in a position to take full advantage of new data-analysis tools and its already dominant position in statehouses. In 2009, Karl Rove proposed a diabolical plan, called REDMAP, to ensure more GOP districts, even if they had fewer voters. His vision, announced in a Wall Street Journal opinion piece, was to focus on a small number of state legislative seats that would determine which party would be able to control the pen after the 2010 census.⁸³ In 2010, Republicans dumped $30 million into state races—triple the amount of Democrats—to wrest control of the once-in-a-decade process of congressional redistricting and then, with their new statehouse majorities, draw maps that favored Republicans and pass laws that disenfranchised Democrats and people of color. According to ProPublica, the Republican State Leadership Committee, which implemented REDMAP, “is organized as a type of political group that can take in unlimited corporate donations. It must disclose its contributors. But that doesn’t mean it’s always possible to trace the origins of the money.”⁸⁴ In 2012, Democrats received 1.4 million more votes, yet Republicans won control of the U.S. House by a 234 to 201 margin. This combination of dark money, voter suppression, and gerrymandering makes gains in either state or federal elections a challenge for Democrats. REDMAP continues to play an outsize role in who wins state and congressional races across the United States.

Many look back to the election of Ronald Reagan as a watershed for conservatives in their efforts to rescind the New Deal and much of the civil rights and women’s rights movements, but in reality that effort began earlier, with the synergies created by corporate power, right-wing zealotry, and electoral maneuvering memorialized in the Powell Memo.⁸⁵ With coordination and funding, conservatives upended the political landscape over the course of decades. What Powell grasped is that in order to win and stay on top, it is enormously valuable—no, essential—to write the rules in one’s own favor. Conservatives directed money to legal groups that could influence who the judges were, supplied legal theories that were heavily tilted toward business for judges to apply, and brought cases before those same judges, whose rulings have continued to move the law rightward. The funders also played heavily in the legislative arena, supporting groups that generated policy ideas for state and federal legislators, with an emphasis on changes that created unfair advantages for conservatives in the courts and in elections, including rigging districts through gerrymandering. And these conservative leaders also ensured favorable news coverage by coordinating with right-wing media outlets and funding groups to attack mainstream reporting.

Do we ever learn our lesson? Years go by and we see the impact of the “vast right-wing conspiracy”⁸⁶ (Hillary Clinton, by the way, was right on this one) on policy and politics, and yet we continue to quibble about issue details, and moderate and liberal funders focus on microprograms with short time spans that allow them to pursue pet projects but fail to build institutions.⁸⁷