5

THE RULES OF THE GAME

When the rules get in the way of winning, change them. That’s been the way the Right has operated when it comes to the courts, local control, and even the constitutional system. When it comes to seizing control and keeping it, nothing, it seems, is beyond the pale. Representative John Dingell, a Democrat from Michigan, famously once said, “I’ll let you write the substance on a statute and you let me write the procedure, and I’ll screw you every time.”¹ We’ve been screwed for too long. It’s time to grab the pen and write our own rules. Engaging foundations and donors, leading advocacy groups and politicians as well as the grassroots, we must track, expose, and challenge rules narrowing court access through media, legislative advocacy, and litigation. We must monitor and participate in courts’ rulemaking bodies, ensure local governments’ progressive policies aren’t thwarted by state procedural maneuvers, and derail conservative efforts to use a constitutional convention to achieve the ultimate nationwide gerrymander of our rights. These efforts will never grab major headlines or light up Twitter, but without them we will remain “screwed.”

LOCKING THE COURTHOUSE DOORS

Mention civil procedure, even to a group of lawyers, and people look at their watches or their phones or yawn. Dry and technical, the topic doesn’t have the sexy attraction of voting rights or immigration to progressives in the legal world, but it’s essential knowledge for successful legal advocacy. By focusing on a set of rather unexciting provisions, the federal courts, led by the Supreme Court, have whittled away at the ability of average people to have their day in court. Activist right-wing judges, assisted by legal scholars funded by the Chamber of Commerce and other corporate interests, have created a rule book that blocks progressive interests at every turn, forcing plaintiffs to jump a high hurdle to get into court, limiting class actions, and letting companies push conflicts into private arbitration, out of litigation and away from juries. By shutting down access to the courts, the Right has effectively obliterated statutory rights without legislative action and has made it extremely hard to challenge government actions like giving money to religious groups or stripping accused criminals of their rights. In his recent book Closing the Courthouse Door, noted constitutional scholar Erwin Chemerinsky asks,

Why have conservative justices so embraced limiting the power of the federal courts to enforce the Constitution? I believe it is a way to achieve the substantive results they desire. They think many constitutional rights have been broadened beyond their desirable scope, and one way to limit them is through procedural doctrines that prevent people from being heard in court…. To select just a few examples, one way to allow more government aid to religion—which conservatives favor—is to restrict who has standing to challenge it. One way to limit the rights of criminal defendants is to deny review on habeas corpus. Businesses can be protected from lawsuits by imposing heightened pleading standards and restricting class action suits. In other words, the restrictions on jurisdiction … reflect a desire for a particular outcome.²

The New Deal–era authors of the Federal Rules of Civil Procedure wanted to make it easier to hold government and companies accountable. Progressives in the early twentieth century, skeptical of corporate power, believed average folks should be able to go to court to challenge actions that violated statutory and constitutional rights. So they favored something called notice pleading that allowed a case to move forward based on a simple statement of harm and allowed discovery, or the exchange of information between the two sides, to get evidence, recognizing that most people who are suing someone do not possess all the facts at issue at the start.³ Progressives believed that lawsuits would help hold big businesses accountable and make them pay for wrongdoing, providing an incentive for safer products and workplaces, and force government to change policies that undermined rights.

Starting in the late 1960s, Democrats in Congress made sure that new federal civil rights laws, including the Voting Rights Act, allowed individuals to sue to enforce the law. The executive branch, they feared, especially when in the hands of Republicans, would not pursue cases helping minority voters or victims of discrimination.⁴ Thus, they drafted strong provisions in statutes like the Civil Rights Act of 1964 to ease access to courts, recover attorneys’ fees, and get damages. They wanted to make sure the law would work to help victims and deter bad actors.⁵ It wasn’t just civil rights statutes that provided avenues to recovery not dependent on government agencies, but also environmental and consumer protection laws. Indeed, it was Ralph Nader’s successes suing on behalf of consumers for safer cars, and conservation groups’ litigation to attack polluters, that so aggravated Lewis Powell.

The Right organized to push back. At the top of their agenda was getting judges on the bench who would be hostile to plaintiffs. By successfully stocking the judiciary with conservative judges, the Chamber of Commerce and its allies ensured that the courts were a favorable route to limit lawsuits. Scholars Stephen Burbank and Sean Farhang analyzed extensive data that reveals how corporate America turned to the legal system to win the victories it had been denied through lobbying. “Recognizing that, as Lewis Powell had written in 1971, the courts were fertile and unploughed territory for such a campaign,” wrote Burbank and Farhan, “those seeking to retrench private enforcement turned to that institution and were well rewarded. Litigation seeking to narrow private rights of action, attorneys’ fee awards, and standing, and to expand arbitration, achieved growing rates of voting support from an increasingly conservative Supreme Court, particularly over the past two decades.”⁶ Big business appreciated that it was more efficient to have the courts themselves slip in rule changes in seemingly abstract or complex legal decisions than fight legislative battles under the bright lights.

Political scientist Paul Pierson called this approach purposefully “subterranean,” designed to be “invisible at the surface” but leading to “long-term erosion,” like “termites working on a foundation.”⁷ With a sleight of hand, the court has hollowed out Americans’ ability to pursue legal remedies with no one the wiser.⁸ The scholars’ statistical analysis shows that “in the period 1970 through 2013, Supreme Court justices have increasingly forged majorities for anti-private-enforcement decisions and that the justices’ votes on those issues have been increasingly influenced by ideology, leading to a wide gap between the Court’s liberals and conservatives.”⁹

As deep as the divide is between the Republican and Democratic appointees over substance, it is a chasm over decisions interpreting procedure.¹⁰ Unfortunately, these decisions are often overlooked, both by Congress, which could overrule many of them, and by the public, because they seem abstract with little relationship to everyday life. We on the left need to remember that people mobilize over broad policy battles—health care and immigration—but not over the minutiae of court procedure that blocked a suit or allowed it to advance; we should be bolder in fighting these battles because the consequences are enormous for policy and the cost is low in terms of political capital (it’s hard to make an attack ad out of civil procedure changes).

TERMITES IN THE COURTHOUSE

While most of us were unaware, beneath the surface, the termites were at work, eating away at the supports for our justice system. At its most basic, corporate America and its allies have slammed the courthouse door on “we the people”: by limiting who can bring a case, by setting unrealistically high standards to even make a complaint, and by making it harder for people who have suffered similar harms to join a case together.

Created by judges, the “standing doctrine” has defined and constrained who can bring an action in a court of law. Someone filing a lawsuit thus has to say, “I have been hurt (sustained an injury in the language of the judicial system) or will be hurt soon (imminently) by the defendant (traceable to the defendant’s conduct) and the court can stop the harm or give me money or other damages to compensate me.” That makes a certain amount of sense, but conservatives have interpreted the terms “injury,” “imminent,” and “traceable to the defendant’s conduct” in such a way as to turn away many valid claims.¹¹ The Constitutional Accountability Center’s David Gans credits Justice Antonin Scalia for advancing this cramped view. Gans writes, “Scalia argued that the Constitution strictly limits Congress’s authority to give individuals a right to sue to enforce federal rights.” Quoting legal scholar and poverty advocate Gene Nichol, Gans explains how Scalia’s approach put a thumb on the scale, using standing doctrine to “‘fence out disfavored claims,’ repeatedly invoking the ‘toughest standing hurdles’ in cases in which racial minorities had been victimized by the government. As a result, individuals who had previously turned to the courts to remedy systemic injustices—whether housing discrimination or the use of chokeholds by the police—were thrown out of court.”¹²

Scalia also had a significant impact on environmental law, and hence in protecting corporate polluters by advancing the view that individuals may not bring a case on another’s behalf but only for injuries they have personally suffered. Nor may they sue over a general grievance common to many taxpayers or citizens—like drilling in a national park or killing off an endangered species. In the controversial 1992 case Lujan v. Defenders of Wildlife, Scalia severely constrained the ability of environmental groups to litigate as representatives of their members, a decision Justice Harry Blackmun in his dissent described as a “slash-and-burn expedition through the law of environmental standing.”¹³ When it came to companies that wanted to challenge environmental regulations, however, Scalia had a much different approach. In an overview of Scalia’s legacy for the environment, reporter Patrick Parenteau characterizes it as almost uniformly destructive: “To establish standing, a plaintiff must show how it is injured by the action being challenged. Scalia applied a more liberal test of injury for industry plaintiffs than for environmental plaintiffs. Standing was presumed whenever industry alleged that a government action might cause undue economic harm but not when an environmental organization alleged that the same action would cause undue environmental harm.”¹⁴

Plaintiffs who make it over the standing hurdle must describe a plausible set of facts to establish a legal claim. This is the “pleading” component of litigation. Recent Supreme Court decisions have taken a sledgehammer to the concept of notice pleading, in which the injured party had only to state a claim generally to move forward. With the adoption of the Federal Rules of Civil Procedure, a plaintiff would describe her claim in simple terms in her complaint. If the allegations were sufficient to state a legal claim, the parties would begin discovery to find out the facts sufficient to prove or disprove the allegations.¹⁵ With facts in hand, judges and juries could make decisions about whether to dismiss a case or let it go to trial and assess damages. The basic process was fairly simple: the victim would allege that she was a woman, had been fired, had all the skills necessary and good work performance, and that she’d been replaced by a man. But now, after two Supreme Court cases, plaintiffs must have a “plausible” claim, that is, they must state more facts about what happened than had been required before.¹⁶ Thus, a victim of employment discrimination, for example, would have to know facts about her firing before she files a claim; for example, she would have to have the documents or emails or witnesses who could directly speak to the allegation and evidence that in the past she would have been able to acquire through the discovery process.

For civil rights plaintiffs, in particular, the discovery process, which allows access to an employer’s documents or to witnesses, has been the only way to find out the truth. It isn’t surprising that in most cases where employees believe they have been fired or paid less because of their sex or race, the boss is not likely to make a public announcement saying, “I fired her because she’s black” or “I demoted her because I think women should earn less.” Instead, when a woman strongly suspects her wages are lower than those of her male colleagues, she needs access to information about her supervisors’ private meetings, any meeting notes,documents dealing with salary issues, and who might have been party to the decisions or know something about them. Unsurprisingly, employers take great care not to share this information with anyone. The upshot is that if a woman who has been paid less has good cause to believe the unfairness is due to sexism, a court can nonetheless dismiss her case if she doesn’t yet have a smoking gun as evidence. Erwin Chemerinsky points out that now “the chance of a meritorious complaint being dismissed is high because many plaintiffs do not have the necessary facts prior to discovery…. The approach adopted by the Court meant that many plaintiffs, including in constitutional cases, will never get to that point.”¹⁷ Finally, if a plaintiff climbed over these two high hurdles, she must now usually go it alone rather than suing as part of a class action. In Wal-Mart Stores, Inc. v. Dukes (2011), the Supreme Court made it significantly harder for workers to join class action lawsuits to pursue their rights by giving a very narrow reading to the Federal Rule of Civil Procedure number 23. The Court’s “interpretation” of rule 23 was dubbed “undemocratic legislation” by scholars because what the court did was, in fact, rewrite the rule.¹⁸ When the decision was announced, SCOTUSblog, the website pored over by Supreme Court followers from both the Right and the Left, had this comment: “For large companies … the ruling offered a … message: the bigger the company, the more varied and decentralized its job practices, the less likely it will have to face a class-action claim.” These limits to access to class action suits for employees facing widespread and systematic discrimination make it literally impossible for low-wage workers to seek justice.¹⁹

These court decisions didn’t come out of nowhere. A coalition of banks and retail companies had joined together in a decadelong effort to develop a strategy to deflect lawsuits and immunize themselves from having to pay damages to harmed consumers and workers. In a deeply researched three-part series, the New York Times exposed the history and the impact of this corporate effort to privatize our civil justice system. Reporters Jessica Silver-Greenberg and Robert Gebeloff explain how the coalition’s efforts “culminated in two Supreme Court rulings, in 2011 and 2013, that enshrined the use of class-action bans in contracts. The decisions drew little attention outside legal circles, even though they upended decades of jurisprudence put in place to protect consumers and employees. One of the players behind the scenes, the Times found, was John G. Roberts Jr., who as a private lawyer representing Discover Bank unsuccessfully petitioned the Supreme Court to hear a case involving class-action bans. By the time the Supreme Court handed down its favorable decisions, he was the chief justice.”²⁰

Conservative activists—judges and lawyers—have also crafted doctrines that limit suits against the government for civil rights and constitutional violations. In most circumstances, court doctrine now prohibits any suit against a state, no matter how egregious the violation of rights has been. Despite the fact that there’s no historical basis for reaching the conclusion that the Constitution precludes such suits, the Supreme Court has nonetheless found states immune when they are accused of violating someone’s federal rights, including their constitutional rights. Chemerinsky argues that the Supreme Court’s support of the sovereign immunity doctrine has no basis in the text or history of the Constitution.²¹ Indeed, he writes, “the idea that a state can violate the law and nowhere be held accountable is inconsistent with the most basic notions of justice and with the view that federal courts exist to enforce the Constitution and laws of the United States.”²² Originalism, supposed to be content with finding support in the explicit text of the Constitution or clearly implied understandings, cannot make a case for sovereign immunity—but conservatives have no problems with this outcome. It is dismaying that those who claim to know what the founders thought have forgotten the wise words of our fourth chief justice, John Marshall, who observed, “To what quarter will you look for protection from an infringement on the Constitution, if you will not give the power to the judiciary? There is no other body that can afford such a protection.”²³

TERMITES ON COMMITTEES

In addition to the court decisions scaling back access to justice—and even less visible to the public—conservative jurists have other tools to short-circuit the ability to sue, such as by using the rulemaking process that Congress assigned to the Supreme Court in the Rules Enabling Act (REA) of 1934.²⁴ The REA established the judiciary’s authority to draft and issue the Federal Rules of Civil Procedure and also bestowed on the Supreme Court the power to name members to the Advisory Committee on Federal Rules, which proposes amendments to the rules for the justices to review. These rules address the basic operations of the courts and have an enormous impact on whether a lawsuit will be successful. In 1971, Chief Justice Warren Burger, who shared the concerns of the Chamber of Commerce and his colleague on the court Justice Lewis Powell that there was an explosion of litigation in the federal courts, saw the committee as another avenue to achieve his goal of limiting lawsuits. While the cases that troubled Powell were the consumer and environmental cases, he also fretted that the success of civil rights litigation resulted in significant “business expense.”²⁵

Burger and the subsequent chief justices, all Republican appointees, have been able to drive changes through the appointment of like-minded judges to the advisory committee, with the result that Republican appointees have served at a rate 161 percent higher than Democratic appointees.²⁶ Professor Alan Morrison, then at the Public Citizen Litigation Group, critiqued the committee for being dominated by judges, and for the fact that the few practitioners on the committee were all lawyers whose work involved defending corporations.²⁷ According to a statistical analysis by Stephen Burbank and Sean Farhang, “the predicted probability of a proposal favoring plaintiffs went from highly likely in the 1960s to zero in 2011.”²⁸ It is no surprise that the rulemaking process has provided corporations with more and more power to operate without liability for wrongdoing. The by-product, if not the direct intent, of closing off recovery for victims of bad products and employment discrimination is an elimination of remedies for those whose voting rights have been harmed. Fewer voters means fewer people who can elect legislators who might change those rules back.

Even as the conservative judges dominate the advisory committee, corporate interests have funded an outside effort to push interpretations of the rules that would further limit court access, most recently focusing on cutting back on discovery. Suja Thomas, a law professor who has attempted to bring attention to the impact of corporate efforts to influence the rules, describes how the companies have helped to fund a purportedly independent center at Duke University to train judges in how to understand the rules. The Duke Law School Center for Judiciary Studies’ advisory council convenes private meetings between judges and corporate lawyers, Thomas writes, “under rules of secrecy protecting the identity and affiliation of the speakers.” The participants work to draft an “interpretation” of the rules issued by the federal advisory committee to ensure that they will be read in a business-friendly way. The Duke Center then organizes “trainings” around the country for federal judges. “These guidelines are trumping the federal rulemaking process,” Thomas says. In the normal course, the federal advisory committee drafts rules and the Supreme Court reviews them. Congress has the power to veto them, although that rarely happens. It is only then that judges would interpret the rule.But with the corporate-funded training of federal judges, the judges get their interpretation already “baked in,” allowing the Duke Center’s cramped, pro-business understanding of the rules to gain near-official status.²⁹

UNRIGGING THE RULES

The courts themselves, the rulemaking process, and the Duke Center are all working diligently to prevent those harmed by corporate or government malfeasance from seeking relief. But we can’t cede this ground, and indeed there are many consumer and worker advocates, civil rights lawyers, and others who are trying to make sure the rules are fair. Here’s how: First, and most importantly, the progressive legal community must pay attention and publicize—and politicize—rules changes. Second, we have to prioritize mobilizing real people to file comments in the rulemaking process to contest the corporate interests, something that is critical and achievable. Connecting court rules to outcomes in court cases that affect people’s lives is also essential and again is doable. Last, organizations and individuals beyond the traditional players need to speak up. It is up to the lawyers to organize this effort, but engaging leaders and members of faith communities, civil rights and environmental organizations, and voting rights advocates would really reframe the narrative and help rewrite the rule book.

Paul Bland, the executive director of Public Justice, an advocacy group that fights predatory corporate conduct and governmental abuses, offers these words of advice to those who want to make a difference: “The rules that govern the procedures followed in federal and state court are generally amended through public processes, where committees of judges and lawyers consider proposals by reviewing comments from lawyers and the general public and then hearing from interested persons who come to testify at live hearings. While the vast majority of the comments that the rules committees receive tend to come from lawyers and professionals, there have been times when members of the general public have spoken out in powerful and important ways and had an influence on proposals.” He recollects how, with respect to the discovery rule changes, civil rights lawyers worked to get members of the public to write and say things like “I was discriminated against based on my gender, and my lawyers found these great documents that proved my case. But if I’d had to pay tens of thousands of dollars, I couldn’t have afforded them.” This effort “helped moderate the language of the final proposals. The final language was definitely a lot better than where they were starting.”³⁰

Advocacy groups, he notes, did a much better job in protecting access to class actions (rule 23) than they had done in the discovery rules fight because the civil rights groups and other new players got engaged much earlier. “At the outset,” Bland says, “there were all these proposals that were clearly aimed at slamming plaintiffs, making it harder for plaintiffs to get class actions certified. But this time, the civil rights and consumer groups were all very engaged right from the outset.” Progressive organizations invited members of the federal advisory committee to participate in conferences and discussions that included “listening to a bunch of consumer lawyers talk about what the proposals would mean for their cases, and also hearing a bunch of people talk about positive proposals to change the rules to enhance access to justice. Anyhow, the process ended up leading to a small package of proposals that were not partisan in either direction—meaning, they didn’t slam the plaintiffs’ bar and our clients, which in this context was a huge victory!”

Law professors Suja Thomas and Alan Morrison echo Bland’s suggestions. What’s really important, they both say, is to systematically track and respond to changes proposed by conservatives. “It’s not a plebiscite,” Morrison cautions. Our side needs to do its work, he says, filing comments and testifying at times; progressive legal groups need to make sure they read the minutes of meetings and talk to participants and try to learn what they might be planning. “We need to get ahead of it before the train has left the station,” Thomas reiterates. For example, progressives were late in proposing revisions to a 2017 proposal on litigation financing. The legal elite, as well as consumer and worker advocates and politicians, “should have been talking about it, but now it’s too late.” Morrison adds that the corporations in favor of restrictive rules brought together a disparate set of allies to weigh in, while those defending access to the courts have been less successful at getting diverse groups to file comments.

We are making progress, though, concludes Bland, writing that “historically, the process of amending the rules was more dominated by lawyers for large corporations, but in recent years, consumer and civil rights advocates have played a larger and larger role in influencing proposals to change the rules, and that has led recent amendments to be much more balanced.”³¹ Progressive legal groups like the NAACP Legal Defense and Educational Fund, the ACLU, and the American Constitution Society are doing their part by demonstrating diversity of support for court access—from civil rights advocates and environmentalists to women’s rights lawyers and civil libertarians. Beyond that, these groups are organizing legal strategies and amicus briefs and explaining our side to the media, something the business interests do without fail. Collectively, we need to bring in our supporters, from major foundations to wealthy liberals, to fund a hub that can aggressively challenge what the Right is doing. We need to hire dedicated staff to track, analyze, and draft comments; we need to mobilize lawyers and others to file those comments and litigate when necessary; and we need to educate Congress, which can always overturn those rules. All of this costs money. And of course, recommends Thomas, “we need to initiate changes; we can’t always be on the defensive. We have to figure out what we want and what we can do to protect rights.”

VOYAGE TO THE CENTER OF THE EARTH: KEEPING STATE COURTS SAFE FOR CORPORATIONS

If rulemaking in the federal courts takes place under the radar, what happens in the state courts is truly invisible to almost all of us. But the conservative termites are equally busy there, chewing away at the vital supports to our democracy by blocking court access and controlling judges. Approximately 95 percent of all cases in the United States are filed in state courts, with state courts handling the cases that are most likely to directly touch people’s lives: child custody, divorce, consumer disputes, and criminal prosecutions, but also lawsuits against companies for harm caused by pollutants or dangerous products as well as challenges to electoral districts and voter suppression.³² Similar to their efforts on the federal level, corporate interests and conservatives have worked through state legislatures to move bills limiting damages or cutting off lawsuits as well as to retaliate against judges who don’t cooperate.

A particularly noxious example—literally—of using the legislative route to change court rules is the North Carolina hog industry’s plot to block lawsuits for environmental degradation brought by members of the mostly low-income and minority communities that live near the industrialized operations. The coastal plain, home to most of the state’s hog farms, is where the majority of slave families lived before the Civil War, and it continues to have the densest rural population of African Americans in the state. In 2013, homeowners sued, claiming that the hog farms are “nuisances” and the companies ignored irrefutable scientific data proving the harm to nearby residents. Seeking damages and a jury trial, the residents also wanted the court to require the company to clean up the site. Research published in 2014 shows that these hog operations “disproportionately affect Black, Hispanic and American Indian residents.” UNC epidemiologist Steven Wing and public health professor James Merchant of the University of Iowa filed affidavits describing the copious research documenting the harms to the inhabitants, including burning eyes, high blood pressure, trouble breathing, headaches, and an increase in anxiety.³³

The hog industry decided that it would be better off if these cases would just disappear. So the companies worked with lawmakers to bar these mostly African American victims from protecting their property and their health in court. Over the veto of the governor, the North Carolina legislature passed legislation to ensure that the industry would not have to pay damages to property owners who live near “agricultural or forestry operations.” The main sponsor of the bill, Republican state legislator Jimmy Dixon, a retired hog farmer, pooh-poohed allegations about the legislation. He said opponents of his bill were making claims that were “at best exaggerations and at worst outright lies,” and he suggested that the victims who had brought the lawsuit were “being prostituted for money” by opportunistic lawyers.³⁴ Observers might question who is being “prostituted,” considering Dixon’s war chest was filled with hog-farming contributions.³⁵

North Carolina is no outlier. Amid the Right’s general efforts to make corporate America immune from liability by restricting class actions, imposing caps on damages, and instituting arduous requirements to file a case, agricultural interests have been particularly successful at exempting their businesses from generally applicable rules through a series of regulations known as “ag-gag laws.” According to the Humane Society, these provisions serve to “make it difficult or impossible for whistleblowing employees or animal advocacy groups to expose animal cruelty or safety issues. These bills can take a variety of forms, but the intent is the same: to punish those who expose patterns of animal abuse or food safety violations on factory farms, and therefore conceal these abuses from the public.”³⁶ The laws go so far as to impose criminal penalties on people who simply collect evidence.

Ag-gag laws are only one example of corporate efforts to preclude civil liability by changing the rules for litigation against business. In writing his memo, Lewis Powell had been particularly concerned about tort suits that imposed liability on corporations for polluting or selling dangerous products. Powell counseled business to invest not just in fighting back against litigation but also in scholarship, lobbying, and public relations to defend efforts to limit access to the courts. The Law & Economics Center at George Mason University has become a center for this work, running programs to indoctrinate judges and other officials in the harms associated with civil litigation. In addition to its judicial “education” project, George Mason has an Attorneys General Education Program and the Searle Civil Justice Institute, which has churned out reports and promoted “experts” to validate attacks on civil justice, calling lawsuits against corporations irrational and dangerous to the economy, when, in fact, the institute’s real interest is protecting corporate profits at the expense of product safety and a clean environment.³⁷

The Civil Justice Reform Group (CJRG) helps fund the lobbying and litigation that rely on the type of scholarship produced at George Mason and other tort reform think tanks. Made up of the general counsels of major companies, the participants include BP, Bristol-Myers Squibb, Chevron, Exxon, GlaxoSmithKline, Johnson & Johnson, and Koch Industries, among others. The CJRG provides resources to the front lines, without leaving fingerprints. According to the American Tort Reform Association’s Victor Schwartz, the CJRG is able to “do things in a quiet and effective way without fanfare.”³⁸ The American Association for Justice, a group made up of plaintiffs’ lawyers, sums up the common interest that welds this group together: “These companies produce vastly different products and services—such as Merck’s Vioxx, W.R. Grace’s asbestos products, Ford’s Pinto, and BP’s oil spill in the Gulf of Mexico—but they share the common goal of making it harder for injured plaintiffs to hold them accountable for their actions. Their combined resources and coordination make the CJRG one of the most powerful tort ‘reform’ groups.”³⁹ Its partners include the Chamber of Commerce Litigation Center, which serves as the legal flank, while the American Legislative Exchange Council provides legislative heft.

The civil justice system, however, is not just for tort suits. It’s also the system that adjudicates our political rights, and the more the courts are controlled by the Right—through judges who are compliant, rules that are rigged—the more they deny civil rights plaintiffs their day in court. That includes discrimination claims but also efforts to enforce laws that guarantee political participation; few Americans are aware of the fact that state courts decide the vast majority of significant voting cases.⁴⁰ While the expressed intent of these think tanks is to cut off corporate liability for unsafe products, the impact is widespread. And when corporations find that they no longer have to pay damages to victims, they have more money in the till to reward right-wing legislators. And the more these legislators protect corporations from paying for their wrongdoing, the more these corporate special interests invest in the tools to keep their friends in power: voter suppression laws and gerrymandered districts. Why kill the golden goose? Better to feed it.

THROW OUT THE JUDGES—FOR THE SAKE OF THE KIDS

But sometimes, even after passing legislation barring lawsuits against industry, companies still find that judges are standing in their way. Their answer: change the judges or intimidate them into changing how they decide cases. When Citizens United unleashed corporate money in elections, a surprising amount of it went into spending on state judicial races, where costs were low but benefits great—for business, having a friendly judiciary is a cheap way to buy immunity from lawsuits. In the 1989–90 campaign cycle, state supreme court candidates raised less than $6 million, but by the 2007–8 cycle, candidates had raised over $45 million for their campaigns. And after Citizens United, more of the funding is coming in the form of independent expenditures. For example, in the 2011–12 campaign cycle, independent expenditures accounted for almost half (43 percent, or $24.1 million) of the $56.4 million spent in judicial elections during the cycle. Alicia Bannon, an expert on state courts at the Brennan Center for Justice, explains, “Who sits on state courts can have a profound impact on the legal landscape in a state, and special interest groups and politicians are increasingly paying attention.”⁴¹

Arkansas provides a chilling example of the danger to judges who buck conservative interests. Despite an otherwise conservative bent, Arkansas has been a state without limits on punitive damages when a business commits a serious wrongdoing. Unhappy with the potential for liability, certain business interests worked to pass legislation to cap damages, but their success was thwarted by a court decision that rejected provisions of the law.

Like waving a red flag in front of a bull, the court decision infuriated conservative forces, which decided to throw the judges out. With over $1 million invested in 2016, several dark-money groups, including the Judicial Crisis Network, used television ads and direct mail to attack the two allegedly liberal candidates in the state supreme court races. The TV spending more than doubled previous expenditures for advertising in what used to be dull campaigns. Justice Courtney Goodson, who committed the unpardonable error of writing the majority opinion in the case limiting the tort reform law, was attacked as being in the pocket of trial lawyers and an ally of President Obama, both unpopular in Arkansas. Goodson had also written the opinion that struck down the state’s photo ID law. Strike two. Another candidate who was judged too friendly to plaintiffs also faced attack ads financed by the Chamber of Commerce, tobacco company Reynolds American, Walmart, and other major corporations. The candidate they favored was the state legislator who had drafted the bill to limit punitive damages for victims.⁴² Goodson and the other “liberal” candidate lost.⁴³ In 2017, the state legislature passed a bill to put a cap on lawsuit damages on the 2018 ballot—this time around, the court is unlikely to find a problem.⁴⁴

What often gets lost in the coverage of campaign mudslinging is the damage being done to average people. With the ads largely financed by corporations and conservative groups, judges are moving to the right to preempt any efforts to criticize them on the air. Although the true interest, at least for the corporate parties, is to defeat candidates who might hold them accountable for pollution or harm to workers, they don’t want voters to know their true motivation. Instead, they camouflage their interest in liability protection behind racially charged ads accusing candidates of being soft on crime—with a demonstrable impact on how judges handle criminal cases. Whether it is intended or not, the attack ads are undermining criminal defendants’ chance at a fair hearing in court. The “Willie Horton” approach works in state court races just as it did in George H.W. Bush’s campaign against Michael Dukakis.

In one famous example, described by Justice Ruth Bader Ginsburg, “coal executive Don Blankenship lavishly funded a political action committee called ‘And For The Sake Of The Kids.’ That group bought advertisements accusing Justice Warren McGraw of freeing a ‘child rapist’ and allowing that ‘rapist’ to ‘work as a janitor at a West Virginia school.’”⁴⁵ Blankenship’s agenda, however, had nothing to do with protecting children and everything to do with overturning a large damage award against his company. Citing a study by the American Constitution Society on the impact of such advertising, Ginsburg wrote that “disproportionate spending to influence court judgments threatens both the appearance and actuality of judicial independence. Numerous studies report that the money pressure groups spend on judicial elections ‘can affect judicial decision-making across a broad range of cases.’” Quoting from the American Constitution Society’s Skewed Justice report, Ginsburg noted that the “explosion in spending on television attack advertisements … has made courts less likely to rule in favor of defendants in criminal appeals.”⁴⁶

For those who think the Left might just plunge in and run our own ads challenging judges who rule too harshly, think about the fact that the Right’s ads play to fear—fear for family and children, worries about child molesters and dangerous cities, anxiety about crime and loss of property. Our ads would require empathy; it would be a rhetorical battle between a nightmare for me and my family versus an altruistic concern for someone I don’t know. Unfortunately, human nature tells us which ad is more powerful. But as I am an optimist, I hope that renewed efforts at criminal justice reform will give the Left a new language that appeals to the broader public, challenging judges who are too quick to incarcerate and too harsh in sentencing.

Another avenue the Right has exploited for punishing uncompliant judges is to change their terms or the court’s jurisdiction. Republican lawmakers have been pushing changes to systems of electing, appointing, or retaining judges and trying to limit the power of state courts to overrule the legislature. Alicia Bannon and Nathaniel Sobel of the Brennan Center report that “many bills reflect apparent attempts to increase political influence over the courts, entrench partisan interests, or respond to unpopular judicial rulings. They also align with broader trends toward the heightened politicization of state courts, raising concerns that it will become increasingly difficult for judges to put aside partisan and ideological preferences when deciding cases.”⁴⁷ What Bannon and Sobel leave unstated is that all of these efforts come from the Right—to help corporate interests and ensure that courts won’t protect workers or gays or side with Democrats and minorities when the legislature blocks them from participating fairly in the democratic process.

North Carolina once again illuminates the playbook of the Right. In 2016, after Democrats won the governorship and hence the ability to appoint judges, the Republican-controlled state legislature quickly moved to keep the conservative majority in the courts. They raised the retirement age of judges so that the new governor, Roy Cooper, couldn’t fill the seats that were about to open up with the imminent departure of several judges. The legislators also adopted a law to shrink the intermediate appeals court, eliminating three seats so Governor Cooper could not fill them and add liberals to the bench. They wanted to make sure that the legislators’ partisan and racial gerrymander—of the statehouse, congressional seats, and judicial districts—would not be overturned by the courts.

By stripping courts of the ability to hear cases against corporations, limiting damages, and punishing judges who don’t toe the line, the Right has turned our state court systems into tools to control government. Progressives cannot simply sit back and allow our “least dangerous branch” to become a subsidiary of Koch Industries and an enormous weapon against liberal values. We need to include in our plans a resourced campaign to take the rules back so that good judges can apply them. Because if those whose rights have been violated can’t get into the courtroom, it doesn’t matter if the judges are fair or whether they’re biased—we lose.

Taking the rules back in state courts is primarily a legislative battle. As the Left builds more capacity for state policymaking, through groups like the State Innovation Exchange (SIX) that provide substantive support for lawmakers, a focus on court rules must be a critical piece. Just as at the federal level, lawyers and legal policy advocates must educate and engage a diverse constituency who will explain to voters how barriers to the courthouse limit their rights to clean water and political participation. Trial lawyers are a wealthy constituency who can help provide resources to diverse groups to engage in rulemaking, allowing those voices to frame the agenda rather than the traditional players. We need a set of model bills, draft hearing testimony, a grassroots organizing plan, and political campaigns to elect receptive litigators—it’s not a difficult plan to understand, but it needs money.

In addition to getting better rules, we have to select or elect, depending on the state, judges who believe that courts exist to allow people to enforce their rights. We need to overcome any antipathy to electing judges in states where that happens, getting political donors and organizations to make these races a priority. The Judicial Crisis Network is a small group with an enormous reach—it channels donations from anonymous funders not only to pressure U.S. senators on federal judicial nominations but also to fund right-wing judges’ state campaigns. These races are not expensive and there’s no reason that the Left could not go toe-to-toe with the JCN by reminding voters of that organization’s agenda—corporate immunity for environmental disasters and worker injuries, barriers to reproductive rights, and harsh criminal justice policies.

SHUTTING DOWN CITY HALL: PREEMPTION IS TURNING FEDERALISM ON ITS HEAD

With marked success in controlling both federal and state courts, the federal government, and statehouses, conservative interests could be expected to feel that they have earned the right to relax. But there is one level of government that has not been so easy for them to dominate—cities and municipalities, which often lean left. Across the country, some of these jurisdictions have passed legislation to raise the minimum wage or to provide workers with paid sick leave or to ban fracking. Rather than battle these provisions one by one, the Right has developed a much more efficient approach: preempt them. Speaking to an Austin-based conservative think tank, Texas governor Greg Abbott explained the rationale: “As opposed to the state having to take multiple rifle-shot approaches at overriding local regulations, I think a broad-based law by the state of Texas that says across the board, the state is going to preempt local regulations, is a superior approach.”⁴⁸

North Carolina, thanks to mini-Koch Art Pope, provides a microcosm of the varied Republican tactics to destroy the democratic process: gerrymandering, vote suppression, rigging the courts, but it doesn’t stop there. While much of the attention was focused on it being the “bathroom bill,” the state’s SB 2 had more to it than that. Even as the Republicans in the legislature were attacking Charlotte’s ordinance making it illegal to discriminate against gays and lesbians and protecting the rights of transgender people, they also prohibited every city in North Carolina from adopting any similar rules and from raising the minimum wage.⁴⁹ Gerald Frug, a Harvard Law professor who writes about localism,told David Graham of The Atlantic, “Most people think, We have an election here, we elect a mayor and our city council, we organize our democracy—we should have a right to control our own city in our own way. You go to any place in America and ask, ‘Do you think this city can control its own destiny?’ ‘Of course it can!’ The popular conception of what cities do runs in direct conflict with the legal reality.”⁵⁰

Working with state legislators, the American Legislative Exchange Council has provided model preemption bills and served as a cheerleader and strategic adviser, with great success.⁵¹ Cities are seeing their power usurped by state legislatures on issues from safe working conditions, fair pay, sick days, and family leave to anti-fracking rules to public health. By May 2017, 24 states had moved to preempt minimum wage increases, 18 had blocked paid sick days, 3 had stopped provisions to protect LGBTQ individuals from discrimination, 17 had put a stop to local efforts to set up municipal broadband service, and 6 had overridden fracking bans. And that was just the beginning.⁵² “We are about to see a shit storm of state and federal preemption orders, of a magnitude greater than anything in history,” says Mark Pertschuk of Grassroots Change, a group founded to fight preemption and to protect local health and safety legislation.⁵³

When Birmingham, Alabama, raised its minimum wage, it provoked a swift and fiery reaction from the statehouse. Legislators quickly passed legislation stripping local governments of the ability to raise the local minimum wage. The law, though applicable to every city in the state, was clearly designed to target Birmingham, the only jurisdiction that had increased its minimum wage—and one that is 72 percent African American. The NAACP, residents of the city, and the Alabama Legislative Black Caucus decided to fight back, suing the state for constitutional violations. In the complaint, they argued that the law preempting local wage increases demonstrated “racial animus” due to its reliance on the 1901 state constitution, which had been adopted to institute segregation and white supremacy. Citing violations of the Equal Protection Clause of the Fourteenth Amendment and the Voting Rights Act, the city’s residents complained that the law denies them a local government when it comes to their economic interests by taking authority from those they elected and giving it to state legislators.⁵⁴ The head of the National Employment Law Project, Christine Owens, called the state legislature’s action a usurpation of local control driven by racist politics: “The days of a Jim Crow economy should be long-gone, but sadly, the refusal of Alabama’s legislature to allow Birmingham to meet local needs through appropriate local measures signals the past persists.”⁵⁵

Birmingham lost in district court in 2017 but successfully appealed the dismissal of its Equal Protection claims to the United States Court of Appeals for the Eleventh Circuit, which sent the case back to the district court for further proceedings.⁵⁶ Whatever happens, the suit underscores the true intent behind advocates of preemption and why ALEC and the Right have been pushing it (and, might I add, why who sits on the court bench matters desperately). Cities tend to be more diverse and more progressive than the rest of their states. This is true across the country, with most white Americans living outside of cities and only 10.5 percent of them residing in the country’s largest twenty cities. African Americans also support a minimum wage increase by 89 percent, while whites oppose it by 54 percent.⁵⁷ In the midst of controversy over Confederate monuments in 2017, some states banned any local action to remove them or even to rename public spaces. Laws that have been on the books in North Carolina and Tennessee prohibiting local governments from moving statues were subsequently proposed in Alabama, Louisiana, Mississippi, and Virginia.⁵⁸ Preemption, and the determination of rural and suburban whites to trump the desires of urban voters, has more than a whiff of racism—it stinks of it.

Not only do these preemption laws tie the hands of local leaders to respond to local problems, they also often impose serious penalties on mayors and city councils who don’t sufficiently conform to the rules. In Florida, a gun law adopted in 2016 allows aggrieved gun owners to sue local officials, subjecting the officials to fines and penalties and even removal from office if they adopt gun restrictions. Two pro-gun groups brought an aggressive lawsuit against then Tallahassee mayor (and current gubernatorial candidate) Andrew Gillum, not because he urged passage of gun control ordinances but because he did not work to undo those still on the books. Gillum, defending himself without the city’s legal team—because the preemption law bars reliance on any public resources to contest such lawsuits—argued that no action was necessary since the city’s provision was null and void after passage of the state law. Gillum won in court, but it was a narrow decision and the fines are still in state law. Laws like these not only restrict local control but also intimidate local leaders so that they are scared to defend the interests of their communities.⁵⁹

Taking a rare stand for consistency, commentator Max Bloom criticized his fellow conservatives for pushing to strip authority from local governments. In National Review, Bloom suggested his readers examine their commitment to federalism as a bedrock principle.

Suppose that we have on our hands a federalist-minded conservative. It comes to his attention that, say, Hawaii has done something silly. Perhaps the well-meaning folks in Honolulu have increased the minimum wage to $15 an hour; perhaps they have decreed that rents cannot increase faster than inflation; perhaps they have decided that what the University of Hawaii at Manoa really needs is another three dozen gender-studies professors. Ours is a good conservative, so he shakes his head in dismay and suppresses a chuckle—but he is a good federalist, too, so he accepts that, strange and unfortunate though the ways of others may sometimes be, Hawaii is Hawaii’s to ruin.⁶⁰

For the Right, however, the commitment to federalism has been cast aside in favor of the desire to prohibit local control and progressive policymaking. Indeed, the trend is getting worse. Preemption of specific laws is giving way to “blanket” or “super” preemption, which allows a governor by fiat to find a local ordinance or regulation out of compliance with state law. In 2016, Arizona adopted legislation dubbed the “mother of all preemption bills” that would cut off state funds for any cities or towns that adopt policies in conflict with state legislation, a decision made by the Republican attorney general.⁶¹ Gone are the days when conservatives were sentimental about local control and the need for Main Street, and not just K Street or Wall Street, to have a say in the policies governing people’s lives. Today, conservatives are deeply cynical about federalism, continuing to support it only when it advances a right-wing vision for America. Ohio Republican state senator Keith Faber made this clear: “When we talk about local control, we mean state control.”⁶²

Donald Trump’s America is one where state Republicans feel empowered to snatch away local powers, making it harder to address community challenges and imposing legal and financial penalties for any hint of deviation from the state’s corporate-friendly policies. Sometimes, the citizens push back and use the ballot-initiative process to advance their views in defiance of the state legislature. But the Right has an answer for that too: after seeing several successful referenda providing minimum wage increases and paid sick leave, ALEC has been pushing to cut off this work-around. In a 2006 resolution, ALEC stated, “The legislative process should be the principal policy-making vehicle for developing state law.”⁶³ It is no surprise in polarized and racist America that suburban and rural white legislators are silencing black, brown, and liberal white voters, even when the latter are in the majority.

The Right is operating at the subterranean level; taking whacks at city self-government doesn’t get much attention and so few people understand the effect it has or the intent behind it. But there is resistance. A determined group of lawyers and activists around the country are tracking the efforts and working on strategies of opposition. Housed at Fordham Law School’s Urban Law Center, the scholars and advocates at the Local Solutions Support Center (LSSC) are advancing ideas to bolster the ability of cities to enact science-based, inclusive, fair, and innovative laws. Working across issues, from the environment to labor to anti-discrimination, they are developing legal theories to protect local control based on federal and state constitutions.

For those concerned about protecting urban jurisdictions against state overreach, there are several promising avenues for litigation by which lawyers and nonlawyers alike can make a difference, including establishing a thorough record as preemption legislation is being considered by testifying about the negative impact of the law or, better, by drawing out supporters of the preemption bill to speak to their real intentions about why they don’t trust “urban” voters to make decisions about their own welfare. When legislation is based on animus against gays or certain religions or races, or advances a religious agenda, this work can help prepare the constitutional lawsuits. Advocates are also developing proactive approaches such as drafting antipreemption provisions to insert in state bills and initiatives.⁶⁴ LSSC’s legal memorandum acknowledges that the Right has a jump on progressives.

There is no denying it was the long-term commitment to reframing the legal debate and training judges and lawyers made by conservative funders starting three decades ago that has helped define and given rise to the current, daunting legal and legislative environment. To prevail ultimately, a similar investment of resources over time will need to be made in progressive localism. While the LEAP [LSSC’s former name] research, tools, and legal strategies … are an important first step, especially to counter the escalating threat of preemption, it is important to consider how this work could constitute a start on a long-term law reform movement. Through strategies like constitutional and legislative reform, work with think tanks, training of judges and state/local government attorneys, and linking with broader progressive local movements, such an effort could ultimately transform the legal and legislative landscape and support adoption of a robust, progressive view of local authority.

The work we do to build a progressive judiciary and adjust court rules will also build our legal bench and advocacy capacity. Preemption is a cross-cutting problem—like the Right’s domination of the courts, it harms all of the Left’s priorities and we must attack it in the same systemic way, not piece by piece but by addressing the system, not the issues.

REWRITING THE BIGGEST RULE BOOK OF ALL

In one last grand dirty trick, to make their lock on power unassailable, conservatives are moving to change the rules that count the most: the provisions of the Constitution. With increasing control of state legislatures, many conservatives think it is a propitious moment to convene a constitutional convention and jam through all the changes they cannot implement through legislation because they are now unconstitutional. Historically, changes to the United States Constitution have been made by amendment, approved by at least three-fourths of the state legislatures—thirty-eight states—after receiving the support of a two-thirds majority in both the House and Senate. But under Article V, the Constitution also allows two-thirds of the state legislatures to demand a constitutional convention. Republicans now control thirty-three state legislatures, putting victory in their grasp. The governors play no role in this process and cannot block it. This process has never been used in U.S. history.

“Various activist groups have sought to amend the constitution on specific points through an Article V convention before,” writes journalist Brendan O’Connor, “but few have been as well-funded or as ideologically driven as the Convention of States Project, steeped in evangelical Christianity and backed by millions of dollars in dark money. Between 2011 and 2015, the group’s budget more than tripled to $5.7 million—buoyed by donations from the Mercer Family Foundation and various donor-advised funds linked to the Koch brothers.”⁶⁵ The Convention of States Project is a special program of Citizens for Self-Governance, with Jim DeMint, former South Carolina senator and former head of the Heritage Foundation, as its senior adviser. The group’s objective is to use a convention to “impose fiscal restraints on the federal government, limit its power and jurisdiction, and impose term limits on its officials and members of Congress.”⁶⁶ This approach would rewrite the most important rules of all, set down in the Constitution, with grave consequences, particularly for vulnerable people—minorities, women, the LGBTQ community, children … everyone. While the group seems extreme—it calls the IRS, the EPA, and the U.S. Supreme Court “abuses of power”—it is deeply embedded in the conservative infrastructure, with close alliances with the Tea Party and ALEC, and funding from the Koch brothers.

Speaking to a group of ALEC members, DeMint touted all the accomplishments that could be achieved by invoking Article V. “So many look to Washington to make America great again,” DeMint told an ALEC panel at the group’s 2017 policy conference. “Washington cannot do it and it will not do it.”⁶⁷ In his speeches, DeMint rallies his audience by suggesting that the constitutional convention would overturn Roe v. Wade and Obergefell v. Hodges, the 2015 decision on gay marriage.⁶⁸ Mike Huckabee, former Arkansas governor and two-time GOP presidential candidate, plugged the Convention of States initiative at ALEC’s July 2015 conference in San Diego. Article V, Huckabee advised the audience, is the “only way” to cut back on federal powers and would serve to overturn U.S. Supreme Court rulings with which ALEC conventioneers disagreed. “It is not the law of the land because five unelected lawyers in black robes said it,” Huckabee argued. “They don’t have that power.”⁶⁹

Some on the left have embraced Article V efforts with the naïve hope that a convention would overturn the Supreme Court’s Citizens United decision, but so long as power remains definitively in the hands of Republican-dominated state legislatures, they are on a fool’s errand. Led by Harvard law professor Lawrence Lessig, their call for a convention channels frustrations with a nonresponsive government similar to those heard on the right. In 2011, Lessig teamed with the right-wing Citizens for Self-Governance to host a conference promoting the idea of a new constitutional convention.⁷⁰

Most legal scholars, however, believe that the idea of limiting a convention’s scope is a pipe dream. At a 2011 event examining constitutional convention proposals, Harvard law professor Laurence Tribe, a renowned constitutional scholar, argued that a “runaway” convention could easily occur because there is no agreement or legal authority on what any constitutional convention would look like in the first place. There are numerous unanswered questions, Tribe said, regarding the constitutional convention process under Article V. Ultimately, a constitutional convention would essentially “put it all up for grabs,” and his doubts about a convention overcame his desire to try for progressive amendments.⁷¹

That’s why most groups that want to see Citizens United reversed oppose joining in the Article V process. Common Cause, one such organization, “strongly opposes an Article V convention, even as we strongly support a constitutional amendment to reverse Citizens United. We oppose a constitutional convention because we believe there is too much legal ambiguity that leads to too great a risk that it could be hijacked by wealthy special interests pushing a radical agenda that poses a very real threat to American democracy.”⁷²

The danger is great. With ALEC’s leadership, state legislators are moving legislation to force an Article V convention. Such a convention would very likely adopt constitutional amendments that would make it impossible for Congress to enact social welfare legislation and could attack fundamentals of democracy, such as the right to vote. The Koch brothers have eyed the convention process as another avenue to deconstruct regulations on their businesses and taxes on their vast wealth. And imagine the ubergerrymander that would come out of such a gathering—there’s no doubt that these extremists would try to lockdown power for an eternity.

With partners like Common Cause and the Center on Budget and Policy Priorities, however, progressives are pushing back on what the Right had hoped was an inevitable march to a convention. Joining with conservative state legislators who fear what might be unleashed in a chaotic convention, these groups have so far been able to stall the progress of the pro-convention forces. During the 2017 legislative session, Republican-led legislatures in Idaho, South Dakota, North Carolina, Utah, and Wyoming rejected efforts to support a convention and several Democratic legislatures scrubbed calls for a convention that had been passed long ago.⁷³ Still, we are too close for comfort, and progressives must remain vigilant.

Procedural rules may be dry, but they set the terms for whether progressives will win or lose. Affecting everything from whether children are harmed by dangerous toys, farmers whose crops are destroyed by a toxic chemical can bring a lawsuit, or victims of sexual harassment can have their day in court, they also can hinder whether the Left can challenge voter suppression laws or districts that lock in Republican victories. That’s why we cannot abdicate the fight over the courts but need to advance and elect our own judges. And, more than that, we also need to fund a campaign to draft the rules these good judges will apply. It is also incumbent on us to organize against stealth efforts to rob urban areas of their legislative powers and to upend our constitutional structure—all of this is at stake in statehouses. We must provide the resources for our own version of ALEC, which would advance procedural as well as substantive legislation and educate progressives on why the Article V convention won’t solve our Citizens United problem but in fact could make it far worse.

The Left has woken up recently to the fact that there are fifty states in the United States and that in many, if not most, we have an opportunity to advance a progressive agenda but only if we fund leaders, policy development, and courts to devise and protect those efforts. Jay Cost, writing for a conservative audience in the Weekly Standard about the rise of Donald Trump, puts it plainly, and we on the left should heed him: “Changing the rules of a game can change the outcome of the game.”⁷⁴ It’s hard to say it more clearly than that.