The Lewis Powell Court

Senate Session, Part 2

The Senate confirmed, in a 51-48 vote, Kristen Clarke’s nomination for assistant attorney general for civil rights at the Justice Department. Senator Collins (ME) was the only Republican to vote “aye.” Members also continued work on a bill to create new science and technology programs in an effort to compete better against China. 

Sheldon Whitehouse @4:53:17 ~ 15 min

Before I begin, may I just say a word of thanks to my two colleagues from Oklahoma for this moment that we’ve had on the Senate floor.

Mr. WHITEHOUSE. Madam President, there is a scheme afoot, a scheme I will be talking about in weeks ahead – a long-running, right-wing scheme to capture the Supreme Court.

Special interests are behind the scheme. They control it through dark money – hundreds of millions of dollars in anonymous hidden spending. We will dwell in later speeches on how the scheme operates. This first speech seeks its origins. The scheme is secret, and because of its secrecy, it is hard to know exactly where the story should begin.

The one place you could begin is with a corporate lawyer – the Virginian Lewis Powell. An authorized biography of Lewis Powell by his fellow Virginian, renowned UVA law professor John Jeffries, reveals Powell to be a tough and incisive lawyer, willing and able to make sharp, even harsh, decisions, but a man of courtly and decent matters, well-settled in the White male social and corporate elite of Richmond, VA. There he developed his legal and business career through the 1950s and 1960s.

A successful corporate law practice often entailed joining corporate boards. Richmond was a home to Big Tobacco, and Powell’s legal career led him on to Richmond’s tobacco and other corporate boards. Richmond was Virginia’s sibling rival to Charlottesville, which could boast of Thomas Jefferson’s nearby Monticello, his renowned University of Virginia, and all the cultural and academic vibrancy bubbling around that great university. Richmond was the working sibling, hosting the State’s capitol and its political offices and serving as its corporate center.

Powell was an ambitious Richmond corporate lawyer, and the turbulence of the 1960s was broadly distressing to America’s corporate elite. The civil rights movement disrupted Jim Crow across the South, drawing out and exposing to the Nation the racist violence that had long enforced the social and legal norm of segregation and upsetting America’s all- White corporate suites and boardrooms.

Anti-war protesters derided Dow Chemical Company’s manufacture of napalm and scorned the entire military-industrial complex. Women’s rights protesters challenged all-male corporate management structures. The environmental movement protested chemical leaks, toxic products, and the poisons belching from corporate smokestacks. Public health groups began linking the tobacco industry to deadly illnesses, and lead paint companies to brain damage in children.

Ralph Nader criticized America’s car companies for making automobiles that were “Unsafe at Any Speed” and causing carnage on America’s highways. America’s anxious corporate elite saw Congress respond with new and unwelcome laws and saw courts respond with big and unwelcome verdicts. Something had to be done.

Powell’s prominence in Virginia’s civic, legal, social, and corporate circles had brought him attention in Washington, DC. A new client of his, the Washington, DC-based U.S. Chamber of Commerce, asked Powell for his help. The Chamber commissioned from Powell a secret report, a strategic plan for reasserting corporate authority over the political arena.

The secret Powell report, titled “Attack on American Free Enterprise System,” was telling. It was telling, first, for the apocalyptic certainty of its tone. Powell’s opening sentence was: “No thoughtful person can question that the American system is under broad attack.” By that, he meant the American economic system, but that assertion was footnoted with the parallel assertion that – and I am quoting him again – “The American political system of democracy under the rule of law is also under attack.”

This was, Powell asserted, “quite new in [American history].” “Business and the enterprise system are in deep trouble,” he wrote, “and the hour is late.”

The secret Powell report was an alarm.

The report is populated with liberal bogeymen: the bombastic lawyer William Kunstler; the popular author of “The Greening of America,” Charles Reich; the consumer advocate Ralph Nader, whom Powell said there should be, and I am quoting here, “no hesitation to attack.” Against them, Powell set establishment defenders like columnist Stewart Alsop and conservative economist Milton Friedman. Powell cloaked the concerns of corporate America as concerns of “individual freedom,” a rhetorical framework for corporate political power that persists to this day.

The battle lines were drawn. Indeed, the language in the Powell report is the language of battle: “attack,” “frontal assault,” “rifle shots,” “warfare.” The recommendations are to end compromise and appeasement – his words: “compromise” and “appeasement”— to understand that, as he said, “the ultimate issue may be survival”— and he underlined the word “survival” in his report – and to call for “the wisdom, ingenuity and resources of American business to be marshaled against those who would destroy it.”

Well, for this, you had to have a plan, and the Powell plan was to go big. Here is what he said:

“Strength lies in organization, in 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.”

Powell recommended a propaganda effort staffed with scholars and speakers, a propaganda effort to which American business should devote “10 percent of its total advertising budget,’” including an effort to review and critique textbooks, especially in economics, political science, and sociology.

“National television networks should be monitored in the same way that textbooks should be kept under constant surveillance,” he said. Corporate America should aggressively insist on the right to be heard, on “equal time,” and corporate America should be ready to deploy, and I am quoting him here, “whatever degree of pressure — publicly and privately — may be necessary.” This would be “a long road,” Powell warned, “and not for the fainthearted.”

In his section entitled “The Neglected Political Arena,” Powell recommended using political influence to stem “the stampedes by politicians to support any legislation related to `consumerism’ or to the `environment.’” And, yes, Powell put the word “environment” in derogatory quote marks in the original.

“Political power,” Powell wrote, “is necessary; … [it] must be assiduously cultivated; and … when necessary … must be used aggressively and with determination.” He concluded that “it is essential [to] be far more aggressive than in the past,” with “no hesitation to attack,” “not the slightest hesitation to press vigorously in all political arenas,” and no “reluctance to penalize politically those who oppose” the corporate effort. In a nutshell, no holds barred.

And then came the section of the secret report that may have launched the scheme to capture the court. It is called “Neglected Opportunity in the Courts.” This section focused on what Powell called “exploiting judicial action.” He called it an “area of vast opportunity.”

He wrote: “Under our constitutional system, especially with an activist-minded Supreme Court” – I will intervene to say, of course, we have today, as a result of the scheme, the most activist-minded Supreme Court in American history, but back to his quote – “especially with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change.”

Powell urged that the Chamber of Commerce become the voice of American business in the courts, with a “highly competent staff of lawyers,” if “business is willing to provide the funds.’” He concludes: “The opportunity merits the necessary effort.” The secret report may well have been the single most consequential piece of writing that Lewis Powell ever did in a long career of consequential writings. The tone and content of the report actually explain a lot of decisions in his future career. Yet this secret report received no attention – not even a passing mention – in Professor Jeffries’ detailed, authoritative, and authorized Powell biography.

The secret Chamber report was not disclosed to the U.S. Senate in Senate confirmation proceedings when, shortly after delivering his secret report to the U.S. Chamber of Commerce, Lewis Powell was nominated to the U.S. Supreme Court by President Richard Nixon.

The secret report was dated August 23, 1971. Two months later, on October 22, Nixon nominated Powell to the Supreme Court. Lewis Powell was sworn in as an Associate Justice of the Supreme Court on January 7, 1972, less than 6 months after this secret report was delivered to the Chamber.

To be continued. I yield the floor.

https://www.c-span.org/video/?512383-2/Senate-passes-science-technology-competition-china-bill-68-32

Senate Session, Part 2

The Senate passed, in a 68-32 vote, a bill to create new science and technology programs in an effort to compete better against China. Lawmakers made some changes to the House-passed measure, so it went back to the House. Members also confirmed Regina Rodriguez’s nomination for U.S. District Court judge for Colorado, and failed to advance the Paycheck Fairness Act.

Sheldon Whitehouse @ 4:55:15 ~ 20 mins

Thank you, Madam President. In my opening speech, about the right-wing scheme to capture the court, the supreme court, I described the secret strategy memo that Lewis Powell wrote on the eve of his appointment to the court. About how to deploy corporate political power. As a justice of the supreme court, Powell had the chance to prove to the corporate world his secret memo’s theory of what could be achieved by exploiting judicial action, his phrase, particularly with, as he called it, an activist-minded supreme court. Second, Powell had the chance on the court to start laying the legal groundwork for precisely the sort of corporate political activity that his secret memo had recommended to the u.s. Chamber of commerce. And Powell did both. The first case that allowed Powell to implement recommendations from his secret report came in 1976 in a case about the federal election campaign act. The case was Buckley vs Vallejo and the decision was a beast. 138 pages with another 83 pages of dissent and concurrence, cobbled together by the court with what one observer called extraordinary speed. Five justices in that case, including Powell, were described as first amendment hawks who were wary of any portion of the federal election campaign act that could inhibit free speech and association. Now, you have to understand that free speech and association were buzzwords for corporate political activity, precisely of the sort championed in Powell’s secret Chamber memo. Free speech meant corporate America having the right to be heard, even too — even to, as the court said, equal time. Freedom of association provided corporations the organization, careful long-range planning and implementation, and well-financed joint effort, all those quotes, that Powell had recommended be done in his report, quote, through united action and national organizations. The court’s decision in Vallejo did two noncontroversial things. It accepted that campaign contributions could be limited because unlimited campaign contributions could give rise to corruption, or at least the appearance of corruption. Unlimited donations to candidates would even, quote, undermine representative democracy, the court said. No big deal. The court also decided that candidates may spend as much of their own money as they want on their own campaigns. It considered unlimited spending on one’s own campaign protected by the first amendment as there was little danger of corruption from spending one’s own campaign money on oneself. So both of those holdings are unremarkable. What was remarkable was where Powell and his hawks took the court when other interests like corporate interests wanted to spend money on a candidate. Corporate political spending per se was not at issue in the case, but spending by special interests is precisely the kind of political influence which Powell had recommended in his secret report to the chamber. Powell and his hawks said special interest political spending, so long it was not in the form of a campaign contribution, was protected by the same principle that protected a candidate spending his own money on his own campaign. Powell asserted that limiting the supposedly independent special interest expenditures — and I quote him here — perpetrates the grossest infringement on first amendment rights, end quote. He did acknowledge the interest in purity of elections, but he used skeptical quotation marks around the word purity, just like he had used skeptical quotation marks in his report around the word environment. But Powell dismissed those purity concerns as likely illusory, to use his word. Powell’s bench memo for the case critiqued the election laws, quote, attempt to lower barriers to political competition to increase the range of voter voices. In read the attempt to open access for the many necessarily involves limiting the power of the few to exercise rights of speech and association protected by the constitution. This interest in protecting the power of the few aligns exactly with Powell’s secret chamber memo about corporate power. It aligns with Powell’s own notes which have more of his disparaging quotation marks, questioning some of the briefs filed in the Vallejo case that, quote, identify one of the evils as the power of the wealthy few; few, undefined but obviously unworthy people to influence elections unduly, end quote. In tone and in import, that comes right out of Powell’s secret chamber report which counted on the power of the corporate few. Powell’s Richmond history, his corporate law practice, his social position, his board room experience and his anxiety about upheaval all align with a corporate world view that society’s decisions should be made by the sort of people in corporate boardrooms. So the power of those few had to be protected to battle against what his report had called the broad attack both on the American free enterprise system and the American political system of democracy under the rule of law, end quote. Particularly important it was to protect that power when, as he had written to the chamber, the trouble is deep and the hour is late. To accommodate that corporate perspective, the court had to reach judgments about politics. It showed itself helpless. The amateurish political outlook of the court in Vallejo stood out in the late-added footnote 52, which in the interest of drawing clear lines, vagueness being a stated concern of the justices, exempted from disclosure particular advertisements that did not expressly advocate for the election or defeat of a candidate using magic words like vote for, vote against, elect, or defeat. In the court’s amateur opinion, a hostile bombardment of tv advertising challenging a candidate’s morals, decency or integrity, or attacking the candidate’s alignment with the community’s values and dropped on the candidate in the heat of election season with the intention of defeating the candidate was not deemed advocacy in the election unless it used those magic words. The idiocy of that premise is obvious to anyone in politics. The court’s amateurish folly about political spending extended to presuming that spending by a powerful interest for a candidate would create no risk of corruption, that the spending and the resulting influence could be kept separate and independent. That is idiotic in real life. When a powerful political interest starts signaling that it will spend enormous sums to support candidates, guess what? Candidates will find a way to take advantage, perhaps by attracting the spending to their own side by the positions they take or perhaps by avoiding taking positions that would send the spending to their opponent’s side. The court presumed that some etiquette would separate interest from candidate, but that was folly. It’s blindingly naive to think that politics would produce no work-arounds, that no coordination or signaling or intermediaries would violate whatever etiquette of independence the court had in mind. As we know, information travels fast in politics, never mind the etiquette. Drop a rock in a stream, and the stream flows around it. Put eager candidates and enormous interested spenders together, and trouble will follow. As it has. Look no farther than the corruption of American politics on climate change by the fossil fuel industry. Again, this was idiocy from amateurs, but the valeo folly accomplished one thing. It opened the lane for unlimited special interest spending to come into elections to support or oppose candidates, just as Powell’s secret memo had recommended. The next opportunity for Powell came two years later, and this time it involved not just the type of political be activity corporations would likely undertake, but corporations directly. Massachusetts had banned corporate campaign contributions from state-wide political refer renda. — referenda. The Bank of Boston sued. Frank Bellotti defended. First national bank of Boston v. Bellotti wound its way up to the supreme court. Here the question was the very right of corporations to influence popular elections, in this case a referendum election. In a 5-4 decision, Powell wrote for the republican-appointed majority that corporations had a constitutional right to engage in that political activity. This outcome can’t be found in the constitution which provides no political role whatsoever to corporations, but this outcome aligned precisely with the recommendations of Powell’s secret report to the chamber. Indeed, it was the heart of his pitch to the chamber. His entire secret plan for corporate political power would fall apart if states could bar corporate influence from elections, even referendum elections. Powell had urged in his secret report that corporate interests not have the slightest hesitation to press vigorously in all political arenas, end quote, and that corporations should show no reluctance to penalize politically those who oppose them, end quote. Corporations could never press vigorously or penalize politically if they could be kept out of elections. And so Bellotti was decided. Paired with Vallejo, Bellotti decided corporations had a right to engage in elections, at least referendum elections with as much money as they wanted or as much as they could raise so long as election spending was not in the form of campaign contributions. Ultimately this laid the framework for the infamous Citizens United decision, another bare 5-4 republican majority that gave in this case corporate interests a full constitutional right to unlimited political spending and as a practical matter, to unlimited anonymous political spending. How in Bellotti did they get around a corporation has no political rights? The trick used was too focus on the message, not the messenger. Completely overlook that it was a corporation, not a person. The court said that corporate political spending was actually speech that influencing a popular referendum was the type of speech at the heart of representative democracy, and that the public had a right to hear it. The fact that corporations are not people and indeed that they have advantages over real people in electioneering and indeed that they might even come to dominate popular democracy because of these advantages was overlooked. But directing attention to the speech, not the speaker if the type of speech was relevant to the public debate, Powell said, it doesn’t matter whether a corporation or a person says it. Except every piece of this is wrong. Money is not speech, corporations are not people. And looking at the message, not the messenger, would allow any entity’s message into our politics, even foreign ones. Then add in anonymity and the problem goes toxic, as we know see in our country today. We the people becomes we the hidden anything with money. The last case for Powell was Federal Election Commission vs Massachusetts Citizens for Life in 1986. Here the question was whether an advocacy group of precisely the kind Powell in mind in the chamber memo was forbidden to spend its corporate treasury funds in a federal election. Now the situation was that congress had blocked corporations from using their treasury funds in federal elections. They had to raise money from voluntary donations. Hence, the corporate pacs that we’ve seen that had to raise and spend their own money. The court accepted that corporate treasuries might give corporate voices, quote, an unfair advantage in the political marketplace, given their vast corporate wealth and resources. But in the case before it, the court decided that nonprofits were different. They were designed for advocacy, and they didn’t have the same sort of treasury funds as business corporations. Again, remember the Powell memo. Powell didn’t recommend that corporations undertake their political work directly. He had pressed for organization, for joint effort. He had urged corporate America to pursue, and I quote, the political power available only through united action and national organizations. And guess what? The U.S. Chamber of Commerce, the national organization to which Powell had delivered a secret recommendation, was a nonprofit corporation. In his years on the court, Lewis Powell made good on the secret recommendations that he had made to the U.S. Chamber of commerce five months before joining the court. He showed that an activist-minded Supreme Court — his words — could be that important instrument for social, economic, and political change — his words — that he had proposed. He opened a lane for unlimited money into politics, enabling what his secret report had called, and I quote, the scale of financing available only through joint effort, end quote. He bulldozed aside bars on corporate spending and politics, so corporations could deploy just as his report had urged, and I quote here, whatever degree of pressure publicly and privately may be necessary, end quote. And he allowed advocacy organizations to spend their treasuries in politics, opening the way for the organization joint effort and united action he had called for in his report through national organizations. All the key pieces were in place to unleash the corporate influence machine that he had recommended to the chamber. Influence that dominates much of American politics today, influence that controls much of what we do in the Senate chamber today, and in which, of all things, the chamber that was his client for the secret report is today the apex predator of corporate influence, read in tooth and claw. Everything was in line for what Powell had recommended, corporate political power, cultivated, used aggressively and with determination with no hesitation to attack, not the slightest hesitation to press vigorously in all political arenas and no reluctance to penalize those who oppose. It’s a dark achievement, but it’s quite an achievement. And, interestingly, Powell’s official biography frames out his judicial career without mentioning his role as the early orchestrator of corporate political influence in American politics. It is actually likely his most significant and lasting legacy. To be continued. I yield the floor.