ANNALS OF CORPORATE CRIME: The Powell Memorandum

The U.S. Chamber of Commerce, an anti-labor organization founded by President William Howard Taft in the White House, was angsty and angry about Ralph Nader and public interest law.   An uncritical corporate cat's paw, PHILLIP MORRIS tobacco company director LEWIS FRANKLIN POWELL, Jr. wrote a secret memorandum proposing to fight the public interest.  Two months later, President RICHARD MILHOUS NIXON nominated Virginia corporate lawyer LEWIS POWELL to the United States Supreme Court.  POWELL was a passionate defender of tobacco companies, who claimed tobacco did not kill people. Our courts and legislatures are haunted by the mean spirit of this memorandum.  Be not afraid.  Ask questions, demand answers, expect democracy.  Reject Big Business power grabs and grifts, and all their works and pomps. Yes we can! From Wikipedia:

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Powell Memorandum, 1971[edit]

On August 23, 1971, prior to accepting Nixon's nomination to the Supreme Court, Powell was commissioned by his neighbor Eugene B. Sydnor Jr., a close friend and education director of the U.S. Chamber of Commerce, to write a confidential memorandum for the chamber entitled "Attack on the American Free Enterprise System," an anti-Communist and anti-New Deal blueprint for conservative business interests to retake America.^[16][17] It was based in part on Powell's reaction to the work of activist Ralph Nader, whose 1965 exposé on General Motors, Unsafe at Any Speed, put a focus on the auto industry putting profit ahead of safety, which triggered the American consumer movement. Powell saw it as an undermining of the power of private business and a step toward socialism.^[16] His experiences as a corporate lawyer and a director on the board of Phillip Morris from 1964 until his appointment to the Supreme Court made him a champion of the tobacco industry who railed against the growing scientific evidence linking smoking to cancer deaths.^[16] He argued, unsuccessfully, that tobacco companies' First Amendment rights were being infringed when news organizations were not giving credence to the cancer denials of the industry.^[16]

The memo called for corporate America to become more aggressive in molding society's thinking about business, government, politics and law in the US. It inspired wealthy heirs of earlier American industrialists, the Earhart Foundation (whose money came from an oil fortune), and the Smith Richardson Foundation (from the cough medicine dynasty)^[16] to use their private charitable foundations−which did not have to report their political activities−to join the Carthage Foundation, founded by Richard Mellon Scaife in 1964.^[16] The Carthage Foundation pursued Powell's vision of a pro-business, anti-socialist, minimally government-regulated America based on what he thought America had been in the heyday of early American industrialism, before the Great Depression and the rise of Franklin D. Roosevelt's New Deal.

The Powell Memorandum ultimately came to be a blueprint for the rise of the American conservative movement and the formation of a network of influential right-wing think tanks and lobbying organizations, such as the Business Roundtable, The Heritage Foundation, the Cato Institute, Manhattan Institute for Policy Research and the American Legislative Exchange Council (ALEC), and inspired the U.S. Chamber of Commerce to become far more politically active.^[18][19][20] CUNY professor David Harvey traces the rise of neoliberalism in the US to this memo.^[21][22] Historian Gary Gerstle refers to the memo as "a neoliberal call to arms."^[18] Political scientist Aaron Good describes it as an "inverted totalitarian manifesto" designed to identify threats to the established economic order following the democratic upsurge of the 1960s.^[23]

Powell argued, "The most disquieting voices joining the chorus of criticism came from perfectly respectable elements of society: from the college campus, the pulpit, the media, the intellectual and literary journals, the arts and sciences, and from politicians." In the memorandum, Powell advocated "constant surveillance" of textbook and television content, as well as a purge of left-wing elements. He named consumer advocate Nader as the chief antagonist of American business. Powell urged conservatives to undertake a sustained media-outreach program, including funding neoliberal scholars, publishing books, papers, popular magazines, and scholarly journals, and influencing public opinion.^[24][25]

This memo foreshadowed a number of Powell's court opinions, especially First National Bank of Boston v. Bellotti, which shifted the direction of First Amendment law by declaring that corporate financial influence of elections by independent expenditures should be protected with the same vigor as individual political speech. Much of the future Court opinion in Citizens United v. Federal Election Commissionrelied on the same arguments raised in Bellotti.

Although written confidentially for Sydnor at the Chamber of Commerce, it was discovered by Washington Post columnist Jack Anderson, who reported on its content a year later (after Powell had joined the Supreme Court). Anderson alleged that Powell was trying to undermine the democratic system; however, in terms of business's view of itself in relation to government and public interest groups, the memo could be alternatively read to simply convey conventional thinking among businessmen at the time. The explicit goal of the memo was not to destroy democracy, though its emphasis on political institution-building as a concentration of big business power, particularly updating the Chamber's efforts to influence federal policy, has had that effect.^[26] Here, it was a major force in motivating the Chamber and other groups to modernize their efforts to lobby the federal government. Following the memo's directives, conservative foundations greatly increased, pouring money into think-tanks. This rise of conservative lobbying led to the conservative intellectual movement and its increasing influence over mainstream political discourse, starting in the 1970s and 1980s, and due chiefly to the works of the American Enterprise Institute and the Heritage Foundation.^[27]

From Senator Sheldon Whitehouse:

05.27.21

THE SCHEME 1: THE POWELL MEMO

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.

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Full text of Powell memo here, sent on August 23, 1971 two months before angry corrupt President RICHARD MILHOUS NIXON nominated its author, LEWIS FRANKLIN POWELL, JR., a partner in HUNTON & WILLIAMS, to the United States Supreme Court.