The Powell Manifesto

For more than two decades, from the start of the Reagan presidency in 1980, the radical right has waged a brilliant campaign under the banner of “neoconservatism” to seal its grip on the organs of power: from the White House to Capitol Hill, from the highest law courts to law schools, from the largest corporations to the denizens of inherited wealth, from editorial pages to television tubes. Under the rubric of “getting government off our backs” the movement has waged a cultural and political war to overturn the social policies of Roosevelt, Truman, Kennedy, and Johnson, and denigrate the liberal label as a pejorative. It has used government to funnel wanton giveaways to the privileged and powerful. Neoconservatives have built a well-paid, tightly integrated activist network of hundreds of tax-exempt think tanks, policy research institutes, litigation centers, agitprop spin operations, and publishing houses. An army of scholars, writers, columnists, and political consultants has exploited ideology as a lucrative career tool. So-called watchdog operations have pressured mainstream media to hire far-right writers, editors, talk-show hosts, and pundits. To maintain power, self-proclaimed Constitutionalists wage a counter-revolution against Constitutional principle: free speech, individual rights, and separation of church and state.

Movement conservatism has become the government that runs the government. It raised George Bush to power, sets his priorities, drafts his action programs, domestic and foreign, serves as his personnel agency, and vets his judicial nominees. Yet few are aware of its existence.

The threads of this integrated fabric reach back to the angry remnants of Barry Goldwater’s losing presidential campaign in 1964 and to the disruptive racist presidential campaigns of Alabama Governor George Wallace, the rightward swing of such disillusioned far-left political theorists as Irving Kristol, the rise of TV charismatics such as Pat Robertson and William Buckley, and financier William E. Simon’s mobilization of ultraconservative wealth to fund the movement.

One of the most remarkable influences on the rise of the radical right was made by a still unrecognized contributor—an illustrious legal mind from Richmond, Virginia, who would gain a national reputation for moderation and civility as associate justice of the U.S. Supreme Court. Yet, in 1972, just months before President Richard Nixon nominated him, Lewis F. Powell, Jr., authored an act of sheer political zealotry, a harshly radical action program to save capitalism from what he saw as the social excesses of the 1960s and early 1970s.

This influential memorandum would have historic consequences. The radical right came to embrace it as a political manifesto, a blueprint for organization and political action. It fired the business community to reverse its post-Depression flight from politics, and marshal its might and money behind the Republican Party, now neoconservatism’s political shell.

In his subsequent judicial career, history portrays Lewis Powell as a consensus builder between the polarized ideologues of the high court, a conciliator between right and left. His reasoned embrace of racial diversity through affirmative action in university admissions and abortion as a woman’s Constitutional right shaped the consensus for two of the court’s landmark decisions. Yet, ironically, those precedents have become prime targets for obliteration by the radical-right movement he helped motivate. The court’s conservative majority could soon reverse both precedents.

 

The Rise of Lewis Powell

Powell earned his law degree at Washington and Lee University in Lexington, Va. He was a southern Democrat of conservative hue, and had achieved prominence as president of the American Bar Association. His ardor for the free-enterprise system in general, and its corporate expression in particular, were consistent with his successful career in corporate law, membership on the board of 11 corporations, and his origins in the root-and-branch conservatism of southern aristocracy. But Powell remained open to some lessons that his life experience was to offer. He once gave personal counsel to a Richmond office associate whose pregnant girlfriend died of a self-induced abortion. Powell also accepted the need to address the social wreckage of slavery. When the Supreme Court desegregated public schools in 1954, Powell was chairman of Richmond’s school board. He rejected Governor Almond’s policy of “massive resistance,” over the objection of influential whites. The city’s schools remained open, averting the chaos that rocked other parts of the south.

But Powell vehemently defended the interests of his corporate clients in the turbulent ’60s and ’70s. He was appalled by the anti-business fervor of the country. Liberal critics denounced the power of big business, especially its trend toward corporate gigantism and conglomeration. Big was not beautiful, they argued, but dangerous, and had to be regulated. Powell countered that the free market was self-correcting, and that business ought to be left alone. What corporations needed was not more federal control but less. He opposed any reforms that impinged on corporate freedom.

The Powell archive at Washington and Lee offers researchers a look at how Powell viewed those turbulent times. In September, 1971, a month before President Nixon was to nominate him to the Supreme Court to fill the seat vacated by Hugo Black, Powell had read and starkly underlined an article in the Richmond Times-Dispatch by John Chamberlain. It detailed some of the trends that alarmed him: a purported, pro-liberal tilt by television news, the Vietnam war, “the kids,” “racism, the black militants, and the WASPS.” The trouble lay with a “liberal ethos,” Chamberlain complained, that was leading America astray.

It was an age of youth-driven populism. Young rebels had stirred campus unrest against the Vietnam war. They awakened public opinion to the soaring social costs of the corporation-driven economic system—environmental degradation, air and water pollution, joblessness, and race-based neglect of the poor. Powell rejected all that, finding fault instead with the perceived liberalism of commercial television and universities—power that had to be blunted.

Another bete noire was reformer Ralph Nader and his “Raiders.” Powell had filed away a lengthy profile from Fortune magazine of May, 1971, entitled “The Passion that Rules Ralph Nader.” The article itemized the legislative accomplishments of the consumer movement for which Nader was standard-bearer: “imposing new federal safety standards on automobiles, meat and poultry products, gas pipelines, coal mining, and radiation emissions from electronic devices.” Nader’s movement had “invigorated” the Federal Trade Commission and the Food and Drug Administration. Nader’s book exposing the poor design of American cars, Unsafe at Any Speed, had led to a significant drop-off in auto deaths. But Powell had underlined these words: “The passion that rules in him [Nader]—and he is a passionate man—is aimed at smashing utterly the target of his hatred, which is corporate power.” Worst of all, Nader had gained Presidential potential, threatening to “sweep away the shattered market system” with “eccentric” ideas.

 

The “Attack” Memorandum

Powell was convinced that this anti-business counter-revolt had to be turned back. He met with his Richmond friend Eugene Sydnor, Jr., a Richmond friend and department store owner, who was also chairman of the education committee of the U.S. Chamber of Commerce in Washington. For Sydnor and the Chamber, Powell agreed to write a memorandum proposing a national campaign of “education” to encourage “a more balanced view of the country’s economic system.” Leaders of the Chamber were enthusiastic, and agreed to circulate the full text to members. It was less a program of education than a militant manifesto of political action. The memorandum was distributed nationally in the Chamber’s periodical Washington Report, dated August 31, 1971, which went to influential business leaders and managers. Some would do more than simply read it. They would take up Powell’s recommendations as organizing principles to reverse the gains of liberalism, using naked power, hard-nosed partisanship, cultural pressure, and litigation.

The document bore the headline: “ATTACK ON AMERICAN FREE ENTERPRISE SYSTEM,” and the stamp “THE POWELL MEMORANDUM.” It ran to eight pages, and was packaged as “CONFIDENTIAL.” “The American economic system is under broad attack,” the manifesto began. The assault was “gaining momentum and converts” in centers of influence—”perfectly respectable elements of society who shaped opinion: from the college campus, the pulpit, the media, the intellectual community . . . and from politicians.”

Powell’s language was baldly militant. American business had to use “confrontational politics,” had “to stop suffering in impotent silence” and “launch a counter-attack . . . to penalize politically those who oppose [the system].” Powell emphasized the financial leverage that business interests held over universities, media, churches, and, through commercial sponsorship, television. The threat of de-funding, Powell implied, could be used to achieve “balanced” re-education. What he detailed was neither balanced nor nuanced. It was an assault on academic freedom and Constitutional rights.

The time had come, Powell wrote, “indeed, it is long overdue—for the wisdom, ingenuity and resources of American business to be marshaled against those who would destroy it.” Powell outlined four broad areas of attack: higher education, especially students and faculties in the social sciences; the media; the political establishment— where public opinion, public policies, legislation, and agendas were shaped—and the court system.

1. Academe: on campuses, liberal professors were wielding “enormous influence far out of proportion to their numbers,” radicalizing their students “to the point of being revolutionaries.” He called for the shaping of countercultural think tanks, with staffs of scholars, lecturers, public speakers, and speakers’ bureaus. The scholars would “evaluate social science textbooks” to assure “fair and factual treatment of our system.” Authors and publishers would submit textbooks for “review and critique.” Pressures would be applied to “administrators and boards of trustees” to correct the “imbalance” of faculties that were deemed too liberal. This scholarly elite would “do the thinking, the analysis, the writing and the speaking.” It would insist that conservatives be heard.

2. Television and other media: This hired elite, “thoroughly familiar with the media,” would also shape public opinion. Its members would monitor whole television networks, not simply the daily “news analysis,” with its “insidious criticism of the enterprise system,” censoring (though he never used the word) such documentaries as CBS-News’ The Selling of the Pentagon, which had documented the waste of taxpayer dollars by the military establishment on spectacular war games to promote the Vietnamese war. Businesses would also sponsor vigorous advertising campaigns to promote the so-called free-market system.

3. Politics: The American businessman, “truly the forgotten man,” had lost his influence within the government. Presidential candidates were daring to express “anti-business views.” Lawmakers were being “stampeded” to embrace the liberal agendas of consumerists and environmentalists. Business had to take “direct” steps to find its voice and use it “aggressively” and “without embarrassment.” That included broadening the “role of lobbyist for the business point of view.”

4. The court system: Powell also prefigured today’s active, radical-right litigation network, observing that “the judiciary may be the most important instrument for social, economic, and political change.” He made a stunning recommendation—to place more ideologically friendly judges on the bench, a strategy that would prove especially compelling to movement conservatives (if not to champions of juridical dispassion and independence). A “highly competent staff of” pro-business litigators, copying the methods of the ACLU, would “initiate or intervene in scores of cases each year.” Changes in policy that could not readily be achieved by legislative or bureaucratic means might more easily be won in court.

The manifesto ended apocalyptically: “Business and the enterprise system are in deep trouble, and the hour is late.” In October 1971, President Nixon nominated Powell to the high court, where he traded in political zealotry for the reserved lamina of juridical dispassion whose demolition his manifesto had just urged.

 

A Manifesto in Action

In September 1972, months after the Senate had confirmed him, Powell’s “confidential” memo was leaked to Jack Anderson, the liberal columnist, who complained that the memo raised serious jurisprudential questions about the new Justice’s legal objectivity and “fitness.” He noted that no senator had questioned him about it during the confirmation hearings, because investigators had failed to bring it to senators’ attention. The conservative columnist James J. Kilpatrick fired back that Anderson’s pieces gave the document “publicity” it could never have otherwise received. Businessmen were besieging the Chamber with requests for copies. The authoritarian overtones of the cri de coeur Powell had left behind reverberated through the gilt and marble porticos of the American conservative establishment.

In his book The Power of Ideas, Lee Edwards, the official historian of the Heritage Foundation, one of the right’s most influential think tanks, credits the Powell manifesto with “stirring up” and convincing the late Joseph Coors, head of the largest brewery west of the Mississippi, that American business was “ignoring a crisis.” Coors was moved to “invest” $250,000 in 1972 to establish the Analysis and Research Association (ARA) in Washington, D.C., the original name of the Heritage Foundation. Other wealthy contributors followed.

Heritage’s aim was to overwhelm liberal power in Washington, by aggressively devising and marketing policies and legislative proposals to promote the conservative agenda. Heritage has remained a major Coors beneficiary, and has been cloned into scores of think tanks, policy institutes and lobbying operations that today constitute the radical-right apparat.

Conservative foundations faithfully and consistently underwrite scores of institutes and policy centers on a long-term basis that operate along the lines proposed by Powell’s memo. These agitprop operations include the Federalist Society, the Manhattan Institute, the Cato Institute, Citizens for a Sound Economy, the National Association of Scholars and Accuracy in Academe, Brent Bozell’s Media Research Center, and Reed Irvine’s Accuracy in Media. In the past year and a half, senior fellows of the right-radical American Enterprise Institute and the Project for the New American Century have spearheaded the Administration’s drive for war in Iraq and promoted the arguments for Bush’s grandiose expansion of American empire.

In her recent book Slanting the Story, journalist-critic Trudy Lieberman cited the potency of the Powell manifesto’s attack against Ralph Nader’s consumer movement. As a result of such concerted assaults, the right wing was “well on its way” to victory in the “broad philosophical argument” between liberals and conservatives. In its 1993 paper “Justice for Sale,” the Alliance for Justice detailed how Powell’s legal recommendations inspired “a multi-faceted, comprehensive, and integrated campaign” coordinated and funded by large corporations and right-wing foundations “to create taxpayer subsidized law firms . . . to rewrite American jurisprudence . . . advance[e] their agenda before judges, lawyers, legal scholars, and government policy makers . . . [and] control “the future direction of the law” by installing ideologically friendly law faculties. They rewarded promising law students with scholarships and clerkships under conservative judges, and promoted conservatives to fill those judgeships.

The Pacific Legal Foundation, promoted by the California Chamber of Commerce in 1973, became the first of eight such regional litigation centers. J. Simon Fluor, founder of a global engineering company, provided the seed money. The Olin, Scaife, Bradley, Smith Richardson, and Castle Rock foundations, among others, continue to underwrite these operations. They have wrought great changes in the law at the Supreme Court level—such as weakening affirmative action programs, limiting access to court reviews by death-row prisoners, and restricting the legal rights of the handicapped, minorities, and the elderly. They have won decisions in Federal courtrooms against the public domain that curb women’s rights, weaken the separation of church and state, and emasculate clean air and water regulations.

 

Dubious Heritage for a Considered Moderate

History has overlooked Powell’s brief incarnation as an ideological radical. He is seen, rather, as a jurisprudential moderate, in the tradition of Holmes and Brandeis. On the Supreme Court from 1972 to 1987, Powell proved a disappointment to President Nixon, who had hoped that his presence would help drive the bench rightward toward “strict construction,” a code word for opposition to racial progress. A former law clerk described him as “too liberal to please the conservatives, and too conservative to please the liberals.” He revisited his views on a number of important cases. In a 1977 decision defining the line between church and state, he voted with the conservative bloc to uphold an Ohio law sanctioning state aid to parochial schools. Powell reasoned that “the risk of continuing political strife” on the issue was “remote.” But he reversed himself eight years later, providing the fifth vote to strike down parochial aid programs in New York City and Grand Rapids, Michigan. He explained that the “potential for such divisiveness” had grown “strong.”

In the mid-1980s, Powell voted with conservatives to uphold the death penalty, despite hard evidence that its application was all too often influenced by race. But in 1991, no longer on the court, he shifted again, on reflection telling his biographer: “I have come to think that capital punishment should be abolished” because it “brings discredit on the whole legal system” and “cannot be enforced fairly.” At the end of his career, Powell conceded that he remained “troubled to this day” by his vote to uphold Georgia’s antigay sodomy law.

Powell died in 1998. Were he alive to reflect on today’s corporate scandals, Wall Street avarice, the fanatical fervor of radical conservatism, the ever-widening gulf between rich and poor, and the relentless march to war, would he have questioned his motives in promoting the 1971 “attack” manifesto? His principal biographer never mentioned it. His moderation on the bench certainly surprised many. But would it have led him to reconsider and, perhaps, repudiate the memorandum written in the white heat of a stormy historical moment? Might Powell have conceded on reflection that he’d been wrong, and that Nader and his Raiders were right—that corporate business has grown much too powerful for the public good? On these matters, Justice Powell was not accorded the benefit of hindsight.