March 30 (Bloomberg) -- Oh, Ralph. If Ralph Nader hadn’t gotten under Lewis Powell’s skin, we wouldn’t be having these arguments over whether the individual mandate in Obamacare is unconstitutional.
And “stand your ground” laws -- like the one at issue in the Trayvon Martin case -- wouldn’t stand a chance in the rest of the country.
And free market conservatives would not be unconsciously defying police and doing the bidding of the National Rifle Association.
Yes, like Edward Lorenz’s “butterfly effect” (where the course of a tornado can be traced all the way back to the flapping of a butterfly’s wings thousands of miles away), it’s all connected, and in ways that should make us more conscious of how we associate ourselves with other political insects.
The butterfly flapping was Powell’s seminal Aug. 23, 1971, “confidential memorandum” to the U.S. Chamber of Commerce titled “Attack on American Free Enterprise System.”
No More Appeasement
Powell, two months before he was appointed to the Supreme Court, argued that 1960s-style attacks on free enterprise from college campuses, the pulpit, the news media, liberal politicians and consumer advocates like Nader (whom he singled out as “the single most effective antagonist of American business”) were “quite new in the history of America.” He found it bewildering that “the enterprise system tolerates, if not participates in, its own destruction.” Business, he wrote, had responded, if at all, by “appeasement, ineptitude and ignoring the problem.”
Powell’s recommendation of a “more aggressive attitude” toward generating conservative books, articles, institutes and television programs bore fruit beyond his wildest dreams. His memo kicked off a sustained conversation among business leaders that led to the creation of hundreds of conservative legal foundations, think tanks and university programs.
Among them were the Heritage Foundation (where, ironically, the idea of an individual mandate was popularized in the 1990s) and the Federalist Society, which has been instrumental in adopting out-of-the-mainstream legal ideas such as a narrow, pre-New Deal interpretation of the Constitution’s Commerce Clause. Justices Samuel Alito, John Roberts, Antonin Scalia and Clarence Thomas are all former Federalist Society members.
Families like the Coorses, Kochs, Olins and Scaifes subsidize the spread of conservative ideas with hundreds of millions of dollars. “Appeasement” has given way to fierce and sustained counterattack that has already shifted the center of political debate far to the right and may soon invalidate the centerpiece of a president’s domestic program for the first time in seven decades.
But has this principled support for free enterprise created a gun-toting Frankenstein?
One of the Koch brothers’ causes is the American Legislative Exchange Council, which was founded in 1973 by Illinois State Representative Henry Hyde, conservative activist Paul Weyrich and others to share legislative ideas in “task forces” made up of legislators, conservative foundations and corporations. Over the years, ALEC and its corporate lobbyists have written hundreds of “model bills” and used their muscle to enact them, sometimes verbatim, in dozens of states.
Under the Radar
Because fewer reporters cover state government these days, ALEC has mostly operated under the radar. But there’s nothing subtle about it: Corporations seeking contracts, deregulation or other favors from state government fund the campaigns of Republican politicians, and then write the bills with ALEC’s help. All the state legislators need to do is show up and sign before heading off for poker or golf, often with the same lobbyists who just did their jobs for them.
Many national Republicans are also connected to ALEC. Recently, Representative Eric Cantor admitted that he hadn’t reported a $1,350 gift from the organization.
ALEC began with a pro-business agenda but soon started to write bills for the whole right-wing wish list. Now, with the help of the Center for Media and Democracy, people are connecting the dots.
Anyone following the Martin case should learn this chronology: In 2005, an NRA dynamo named Marion Hammer pushed through a “stand your ground” statute in Florida that basically provides a legal justification for anyone to kill anyone if he or she feels threatened. The statute says explicitly that one need not retreat in dangerous situations, though police have long recommended doing just that. The NRA invoked the principle of the so-called “castle doctrine,” though the Florida law does not limit the use of deadly force to the defense of one’s home.
Previously, if you shot and killed someone and claimed self-defense, you nonetheless were usually arrested for at least involuntary manslaughter. You might eventually get off, but the presumption was there was at least cause to interview possible witnesses and investigate.
Hundreds of years of common law and common sense were about to be upended. Shortly after passage, Hammer persuaded ALEC’s Criminal Justice Task Force (led at the time by a Texas state representative and executives from Wal-Mart and the Heritage Foundation) to adopt the Florida statute as a model bill. Today 24 other states have “stand your ground” statutes, many of them verbatim copies of the Florida law.
So even though police are opposed to empowering vigilantes, would-be George Zimmermans in half the country are entitled to do what he did to Trayvon Martin and escape arrest. No wonder critics call them “Kill at Will” bills.
The chances of repealing the Florida law after the Martin shooting are slim to none. In fact, the NRA-ALEC alliance is still pushing hard to expand its reach.
ALEC has succeeded in restricting voter registration in Florida and other states (hurting Democrats, of course). And the NRA is fighting a group that wants to prevent employees from keeping weapons locked in their cars in company parking lots.
That group is the U.S. Chamber of Commerce, the recipients of Powell’s famous memo nearly 40 years ago. What goes around comes around.
(Jonathan Alter is a Bloomberg View columnist and the author of “The Promise: President Obama, Year One.” The opinions expressed are his own.)
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