Rising Above Principle: The Conservative Public Interest Law Firm
Baldwin, Fred D
Fred D. Baldwin RISING ABOVE PRINCIPLE: THE CONSERVATIVE PUBLIC INTEREST LAW FIRM If PLUG, NORML, and GLAD are "traditional," where does that leave conservatives ? The "public interest" law firm...
...After World War I, Roger Baldwin formed the American Civil Liberties Union to combat the "Red Scare," and in 1930 the NAACP Legal Defense and Education Fund began its long march through the courts with a campaign that was, in the words of its director, "carefully planned...
...This would sometimes help "liberal" causes, but its long-term effect would be to strengthen federalism...
...Burt joined forces with the B'nai B'rith Anti-Defamation League on a case involving hiring quotas, and says he also received warm NAACP congratulations when adverse publicity forced the Carter administration to back off...
...In this instance the SLF and the ACLU persuaded the Supreme Court that FEC rules violated First Amendment rights...
...Cases like this are possible responses to the charge that conservative public interest firms are in business's pocket...
...The Washington lawyer," Joe Califano once wrote, "rarely litigates cases...
...I deplore the fact that the courts have put themselves into this policy-making role," he says, "but we have to face reality...
...In another action the SLF filed an amicus brief in a "reverse discrimination" case abetting a successful action on behalf of union workers who felt they were discriminated against by an affirmative action consent decree negotiated by the steel industry...
...It's a foolish battleground," he insists...
...Nevertheless, the first ready-for-anything public interest law firm dates only from 1969: the Center for Law and Social Fred D. Baldwin is a consultant living in Carlisle, Pennsylvania...
...In 1973, an organization called the Carolina Environmental Study Group began a suit that resulted in a ruling of a federal district judge that the Price-Anderson Act, which limits the financial liability of utilities in the event of a nuclear plant disaster, was unconstitutional...
...Some firms have tried to impress potential corporate financial backers with a "scorecard" of "won" cases in which all they had done was to ride piggyback on the work of corporate counsel by filing a spate of amicus curiae (friend of the court) briefs...
...More important, Winter believes that in trying to exploit judicial activism, conservative firms sacrifice principle for nothing...
...This is not at all unusual...
...Ah, but we live in wicked times, and isn't it necessary, as Oklahoma's late Senator Kerr used to put it, for conservatives to "rise above principle...
...The real challenge is to find cases which neither merely reflect business interests nor depend on a conservative version of judicial activism...
...Horowitz sees such petty puffery as symptomatic of a deeper problem: the failure of conservative firms to understand the real reasons for the conspicuous successes of Nader, Common Cause, the environmentalists, and the other major "traditional" groups...
...In short, the federally funded public interest lawyers won nearly $16,000,000 for new CSA projects, nearly $2,000,000 for themselves, and, to be fair about it, $2,000 for their poor clients...
...At the end of the 1980 fiscal year, the Community Services Administration found itself with $18 million in unspent emergency energy assistance money, which, because unspent, was supposed to revert to the Treasury...
...Ironically, the very attributes which make Capital such a threat in the eyes of Nader serve to disarm his charges...
...A few examples may help...
...Accordingly, they supplemented litigation by forming study and action groups at law schools and universities and by co-opting the federal bureaucracy...
...On this score Ralph Winter's skepticism is understandable, and his cautions well-taken...
...Setting the tone for most public interest law since his time, he wrote that lawyers should be more than the "adjuncts of great corporations...
...First, he wrote, the liberal charge that conservative firms are dominated by business interests "is unhappily not wide of the mark for many such firms...
...Then, as an old Southern joke has it, he "quit preachin' and went to meddlin...
...Where does all this leave us...
...Support centers provide ideas and expertise for the approximately 340 local legal services projects which, for the most part, do unglamorous but needed work for low income clients...
...The industry lawyers simply wanted out with the least pain possible for their particular clients, while the SLF insisted on raising a point of principle...
...The firm's business clients have been small operators...
...Blackburn is a former four-term Republican congressman, chairman of the Heritage Foundation, and was a member of the Reagan transition team...
...Winter believes that conservatives have no business "copying the left...
...They relied on concrete courtroom victories for publicity, but they were also aware that beneath the ephemera of public opinion lies the real ground for victory: the public imagination whose cast ultimately determines who wins in court, and much, much more...
...Steel (one of SLF's contributors) was unhappy at having its agreement with the government overturned because that meant it would have to start all over again...
...Duke Power Company and the Nuclear Regulatory Commission appealed, but felt it could win more cheaply by resting its case on a challenge to the environmental group's legal standing to sue, rather than by attacking the merits of its argument...
...Ironically, about the only interest that firms claiming to represent this most rubbery concept-the public interest- refuse to acknowledge is that widely accepted arbiter of economic interest, the free market system...
...They're into power, cutting phony deals, and are so imbued with their sense of moral superiority that they can do immoral things...
...Naturally, the established liberal firms have counterattacked...
...Nader's choice of targets may also have been influenced by Capital's near completion of a comprehensive study of the far-flung Nader empire, a study much like those Nader and his associates have done of their adversaries...
...While the SLF demonstrates its inde*Since Price-Anderson provides a non-cash subsidy to the nuclear power industry, it is hardly a model of free market legislation...
...Even traditionally liberal groups-those who remain most loyal to, their original idealism-sometimes agree...
...That is, their sponsors and staffs equate the public interest with increased bargaining power for special interests on the assumption that the clash of clout, not argument, will chisel the public interest out of a mass of competing claims...
...Small Business Administration staffer) who was fined $40,000 for violating child labor laws by hiring ghetto kids to hand out fliers...
...Ralph Nader's attack in Mother Jones suggests that Capital is a hard-hitting, competent threat to the liberal firm's claim to moral superiority...
...Unlike Congress, a court does not have a mechanism for going out to gather facts...
...And if these cases give Capital a ring similar in sound to what Horowitz calls a "traditional" public interest law firm, consider the case that has rung out most clearly and is still reverberating: Simer v. Olivarez...
...A court should be an independent institution for settling disputes, by fitting the intent of the legislature to the disparate facts of each case...
...Policy (CLASP), founded by its first executive director, Charles Halpern, with major assistance from Ralph Nader...
...Its stated purpose was to "counter-balanc(e) business representation with public interest representation on questions of federal government policy.'' Dozens of new groups sprang up almost immediately...
...Judicial activism is inseparable from ideology...
...His perspective, after all, is that of an expansionist...
...There was also a failure to develop in-house expertise because of over-use of outside firms...
...For example, the Chamber of Commerce maintains a litigating arm, but it is more like a trade association...
...For example, he would be well disposed toward a public interest firm devoted to helping state attorney generals do a better job of pleading before the U.S...
...He found that the conservatives failed to explain to donors the need to achieve "critical mass"-expansion to a size that permits specialization on issues and improves the ratio of time spent on legal work to time spent on fund-raising...
...But conservatives are beginning to follow the liberal lead, though only a few firms have been formed to date...
...They must in any case be buttressed by the ascension of conservatism in the broader body politic, which ultimately chooses judges and makes the laws they interpret...
...Finally, the conservative firms betrayed an insufficient appreciation of the importance of a substantial legal presence in Washington, D.C., especially for negotiations at the staff levels of the federal bureaucracy...
...Winter says "No...
...Today, over a hundred private organizations regularly engage in "public interest" litigation...
...He had previously made unsuccessful attempts to secure financial support to establish his own public interest law firm, and last year he got the next best thing: an invitation from a foundation, which has provided much of the seed money for the conservative firms, to do an analysis of the public interest law movement, focusing on the accomplishments of the conservative newcomers...
...The punch line sounds like Ralph K. Winter's comments on the Horowitz report...
...several public interest lawyers interviewed said that business firms are likely to settle, rather than fight, particularly if they fear bureaucratic reprisals...
...Alerted by a Wall Street Journal article, Capital brought suit on behalf of Senators Orrin Hatch, Paul Laxalt, and Edward Zorinsky...
...In a recent Mother Jones, for example, Ralph Nader had this to say about the Capital Legal Foundation, a Washington-based firm: "Capital is a right-wing group designed to do things for business that business lobbyists would be ashamed to do openly, or would not do for strategic reasons...
...Fred D. Baldwin RISING ABOVE PRINCIPLE: THE CONSERVATIVE PUBLIC INTEREST LAW FIRM If PLUG, NORML, and GLAD are "traditional," where does that leave conservatives ? The "public interest" law firm has become so much a part of our political system that it comes as a surprise that, as an institution, it is scarcely more than ten years old...
...Such cases, as the work of Capital shows, should demon strate a principle on which conservatives and liberals once agreed: that all American citizens, including the poor and minorities, have a stake in a free market economy under laws passed by elected legislators, rather than privileges rationed out by bureaucrats and judges...
...A firm funded by the Legal Services Corporation brought suit on behalf of eight poor clients who claimed that they "and all others similarly situated" were entitled to the money...
...They prefer arriving at decisions through negotiation and adjudication between separately competing parties, as opposed to accepting a legislative consensus in which their clients would often be at a disadvantage, or, more accurately, have to contend with many conflicting interests at once...
...Lately, however, they have been shaken by criticism from an unexpected quarter-a report by a lawyer with a strong free-market commitment...
...He refuses to file amicus briefs...
...They may not like his criticisms, but they cannot object to his conclusion that they should be bigger and more aggressive...
...All it does," he says, "is legitimate what the liberals are doing-including liberal judges...
...pendence by taking cases farther than business wants to go, Dan Burt's Capital Legal Foundation shows its autonomy by taking cases from a range of interests far wider than that encompassed by the business community...
...In short, Horowitz says that most conservative public interest lawyers lack both imagination and a strategic sense...
...In the short run, however, it is hard to see who would have nailed CSA in Simer v. Olivarez if Capital had not...
...The second is strategic- long-term institutional impact...
...The firms show at least as much panache in coining acronyms as in writing briefs...
...Horowitz began by tracing the astonishingly successful record of the liberal movement and professing how important he thinks it is for conservatives to challenge "the moral monopoly" claimed by left-leaning "'public interest' pretenders...
...The record of one of these firms, the Mountain States Legal Foundation, achieved some degree of national attention with the appointment of its former president, James G. Watt, as Secretary of the Interior...
...Most public interest law firms epitomize what Theodore J. Lowi has called "interest group liberalism...
...Horowitz found the conservative groups disappointing for further reasons, reasons which had more to do with savvy and technique than with understanding and mobilization...
...A case has to sound like a bell in society," Burt says...
...As in the case of liberal public interest law firms, there are some hybrids and fellow travelers, which, though not law firms strictly speaking, perform as if they were...
...Burt is considering a legal attack on milk subsidies, probably to be brought on behalf of a black orphanage...
...The SLF, newly arrived on the scene in 1977, concluded that even if the industry won its appeal on a technical point, it would have left the industry under a cloud, for every future bond prospectus would have been required to note that the highest court that had ruled on the actual merits of the case had found Price-Anderson unconstitutional.* The SLF accordingly filed an amicus brief on broad public policy grounds, and, though it is impossible to say that this was the determining factor, the Supreme Court, now forced to address the substantive legal issues, did uphold the Price-Anderson Act...
...The total includes firms representing minorities, consumers, environmental interests, and various single-issue groups, but it does not count the dozen "support centers" of the federally funded Legal Services Corporation...
...The overwhelming majority of public interest law firms are either ideologically hostile to capitalism, or, as a matter of tactics, they demonstrate an eagerness to expand federal activity at the expense of the private sector...
...The report, delivered early this year, was intended to be a limited-circulation document...
...Similarly, the SLF found itself on the same side as the ACLU in a suit filed against the Federal Election Commission (which had on its side the litigation arm of Common Cause...
...To use a military analogy, it was no border skirmish, but an attack on the "traditional" firms' supply lines...
...indeed, they relish them...
...if such testimony goes unrebut-ted, it becomes easy for a judge to make an unbalanced decision on the basis of the record before him...
...The moral criteria for judging success thus must precede and define the strategic ones...
...It is an odd word for PLUG, NORML, and GLAD...
...That," the skeptic replies, "is all hell needs...
...Horowitz faced a semantic problem, illustrative of the question-begging nature of the term "public interest...
...One response, more measured than some, comes from Ben Blackburn, President of the Southeastern Legal Foundation (SLF) in Atlanta...
...The lawyer, Michael Horowitz, is now with the Office of Management and Budget...
...If Horowitz is a conservative who approves of conservative public interest firms but only wishes they would shape up, Winter-a professor of law at Yale and an adjunct scholar of the American Enterprise Institute-is a conservative who disapproves of public interest law firms on principle...
...A few years later, six firms were conceived with help from the National Legal Center for the Public Interest, which continues to provide them with technical and moral support...
...All this state needs," a Texas land promoter declaims, "is more water and a better class of people...
...CSA took a dive...
...It won a victory for a small vendor making $12,000 a year (referred to Capital by a U.S...
...Groping for a suitable collective adjective to refer to the non-conservative groups, Horowitz could do no better than "traditional...
...Blackburn emphasizes that lawyers hostile to free enterprise crowd forward to put their views into evidence...
...courts are activist because they are packed with liberal judges...
...Of course firms committed to the free market often find themselves in natural sympathy with business perspectives...
...This failure has been both psychological and tactical...
...Dooley observed, courts will "follow th' iliction returns...
...Environmental law firms were the most successful in and of themselves, and Nader's helping hand got several others off to a strong start...
...As a result, U.S...
...Whether or not Horowitz's strictures against the existing firms are justified is less important than what such firms can hope to become in the future...
...District Judge John F. Grady of Chicago vacated his own order, noting that no one pointed out to him that he had in effect created several new programs not authorized by Congress -the very danger of omission which forms the kernel of Blackburn's reply to Winter...
...There were, or course, antecedents...
...The first is moral-all public interest groups should give their first allegiance to making an honest attempt to see the unrepresented public interest victorious over special interests, however much honest men may disagree over exactly what "the public interest" means...
...The "public interest" has been a code word for "liberal...
...From the start, Nader and his allies recognized the importance of seizing the "moral high ground," appropriating to themselves the term "public interest" by virtue of sheer repetition...
...In 1973 several attorneys who had worked within Ronald Reagan's California administration formed the Pacific Legal Foundation-California, which now has a dozen full-time attorneys and about two dozen other employees...
...On a fundamental level, Horowitz agrees with Winter that conservatives cannot indefinitely play "me too" to interest-group liberalism...
...Nader, incidentally, was invited to document his charge for this article, but declined to answer the letter...
...To cap the deal, it agreed to put $200,000 into "organizing and coalition building" and $1.8 million into the National Consumer Law Center, funded by the Legal Services Corporation and CSA...
...For Burt, a top-level Yale Law School graduate who left a lucrative private career for public interest work, picks cases that will further the aspirations of the working class and "radical middle" with which he identifies himself...
...That is, it agreed to settle for a consent decree which would permit it to do the very thing it wanted to do in the first place-spend the money...
...Blackburn said that in the steelworker case, U.S...
...For the remaining $18 million (less $2,000) CSA "consented" to fund a variety of energy-related programs and to hire four new staff members to administer them...
...After ten years of status as the unquestioned young idealists," Horowitz says, "the traditional public interest lawyers have become less moral than other interest groups...
...If you legitimate it, you'll just lose more often...
...He concludes the only significant study to date of conservative public interest law firms not, as Nader does, by attacking their motives, but by questioning the efficacy and, secondarily, the appropriateness, of their means...
...The practicing lawyers insist that what they are trying to do has to be evaluated by looking at actual cases...
...Anyone who has a case is expected to come in and make it...
...Can conservative public interest firms be expected to meet his two standards...
...The liberal groups have understood that...
...In fact, Simer v. Olivarez may be the real reason Nader directed his fire at Capital, which not only won a moral victory but denied its potential adversaries a rich prize of federal dollars...
...There are at least 14 organizations litigating for feminist issues, 14 for the disabled and handicapped, eight for prisoners and ex-offenders, and four for homosexuals...
...A congressional committee is also investigating "collusive settlements," in which a federal agency pretends to be "compelled" to do what it already wants badly to do, but which, to borrow Nader's phrase, it is "ashamed to do openly...
...The conservative firms take attacks by Nader in stride...
...witness the Public Law Utilities Group (PLUG), the National Organization for the Reform of Marijuana Laws (NORML), and the Gay and Lesbian Advocates and Defenders (GLAD...
...A significant victory on interstate railroad rates for recycled metals was once won by Students Challenging Regulatory Agency Procedures...
...rather, he tries to appoint judges...
...Moreover, it is not just a matter of hoping that, as Mr...
...You have to keep hammering away on behalf of principles, he says, even when they work against your temporary advantage...
...Horowitz is clearly right that the conservative public interest groups have not had anything like the influence of their "traditional" counterparts, and he has raised the two most important criteria for judging success...
...For public interest lawyers, an idea replaces the client, who then becomes a mere "shadowy figure whose name appears in a caption...
...At the beginning of this century, Louis Brandeis, the spiritual father of the American "public interest law firm," brought lawsuits as a private citizen on matters ranging from child labor to Alaskan wilderness protection...
...To the charge that he is unrealistic, Winter cites several areas of law in which a principled conservative position which seemed unrealistic a few years ago has already gained wide acceptance...
...Thus, after agreeing to an award of $250 to each of the named low-income clients, CSA averred that it would be infeasible to distribute the remaining money directly to the poor...
...to secure decisions, rulings and public opinion on the broad principle instead of being devoted to merely miscellaneous cases...
...And he insists that Capital not represent clients who can afford to represent themselves...
...Supreme Court...
...On the other hand, the liberal attack on it through the courts was hardly a model of the democratic process...
...Confronted with such criticism, lawyers in conservative public interest law firms muse that it must be nice to teach law in New Haven, but they cannot stand idly by while liberals are stealing the store...
...But once "limited" exceeded "two" in Xerox-happy Washington, copies were not hard to come by...
...All this is not to say that the firms in question have no rejoinders to Horowitz, but the fact remains that his report could be one of the better things to have happened to them...
...All public law firms, Winter continues, "lead to a misuse of the courts...
...Another old joke comes to mind, this one out of the Southwest...
...It is explicitly business-oriented and has not attempted to avail itself of tax-exempt status for contributions...
...They succeeded brilliantly at it under President Carter, who, with the advice of panels "carefully monitored and substantially influenced by the traditional movement," appointed approximately 40 percent of all currently sitting federal judges...
Vol. 14 • August 1981 • No. 8
