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ORIGINAL RESEARCHRob Levine How The Conservative Philanthropies, C. Boyden Gray, and the Law and Economics Movement Nearly Sank the Federal Regulatory State(Using tax-exempt funds)"E.P.A.'s Authority on Air Rules Wins Supreme Court's Backing" announced the headline in the New York Times on February 28, 2001, a day after the court unanimously overturned a 1999 appeals court ruling that had thrown out Environmental Protection Agency air quality rules on the grounds that Congress had unconstitutionally delegated regulatory authority to its environment agency. Although very few people had heard of the case of American Trucking, it had nonetheless been a legal tsunami waiting to crash against federal agencies regulating everything from worker safety, to broadcasting, to food and drug safety. The Supreme Court gained the right to hear the American Trucking case when, in May 1999, a three-judge panel of the US Court of Appeals for the District of Columbia (the same court that is currently hearing the Microsoft breakup order appeal) ruled 2-1 that Congress had made "...an unconstitutional delegation of legislative power..." in allowing the EPA to set environmental standards. This was a shocking resuscitation of the legal concept of "nondelegation" -- that is, that Congress cannot delegate to some other body the power to be Congress. Nearly all serious legal scholars had considered the nondelegation clause settled. No, Congress cannot give the power to be Congress to others; but it can give general orders to its own regulatory agencies to achieve goals within broad aims. The act that created the Federal Communications Commission, for example, merely charges the agency with ensuring that broadcasting serves the public interest. Anyone -- excepting the three judge panel that overturned the EPA rules in the first place, it would seem - could see that there is no way it would be humanly possible for members of Congress to actually do the regulating that it has delegated to its agencies. Given their recent selection of George W. Bush as president in what many saw as a highly partisan and political decision, this was an important case for the Supreme Court. Many of the players in American Trucking were part of the Bush team, including George H.W. Bush's lawyer C. Boyden Gray and Republican Senator Orrin Hatch. Many questions arise from the disposition of this case. First, it is hopeful to note that the Supreme Court is capable of acting against the interests of its partisan and political friends, even if it is in a case where affirming the appellate court would have been an outrageous act. But who can call what the court did in stopping the vote counting in Florida anything but an outrageous act to serve its partisan and political allies? What was to stop the court from doing so again? Apparently the Justices may have at least temporarily slaked their thirst for such boldness (a conclusion, I might add, contradicted by a recent Clarence Thomas speech to the "conservative prom" at the American Enterprise Institute). But was this really a big victory for the EPA? Perhaps a bigger question is how did this case make it to the Supreme Court in the first place? Others are: How did the appeals court come to make such a ridiculous decision? Who are the judges who made such a decision? Where did they get the idea to use such a discredited legal notion as "nondelegation" as the basis for overturning much of the federal government's regulatory authority? A close look at the people, organizations and funding involved in American Trucking reveals a troubling confluence of industry, tax-exempt charities, tax-exempt philanthropies, congressmen and judges. Surprisingly, the impetus, money and expertise for much of the case against the EPA came from a group of tightly interconnected tax-exempt quasi-Republican organizations. Two of them - the Federalist Society and Citizens for a Sound Economy - played key roles. Following the money further backwards shows that those two organizations and dozens of others are on a permanent campaign against government regulation, funded by a handful of conservative philanthropies led by the Lynde and Harry Bradley Foundation of Milwaukee, Wisconsin, the John M. Olin Foundation of New York, NY, and the Smith Richardson Foundation of Westport, CT. This funding stream from philanthropies to tax-exempt corporate front groups which act in blatantly political ways ensures that despite this temporary legal setback the march toward deregulation will continue unabated. Indeed Clarence Thomas practically invited more such actions in a concurring opinion, where he announced that he would welcome future nondelegation challenges. How exactly does this campaign against regulation work? First, the conservative philanthropies make grants to "study" regulation, its affects and its costs. Since 1987 they have made grants of at least $2.5 million to study regulation. Two grants totalling $61,000 to the New York Law School from Richard Mellon's (he's dropped the "Scaife") Carthage foundation actually funded "RESEARCH ON CONGRESSIONAL DELEGATION OF AUTHORITY." One of the conservative movement's institutions, the Cato Institute even has a regularly published magazine called Regulation. More importantly, the philanthropies have spent at least $30 million subsidizing law schools and conservative organizations to push their idea of "Law and Economics," a movement within a movement that aims to establish the people-denying, hyper-rational idea of "maximizing wealth" to the goal of all law! (And since the market is so good at this, Law and Economics asserts that the market should decide on the distribution of the wealth as well.) The campaign against regulation also has many friends on the federal and state benches. To understand this, you must first know that one important tactic in the Law and Economics movement is to get judges, in the name of maximizing wealth, to consider economics, despite what laws actually say, as the most important basis of legal decisions. To this end the conservative philanthropies have spent at least another $4 million to "educate" federal and state judges on the concept by sending them to seminars at posh resorts, where they learn that regulation should be limited, and that the free market should be relied upon to protect the environment. The Washington Post has reported that a third of the federal bench has been to one of these indoctrination junkets. The same story reported that almost two dozen judges illegally failed to mention the visits on their financial disclosure forms. Now an entire website has been created at TripsForJudges.com to allow the general public to interactively search for judges who may have been compromised by such a trip. But back to those judges on the US Court of Appeals for the District of Columbia. A close examination of the behavior of the two judges who voted in favor of the polluters, Stephen Williams and Douglas Ginsburg, reveals troubling political and partisan connections that may have played a part in their decision. Both are very active in the aforementioned Federalist Society, a tax-exempt legal fraternal organization that has received more then $6 million from the conservative philanthropies. The Federalists have played a pivotal role in the weakening and rolling back of legal statutes on civil rights and affirmative action; voting rights; women's rights and abortion rights; workers' rights; prisoners' rights; and the rights of consumers, the handicapped, and the elderly -- yet steadfastly claim to not be political. Curtis Moore, writing in the Center for Public Integrity's The Public i, reported last September that the Federalist Society is up to its proverbial neck in this case. US Senator Orrin Hatch, a member of the society's board, filed a brief in favor of the plaintiffs. That brief was written by another Federalist board member, C. Boyden Gray, who is simultaneously the head of Citizens For a Sound Economy, another tax-exempt charity that has received $8.8 million from the conservative philanthropies. Moore continued that the brief was written: "...to defend the corporate interests of a member of the Business Advisory Council of the Federalist Society, Joseph Cannon of Geneva Steel, in a case to be heard by two judges, Ginsburg and Williams, who are active participants in Federalist Society events, that [was] later appealed to the U.S. Supreme Court to be heard by two justices who are active at Federalist Society events, Antonin Scalia and Clarence Thomas, and a third, David Souter, whose nomination was screened by the Federalist Society member who wrote the brief, [Boyden] Gray..." Gray was also the chief strategist for the industry coalition formed to kill the EPA proposals, the Air Quality Standards Coalition (AQSC) as well as the hired lobbyist for the aforementioned Geneva Steel, an aging mill located just outside Salt Lake City, whose president was the head of the Reagan Administration's EPA air office. Thus Gray wore not one, two, three or even four hats but five:
According to Moore, "Boyden Gray orchestrated each of those and other entities to produce a textbook symphony of inside-Washington corruption." In 1997 Gray and CSE launched a radio advertising blitz against the proposed EPA regulations that ran on 80 stations in 20 markets and cost hundreds of thousands of dollars. When the appeals court eventually ruled for Gray and his friends, Citizens for a Sound Economy actually took credit for the decision, posting a document on its website bragging that "Boyden Gray's brief was funded in part by CSE's education affiliate CSE Foundation." The claim actually turns out to be not only bluster but correct, as the arguments presented in Gray's brief, and not those brought by the actual plaintiffs in the case, held sway with the appeals court. Justice Williams, it turns out, is well-versed in Law and Economics. His rap sheet at TripsForJudges.com shows paid trips to two Federalist Society events (one at Duke and one at Harvard); three paid trips to events sponsored by the Foundation for Research on Economics and the Environment (FREE); one trip to Hilton Head, SC for a Law and Economics seminar, and two trips to the University of Chicago, one of the theoretical homes of the Law and Economics movement. FREE itself is well sponsored, having received at least $1.5 million from the conservative philanthropies, and the University of Chicago has received at least $26 million. George Mason University, which has received more than $17 million from the conservative philanthropies, paid for two trips for Williams. Williams' colleague in nondelegation jurisprudence, Douglas H. Ginsburg, has taken even more free trips, logging at least 10 sponsored by FREE, many for stays at luxury ranches near Bozeman, Montana. He's also taken three free trips to Federalist Society events, six free trips sponsored by George Mason University, four sponsored by the University of Chicago, and one by the Atlas Foundation, another tax-exempt organization that has received at least $2 million from the conservative philanthropies. A July, 2000 report by the Community Rights Counsel, a public interest law firm, was particularly critical of both Ginsburg and Williams for attending a 1998 FREE seminar after they had taken on the American Trucking case. Ginsburg, the report noted, is actually on the FREE board of directors! And let's be clear about this: FREE is really nothing but an industrial front group, a "greenscam". One only need consider the entry in their "desk reference" book for federal judges on the question of pollution, which offers the blame-the-victim view that the costs of pollution are produced by both the polluter and the afflicted because "your steel mill would do no damage if I (and other people) did not happen to live downwind from it." Consumers of mainstream news reports of the Supreme Court's decision in American Trucking may have gotten the false impression that, given the bench's unanimous ruling striking down the conservative movement's legal arguments for the polluting industries, all is well for the EPA and the Federal regulatory state. But that would be a mistaken impression. As noted above, Justice Thomas invited further challenges under nondelegation in his concurring opinion. And buried in news stories on the decision was the justices' ruling that the policy for implementing the EPA new guidelines on soot and ozone -- commonly known as smog -- violated 1990 amendments to the Clean Air Act. Lawyers for the conservative movement have called this a "significant development," and said they will continue pressing this issue and others surrounding the Clean Air Act back -- you guessed it -- in the US Court of Appeals for the District of Columbia -- the same court that started this mad dash in the first place. sign in, or register to email stories or comment on them.
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MORE ORIGINAL RESEARCHBill Berkowitz PERC receives Templeton Freedom Award for promoting 'enviropreneurs'Right Wing foundation-funded anti-environmental think tank grabbing a wider audience for 'free market environmentalism' On the 15th anniversary of Terry Anderson and Donald Leal's book "Free Market Environmentalism" -- the seminal book on the subject -- Anderson, the Executive Director of the Bozeman, Montana-based Property and Environment Research Center (PERC - formerly known as the Political Economy Research Center) spoke in late-January at an event sponsored by Squaw Valley Institute at the Resort at Squaw Creek in California. While it may have been just another opportunity to speak on "free market environmentalism" and not the kickoff of a "victory tour," nevertheless it comes at a time when PERC's ideas are taking root.
Bill Berkowitz Neil Bush of Saudi ArabiaDuring recent visit, President’s brother describes the country as a 'kind of tribal democracy' In late February, only a few days after Saudi Arabia beheaded four Sri Lankan robbers and then left their headless bodies on public display in the capital of Riyadh, Neil Bush, for the fourth time in the past six years, showed up for the country's Jeddah Economic Forum. The Guardian reported that Human Rights Watch "said the four men had no lawyers during their trial and sentencing, and were denied other basic legal rights." In an interview with Arab News, the Saudi English language paper, Bush described the country as "a kind of tribal democracy."
Bill Berkowitz Newt Gingrich's back door to the White HouseAmerican Enterprise Institute "Scholar" and former House Speaker blames media for poll showing 64 percent of the American people wouldn't vote for him under any circumstances Whatever it is that former House Speaker Newt Gingrich has come to represent in American politics, the guy is nothing less than fascinating. One day he's espousing populist rhetoric about the need to cut the costs of college tuition and the next day he's talking World War III. One day he's claiming that the "war on terror" may force the abridgement of fundamental first amendment rights and the next he's advancing a twenty-first century version of his Contract with America. At the same time he's publicly proclaiming how "stupid" it is that the race for the presidency has already started you know that he's trying to figure out how to out finesse Rudy, McCain and Romney for the nomination. And last week, when Fox News' Chris Wallace cited a poll showing that 64 percent of the public would never vote for him, he was quick to blame those results on how unfairly he was treated by the mainstream media back in the day.
Bill Berkowitz American Enterprise Institute takes lead in agitating against IranDespite wrongheaded predictions about the war on Iraq, neocons are on the frontlines advocating military conflict with Iran After doing such a bang up job with their advice and predictions about the outcome of the war on Iraq, would it surprise you to learn that America's neoconservatives are still in business? While at this time we are not yet seeing the same intense neocon invasion of our living rooms -- via cable television's news networks -- that we saw during the run-up to the invasion of Iraq, nevertheless, a host of policy analysts at conservative think tanks -- most notably the American Enterprise Institute -- are being heeded on Iran by those who count - folks inside the Bush Administration.
Bill Berkowitz After six years, opposition gaining on George W. Bush's Faith Based InitiativeUnmentioned in the president's State of the Union speech, the program nevertheless continues to recruit religious participants and hand out taxpayer money to religious groups With several domestic policy proposals unceremoniously folded into President Bush's recent State of the Union address, two pretty significant items failed to make the cut. Despite the president's egregiously tardy response to the event itself, it was nevertheless surprising that he didn't even mention Hurricane Katrina: He didn't offer up a progress report, words of hope to the victims, or come up with a proposal for moving the sluggish rebuilding effort forward. There were no "armies of compassion" ready to be unleashed, although it should be said that many in the religious community responded to the disaster much quicker than the Bush Administration. In the State of the Union address, however, there was no "compassionate conservatism" for the victims of Hurricane Katrina.
Bill Berkowitz Frank Luntz calls Republican leadership in Washington 'One giant whining windbag'On the outs with the GOP, legendary degrader of discourse is moving to California He doesn't make great art; nothing he does elevates the human spirit; he doesn't illuminate, he bamboozles. He has become expert in subterfuge, hidden meanings, word play and manipulation. Frank Luntz has been so good at what he does that those paying close attention gave it its own name: "Luntzspeak."
Bill Berkowitz Spooked by MoveOn.org, conservative movement seeks to emulate liberal powerhouseFueled with Silicon Valley money, TheVanguard.org will have Richard Poe, former editor of David Horowitz's FrontPage magazine as its editorial and creative director As Paul Weyrich, a founding father of the modern conservative movement and still a prominent actor in it, likes to say, he learned a great deal about movement building by closely observing what liberals were up to in the late 1960s and early 1970s.
Bill Berkowitz Ward Connerly's anti-affirmative action jihadFounder and Chair of the American Civil Rights Institute scouting five to nine states for new anti-affirmative action initiatives Fresh from his most recent victory -- in Michigan this past November -- Ward Connerly, the Black California-based maven of anti-affirmative action initiatives, appears to be preparing to take his jihad on the road. According to a mid-December report in the San Francisco Chronicle, Connerly said that he was "exploring moves into nine other states."
Bill Berkowitz Tom Tancredo's missionThe Republican congressman from Colorado will try to woo GOP voters with anti-immigration rhetoric and a boatload of Christian right politics These days, probably the most recognizable name in anti-immigration politics is Colorado Republican Congressman Tom Tancredo. Over the past year, Tancredo has gone from a little known congressman to a highly visible anti-immigration spokesperson. "Tancredo has thoroughly enmeshed himself in the anti-immigration movement and with the help of CNN talk show host Lou Dobbs, he has been given a national megaphone," Devin Burghart, the program director of the Building Democracy Initiative at the Center for New Community, a Chicago-based civil rights group, told Media Transparency.
Bill Berkowitz Institute on Religion and Democracy slams 'Leftist' National Council of ChurchesNew report from conservative foundation-funded IRD charges the NCC with being a political surrogate for MoveOn.org, People for the American Way and other liberal organizations If you prefer your religious battles sprinkled with demagoguery, sanctimoniousness, and simplistic attacks, the Institute on Religion and Democracy's (IRD) latest broadside against the National Council of Churches (NCC) certainly fits the bill.
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