Jerry Landay
August 19, 2002

The Powell Manifesto

How A Prominent Lawyer's Attack Memo Changed America

America's Second Gilded Age has been scoured of its glitter, along with the platitudes that its town criers preached -- "too much government," "market infallibility," The Attack Memo that Changed America and "prosperity forever." The policies and ethical failures that sprang from this gospel are under intense scrutiny. After 30 years, the self-serving creed of a right-wing coalition of wealth and power -- ideologues, promoters, corporate executives, and the American aristocracy of money - is under assault, its system failures increasingly apparent. Their ideology tantalized millions with the promise of "getting the government off our backs!"

The consequences of this readily marketable guff have led us to drastically altered economic circumstances -- a ruinous drop in both stock values and ethical standards that has weakened the economy; far worse, a global loss of confidence in the American economic system, and in a pro-market administration that is squandering America's good name and credibility among allies and friends

The troubadours of market fundamentalism argued that free markets work better than governments. In fact, the underlying problem was the absence of effective oversight by a government responsive to its people. The market was never "free," instead it was/is the tool of insiders who tilt the rules in favor of themselves. The current financial cost of this economic fraud runs to $8 trillion. Numbers cannot, however, measure the incalculable sums in pain and suffering sustained by the real victims -- small investors, pensioners, fired workers, and their families.

The Idea Apparat

The house that so-called New Conservatism built has operated on the principle that "ideas have consequences." The principal "ideas" they marketed were individual gain over public good, deregulation, big tax cuts, and privatization. For two decades, since the installation of Ronald Reagan in 1980, the radical right has run a tightly coordinated campaign to seal its hold on the organs of power, ranging from the highest law courts to the largest corporations, from the White House to Capitol Hill, from television tubes to editorial pages, and across college campuses.

They have constructed a well-paid activist apparatus of idea merchants and marketeers -- scholars, writers, journalists, publishers, and critics - to sell policies whose intent was to ratchet wealth upward. They have intimidated the mainstream media, and filled the vacuum with editors, columnists, talk-show hosts, and pundits who have turned conservatism into a career tool. They have waged a culture war to reduce the rich social heritage of liberalism to a pejorative. And they have propagated a mythic set of faux-economic values that have largely served those who financed the movement in the first place.

The Greatest Power Grab

Beginning in the early 1970s, a new conservative establishment set a counter-movement in motion to replace the institutions and expunge the ideas of American liberalism, which had dominated public thought and social policy since the New Deal. A new breed of conservatives sought to roll back a set of social gains going back to FDR, Truman, Johnson, and Kennedy.

They shifted the nation rightward; tilted the distribution of the nation's assets away from the middle class and the poor, the elderly, and the young; they red-penciled laws and legal precedents at the heart of American justice. They aimed to corporatize Medicare and Social Security. They marketed class values while accusing their opponents of "class warfare." They loosened or repealed the rights and protections of organized labor and the poor, voters, and minorities. They slashed the taxes of corporations and the rich, and rolled back the economic gains of the rest. They came to dominate or heavily influence centers of scholarship, law, and politics, education, and governance - or put new ones in their place. Their litigation teams nearly overthrew an elected President. And, to maintain power, proclaimed Constitutionalists on the right, to this day, wage a concerted counter- revolution against such Constitutional guarantees as free speech and separation of church and state.

Movement conservatism was a power tool formulated by scholars such as Irving Kristol, political organizers like the late Treasury Secretary William Simon, opinion molders and popularizers such as William F. Buckley, and a phalanx of think-tank operatives including Edwin Feulner and Paul Weyrich. A highly integrated front of activist organizations has been generously funded by the banking and oil money of the Mellon-Scaifes of Pittsburgh, the manufacturing fortunes of Lynde and Harry Bradley of Milwaukee, the energy revenues of the Koch family of Kansas, the chemical profits of John M. Olin of New York, the Vicks patent-medicine empire of the Smith Richardson family of Greensboro, N.C., and the brewing assets of the Coors dynasty of Colorado, and others.

Their grants have paid for a veritable constellation of think tanks, pressure groups, special-interest foundations, litigation centers, scholarly research and funding endowments, publishing and TV production houses, media attack operations, political consultancies, polling mills, and public-relations operations. The concerted campaigns they run, also underwritten by such self-interested corporations as those in healthcare, pharmaceuticals, and finance, have weakened the AARP, the Food and Drug Administration, Head Start, Medicare, and welfare programs.

This has amounted to the greatest organized power grab in American political history. Astonishingly, it goes largely unreported on television, radio, and most newspapers because of the applied political muscle of what Sidney Blumenthal, in his important history of the movement, has dubbed the "counter-establishment."

Its media-attack tactics have largely silenced the critical attention of the mainstream press. Americans, therefore, remain largely unaware of the sweeping changes movement conservatism has wrought.

Mobilizing Big Business

One of the early goals of movement-conservative leaders was to enlist the support and funding of senior business executives. Corporation heads had withdrawn to the political sidelines since their repudiation in the aftermath of the Great Depression. They had formed uneasy alliances with the Roosevelt Administration to rebuild the economy, and to defeat Nazi Germany and Japan. CEOs had only paid lip service to the mythic rhetoric of free marketry. The business of America was business, and its Washington activities were largely limited to promoting policies that directly affected bottom lines and dividends: bigger defense budgets, favorable taxation and tariff policies. But, a new generation, which had never experienced history's downside, was coming to power. Its members had been repelled by the liberal activism of the '60s. New-conservative strategists wanted their support.

Enter Lewis Powell

Few are aware of the critical role played in the political power shift rightward by a prominent Richmond attorney and Lewis Powell community leader, Lewis F. Powell, Jr., at the very threshold of a distinguished career on Lewis F. Powell, Jr.the U.S. Supreme Court. Powell was to be a leading catalyst in politicizing key sectors of the business establishment; and, he would make a major, if perhaps inadvertent, contribution to the strategy and tactics of the emerging new right.

Powell, a prominent corporation lawyer, had found the social turmoil and anti-business mood of the country abhorrent and alarming. He had achieved national prominence as president of the American Bar Association. A Democrat of southern conservative stripe, he was a member of the boards of 11 corporations, and clearly viewed the world as that culture did.

On September 13, 1971, a month before President Nixon was to nominate him to the Supreme Court to fill the seat vacated by Hugo Black, Powell wrote a letter to a law-school friend, Ross L. Malone, general counsel of the General Motors Corporation. Powell wanted Malone's help -- to alert "top management" of the company to the "contentious time in which we live" and the "plight of the [free] enterprise system." A massive propaganda campaign, he wrote, was being waged against business. "[M]anagement has been unwilling to make a massive effort to protect itself and the system it represents." Unless the business community acted, Powell warned, the capitalist system was "not likely to survive."

That 1971 letter, now stored in the Powell archives at Washington and Lee University, Lexington, Virginia, carried two enclosures. One was a copy of a memorandum that Powell had written at the invitation of Eugene Sydnor, Jr., a Richmond friend and department store owner, as well as chairman of the education committee of the U.S. Chamber of Commerce in Washington. Senior officials of the Chamber, including Arch Booth, its executive vice-president, decided to circulate it to privately to members. It was less a memo than a militant manifesto of political action, outlining in detail Powell's ideas on how business should go about responding to the assault against it. He urged the Chamber, which represented America's major businesses and trade associations, to take the lead in an aggressive "education" campaign in defense of free enterprise.

Waging a Culture War

The second enclosure was a newspaper column published earlier that month in the Richmond Times-Dispatch by journalist John Chamberlain. It detailed some of the trends that had so alarmed Powell, and mirrored his feelings as well: a purported, pro-liberal tilt by network television news, the Vietnamese war, "the kids," "racism, the black militants, and the WASPS." The trouble lay with a "liberal ethos," Chamberlain complained, that was leading America astray. Powell had underlined a section of the Chamberlain column. It summarized an analysis by conservative writer Edith Ephron of TV network political content: "Liberals emerge from [her] tabulations...as good people without race prejudice. Conservatives, on the other hand, are bad, and crawl with anti-Negro phobias."

Liberal critics were denouncing the growing power of big business; especially, its trend toward corporate gigantism and conglomeration. Big was not beautiful, they argued. It was dangerous. Corporations had to be regulated and reined in by the federal government. They warned that the growing market power of big corporations would permit big business to manipulate the American economic machine, to the disadvantage of consumers as well as the democratic political system. Powell believed 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. His point of view was certainly influenced by a successful career as a much sought-after attorney for business clients. He was vehemently against any reforms that impinged on the power of corporations to operate freely. But he seemed an unlikely leader of the emerging culture war into which his manifesto would inject him.

Youth-driven populism

The early 1970s was an age of youth-driven populism. Young rebels had stirred up a wave of campus unrest, which spread to the body politic. They had awakened public opinion to the soaring social costs the American economic system had been accumulating, and to the increasingly visible environmental degradation, air and water pollution, joblessness, and race-based neglect of the poor. Liberals pointed to the detrimental impact galloping consumerism had on the public health and its pocketbooks. There was also, of course, fierce opposition to America's involvement in the war in Vietnam.

Powell had underlined and filed an editorial in Look Magazine by its publisher, Thomas Shepard. "If things are all that bad," Shepard had written, then why had a taxi driver asked him rhetorically, "How come I feel so good?" Having supplied the question, Shepard went on to provide an answer. "Things aren't that bad." He attributed liberal faultfinding to a brand of pessimism indulged in by what he labelled "the Disaster Lobby." The new government regulations this "lobby" demanded were "dangerous not only to the institutions they seek to destroy but to the consumers they are supposed to protect."

Powell agreed. It was the power of media and campus institutions, not business, that had to be controlled - especially the potency of commercial television. Powell had complained to a friend of "the massive propaganda being waged in the press against [the free enterprise system] from the campus, media, pulpit, and elsewhere."

Nader and his Raiders

The bete noire of the conservative establishment was reformer Ralph Nader and his "Raiders." Powell had read and filed away a lengthy profile in Fortune magazine of May 1971, entitled The Passion that Rules Ralph Nader. The Fortune article itemized Cover of a 1972 paperback book on Ralph Nader titled 'A Man and A Movement' 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. The article reported that Nader's book exposing the poor design of American cars, Unsafe at Any Speed was responsible for a significant drop-off in auto deaths in 1970.

But the Fortune writer was far from pleased. He wrote that Nader's real purpose had nothing to do with protecting consumers. 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."

Nader believed that the corporate executives who had defrauded consumers with shoddy merchandise and poisoned them with chemical additives belonged in jail. Worst of all, Nader had gained Presidential potential. He threatened to "sweep away the shattered market system" with "eccentric" ideas. To its readers, these apocalyptic warnings spelled "Socialism."

The "Attack" Memorandum

Powell was convinced that Nader and the anti-business rebellion he personified had to be turned back. He met with his Richmond friend Eugene Sydnor, and they agreed that a national campaign was needed. Powell proposed that the U.S. Chamber of Commerce, expanded and well-endowed for the purpose, lead it. The espoused purpose would be to encourage "a more balanced view of the country's economic system." Powell was invited to outline his recommendations on the direction the project ought to take. The result was the manifesto.

As leaders of the Chamber pondered whether to take up the lead role he recommended, they agreed to circulate the full text to members. It was distributed in the Chamber's periodical Washington Report, dated August 31, 1971, which went to influential business leaders and managers. It carried the headline: "ATTACK ON AMERICAN FREE ENTERPRISE SYSTEM," and the stamp "THE POWELL MEM0RANDUM." The document ran to eight pages in two tightly-packaged columns, and was packaged as a "CONFIDENTIAL MEMORANDUM."

A System Under Assault

"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"..."to stop suffering in impotent silence, and launch a counter-attack." Business had to learn, he wrote, "that political power is necessary; that such power must be assiduously cultivated; and that, when necessary, it must be used aggressively..." As for Ralph Nader and his ilk, "There should be no reluctance to penalize politically those who oppose [the system]."

Powell singled out commercial television, "which now plays such a predominant role in shaping the thinking, attitudes, and emotions of our people." Despite this, in a "bewildering paradox," he complained, the "enterprise system tolerates, if not participates in, its own destruction." Powell emphasized the financial leverage that business interests held over universities, media, churches, and other power centers. After all, he suggested, business itself carries a big stick. It was a principal funder of these civic, religious institutions and mass communications enterprises. The threat of de-funding, Powell implied, could be used to achieve "balanced" re-education efforts. But the import of what he was suggesting, in terms of its implicit threat to academic freedom and Constitutional rights, is clear.

The Chamber leadership eventually decided against getting out in front. Powell's ideas were deemed too ambitious and costly. But they were taken up as organizing principles by others who found the suggested use of naked power, hard-nosed partisanship, litigation, and pressure particularly appealing.

A Program of Action

Campuses, Powell's manifesto asserted, were greatly dependent on funds "generated largely from American business." The media, which had made Nader "a legend in his own time," was, after all, dependent on the advertising revenues of sponsoring corporations.

This leverage went unused, he wrote, while Nader exacted concessions from management, and indulgent college administrators appeased rebellious students. Businessmen had been trained to manage and produce and be good citizens, wrote Powell; they were ill-equipped "to conduct guerilla war" with those who would "propagandize" against and "sabotage" the system.

Powell exhorted his readers: "The time has come - indeed, it is long overdue - for the wisdom, ingenuity and resources of American business to be marshaled against those who would destroy it." What was at stake, Powell wrote, was the very "survival" of the free enterprise system.

Powell's blueprint focused on four broad targets of attack: institutions of higher education, especially students and faculties in the social sciences; the media; the political establishment -- centers where public opinion, legislation and government policies and agendas were shaped -- and the court system, which codifed and interpreted American law.

1. Academe: on campuses, liberal professors and their agendas were wielding "enormous influence far out of proportion to their numbers," radicalizing their students "to the point of being revolutionaries," wrote Powell. Balance had to be restored. A counter-culture had to be created, 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." They would subject authors and publishers of textbooks to "review and critique."

Universities would be persuaded to provide "equal time" on the college speaking circuit" for "moderate or conservative viewpoints" to adequately represent the views of American business. These same pressures would be applied to "administrators and boards of trustees" to correct the "imbalance of many faculties." The first priority was to establish "staffs of eminent scholars, writers, and speakers, who will do the thinking, the analysis, the writing and the speaking" for the whole movement. They would insist on the "right" of conservatives to be heard.

2. Television and other media: These staffs of experts would reach public opinion, and effectively communicate with them. They had to be "thoroughly familiar with the media." Television networks were to be "monitored," not simply the daily "news analysis," with its "insidious criticism of the enterprise system," but such documentaries as CBS-News' The Selling of the Pentagon [It had documented the large sums of taxpayer dollars the military establishment was spending to stage spectacular war games and other events to promote itself, the Vietnamese conflict, and the glories of combat].

Powell called for "constant examination of the texts of adequate samples" of television programs, scholarly journals, books of all kinds, and pamphlets. "Incentives" were to be applied to "induce" them to publish and air more writings by the "faculty of scholars." Businesses were to devote more of the many millions they spent on advertising to "inform and enlighten the American people" to "support the system." Powell made no reference to the fact that the broadcast media were obliged, under an FCC rule called "the fairness doctrine," to cover all major points of view on controversial public issues. The Reagan Administration would abolish the rule in 1987, the year Powell retired from the bench.

3. Politics: Powell noted that Presidential candidates were daring to express "anti-business views." Lawmakers were being "stampeded" to support the agendas of consumerists and environmentalists. The American busnessman had lost his influence within the government. He was "truly the forgotten man." Powell proposed an intensive campaign to "enlighten public thinking" about business. Even more directly, business had to take "direct" steps to regain decisive political power within government. Influence had to be "assiduously cultivated," "used aggressively," and "without embarrassment." That included broadening the "role of lobbyist for the business point of view." Powell concluded that there should be no "reluctance to penalize politically those who oppose it."

4. The court system: Powell's recommendations were to prove especially compelling to movement conservatives, and would later be applied with forceful effect. He observed that "the judiciary may be the most important instrument for social, economic, and political change," and took as his model the American Civil Liberties Union, which "initiated or intervenes in scores of cases each year." As an experienced attorney, he well understood that changes in policy that could not readily be achieved by legislative or bureaucratic means might more easily be won in court.

Powell urged the Chamber to set up a business-sponsored legal center. It would be modeled on the lines of liberal legal organizations, and would have "a highly competent staff of lawyers" to "undertake the role of spokesman" in the courts on business's behalf. Its litigators would lead the counter-attack against zealous environmentalists, consumer activists, and others such as Nader "who seek the destruction of the system."

The manifesto concluded: "Business and the enterprise system are in deep trouble, and the hour is late."

It was to be Powell's last public statement on a burning issue before the jurisprudential cloak of impartiality was settled on his shoulders. In October, President Nixon nominated him to the high court, and Powell withdrew behind the supreme lamina of juridical dispassion.

The Manifesto Reverberates

But he left behind a document with unmistakably authoritarian overtones that were to reverberate throughout the business community. In his book The Power of Ideas, Lee Edwards, professor of politics at the Catholic University of America, and the official historian of the Heritage Foundation, reports an account of his interview with the late Joseph Coors, head of the largest brewery west of the Mississippi; specifically, that Coors was "stirred up" after reading it.

Coors told Edwards that Powell's manifesto had "convinced" him that American business was "ignoring a crisis." Coors was moved to act. He "invested" the first $250,000 to fund the 1971-72 operations of the Analysis and Research Association (ARA) in Washington, D.C., the original name of the foundation. Other wealthy contributors followed Coors' lead. Their aim was to counter liberal power in Washington, and aggressively market policies and legislative proposals to Congress and the President that reflected the conservative agenda. Heritage became the trend-setting model for scores of policy institutes and lobbying operations that compose the radical-right apparat. Heritage has been a major beneficiary of the Coors' Castle Rock Foundation ever since.

In her recent book Slanting the Story, journalist-critic Trudy Lieberman cites the Powell manifesto's call for a focal attack on Ralph Nader. She suggests that as a result of such concerted assaults, the right wing is "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 rightwing foundations "to create taxpayer subsidized law firms...to rewrite American jurisprudence...advanc[e] their agenda before judges, lawyers, legal scholars, and government policy makers...[and] sought to assure control over the future direction of the law" by installing ideologically friendly faculty in law schools, as well as organizing and rewarding students with scholarships and clerkships under conservative judges, and placing those judges on the bench.

The Alliance document reported that the California Chamber of Commerce picked up on Powell and proposed what became in 1973 the Pacific Legal Foundation, the first of eight regional litigation centers. The seed money for establishing these centers was provided that year by J. Simon Fluor, founder of the global engineering company that bears his name. The Olin, Scaife, Bradley, Smith Richardson, and Coors' Castle Rock foundations, and others, continue to underwrite these operations. They have wrought great changes in the law - such as weakening affirmative action, and curbing access to courtrooms by death-row prisoners, the handicapped, minorities, and the elderly - to appeal, to sue, to vote. Cases argued up the judicial ladder by radical litigators have often reached the Supreme Court. They tried unsuccessfully to roll back the Miranda rights of prisoners placed under arrest, and to limit the right of states to enforce certain environmental protections. But they have won decisions in Federal courtrooms that endanger public school systems, the rights of women, the separation of church and state, and clean air and water regulations.

The Federalist Society is the legal think tank for these conservative litigators. It has promulgated theories that have been applied by litigators to weaken the powers of the federal government, reverse legal precedents encoded by the Warren court, and to propound counter-Constitutional principles on states' rights and property rights whose roots can be traced back to the Confederacy. The Federalists are particularly effective on campus, with active student chapters in most American law schools.

Since 1972 and continuing to the present, conservative foundations also heavily underwrite scores of institutes and policy centers that operate along the general lines proposed in the Powell memo. These agitprop operations are modeled on the Heritage Foundation, and include the Manhattan Institute, the Cato Institute, and 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. For sheer scale and mass, the action front of the radical right is unprecedented in American history.

The Manifesto Goes Public

The Powell memo remained "confidential" for more than a year after Powell composed it. But months after his Senate confirmation to the Supreme Court, the confidential memo was leaked to Jack Anderson, the liberal syndicated columnist. He wrote two columns about it in September 1972, which stirred nationwide interest in the manifesto. Anderson wrote that the memo raised serious jurisprudential questions about Powell's legal objectivity and "fitness." He "might use his position on the Supreme Court to put his ideas into practice...in behalf of business interests."

Powell actually once conceded to a biographer that he had doubted the Senate would confirm him because of his close links to business. But no senator raised questions about his "assault by big business on its critics," in Anderson's phrase, during his confirmation hearings. The FBI, which had looked into the background of the nominee, had failed to bring the memo to senators' attention.

Anderson complained that Powell had come off "the model of a moderate, reasonable, judicious legalist." A conservative columnist, James J. Kilpatrick, fired back. "The effect of Anderson's attack on Powell," he wrote, "has been to give the memorandum publicity" it could never have otherwise received. Businessmen were besieging the Chamber with requests for copies. Due to Anderson, Powell's cri de coeur had been promoted and nailed on the bronzed portals of the American business and political establishments from coast to coast.

Dubious Heritage for a Considered Moderate

Powell had never been considered an ideological extremist. He displayed deft leadership both in Richmond and as President of the ABA, for instance, in such sensitive social arenas as civil rights. His confirmation for the US Supreme Court sailed through. On the bench from 1972 to 1987, Powell would prove a disappointment to President Nixon, who had nominated him in the hope that his presence would help drive the court rightward toward "strict construction." Instead, Powell staked out the moderate center between his four liberal and four conservative colleagues, often casting the "balancing" vote on crucial decisions. A former law clerk described him as "too liberal to please the conservatives, and too conservative to please the liberals."

This difficult straddle caused him to change his views on a number of important cases in which he had cast decisive votes. 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 was now "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 reflected and shifted again, 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, he conceded that he had remained "troubled to this day" by his vote to uphold Georgia's anti-gay sodomy law.

Powell died in 1998. Were he alive to reflect on today's corporate excesses and scandals, the resurfacing of Wall Street avarice, the extremist fervor of radical conservatism, the singularly wide gulf between rich and poor, and the policies that exacerbate it, would he have questioned the harshness of his 1971 "attack" manifesto? His principal biographer never mentioned it. His moderation on the bench certainly surprised many. But would it have led Powell to reconsider and, perhaps, repudiate a 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 corporations have grown much too powerful for the public good? We have had the benefit of hindsight. Justice Powell apparently did not.

The writer wishes to thank John Jacob, curator of the Powell Papers at Washington and Lee University, and James Deakin, White House correspondent for the St. Louis Post-Dispatch from Eisenhower to Reagan, for their assistance.