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IN THIS ISSUE

Letter from Eva Paterson

EJS Annual Conference 2005 at UCLA

Cokorinos; Corporate Think Tanks Then and Now

Law Review Summaries on Corporate Law

Coalition to Monitor Judicial Nominations

Debunking Sanders' Myth: A Rebuttal

Pathways to Leadership in New Mexico

First Annual EJS Fundraiser Features Port Chicago Jazz

EJS, ACS Host Law Prof. Reception

EJS/SALT Panel on Strategic Scholarship

Staff/Board News and Notes

Become a Part of the Equal Justice Society

Newsletter Editors:
Elaine Elinson
Joe Lucero

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Notes on the Right: Corporate Think Tanks Then and Now
By Lee Cokorinos

Having prevailed in the elections, the massive infrastructure of corporate-backed right wing lobbyists, political consultants, think tanks, and media capacities has turned its attention to gutting the American social contract that took almost five decades - from 1932 to 1980 - to put in place.

This sea change in American law and public policy, however, met furious resistance by an alliance of conservative judges, legal activists, corporate counsel and prominent academics. In his account of the epic battles surrounding Franklin Delano Roosevelt's efforts to establish the New Deal, historian Arthur Schlesinger describes a 1936 Liberty League banquet held at Washington's Mayflower Hotel (where the Federalist Society now holds its annual banquets). At that historic meeting, the "principals and attorneys" of America's major corporations cheered as former presidential candidate Alfred E. Smith smeared the New Deal as a dictatorial plot.

Driving the Debate to the Right

There are some striking continuities between the role think tanks played in resisting the New Deal and their efforts to dismantle it today. As then, think tanks are playing a major role in driving the debate to the right. Take, for example, the effort to overhaul social security. Modest proposals for social security reform, originally supported by the business community, have yielded to radical privatization demands pushed by the Cato Institute that attracted little support in the mid-1990s.

The right wing think tanks of the 1930s-the Edison Electric Institute and the National Lawyers' Committee of the American Liberty League-labored mightily to paint Roosevelt's legislation as unconstitutional, publishing and disseminating a blizzard of "private decisions" by eminent legal authorities. Rejecting the arguments of Louis Brandeis and Felix Frankfurter that fair labor practices and deficit spending were constitutional and necessary, Adolph Berle, the dean of modern corporation theory, defiantly declared the "corporate revolution" permanent.

In the 1936 presidential campaign, although Republican Alf Landon made the crusade against Social Security a centerpiece of his platform, the American Liberty League spent twice as much money agitating against it as did the Republican Party. The U.S. Chamber of Commerce, which through its Institute for Legal Reform has taken the lead in pushing "tort reform" and social security privatization today, bitterly opposed Roosevelt's social security plan.

Playing the race card and backed up by the Hearst media machine, the anti-New Dealers also recruited Georgia Governor Eugene Talmadge, a law graduate of the University of Georgia and arch-white supremacist. In his campaign against increased federal spending, Talmadge's creed was "the only way to have an honest government is to keep it poor." Talmadge thus foreshadowed Grover Norquist's remark that "my goal is to cut government in half in twenty-five years, to get it down to the size where we can drown it in the bathtub." Norquist has served as a lobbyist for the present-day Edison Electric Institute.

The race card is being dealt again today. President Bush recently told a group of black leaders, "African-American males die sooner than other males do, which means the [Social Security] system is inherently unfair to a certain group of people." Bush would have us act on the premise that African-Americans don't get to collect Social Security benefits, rather than address the social, economic and medical reasons that cause shorter life expectancies for African-American males. As Dr. Maya Rockeymoore of the Congressional Black Caucus Foundation has pointed out, Bush's social security privatization scheme gravely threatens the economic stability of African-American families and communities.

The Corporate Irresponsibility Lobby

The New Deal also created means to curb the manipulation of securities markets through the Securities Exchange Act. In the wake of the Enron corporate accounting scandal, that law was recently toughened up by the Sarbanes-Oxley Act. Since its passage, however, a low key campaign has begun to chip away at elements of Sarbanes-Oxley, particularly those providing for criminal prosecution.

For years the Heritage Foundation's Center for Legal and Judicial Studies, under Edwin Meese, Reagan's Attorney General, has campaigned for a ruthless approach to criminal sentencing, with disastrous effects on communities of color and the poor, particularly African-Americans. But in the wake of Sarbanes-Oxley's extension of the reach of criminal law into the boardrooms, Heritage has developed a touching new sensitivity to the need for proportionality and good sense in sentencing law.

Paul Rosenzweig, a Heritage research fellow, has even coined a new term to water down the meaning of corporate responsibility to shareholders and the public: "vicarious responsibility." Rosenzweig complains that it is excessive to hold company directors criminally liable for fraud when they are only "vicariously responsible for the acts of others."

Such double standards have long been a feature of the right wing "politics of retribution," as researcher George Winslow documented in Capital Crimes, his excellent book on the enforcement and sentencing disparities between street crime and corporate crime.

The emerging campaign against Sarbanes-Oxley is part of a wider effort to stigmatize the very idea of corporate social responsibility and attack the movement advocating it. Right-wing economic zealots have formed a new think tank, Corporate Social Responsibility Watch, to respond to the growing international movement calling for more accountable corporate behavior.

CSR Watch is run by Steven J. Milloy, a Cato Institute scholar, and veteran activist in the corporate-funded "junk science" effort targeting consumer product safety campaigns. Milloy calls Sarbanes-Oxley "a silly, knee-jerk overreaction to a handful of individual miscreants," and recently published a study purporting to prove that corporate social responsibility hurts the bottom line. The study was written by Arthur Laffer, who served on Reagan's Economic Policy Advisory Board.

What's the Matter with Wall Street?

Another massive campaign to pack the judiciary with property rights fundamentalists has begun. The National Association of Manufacturers, which tenaciously fought against the New Deal, has launched new coalition called the American Justice Partnership in tandem with the Federalist Society, the American Tort Reform Association, the American Legislative Exchange Council, the Council of State Chambers and other organizations.

In his popular and engaging book What's the Matter with Kansas? Tom Frank wonders why working people in Kansas continue to vote against their economic interests by electing the same hard-line conservative politicians who routinely support the corporate legislation and judges destroying their means of livelihood, their culture, and their communities. Ironically, the same question could be asked of major American corporations, which are witnessing along with the rest of us the efforts of the far right to uproot the very social contract that afforded them decades of relative economic and social stability.

Despite the fact that the New Deal was challenged by powerful economic interests, Roosevelt was able to carry the day by building a strong coalition of progressive and liberal legal activists, sitting judges, legal and social science academics, and the wider progressive movement. Even after his effort to pack the Supreme Court failed, the public pressure was such that even a conservative court had to yield. This is a lesson worth bearing in mind, as the courts turn further rightward.

As in Roosevelt's day, our times call for an unprecedented effort by the progressive community to develop new networking and outreach strategies to impact the laws governing the use of corporate power, and to develop new relationships with those in the private sector who may understand from their own history that there is a strong business case to support justice and equality in their own practice and in society. The upcoming conference organized by the Equal Justice Society and Center on Corporations, Law and Society on April 7-9 will be a good opportunity to deepen these ties.

Lee Cokorinos conducts political research on right-wing movements and organizations. He is the author of The Assault on Diversity: An Organized Challenge to Racial and Gender Justice (Rowman & Littlefield), and can be reached at rightnotes@earthlink.net.