The role of the activist lawyer used to be primarily a liberal one. Whether it was the radical National Lawyers Guild or the liberal American Civil Liberties Union, or ACLU, or even whether it was a group with a minority-rights focus such as the legal arms of the National Association for the Advancement of Colored People, or NAACP, and the National Organization for Women, the concept of change through the courts was a collectivist one from the New Deal through the Great Society.
But several factors brought about a change and gave rise to what once would have been an oxymoron: the conservative legal activist.
One factor was that the liberal legal groups were so successful that it only was a matter of time before conservatives got tired of losing by forfeit. Another was that the civil-rights lawsuits of the 1960s contributed to the imposition of unpopular and legally dubious remedies such as quotas and busing. This, in turn, gave rise to a generation of legal organizations dedicated to overturning quotas, often using the very statutes and constitutional clauses that had been invoked to justify their imposition.
Another factor for the growth of conservative legal activism was the conjunction of a growing bureaucracy, at both the federal and state levels, constantly giving rise to individual grievances, and the realization by many conservative donors that political and legislative victories, while indispensable, are of no value if they routinely are overturned by the courts. Beginning in the mid-1970s, conservative attorneys started going to funding sources and saying: "Do you want to keep losing by forfeit, or do you want the right also to field a team?"
Former Attorney General Edwin Meese III chairs a monthly coalition luncheon of the conservative legal groups that have Washington offices. He spoke with Insight just after chairing one of those meetings.
"It really started in California while Ronald Reagan was governor," Meese says. "He was trying to reform welfare so as to get those who were not eligible off the rolls, increase benefits for the truly needy and move former recipients into the workforce. There were two groups attempting to thwart those reforms: the liberal think tanks, and some so-called public-interest law firms that were getting funding from the federal government through the Office of Economic Opportunity. But there were no resources on the other side to represent true public interest – the taxpayer, the ordinary citizen.
"So in 1973 the Pacific Legal Foundation got started. That was the first of what I call the real public-interest law firms – the ones that represent the taxpayers, the parents, the law-abiding citizens. From California, the movement spread across the country: Mountain States Legal Foundation in Denver; Midwest Legal Foundation (later the Lincoln Legal Foundation) in Chicago; the South East Legal Foundation, the North East Legal Foundation, the Atlantic Legal Foundation, the Washington Legal Foundation – there are now about two dozen of them across the country," says Meese.
Landmark Legal Foundation, based in Kansas City, Mo., was founded in 1976 as the Great Plains Legal Foundation. It has "one mission," says its president, Mark R. Levin, a former Department of Justice official under President Reagan and Meese (who is a vice president of Landmark): "to promote and defend the United States Constitution and the individual liberties that are guaranteed in it."
"Our litigation is diverse and aggressive," Levin tells Insight. "We have successfully defended school vouchers in Wisconsin against challenges by the ACLU, the NAACP and the teachers’ unions. We were involved in fighting busing in Kansas City and in fighting the judicially ordered tax increases that finally were struck down by the Supreme Court. We do free-speech and property-rights cases. We were the first nonprofit legal group to get involved in independent-counsel cases: We represented Mr. Meese, and we still represent Jean Lewis, the former Treasury Department criminal investigator who blew the whistle on Whitewater."
The Clinton years have brought Landmark into government-ethics issues. "We made a decision early in 1993 that there should be closer attention paid to the behavior of government officials. We jumped into Filegate by filing FOIA [Freedom of Information Act] requests, and we disseminated the results to the media and to Congress. We discovered Al Gore’s Buddhist-temple fund-raiser through a FOIA request. We pressed for adding Filegate to Ken Starr’s jurisdiction."
Landmark also has filed complaints with the House ethics committee. But if you measure success by formal committee action, these have not been very successful. "The ethics committee is evenly divided between the parties," notes Levin, "so it very rarely takes formal action. But formal action is not the only desirable outcome. For example, we filed a complaint saying that Senator Chris Dodd, having been [Democratic National Committee] chairman during the events that the Thompson committee [Senate Governmental Affairs] was investigating, should recuse himself from votes concerning that committee. We got no formal response, but when the Senate voted on the Thompson committee’s jurisdiction, Dodd voted ‘present.’"
Another Landmark concern has been audits by the IRS that appear to be politically motivated. "They’ve been disproportionately auditing conservative and libertarian organizations," says Levin. "We filed FOIA requests on this and got nothing, so we’ve filed suit. Now they’ve given us documents that are heavily cut and not responsive, so we’re back in court moving for summary judgment and asking the judge to make them cough up what they’re supposed to."
Calling his organization "nonpartisan conservative," Levin notes that he also has lashed out at California Republican Rep. Jay Kim, currently under house arrest for campaign-finance violations and due to retire after losing his primary, and at Senate Majority Leader Trent Lott of Mississippi when he publicly urged Starr to speed up his investigation. "Usually," says Levin, "members of Congress should keep their noses out of federal criminal investigations."
There are different approaches out there to the role of the lawsuit as a tool for reform. "Generally we are not quick to sue," observes Levin. "We’d rather get results by getting information, then giving that information to those whose job it is to act on it. But when we have to sue, we really sink our teeth into the case."
The Sacramento-based Pacific Legal Foundation – the granddaddy of them all, according to Meese – is helping Golden State school districts to implement California’s Proposition 227, (which requires changes in bilingual education) and is defending that voter-enacted law against a legal challenge by the ACLU.
"We were founded in 1973," says Pacific Legal’s communications director, Frank Stephens. "During Ronald Reagan’s term as governor of California, a lot of liberal legal groups were trying to stop the expansion of property rights in California, and we were founded to counter that."
Today Pacific Legal often has as many as 150 cases going at once and maintains offices in Alaska, Hawaii and Florida. "Our major issues are property rights and individual rights," Stephens tells Insight. "We have six cases seeking review from the U.S. Supreme Court right now, all about property owners facing unreasonable restrictions from local governments. On the individual-rights side, our work on Proposition 227 fits in there. It allows local school districts to individualize their bilingual ed programs. We have a case going on in bilingual ed, Louie vs. Oakland Unified School District. In that case the school took a 6-year-old black boy who spoke English and put him in a Cantonese-speaking class. They had to fill up that class, and I guess the family name, ‘Louie,’ struck them as a little bit Oriental, so they picked him. His father has had to sue the school to get them to teach his son in English.
"Overall, the agenda we pursue in our education cases is that all parents, including immigrants, should have the right to make basic choices about their children’s education, and that all students have the right to learn English as soon as possible rather than being put in an academic ghetto," says Stephens.
Funding? "Our average donation is about $35. We have a few foundations and businesses, but it’s mostly small donors."
One of the most news-making legal foundations on the conservative circuit is Judicial Watch, founded in 1994 by Larry Klayman, who has been profiled in Insight (see "Larry Klayman Followed the Money Trail to the White House," Feb. 17, 1997). Lawsuits filed by Judicial Watch have exposed the unauthorized White House rummaging through raw FBI background files on Republicans, and it was Judicial Watch that brought John Huang – the former Lippo banking executive, Commerce Department appointee and Democratic National Committee fund-raiser – to the deposition table.
"Our goal," says Judicial Watch spokesman Tom Fitton, "is to ferret out corruption in government." Fitton rejects the charge that an anti-Clinton agenda is the reason Clinton’s name appears in the defendant field on so many of Judicial Watch’s legal filings. "As it happens, the executive branch has been run by Bill Clinton as long as we’ve been around. But we still will be around after 2000, no matter who is in power. Corruption isn’t going to go away." Landmark also has worked on the Filegate case, which raises a question:
Is Landmark part of the "right-wing conspiracy"? "That’s what they say, of course," replies Levin, "but the fact is all these groups have their own boards, their own staffs and their own agendas. There’s some limited sharing of information on property-rights issues, but on government-ethics issues we don’t coordinate with anyone."
The single most influential organization in the conservative legal world is one that never files a brief or argues a motion: the Federalist Society. The reason for its influence is that it offers a rallying point for conservative law students who might otherwise go with the flow of the dominant views on campus and then offers ongoing intellectual formation through conferences and luncheons that bring together conservative lawyers, academics and politicians. Thus, it helps conservatives stay that way both during and after law school.
The Federalist Society was founded in 1981 by conservative law students at Yale, Harvard and the University of Chicago who commiserated over the difficulty that they, and the small number of conservative professors they had met, were having in getting their ideas taken seriously. They decided to bring those professors together for a conference at Yale Law School in April 1982. Soon thereafter, the society was ensconced in Washington and providing intellectual fuel and human resources for the Reagan administration’s judicial reforms.
"It provides an opportunity," says executive director Eugene Meyer, "for any law-school student who might be interested, whether conservative or not, to hear conservative or libertarian ideas as they apply to the law, clearly articulated.
"Recently," continues Meyer, "the Wiegand Foundation gave us funding to establish a set of practice groups, allowing our members to meet on the basis of practice interests as well as on the basis of a conservative/libertarian philosophy. About three-quarters of the rest of our funding comes from private foundations, corporations and individuals – more individuals than corporations, actually."
Another organization that is active on the intellectual rather than the litigation side of these matters is the National Legal Center for the Public Interest, a business-oriented Washington think tank that also is mentioned by Meese in his recitation of the conservative legal renaissance.
The center’s statement of purpose declares that it will "foster knowledge about law and the administration of justice, based on the principles of the rights of individuals, free enterprise, private ownership of property, balanced use of private and public resources, limited government and a fair and efficient judiciary."
"We’re at the intersection of legal and business issues," says the center’s vice president and general counsel George Landrith, a former Virginia congressional candidate. "We publish in those areas with an eye to achieving change. We’re not a membership group, so we get no income from dues – our funding comes from individuals and businesses."
The center publishes a monthly newsletter that gives meaty, lawyer-friendly summaries of cases and a monograph series modestly titled "Briefly.i" This last actually is a series of law-review articles in booklet form. The briefing that the center gives every September on the coming Supreme Court docket draws a Who’s Who of Washington’s elite lawyers. High-prestige liberals sometimes take part as well, as when Duke University law professor and former U.S. Solicitor General Walter Dellinger addressed the briefing in 1997.
Whether through education or litigation or both, these groups, says Meese, "represent ordinary taxpaying citizens and defend constitutional rights such as property rights, free speech and freedom of religion – rights that would not ordinarily be given prime attention by the for-profit bar"