For years, conservatives have fought against what they call the “administrative state.” But let’s be clear: When he talks about the “administrative state,” he’s talking about an agency tasked with protecting the public from corporations that seek to profit at the expense of the health, safety, and pocketbook of the average American.
Substitute “corporate legal movement” for “conservative legal movement” and you see who is really against these protections, and why.
I spent four years as director of policy at the Federal Trade Commission, advising commissioners on how best to protect the public from corporate excess. I spent four more years as secretary of labor, protecting American workers from the depredations of big American corporations.
Most of the big companies I deal with comply with laws and regulations designed to protect society, but they spent a lot of money trying to prevent such laws and regulations from being made in the first place, and expended additional efforts to contest through the courts.
Last week, the Supreme Court made it more difficult to protect Americans from corporate misconduct for the FTC, the Department of Labor, and dozens of other agencies, ranging from the Environmental Protection Agency to the Food and Drug Administration, the Securities and Exchange Commission, and the Occupational Safety and Health Administration. and the Health Administration, the Consumer Financial Protection Bureau, and the National Highway and Safety Administration.
On Thursday, six Republican-appointed judges eliminated the agency’s ability to enforce the rule through domestic courts, instead going through the more expensive and difficult process of suing companies in federal court before a jury.
On Friday, the justices overturned a 40-year-old precedent that required courts to defer to the agency’s expertise in interpreting the law, thereby opening the agency to countless corporate lawsuits that say Congress did not authorize the agency to deal with certain corporate wrongdoing. . .
Make no mistake: Consumers, workers, and ordinary Americans will be hurt by the decision. Big companies, especially top executives and major investors, will make more money than they have ever made.
The decision is the result of a company strategy launched 53 years ago.
In 1971, the U.S. Chamber of Commerce, then a modest business group in Washington, DC, asked Lewis Powell, then a lawyer in Richmond, Virginia, to recommend actions that companies should take in response to the wave of public protection (ie, regulation ).
Powell’s memo, which was widely circulated to Chamber members, said the company was under “massive attack” from consumer, labor and environmental groups. These groups have done nothing but implement the implicit social contract that emerged at the end of World War II, to ensure that companies are responsive to all stakeholders—not just shareholders but also workers, consumers, and the environment.
Powell sees it differently. He called on businesses to mobilize for the political battle. Businesses must learn the lesson that political power is necessary; that power must be cultivated assiduously; and when necessary, it must be used aggressively and with determination—without shame and without the reluctance that has characterized American business. He emphasized that the essential ingredients for success are organization and funding. Strength lies in the scale of funding available only through concerted efforts, and in the political power available only through united action and national organization.
On August 23, 1971, the Chamber circulated Powell’s memo to CEOs, large corporations, and trade associations. It had exactly the impact the Chamber sought: It galvanized corporate America into action and released a tidal wave of corporate money into American politics.
An entire corporate legal movement has been born—including tens of thousands of corporate lobbyists, lawyers, political operatives, public relations, corporate think tanks such as the American Enterprise Institute and the Heritage Foundation, and corporate recruiters to the courts, such as the Federalist. community.
In 1972, President Nixon appointed Powell to the Supreme Court. In a few decades, big business will be the biggest political force in Washington, DC, and many state capitals.
When I arrived in Washington in 1974, it was still a sleepy if not seedy town. By the time I became secretary of labor in 1993, Washington had been transformed into the glittering center of corporate America, full of elegant office buildings, fancy restaurants, pricy bistros, five-star hotels, conference centers, beautiful townhouses, and booming real estate. Estate market that pushed Washington’s poor to the borders of the district and make two of Washington’s surrounding counties among the richest in the nation.
The number of corporate political action committees rose from under 300 in 1976 to more than 1,200 in 1980. When I was secretary of labor, corporations employed 61,000 people to lobby. That comes to more than 100 lobbyists for every member of Congress.
The so-called “conservative legal movement” young lawyers who came of age working for Ronald Reagan, including Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr., were part of the legal movement of this company. They still are.
Three of Trump’s appointments to the Supreme Court arose out of the same corporate legal motion.
Corporate capitalism in the United States has always coexisted with democratic capitalism. The fundamental question is which is in charge – big corporations or democracy?
Today’s Supreme Court, and the corporate law movement that led to it, is targeting large corporations.
Robert B. Reich is an American political commentator, professor and author. He served in the administrations of Presidents Gerald Ford, Jimmy Carter, and Bill Clinton. Reich’s latest book, System: Who hijacked it, How to fix it, is out now. He also writes regularly at robertreich.substack.com.
The opinion expressed in this article is only from the author himself.
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Newsweek is committed to challenging conventional wisdom and finding connections in the search for a common field.