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Lewis Franklin Powell Jr., conservative mastermind and Supreme Court justice, in 1972. (Photo: AP Images)

Lewis Franklin Powell Jr., conservative mastermind and Supreme Court justice, in 1972. (Photo: AP Images)

Getting Serious About Power

Can we learn something about the right’s strategic coherence without emulating either their ideas or their contempt for democracy?

It was 1971 and Lewis Powell, a corporate lawyer in Richmond, Virginia, who had been president of the American Bar Association and a member of the board of the giant tobacco company Philip Morris, had come to believe that American capitalism was facing a dire threat. Americans were angry about corporate abuse and corporate pollution; President Richard M. Nixon had responded by signing the National Environmental Policy Act and creating the Environmental Protection Agency through executive order. Across the country, activists marched for Earth Day, and Congress passed the first air pollution standards. Ralph Nader and other consumer advocates had successfully fought for safer cars and other products.

Powell believed that corporate America needed a decisive response to this perceived threat to the free-enterprise system. In a lengthy memo, the soon-to-be Supreme Court justice laid out his concerns and proposed responses to the Chamber of Commerce, where he served as chairman of the education committee.

What Powell grasped is that policy victories come after gaining control of the levers of power—and not before.

The document he penned, now known as the Powell Memo, has been described as the road map for conservative dominance of public policymaking. For any such plan to be successful, Powell understood, conservatives would have to fund a broad array of institutions that would exert control over the levers of power, including the courts, the legislature, and the media. Importantly, the tobacco lawyer insisted, it would require “careful long-range planning and implementation, in consistency of action over an indefinite period of years, in the scale of financing available only through joint effort, and in the political power available only through united action and national organizations.” What Powell grasped is that policy victories come after gaining control of the levers of power—and not before.

The impact has been devastating. And yet the progressive response, though energized, has been diffuse. There is no central committee of the American left, nor should there be. In the absence of a coherent plan, progressive leaders aggressively promote multiple ideas rather than focused strategies and tactics. Major funders support an array of advocacy groups, many without mass memberships or a focus on mobilization, that sometimes work at cross-purposes and in competition.

The Democracy Alliance, created in 2005, attempted to remedy that anarchy, with mixed success. It was launched with a smart PowerPoint elaborating on how the left should respond. But, as current Democracy Alliance president Gara LaMarche admits, “liberal values aren’t command and control. It’s a steep climb to get donors to consider collective aims. The right believes in long-term funding and general operating support while the left requires groups to perform against metrics in project grants and cuts them off after a short time to fund something new.”

Progressives are unlikely to adopt the hierarchical approach that works on the right, but we do need something like a Powell Memo of our own, an overarching strategy that focuses on winning and maintaining power, not just on issues; one that recognizes the need for large-scale and long-term investment in progressive infrastructure—think tanks to generate ideas, media to disseminate them, lawmakers to enact them, and judges to uphold them. Right-wing foundations are indeed famous for long-term funding of core institutions. Liberal foundations tend to have short attention spans. For our ideas to take hold and remain strong, we need to understand that long-term victories will require locking in democracy with a small d: nonpartisan districts, broad access to the voting booth, and fair-minded judges.

But in order to get there, we need to win elections. This requires two different, mutually reinforcing instruments. First, we need to support a set of policies that galvanize voters. We’ve seen the beginning of this, as progressive leaders embrace bold policies that were written off as fringe but that turn out to enjoy broad support. Second, we need to take back our democracy so that political preferences can translate into election wins—and real power.

House Democrats were able to pass their ambitious H.R. 1, "For the People Act," which aims to expand voting rights, limit partisan gerrymandering, strengthen ethics rules, and limit the influence of private-donor money in politics. But until Democrats regain control of the Senate, the bill will go nowhere.

That means broadening and deepening the right to vote for minorities, women, young people, urban voters, as well as making sure that they and their votes are counted. Mitch Mc-Connell paid progressives a backhanded compliment when he described H.R. 1, the For the People Act, as the “Democrat Politician Protection Act.” He was admitting that if democracy reform ever assured the right to vote, Democrats would be the majority.

In blue states, we need an aggressive campaign to pass legislation to expand early voting and automatic voter registration; in red states, well-funded litigation will be necessary to attack each and every law that threatens the right to vote, as well as a political strategy to target the legislators behind those bills. And that will require progressives not to shy away from bare-knuckle tactics. Right-wing lawmakers have to feel some pain, whether that entails losing voter support or having to defend their actions in public from a vigorous attack.

Several states already have stronger protections for the right to vote in their constitutions, which has allowed progressives to challenge some voter suppression efforts successfully, such as the Pennsylvania voter ID law that was found unconstitutional in 2014. In other states, like Michigan, progressives are trying to emulate Pennsylvania by passing a constitutional amendment to protect the right to vote, including early voting, no-excuse absentee ballots, and straight-ticket voting. Funders and leaders need to coalesce around a group of states where existing constitutional provisions can support a litigation strategy and those where a ballot initiative might be the first step.

Similarly, of immediate importance, progressive donors and activists need to fight for Democratic control of statehouses before the 2020 census, which precedes redistricting.

Similarly, of immediate importance, progressive donors and activists need to fight for Democratic control of statehouses before the 2020 census, which precedes redistricting. Part of this effort will be constitutional challenges to the districts that were heavily gerrymandered in favor of the GOP after the 2010 census. These lawsuits are beginning to find some success, with some lawsuits focusing on state constitutional provisions, others on federal. This approach perfectly melds our strategic imperative with progressive values. But fair maps are only step one. Without powerful recruitment and support for Democratic candidates for state offices, Republicans will retain control.

And of course, we can fix all the election rules in the world, but if people don’t vote, we won’t win. So that’s where changes like voting by mail and same-day registration come in. We need to make it easy to vote. And donors and the Democratic Party need to invest in a ground game that reaches out to low-propensity voters—minorities and young people—over a period of time. It can’t just be the day before the election, but needs to be a continuous engagement over time that gets them invested in the outcome.

In an analysis of Obama voters who stayed home in 2016, a group of political scientists found that these voters have strong progressive values and “four out of every five … identify as Democrats, and 83 percent reported they would have voted for a Democrat down-ballot. A similar share of Obama-to-nonvoters said that they would have voted for Mrs. Clinton had they turned out to vote. In short, while reclaiming some Obama-to-Trump voters would be a big help to Democratic prospects, re-energizing 2012 Obama voters who stayed home is a more plausible path for the party going forward.” But that takes money and a strategy that can’t be cooked up right before the election.

None of this is easy. Lewis Powell himself did not see his plan come together all at once, but on the right, there was quick recognition that he had correctly analyzed the problem, and conservatives were serious about a solution. Like the right, we must be ruthless in thinking through which procedures and rules will make it easier for us to win electoral, legal, and legislative victories. We can pursue all this with a clear conscience—because unlike the right, in a fair election we win. 

© 2021 The American Prospect

Caroline Fredrickson

Caroline Fredrickson is the president of the American Constitution Society and a senior fellow at Demos.

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