MGM&USP Document #59

An Outline of

Lewis Powell’s Memo to the Chamber of Commerce:

In Effect a Strategic Plan for Corporate Rule over Government

(Updated June 20, 2016)

This document outlines Lewis Powell's 1971 Memorandum to the Chamber of Commerce which in effect provided a strategic plan for corporate rule over governments.

The following is paraphrased from Jeffrey D. Clement's outstanding book, Corporations Are Not People.

"Lewis Powell, a shrewd corporate lawyer, a representative for the tobacco industry, a director of more than a dozen international corporations, including Philip Morris Inc., a global manufacturer and seller of cigarettes, who immorally and dishonestly argued in court that any suggestion that cigarettes caused cancer and death was "not proved" and was "controversial."

In 1971, Powell wrote a confidential memorandum to the leadership of the United States Chamber of Commerce. In this memorandum Powell outlined a critique and a plan to use "activist" Supreme Court judges to create corporate power, personhood and rights. The roots of Citizens United lie in Powell's 1971 strategy.

In his now infamous confidential memo Powell, who would be nominated by President Nixon to the U. S. Supreme Court five months later, stated:

     •    Corporations must organize and fund a drive to achieve political power through "United action and a sustained, multi year corporate campaign to use an "activist-minded Supreme Court" to shape "social, economic and political change" to the advantage of corporations.

     •    “Independent and uncoordinated activity by individual corporations, as important as this is, will not be sufficient. Strength lies in:

                •    Organization

                •    In 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.

Powell's 1971 memo to the Chamber of Commerce laid out a corporate power and rights campaign. The Chamber and the largest corporations then implemented these recommendations “with zeal, piles of money, patience, and an activist Supreme Court.”

Corporations and corporate executives also funded a wave of new "legal foundations" in the 1970s. These legal foundations were intended to drive into every court and public body in the land the same radical message, repeated over and over again, until the bizarre began to sound normal: “corporations are persons with constitutional rights against which the laws of the people must fall.”

These foundations began filing brief after brief challenging state and federal laws across the country. The foundations and the corporate lawyers argued that "corporations are persons" with the "liberty secured to all persons." They used new phrases like "corporate speech," the "rights of corporate speakers," and "the corporate character of the speaker." They demanded, as if to end an unjust silence, "the right of corporations to be heard" and "the rights of corporations to speak out."

The ideas expressed by Powell in his 1971 memorandum to the Chamber of Commerce came out of his personal involvement in the aggressive resistance of the cigarette corporations to efforts to address the devastating social and public costs of its lethal products. As a director and an executive committee member of Philip Morris, Powell shared responsibility for the fraudulent attack on the conclusions of scientists and the surgeon general by the cigarette industry and for its false insistence for years that "no proof" showed cigarettes to be unhealthy.

As counsel to the cigarette industry and as a Philip Morris director, Powell already had begun testing the use of activist-minded courts to create corporate rights. In one case in the late 1960s, Powell argued that any suggestion that cigarettes caused cancer and death was "not proved" and was "controversial." Therefore, according to Powell, the Federal Communications Commission wrongly violated the First Amendment rights of cigarette corporations by refusing to require "equal time" for the corporations to respond to any announcement that discouraged cigarette smoking as a health hazard.

Even the U.S. Court of Appeals for the Fourth Circuit, based in the tobacco-friendly South, rejected this claim. Although Powell lost that time, he went on to win far more than he could have imagined after he got on the Supreme Court.

In January 1972 when President Nixon appointed Powell to the Supreme Court, neither Congress nor most Americans knew of Powell's radical corporatist views on the environment, tobacco and public health, food and drugs, financial regulation, and more. The memo was not disclosed during Powell's confirmation proceedings ‘’

Several vigorous dissents resisted the concept of corporate rights. The most vigorous came from the conservative Justice William Rehnquist. He grounded his dissents in the fundamental proposition that our Bill of Rights sets out the rights of human beings, and corporations are not people. For years, Rehnquist maintained this principled conservative argument, warning over and over again that corporate rights have no place in our republican form of government.

Despite the Rehnquist and other dissents, the millions of dollars invested in the radical corporate rights campaign began to pay off. Powell's vision of an unregulated corporate political "marketplace," where corporations are freed by activist courts from the policy judgment of the majority of people, won out.

     A. Buckley v. Valeo, 424 U.S. 1 (1976) which unconstitutionally ruled certain limits on campaign spending constituted violations of the First Amendment and equated money with speech. In Buckley v. Valeo, in 1976, the US. Supreme Court ruled, among other things that, mandatory limits on candidates spending of their own money, limits on independent expenditures, and limits on total campaign spending constitute violations of the First Amendment. This ruling constitutes a central obstacle to effective campaign finance reform. The ruling does this in two ways: First, equating money with speech, the decision prohibited governments from imposing spending limits on candidates. Second, by acknowledging that, at the same time, large contributions can be potentially corrupting and allowing them to be capped, the decision created perfect condition for a black market in "soft money"--high demand for a suppressed supply of dollars

     B. Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, 1976, and Central Hudson Gas, 1980 which unconstitutionally granted corporations the First Amendment right of "commercial free speech" (endnote #1)

     C. Marshall v. Barlow's, 1978 which unconstitutionally granted corporations the Fourth Amendment right against unwarranted regulatory searches (endnote #1)

     D. First National Bank of Boston v. Bellotti 1978 which unconstitutionally granted corporations the First Amendment right to spend money to influence a state referendum (endnote #1). Several international corporations — including Gillette, the Bank of Boston, and Digital Equipment Corporation — filed a lawsuit after the people of Massachusetts banned corporate political spending intended to influence a citizen referendum. Justice Lewis Powell cast the deciding vote and wrote the 5–4 decision wiping off the books the people's law intended to keep corporate money out of citizen ballot questions. For the first time in American history, corporations had successfully claimed "speech" rights to attack laws regulating corporate money in our elections.

With that success, an emboldened corporate rights campaign next attacked energy and environmental laws, . . . utility corporations and the array of corporate legal foundations all argued that a New York law prohibiting utility corporations from promoting energy consumption violated the corporations’ rights of free speech. The corporations won again, and again Justice Powell wrote the decision for the activist Supreme Court that he had imagined in his 1971 Chamber of Commerce memo. The corporate interest in promoting energy consumption for corporate profit trumped the people’s interest in energy conservation. Over a period of six years, Justice Powell wrote four key corporate rights decisions for the Supreme Court. These unprecedented cases transformed the people’s First Amendment speech freedom into a corporate right to challenge public oversight and corporate regulation.

Powell led a majority of the Court to accept the repeated mantra that “corporations are persons” and corporate “voices” must be free, and the sustained attacks on the people’s laws continued for the next two decades. Oil, coal, and utility corporations, tobacco corporations, chemical and pharmaceutical corporations, alcohol corporations, banking and other Wall Street corporations, and many others all successfully claimed corporate speech rights to invalidate federal, state, and local laws . . . corporations even succeeded in attacking the right of parents to know whether the milk they fed their children came from cows treated with Monsanto’s genetically engineered recombinant DNA bovine drug.

     E. Pacific Gas & Electric Co. v. Public Utilities Commission, 1986 which unconstitutionally granted corporations the First Amendment right of "negative free speech" (endnote #1)

     F. Citizens United v. Federal Election Commission, (No. 08-205) 130 S. Ct. 876 (2010).

On January 21, 2010, in Citizens United v. Federal Election Commission, without the federal law that had limited corporate and union spending on "electioneering communication" (broadcasting) aimed at the election or defeat of a specific candidate being properly before the court, five Supreme Court Jurists wrongfully and unlawfully took it up and on their own initiative wrongfully and unlawfully held it unconstitutional.

The decisions of these five jurists wrongfully and unlawfully:

           1. Implicitly overturned100 years of federal law-and by further implication, state laws-limiting corporate expenditures on elections with broad language.

           2. Overruled two important precedents about First Amendment rights of corporations; Austin v. Mich. Chamber of Commerce, a 1990 decision that upheld restrictions on corporate spending to support or oppose political candidates, and McConnell v. Federal Election Commission, a 2003 decision that upheld the part of the Bipartisan Campaign Reform Act of 2002 [“McCain-Feingold”] that restricted campaign spending by corporations and unions.

           3. Failed to distinguish between domestic and foreign owned corporations and knowingly left America vulnerable to the latter.

           4. Allowed unlimited corporate spending on ads for or against candidates for federal office combined with other court rulings, Super PACs and secret campaign spending. Four times as much was spent in 2010 as in the last mid-term election in 2006. Half of all this money came from secret donors, Super PACs spent even more heavily in the 2012 campaigns

           5. Have and are causing massive damage to elections, politics, government and the reputation of and the citizen’s faith in the Supreme Court.