Editors’ Note: Jefferson Decker continues HistPhil‘s forum on the history of conservative philanthropy.
In 1973, a group of California lawyers left the administration of Gov. Ronald Reagan to form a new sort of policy organization: a non-profit, “public interest” legal foundation staffed entirely by conservatives. Calling themselves Pacific Legal Foundation, these attorneys sought to defend the state government from a perceived onslaught of litigation from welfare rights organizations and other liberal activists. “Faced with the dilemma of countering numerous lawsuits for temporary restraining orders, injunctions, and damages, public attorneys have become hopelessly outmanned,” explained Ronald Zumbrun, the foundation’s first president. “The private sector, whose interests are equally at stake, has failed to bring its combined resources to bear in the common areas of interest which are under attack by those that would effect change regardless of cost or adverse results upon society.” With the assistance of William French Smith, a well-connected California corporate lawyer (who would later serve as President Reagan’s first attorney general), Zumbrun secured start-up funding from J. Simon Fluor, an international construction magnate best known for building oil refineries and pipelines. Then he began to pitch his organization to conservative foundations and California business leaders—especially those active in the U.S. Chamber of Commerce. Pacific Legal Foundation, Zumbrun promised prospective donors, would head to court to fight the legal left.
But the legal foundation soon changed directions. Within a year of its founding, Pacific Legal Foundation opened a new practice focused on land-use and environmental regulation. Instead of defending the government from lawsuits, it began to sue government agencies for violating the property rights of California homeowners. In particular, it targeted the California Coastal Commission, a government agency that defended the natural beauty of the coastline and tried to expand public access to California’s beaches. Believing that the Coastal Commission put excessive, capricious, and ultimately illegal demands upon owners of oceanfront property, Zumbrun and his colleagues launched a decade-long litigation campaign, which culminated in a 1987 Supreme Court decision that ruled that one of the Coastal Commission’s most effective tools—demanding public use easements in exchange for building permits—violated the U.S. Constitution.
It will probably come as no particular surprise to readers of this blog that philanthropic investments can have unexpected or unintended consequences. Sometimes foundations and organizations put bequests or donations under independent management and end up pursuing social change that the original donor may have considered horrifying—even heretical. Sometimes organizations face ongoing trade-offs between pushing the agenda of their policy experts and maintaining the good graces of funders. Sometimes, as in the case of Pacific Legal Foundation, groups realize that going on the offensive is simply more effective than playing defense. Perfectly executed “master plans” to put money to work on behalf of social change over the span of many years are few and far between. The story of the conservative legal movement, as political scientist Steven Teles makes clear, is as much about poor choices and failed institutions as it is about effectively checking legal liberalism. Political investment can be effective, but it often proceeds in fits and starts, has unexpected consequences, and changes shape and emphasis over time.
In fact, what made Pacific Legal Foundation—and the small network of conservative and libertarian legal organizations it ultimately inspired—sufficiently interesting to me that I wrote a book about them was not the swift departure from their original mandate so much as the legal and constitutional ideas that ultimately emerged from the shift. In their disputes with the Coastal Commission, lawyers for Pacific Legal Foundation raised a genuine problem in U.S. legal doctrine: the potential conflict between a legal tradition founded upon the sanctity of private property and the ecological fact that what you do with your own land has effects far beyond the property line. New developments disrupt wildlife habitats, reroute drainage channels, obscure sightlines, and create the conditions for air and noise pollution. Environmentalists of the 1960s and 1970s used these insights to demand new regulation of private property, in the hopes of minimizing future damage. Some conservatives wondered whether that regulation of private property could be so extensive that the private property became publically managed in everything but name. By litigating these disputes, conservative legal groups not only forced the courts to draw lines but also made a case for far more expansive concepts of “economic liberty.”
To be clear, the debates about land use and the constitutional limits of the regulatory state barely registered with the national electorate over the years; presidential and congressional elections turned on taxes and spending priorities, polarizing conflicts over race and ethnicity, culture wars over religion and the family, among a host of other issues. But the struggle between the Coastal Commission and Pacific Legal Foundation mattered a great deal for a small number of particularly influential people. The Reagan administration hired several lawyers from Pacific and its sister foundations to key posts in legal and public policy, which also constituted a “return” on a philanthropic “investment.” In those positions, veterans of conservative legal groups jousted with more traditional Republican lawyers, who were skeptical of maximalist notions of private property and economic freedom. Thanks to the internal debates over property rights and government regulation within the Reagan administration, a new conservative policy agenda—one that was radical in its libertarianism, if further removed from electoral and social-movement politics—gradually took shape.
What might all this mean for the history of philanthropy, more generally? At the very least, it might challenge us to think more carefully about terms like “grassroots” and “elites” or “experts” and “the community”—especially when we tend to ascribe a certain kind of authenticity and authority to some and not to others. The journalist Thomas Frank was often accused peddling some sort of “false consciousness” theory when he argued, in What’s the Matter with Kansas, that the Republican electorate seems to repeatedly “vote to stop abortion; receive a rollback in capital gains taxes. Vote to make our country strong again; receive deindustrialization. Vote to screw those politically correct college professors; receive electricity deregulation.” But for me, Frank captured, albeit in polemical form, a basic reality about our national electoral coalitions: there is often a significant difference in the policy goals of the average voter and the top priorities of the sort of person who writes legislation, enforces the law, or marks up regulations. And those differences are always going to be reflected, in some way, in the policy that results—whether the government is run by Democrats or Republicans, or the coalition is predominately liberal, conservative, or something else.
And, if we stop being perpetually surprised or offended by differences within political coalitions (except, perhaps, when parties buck voters’ preferences on high-profile, well-polled pieces of far-reaching legislation), we might obtain a clearer-eyed view of some of the different sources of policy and political change—including the potential effects of philanthropic investment. Those investments make possible certain kinds of political work—long-term litigation campaigns, efforts to publicize certain big ideas, attempts to reform institutions—even when they lack a large electoral or popular constituency. (For all of its efforts to discredit the California Coastal Commission, Pacific Legal Foundation never managed to turn ordinary Californians against the regulators; in the 1990s, Republican Gov. Pete Wilson even signed a bill that increased the commission’s power.) The work of political investment can complement larger social and ideological movements; it can also be disruptive, for example by undermining some of the institutional or organizational bases of other sorts of politics. But, for better or worse, it is possible to have a fairly attenuated relationship with your allies at the “grassroots”—however you want to conceive that constituency—and still effect significant policy change. At least, in the case study I know best, that is what seems to have happened.
Jefferson Decker is Assistant Professor of American Studies and Political Science at Rutgers University-New Brunswick. He is the author of The Other Rights Revolution: Conservative Lawyers and the Remaking of American Government (Oxford University Press, 2016).