Tall and thin, with professorial eyeglasses and a grandfather’s patient gaze, Lewis F. Powell Jr. was a model of wisdom, moderation and courtesy. The native Virginian and longtime Richmonder projected a kind demeanor and spoke with a gentle Southern accent.
He’s perhaps most remembered, by Virginians and by popular history, as a leading member of the U.S. Supreme Court, where he served for 15 years, from January 1972 until June 1987.
Upon his death in 1998, newspapers around the nation recounted a litany of accomplishments that were enough to fill the lives of several men.
President Richard Nixon nominated Powell to the nation’s highest court in late 1971. Before that, he had spent more than 30 years as a successful corporate attorney; he was a partner in the downtown firm that is today’s Hunton & Williams, and he represented tobacco companies’ interests, including those of Philip Morris, to the Virginia legislature.
He enlisted in the U.S. Air Force during World War II and attained the rank of colonel while working in the intelligence field.
Back in his Richmond law practice, he served as president of the American Bar Association. But he also took on public service commitments. A graduate of Washington and Lee University with bachelor’s and law degrees, he also served as chairman of the Richmond School Board. In that role, he quietly reached out to leaders in the black community during the tumultuous period of school integration and white state-elected officials’ resistance to it.
When L. Douglas Wilder became the nation’s first elected African-American governor in 1990, he chose Powell to administer his oath of office.
The Washington Post’s front-page obituary described him as “a lawyer’s lawyer, recoiling from extremes and searching out the middle ground.” In 1971, after a conversation with a neighbor in Richmond’s fashionable Windsor Farms neighborhood, Powell penned a confidential memorandum that still reverberates through American politics and the economy.
The neighbor was Eugene B. Sydnor, a successful businessman who was then chairman of the Education Committee of the U.S. Chamber of Commerce.
The memo, which has become known as the “Powell Manifesto,” among other names, was written while Powell was in private legal practice in Richmond. He was still a few months away from being nominated for the Supreme Court.
In uncompromising words, Powell’s memorandum hammered at American business leaders to unite to defend their interests.
The “American economic system is under broad attack,” Powell wrote. “ … The most disquieting voices joining the chorus of criticism come from perfectly respectable elements of society: from the college campus, the pulpit, the media, the intellectual and literary journals, the arts and sciences, and from politicians.”
He pointed to what he believed were the root causes of the rhetoric smearing American business: the rise of aggressive consumer-rights advocacy led by Ralph Nader, the birth of the environmental movement, and a societal leaning toward socialism and away from free enterprise.
More than that, Powell expressed alarm that acts of violence against business interests were increasing.
Quoting a New York Times article from a year earlier, he noted that, “Since February, 1970, branches [of Bank of America] have been attacked 39 times, 22 times with explosive devices and 17 times with fire bombs or by arsonists.”
Moreover, he said, liberal professors dominated many college faculties. He argued that there were no corresponding conservative or moderate viewpoints, either among faculty or visiting campus speakers.
The Chamber of Commerce, he said, should demand equal time on the college speaking circuit to advance its views.
Powell warned that American business must arm itself with political power to blunt the attacks against it, and that such power was attainable only through united action, massive fundraising and the development of national organizations to represent business. “The painfully sad truth,” he wrote, “is that business, including the boards of directors and the top executives of corporations great and small and business organizations at all levels, often have responded — if at all — by appeasement, ineptitude and ignoring the problem. They have shown little stomach for hard-nose contest with their critics, and little skill in effective intellectual and philosophical debate.”
The U.S. Chamber circulated the memorandum among a small group of its members under the heading “Attack on the American Free Enterprise System.”
“It didn’t immediately get a lot of attention,” says Robert Kerr, a professor in the Gaylord School of Journalism and Mass Communications at the University of Oklahoma.
Kerr has written extensively about Powell and his efforts on the Supreme Court to extend free speech rights to corporations under the First Amendment.
He says it was only when a copy of the memorandum was leaked to Jack Anderson, a crusading investigative reporter in Washington whose column was published in hundreds of newspapers, that the memo received wide exposure.
Anderson questioned Powell’s temperament for the court, in light of the strong pro-business sentiments he voiced in the memorandum.
“The Chamber was inundated with requests for the memo,” Kerr says.
Shortly thereafter, inspired by Powell’s words, Kerr says, American business began mobilizing.
For example, between 1974 and 1982, the number of corporate political action committees in Washington rose from 80 to 1,467, Kerr says, citing political journalist Thomas Byrne Edsall’s 1984 book The New Politics of Inequality.
Edsall says that by the end of the 1970s, the number of lobbyists employed by private industry to represent its interests in the nation’s capital outpaced the number of federal employees in the Washington metropolitan area.
In the fall of 1972, a year after Powell’s memo was written, the National Association of Manufacturers moved its primary offices from New York to Washington.
Burt Raynes, chairman of the association, did not mention Powell’s memorandum in explaining why the manufacturers’ group was leaving New York, but he acknowledged the power of Powell’s arguments.
“The thing that affects business most today is government,” Raynes declared.
Perhaps equally telling in the aftermath of Powell’s memorandum was the creation, in 1972, of the Business Roundtable. Composed of 200 CEOs from the nation’s largest corporations, the Roundtable’s aim was to promote pro-business public policy.
In retrospect, many regard the Powell Manifesto as the dynamite that propelled American business off its seat and onto a stormy path of activism, from which it has never retreated.
In many ways, the corporations and tycoons who are making huge — and frequently controversial — donations to various candidates and causes offer clear evidence that the strategy of business activism that Powell outlined more than 40 years ago is being followed to the hilt.
But perhaps even he could not have imagined the degree of verve, and sometimes venom, that such practices have generated.
Never heard of the Powell Manifesto?
That may be because, except in business circles, it didn’t receive much attention during Powell’s lifetime.
Lyman Johnson, a law professor at Washington and Lee University, says Powell was in some ways an unlikely spokesman to rally American business.
He was a corporate lawyer, a traditional professional, not a self-interested businessperson, Johnson says. Powell did not believe in an unbridled money-centered vision of big business, according to Johnson.
Rather, Powell, a courtly man with a Tidewater drawl, acknowledged that while executives had an obligation to maintain “a satisfactory growth of profits,” they also had to lead a corporation “with due regard to [its] public and social responsibilities.”
“If we don’t defend capitalism by being responsible stewards, we are going to be regulated,” Johnson says, reflecting on Powell’s words.
“The best of the business community regulate themselves,” he adds. “Look what banks have done to themselves — shot themselves in the foot.”
Johnson says the trend of corporate citizenship is on the rise. Many members of the business community are not only involved in getting their political message across, he notes, but also in addressing their social responsibilities, just as Powell said they should be. “They’re saying we care about employees, we care about the environment, we want to be good citizens. I think they’re paying attention to ward off critics.”
As an educator, Johnson has a particular interest in Powell’s observation that college faculties need more diversity and more high-quality conservative voices.
“Today, looking around at American colleges, many conservatives wonder if anything has changed in 40 years,” Johnson noted in an op-ed column he wrote to mark the 40th anniversary of the Powell Manifesto three years ago.
While Johnson and others might see mostly liberals when they look at faculty rolls, there are notable exceptions.
For example, Virginia can point to two private universities established by conservative Christian televangelists: Liberty University founded by Jerry Falwell and Regency University founded by Pat Robertson.
The privately funded Mercatus Center at George Mason University is an example of a conservative presence on a public college campus. The rich, industrialist Koch family, which has donated to numerous conservative causes and candidates, gave millions of dollars to establish the market-oriented think tank and center for research and education.
In 2010, The New Yorker reported that financial records indicated that the Koch family foundations have given more than $30 million to George Mason over the years, with much of the money going to support the Mercatus Center.
The Wall Street Journal once referred to the Mercatus Center, which emphasizes market-based ideas, as “the most important think tank you’ve never heard of.” Critics have called it ground zero for advancing deregulation policies.
Professor Matthew Mitchell, the lead scholar on the Project for the Study of American Capitalism at the Mercatus Center, says Powell’s ideas on greater business involvement in the political process are now very much alive, especially in the area of lobbying.
“It’s very common that big firms will donate to both sides,” Mitchell says. “But if you think about it, it makes a great deal of sense.” He adds, “Businesses are much more willing to play politics than in the past. Business schools are teaching politics … [and] how to deal with politicians.”
Mitchell says government policies and intervention in the markets, such as a new regulation or tax, can profoundly affect profits and losses. He cites the ban on incandescent light bulbs, helping some companies, hurting others.
Kerr of the University of Oklahoma says that one scholar traced the U.S. Chamber of Commerce’s successful efforts at the Supreme Court in recent years to litigation practices that Powell inspired.
The Chamber’s success includes winning nearly 70 percent of the cases in which it either filed a brief or joined as a friend during the first three terms of the Roberts Court, (for read) and 62 percent in the previous 11 terms of the Rehnquist Court.
The First Amendment protects not only the free speech of individuals but, in part thanks to Powell, the free speech of corporations.
“It was during Justice Powell’s years at the court that the entire foundation for First Amendment protection of corporate media political spending was established,” Kerr wrote in a 2010 scholarly article in The Journal of Media Law and Ethics.
As an associate justice, Powell was a leading voice in the precedent-setting First National Bank of Boston v. Bellotti case.
In a 5-4 vote, the high court ruled in 1978 that the First Amendment gave corporations the legal right to make contributions to influence the political process.
Powell wrote the majority opinion for the court, saying that a Massachusetts law that forbade the use of corporate funds to influence voters’ opinions infringed on the free speech rights of corporations.
The reasoning that Powell advanced in Bellotti has been cited as the basis for the court’s 2010 ruling in Citizens United v. Federal Election Commission. The case gave corporations, unions and other associations the go-ahead to pay for political advertising made independently of candidates’ campaigns, and prohibited the government from placing restrictions on how much money could be spent.
Justice Anthony M. Kennedy, who wrote the majority opinion, referred to Bellotti 24 times, according to Kerr. “I don’t think you could have Citizens United unless you had Bellotti — you couldn’t,” he says.
Some, including President Barack Obama, have since argued that the Citizens United ruling undermines the integrity of the nation’s elected institutions, because it opens the floodgates to unlimited corporate spending on political campaigns.
In the 2012 presidential election between Obama and Mitt Romney, the candidates’ combined total spending crossed the $2 billion threshold — the most expensive campaign in American history.
National media reported the president’s lamenting of cash-addicted politics in an October 2013 press conference. “There aren’t a lot of functioning democracies around the world that work this way,” he said, “where you can basically have millionaires and billionaires bankrolling whoever they want however they want, in some cases undisclosed, and what it means is ordinary Americans are shut out of the process.”
Obama admitted to his own share of culpability in money-dependent campaigning as a candidate who turned down the public campaign financing in favor of pursuing unlimited private donations. He was the first candidate to raise more than $1 billion in political donations.
“I think the ideas in the Powell Manifesto keep churning,” Kerr says, “and we still live with them, for better or worse.”
Powell also advanced the interests of American business through his decisions restricting the limits of federal securities law in the areas of insider trading and securities fraud.
Adam Pritchard, a law professor at the University of Michigan says Powell’s pro-business memo and subsequent rulings were perfectly understandable, when one considers his personal experience.
“He [had] a belief in the free enterprise system. Businessmen were his clients, and his friends and peers. He didn’t have a distrust of the business community,” says Pritchard, who has written widely about Powell’s role in reshaping securities law.
While some may debate the legacy of Lewis F. Powell Jr. and his call for American business to defend the free-enterprise system and become more involved in political affairs, he is generally regarded as one of the most influential Supreme Court justices of the 20th century, a judicial moderate.
His biographer, John C. Jeffries Jr. of the University of Virginia School of Law, ventures that Powell might have considered his greatest contribution to be his 1978 opinion in the case of the Regents of the University of California v. Bakke.
“That allowed affirmative action to go forward,” Jeffries says.
Powell wrote the controlling opinion in the case, decided 5-4, as the high court first endorsed the idea of affirmative action, permitting race to be one of several factors considered in college admission policies, but outlawed the use of racial quotas.
At Powell’s death in 1998 at the age of 90, a crowd estimated at 900 came to mourn him in Richmond. They included every living member of the U.S. Supreme Court and five former Virginia governors.
Sandra Day O’Connor, the first woman named to the Supreme Court, noted then that Powell had reached out to her and helped her get her footing on the court. “As a model of human kindness, there will never be a better man,” she said.
Apart from this long list of credentials, however, there is one 32-page document that might be his most lasting legacy.