New Book Tells the Back Story behind the Powell Memo

By David H. Gans, Director of the Human Rights, Civil Rights & Citizenship Program

Readers of CAC’s report, A Capitalist Joker, know that we traced the aggressive advocacy of the idea that corporations should have the same rights as individuals to a memorandum written by Lewis Powell for the Chamber of Commerce shortly before Justice Powell was nominated by President Richard Nixon for a seat on the United States Supreme Court.  This fascinating and somewhat disturbing excerpt of a new book by Jeff Clement fills in many new details of this story. It is well known, as Clement details, that Lewis Powell, just a matter of months before joining the Court, played the lead role in pushing corporations to exploit what he called “an neglected opportunity in the courts,” and that the for the last forty years, the Chamber of Commerce and other corporations have successfully pursued this strategy, aided by Justice Powell, in a line of cases that culminated with the 2010 ruling in Citizens United v. FEC.   Clement explains that Powell first developed the notion that corporations have the same constitutional rights as “We the People” in the process of spreading false information about the health of cigarettes for Phillip Morris.  From 1964 until he joined the Court in 1971, Powell served as a director and member of the executive committee of Phillip Morris, and in that role, according to Clement, Powell played a critical role in trying to discredit the facts about the health of cigarettes and developing constitutional arguments against government regulation of the tobacco industry.  For example, as Clements observes, Powell promoted the idea that Phillip Morris had a First Amendment right to equal time to respond to public service announcements that warned the public of the hazards of smoking, an idea with no basis in law. The  story Clements tells — how Powell’s campaign to bend the Constitution to serve the interests of corporations culminated in Citizens United — is an important one for anyone concerned about the negative impact of  Citizens United on our democracy and everyone working to overturn the ruling.  

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