Conservative Law Groups Adopt Liberals' Model
They battle for property rights and against government regulations
WASHINGTON — DAN POPEO is your typical public-interest lawyer: blue jeans, a beard, and a save-the-whales sticker on the front of his desk. NOT.
Sitting in his roomy Washington office, clad in a charcoal-gray suit with his hair neatly trimmed, Mr. Popeo looks like a partner in large law firm. But in fact he is a kind of Ralph Nader of the right, an ``unabashedly proud'' conservative for whom practicing law is waging politics by other means.
Popeo is the chairman and general counsel of Washington Legal Foundation (WLF), a nonprofit public-interest law firm and think tank he founded in 1977. WLF's six lawyers, supported by volunteer attorneys from 30 law firms, appear in courts across the United States in cases aimed to further what Popeo calls the foundation's pro-free enterprise, anti-big government agenda.
In addition, WLF, with a budget of $3 million a year, publishes a torrent of legal briefing materials that it sends to legal scholars, judges, and policy makers.
WLF is part of a growing field of conservative and libertarian lawyers who battle for property rights and against government regulations they consider harmful to economic growth and individual liberty.
Besides WLF, these organizations include the Federalist Society for Law and Public Policy Studies (see column, right), the National Legal Center for the Public Interest, the Center for Individual Rights, and the Institute for Justice, all based in Washington; the National Right to Work Legal Defense Foundation in Springfield, Va.; Pacific Legal Foundation in Sacramento, Calif.; and a number of smaller, regional litigation groups around the US.
The conservative public-interest law firm is a relatively new breed. Generally liberal organizations like the American Civil Liberties Union and the National Association for the Advancement of Colored People created the model decades ago: a nonprofit group of lawyers who devise a long-range legal strategy and select cases in pursuit of specific political, social, or economic goals they deem to be in the broad public interest.
In the late 1960s and '70s, the number of liberal public-interest law groups expanded rapidly with the advent of Ralph Nader's multiple organizations and their imitators, which focused on things like product safety and poverty rights, and a host of environmental litigation groups. Both supporters and critics of liberal activist lawyers give them much of the credit (or blame) for the sweeping changes in legal doctrines and the explosion of government regulation that occurred in the '70s.
Except for the narrowly focused antiunion, right-to-work movement, conservatives had no comparable public-interest bar well into the '70s. Then in 1973, Ron Zumbrun and some other California attorneys who had worked on welfare reform under then-Gov. Ronald Reagan (R) formed Pacific Legal Foundation (PLF) to defend property rights. Four years later, Popeo - disgusted with what he regarded as the excessive health and safety regulations he was enforcing against small, struggling mining companies as an Interior Department lawyer - launched WLF to battle regulators. A movement was born.
Though it has grown in recent years, this legal movement is still small. ``It's a small enough leadership group that most of the leaders know each other,'' says Eugene Meyer, executive director of the Federalist Society.
Once a month, Edwin Meese III, attorney general in the Reagan administration and now with the Heritage Foundation, assembles conservative legal activists to exchange ideas, and they attend one another's conferences or write for each other's publications.
But many of the groups have tried to carve out distinctive niches. PLF played a major role in three recent US Supreme Court decisions limiting government's power to take private property through zoning or environmental regulations. The Center for Individual Rights (CIR) focuses on free-speech cases and has successfully challenged ``political correctness'' codes on college campuses. The Institute for Justice specializes in school-choice cases and ``economic freedom'' cases, such as a case that broke up a taxi monopoly in Denver.
Such specialized concentration on issues is critical to the success of the movement, says Michael Greve, executive director of CIR. Some conservatives ``thought Ralph Nader was successful because he was a loudmouth,'' Mr. Greve says. ``That was always wrong. Nader succeeded because he set up all these little satellite outfits that specialized in one thing, and they were extremely good and knowledgeable in their areas.''
Other conservative lawyers like Clint Bolick, co-founder of the Institute for Justice, and WLF's Popeo also acknowledge the skill and toughness of attorneys ``on the other side'' and say they have learned from their liberal counterparts.
``The Naders of this world have been playing rugby, while people who do not share their beliefs have been playing croquet,'' Popeo says. ``We are now playing by the same rules.''
Perhaps it's a tribute to their growing strength that conservative legal groups were attacked last year in ``Justice for Sale: Shortchanging the Public Interest for Private Gain,'' a report issued by the Alliance for Justice, a coalition of liberal public-interest legal groups. The report suggested that the conservative legal groups are part of a campaign to hijack the American legal system, bankrolled by conservative trusts like the Olin, Bradley, Scaife, and Smith Richardson foundations.
While leaders of many of the conservative groups acknowledge that they receive funds from those foundations, they scoff at the suggestion of a conspiracy to subvert social justice in America's courts.
Mr. Bolick of the Institute for Justice ($1.2 million annual budget) says that liberal public-interest law firms ``get tens of millions of dollars each year in grants, plus a comparable amount of pro bono work contributed by liberal lawyers. We're still talking David and Goliath.''