Mea Culpa, Admission, Advertisement, or Fashion Statement?

In the Atlantic, former American Constitution Society executive director Caroline Frederickson writes to express her regret that "[i]n my decade running the American Constitution Society, I never gave much thought to political-economic issues such as antitrust and competition policy—they were just not on our agenda," focusing instead on, inter alia, abortion, voting rights, and "demographic diversity" for judges, but not questions such as "where [they] stood on the question of corporate power." This despite the mantle of progressivism claimed by the ACS and its genealogical ties to the "progressive advances of mid-20th-century America” on questions of "political-economic arrangement[s]."

I am happy to take this as sincere (with an asterisk, if only because magazines like the Atlantic are not designed for and mostly don't rate high on deep candor). I went back and looked at the ACS's list of occasional policy briefs and other publications, including leafing through the two early ACS books that have long gathered dust on my shelves. To give it its due, it has had a couple of publications that fall more on that side of things, but in general she is right. I can't say it bothered me; I understood its focus to lie elsewhere and I don't expect every group to do every thing. But one might speculate about some of the reasons why it took that focus and, on her account, neglected economic issues. Four possible and possibly related factors occur to me, which perhaps illuminate both Frederickson's piece and the political economy, as it were, of the advocacy sector in which she has spent so many years:

1: Those issues weren't fashionable. Lina Khan was not yet out of grade school when the ACS became a national enterprise. It became a going concern when the present leaders of the Democratic Party were still relatively youthful—merely in late middle age. The issues she now wishes it had focused on more were just not au courant. It is perhaps indicative of this that the piece refers, in a very past-tense, "imagine that" way, to the fact that, way back when, "[e]ven Democrats had gotten on board with parts of the deregulatory agenda." She should know! She was Special Assistant to the President for Legislative Affairs during the Clinton Administration. There was more liberal love in her heyday, and the early days of the ACS, for cost-benefit analysis and tradeable emissions permits than there was for aggressive antitrust law. 

2: The ACS has never been a creature of the left. The issues Frederickson is now concerned to highlight are far more associated with the left than with generic liberalism as it existed roughly between 1990 and 2016. And the ACS, notwithstanding whatever casual linguistic elisions its detractors might use in referring to it, was never a left institution. It was a conventional liberal institution. To be sure, following the usages of the time, it always referred to itself as progressive; but that usage has more to do with the Dukakis-hangover-based decision to use the term "progressive" instead of "liberal" than with any sort of vigorous, old-school, Joe Hill, "Solidarity Forever" progressivism. The genealogical history she invokes in her Atlantic piece was, at least at the time, just that: history. More ACS luminaries in the first decade of the millennium would have had Fleetwood Mac or Joni Mitchell on their CD players than Billy Bragg or Fugazi. I'm not sure much more evidence of its fundamentally liberal-not-left nature is needed than the fact that even this piece lamenting its failure to be more old-school left appears in the Atlantic, which is echt-liberal and follows liberal fashions as routinely as a clock tells the time. It is natural that the group's causes embraced what was fashionable or conventional for liberals and not leftists. 

I wonder, along these lines, what legal scholars on the genuine left make of a piece like Frederickson's. What would someone who, when the ACS was getting off the ground, thought at the time that liberals neglected fundamental questions of economic power, and was busy forcefully saying so to unreceptive elite audiences (when they could secure them), make of a confession like this? What would someone who persisted in then-highly-unfashionable Critical Legal Studies views, in which liberals and soi-disant progressives were not so much allies or cousins as part of the problem itself, make of it? (Pace Samuel Moyn, incidentally, I think many of the folks who are putting "and political economy" or "political economy of" in their law review article titles these days are far closer in relation and inclination to standard-issue liberalism, or its modern and more fashionable variants, than they really are to Critical Legal Studies in any genuine sense. Certainly, to adapt a phrase from Richard Posner, many of them write left—sometimes only as long as the abstract and introduction—and live liberal. Take the very fact of the confession’s placement in the Atlantic as an exhibit, if you like.) Do they feel frustration? Exasperation? Better-late-than-never relief? Or perhaps amusement? 

3: Last-war syndrome. The introduction to the 2009 collection The Constitution in 2020, which was more or less a kind of ACS action agenda, says that "[t]he key to the future is not a return to the battles of the past." Perhaps. But most of us, being attached to our habits and not blessed with prescience, tend to fight the last war anyway, or at best the next election cycle. (Despite the Supreme Court’s shift in focus, more originalism-is-wrong papers are uploaded on SSRN in a given week than traditionalism-focused papers are published in a year.) The ACS spent most of its loudest decade fighting Bush v. Gore (including well after the case was over) and 9/11 issues and burnishing resumes for the hoped-for return of a Democratic administration. Like most groups, it talked about being forward-looking, but most of its activities and publications were firmly rooted in the issue of the day. Or even of the past: it issued more “retrospectives” on various past questions than papers aimed at the future. (In the Constitution in 2020 book itself, two chapters out of 27 focuses specifically on the kinds of issues Frederickson now foregrounds; one, by William Forbath, was more forward-looking; the other, by Frank Michelman, was arguably more of a reprise.) 

4: Follow the money. I don't mean this to refer to Frederickson, the author of the piece; I mean it more generally. Not incidentally, the author bio in Frederickson's piece identifies her as "a visiting professor at Georgetown Law and a strategic councilor on democracy and power at the Open Markets Institute." The latter, for which her piece in effect serves as a bit of PR at the mild expense of her former employer, is a 501(c)(3) that describes itself in its filing as "a team of journalists, researchers, lawyers, and advocates working together to expose and reverse the stranglehold that corporate monopolies have on our country." Such noble struggles take money, or some combination of money and prestige, the latter of which both lures more money and serves as a salary substitute. As such groups go, the Open Markets Institute seems neither highly funded nor profligate. Its Form 990 from 2021 shows gross receipts of around $2,746,000, and it does not spend outrageously on fundraising or on executive salaries; the salaries of the top three executives merely place them in the top 16 percent or so in terms of American household incomes, not including other sources of income or possible spousal income. (By contrast, the American Constitution Society gives Russ Feingold the honor of serving as its president at a cost in salary that, without counting any additional income, places him in roughly the fabled two percent. Surely that identifies it as American liberalism.) 

In the high-minded-causes sector, the necessary money comes from wealthy and ultra-wealthy donors and foundation directors who have convictions and/or the desire to show others that they have them. Even a fairly lean and economical group needs some cash. The Open Markets Institute's major donors thus include a raft of familiar names: the Knight Foundation, the Hewlett Foundation, the Lumpkin Family Foundation, the Omidyar Network Fund, and so on. (A note at the end of Frederickson's confession of regret further specifies that "[s]upport for this 'project' was provided by the William and Flora Hewlett Foundation." I added the internal set of quotes around 'project,' since I have never heard a short penitential piece in the Atlantic described by that label. The folkways of this country are still strange to me.)

I admittedly don't personally see much that is right or good about this general American ecosystem, but in more immediate and specific terms I don't see anything wrong with it; the Open Markets Institute's rather forcefully stated cause is not outlandish and, after all, officially speaking it opposes monopolies, not billionaires, gross amassed or inherited wealth, trust funds and trust fund kids, capitalism, or the outsized influence of the donor class on democratic politics. But the donor class has to be persuaded to fork over the dough for such missions. And that class follows the fashions, among other reasons for making funding decisions. The portion of that class that funds causes that are left rather than right of center is now keener to fund, and/or to be seen funding, economically oriented causes like that of the Open Market Institute than it may have been twenty years ago, when it was happier to fund socially oriented causes. The reasons, interests, self-interest, and incentives of wealthy individual and institutional donors are opaque to me. But it is not surprising, given all these reasons, that the ACS would have focused its energies on the issues it chose and not elsewhere, that its major figures would have done the same, and that the action has now, to some degree, shifted elsewhere on the gameboard.