Center for Corporate Policy: Corporations and the Constitution

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CORPORATIONS & THE CONSTITUTION · CORPORATE CRIME & ABUSE · EXECUTIVE COMPENSATION · CORPORATE CONCENTRATION

Corporations and the Constitution

PO Box 19405, Washington, DC 20036
1.202.387.8030 V. 1.202.234.5176 Fax
Email: info@corporatepolicy.org

Washington Legal Foundation

Washington Legal Foundation
Washington, DC

The Washington Legal Foundation is a national non-profit legal foundation based in Washington, DC. The group not only litigates but does extensive communications and public relations work.

On its web site WLF proclaims: "For many years, WLF has been a vigilant guardian of the civil rights of the business community. Those rights include the First Amendment right to speak truthfully on commercial matters, the Fifth Amendment protection against uncompensated government confiscation of private property, the right to engage in business without unnecessary government regulation, and the right to maintain the privacy of trade secrets and internal corporate affairs in the absence of an overriding public interest in disclosure."

"I like to think of us as a small business version of the American Civil Liberties Union," WLF Chairman Dan Popeo told one reporter. "Only our stress is on economic civil liberties."

But public interest advocates who have opposed WLF say they are one of many mouthpieces that work to "legitimize predatory, rogue industries" like Big Tobacco. (Internal Philip Morris documents describe WLF as "A close ally...for many years." WLF has issued legal backgrounders such as this one suggesting that government efforts to educate the public on the hazards of smoking were tantamount to communism. Daniel Troy, the Bush administration's FDA counsel, has written Legal Backgrounders for WLF like this one claiming that ordinances enacted in New York, Baltimore and Cincinnati to restrict tobacco and/or alcohol advertisements are unconstitutional. (In 1994 the WLF issued another legal backgrounder that argues that there is no need for additional federal tobacco regulations, and that public health advocates are neo-prohibitionists.)

A cursory glance at WLF's website reveals that while its immediate clients may be small businesses or individuals, the interests served by WLF are clearly large corporations and the legal horsepower behind the group their partners at the large corporate law firms.

Although WLF has a small staff of 15 to 34 (depending on the budget and workload), its governing body is a "legal policy advisory board" of 55, comprised almost entirely of lawyers, judges and legal academics from the most prestigious schools in the country. In addition, 48 firms donated professional services to the WLF in 1993, among them such prestigious (or infamous) names as Arnold & Porter, Covington & Burling, and Vinson & Elkins.

WLF's Legal Policy Advisory Board includes top Bush administration officials including Attorney General John Ashcroft, Secretary of the Interior Gale Norton, Hon. Harold Stratton, chair of the Consumer Product Safety Commission, HHS Secretary Tommy Thompson (long an ally of Tobacco companies like Phillip Morris, and on WLF's policy advisory board since 1994, Department of Homeland Security General Counsel Joe Whitley. Other members of the WLF's policy board include right-wing judicial activists such as former Alabama Attorney General William H. Pryor (nominated by President Bush to the Eleventh Circuit Court of Appeals), and Ken Starr.

Since its founding in 1977, the WLF has produced more than 1,360 publications, litigated more than 800 court cases, and participated in more than 600 administrative and regulatory procedures. The WLF coordinates a steady stream of legal backgrounders, written by prestigious judges, academics, and lawyers, to encourage the press and others to better understand current legal debates from the perspective of corporate and property rights. The organization also regularly places opinion pieces in the nation's leading news outlets, including the New York Times.

Over the past decade, the Washington Legal Foundation has filed amicus briefs and distributed legal backgrounders advocating for the expansion and protection of commercial constitutional rights in a variety of ways:

* Opposing FDA trans fat labeling requirements.
* Opposing EPA enforcement actions against pesticides.
* Opposing EPA's attempt to regulate secondhand smoke as a known human carcinogen.
* Filing several lawsuits challenging the FDA's ban on promoting drugs for unapproved (off-label) uses.
* Standing up for Nike's right to commercial speech in the Kasky case.
* Supporting breast implant manufacturers' and asbestos makers' rights to advertise while they are involved in a lawsuit, a practice that plaintiff attorneys describe as an attempt to taint prospective jury members.
* Arguing that proposed restrictions on "point of sale" advertising, packaging, warning labels and disclosures sought by the federal government against tobacco violate the industry's First Amendment rights.
* Arguing that the Bipartisan Campaign Reform Act of 2002 encroaches on the fundamental First Amendment rights of free speech and association.
* Opposing legislation, regulations and lawsuits that seek to compel the FDA to label foods that contain genetically modified food ingredients.
* Opposing global restrictions on advertising, particularly those that follow standards set in European countries, which are much more restrictive than the U.S.
* Opposing FCC regulations on horizontal ownership by cable operators and vertical relationships with their program suppliers.
* Opposing a California law that restricts misleading claims about environmentally friendly products.
* Opposing city ordinances banning tobacco and alcohol advertising.
* Opposing congressional attempts to eliminate tax deductions for advertising expenses associated with liquor and tobacco.
* Opposing state and federal attempts to tax tobacco and use the proceeds to fund anti-tobacco TV ads.
* Opposing the regulation of product placement in movies.
* Filing comments on behalf of professional race car drivers against the FDA's proposed rules on tobacco promotion to minors.
* Opposing court orders in Ohio and elsewhere that required executives convicted of violating environmental laws to join the Sierra Club as part of their sentence.
* Opposing an effort by Congress to bar Supporting the right of malt liquor makers from using to use the name "Crazy Horse" after BATF restricted its use.
* Opposing attempts to ban the use of cartoon figures such as "Joe Camel" to market dangerous products.
* Supporting direct-to-consumer advertising of prescription drugs.
* Supporting the right of telephone carriers to use their customers' business records without first obtaining the customers' prior affirmative consent.
* Opposing EPA's proposed warning label regulations for products containing CFCs as an infringement upon the First Amendment rights of producers and consumers.
* Opposing the National Park Service's adoption of a regulation that allows the Superintendent of the Rock Creek National Park discretion to ban certain sponsorship and product advertising at events in the Rock Creek Park Tennis Center. (WLF argued that the proposal ran counter to the First Amendment's protection of truthful, non-misleading commercial free speech.
* Opposing Massachusetts' attempt to regulate cigarette advertisements on billboards within 1,000 feet of schools, playgrounds and churches. ("We protect the free speech of Nazis and white supremacists, but we restrict what people can say about their lawful products," WLF's Richard Samp commented, "Somehow, that just doesn't seem right.")
* Supporting a petition by Pfizer to the FDA by calling upon the FDA to respect the drug industry's right to "respond on an equal footing with its critics" by not subjecting such responses to its drug labeling and advertising requirements.
* Filing a complaint with the Securities and Exchange Commission (SEC) to investigate stock losses cased by manipulative and abusive class action litigation practices designed to drive down the price of the stock and unfairly force the target company to settle a case.
* Opposing the Justice Department's lawsuit against the tobacco industry, arguing that it would undermine the tort system and that the proposal to restrict tobacco advertising would be "the single largest suspension of commercial speech liberties in history."
* "Working in tandem" with then-FTC Chairman Daniel Oliver (1988) and others in government who agree with WLF's view that it is wrong to regulate speech concerning lawful products such as tobacco. "At the request of the Tobacco Insitute" WLF also presented arguments to HHS on the issue of tobacco and U.S. trade policy.
* Forcing FDA to withdraw its proposed regulations of heart valves by filing suit on behalf of two patients in need of surgery.

Other WLF legal actions:
* In 1987, WLF won a Supreme Court case -- Tull v. United States -- concerning the application of the Seventh Amendment's jury trial right to a businessman who failed to comply with the technicalities of an environmental statute.
* WLF filed an amicus brief in People of the State of Illinois v. Magnet Wire Corp., a case where local prosecutors five corporate officials with aggravated battery, reckless conduct, and conspiracy under Illinois criminal laws for alleged injuries to employees resulting from exposure to toxic chemicals in the workplace. WLF argued that OSHA regulations preempted Illinois criminal laws.
* In 1993 in Cincinnati v. Discovery Network the U.S. Supreme Court agreed with the WLF's argument in that content-based discrimination against commercial publications violated the First Amendment protection of commercial speech (the City of Cincinnati had attempted the prohibition of commercial publications such as real estate listings by means of news rack distribution on city streets, while at the same time allowing news rack distribution of general-circulation newspapers). Click here for more.
* In 1992 in Honig v. East Side union School district (Superior court of the State of California for the County of Santa Clara) the court denied plaintiffs' request for a permanent injunction to stop the broadcast of Channel One in the East Side Union School District. WLF argued that no students' First Amendment rights were infringed by the broadcast.

Additionally, using the 5th Amendment to file suit against uncompensated taking of private property, the WLF has mounted serious legal challenges to the use of legal trust funds (money collected from pooled short-term interest paid on trust accounts that lawyers set up to temporarily hold certain client funds) to fund pro bono services for indigent clients. "We are finally in a position we've fought more than a decade to reach - a position where we can deal a death blow to the single most important source of income for radical legal groups across the country," wrote WLF Chairman Dan Popeo in a fund-raising letter. Among the group's adversaries, Popeo says, are "groups dedicated to the homeless, to minorities, to gay and lesbian causes, and any other group that has drawn money from hard-working Americans like you and me to support its radical cause!" In March of 2003, the U.S. Supreme Court found in a 5-4 ruling that the practice was constitutional because the clients do not lose anything. But Richard Samp, WLF's chief counsel said his clients were considering mounting a First Amendment challenge to the funds.

In 1986, WLF established a Legal Studies Division, which it explained would fill the need for "intellectual legal lobbying" and expand the pro-free enterprise legal idea base by conducting original research and writing. "It also provides a diverse array of publications for Corporate CEOs and their general counsel, state and federal judges, Members of Congress, Administrative officials, academia and the media.
Funding: In 2002, WLF had a budget of $3.7 million. Corporate funders and foundations include: ScheringPlough; Bristol-Myers Squibb; ExxonMobil; Kimberley-Clark; Textron; 3M; Chase Manhattan; Caterpillar; ADM; Citicorp; Philip Morris; Eli Lilly; Warner-Lambert; Nabisco; Cigna; Sprint and many others.

WLF documents such as this 1988 WLF appeal to the Tobacco Institute for $5,000 for general operating support explain that WLF "receives support from over 120,000 individuals and over 350 corporations and foundations.