They’re working to protect free enterprise under threat in an environment of untethered regulations.
Public-interest law is a pretty liberal space. Maybe that is due in part to the nature of the field: There is something a little more liberal than conservative in the aggressive redress of grievances, and lawyers in general, as a professional and highly educated class, lean left. But it certainly isn’t irrelevant that major liberal institutions such as the American Civil Liberties Union have invested a great deal of time and effort in funding networks of potential litigants — and that conservatives, until quite recently, haven’t. Ilya Somin’s 2009 analysis is still pretty accurate: He notes that crucial decisions require “extensive follow-up litigation” by sympathetic attorneys to fully take root in the legal landscape, and that the Left has internalized this better than the Right:
Left-liberal scholars and activists have long understood this crucial lesson, and they have created an extensive network to facilitate follow-up litigation to enforce their high court legal victories. In almost every major law firm, there are lawyers who do small-bore pro bono cases on behalf of various left-wing cases. These cases often build on and enforce favorable appellate decisions.
The focus on pro bono work is particularly important since, by definition, it doesn’t require funding and since junior associates often take up such cases to gain experience. This means there is a reasonably sized pool of attorneys who are willing to undertake the crucial follow-up litigation for free — a boon for public-interest firms.
The Goldwater Institute, a conservative and libertarian think tank based in Phoenix, is hoping to draw on this pool of lawyers to reduce leftists’ advantage in public-interest law. The Goldwater Institute considerably expanded its focus on litigation in 2007 when it brought on Clint Bolick, who is currently on the Arizona Supreme Court, to start a new litigation center. The program initially focused on cases in Arizona, but Jon Riches, the director for national litigation for the Goldwater Institute, tells me that it now averages around eight in-house lawyers at any given time and that it has expanded to focus on litigation across America, primarily at the state level.
Their latest project, which is planned to cost approximately $1 million over the next three years, would establish a network of pro bono lawyers willing to take on conservative and libertarian cases — much like the networks that liberal organizations have built up in the past few decades. The program, dubbed the American Freedom Network, would also provide assistance and mentoring to attorneys accepted into the network. This isn’t an entirely new idea, of course — the Institute for Justice has a longstanding program with similar goals, as does the Federalist Society. But the landscape of pro bono networks is still much sparser on the Right than on the Left.
For a sense of the sort of disputes that Goldwater takes up, Riches pointed me to Boice v. Aune, an Arizona case that the institute successfully litigated between 2011 and 2013. Lauren Boice, an Arizona resident and cancer survivor, had founded Angels on Earth, a company that connected certified cosmetologists to customers made homebound by age or illness. For some unfathomable reason, this offended the Arizona Board of Cosmetology, which informed Boice that she would be required to obtain a salon license even though she wasn’t operating a cosmetology business. In order for Boice to be eligible for the salon license, she would need to establish a physical salon, which presumably would go entirely unused. The Goldwater Institute filed suit on behalf of Boice, alleging that the Board of Cosmetology violated Boice’s rights to due process, equal protection, and free speech. The board ultimately settled, agreeing not to bother Boice or similar business owners in the future.
Lauren Boice founded a company that connected certified cosmetologists to customers made homebound by age or illness. For some unfathomable reason, this offended the Arizona Board of Cosmetology.
For every high-profile national case of government overreach, there are countless cases like Boice’s at the local and state level: occupational licensing gone haywire, prohibitive regulations, campaign-finance laws that trod on free speech. These cases generally require lawyers well versed in local law and state constitutions — hence the need for a nationwide constellation of willing attorneys. The Goldwater Institute already has cases it is seeking to prosecute using the American Freedom Network: In Chicago, it is currently litigating a city ordinance that requires home-sharers, such as those who rent out their properties on Airbnb, to comply with a bewildering array of restrictions, including waiving their constitutional rights to arbitrary searches.
Cases like these test the general proposition that public-interest law consists of levying the truncheons of the administrative state against purported offenders. Constitutional protections such as due process and equal protection, to say nothing of free speech, can be of enormous benefit to conservatives and libertarians worried that free enterprise is under threat in an environment of untethered regulations and ordinances. This vision of an American conservatism defended by litigation is perhaps taken furthest by Charles Murray, whose By the People: Rebuilding Liberty without Permission proposed that a private and substantial legal-defense fund be established to represent Americans against the excesses of the regulatory state. In Murray’s eyes, this “Madison fund” would differ from other, similar funds by being expressly dedicated to fighting a war of attrition against American bureaucracy, testing the resources and willingness of federal agencies to enforce the codes on the books — effectively, a strategy of civil disobedience.
This isn’t quite what the Goldwater Institute is proposing — Riches, who tells me he liked By the People, considers Murray’s proposal for widespread civil disobedience somewhat beyond the purview of the institute. But the American Freedom Network is an ambitious project nonetheless. “When people think about how to affect public policy, so many people think of D.C. and what the Feds are doing,” says Riches. “Sometimes they think of the Supreme Court. But so often the governments that affect our lives are state agencies and licensing boards.” Too often, there is little recourse for those affected by these local examples of government overreach. The Goldwater Institute wants to change that: “When people are impairing our fundamental rights, we want them to be accountable, and when they do that in a way that’s illegal, we want that to be struck down.”
To which we may all say: Godspeed.
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