Case in point, the claims by the Federalist Society that they are not an advocacy organization.
Newly leaked organizations clearly show otherwise:
This past March, when the Federalist Society for Law and Public Policy Studies held its 37th annual national gathering for conservative law students, the lineup of speakers and panelists included an impressive number of Republican Party and conservative movement stars.
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Despite what appears to be an obvious political valence, the Federalist Society and its high-profile members have long insisted the nonprofit organization does not endorse any political party “or engage in other forms of political advocacy,” as its website says. The society does not deny an ideology—it calls itself a “group of conservatives and libertarians”—but it maintains that it is simply “about ideas,” not legislation, politicians or policy positions.
Federalist Society documents that one of us recently unearthed, however, make this position untenable going forward. The documents, made public here for the first time, show that the society not only has held explicit ideological goals since its infancy in the early 1980s, but sought to apply those ideological goals to legal policy and political issues through the group’s roundtables, symposia and conferences.
The question of whether the Federalist Society is properly characterized as a “society of ideas” or a political organization has significant ramifications. The Code of Conduct for United States Judges, a set of guidelines administered by the federal judiciary’s Judicial Conference, was revised earlier this year to bar sitting federal judges from participating in conferences and seminars sponsored by groups “generally viewed by the public as having adopted a consistent political or ideological point of view equivalent to the type of partisanship often found in political organizations.” (The Code does not “explicitly” apply to Supreme Court justices, though they have looked to it in the past.) One former federal judge argued that under the new ethics opinion, the Federalist Society is now a “no-go zone for federal judges.” The Society’s president, Eugene Meyer, responded, calling the former jurist’s argument an “absurd and ludicrous” interpretation of the rule, adding that the Federalist Society has said “time and again” that it is nonpartisan and does not take official policy positions.
But the newly unearthed documents—a 1984 grant proposal and cover letter, written by Meyer on the Federalist Society’s behalf and now housed in the late Judge Robert Bork’s papers at the Library of Congress—provide evidence that the Federalist Society, in contravention of what the new Code states, in fact “advocates for specific outcomes on legal or political issues.” This suggests that federal judges, by attending Federalist Society events, are transgressing the Code’s new guidelines. Given the importance of active federal judges to the Federalist Society’s long-term goal of reshaping the law, barring them from the society’s events could hamper its continued ability to exert the political influence it has impressively built over decades.
The Federalist Society was founded in 1982 as a small law student group with the goal of bringing conservative and libertarian speakers, and their ideas, to law school campuses perceived to be dismissive of these intellectual traditions. After the Federalist Society held its first national symposium at Yale Law School that year—featuring recent Reagan-appointed federal appeals court judges Bork and Antonin Scalia—Federalist Society student groups started popping up on law school campuses around the country. The organization now boasts more than 65,000 members, and most federal judgeships, clerkships and executive branch legal jobs in Republican administrations are effectively off-limits to nonmembers.
The Federalist Society’s founders and conservative patrons understood early on that the battle for control of the law would not be won on campuses alone. In the January 1984 grant proposal, Meyer, then the Federalist Society’s executive director, asked the conservative-leaning Smith Richardson Foundation for “seed money” to fund a new entity, a “Lawyers Division.” The central goal, Meyer wrote, was “to build an effective national conservative lawyers organization.” Meyer began the proposal by asserting that an alternative to “an increasingly radicalized bar,” exemplified by the American Bar Association, was now necessary because “lawyers continue to fill key positions in the modern instrumentalities of the welfare state.”
The Federalist Society promised the prospective donor that the Lawyers Division would have a “dual purpose.” First, to “an even greater extent than the activities of the student and faculty divisions,” the new division would “educat[e] lawyers on legal developments with ideological connotations and how to deal with them.” The second purpose was “the formation of groups of conservative lawyers in the major centers for the practice of law, who feel comfortable believing in, and advocating, conservative positions.” The division, Meyer wrote, would mimic the style of workshops and seminars hosted by bar associations: “Unlike those events, however, the panels will also have ideological overtones, picking topics where the developments are especially good and should be encouraged, or especially bad and should be stopped.” The proposal offered examples of these workshops. Seattle might focus on the problems posed by “Environmental Regulation”; in New York, “Banking Regulation”; and in Houston, “Employment Discrimination (including the question of whether reverse discrimination is even constitutional).” The proposal also mentioned the Lawyers Division potentially “making its own recommendation for judicial appointments.”
Simply put, when the Federalist Society was describing its mission in private to a politically sympathetic donor, it let drop the group’s public-facing fiction that it is merely a debating society for the organic development of ideas.
I don’t know if this would put their 501(C)3 tax exempt status at risk, but these documents clearly indicate that it is prohibited for federal judges, who are subject to the Code of Conduct for Federal Judges would be prohibited from participating in the group’s activities, though Supreme Court justices, who are not subject to the Code, could participate.