Originally published by The Regulatory Review. Reprinted with permission.

When it comes to the need for federal regulation, the American political system is currently deeply divided along ideological and partisan lines. This division has a number of causes, but a good part of the division can unquestionably be attributed to what Professor Thomas McGarity has referred to as the anti-regulatory "idea infrastructure" and the "influence infrastructure" constructed by conservatives in the early 1970s and continued thereafter—ideas intended to block and roll back public protections along with tactics for implementing those anti-regulatory ideas.

That conservative effort has succeeded for many years, but the country has paid a steep price in terms of increased risks from the unbridled pursuit of profit. The 2018 congressional election may portend a looming backlash against the political right, with its own intransigent opposition to common sense public protections leading to its demise.

A particularly influential intellectual component of the conservative idea infrastructure was an August 1971 memorandum that sprang from a surprising source: soon-to-be Supreme Court Justice Lewis Powell, Jr. At the time, Powell was a prominent corporate lawyer and a member of many corporate boards. His memo to his friend, Eugene Sydnor, Jr., Chairman …