Summer 2002

Public Policy & Public Interest Litigation

Sharing a Vision & a Future

by Joseph P. Overton

Sometimes changing the world is as simple as knowing what to do.

As an executive of the Mackinac Center for Public Policy and a member of the Human Action Network, I have had my eyes opened to a world of possibilities that I never knew existed. Our state-focused public policy research institute at one time seemed to me a world apart from the aggressive litigation undertaken by our intrepid colleagues at the Institute for Justice. We did policy. They did litigation. We shared a common love of liberty, but—in my mind—not much else.

Today, however, after learning more about how the world works, I am firmly convinced that the futures of our organizations and others like them are inextricably linked. Our fortunes will rise and fall together, and in this linkage lies both tremendous need and tremendous opportunity for collaboration.

First, HAN members who are involved in policy development can actually create opportunities for public interest lawyers by providing an indispensable element of a case: legal standing for citizens or taxpayers to initiate lawsuits when the government acts illegally. For example, many years ago a group of Michigan citizens frustrated with crippling tax rates and onerous state regulations crafted and successfully promoted a state constitutional amendment. This amendment limited the amount of revenue the state could collect, prohibited the state from burdening cities and counties with unfunded mandates and required a vote of the people on new taxes or tax increases.

But that is just the policy. The drafters of this amendment wisely included a powerful key to enforcement of this revolutionary law: instead of having to wait for the attorney general or some other government bureaucrat to sue the government if it violated the constitution (we all know how that game works), they gave any affected Michigan citizen or taxpayer the ability to sue. Since then, many citizens have exercised this right and have saved Michigan citizens and municipalities billions of dollars. HAN members engaged in policy work should always craft proposed laws with the right of legal action in mind.

Opportunities for collaboration also exist when the policy being researched is primarily one of legal process. For example, in Michigan today the state does not need to file a lawsuit in the home county of a citizen who allegedly violates a state environmental regulation. The state can file the lawsuit in the county where the state capital is located, giving the government a tremendous home-court advantage and driving up the cost for innocent citizens to defend themselves. The Mackinac Center is working with several attorneys to explore whether a more fair process can be developed.

And it is only natural that in the course of our policy research we stumble across—or are sought out by—potential clients for public interest litigation. We receive an increasing number of calls for help from citizens affected by the policies we research and publicize. Often we refer them to other HAN members for assistance.

Of course, no better example of the interdependency of policy research and litigation exists than the Supreme Court’s recent Zelman decision on the constitutionality of tuition vouchers. The opinion in that case reads like a who’s who of the libertarian/conservative policy research community. The Institute for Justice built its victory in this case on a foundation of empirical evidence laid by numerous policy analysts—many of them HAN members—over many years of painstaking, strategic research.

And, when we policy research groups are effective, our desperate opponents abandon public debate and pick up the club: they sue us. Today the Institute for Justice is defending the Mackinac Center in a frivolous lawsuit brought by our nemesis in education reform, the public school employees union. IJ’s pro bono assistance means we can continue our work free from the costs and distractions that often accompany this reprehensible tactic of sore losers.

None of these activities are particularly difficult, but all have tremendous implications for the future of freedom. HAN members need to be aware of the opportunities for cross-fertilization of policy work and litigation, recognizing that even seemingly limited involvement can yield tremendous benefits. By remaining active in HAN—even after the eye-opening public interest law seminars sponsored by the Institute for Justice—members from both the legal profession and policy institutes can join together as a formidable force for freedom.

Joseph P. Overton, LSC 93 and senior vice president of the Mackinac Center for Public Policy in Midland, Michigan, speaks at a press conference in May.