Last year, the President of Foundation Center, Bradford K Smith, wrote a provocation piece asserting that the controversial appointment of Brett Kavanaugh to the US Supreme Court was a philanthropic outcome, and a product of effective foundation practice. He described what he meant at a lively meeting of ACF’s Stronger Foundation’s Strategy and Governance working group earlier this year. What follows is a summary of the back story, and some reflections on what foundations in the UK might learn from this case study.

In the United States in the early 1980s, a group of small US-based family foundations began pouring their limited resources into conservative legal think tanks and Law School mentoring networks to nurture, support and influence a new generation of ideologically aligned American lawyers and law-makers. Among the beneficiaries was a young Yale Law graduate, Brett Kavanaugh. The funders’ approach was long-term, ideological and collaborative. Their grant funding was sustained, light-touch and unrestricted. While none of the foundations would have predicted the circumstances that led to Kavanaugh’s appointment nearly four decades later, two key factors made their strategy more likely to succeed.

The first was time: For forty years they awarded sustained, unrestricted funding, principally to a small number of organisations – most notably the Federalist Society, which has received more than half of its grants since 2006 from just five relatively small foundations, and of which five Supreme Court justices have been members. These funders’ unrelenting financial support to this single organisation is itself quite remarkable. How many times over these years might these foundations’ boards and staff have considered a break, a redirection of funding, or even a wholesale change of approach?

The second factor was timeliness. That Kavanaugh’s appointment prompted a case study of foundation practice might be put down to luck and hindsight. A different set of outcomes in any number of the macro and micro events could have changed this page history, not least a different presidential election outcome in 2016. Would this case study therefore have been viewed as a cautionary tale of philanthropic squander, ideologically-driven obstinacy, and a refusal to change course in the face of failure?

No. Because the success of the funders’ approach was never reliant on luck, but rather on seeing their funding as part of a war of attrition. Yes Kavanaugh’s appointment required him to be in the right place at the right time. But most important was the substantial infrastructure that made his appointment possible, enabling the opportunity to be realised when it finally came – in this case, a huge network of judges primed for consideration, all with substantial track records as senior judiciary and law makers in many of the nation’s most powerful courts.

Securing an alumnus on the Supreme Court may be a flagship metric, and it certainly shone a spotlight on the funders’ strategic intent. But most of the impact had been achieved long before. Their investment of patient capital had been paying dividends for years – through the thousands of day to day judgements and laws made by hundreds of alumni presiding over courts up and down the land, underpinned by the narrative and policies of the Federalist Society, which has become, according to the Washington Post, the ‘conquerors of the courts’ reaching ‘an unprecedented peak of power and influence’.

As David Callaghan, founder and Editor of Inside Philanthropy, noted in an essay on the same case study: ‘Over more than 40 years, funders on the right bankrolled a bold and ambitious strategy to spread their ideology and capture power. Their success in this regard ranks as among the most dramatic examples of high-impact giving in the past half-century. In turn, the deeply ineffective response of mainstream and liberal foundations to a concerted attack on their core values, past accomplishments, and cherished goals stands as an abject failure of leadership and courage. These funders, plodding along with narrow technocratic plans, failed to act on a central reality of modern politics: If you can’t win and hold power within America’s key institutions, you risk losing on every issue that you care about.’

There is much to learn from this story, particularly – as Smith, Callaghan and others have asserted – for progressive, liberal foundations. As Callaghan notes, those centre-right foundations ‘didn’t invest in issues or programs, or dole out one-year restricted grants. They invested in ideas, institutions and people. They gave general support to a core group of multi-issue think tanks, legal groups, leadership institutes, and media outfits year after year, decade after decade…Will the alarming developments of the past two years finally push mainstream philanthropy to stand up and fight for its values in the all-important spheres of ideology and power?’

We can only imagine where we’d be, both in the US and elsewhere, if foundations on the other side of the political spectrum had utilised their funding in the same way – long-term, ideological, collaborative, light-touch and unrestricted. It may be no surprise that, both within Stronger Foundations and the foundation sector more broadly, some are asking whether progressive foundations should, as Callaghan puts it, stop ‘playing yesterday’s game for achieving impact’.

In the face of scathing rollbacks of the very social policy issues they have fought to achieve and care most deeply about, should foundations abandon their political squeamishness, break free of the constraints of ‘what works’, and relinquish the pursuit of outcome measurement? Is now the time for foundations to adopt a new playbook fit for the fight ahead?

Max Rutherford is Head of Policy at Association of Charitable Foundations

This article was originally posed on the Association of Charitable Foundations blog on 6 August 2019. The original article can be viewed here.