PIONEER INSTITUTE, which has spent more than three decades trying to inform and shape policy in the public arena, is going to take its case for limited government and free-market solutions to court. The Boston-based think tank is launching a legal arm that plans to tackle issues ranging from school choice to business regulation and public records access.
The new public interest law nonprofit will be helmed by Frank Bailey, who announced recently that he plans to retire in June from his post as a US bankruptcy court judge. Bailey will be aided by a staff of two other lawyers and a group of interns in running PioneerLegal, which will be based in Pioneer Institute’s downtown Boston offices.
“We want to bring data-based research and a fact base to a venue where we can get a hearing and where fact, rationality, and precedent are the core values,” said Jim Stergios, Pioneer Institute’s long-time executive director.
Stergios said Pioneer has been “incubating” the idea of a legal center for several years as it weighed in with briefs filed in connection with high-profile cases in Massachusetts, other states, and before the US Supreme Court. The new legal entity aims to pursue cases in three broad areas: expanding educational options, promoting greater government transparency, and freeing markets from unwarranted regulation and government intrusion.
Pioneer has filed briefs in recent years in connection with the Supreme Court’s Janus decision that banned charging “agency fees” to workers who choose not to join a union, cases before the court regarding state bans on public funds for religious schools, and the successful challenge that knocked the so-called millionaire’s tax off the 2018 statewide ballot.
On access to public information, Stergios said the state’s record is deplorable. “We are ranked poorly in every ranking that’s out there nationally,” he said. “Places like Florida, Texas, and Missouri do better.” Although significant reform to public records access will have to come through the political process, not courts, with changes by the Legislature to state laws exempting lawmakers and the judiciary from the public records law, Stergios said there may be a legal avenue to challenge the interpretation of an earlier court decision relied on by the governor’s office in claiming exemption from the records law.
On business regulation, Stergios said too often “market participants” set up rules that keep out new entrants in a field. He pointed to difficulty getting food trucks licensed as an example. “You don’t have to be Elizabeth Warren or some populist on the right to recognize that occupational licenses, regulations, the way that government oversees lots of things related to the economy is a little bit rigged,” he said.
Brackett Denniston, senior counsel at Goodwin Procter who served as chief legal counsel to then-Gov. Bill Weld in the mid-1990s, will chair the PioneerLegal board of directors. The board includes a bevy of other big-name lawyers, including former Supreme Judicial Court justice Robert Cordy and well-known First Amendment lawyer Jonathan Albano, who has represented various media outlets in public records cases.
Stergios said the new center will aim to disrupt the status quo where it sees a strong case for doing so, but will “be prudent and wise in what we take on and make sure we have a high likelihood of success.”
Pioneer has long been a strong advocate for charter schools. Nonetheless, Stergios pointed to a 2015 lawsuit that challenged the state’s charter school cap on the grounds that it denied students the constitutional right to a quality education as the kind of case PioneerLegal would steer clear of. “I didn’t think that it was framed in way that stood a great likelihood of success,” he said of the charter school lawsuit. “We will not do ‘Hail Marys.'” A court rejected the claim in the charter case, a decision later upheld by the Supreme Judicial Court.
Pioneer Institute was founded in 1988 and has often served as a right-leaning policy counterweight in a state dominated by Democrats. The think tank counts Gov. Charlie Baker and Education Secretary Jim Peyser as early executive directors.
Stergios said Pioneer Legal would have a budget of at least $500,000 for the partial fiscal year ending in September, and a budget “in the seven figures” for its first full year of operation beginning in the fall. The group is looking to recruit first- and second-year law students for the center’s internship program. Stergios said a posting drew 30 applications in the first two days.