History

In 1993, members of the Harvard Law School (“HLS”) Class of 1958 (“’58”), at the urging of classmate Ralph Nader, came together to form and fund a foundation to help organize, establish, and guide new centers throughout the country to promote law in the public interest. This foundation hoped to plant “seeds” from which public service activities of lawyers could grow and develop. Over the past 20 years, the Appleseed Foundation—now called simply Appleseed—has grown into a network of 17 non-partisan, non-profit public interest centers in the United States and Mexico, but the first seed planted was located, appropriately, in the nation’s capital. This is the story of that first seed, the DC Appleseed Center for Law and Justice (“DC Appleseed”), which traces its origin and ultimate early success to another HLS class—the Class of 1968 (“’68”).

A Brief History of the DC Appleseed Center for Law and Justice

By: Annemargaret Connolly

In Honor of our 20th Anniversary, written in 2014

The Inspiration

Finding interest among his classmates, Ratner began developing potential avenues for participation. Initially Ratner and his classmates sought to advance the Foundation; however, as the months passed in 1994, Ratner, classmate Nicholas Fels and others worked to assemble a team of lawyers, policy professionals, and supporters who were interested in establishing and supporting a new center focused on providing independent public policy analysis and recommendations of the highest caliber to address problems that were plaguing the District. By the fall of 1994, with a team led by Ratner in place, the organization incorporated and with seed money and part-time staff support from the Appleseed Foundation, DC Appleseed was ready to enter the policy debate over the future of the District of Columbia. Richard Wertheimer, who served as the first president of DC Appleseed, described the Center as “a new public interest organization of lawyers and other professionals . . . concentrating upon the performance and restructuring of the District Government. Its projects seek to improve the operation and reduce the cost of various agencies of the District Government.”

1. Ms. Connolly is a partner at Weil, Gotshal & Manges LLP and a Vice Chair of the DC Appleseed Board. The author would like to thank Thomas Goslin, a senior associate at Weil, Gotshal & Manges LLP and an active member on several current DC Appleseed projects, for his assistance in putting together a narrative history. If our facts or timing are slightly out of synch or if we overlooked anyone or anything of significance, please accept our apology, as given the passage of time and the limitation of space, we may have made a few assumptions about what to highlight and the time line in attempting to tell our story. We also would like to thank all those who took time to share their recollections of the birth and early years of DC Appleseed, including Gary Ratner, Nick Fels, Ed Levin, Josh Wyner, Daniel Singer, Bert Edwards, Alan Morrison, Jon Bouker, and Walter Smith, among others.

As Gershon “Gary” M. Ratner, a member of HLS ’68, was approaching his 25th HLS reunion, he began to consider ways that he and his classmates might collectively give back to society, now that they were well into established careers. He knew that Ralph Nader had already established a successful non-profit with members of his undergraduate Princeton University Class of 1955 (the “Princeton Project ’55”), whose objective was (and remains) to mobilize alumni and students, among others, to find solutions to systemic problems that affect the public good. When Ratner looked to the Princeton Project ’55 for ideas, he discovered that Nader was urging his HLS ’58 classmates to undertake a similar effort: to establish and fund a foundation that would promote public interest law to address not specific individual’s needs, but systemic issues that would have broad implications. Ratner invited Nader to speak to HLS ’68 about what would become the Appleseed Foundation.

From the outset, DC Appleseed was envisioned as having an active board that identified projects, created and actively participated in project teams to research issues, and suggested solutions and advocated for those solutions, leveraging where possible the pro bono commitment of many of the District’s law firms. With no staff other than part-time assistance and support from Linda Singer, then the Executive Director of the Appleseed Foundation, it was clear from the outset that the success of the organization depended on its volunteer participants. The initial board of directors included not only Ratner, who was then at the National Veterans Legal ServicesProject, and Fels, a partner at Covington & Burling, but representatives of the District’s largest law firms, including Eric Washington of Hogan & Hartson (now Hogan Lovells); Laurel Pyke Malson of Crowell & Moring; John Payton of Wilmer, Cutler & Pickering (now Wilmer Hale); and Richard Wertheimer of Arnold & Porter. The expectation was that these large firms would help staff project teams and hopefully provide some financial support. The board also included representatives affiliated with the Appleseed Foundation, including Edward M. Levin, a member of HLS ’58, and Alan Morrison, who along with Nader had created Public Citizen Litigation Project, a public interest law firm. These lawyers were joined by business leader John Hechinger of the Hechinger Company, Rev. Graylan Ellis-Hagler, the pastor of the Plymouth Congregational United Church of Christ, and Charito Kruvant of Creative Associates International. It was Ratner, however, who provided DC Appleseed with its soul. The minutes of the DC Appleseed Board meeting of January 25, 1995, reflect Ratner’s contribution:

Board Activism

“Gary Ratner’s critical role in launching the center and leading it through its formative start-up phase was noted with the Board’s gratitude. Without Gary, it is clear that the center would not have made it this far.”

Ratner may have been the soul, but Fels championed the first solicitation for financial support, looking to classmates, friends and local law firms to donate funds to support the organization. Payton and Wertheimer advocated complementing the direct solicitation with participation, i.e., involving potential supporters on projects or a committee prior to asking for donations. This unique approach helped DC Appleseed become the success it is today, with many dedicated financial supporters, who also contribute significant time and effort as board members and project team participants. The Board also approached philanthropic organizations for financial support and from its early days repeatedly has received grants from The Eugene and Agnes E. Meyer Foundation, The Morris and Gwendolyn Cafritz Foundation, and The Summit Fund of Washington.

The District’s Financial Crisis

encouraged to meet with the Board by some early DC Appleseed supporters, recommended a number of projects aimed at addressing particular aspects of the District’s financial crisis, including developing a methodology for determining what the federal government should pay the District for the costs associated with hosting the federal government (the “Federal Payment”). The Board was impressed with Edwards’ recommendations and he promptly was elected as its newest member and tasked with leading the DC Appleseed project team that would develop, and advocate for the adoption of, a better methodology for calculating the Federal Payment.

2. DC Appleseed is grateful to all of the foundations that provide it with funding. Their support is crucial to its mission.

3. Certain projects are highlighted to illustrate the history of DC Appleseed. From the outset, DC Appleseed worked on multiple projects. In addition to the Federal Payment, early DC Appleseed project teams handled issues that included examining facets of the Corporation Counsel, the Department of Consumer and Regulatory Affairs, land use, and tax-exempt organizations. Early supporters included not only Board member firms, but the law firms of Steptoe & Johnson, Arter & Hadden, Skadden, and Caplin & Drysdale.

The First Report

For those unfamiliar with District finances, the Federal Payment was meant to reimburse the District for the loss of revenue attributed to federally-imposed restrictions including, in particular, D.C.’s inability to tax certain persons or properties. From the outset, the Federal Payment failed to adequately reflect the actual costs incurred by the District due to the presence of the federal government. This was because the amount of the Federal Payment was based on a formula tied to revenues collected by the District, which bore no relationship to the costs the District incurred. Edwards, his co-chair Larry Walders of Graham & James, and their project team undertook an extensive study of the Federal Payment and crafted a new formula that would much more closely approximate the real costs incurred by the District in connection with its role as the Nation’s Capital. In November 1995, DC Appleseed issued its first report, The Case for a More Fair and Predictable Federal Payment for the District, in which it proposed revamping the system by which the Federal Payment was determined in order to achieve greater predictability and fairness by using the formula that Edwards, Walders and their team had developed.

Hiring a Staff

While the efforts of DC Appleseed and the Federal Payment project team are impressive in their own right, it is important to remember that this first major report was issued without any staff employed by DC Appleseed. The work had been done by volunteer board members and others working on a pro bono basis with part-time assistance from the Appleseed Foundation, particularly Singer, the Foundation’s Executive Director. In fact, Singer was instrumental in providing Ratner and the early supporters of DC Appleseed with ideas, contacts, and suggestions. Despite committed volunteers, it was clear that DC Appleseed needed a staff to be most effective. Alan Morrison oversaw the recruiting process; but it was a friend and supporter of DC Appleseed, who hearing of the need, recommended Josh Wyner, who just happened to be his son-in-law. That family tie aside, Wyner was the right person to take the reins and help establish DC Appleseed’s credibility. Wyner was a young environmental lawyer who had grown up in the District and was looking for a new challenge where he might advocate for change. Despite having gone to work at a private law firm, Wyner acknowledges that he went to law school with the goal of ultimately advancing public policy. DC Appleseed offered Wyner such an opportunity—a new organization with a public interest objective and a board made up of lawyers and professionals committed to mustering project teams to evaluate issues and advocate for changes to improve his city.

The Right Project at the Right Time

plans actually receive their promised pensions. In an impressive bit of financial and political structuring, the DC Appleseed project team, particularly Richard Shea of Covington & Burling, was able to craft the proposal in such a way that it was scored by the Congressional Budget Office as cost-neutral for federal budget purposes, despite the fact that the federal government was to assume billions of dollars of pension liabilities.

4. Congress had created defined benefit pensions plans for the city’s firefighters and police officers, teachers, and judges and funded them on a “pay-as-you-go” basis. Reports at the time indicated that the present value of the pension liability at the time of the transfer equaled $2.7 billion, which resulted in an unfunded liability of the District of over $2 billion.

DC Appleseed’s recommendations concerning the Federal Payment were well received, but as the District’s finances continued to worsen, federal and District policymakers began to search for broader, permanent solutions. One of those solutions concerned the District’s massive unfunded pension liabilities. The pension dilemma could be traced back to the Home Rule Act of 1973, which conferred limited autonomy upon the District to govern local affairs, but also transferred certain financial responsibility to the District, most notably for the accumulated deficit and an unfunded liability arising out of previously established pension obligations to certain employees transferred from the federal payroll to the District by Home Rule. Despite transferring the pension liabilities to the District, the federal government failed to provide the District with sufficient funding to meet its new liabilities. Beginning in 1979, and from then on, the District collected pension contributions from employees and itself made annual contributions in an attempt to close the gap. By 1995, however, the unfunded pension liability had grown to $4.7 billion, a debt that put the District at risk of default and bankruptcy. Understanding the significance of the pension issue, DC Appleseed created a project team, led by Edwards and Fels and supported by Wyner, which undertook evaluating and analyzing how to overcome the risks posed by the District’s unfunded pension. This project would put DC Appleseed on the map as a serious policy shop and give the organization significant credibility among political leaders.

In collaboration with the American Academy of Actuaries, the DC Appleseed project team gathered data conclusively demonstrating that the entire pension deficit was attributable to the period of federal control before the District was granted home rule. Armed with this data, DC Appleseed issued a report in June 1996, entitled The District of Columbia Pension Dilemma—An Immediate and Lasting Solution, which recommended that responsibility for the existing pension plans should be returned to the federal government, as it was the party responsible for the pension liabilities and the only entity financially able to assure that the beneficiaries of the

Advocating for Change, Creating Credibility

DC Appleseed’s report by itself did not assure change; however, it was issued at a time when the President, members of Congress, District leaders, and leading experts were working diligently to develop a comprehensive solution to at least some of the institutional problems underlying the District’s inability to achieve financial stability. DC Appleseed, which now had a full-time staff, seized the opportunity to advocate for the adoption and implementation of the task force’s recommendations. In this environment, Wyner and the project team spent countless hours educating the media as well as policy makers at both the local and federal level regarding the severity of the issue and the need for change. Project team members, with the assistance of board member Daniel Singer of the law firm Fried Frank, met with representatives of the Clinton Administration, including Dr. Alice Rivlin of the Office of Management and Budget, Congresswoman Eleanor Holmes Norton, Representative Tom Davis from Virginia, the Control Board, and the District’s Chief Financial Officer (and later Mayor), Anthony Williams, to outline the report’s findings and recommendations. Education and advocacy were the keys to success, as stakeholders had to come to the realization that the cause of the problem rested with the federal government and not the District. DC Appleseed project team members worked with the CBO, the federal General Accounting Office, and the Congressional Research Service, all of which not only issued reports confirming DC Appleseed’s conclusions regarding the implications of, and responsibility for, the unfunded pension liability, but sent representatives to Congress to testify in support of DC Appleseed’s position. DC Appleseed staff and members of the project team also met with local unions to make sure they understood the issue and what would happen if DC Appleseed’s recommendations were not implemented.

In the end, DC Appleseed’s proposal gained the enthusiastic support of the White House and the bipartisan leadership of both houses of Congress and was enacted in August 1997, when President Clinton signed legislation that significantly reformed the finances and management of the District, with the central financial piece being the adoption of DC Appleseed’s proposal for federal re-assumption of D.C.’s unfunded pension liability. In hindsight, it is clear that the data marshalled and presented by DC Appleseed demonstrating that the federal government was solely responsible for the pension crisis proved instrumental in persuading key Republicans, including Senator Lauch Faircloth, then chair of the Senate Appropriations Committee, to support the legislation. Upon being signed into law, the legislation immediately moved the entire District budget from an annual structural deficit of $200 million to an annual surplus of $100 million and avoided the District’s imminent bankruptcy in the early 2000s, when pension contributions were projected to mushroom. Officials estimate that the legislation saved each household in the District approximately $21,000.

Standing for the Rule of Law—Avoiding the Easy Way Out

During the battles over the District’s finances, DC Appleseed also was examining other systemic issues confronting the nation’s capital, including one that would raise existential questions about DC Appleseed’s mission and purpose. When Congress created the Control Board, one of the concerns that the Control Board was tasked with examining was D.C.’s failing public schools. DC Appleseed shared this concern; however, in the fall of 1996, the Control Board fired the Superintendent of Schools, replacing him with a candidate of its choosing. The Control Board then transferred the authority of the elected D.C. Board of Education to a new board of trustees appointed by the Control Board. Despite concerns over the efficacy of the Superintendent and the Board of Education, DC Appleseed’s board members, including Alan Morrison, were offended by what they saw as a blatantly illegal act by the Control Board. The structure of the Board of Education had been written into the District’s Charter, and nothing in the law creating the Control Board had changed the Charter. After a spirited debate that spanned several meetings, the DC Appleseed Board voted to challenge the law, even if the best chance for much-needed education reform might come from the Control Board’s maneuver. The late John Payton, a board member and a partner at Wilmer, Cutler & Pickering, cast the deciding vote on the principle that if DC Appleseed stood for anything, then it stood for the rule of law. Morrison went on to file a suit on behalf of DC Appleseed, which, when settled, resulted in power being returned to the Board of Education.

While choosing to stand for the principles of law, DC Appleseed recognized the need to reform education in the District and began the process of studying the issue. In September 1999, DC Appleseed issued a report entitled, Reforming the D.C. Board of Education: A Building Block for Better Public Schools, which recommended changes to fundamentally restructure school governance in the District. Subsequently, DC Appleseed advocated for the implementation of these recommendations, which included meeting with local news outlets, commenting on legislation aimed at implementing the changes, and working with the League of Women Voters to hold forums across the city to discuss reform. During these forums, the focus was not merely on the substantive changes, but on self-determination, advocating that the change should be made through a referendum rather than federal fiat. In the end, the District passed a law to change the Board of Education, which included a sunset clause (for which DC Appleseed advocated) that ultimately led to the mayoral takeover and major education policy changes in the District.

A Leadership Change

fundraiser at heart, Smith also has been able to merge projects and fundraising, finding projects that appeal to DC Appleseed and area foundations, such that today, some of DC Appleseed’s most notable projects, including HIV/AIDS, Special Education, and Restoration of the Anacostia River, have come at the request or suggestion of a D.C.-based foundation seeking independent, objective fact-finding and analysis on topics of concern to the foundation and consistent with the objectives and goals of DC Appleseed. Along the way, Smith has added a full-time development person and learned to twist an arm or two for needed financing without threatening the independence, objectivity, and credibility the early founders so painstakingly developed. Today, DC Appleseed is respected by District and community leaders across the political spectrum and is viewed as an organization that provides useful and constructive analysis, recommendations, and advocacy, while not afraid to challenge the status quo.

5. CareFirst is the largest health insurance company in the region, serving over one million subscribers in the D.C. Metro area. It is a federally chartered nonprofit company that is regulated by the D.C. Insurance Commissioner. Its congressional charter states that it is a “charitable and benevolent institution.”

Under Wyner’s leadership, DC Appleseed hired new staff and continued to leverage the talents of its varied pro bono participants, particularly those in law firms with partners on the Board. The structure allowed the Board to address systemic problems and enabled DC Appleseed to tackle several issues simultaneously. In addition to the projects discussed above, which forged the organization’s legitimacy and credibility, during Wyner’s tenure, DC Appleseed also conducted a comprehensive evaluation of the workings of the D.C. Council; examined D.C. government operations, including those of the Chief Medical Examiner and decisions relating to land use and zoning; drafted legislation; and championed a referendum to amend the District’s Charter. Wyner and DC Appleseed had certainly left their mark on the District, but, as Wyner began to contemplate new opportunities, he wanted to ensure that DC Appleseed had the leadership to continue and expand its impressive track record. Looking for a strong, principled leader to take over the reins of DC Appleseed, Wyner reached out to Walter Smith, whom he had met earlier when Smith had been Special Deputy Corporation Counsel for the District and when both had been working on voting rights challenges. Smith had left the government to pursue other interests when Wyner inquired about Smith’s willingness to work part-time on a new project evaluating the proposed conversion of CareFirst BlueCross BlueShield (“CareFirst”) from a not-for-profit to a for-profit enterprise. Smith was intrigued, said yes, and led a team that, to this day, continues to actively push CareFirst to meet its charitable obligations to the citizens of the National Capital area.

Shortly after recruiting Smith as a staff member for the CareFirst project team, Wyner announced his intention to leave DC Appleseed. The Board began a search for a new executive director, while Wyner attempted to interest Smith in the position. Smith, however, wanted nothing to do with a full-time job and certainly did not want to spend time fundraising. What Smith wanted to do was work on projects, but the more he learned about DC Appleseed, the more Smith realized that leading DC Appleseed was all about working on projects. Fundraising concerns aside, Smith realized that DC Appleseed provided him with a readymade, credible vehicle to advance positive change in the National Capital Area. Smith assumed the Executive Director position in the fall of 2001 and has moved DC Appleseed forward ever since. He has increased the size of the board to 30 members, which allows DC Appleseed to further leverage the pro bono talents of the firms represented on the board, thereby increasing the number of projects DC Appleseed (and Smith!) are able to undertake simultaneously. While not a

DC Appleseed Today

In addition, DC Appleseed continues to attract top-tier staff members, committed to the goals and objectives of the organization, and leverages its limited budget several times over with pro bono support from law firms, accountants and other professionals—allowing its small staff and hands-on board of directors to tackle a broad range of activities to improve the National Capital area. Building on its history, DC Appleseed remains an organization of efficient, effective advocates, who build support and consensus for the solutions they propose by working closely with government leaders and community stakeholders during investigations and as the project teams formulate policy positions. So, in the end, DC Appleseed doesn’t simply call for positive change, it helps make change happen.

working to clean up the Anacostia River, an effort that will create jobs, spur economic development, improve the environment, and unleash new recreational opportunities;
reforming CareFirst, the region’s largest health insurance company, to ensure that any excess surplus maintained by CareFirst is used to serve the public interest, including spending down its surplus to lower premiums and address community health needs.
addressing and recommending needed reform in the District’s handling of the HIV/AIDS epidemic, including issuing an annual report card assessing D.C.’s progress in tackling the crisis, a practice that started after DC Appleseed issued a groundbreaking report in 2005 that systematically analyzed the District government’s response to the HIV/AIDS epidemic and made specific recommendations for improvement;
monitoring and ensuring implementation of the low-income housing and employment requirements of D.C. Council legislation;
addressing the challenges of special education in D.C. Public Schools;
investigating the District’s management of child support programs;
in partnership with the D.C. Fiscal Policy Institute, recommending District reforms needed to support working poor families;
working with the Brookings Institution to establish a community college in the District;
ensuring the approved citywide referendum calling for an elected attorney general in the District is fulfilled;
advocating for better monitoring and public reporting of lead levels in our drinking water, improved communication when elevated lead levels are suspected in a community, and greater education on the dangers of lead exposure and measures residents can take to reduce exposure;
investigating the reasons for the poor health of District children; and
working to improve D.C. residents’ opportunities to make timely, informed choices about the nature of care they wish to receive at the end of their lives.

Under Smith’s leadership, DC Appleseed has become a leading voice for District voting rights and Congressional representation, and D.C. budget autonomy (an idea that is only possible due to DC Appleseed’s early work to improve D.C. finances). DC Appleseed also is actively engaged in the debate over Congressional interference in local autonomy, advocating for the District’s right to enact sensible gun laws in the face of strong opposition from some members of Congress. In addition to those projects focused on the District’s right to self-government, DC Appleseed currently is involved in the following active projects:

The Future

DC Appleseed’s future is bright. Over the past 20 years, DC Appleseed has become a respected and powerful resource advocating on behalf of intelligent public policy, democracy, and the rule of law in the District of Columbia. Building off the successes of the past two decades, DC Appleseed continues to work to expand its collaboration with volunteer attorneys and other professionals, business leaders, and community experts to solve problems affecting the daily lives of those who live and work in the National Capital area. Over the coming 20 years, the extent of DC Appleseed’s success should have a continuing and meaningful impact on the success of the region itself in meeting the challenges it will face.