Jurisprudence

What the Koch Brothers’ Money Buys

Internal emails from George Mason University show how cash turns into special favors.

Charles Koch, EPA administrator Scott Pruitt, and David Koch.
From left, Charles Koch, EPA administrator Scott Pruitt, and David Koch.
Photo illustration by Slate. Photos by Alex Edelman/Getty Images, Jimi Celeste/Patrick McMullan via Getty Images, and Patrick T. Fallon/Washington Post via Getty Images.

It might seem beyond debate that when a person gives you a substantial chunk of cash, he’s going to expect something substantial in return. In recent years, however, a growing number of lawyers and judges have contested this basic fact of human nature and have enshrined into law their willful naivety about the corrupting influence of money. This week, two major players in the movement to deny this reality, Charles Koch and Leonard Leo, got caught up in scandals that reveal their efforts to buy influence over governmental matters. These embarrassing flaps neatly illustrate that the very same people who argue that money doesn’t buy special favors have secretly been using their money to buy special favors.

The first of these imbroglios arose on Monday, when the group UnKoch My Campus released a trove of emails regarding Koch’s sway over George Mason University, a state university in northern Virginia. These emails, obtained through a Freedom of Information Act request that the university unsuccessfully fought in court, relate to the Charles Koch Foundation’s donations to GMU. The school has received more than $50 million from Koch since 2005, including $10 million in 2016 to rename its law school after the late Justice Antonin Scalia.

This money has transformed GMU into the nation’s nerve center for libertarian-conservative law and policy. Koch’s cash funded the creation of the Mercatus Center, a free-market institute that promotes deregulation. A number of Trump administration officials have ties to GMU, most notably, Neomi Rao—who founded the school’s Center for the Study of the Administrative State, which also opposes federal regulations—serves as the White House’s regulatory czar.

Koch has long insisted that his donations come with no strings attached and do not allow him to exert undue influence over GMU’s internal affairs. The emails indicate otherwise. By far the most damning correspondences are between Leo and various GMU officials, including those who oversee the student admissions and faculty hiring processes. Leo heads the Federalist Society, a lavishly funded conservative legal group that currently serves as a pipeline to the Trump administration. (Many of Trump’s judicial nominees are members of the Federalist Society, including Supreme Court Justice Neil Gorsuch, whom Leo reportedly selected for the seat himself.) Leo is friends with David and Charles Koch, who have both donated generously to his organization.

It appears from these emails that Leo functioned as a kind of emissary between the Kochs and the university. In 2015, the dean of GMU’s law school, Henry N. Butler, sent Leo his five-year plan. Leo promptly set up a call to discuss “a number of questions,” after which Butler thanked him for his “wise counsel.” The next year, Leo coordinated the donation of $10 million from Charles Koch and $20 million from an anonymous donor to rename the law school after Scalia. That anonymous donor was later revealed to be the “BH Fund,” a tax-exempt group of which Leo is president.

On Monday, GMU President Ángel Cabrera wrote in an email to faculty that he had ordered an investigation into “problematic gift agreements” that gave Leo and the Kochs excessive influence over the school. It appears that a number of agreements between the Kochs and GMU gave the donors an express right to participate in faculty selection and evaluation. These arrangements, Cabrera explained, “fall short of the standards of academic independence I expect any gift to meet.” The issue is especially pressing at a state school like GMU; Leo and the Kochs tilted the ideological playing field at the school in order to favor conservatives in hiring and admissions.

Since at least 2015, Leo has also had a direct line to Butler, which he has exploited to push GMU’s law school even further to the right. Butler’s emails to Leo are relentlessly obsequious, an unsurprising dynamic between a donor and donee. Leo seized upon the dean’s pliancy to push potential students and professors whom he favored. For instance, he sent Butler the résumé of a student whose father “is a senior executive at [redacted]” and asked the dean to grant him a personal meeting. Less than two hours later, Butler agreed enthusiastically, and within a few weeks, he emailed Leo to boast that he “closed the deal” with the student, who was already “in classes.” Leo also repeatedly sent Butler résumés of potential conservative faculty hires, pressing him to recruit them. While Leo never made outright demands, Butler seems to have taken these suggestions as direct orders, vigorously pursuing these candidates and providing Leo with frequent updates.

It is wholly unsurprising that political donors would use their wealth to buy influence at GMU. It is ironic, though, that these particular donors happen to be some of the leading proponents of the legal theory that money in politics has no corrupting effect. This theory was most clearly enshrined into law by Chief Justice John Roberts—a Federalist Society alumnus recommended for his current post by Leo—in 2014’s McCutcheon v. FEC, as well as its predecessor, 2010’s Citizens United. In those cases, the court held that “most large donors do not seek improper influence over legislators’ actions” and that “ingratiation and access” between donors and donees “are not corruption.” McCutcheon scoffed at the notion that an individual could buy favor with politicians by handing them a huge sum of money, dismissing the claim that donations would directly result in “political favors.”

The Koch brothers have bankrolled a number of groups that challenge campaign finance restrictions and vigorously object to all regulations on political spending. Citizens United allowed them to raise and spend hundreds of millions to sway elections; in 2016, they poured money into the successful effort to keep the Senate in Republican hands. The senators they helped elect have been instrumental in elevating Trump’s judicial nominees to the bench. And these judges have already launched an assault on remaining campaign finance restrictions.

Leo and Koch’s GMU experiment plainly demonstrates that money can buy access in state affairs. So, too, does the second Leo-related controversy to arise just this week, this one regarding notoriously unscrupulous Environmental Protection Agency administrator Scott Pruitt. When Pruitt served as Oklahoma attorney general, Leo helped the energy industry funnel hundreds of thousands of dollars into Pruitt’s legal attacks on the Obama administration’s environmental regulations. As an apparent reward, Pruitt took Leo on a hugely expensive state trip to the Vatican—during which, the New York Times reports, Leo “was driving most of the schedule.” The EPA administrator also invited Leo to a “top restaurant in Rome” and allowed him to travel in his motorcade over the objections of his aides.

Needless to say, private citizens are not usually granted these favors on official trips abroad. But Leo enjoys what the Times describes as “privileged status” at the EPA, with his requests “treated as a priority.” If Leo called to ask for something, a former EPA official told the Times, “we did it, it doesn’t matter what it was.”

Did Leo’s government-funded Vatican adventure qualify as corruption? Did his and Charles Koch’s interference with GMU’s academic independence cross the line? Once again, the answer might seem obvious—but Leo and Koch have spent decades attempting to persuade us that their money doesn’t really have any strings attached. The Supreme Court’s Federalist Society alumni agree, but that doesn’t mean the rest of us have to. To gauge the real influence of political spending, we need only look at how Leo and the Kochs conduct themselves when they don’t think the public is watching. And when they call in a favor, the beneficiaries of their largesse know exactly who calls the shots.

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