Images via: law.gmu.edu; charleskochfoundation.org; David Koch photo by Larry Busacca/Getty Images for TIME.
By Alex Kotch
Although George Mason University’s law school responded to controversy over $30 million in donations by claiming the money has not affected its hiring decisions, at least 10 new faculty members have links to the right-wing legal organization whose leaders serve as administrators of two-thirds of those donations.
The university hired more than a dozen law school professors after cementing the 2016 gift agreement with the donation administrators, who also serve as executives at the right-wing Federalist Society for Law and Public Policy Studies. The school has come under fire internally and from outside critics for its relationship with the group and has launched a review of its own to determine whether the school’s academic independence or integrity have been compromised.
The law school dean claims that the Federalist Society had nothing to do with faculty hiring decisions, but TYT has identified 10 faculty members tied to the Federalist Society and hired since the donor agreement was signed—more than has been previously reported. Until now, only seven faculty hires with Federalist Society connections had been reported. The school’s plan for the new hires indicated the total number of faculty would be 45 afterward.
The new hires identified by TYT as having links to the Federalist Society include a past donor; a “good friend” of Federalist Society Executive Vice President Leonard Leo (one of the donation administrators) who routinely participates in Federalist Society events; and one of Leo’s fellow board members at a conservative nonprofit organization.
In 2016, a $20 million donation was entrusted to Leo and Federalist Society Vice President Jonathan Bunch by an anonymous donor and paired with $10 million more from the Charles Koch Foundation to rename the school after the late conservative Supreme Court Justice Antonin Scalia and to fund scholarship programs.
The unredacted donor agreement, made public in August 2017, states that a nonprofit called BH Fund would administer the $20 million anonymous donation. Leo and Bunch are listed in corporate filings as executives of the fund, and Leo told BuzzFeed News that he is “responsible for making sure that the law school remains true to its principles over the course of the gift.”
The Federalist Society’s influence on America’s judiciary has increased dramatically under President Trump. Almost half of his judicial appointees are Federalist Society alumni.
Now, recently released emails show close contact between Leo and GMU law school Dean Henry Butler regarding potential faculty hires and student applicants. Bunch and another GMU professor also corresponded about judicial clerkships. The emails generated considerable media coverage, and Dean Butler eventually responded with detailed answers to questions raised by the activist group UnKoch My Campus, which published the emails along with a number of agreements concerning the Charles Koch Foundation and other private donors to the university.
But some of Butler’s answers, like statements from GMU President Ángel Cabrera, appear to be at odds with the newly released documents. On May 4, for instance, Butler claimed, “We have not and would not enter into any agreement that allowed an outside entity to influence our actions.” However, the donor agreement stipulates that if the donor, via BH Fund, in “its sole and absolute discretion, determines that the School . . . is no longer principally focused on the School’s Mission, the Donor . . . has the right to terminate this Agreement.” The memorandum also gives the BH Fund the right to “review and approve” potential publicity around the renaming.
“It’s a serious intrusion on academic independence when you have an outside entity who has a say in your faculty, students, Centers, and programs and can take away funding at its discretion,” Allison Pienta, a GMU law school alumna who obtained the emails through a public records request, told TYT.
Agreements between GMU, the GMU Foundation, the anonymous donor/BH Fund and the Charles Koch Foundation specify that the $30 million was to be spent “solely to support the Scholarships as stated in this Agreement.” The plan was to create merit-based scholarships for “approximately 57 students per academic year through 2021.”
The law school would in turn provide funding to hire 12 new faculty, bringing the school’s faculty total to 45, even as the school had experienced a “sharp drop” in enrollment. Because the school apparently didn’t need new faculty, some have questioned whether the scholarship donations were used as a way to bring in additional, specific kinds of faculty members.
Bethany Letiecq, a professor of human development and family science and president of the American Association of University Professors at GMU, told TYT, “Certainly there was no justification for such an investment, especially when there are great needs for faculty in other units.” But because GMU is making these hires, “donors can actually influence the direction of growth and can change the structure of the institution with very little/no faculty inputs. Rather than meet needs across units as determined through a shared governance process, donors determine faculty lines based on their interests . . . in my book, that’s undue donor influence over a public institution.”
The agreement stipulated that the law school would also offer “support” for two new academic centers, the Center for the Study of the Administrative State and the Center for Liberty & Law.
The group UnKoch My Campus raised questions about why several hundred thousand dollars appeared to be allocated directly from the donations, which were only supposed to fund scholarships, to the Centers themselves. In his public Q&A, Butler wrote in response, “After the money is used to pay for scholarships for students, it becomes general revenue to the law school and can be allocated at the dean’s discretion. If sufficient law school revenue is available, revenue can be used to support the Center for the Study of the Administrative State and the Liberty & Law Center.”
The first director of the Center for the Study of the Administrative State was Noemi Rao, who is on leave to lead Trump’s deregulatory charge as administrator of the Office of Information and Regulatory Affairs. Rao, who previously clerked for Justice Clarence Thomas and worked in the George W. Bush administration, is on an executive committee of the Federalist Society, according to her CV. Now, the Center for the Study of the Administrative State is named after C. Boyden Gray, another big donor to GMU (as well as an adjunct professor) and a Federalist Society board member.
President Cabrera said in an email to the GMU community that since he became president in 2012, “I have made it a priority to have all gift agreements clearly uphold our commitment to academic independence…gifts may be earmarked for programs, scholarships, or faculty support, but donors may not determine what is taught, what student is funded, or what professor is hired.”
Four years after Cabrera, who has served on a Charles Koch Foundation advisory board on “Well-Being,” became president, the Federalist Society and the Charles Koch Foundation cemented their gift agreements with the university.
Many New Hires Linked to Federalist Society
The Federalist Society is a large and powerful conservative lawyer network known for its influence over Republican presidents’ Supreme Court selections. Most recently, Leo and his group pushed President Trump to nominate conservative Neil Gorsuch. In academia, the group’s influence is less defined.
Out of 15 GMU law professors hired since the 2016 donations, 10 are listed as “contributors” on the Federalist Society website, meaning they have spoken at or participated in Federalist Society events, publications, or multimedia presentations. Seven had these links prior to being hired, and three spoke at Federalist Society events after joining GMU. Another professor hired before the gifts but listed by Butler in his progress report to Koch, has donated to the lawyers’ society.
- Adam White, a Hoover Institution researcher and former counsel at C. Boyden Gray’s law firm, was brought on in July 2017 to direct the Center for the Study of the Administrative State and join the adjunct faculty at the law school. As of 2015, White was the Rule of Law Project’s executive director, and Leo was a board member. The project was the subject of a campaign finance complaint brought by Citizens for Responsibility and Ethics in Washington.
- Jenn Mascott, hired in August 2017, spoke at two Federalist Society events in 2017. Mascott once clerked for conservative Justice Thomas and is now faculty director of the law school’s Supreme Court legal clinic, which provides pro bono legal representation before the Court. Previously, Mascott worked in Republican politics as press secretary for then-Rep. Eric Cantor (R-Va.), prior to Cantor’s stint as House majority leader, and as deputy press secretary for the GOP Senate conference.
- Eugene Kontorovich, who was previously an assistant professor at GMU Law in the 2000s, was hired by GMU this year. He has spoken at numerous Federalist Society events dating back to 2009. His CV lists him as a “member” of the Federalist Society, and he won the 2012 Paul M. Bator Prize, awarded to the “law professor under age of forty for excellence in legal scholarship and teaching, and who has made a significant public impact.”
- James Cooper, promoted to associate professor in 2016, is director of the Program on Economics & Privacy and was previously director of research and policy at the school’s Law and Economics Center. He has spoken at four Federalist Society events since last summer and is slated to participate in a June 2018 event.
- Robert Leider, allegedly hired two weeks ago, has participated in two Federalist Society events. He once clerked for Justice Thomas. As a private attorney, Leider filed an amicus brief representing the Philanthropy Roundtable, a donors group to which the Koch brothers donate, in support of the Kochs’ Americans for Prosperity political advocacy group in its lawsuit against the Attorney General of California concerning anonymous donations.
- Rachel Brand, a “good friend” of Leo hired in spring 2017 who later left GMU to serve as Associate Attorney General in the Department of Justice and recently stepped down for a post at Walmart, is a Federalist Society contributor, having spoken at numerous events.
- Megan Stevenson, hired in 2017, won the Federalist Society’s 2017 Young Legal Scholars Paper Competition and spoke on a Federalist Society-sponsored panel in January. In June she is set to speak at another Federalist Society event, held at the Scalia Law School.
- Carolina Cecot, hired in August 2017, moderated a Federalist Society panel held at the GMU law school in February and is a reviewer for the Koch-funded Mercatus Center.
- Gregory Conko, interim executive director of the Law and Economics Center, spoke at a Federalist Society event in February, after GMU hired him in December 2016.
- Paulo Saguato spoke at a February Federalist Society event held at the Scalia Law School. The law school hired him in August 2017.
- Steven Menashi, mentioned in the emails but hired before the naming gifts, is currently on leave to work in the Department of Education—which is run by Betsy DeVos, a recent Federalist Society board member. He has been an annual donor to the Federalist Society as a member of its “Founders Club” and has participated in multiple events. In 2010, Menashi wrote a paper in defense of ethnonationalism.
Butler’s office declined to speak with TYT, and the Federalist Society didn’t respond to a voicemail.
“Obviously this shows that the Federalist Society does have an influence on the hiring process,” said Pienta. “How many of these professors do you need to teach students at a public law school, who you’re supposed to be training in the practice of law and exposing to a diverse range of ideas?”
More Millions for Naming Rights
Just weeks ago, on April 24, the Scalia Law School held a dedication event naming its Center for the Study of the Administrative State after C. Boyden Gray, who gifted the school $3 million. Gray is on the board of the Federalist Society.
According to an internal document from April 2017 obtained by Pienta, the law school was offering naming rights for the Center for the Study of the Administrative State for $6 million. Gray only donated $3 million. GMU has not said whether it lowered the cost, made up the difference from another donor, or otherwise explained the discrepancy.
Attending the dedication was Justice Thomas, who spoke along with Gray and Butler.
“The Administrative State and its supporting doctrines have long outgrown their Constitutional bounds,” Gray said. “This relegates Congress to the role of subordinate—and making it irrelevant in some cases—divesting the courts of their Constitutional and statutory duty to say what the law is, and depriving the President of his right and duty to see that the laws are faithfully executed. . . . It will take years and much study to correct this unsustainable imbalance.”
In case you missed it, we are excited to share the film of our C. Boyden Gray Dedication Ceremony. Thanks to all who participated! https://t.co/JU48ZtOOWd
— The C. Boyden Gray Center (@AdLawCenter) May 7, 2018
The Scalia Law School document outlining donor options offered more than $150 million worth of naming opportunities: $18 million for buildings, $48 million for centers and institutes, $51.5 million in endowed professorships, $19 million for clinics and programs, and tens of millions more in scholarships.
The Federalists and the Kochs
Butler’s involvement in the $30 million grant is by no means his first encounter with wealthy conservative donors. According to his CV, from 1987 to 1989—as he was concurrently teaching in the GMU law school—Butler was a senior fellow in political economy at Citizens for a Sound Economy, a political nonprofit founded by David Koch that later split to become Americans for Prosperity and FreedomWorks. In the 1990s, for eight years as a faculty member at the University of Kansas, Butler was a Koch Distinguished Professor of Law and Economics.
The Koch political and higher education networks have close ties to the Federalist Society. In addition to Gray, the Federalist Society board of directors includes Edwin Meese, who also belongs to the Mercatus Center board, which includes Charles Koch Foundation President Brian Hooks and Charles Koch’s longtime strategist, former Koch Industries executive and current vice chairman of the Koch Foundation, Richard Fink.
In the past, the Federalist Society has come under scrutiny for paying for Scalia and Thomas to attend Koch donor summits, where conservative politicians, lobbyists, and megadonors get together to coordinate political strategy.
Just on Monday, an article by Open Secrets’ Robert Maguire uncovered the fact that on a campaign finance filing, Leo listed his employer as a company called BH Group—a group that donated $1 million to the Trump inauguration in December 2016. A Koch-linked 501(c)(4) nonprofit, the Wellspring Committee, gave the BH Group $750,000 that year, allegedly for “public relations.” Publicly available information about the BH Group includes no evidence of a PR operation. If the Wellspring Committee intentionally mischaracterized the purpose of its payment, this “would in theory raise perjury concerns,” a tax expert told Maguire.
On Wednesday, Maguire and Maplight’s Andrew Perez both tweeted a new finding that between July 2016 and June 2017, dark-money nonprofit Judicial Crisis Network (JCN) paid BH Group $947,000. During that same period, JCN, which is heavily funded by the Wellspring Committee, spent $10 million on ads backing Neil Gorsuch for the Supreme Court. JCN and Wellspring are the only known funders of BH Group.
The Koch family has consistently donated to the Federalist Society, having given more than $1.3 million from 2013 to 2016, according to tax records. Other donors include conservative foundations run by the Searle and Bradley families, corporations such as Koch Industries and Chevron, and the top business lobbying group in America, the U.S. Chamber of Commerce.
The Charles Koch Foundation sometimes teams up with other wealthy interests to fund academic initiatives, including several free-market centers named after fellow donor John Schnatter, CEO of Papa John’s, and another at Troy University named after fellow donor Manuel H. Johnson, who is also on the Mercatus Center’s board of directors.
GMU is just the latest institution to meet criticism over its agreements with the Koch Foundation. Students and faculty at institutions including Chapman University, Utah State, Ball State, Wellesley College, and Arizona State have taken action to reverse the Koch influence on campus.
Responding to the release of older Koch Foundation donor agreements, the GMU Faculty Senate made recommendations to the university to increase transparency and faculty oversight of gift agreements and hiring practices, but it has not yet addressed the Federalist Society controversy.
“I am an eternal optimist and will keep working for policy change at Mason knowing it will take time and steadfast commitment,” said Letiecq. “But in this case, I think the university will do the least amount possible—will make the fewest concessions possible—to put this mess behind them.”