By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She now spends much of her time in Asia and is currently working on a book about textile artisans.

It’s not exactly breaking news to assert that big donors– such as the Koch Brothers– spend money to manipulate public policy. Some expenditures take the form of political contributions, while other funding seeks to shape the production and dissemination of ideas– either through the media or in academia.

Last week, documents released during discovery in a lawsuit filed against George Mason University provide a window into the details of how this influence is exerted. The suit was filed by the activist group Unkoch My Campus, and sought to compel George Mason University (GMU) to release donor agreements, citing Virginia public disclosure laws. Emails and supporting documentation are found here.

Wowsers! Let the games begin.

Antonin Scalia Law School, Federalist Society, Corrupt Admissions Decisions

The NYT (here and here), WaPo, and Truthout each featured coverage last week of the disclosures. I found Truthout most useful for distilling the salient points about donor influence at the recently renamed Antonin Scalia Law School, following a $30 million anonymous donation. I’ll address the law school situation first.

The Truthout account discusses the role of the Federalist Society for Law and Public Policy Studies– the rightwing organisation that has had an outsize impact on judicial selection for decades, most recently in the appointment of Neil Gorsuch to the Supreme Court– in how the law school will use its windfall:

In the newly released emails between Federalist Society leaders, the dean of the law school and other top officials plot out additional ways to use the donation, communicating about a “five-year plan” for the law school and candidates for new professorships, potential students and judicial clerk positions.

So far, really nothing out of the ordinary, this is business as usual for the Federalist Society. Some further details from the Grey Lady story, What Charles Koch and Other Donors to George Mason University Got for Their Money:

Emails disclosed by the university show that Federalist Society officials were also involved in hiring discussions and had suggested a student for admission. In turn, a professor at the law school wrote the society asking for help securing recommendations for prestigious federal judicial clerkships for students active in the society.

As is far from uncommon in such situations, the problem only arose with the cover-up. When asked by the faculty what conditions applied to this anonymous donation, the provost tried to obfuscate. Over to Truthout:

At a faculty senate meeting on April 6, 2016, George Mason University Provost S. David Wu told faculty and university officials that the donations came with “no strings attached, and the scholarship decisions are made by GMU. The entire $30M is for scholarships for students and nothing else.”

That story may have held– until last week’s document dump. Oops! Truthout again:

The emails between donors and the law school that were disclosed on Monday tell a different story. The emails, which law school alumna Allison Pienta requested and then released through UnKoch My Campus, show Leo and Butler sharing information about faculty hiring, prospective law students, judicial law clerk suggestions, allocation of the grant money and even about faculty taking leave to work in the Trump administration.

We all know this goes on, of course. Does anyone think that these extreme libertarian and right-wing ideas are so widespread because they’re actually better ideas? No, I don’t think so. If you do, I have some old Tsarist bonds I’d like to sell you.

But first, allow me a brief aside: kudos to the people– largely students– who’ve organised to UnKoch their university. Just like the students responsible for the gun movement, they’re actually trying to change things– rather than throwing up their hands in despair, or capitulating to cynical realism– and saying that’s just the way of the world, folks.

Restricting Academic Freedom: Mercatus and the Economics Faculty

NC is primarily an economics and finance blog, so what I’m most interested in discussing in this post is not the goings on at the law school, but just how donor influence shaped academic hiring and retention decisions, in the economics faculty and at the Mercatus Center, described by WaPo as “a free-market research group that is based at the university but is an independent organization.” In particular, I will note the role of economist and Mercatus Center Director Tyler Cowen in at minimum signing off on these funding agreements with the Kochs and other funders. Cowen is prominently highlighted in both the press release and underlying supporting documents, but curiously — ahem– absent in both the NYT and WaPo accounts.

These documents show Cowen– in his role as general director of the Mercatus Center– signing off on agreements creating Mercatus Center/Economics Professorships (see, e.g.,2003 Mercatus Smith Chair July 14, 2003;2007 Mercatus Smith/Koch Professorship June 11, 2007; 2007 Mercatus BB&T professorship (Boettke) June 11, 2007; 2007 Mercatus Smith Bastiat Professorship June 11, 2007; 2007 Mercatus BB&T Professorship Leeson (June 11, 2007): 2007 Mercatus Tullock Black Professorship August 8, 2007; 2007 Mercatus Fullinwider Professorship August 8, 2007; 2009 Mercatus Charles Koch Professorship month unclear/3/9; 2011 Mercatus BB&T Professorship (Boettke)

That these agreements violate standard academic norms was conceded almost immediately after the documents were released in an email GMU president Ángel Cabrera sent to faculty on April 27, 2018:

As a result of a FOIA request, last week I was made aware of a number of gift agreements that were accepted by the university between 2003 and 2011 and raise questions concerning donor influence in academic matters. The gifts were in support of faculty positions in economics and granted donors some participation in faculty selection and evaluation. Except for the most recent one, these agreements have expired. The agreements did not give donors control over academic decisions, and all but the earliest of these agreements explicitly stated that the final say in all faculty appointments lies in university procedures. Yet these agreements fall short of the standards of academic independence I expect any gift to meet.[ Jerri-Lynn here: my emphasis.] Since I arrived at Mason in 2012, I have made it a priority to have all gift agreements clearly uphold our commitment to academic independence. As I have stated before, 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. If these terms are not acceptable to donors, the gifts are kindly declined.

Two points: first, this is as clear an admission as one could possibly expect from a university president that norms of “academic independence” have been violated at his/her institution.

Second, Cabrera asserts that the problem has been corrected since he arrived at GMU. It’s hard to say whether to credit this denial. The date of the latest disclosed agreement is 2011. Absent access to subsequent agreements, we simply cannot know whether Cabrera is telling us the truth. It’s a cliche but no less true that it’s difficult to prove a negative. In the case of the law school (discussed above), what the provost said the agreements said was simply not true. I suppose we’ll have to wait to see how the litigation plays out before we know whether there will be any more such agreements disclosed.

I’d like to delve a bit further into just exactly how “these agreements fall short of the standards of academic independence I expect any gift to meet.”

I’m no expert on the sort of contract. But what leapt out at me was the role allowed for donors on the selection committee– that selected the initial shortlist of candidates; and the advisory committee– whose members were drawn from the selection committee, and who evaluated the professor’s work, and could recommend dismissal. The role of the advisory committee in annually assessing a professor’s work set off screaming alarm bells for me.

Let’s start with selection. Each of the 2007 and 2009 agreements specified:

2. Selection Committee. The Selection Committee shall have five (5) members. The decision-making rule for the Selection Committee shall be majority vote, except in the case of changing or providing additional objectives or requirements, in which case the decision-making rule shall be by unanimous vote. The members of the Initial Selection Committee (i.e., the Selection Committee that chooses an Initial Professor as defined in Section4,infra) will be: the President or Executive Director of Mercatus or the most closely corresponding position, two (2) members designated by the two donors that initiated the challenge, one of whom must be a member of the GMU faculty, the Chair of the GMU department where it is anticipated the Professor will receive the majority or all of his appointment, and one (1) member of the same department, to be designated by the department Chair. In addition to the Selection Committee, candidates will also interview with specific members of Mercatus staff appointed by Mercatus General Director (2007 Mercatus Smith/Koch Professorship June 11, 2007; [Jerri-Lynn here. My emphasis.I’m quoting here from one of the agreements I linked to above. The other 2007 and 2009 agreements are similar– if not identical.]

Boiling this down “two donors that initiated the challenge” means the donors– the challenge the agreement refers to is the fundraising goal. This agreement gives the donor control over two out of five members who do the initial selection of the candidate. Now, it may be true, that the final selection is done according to the normal academic norms of the institution. But by then, the fix would have been in, and the selection committee would have enormous influence over who was ultimately elected– simply by virtue of being allowed to make the initial selection.

Now for more interesting stuff. Okay, so the donor selects the candidate. Suppose that candidate keeps his or her head down, and waits until s/he’s appointed to pursue academic inquiries, without fear or favour. How would the donor exercise subsequent control over the professor’s work?

I’m glad you asked.

Section 4 of the agreement specifies just exactly how an advisory committee– comprised of a subset of that selection committee with two donor-approved members– will post facto sign off on the professor’s work, as laid out below.

4. Advisory Board. An Advisory Board shall be created and made up of three members of the selection committee to be appointed by the Mercatus executive director to receive an annual summary of the activities, accomplishments, and expenditures of the Professorship and to review the administration of the agreement and a budget and plan for the subsequent academic year. In doing so, it shall have the right to: Consult with the Selection Committee or the Mercatus Center or the grantor regarding the qualifications of candidates for the Professorship;

Discuss with the Grantees and their representatives/affiliates, their administrative officers or trustees, the appointment of an occupant of the Professorship and any other matters relating to carrying out the purposes for which the Professorship is established;

Ensure compliance with the terms of this agreement through appropriate administrative or legal channels;

Make periodic assessments of the Professor’s performance and/or activities; and

Make a determination (based on the individual’s performance or otherwise) that the professor filling the Professorship is no longer qualified to do so, and upon this determination will submit in writing to GMU and to Mercatus a recommendation that the professor be removed from the Professorship (2007 Mercatus Smith/Koch Professorship). The Advisory Board shall have no authority or control, either directly or indirectly over the administration of the Professorship or the selection of the occupant of the Professorship except through its determination of an occupant’s continued qualification to fill the professorship and shall only act as a body that has a continuing interest in seeing that the terms and conditions of this agreement and the obligations of Mercatus, GMU and their representatives/affiliates are carried out..

In Uncovering Koch Role in Faculty Hires, Inside Higher Ed identifies in precisely what respect these agreements are unusual (to say the least):

It is of course common for donors who support professorships to specify the academic field or subfield. So while the Koch family’s extensive giving to antiregulatory causes in politics is controversial, it is not necessarily controversial that they fund professorships in economics and even free-market economics. But academic values have long held that donors don’t get to pick who holds chairs, or evaluate them.

Indeed. I have nothing to add so I won’t make this post any longer than it needs to be.

The Bottom Line

For the last word in what’s at stake here, let me turn again to the WaPo account, quoting a GMU professor:

“It’s now abundantly clear that the administration of Mason, in partnership with the Mercatus Center and private donors, violated principles of academic freedom, academic control and ceded faculty governance to private donors,” said Bethany Letiecq, an associate professor of human development and family science at George Mason. Letiecq, who is president of George Mason’s chapter of the American Association of University Professors, said she was bothered by language that indicated donors had power in faculty hiring and a voice in decisions about whether professors remain at the school. “These are all gross violations of academic freedom,” she said. “Faculty hiring and faculty retention are not the business of donors, in any way, shape or form.”

To answer this question, permit me to turn to Letiecq again:

But Letiecq, the George Mason professor, said faculty members have been pushing Cabrera for information for years, trying to figure out whether academic freedoms were being violated at the school. “And now we clearly understand that they were,” she said. “And so, the next question is, what are they going to do about it?”

That, my friends, is the question.