Koch: more politics than industry
The appointment of Judge Amy Coney Barrett to the Supreme Court of the United States crowns the ambitious project of the Koch brothers, Charles Koch and David Koch (recently deceased). They are the two super-billionaire shareholders of the industrial conglomerate Koch Industries based in Wichita, Kansas. Forbes places Charles ranked sixth on the list of the richest people in the world. Mainly active in the fields of energy and oil, the group is so targeted by environmentalists and government agencies that it has been implicated in more than 300 pollution lawsuits.
The Koch brothers are indeed industrialists, but, above all, an enormous power in American politics of the last 50 years. In politics they have methodically and purposefully thrown their enormous financial resources to influence the judicial and political system at every level. Theirs is a liberal project, born over 50 years ago, which aims to overthrow the system of regulation of industrial and economic activities, leaving room for the unfolding of the forces of the free market.
The cornerstone of the Kochs' strategy is the judicial systemespecially at the federal level. The judicial system, according to the philosophy of the Kochs, has the potential to dismantle the complex and ramified network of regulations both at the federal and individual state levels and return American society to its original spirit, that of a nation with a minimal state. Christopher Leonard, author of the book Kochland, explains very well, in an intervention on the "New York Times", why the Koch brothers' project came to fruition with Barret's nomination to the Supreme Court. An appointment that shifts the balance of the Supreme Court to the right, with many judges sharing the Kochs' vision of American society.
Below is the Italian translation of Leonard's piece.
The Koch program
Charles Koch has rallied his political network to support the nomination of Judge Amy Coney Barrett to the US Supreme Court. While much of the commentary on Judge Barrett's nomination has focused on the real possibility that Roe vs. Wade (which enshrines the constitutional right to abortion) could be overturned with Barrett's vote, Koch's goals are different.
Judge Barrett's appointment is the latest piece in a project to reshape American society. To build a new scenario in which free initiative enjoys unlimited freedom of action. Barrett's appointment could be the pivotal point of this project.
Since the early XNUMXs, the Koch brothers have sought to dismantle most of the federal regulatory institutions. In this action, the federal courts have played a central role.
In 1974, Koch gave a motivational speech to a libertarian think tank called the Institute for Humane Studies in which he outlined his vision for state regulation and the strategy he would follow in subsequent decades to achieve that vision.
In the list of government interventions to be dismantled, he included “confiscatory taxation, wage and price controls, commodity allocation programs, trade barriers, foreign investment restrictions, so-called equal opportunity requirements, safety and health, land use controls, licensing laws, total state ownership of businesses and industries”.
As if the list wasn't exhaustive enough, he added: “…and many other interventions”. In short, Charles Koch believes that an unregulated free market is the only sustainable structure for human society.
The judiciary in the sights of the Kochs
To achieve his goal, Koch has built a network of influencers with three branches: a host of lobbyists, a constellation of think tanks and university programs spread across the country, and Americans for Prosperity (AFP), an association that gathers an army of grassroots political activists.
Shaping the American justice system has been at the heart of the Kochs' strategy from the beginning. In that 1974 speech, he recommended a strategy of "strategically planned litigation" to challenge the actions of regulators and government agencies. The goal was to get some of the cases to the Supreme Court, or produce some precedent-setting judgment in the federal courts.
In the XNUMXs, the Kochs' strategy focused on lower-level judges. The brothers legally funded an institution that paid for the judges' vacations at a Utah ski resort and a Florida beach resort.
In addition, the judges were invited to take part in seminars on the importance of spontaneous market forces in American society and others on the methods of so-called "junk science", which uses deceptive instruments to measure the effects of pollution. Incorrect analyzes which then resumed and amplified by environmental organizations to demonstrate the wrongdoing of companies.
Koch also tried to influence the judiciary at the federal level. Between 1997 and 2017, the brothers gave more than $6 million to the Federalist Society, a non-profit that recruits libertarian and conservative judges to the federal judiciary, according to an investigation by a group of activists from Greenpeace.
The supreme court
Koch's efforts on the Supreme Court intensified after the election of Donald Trump, when the Republican-controlled Senate paved the way for the installation of justices who could throw off the political balance of the court.
Americans for Prosperity has launched national campaigns to support President Trump's Supreme Court nominees Neil Gorsuch and Brett Kavanaugh. AFP said Kavanaugh's campaign alone — flyers, digital ads, phone campaign and door-to-door — required a seven-figure investment.
Americans for Prosperity did the same for Judge Barrett. AFP activists lobbied senators in several states, with a particular focus on vulnerable Democrats, such as West Virginia's Joe Manchin. The group also worked in Alaska, where Republican Lisa Murkowski had given mixed signals about her willingness to vote on Judge Barrett's nomination before the presidential election.
Back to the Lochner era?
Charles Koch is selective about spending on politics, and a failure to reconfigure the Supreme Court could wipe out the millions of dollars he has invested. The Court plays a key role in determining the regulatory power the federal government has over America in the economic arena.
The era closest to the Kochs' vision of regulation is the so-called “Lochner era” of the early XNUMXth century. During that time, an activist court scrapped a wide range of federal trade regulations, turning the country into a free-market zone.
The Supreme Court, with a majority of Republican-appointed justices, can overturn previous decisions and issue new ones so as to build a new Lochner era.
In the world of corporate law, the Lodestar case stands out, which saw Chevron USA Inc. against the Natural Resources Defense Council.
The Chevron deference
This case, decided in 1984, created an important legal precedent called "Chevron deference." It argues that courts should generally defer to an agency's interpretation of a law enacted by Congress when the law is ambiguous (provided, of course, that the agency's interpretation is reasonable).
This rule helps agencies, such as the Environmental Protection Agency (EPA), manage complex regulatory regimes, even if some details are not specifically addressed in the law. The current Supreme Court has already signaled a willingness to reconsider this precedent, a move that could drastically weaken federal regulatory agencies.
Against the Chevron ruling
Koch and the Trump administration are united in their desire to reverse the Chevron decision. Mark Holden, a board member of Americans for Prosperity, has publicly called the Chevron deference "a tool of tyranny."
“The administrative state often stands in fundamental contrast to our carefully conceived constitutional order,” he wrote in a 2018 essay for The Hill.
Holden wrote that Chevron's legal precedent gave agencies like the EPA so much power that they consolidated their authority over all three branches of government by bringing them under one roof: making the rules, enforcing them, and then issuing judgments in administrative courts.
Donald F. McGahn II, a former White House adviser, said the Trump administration sought to appoint Supreme Court justices who could rein in independent agencies. Judge Gorsuch, for example, has written multiple appellate court opinions reflecting Holden's views.
Judge Barrett and Justice Scalia
Koch's network, it seems, has faith that Judge Barrett will rule in harmony with these beliefs. It's actually a gamble. Barrett served as a federal judge for just three years, leaving little evidence, in cases and academic work, from which her views could be inferred. There is, however, an important idea in Judge Barrett's legal writings: she, like many justices, seems to believe that some precedents in the Court's decisions need to be re-examined.
Justice Barrett has publicly stated that his judicial philosophy is the same as former Chief Justice Antonin Scalia. As Georgetown University law professor Lisa Heinzerling told the Washington Post, it remains to be seen which version of Justice Scalia Barrett agrees with. Earlier in his term, Justice Scalia was a proponent of "Chevron deference," but over time he became more skeptical as he saw the courts' power to nullify or amend Congressional acts undermined.
The reassurances of the Barretts
The Americans for Prosperity campaign in support of Judge Barrett does not appear to mention the Chevron case, or any other corporate-related rulings. A Facebook post says simply that it is "committed to upholding our Constitution, and will not legislate on political grounds."
The AFP spokespersons repeat this line, emphasizing that the Koch network is not pursuing political results, but supporting honest jurists who follow the constitution to the letter.
History shows that it can be as effective to legislate on political grounds by overturning laws as by upholding them. The Lochner era demonstrates that the denial of politics is as powerful a tool as its creation and that all this greatly affects people's daily lives.
Charles Koch has written and stated bluntly over the past five decades that there are many, many laws and programs that he would like to abolish. With Judge Barrett's appointment to the court, he appears to be closer than ever to achieving that goal.
The author
Christopher Leonard is the author of "Kochland: The Secret History of Koch Industries and Corporate Power in America" and director of the Watchdog Writers Group at the Missouri School of Journalism.
