DONOR INFLUENCE AT GEORGE MASON FINALLY EXPOSED
Documents obtained from George Mason University through a Freedom of Information Act request finally reveal donor influence over the university’s economics department and law school.
In an email last Friday (April 27) to faculty, staff, and students, GMU President Angel Cabrera, wrote:
Last week I was made aware of a number of gift agreements that . . .raise questions concerning donor influence in academic matters. . . [T]hese agreements fall short of the standards of academic independence I expect any gift to meet.
The agreements (from 2003-2011) create professorships in the department of economics that are affiliated with the Mercatus Center. Cabrera concedes that the agreements grant “donors some participation in faculty selection and evaluation.” Some of these documents have been released (see below).
Though Cabrera states that these agreements “fall short of the standards of academic independence,” he claims that no such influence has been granted since his arrival in 2012.
In another email sent several days later, Cabrera went further:
Mercatus Center/Economics Professorship Agreements
Federalist Society/Scalia Law Emails
Given the discovery of problematic gift agreements. . . I have requested a thorough review of all active donor agreements supporting faculty positions throughout the university to ensure that they do not grant donors undue influence in academic matters. I have also ordered a comprehensive review of our gift acceptance policies. . .
If, in the course of the aforementioned reviews, we identify any agreements, policies or practices that compromise our academic independence, we will take swift and transparent corrective action. . . With regards to the one still-active gift agreement in support of the Economics Department, which I mentioned in my earlier message, the donor has agreed to void the April 11, 2011 agreement and transfer the remaining $67,935 of the pledged gift to the university for general support."
The faculty senate has taken swift actions, passing motions that call for the release of donor agreements for public review within 30 days of formal enactment.
Bethany Letiecq, Faculty senator and president of the GMU chapter of the American Association of University Professors told reporters “We want all gift agreements to be made public so we can discern the full extent of the academic violations that have been occurring here.”
RECORDS SHOW NEW DONOR INFLUENCE IN GMU LAW SCHOOL
With the help of a several GMU students and alumni, UnKoch My Campus is releasing additional documents obtained through records requests showing how private donors tied to the Koch network are currently exerting considerable influence over George Mason University’s law school.
The release of these documents come only days after the student organization Transparent GMU went to trial against the George Mason University Foundation for access to private donor agreements. (Read more about Transparent GMU.)
Documents related to the law school, which was renamed after Justice Antonin Scalia in March 2016, reveal that, through a front group called the "BH Fund,” the Federalist Society for Law and Public Policy has been influencing faculty and student selection, recommending and establishing legal programs, redirecting large amounts of scholarship revenues to support the Center for the Study of the Administrative State and the Liberty and Law Center, and even reorienting the Law School’s judicial law clerk program to place “conservative” law students associated with the Federalist Society as clerks to the nation’s judges.
GMU Law School alumna Allison Pienta has examined and compiled a report based on over 700 pages of emails obtained through records requests.
Their main findings, detailed below, are that:
1. The March 2016 Grant Agreement with an Anonymous Donor Designated a Third-Party Beneficiary Which Has Been Revealed to be the Federalist Society (skip to)
2. The Federalist Society Is Playing a Role in Faculty Hiring, Developing Programs, Directing Funding from the Anonymous Grants, Student Admissions and Judicial Law Clerk Placements (skip to)
The Federalist Society’s Takeover of George Mason University’s Public Law School
By Allison Pienta
Documents obtained by alumni and students through the Virginia Freedom of Information Act (FOIA) over the past year and one half reveal that George Mason University’s public law school has been taken over by the conservative Washington DC based Federalist Society for Law and Public Policy. Since April 2016, the Federalist Society has been influencing faculty and student placement, recommending and establishing legal programs, redirecting large amounts of scholarship revenues to support the Law School’s most-politicized centers for the “Study of the Administrative State” and “Liberty and Law,” and even reorienting the Law School’s judicial law clerk program to place “conservative” law students associated with the Federalist Society as clerks to the nation’s judges.
Two years ago, on March 31, 2016, George Mason University announced that as a result of a $20 million donation from an anonymous donor and $10 million donation from the Charles Koch Foundation, it was changing the name of the Law School to the Antonin Scalia Law School. This generated intense controversy about renaming a publicly-funded state law school after one of the most ideological and polarizing Supreme Court Justice in history. Accompanying that controversy were concerns about inappropriate influence by an anonymous donor and the Charles Koch brothers who have long exerted control over George Mason and its affiliated Mercatus Center and Institute for Human Studies. Less known outside of legal circles is that Justice Scalia was the founding faculty advisor to the Federalist Society in 1982 and its highest-profile member and frequent speaker for the next 34 years, with four speeches at Federalist Society events in 2015 alone.
While George Mason University “talking points” and communications to media, faculty, and students flatly said “there are no conditions tied to this gift other than creating scholarship programs” (pp. 228) with “no strings attached” (4/6/16 Faculty Senate Mtg. Minutes, at 4), multiple Virginia FOIA requests over the past year and one-half by GMU Law graduate Allison Pienta and the undergraduate student-led organization Transparent GMU, reveal that there were indeed “strings attached” to the donations – all tied to the Federalist Society. Despite heavy redacting by GMU, the documents produced reveal that, as a result of the “anonymous” $20 million donation, the Federalist Society was given unprecedented influence over the law school’s faculty selections, its legal programs, the direction of the grant revenues, recommendations for student admissions, and even judicial law clerk selections. This is a deeply troubling intrusion on the academic freedom and independence of a public law school and its mission of training lawyers to engage in the practice of law in the Commonwealth of Virginia.
1. The March 2016 Grant Agreement with an Anonymous Donor Designated a Third-Party Beneficiary Which Has Been Revealed to be the Federalist Society
Emails before the change in the name of the Law School show that there was already a relationship between Scalia Law Dean Henry Butler (who was appointed in April 2015), and Leonard Leo, Executive Vice President of the Federalist Society. Mr. Leo is best known for his role in recommending conservative judges, including now-Justice Neil Gorsuch, to the Trump Administration. In September 2015, the two exchanged emails about fundraising, with Dean Butler sharing his “Five-Year Plan for Mason Law” with Mr. Leo, for which Mr. Leo provided his “wise counsel” (pp. 11-36).
In late February 2016, less than two weeks after Justice Scalia’s untimely death, an anonymous “donor ... approached” Mr. Leo, “a personal friend of the late Justice Scalia and his family,” about renaming the Law School (p. 225). Mr. Leo in turn approached Dean Butler, who immediately told GMU Vice President Janet Bingham at 6:40 am on February 26, 2016 that the “deal came together last night” (p. 59). The next day, Dean Butler pronounced this a “game changer for Mason Law” and said he was “Off to Cabo for a week of R&R” (p. 60). Two weeks later, Mr. Leo met with the Scalia family to secure their approval, saying “I am spending the weekend with Scalia family and will be making sure they are good with the naming” (pp. 65-66). Less than one month after Dean Butler’s pre-dawn text to Vice President Bingham, March 31, 2016 Grant Agreements were finalized with the Charles Koch Foundation and the anonymous donor. The Koch Foundation agreement provided for grants to the GMU Foundation totaling $10 million over a five year period. The agreement with the anonymous donor provided $4 million per year for five years, conditioned on yearly determinations by the donor and a “third party beneficiary” in their “sole and absolute discretion,” based on “written proposals” prepared by the George Mason Foundation, that the Law School is fulfilling a defined “Mission.” That “Mission” is to “[r]etain focus on the study of Law & Economics…which furnishes the faculty with a common culture” and to “[d]evelop additional related areas of concentration and intellectual leadership such as…constitutional studies, administrative law, and the relationship between law and liberty,” including a new “Center for the Study of the Administrative State” and “Center for Liberty & Law.” The Grant Agreement deemed Dean Butler a “critical part of advancing the School’s Mission,” and requires immediate notice to be given to the donors and third-party beneficiary “if the individual holding the Dean position changes” (pp. 150, 152-53).
George Mason University initially redacted the name of the third-party beneficiary when the Grant Agreements were produced to BuzzFeed News in late April 2016. But in response to repeated FOIA requests from Ms. Pienta, GMU finally produced a version of the Grant Agreement in August 2017 that identified the third-party beneficiary as the “BH Fund,” a “501(c)(4) Virginia nonstock corporation” (p. 150). As the third-party beneficiary in the Grant Agreement, the BH Fund has been given “the right to enforce all of the Donor’s rights in th[e] Agreement,” including the right to “terminate th[e] Agreement” if “in its sole and absolute discretion” the Law School “is no longer principally focused on the School’s Mission.” The BH Fund was also given the right to “review and approve ... proposed publicity about the conversion to the School Name” (p. 153).
Further research by Ms. Pienta in the Virginia State Corporation Commission’s registry and annual reports revealed that the BH Fund’s President is the Federalist Society’s Leonard Leo and that its Secretary-Treasurer is Jonathan Bunch, Vice President of the Federalist Society. The BH Fund was organized by the law firm of Holtzman Vogel Josefiak & Torchinsky in Warrenton, VA, whose named principal, Jill Vogel, was the Republican nominee for Lieutenant Governor of Virginia in November 2017. Zoe Tillman of BuzzFeed News confronted Mr. Leo with the connection to the BH Fund and he confirmed that he is “responsible for making sure that the law school remains true to its principles over the course of the gift.” He added, “Those principles are not all that different from what you would expect from any academic institution: a commitment to academic freedom and a due respect for intellectual diversity and the freedom of expression. And in particular a commitment to excellence.” 11/20/2017 BuzzFeed article. In an April 4, 2018 speech at the Christian conservative Hillsdale College in Michigan, Mr. Leo expressed the darker view that there can be “no mistake” that “law school teaching” has only “tipped its hat” to covering the “originalism and textualism” that Justice Scalia advocated because “political” and “external forces have been brought to bear” like holding “a Federalist Society meeting on it at 4 pm that same day.” Link to YouTube video of speech (beginning at 29:08).
The New York Times has further uncovered that a Virginia-based entity called the BH Group whose ownership is “difficult to discern” made a $1 million contribution to the Trump Inauguration in December 2016. 4/20/2017 New York Times article. While the names of the individuals associated with the BH Group are not public information, the individual listed as the BH Group’s “Organizer” in its Articles of Organization is the same individual listed as the Organizer of the BH Fund. Any suggestion that the BH Fund may be an unauthorized project of Mr. Leo and Mr. Bunch is dispelled by the presence of Eugene Meyer, the Federalist Society’s President, on an April 28, 2016 email to Mr. Leo (pp. 432-33).
Following the law school’s announcement of the name change in a press release reviewed and edited by Mr. Leo (p. 130-31), multiple emails were transmitted between Dean Butler to Mr. Leo, including one where the anonymous donor’s email was redacted, about media stories on the controversial name change (pp. 432-34, 452-58, 460-62, 495- 99). On 5/6/16, Dean Butler sent a summary of media stories to Mr. Leo along with Reginald J. Brown of the WilmerHale law firm (formally, Wilmer Cutler Hale Pickering & Dorr LLP) (p. 496). Mr. Brown, who is a former member of George Mason University’s Board of Visitors and a prominent member and funder of the Federalist Society, acknowledges that he helped “with the effort to get the law school name changed” while denying that he or his law firm represented the BH Fund or the anonymous donor.
In accordance with the Federalist Society’s new oversight rights, George Mason University gave the Federalist Society a leading role in at the dedication of the Antonin Scalia Law School which took place on October 6, 2016 with six Supreme Court justices attending. Following the dedication, a formal luncheon hosted and paid for by the Federalist Society was given for a select group of attendees (p. 662). At that luncheon, which was never disclosed to the students or the public, Mr. Leo gave toasts on behalf of “the donor” and told the attendees, including Supreme Court justices, that the Federalist Society, not George Mason, was footing the bill for their expensive lobster luncheon (p. 662). That same evening, Mr. Leo served as co-chair of the “Tribute to Justice Antonin Scalia” fundraising dinner held at Union Station where former Vice President Dick Cheney was a featured speaker and “Honorary Committee” member (p. 690) and Supreme Court justices were again in attendance. During the dinner, GMU President Angel Cabrera thanked Mr. Leo personally for making the $20 million donation possible. Seating charts show that Mr. Leo and his wife sat at Justice Thomas’ table, and that there was also a table for the “Anonymous Donor,” where Jonathan Bunch sat, along with Trevor McFadden, who was confirmed in October 2017 as U.S. District Court Judge in the District of Columbia (p. 672). Videotape of the dinner shows former Vice President Dick Cheney bragging during a panel discussion that Justice Scalia never tried to persuade him “to change his views,” instead, “it would be the other way around.”
2. The Federalist Society Is Playing a Role in Faculty Hiring, Developing Programs, Directing Funding from the Anonymous Grants, Student Admissions and Judicial Law Clerk Placements
Since the Grant Agreement, Mr. Leo and the Federalist Society have been directly involved in the development of law school programs, fundraising and directing funding from the anonymous grants, faculty selection, law school admissions and even judicial law clerk placements. All of this involvement is despite President Cabrera’s reassurance to GMU’s Faculty Senate that donors “no matter how generous they may be, will have no authority whatsoever in our faculty selection and promotion processes, our student admissions, or our curricular choices” (p. 456). Emails produced under the Virginia FOIA show communications and meetings between Mr. Leo and Neomi Rao, founding director of the Center for the Study of the Administrative State currently serving as President Trump’s Administrator of the Office of Information and Regulatory Affairs (pp. 420-24, 513, 598). Emails also show the Federalist Society’s involvement with an existing Attorneys General Education Program and a prospective “Federal Judges’ Initiative” (pp. 726, 737-49), both designed to educate participants on free-market, anti-regulation principles.
Mr. Leo and the Federalist Society have also been active in sending Dean Butler recommendations and opinions on faculty and Center hires (pp. 51-52, 490-94, 643, 708-9, 736), as well as recommendations for prospective students to attend the law school (pp. 5-8, 728-29). The focus of all of these efforts is on “conservative” faculty, students, and even judicial law clerks. One email shows Mr. Leo sending an email about a faculty candidate “worth reaching out to,” (p. 51-52), and another from Dean Butler to Mr. Leo informs him of someone who “turned us down as new Executive Director of the LEC” despite “all your help.” (p. 736). Mr. Leo also sent Dean Butler a resume of one “student prospect” whose “father is a senior executive at [redacted]” and is “very interested in Mason” (p. 5). An email from law professor J.W. Verret to Jonathan Bunch as well as the Law School’s clerkship coordinator, says: “We are hoping to place Scalia Law Alumni who are current members of our Fed Soc student chapter, alumni who were active in Fed Soc, and other Scalia Law conservative and libertarian alums in federal [judicial] clerkships.” Professor Verret especially wants the “opportunity to get such candidates in front of judges incoming under the new administration...” (p. 731).
In response to a FOIA request for a copy of the “written proposals” required to be submitted to every year as described in the Grant Agreement with both the Koch Foundation and the anonymous Donor, GMU produced a 5/30/2017 proposal to the Charles Koch Foundation (pp. 732-35). A 3/22/2017 email from Dean Butler to Mr. Leo, while heavily redacted, appears to provide similar information to that outlined in the subsequent Koch proposal (p. 719). These written proposals reveal that “scholarship” revenue from the Grant Agreements has been directed to Scalia Law’s two most politicized Centers: the Center for the Study of the Administrative State and the Center on Liberty and Law, both of which are mentioned by name in the Grant Agreements as centers for which “the School shall provide funding” and “support.” Under the heading “Cash is King,” the proposals shows that $400,000 annually has been directed to the Center for the Study of the Administrative State and another $300,000 to the new Center for Liberty and Law. This direction of grant revenues has been made with no public disclosure and despite President Cabrera’s representation to the Faculty Senate that “the entire gift will fund scholarships” (p. 456). Provost David Wu also told the Faculty Senate that “The Entire $30M is for scholarships for students and nothing else.” 4/6/16 Faculty Senate Mtg. Minutes, at 4.
Emails Cabrera Sent to Faculty, April 27, 2018
From: All salaried and nonstudent wage employees <GMU-STAFF-L@listserv.gmu.edu> on behalf of Office of the President <email@example.com>
Sent: Friday, April 27, 2018 8:16:26 PM
Subject: A Message from President Ángel Cabrera
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.
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.
Fortunately, most donors understand and respect our firm commitment to academic independence, which has made it possible for our fundraising to reach unprecedented levels. Philanthropy is vital for achieving our mission of inclusive excellence. I am grateful to all donors who are willing to invest in our students and our university.
From: All salaried and nonstudent wage employees [mailto:GMU-STAFF-L@listserv.gmu.edu] On Behalf Of Office of the President
Sent: Monday, April 30, 2018 9:03 PM
Subject: A Message from President Ángel Cabrera
Given the discovery of problematic gift agreements, which I communicated last Friday (see below), I have requested a thorough review of all active donor agreements supporting faculty positions throughout the university to ensure that they do not grant donors undue influence in academic matters. I have also ordered a comprehensive review of our gift acceptance policies and practices to ensure that they provide strong protection for our academic independence. I look forward to actively collaborating with faculty in this process and will work with Faculty Senate to explore how best to accomplish this.
If, in the course of the aforementioned reviews, we identify any agreements, policies or practices that compromise our academic independence, we will take swift and transparent corrective action.
With regards to the one still-active gift agreement in support of the Economics Department, which I mentioned in my earlier message, the donor has agreed to void the April 11, 2011 agreement and transfer the remaining $67,935 of the pledged gift to the university for general support.
"George Mason president: Some donations ‘fall short’ of academic standards," Washington Post, 4/28/18
Right-Wing Federalist Society Shaped Hiring and Admissions at George Mason University, Emails Show, Truthout, 5/2/18
"Revelations Over Koch Gifts Prompt Inquiry,"" New York Times, 5/1/18
"What Charles Koch and Other Donors to George Mason Got for Their Money," New York Times, 5/5/18