Monday, May 14, 2018
- Universities face serious threats to academic freedom from outside pressure groups
- Some Donors have made demands that can undermine university provision of unbiased, high-quality research
- Accommodating ethically questionable Donor demands can undermine public confidence not only in individual researchers, but in entire institutions and even in the broader academic enterprise
- Stronger, more secure, and more stable funding for universities—without strings attached—would help insulate universities from undue pressure by outside groups
- Universities should work together to secure their financial and intellectual independence, articulate clear ethical standards, and enforce those standards
I recently documented efforts by a well-organized network of libertarian and conservative academics, advocacy groups, and media organizations to foster resentment toward universities and then gain control over them, under the pretense of supporting free speech. These efforts continue a decades-long assault on higher education, and have been remarkably effective at tarnishing universities’ reputations. This has paved the way for legislation that further undermines universities’ intellectual and financial independence.
A complementary threat to academic integrity comes from powerful outsiders exploiting universities’ financial needs to leverage relatively small donations into enduring influence over faculty, curriculum and student life. Such money-for-influence arrangements could alter what research gets produced, and by whom.
Outside funding can increase research output and impact in media and policy circles. It can fund great research that might not have been produced otherwise. But funding under inappropriate terms risks undermining the central and unique role that universities play in society as providers of high quality, reliable, and unbiased information. This could quickly destroy the goodwill and trust that universities painstakingly cultivated over decades (in some cases, for centuries).
This issue has come to a head recently with press coverage of some financial relationships and recently disclosed contracts between conservative and libertarian donors (including foundations and re-granting organizations funded by the prominent Koch family) and George Mason University. Much of the controversy relates to a libertarian / free-market embedded think tank at George Mason, The Mercatus Center, which provides supplemental compensation and resources to GMU’s economics faculty and some law faculty members, as well as opportunities to produce commissioned research on timely policy issues. Through Mercatus, the university has received tens of millions of dollars in donations.
GMU faculty members’ chances of obtaining funding and resources apparently did not depend exclusively on an unbiased assessment of their intellectual rigor and academic contributions, but rather appear to have depended at least in part on the political implications of their research. In contravention of academic ethical norms, donors had substantial influence over which faculty members would receive compensation supplements known as “chairs” or “professorships.” Donors maintained control through representation on selection committees, evaluation committees, rights to recommend removal of chair holders, gift rescission rights, and key-man clauses for senior executives, including the dean of the law school.
“The objective of the Professorship is to advance the . . . acceptance and practice of . . . free market processes and principles [as] promot[ing] individual freedom, opportunity, and prosperity . . . The occupant of the Professorship (“Professor”) shall . . . be qualified and committed to the forgoing principles.”
Rudy Fichtenbaum, president of the American Association of University Professors said “When you start getting into a study of free enterprise then you’re really, I think, stepping into a territory where you’re promoting a political agenda.” Donors may specify a topic of study or type of expertise for a holder of a chair; but they should not specify the chair-holder’s politics.
Critics say Mercatus’s ideologically based funding tips the playing field at GMU in favor of the production of economically right-wing scholarship and the retention of economically right-wing scholars and instructors. Neither Mercatus nor GMU appear to have imposed any limits on the fraction of a faculty member’s total annual compensation that could come from non-state sources such as Mercatus. This is unusual—many funders and universities worry that too much outside funding creates the appearance of impropriety. At least one prominent member of the GMU faculty with a Mercatus affiliation derived over 40 percent of his compensation in 2016 from “non-state” sources, according to public records.
Without supplemental compensation from Mercatus, GMU faculty compensation appears to be uncompetitive with comparable institutions. Thus, working at GMU may not have made sense financially for economists or law professors who were unlikely to obtain Mercatus compensation supplements—i.e., those whose scholarship might support increases in taxes, an expansion of public investment or social insurance, or more stringent regulations of business. At least one moderate economics faculty member says that she “carefully chose [her] research so it wouldn’t be objectionable” to her more conservative colleagues.
In researching this article, I corresponded with multiple senior administrators and faculty members at Mercatus and GMU. None of them were able to provide a single example of an economically progressive faculty member who received a Mercatus Chair or Professorship. Mercatus and GMU were similarly unable to provide examples of Mercatus summer stipends funding economically progressive research by reputedly progressive scholars.
This is extremely unusual for an academic law and economics center. For example, The John M. Olin Foundation funds the work of many scholars who simply embrace the methodology of economics, regardless of their political leanings or the policy implications of their research. It is easy to point to liberal or moderate scholars who have been beneficiaries of Olin generosity, such as Lucian Bebchuk or Robert Jackson, as well as conservatives such as John Lott.
There is no such thing as right wing or left wing physics or chemistry or mathematics. Universities do not run medical centers dedicated to the proposition that appendectomies are good for whatever ails you. Strong ideological priors and perverse incentives can be dangerous for science, especially when combined with imbalances in resources and opportunities for p-hacking (see also here).
Cash-for-influence arrangements are commonplace at think tanks, public relations and advertising firms, and increasingly media organizations which are not financially self-sustaining. (see also here and here). Lawyers and lobbyists are openly and unabashedly paid advocates. But notwithstanding the frequency with which faculty members consult or serve as paid expert witnesses, cash-for-influence remains taboo at universities, which Albert Einstein once compared to “Temples of Science.”
Society needs universities to aspire to be objective, neutral, and rigorous precisely because we are constantly inundated with paid advocacy, often of dubious quality. Telling the difference between high-quality research and propaganda can take more time and effort than most members of the public or policymakers can afford to spend. Many rely on shortcuts such as: ‘university-based research can be trusted, but activists, lobbyists, public relations, and think tanks cannot.’
Critics have suggested that the titles of non-university researchers fully funded by Mercatus “sound . . . a lot like . . . academic post[s].” This might have led to public confusion about those researchers roles, their level of job security and insulation from donor pressures, and how they were vetted. In some cases, such individuals received 97 percent of their compensation form Mercatus and only 3 percent from George Mason.
With think tanks’ reputations for independence badly damaged, the appearance of an academic affiliation may have enhanced Mercatus-funded researchers credibility with the press and policymakers, just as the affiliation is now raising questions about George Mason.
Mercatus-sponsored researchers—including chair holders—were encouraged to share their views on specific regulations, bills, and statutes with congressional and federal agency staff over Mercatus sponsored-lunches. Frequent speakers at Mercatus policy events have advanced to high positions in federal government, including serving as a Commissioner of the Securities and Exchange Commission.
Excessive focus on the Koch family or libertarian or conservative donors more generally can blind the academic community to the potential hazards presented by equally powerful but more subtle donors. For example, the Lumina Foundation and Bill & Melinda Gates Foundation have quietly bankrolled a push for policy changes that may be at least as hostile to academic autonomy—and at least as at odds with an honest analysis of the data—as anything the Koch family has supported (more on this in future work).
Libertarians have argued that publicly acknowledging the existence of networks of libertarian organizations with common funding sources—several of which literally describe themselves as networks (i.e., the Atlas Network; The State Policy Network)—is a low blow, equivalent to wild-eyed conspiracy mongering. Many libertarians are aware of and discuss these networks privately, because of the professional, publicity, and fundraising opportunities they present.
The Koch Foundation asks its grantees to supply contact lists of conservative and libertarian students and faculty. Once again, this is generally considered taboo. Universities typically do not track their faculty or students’ political views, perhaps because of the enduring legacy of political purges of liberals and progressives during the Red Scare and McCarthyism, and because of recent claims of much milder forms of discrimination against conservatives.
In recent years right wing groups have used Freedom of Information Act requests to harass academic and government-based climate researchers—aggressive techniques that a progressive activist group ironically turned against George Mason to force funding disclosures.
The degree of control exercised by the Koch family and other donors—whether it was de facto control or mere influence over compensation and retention—is besides the point. Any control over faculty compensation in the hands of donors who are motivated by political or ideological considerations, as opposed to in the hands of impartial subject matter experts who are motivated by producing good science, violates academic standards of ethics and independence. A “free-market” think tank is likely to be especially controversial in a field like economics, which increasingly aspires to be objective, scientific and empirical. There are similar controversies surrounding allegedly inappropriate influence at state universities in Arizona and Florida.
Some conservative academics justify accepting politically discriminatory funding by convincing themselves that such funding is needed to correct liberal bias. Social and religious conservatives have good reasons to believe that they are outnumbered on many campuses (though this is could be due to self-selection rather than discrimination).
But social or religious values are not relevant here. Mercatus is not promoting social conservatism, but rather economic conservatism, which is not really related. Indeed, many religious leaders argue that free-market economics and religious faith are antagonistic because of the ways individualism and market pressures can undermine community, tradition, and family.
By contrast, in the U.S., economic conservatives—those who favor low taxes, a small public sector, deregulation and privatization, and market mechanisms—are already the dominant force in elite economics departments, business schools and law and economics programs. Many of these programs have their own stable of wealthy individual and corporate donors. Indeed, economically conservative views are so pervasive among donors that both mainstream political parties in the U.S. have embraced them, widening the policy gulf between the U.S. and the rest of the developed world. Thanks to this rightward shift, many modern Democratic leaders are (economically) more conservative than Republicans of the 1960s (see also here and here).
Ideologically-motivated funding only serves to push the median member of economics and law faculties further to the right. U.S. think tanks are even more skewed to the right, especially on economic issues (see also here, here, here, and here).
According to Pew, most scientists (including those working in the private sector) disagree with the statement that “when something is run by the government, it is usually inefficient and wasteful.” But this pro-market, anti-government assumption is common in law and economics. Most scientists—and most members of the public—doubt that business corporations “generally strike a fair balance between profits and public interest.” Yet economists tend to favor deregulation and privatization, as do many law & economics scholars, think-tank-based researchers, and donors.
Assumptions about private sector versus public sector performance are rarely tested through rigorous empiricism. But when they have been, for example in the case of charter schools, the results often do not support a strong presumption in favor of the private sector.
In fairness to George Mason, many universities struggle to balance the benefits of outside funding with ethical norms that mandate academic independence and intellectual integrity. That being said, the Koch family foundations and some other conservative donors probably were more demanding than most donors, and George Mason may have been more accommodating than most universities, in ways the University President now acknowledges “fall short of standards of academic independence.”
Universities should work together to face these challenges. Indeed, to have any chance of fending off those who see higher education as just one more industry to dominate, the academic community must build solidarity. We should strive to fix the problem, not the blame. But we must also recognize that some institutions and some researchers may be so corrupted or ideologically committed that they will place the interests of their donors or the pursuit of ideological purity above the ethical values on which public trust in the broader academic community depends. We must have the resolve and self-confidence to define the limits of acceptable behavior, to confront bad actors, and to collectively apply sanctions.
The George Mason Faculty Senate has recommended full public disclosure of grant agreements and a moratorium on expenditures from any new gifts that propose the use of temporary funds to create permanent faculty positions. These reforms seem like a reasonable place to start for George Mason, and perhaps for many universities in a similar situation to consider.
But the best way to protect universities from undue influence may be to secure and expand revenue sources that are indifferent to and cannot sway the conclusions of academic research, such as university endowment income, tuition, and non-discretionary public investment. The intellectual independence that comes with financial security would benefit all universities, as well as society more broadly.
The full story is available from the Associated Press. Coverage also appears in the Chronicle of Higher Education, (see especially here) The Washington Post, Inside Higher Education, and The Hill, Slate, and the New York Times, among others. Additional information is available at UnKoch MyCampus, an activist group which forced disclosure through a multi-year litigation effort. A letter from the Koch Foundation is available here. A letter from the Dean of George Mason’s law school is available here. A letter from Tyler Cowen, the current faculty director of the Mercatus Center is here. A letter from his predecessor is available here.
 Data from the General Social Survey suggests that compared to those with less education, college-educated individuals are actually more supportive of free expression (see also here). Universities protect the expression and evaluation of a much wider range of views than other institutions such as think tanks, media organizations, and corporations.
 Campaigns against universities amplify threats to academic freedom, such as erosions of tenure protections, politically motivated closing of university centers, and efforts to allow deadly weapons on campus, monitor, intimidate and control professors and students, force universities to passively provide a platform to speakers regardless of intellectual or scientific merit, and tax increases apparently targeted specifically at hurting universities for political or ideological reasons.
 This includes the Charles Koch Charitable Foundation, and may also include other Koch-family controlled foundations and also some re-granting organizations, such as DonorsTrust and Donors Capital Fund. Other Koch-family foundations include the Claude R. Lambe Charitable Foundation, Fred C. & Mary R. Koch Foundation, and the Charles Koch Institute.
 According to press reports, the structure used by the Charles Koch Foundation at George Mason created plausible deniability for the university regarding the level of control exercised by the Koch Foundation. The Koch Foundation was given 2 out of 5 board seats with respect to the selection and termination of chairs. The 2 out of 5 seats apparently meant that a faculty member favored by the Kochs would only need support from one of the three independent board members to receive a chair, whereas a faculty member out of favor with the Kochs would require unanimity to have a bare majority. Koch affiliated board members may have also facilitated communication and information sharing with the Koch Foundation and lobbied other members of the committee. The arrangement resembles strategies used by activist investors who want de facto control over a target company without the obligations, financial costs, and liability that come with majority control. George Mason says that more recent agreements with the Kochs no longer feature some of the objectionable provisions.
Critics say additional levers of control over academic appointments and research for donors at Mercatus and George Mason include rights of major donors to rescind their gifts, including “Key-man” clauses if certain senior administrators are removed or resign. Key-man clauses are common in research funding for principal investigator with unique and essential technical skills or institutional knowledge for a particular project. Such clauses are less common for those in executive leadership positions. Similar key-man contractual provisions were used to entrench Roger Ailes at Fox News.
Executives at Mercatus may have had a disproportionate amount of influence over research topics. Chair holders were encouraged to produce “a research project . . . decided jointly with the President and General Director of Mercatus, and which is closely related to the [Mercatus] Center’s mission.”
Given the large donations the Kochs have made to George Mason’s law school and economics departments over the years, those units strong interest in attracting future donations, the explicit ideological orientations of many of the faculty in those units, the Kochs may not have needed board seats to exercise influence. However, the Koch family has used board seats and lawsuits to assert greater control over libertarian think tanks such as the Cato Institute. Cato does not seem to have been very independent to being with, considering their advocacy on climate change and tobacco and undisclosed donations from donors’ with financial interests at stake.
 In at least one case, funds for a “chair” were used to create a “Senior Research Strategist” position for an individual with extensive experience in conservative policy circles, but more limited academic experience. Democratic Senators have unflatteringly described this individual as “an anti-government zealot” and as “ideologically opposed to Social Security”—assessments echoed, rightly or wrongly, by a reporter at the Los Angeles Times.
 A chair in women’s studies or international human rights might imply analogous ideological prerequisites. But politics is more troubling in economics, which aspires to scientific objectivity.
 Senior administrators and media relations experts at Mercatus and GMU were unaware of any such limits.
 Private grant-making organizations from which I have received funding limited summer stipends to 2/9ths of base salary and teaching buyouts to regular annual salary.
 Non-state sources could be broader than just Mercatus.
 For example, base salary from state sources for prominent senior faculty at GMU’s law school appears to be relatively low compared to compensation of faculty at similar seniority levels at similarly ranked institutions in similarly high-cost of living areas, such as the University of Maryland or UC Davis. In the interest of propriety, I will not discuss any individual compensation numbers.
 Conservative and libertarian predominance at George Mason’s economics department and law school appears to have fostered a distinctive, rough-and-tumble culture. One member of the economics faculty provocatively compared redistributive taxation and pilfering food when hungry to rape. In correspondences with one GMU law professor about my last post, which critiqued techniques used by conservative activists to build support for regulating universities, a GMU professor compared my admonishments to accusations of child abuse, domestic violence, and neo-Nazism. Thankfully, this lack of decorum is not universal—in my experience, the Dean of George Mason’s Law School, Henry Butler, conducts himself as a courtly gentleman scholar, and Tyler Cowen, the faculty director of the Mercatus Center, is a thoughtful and lively scholar. Nevertheless, it is easy to imagine how moderate or liberal faculty members could find the environment at George Mason inhospitable.
 There are examples of prominent libertarian GMU faculty members offering tepid support for liberal policies such as a carbon tax (in lieu of more restrictive pollution limits) or quietly criticizing specific technical aspects of conservative tax legislation.
 One example of such a title is “senior research fellow and director of the Financial Markets Working Group at the Mercatus Center at George Mason University.”
 Theoretical or model-driven economics is increasingly viewed as a preliminary step on the way to empirical studies. Similar trends are at work in law, albeit at a slower pace.
 The sample consisted of members of the American Association for the Advancement of Science (AAAS), the world’s largest general scientific society. It was not limited to University-based or government scientists, but rather included those in the private sector.
 Defenses of George Mason which amount to flat out denial of any ethical lapses, and claims that George Mason is the victim of liberal bias, suggest a lack of self-awareness and are not conducive to rebuilding trust. Conservatives are not being singled out for criticism. Many universities have been criticized for appearing to covertly advance the interests of non-conservative donors, such as tech companies or the sugar industry.
A well-organized campaign to bait, discredit, and take over universities is exploiting students and manipulating the public
UPDATE 5/24/2018 The Role of GMU's Law School
George Mason Law professor David Bernstein has responded on the Volokh Conspiracy at Reason Magazine. The gist of Professor Bernstein's response is to blame the GMU Economics department for funding improprieties and to claim that the law school never had a relationship with the Koch network of conservative donors that would raise ethical concerns.
That would not be a fair assessment based on the information that is currently available. A key-man clause discussed above specifically mentions the dean of the law school, Henry Butler. I was not explicit about this in an earlier version of this post because I wished to be polite. However, in light of Professor Bernstein's response, I recognize that I need to be clear and explicit.
Bernstein acknowledges that two law faculty members currently have affiliations with Mercatus, which come with funding, Mercatus titles and other support. Law school faculty who are associated with Mercatus have titles (i.e., "Senior Affiliated Scholar" and “Senior Scholar”) that sound similar to titles given to individuals with donor-funded positions (i.e., "Senior Research Strategist").
Chairs and other funding and support opportunities were only made available to conservative and libertarian faculty on good terms with donors. Other law faculty may have held Mercatus chairs in the past. Even the possibility of obtaining a chair or other funding through a competitive process can exert a pull on many faculty members who do not currently have one. Small amounts of funding can exert an influence because of norms of reciprocity. Law faculty may also receive summer stipends or other supplements or support from Mercatus.
In addition, several law faculty members receive compensation supplements from the George Mason University Foundation, which has received over $27 million in funding from conservative donors (including many with links to the Koch network), according to Data from Conservative Transparency. These groups include Donors Trust and Donors Capital, "donor advised funds" that help mask the identity of donors, but which have been widely reported to be extensively used by the Koch family and other conservative donors in their network. It is unclear how much GMUF funding has gone to the law school. David Bernstein emailed me to say that some funding from GMUF for the law school came from real estate sales, but was unable to confirm that none of the funding came from groups linked to the Koch network.
In writing the article above, I asked GMU and Mercatus what proportion of their donations (in dollars) came from individuals or groups with no business or philanthropic links to the Koch family. They declined to provide this information. But they did point out that similar contractual clauses which created the perception of excessive donor influence were present in grant agreements with other donors. I agree that it makes sense to consider the role of a broad network of donors rather than just the Koch family. However, the large sums that the Koch family donates and their influence with other conservative donors will understandably attract attention.
According to Conservative Transparency's data, even ignoring donations to GMUF and to GMU, the GMU law school itself has specifically received close to $4 million from conservative/Koch network donors (not counting the renaming gift). At least $300,000 was donated to the George Mason Environmental Law Clinic, which reportedly used the legal system and FOIA to harass climate scientists. A pivot table showing funding from groups with strong links to the Kochs to George Mason and its affiliates is available here. A broader list of conservative donors is available here. A description of Conservative Transparency's data and its limitations is available here.
UPDATE 1/25/2019: The association between The George Mason Environmental Law Clinic and GMU's Law School
The George Mason Environmental Law Clinic has attracted scathing press coverage for its aggressive tactics targeting climate scientists. The Clinic was then rebranded as the Free Market Environmental Law Clinic, which a few years later was folded into The Energy & Environment Legal Institute (E&E Legal) (formerly the American Tradition Institute (ATI)). E&E Legal is led by many of the same individuals and pursues a similarly aggressive approach of using the legal system to harass climate scientists. E&E Legal's precursors and affiliates (i.e., ATI) have also gone through extensive rebranding following negative publicity for aggressive and arguably abusive tactics. E&E Legal and / or its precursors are reportedly funded in part by Oil, Gas, and/or Coal interests.
The extent of the links between George Mason University School of Law (Antonin Scalia Law School) and The George Mason Environmental Law Clinic / Free Market Environmental Law Clinic / E&E Legal remain a matter of some dispute. I was contacted earlier this week by a faculty member at George Mason University School of Law who requested that I delete from the post above any mention of a connection between the Free Market Environmental Law Clinic and George Mason University School of Law. He noted that they are legally distinct entities with separate mailing addresses.
However, the Clinic and the Law School appear to have overlapping personnel and funding sources. The "Law Clinic Director" David W. Schnare also taught as an adjunct professor at George Mason University Law School. The Clinic apparently provided academic credit to George Mason University law students through an "externship" program.
However, legal "externships" at the George Mason Environmental Law Clinic / Free Market Environmental Law Clinic appear to have been staffed exclusively by students at George Mason University School of Law. I spoke with David W. Schnare, who was the Law Clinic Director. Although he initially claimed that other law schools in the D.C. area sent externs to work at his organization, he was unable to provide the name of any ABA approved law school other than George Mason that sent students to extern at the George Mason Environmental Law Clinic / Free Market Environmental Law Clinic. My contacts at George Mason were also unable to provide such information. My research assistant, who has attempted to reach out to other Washington D.C. area law schools, has yet to report finding a law school that reports that it allowed student externs to work at these organizations for academic credit.
By offering academic credit for externships, George Mason University would enable students to provide free labor to the Clinic without the Clinic violating the Fair Labor Standards Act. (Externships are regulated under ABA guidelines and require oversight and approval by a law school). My contacts at George Mason have thus far declined to provide information about whether George Mason continues to send students to work as unpaid externs at E&E Legal. They have also declined to opine on whether giving students academic credit for using the legal system to harass climate scientists would be appropriate behavior for a law school.
Sourcewatch reports that the George Mason Environmental Law Clinic was in a "Partnership with George Mason University School of Law" citing the following text which appeared on the Free Market Environmental Law Clinic's website from around 2013 to 2016, but has since been removed:
"Originally incorporated [in 2011] as the George Mason Environmental Law Clinic, the Directors of FME Law engaged in a friendly and supportive discussion with the Dean of the George Mason University School of Law and recognized that the clinic could better perform its function by servicing multiple law schools as a stand-alone clinic. The Board thus directed a name change to reflect this broadened purpose. Until completion of the legal transition to its new name, the Clinic is doing business as the Free Market Environmental Law Clinic but must retain its original name for banking and tax purposes.
In choosing to operate as a law clinic independent of any specific law school, it replicates the successful approach used by many other law clinics. It remains in close cooperation with George Mason University’s School of Law and provides both academic courses and clinical opportunities for GMU Law students and is expanding its externship program to other law schools that have a doctrinal focus on law and economics.”
The George Mason Environmental Law Clinic pursued FOIA requests and lawsuits targeting climate scientists as early as 2011 (see here and here), including during a period when it claims to have had a close affiliation with George Mason University School of Law.
Although the request from the law school Dean that the Clinic change its name apparently came in or around 2013, the official legal name of the clinic remained the George Mason Environmental Law Clinic as late as 2015.
Schnare informed me that his clinic initially considered a closer relationship with George Mason University School of Law, but declined when the dean of the law school requested a veto over the cases he could bring. Schnare's successor as Executive Director of the Free Market Environmental Law Clinic, Chaim Mandelbaum, graduated from George Mason in 2013 and began officially working at FMELC in 2014.
Chris Horner, who worked at a series of organizations that used the legal system to target climate scientists (including the George Mason Environmental Law Clinic / Free Market Environmental Law Clinic; E&E Legal / ATI; and The Competitive Enterprise Institute (CEI)) pursued Professor Edward Maibach, a Professor of Climate and Public Health Communications at George Mason University, around 2015 or 2016.
According to Schnare, the request from the dean of George Mason law school to change the name of his clinic was not related in any way to lawsuits against scientists working at other parts of George Mason University.
For more reading see, Aaron Ley, Mobilizing Doubt: The Legal Mobilization of Climate Denialist Groups, (2018).
The post above has was clarified at the request of a faculty member at George Mason University. Some language relating to law school faculty members' affiliations with the Mercatus Center and the relationship between George Mason University School of Law and the George Mason Environmental Law Clinic / Free Market Environmental Law Clinic has been edited to be more precise.