Investigative Report: Koch Industries and the Wisconsin Judiciary

As part of an investigation involving open records requests regarding Wisconsin Supreme Court Justice Michael Gableman and his campaign financial supporters, Badger Democracy has discovered that the Koch brothers’ influence on the judiciary has been active in Wisconsin – aided by supposedly “non-partisan” justices. This practice confirms a report first published by John Fialka in the Wall Street Journal in 1999, which characterized the “law and economics” courses originated by Koch Industries in 1995:

The topic: hard-nosed, market-based economics, a
subject Judge Corrigan says he never took in
college. “Talk about a mental challenge,” the judge
raves.
Equally interesting, however, was the identity of
the founder and key patron of the two-week
seminar: a Koch family foundation headed by an
official of Koch Industries Inc. of Wichita, an oil,
natural gas, minerals and agribusiness giant that
aggressively lobbies government.

This class, taught by Henry Butler, came to the Wisconsin Judicial Conference 12 years after the publication of the WSJ report, at the 2009 Judicial Conference. With the help of methodical and systematic co-opting of academicians and institutions, Koch influence came to Wisconsin, still under the radar in 2009 – with a little help from a “non-partisan” judge…from Waukesha County.

  Documents obtained by the Wisconsin Judiciary Education Board confirm that Justice Michael Gableman has fulfilled his required continuing education hours by attending State Judicial Conferences for the years 2008 , 2009 , 2010 , and 2011  (links to conferences agendas attached). In almost all cases, seminars at these conferences deal with non-partisan matters of law, changes in legislation affecting sentencing, etc. For example, at the 2010 conference (link, above), seminars were held pertaining to new OWI laws, updates on deferred compensation and early retirement planning; at-risk restraining orders, and increasing prison populations and sentencing issues. One year before Scott Walker would be elected to office, and Koch Industries would become a household name connected with political influence, a Waukesha County Judge brought a known Koch Industries “academician” to present his “Law and Economics” program to the 2009 State Judiciary Conference.

Judge Paul F. Reilly is an Appeals Court Judge in District II, Waukesha County. While the office is supposedly non-partisan, Reilly is a known Republican. In the 2010 election, Reilly received the endorsement of the heavily Republican-conservative Wisconsin Family Action PAC, applauding his bringing “…respect for the law and the separation of powers to this key judicial position.”  The twisting of “separation of powers” meaning was key to conservatives in defending the overreach of Act 10 enactment, and their legal opining that courts could not intervene – even in light of constitutional challenges. According to Judicial Education Commission staff, Reilly “pushed hard” for Henry Butler’s seminar on Law and Economics to be included in the 2009 program. A non-partisan judge, lobbying for a seminar created, and paid by Koch Industries in 1995, focusing on Friedman principles of “free-market economics.”  Butler moves from one university to the other with private funding. In 2009, the program was at Northwestern University. Now, the Law and Economics program resides at George Mason University – but always under the direction of Henry Butler.

Henry Butler is a known conservative and free market proponent-economist. Butler had a long affiliation with the American Enterprise Institute, having been the former director of the “Judicial Education Program.” In 1992, Butler left George Mason University to accept the “Koch Distinguished Professor of Law and Economics” at the University of Kansas – funded entirely by a generous grant from the Koch Foundation. While at the U of K, Butler developed his course, with money, support, and influence on policy from the Kochs. In its formative stages, U of K received over $2 million dollars in private endowments from the Koch Foundation for the “Judicial Education” Institute (pgs. 18-20 of the document).

A report by Bruce Green prepared for the Koch Foundation in 2004 (pgs. 18-28 of the document) discloses that Butler, with Koch support and money, began developing, publicizing, and teaching a course with the intent of influencing state judicial opinion – with the express goal of gaining “free-market” supporting decisions at the all-important state level. Bruce A. Green at that time was the Stein Professor of Law at Fordham University School of Law and the director of the Louis Stein Center of Law and Ethics. The original study conducted by Green, upon which this report was based, was based on the following report: Bruce A. Green, Ethics of Judicial Education: An Analysis of Private Charitable Gifts for Judicial Learning (Oct. 15, 1999). The report was prepared for three foundations-the Charles G. Koch Foundation, the Claude R. Lambe Foundation, and the Fred and Mary Koch Foundation, which retained the author to render, on a compensated basis, a report on the propriety of private foundation support for judicial education programs. Additionally, this study drew on the author’s remarks at a program entitled “Continuing Education for Federal Judges: Purpose, Problems and Public Perception-The Controversy Examined.” The Conference was sponsored by the American Bar Association (ABA) Standing Committee on Federal Judicial Improvements at the ABA’s annual meeting in Chicago on August 5, 2001.

Henry Butler, heading the Law and Economics program now at George Mason, keeps the espoused principles grounded firmly in the conservative principles of an unrestrained, free market capitalism – without regulation getting in the way. The reading list for the program is indicative of that bias – many of the readings are required reading for the American Enterprise Institute. The video introduction of the program gives a synopsis of the mission – train judges to rule in favor of  in matters of particular interest to big business, monopolies, trusts – the Kochs of the world.

Butler was a key “scientific expert” who testified and created “studies” friendly to big tobacco during the 1980’s hearings. This from “Corporate Corruption of Science”:

Butler seems to be a well-known partisan economist and law professor, who is active in Republican circles, and who associates himself closely with many of the more powerful right-wing think-tanks, policy groups and societies. He clearly has aspirations to be a Republican Congressman like his father, but (judging from his work record) he probably doesn’t stay long enough in any one university to establish himself with the local GOP officials.

As an academic, he certainly has the ability to move in the right corporate/wealth sectors, and he belongs to the organizations which are able to attract money from those who wallow in it. He has received grants/fellowships from the Koch, Olin, Coor and Scaife-funded organisations, and he currently serves on the:

• Legal Advisory Council of the American Enterprise Institute’s Legal Center for the Public Interest, 
• Advisory Council of Atlantic Legal Foundation, 
• Legal Policy Advisory Board of the Washington Legal Foundation

Indeed, Butler ran as a Republican for Congress (Virginia) in 1992, and lost – despite a $1000 contribution from David Koch.

Quietly, Koch political dominance has emerged over the past decade. According to the Wisconsin Judicial Education staffer, Judge Reilly had seen Butler deliver his program in Chicago – likely true, as Butler was at Northwestern at the time. Being a lifetime conservative ideologue, Reilly would have known the premise of the “Law and Economics” program, as well as Butler’s reputation and connections with Koch Industries. If Reilly was on a scouting mission to vet the program for presentation in Wisconsin, it is merely conjecture – Reilly three times refused comment on the subject, in requests for interviews.

When one considers the role ideologically conservative judges have played in the power grab in Wisconsin this past year – especially those in and influenced by Waukesha County politics; the genius and deviousness of the Koch plan is apparent. The influence of Henry Butler and Koch ideology on some justices cannot be overstated – and will continue for years to come, until this program is rejected by academia and universities as unilaterally political propaganda – not legal study, and Judges like Reilly are exposed for the political ideologues they are – not members of a non-partisan judiciary.

Next time a Republican screams judicial partisanship about a “radical” Dane County Judge, ask them about Henry Butler and Koch Industries, and Paul Reilly.