Exxon, Dow, and the Koch Brothers: Buying the Bench

A Center for Public Integrity investigation reveals that Exxon, Dow, the Kochs, the Chamber of Commerce and other corporate groups spent millions of dollars in recent years to send sitting judges to weekend seminars on corporate crime and other topics. Not only were the seminars heavily biased toward corporate-friendly interpretations of law, but some judges attending the seminars later presided over cases filed against the same companies.

The judicial junkets, which were organized by conservative bastions like George Mason University Law School, are another secretive piece of a long-term strategy that was first outlined by former tobacco industry attorney Justice Lewis Powell in a memo he wrote for the U.S. Chamber of Commerce.

Powell, a tobacco industry lawyer who composed the memo before he was appointed by Nixon to the Supreme Court, advised the corporate supremacists to take over the courts, which he described as “the most important instrument for social, economic and political change.”

The kind of change that the Chamber et al. have since could have astonished even Powell. Over four decades, the corporate-friendly “law and economics” movement — then a marginal insurgency with barely a toehold at the most prestigious law schools — has effectively achieved near hegemonic status in legal theory.

In practical terms, the Chamber sustained a perennial campaign (mislabeled “tort reform”) to eviscerate average people’s ability to hold corporations accountable through lawsuits. Injured consumers have a much harder chance of obtaining justice, while the industry succeeded in demonizing trial lawyers and even the victims themselves. (See, for example, the movie “Hot Coffee.”)

Organized judicial junkets are not a new idea. They were first exposed by Nan Aron and others since at least the 1990s.

The junkets were first organized by conservative legal activists like Henry Manne, a libertarian ideologue who established the Law and Economics Center at George Mason University Law School in the 1980s.  Manne turned the entire law school into a bastion of resistance to regulations and other restraints on corporate power, according to Steven Teles, author of The Rise of the Conservative Legal Movement.

Because he was motivated more by ideology than money, Manne claimed the junkets were designed to have a diffuse and “inchoate” effect, rather than a direct influence on any particular case.

Although the libertarian streak continues to exist, it’s hard to imagine the Koch Brothers, Exxon, Dow and the Chamber pouring millions of dollars into such programs without some kind of payoff.  (The Kochs have given more money to GMU than any other single institution since 1985.  GMU also sponsors libertarian institutions such as the Koch-funded Mercatus Center, which wages regular attacks on environmental and other regulations.)

Moreover, CPI points to clear examples of judges attending judicial seminars that were sponsored by companies that later appeared before the same judges in court.

U.S. District Judge Carl J. Barbier, for example,  “the Eastern District of Louisiana jurist [who was later put]  in charge of considering whether BP owes billions of dollars in fines for gross negligence leading to the 2010 Deepwater Horizon oil platform explosion and spill”  — attended a 2009 seminar called “Criminalization of Corporate Conduct.” The seminar was sponsored by the American Petroleum Institute and the Chamber of Commerce, among others.

In 2011, Barbier also dismissed a wrongful-death claim “in a suit brought against ExxonMobil and Chevron USA by the widow of a worker who was exposed to radioactive materials found on the companies’ equipment. …Barbier’s ruling came two years after he attended the corporate conduct seminar, [which was] funded in part by ExxonMobil and the American Petroleum Institute, according to documents.”

You’d think this cozy influence-penalty violate some kind of judicial ethics rule. In fact, years ago members of Congress introduced legislation that would prohibit judges from accepting “anything of value in connection with a seminar,”  but the bills died in committee because of corporate lobbying pressure.

Such ethical questions has meanwhile made a few deans uncomfortable. Northwestern University Law School (which CPI says has sponsored the second largest number of junkets in recent years behind George Mason) shut its program down in 2010, when Henry Butler, the program’s chief sponsor and an ideological scion of Manne, left for GMU.

Butler – a former “Koch Distringuished Professor of Law and Economics” at Univ. of Kansas – wrote an article describing Manne’s response to withering criticism of the seminars, when he pledged to the Judicial Conference that GMU would stop using corporate contributions to pay for judges’ direct expenses.”

However, little has changed. In recent years, Butler has used pass-through groups like Donors Trust (the same shadowy billionaire’s ATM that takes money from the Kochs and their right-wing friends).

If, as Justice Brandeis once suggested, “sunlight is the best of disinfectants,” then we should demand Congress reintroduce a law that would prohibit judges from going on these judicial junkets.

To learn more about how corporations influence the courts and what can be done to take them back for we the People, check out  Justice at Stake and the Alliance for Justice – two groups leading the fight for judicial accountability and reform.