Law & the Courts

Trading Places on Civil Liberties

David Koch in 2012 (Brendan McDermid/Reuters)
Can the Koch brothers take over the pro-freedom space once held by the ACLU?

Early in the 2010s, Charles and David Koch ramped up their contributions to civil-libertarian causes. The Kochs had long advocated reforms to the criminal-justice system, providing seed money for the Institute for Justice and, after their refinery company pleaded guilty to a felony in 2001, donating to groups such as the National Association for Criminal Defense Lawyers. By 2010 their interest had intensified, and they took up the causes of sentencing, civil forfeiture, and prison reform at the state and national levels. This shift into higher gear attracted plenty of publicity — and skepticism: The Kochs, after all, were the inheritors of Richard Mellon Scaife’s bogeyman status. The idea that they might cavil at unfair sentences or mind seeing innocents imprisoned was hard for some to grasp. Didn’t the Kochs love that sort of thing?

The netroots, the legacy media, and the Democratic party’s leadership spent the years of the Obama administration casting the Koch brothers, who made their fortune in old-fashioned fossil fuels, as puppeteers. The brothers became the men behind the curtain, manipulating the masses, buying elections, bankrolling conservative activism, and controlling an infinitely influential political network. The tentacles of the “Kochtopus” were wrapped around every sinister political cause; Jane Mayer’s 2010 profile is the representative example. But now the Kochs were doling out six-figure grants to public defenders, funding scholars who studied prison reentry and the excesses of federal drug laws, and partnering with the Pretrial Justice Institute to advocate bail reform. Mayer suggested in 2016 that this was simply a “rebranding.”

But the Koch brothers’ support for civil-libertarian causes is consistent with their longstanding skepticism of an overweening state, and their support for criminal-justice reform has not abated. Meanwhile, the Charles Koch Foundation (and its education-focused twin, the Charles Koch Institute) has redoubled its support not only for criminal-justice reform but also for other issues long held dear by civil libertarians, at a time when civil-liberties stalwarts are changing priorities — or compromising their principles to satisfy political objectives. As civil-liberties groups such as the ACLU change their tack, the Kochs are repositioning themselves as modern-day individual-rights activists.

Take mens rea reform, coming in the form of legislation floated toward the end of the Obama administration to strengthen the mens rea requirement of most federal crimes. The ACLU had once been a reliable critic of lax mens rea standards, under which people could violate arcane statutes without being aware of it, but this bill was opposed by a broad liberal coalition, with the ACLU at its forefront. Why? ACLU executive director Anthony Romero argued that the provision would “do little to help the vast majority of the 2.2 million people behind bars in America and those soon to be incarcerated,” a clear statement of the group’s class priorities. Mens rea reform helped the wrong group.

The Kochs, and several groups in their network, continued to support the measure and met with criticism from those same civil-rights groups. What had once been an obvious civil-libertarian principle was now tarred as a handout to white-collar criminals by those ostensibly committed to defending the rights of private citizens against prosecutorial adventurism.

Or take the due-process wars on college campuses. Weeks ago, the Betsy DeVos–led Department of Education issued guidance overturning the Obama administration’s “Dear colleague” letter. The Obama administration had reinterpreted Title IX to direct schools to use a “preponderance of the evidence” standard in sexual-assault proceedings, ushering in an era of sexual-harassment and sexual-assault kangaroo courts. The move by the government seemed to mark a return to the days of star chambers leveling anonymous charges against prisoners unable to face their accusers and defend themselves. But within minutes of the release of the Trump administration’s 149-page guidance, the ACLU criticized the measure: first on Twitter, saying it “improperly favored the accused,” and then in a statement on its website that echoed the line.

Here again, the once-plucky ACLU obediently toed the line. But groups such as the Foundation for Individual Rights in Education, a recipient of money from donors across the political spectrum (including the Kochs), praised the decision; FIRE had been instrumental in documenting the abuses of the previous system. What had once been an obvious civil-libertarian principle was labeled a sinister tool to attack “survivors.”

The two groups cannot be strictly compared. The ACLU is a legal-advocacy organization that litigates cases in order to change policy. The Koch Foundation sponsors various nonprofits, civil-society groups, and scholars. But it’s clear that the underlying ideas informing the ACLU’s activity have deviated from the formerly stalwart defense of due process and free speech when these conflict with political imperatives, while the Kochs fund groups committed to the classical iterations of these ideas. The ACLU differentiates between friends and enemies, while the Kochs are happy to champion the rights even of those who don’t like them.

All this might sort itself out over time, with the Kochs emerging as the new avatars of constitutional protections. But it’s quite a long way from today to that shift. The danger in the meantime is that the Kochs’ old associations, deserved or not, could turn off moderate or liberal Americans who might otherwise be inclined to support the reforms. Attitudes toward free-speech and due-process protections have already begun to sort along partisan lines, with progressives finding reasons to criticize the neutral application of these principle while conservatives invoke them, occasionally cynically. The effect of a group with the ACLU’s reputation standing up for controversial things, whether free speech for neo-Nazis, unlimited independent expenditures on political elections, or due-process protections, cannot easily be duplicated. So its abdication in many areas of civil liberties is not something to celebrate.

But one thing is clear: As the ACLU’s new identity as a partisan advocate of progressive causes coincides with its hesitancy to defend civil liberties, others will be there to fill the vacuum. Even the Octopus’ tentacles.

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