A large number of wealthy corporate leaders have been
willing to expend their fortunes trying to eliminate the government and the social
contract under which they have acquired their wealth. This somewhat counterintuitive trend is
explained at length in Jane Mayer’s book Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right.
It is remarkable how many corporate leaders who have been
charged or threatened with legal actions because of crimes they have committed
are now ardent small-government, anti-regulatory enthusiasts. Apparently being fabulously wealthy is insufficient;
one must also be free from the inconveniences of the rules and regulations that
society has decided it needs. The Koch
brothers and their Koch Industries conglomerate provide the best example of
people who have sinned mightily and are willing to spend a lot of time, money,
and effort to ensure they can continue to sin mightily. Surprisingly, the mechanism for providing
themselves with this freedom is support for criminal justice reform.
The system of criminal justice in the United States is
certainly in need of reform. As crime
rates have fallen dramatically over the past few decades, financial and political
incentives have created an efficient mechanism for sweeping people up off the
streets, convicting them of trivial crimes, such as drug possession, and incarcerating
them for long periods. This development
has been accompanied by an almost complete lack of convictions for those who
commit crimes of corporate malfeasance. The
absurdity of this system has become apparent at all levels of government as
costs have become prohibitive. Bipartisan
attempts to address excessive rates of incarceration have arisen even in
dysfunctional Washington. Outrageously,
such attempts have come to naught because some Republican politicians are
insisting that their corporate overlords are in even further need of protection
from criminal prosecution.
Mayer provides an update on some relevant Koch brothers’
activities in an article for The New
Yorker: New Koch. The Kochs’ interest in criminal justice arose
from a criminal case brought against one of their facilities in 2000.
“In that case, a whistle-blower
who worked for a Koch refinery in Corpus Christi, Texas, told authorities that
the company had covered up the fact that it was “hemorrhaging” benzene, a known
carcinogen. The Justice Department mounted what David Uhlmann, who then oversaw
the department’s environmental-crimes section, has called “one of the most
significant cases ever brought under the Clean Air Act.” In a settlement, the
original ninety-seven charges were dropped, including criminal charges against
four company employees, but Koch Industries pleaded guilty to one count of
concealing information from the government about its discharge of benzene. The
company agreed to pay a ten-million-dollar fine, and to pay ten million more to
improve the environment in Corpus Christi.”
What most would consider a slap on the hand for an
insidious crime, was instead viewed by the Kochs as a dangerous overreach of government
power. The Kochs’ interest in criminal
justice is aimed at ensuring that they, and others like them, will never again have
to worry about prosecution for crimes.
“In 2004, the company gave the
National Association of Criminal Defense Lawyers money to help it start a new
initiative that would focus on ways to strengthen white-collar-criminal
defense. The initiative featured numerous joint projects with the conservative
Heritage Foundation, which also was determined to combat
“over-criminalization.” The anti-government tenor of the effort meshed
perfectly with the Kochs’ outlook.”
Advisors to the Kochs knew they would never attain their
goals if they acted blatantly in their own self interest. Consequently, they generated a strategy that
would ultimately allow their representatives to participate directly in
criminal-reform efforts. This included
support for programs that served the minority groups most affected by mass
incarceration.
“Norman Reimer, of the National
Association of Criminal Defense Lawyers, insists that the Kochs’ long-standing
support for criminal-justice reform ‘is deeply principled and not window
dressing…. Reimer acknowledges that until recently the company had funded
mainly programs involving white-collar crime. Reimer told me that for years he
had been asking Koch Industries to donate funds to support indigent defense,
but it didn’t do so until 2014. At that point, Reimer says, the company
provided a ‘significant six-figure’ grant to train and support public
defenders. That grant, while much needed, was less than a tenth of what Koch
Industries spent on its corporate-image ads that year.”
A few tiny investments provided the Kochs and their
allies with a glimmer of respectability, and allowed them access to legislators
working on policy changes. Rena Steinzor
records what transpired in an article for The American Prospect: Dangerous Bedfellows: The Stalemate on
Criminal Justice Reform (for some reason, it is not available online).
“In February 2015, a startling
collection of strange political bedfellows assembled to promote
mass-incarceration reform at all levels of government.”
“Fiscal and libertarian
conservatives (Koch industries, FreedomWorks, and Right on Crime) joined the
group to emphasize the urgency of cutting prison spending, which is about $80 billion
annually and unsustainable for many states, as well as the importance of
freeing nonviolent offenders from government control.”
“The coalition began with the
low-hanging fruit: reforms designed to eliminate mandatory minimums for
nonviolent drug offenders and to give judges more discretion in sentencing
other defendants.”
Progress was made and there was bipartisan support for passing
a bill out of the Senate Judiciary Committee.
It was at that point that the Kochs revealed their game plan.
“But then, after months of
closed-door negotiations to craft an acceptable compromise and on the eve of a
Senate judiciary committee vote, what [Senator] Whitehouse describes as a ‘Trojan
horse’ rumbled noisily on to the stage in the form of demands by Republican
Senator Orrin Hatch that the bipartisan group add provisions to weaken white-collar
criminal enforcement. This hidden agenda
was the central goal of the business conservatives, led by Charles and David Koch. The senators refused the provisions and the
committee passed the legislation without the amendment.”
The sinister logic of the Kochs held relief for mostly
members of the black and Latino minorities hostage to the demands of an extremely
small number of wealthy white people—who were not likely to ever be convicted
of anything anyways. When the Hatch amendment
was proposed to the House Judiciary Committee, where the republican majority is
greater, they were willing to consider them, and ultimately agreed to
incorporate those provisions in the House version of the bill. The Obama administration is in favor of the
Senate version, and the Department of Justice is “fiercely opposed” to the
Hatch provisions. It is not clear what,
if anything will come of this reform effort.
Mayer provides an assessment of what the Kochs have been
after.
“According to critics, the new
measures would unreasonably raise the standard required for the government to
hold corporate executives criminally liable for wrongdoing; the government
would have to prove that the executives hadn’t just committed a crime but
knowingly done so, even in instances of dire consequence to the public, such as
lethal pollution and unsafe food or drugs.”
“Uhlmann, the former Justice
Department official, warned, ‘For thirty years, Congress has insisted that
companies know their legal obligations, and that they fail to do so at their
own peril. This legislation would erode the venerable principle that ignorance
of the law is no defense.’ He went on, ‘While we need to reduce the Draconian
sentences imposed on nonviolent drug offenders, the Kochs are using
criminal-justice reform as a Trojan horse for their efforts to weaken
environmental, health, and safety regulations’.”
In effect, what the Kochs want is for prosecutors to have
to prove that individuals not only had committed a crime but also had criminal
intent. Intent is essentially impossible
to prove unless the offender is dumb enough to have written a notarized
confession.
Mayer even quotes Steinzor.
“Rena Steinzor, a law professor
at the University of Maryland, who argued for tougher treatment of corporate
crime in her 2014 book, “Why Not Jail?,” agrees with Uhlmann. ‘The Koch
brothers are playing a long game that has as its ultimate goal reducing the
federal government to a size so small it is difficult for us to comprehend,’
she warns. ‘It would literally be confined to currency, roads, and foreign
affairs. Public-health protections would be gone’.”
Mayer also quotes Jeffrey Winters, a political-science
professor at Northwestern University on why we should be concerned about the
ability of the wealthy to control our legislators.
“Winters notes that ‘one of the
greatest challenges in history has been to create legal governing institutions
that are stronger than the strongest people in society. Oligarchs have long
deployed their wealth and power to free themselves of constraints that others
in society face’.”
It is not clear who presently has more power—society or
the wealthy Koch brothers.
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