The Koch network, a web of rightwing groups cultivated by billionaire businessman Charles Koch and his late brother David Koch, is spearheading the attack on federal agencies and government regulations that dominates the US supreme court agenda this term.
The network has been working behind the scenes to bring cases before the court that, if successful, could undermine many of the core functionings of the US government. At least two of the biggest cases to be considered by the justices this term have been spurred by groups bankrolled and coordinated within the Koch universe.
Footage of an internal panel discussion between senior operatives from Koch entities held in the summer of 2022 reveals that the network has been quietly planning the current assault on the “administrative state”. The groups are seeking to exploit the supreme court’s new six-to-three rightwing majority secured by Donald Trump to dismantle vital executive powers.
Regulatory controls in their sights include environmental standards to combat pollution and the climate crisis, consumer protections against predatory lenders, and safeguards for workers’ rights. At stake is what the Strict Scrutiny podcast has called “the future of government as we know it”.
The footage, which is made public here for the first time, was obtained by the investigative watchdog Documented and shared with the Guardian. During the 37-minute panel discussion, legal strategists with several Koch-related groups expressed excitement that the new hard-right supreme court supermajority has created the potential for a concerted attack on the functions of federal agencies.
Jorge Lima, an economic policy strategist at the Koch network’s central coordinating group, Stand Together, said that the new composition of the court amounted to a huge “landscape opportunity, particularly on the administrative state. We’re doubling down on this strategy.”
Lima added: “Every dog has its day, and it’s a big day for the administrative state.”
Casey Mattox, a legal strategist at the main Koch advocacy group, Americans for Prosperity, argued that the supreme court was now “primed for a real change in the law” on federal regulations which he said amounted to a “paradigm shift”. Mattox said: “That’s why we are partnering with organizations that can get the right cases to the supreme court."
The effort appears to have born fruit. Two of the most significant cases before the court in the 2023-24 term, brought with the backing of Koch-linked organizations, attempt to rein back the government’s power to impose regulations on corporations.
The prominence of the cases underlines how the libertarian empire created by the Kochs is still a force to be reckoned with within US politics. Since David Koch’s death in 2019, and the Koch network’s decision to come out in opposition to Trump ahead of next year’s presidential election, the network has receded from public attention.
But the scope of Charles Koch’s reach remains formidable, as was demonstrated earlier this month when the 87-year-old told Forbes that he had given $4.3bn of his Koch Industries stock to Believe in People, a newly-created group named after his book of the same title. He has transferred a further $975m to another new entity, CCKc4, which carries the initials of his son Chase Koch.
The massive combined $5.3bn in donations, one of the largest acts of giving to non-profits in US history, will ensure that the Koch influence will continue to push the US to the right for years to come. Undermining government regulations is central to those ambitions.
Lisa Graves, the executive director of the progressive watchdog True North Research who is a long-time Koch watcher, said that Charles Koch has shown a “fundamental hostility to government regulation” since his early political writings in the 1960s. “This is the through-line of his career. His business operations have a substantial self-interest in assailing regulations that impede his profits.”
Koch Industries is a conglomerate of energy and chemicals companies that stand to benefit if controls on pollution, workers’ rights and other aspects of public governance are rolled back. The firm is the second largest privately-owned company in the US.
Among the big administrative state cases that the justices will be considering this term is Loper Bright Enterprises v Raimondo, which seeks to overturn a 40-year precedent set by the supreme court itself. Known as Chevron, the ruling allows federal agencies the flexibility to reasonably interpret laws without interference from the courts as they regulate critical parts of public life, such as the environment and public safety.
Experts have warned that if Chevron is struck down, it could be a recipe for legal and administrative chaos. “We are talking about rules that protect us in so many ways – truckers who are too tired to drive on the highway, unsafe workplaces, and pollution of our water and the air we breathe,” Graves said.
The case was nominally brought by a New Jersey herring fishing company that objected to being charged by a federal agency that monitors its catch to prevent over-fishing. Behind the challenge is a conservative group called Cause of Action, which is intricately tied to the Koch network.
The chair of Cause of Action’s board, Brian Menckes, is general counsel of the Charles Koch Foundation. Cause of Action’s executive director, James Valvo, who is acting as one of the fishing company’s lawyers in the case, is the former head of policy of Americans for Prosperity.
A second lawyer representing the company, Eric Bolinder, holds dual roles as a counsel for Cause of Action and Americans for Prosperity.
In 2021 Cause of Action’s entire income of $375,000 came from Stand Together, the Koch network’s coordinating group, Bloomberg reported. The groups are also physically close: Cause of Action and Americans for Prosperity not only share the same address in Arlington, Virginia, they occupy the same office – suite 700.
Bolinder was one of the panel speakers at the 2022 Koch discussion on the administrative state. He framed the plan to use the supreme court to launch a legal attack on regulatory government as a states’ rights issue.
“As the federal government grabs more and more power, particularly to the regulatory state, the states become less and less important,” he said.
The Guardian contacted Stand Together and Cause of Action for comment. Cause of Action did not immediately reply.
Gretchen Reiter, Stand Together spokesman, said that the Loper Bright case was seeking “to restore one of the core tenets of our democracy: that Congress, not the administrative agency, makes the laws. Cause of Action Institute – which filed the lawsuit in 2020 – is representing family-run fishing companies that the federal government is forcing to pay a tax that Congress never authorized, and that violates our constitution’s separation of powers.”
Last week, the supreme court accepted a second case also challenging the Chevron precedent, which has now been consolidated with the fishermen’s petition. Relentless v Department of Commerce was also filed by a group with intimate connections to the Koch network, the New Civil Liberties Alliance (NCLA).
The organization, which claims to “protect constitutional freedoms from violations by the administrative state”, was founded in 2017 with seed money from the Charles Koch Foundation. Over five years, it has received more than $5m from the Koch network.
NCLA’s president, Mark Chenoweth, previously served as in-house counsel for Koch Industries.
NCLA submitted an amicus brief last week supporting another major challenge to regulatory agencies that will be heard by the supreme court this term. Securities and Exchange Commission (SEC) v Jarkesy threatens to gut the enforcement power of the SEC by curtailing its ability to fast-track cases of securities fraud through its own in-house administrative law judges.
A ruling against the SEC could drastically reduce the ability of numerous government agencies to enforce environmental and other standards.
The footage of the Koch panel discussion obtained by Documented reveals that the NCLA has been secretly lobbying for the Jarkesy case to reach the supreme court. Mattox said that “NCLA brought a lot of value to that case”.
He went on: “You won’t see them actually directly litigating on that case, but they’ve done a lot of work behind the scenes, and that speaks to the way that our community adds value here, because when we partner with people we look for results, not necessarily for headlines and attention-grabbing.”
There is a further twist to the issue of Koch influence on the supreme court’s docket this term. Last month, ProPublica revealed as part of its expose of ethical breaches by some justices, that the right-leaning Clarence Thomas had attended at least two Koch donor events where funds were raised to forward the Koch network’s mission – which includes bringing cases before the court.
The attack on the administrative state is central to the work of Americans for Prosperity, which boasts of its years-long campaign to challenge what it calls the “out-of-control regulatory environment imposed by Washington”. It organizes bus tours around the country, directly relating “red tape” on energy infrastructure projects to the high cost of fuel at the pump.
This has taken place while oil and gas giants such as Exxon, BP and Shell have posted record profits, and the world has increasingly felt the impact of climate change. Americans for Prosperity calls itself “the nation’s premier grassroots organization”, but according to an independent audit report from 2021, 94% of the $112m in cash it received that year came from just two donors.
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