WRITTEN TESTIMONY OF MICHAEL SIMKOVIC Professor of Law & Accounting University of Southern California Gould School of Law Before the UNITED STATES HOUSE OF REPRESENTATIVES COMMITTEE ON THE JUDICIARY SUBCOMMITTEE ON THE CONSTITUTION AND CIVIL JUSTICE September 27, 2018 Hearing on “The State of Intellectual Freedom in America” 1 Chairman King, Ranking Member Cohen, and Distinguished Members of the Committee: Thank you for the opportunity to share my thoughts on intellectual freedom, political ideology, and the role of universities in civil society. I am expressing my individual views, not those of my employer, the University of Southern California. Table of Contents I. Universities’ scientific, economic, and cultural contributions depend on autonomy and political independence .......................................................................... 2 II. Universities and think tanks have discriminated in favor of conservatives and libertarian scholarship, sometimes at the behest of powerful donors .......................... 6 III. Empirical objectivity and neutrality is defined by the views of scientific experts, not by political triangulation ........................................................................................ 11 IV. There is little direct evidence of discrimination against conservatives or libertarians in academic hiring .....................................................................................14 V. University employees may be less likely to identify as Republican because of underfunding of universities.........................................................................................19 VI. Universities leaders’ moral values are often inspired by Christian faith ............ 23 I.   Universities’ scientific, economic, and cultural contributions depend on autonomy and political independence Albert Einstein once described universities as “Temples of Science” where “A finely tempered nature longs to escape [from the painful crudity of everyday life] into the world of objective perception and thought; this . . . may be compared [to] the silence of high mountains, where the eye ranges freely through the still, pure air and fondly traces out the restful contours apparently built for eternity.”1 There is no such thing as right wing or left wing physics or chemistry or mathematics. Universities do not and should not strive to track the shifting median policy position between competing political parties or kowtow to the preferences of donors or political leaders.2 1 Albert Einstein, PRINCIPLES OF RESEARCH (1918), http://www.indiastudychannel.com/attachments/Resources/67438-52231-Albert%20Einstein%20- %20Principles%20Of%20Research.PDF. 2 See, e.g., Justin H. Gross, Cosma Rohilla Shalizi & Andrew Gelman, Does the US Media Have a Liberal Bias? A Discussion of Tim Groseclose’s “Left Turn: How Liberal Media Bias Distorts the American Mind,” 10 PERSPECTIVES ON POLITICS 767–785 (2012) (critiquing a model that assumed that the media was biased if it disagreed with the views of elected officials). 2 Universities instead must strive to promote rigorous, objective research using the best data, the most qualified personnel, and the best analytic tools available. To help protect researchers’ and instructors’ independence and insulate them from undue pressure, universities grant productive faculty academic tenure.3 Nothing comparable is available to think tank researchers or journalists, who can be and have been fired for their views.4 To help academics correct our own mistakes we use peer review, replication, internal debate, and other checks. Universities’ efforts to expand human knowledge have contributed to innovation and economic growth,5 and to rising levels of prosperity and longevity. Education boosts 3 Erwin Chemerinsky, Is Tenure Necessary to Protect Academic Freedom?, 41 AMERICAN BEHAVIORAL SCIENTIST 638–651 (1998); Brian Leiter, Why Academic Freedom?, in THE VALUE AND LIMITS OF ACADEMIC SPEECH: PHILOSOPHICAL, POLITICAL, AND LEGAL PERSPECTIVES (2018), https://papers.ssrn.com/abstract=3083120. 4 Howard Kurtz, Conservative David Frum loses think-tank job after criticizing GOP, WASHINGTON POST, March 26, 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/03/25/AR2010032502336.html; Conor Friedersdorf, A Dissent Concerning Kevin Williamson, THE ATLANTIC, April 8, 2018, https://www.theatlantic.com/politics/archive/2018/04/a-dissent-concerning-kevin-williamson/484052/. 5 See DEREK BOK, BEYOND THE IVORY TOWER: SOCIAL RESPONSIBILITIES OF THE MODERN UNIVERSITY 138– 39 (1982) (discussing the importance of university research on technological innovations); JOHN A. DOUGLASS, THE CALIFORNIA IDEA AND AMERICAN HIGHER EDUCATION: 1850 TO THE 1960 MASTER PLAN 200–01, 1 (2000) (“We almost owe more of our economic gains in the last seven decades to investment in people than to saving and the amassment of capital. And the margin in favor of people is increasing.” (quoting John Kenneth Galbraith)); Philippe Aghion & Peter Howitt, A Model of Growth through Creative Destruction, 60 ECONOMETRICA 323, 324 (1992); Angel de la Fuente & Rafael Domenech, Human Capital in Growth Regressions: How Much Difference does Data Quality Make?, 4 J. EUR. ECON. ASSOC. 1, 1 (2006) (noting that the counterintuitive results on human capital and growth are partly due to inadequate data); Alan B. Krueger & Mikael Lindahl, Education for Growth: Why and For Whom?, 39 J. ECON. LIT. 1101, 1102 (2001) (arguing that studies that failed to find a connection between education and growth suffered from poor quality data, and that such relationships are evident with better data); Paul Romer, Endogenous Technological Change, 98 J. POL. ECON. S71, S71 (1990) (“[T]he stock of human capital determines the rate of growth [and] too little human capital is devoted to research in equilibrium.”); Jacob Mincer, Human Capital and Economic Growth (Nat’l Bureau of Econ. Research, Working Paper No. 803, 1981), available at http://www.nber.org/papers/w0803 Just as accumulation of personal human capital produces individual (income) growth, so do the corresponding social or national aggregates. . . . growth of human capital is both a condition and consequence of economic growth . . . . [h]uman capital activities involve . . . the production of new knowledge which is the source of innovation and of technical change which propels all factors of production. 3 earnings and employment,6 reduces burdens on public services,7 and through income and payroll taxes on skilled workers, helps fund the government.8 A large proportion of the benefits of education redound to public finances rather than to the educated worker. Education is generally a profitable public investment, not a mere expenditure.9 In fact, the public benefits from higher education in the United States are the highest in the developed world, while public costs are among the lowest,10 suggesting that public investment in higher education in the United States could profitably be increased.11 The United States’ universities are global leaders in innovation.12 The U.S. is a leading destination for international students.13 6 See Jacob Mincer, Education and Unemployment 22 (Nat’l Bureau of Econ. Research, Working Paper No. w3838, 1991), available at http:// papers.ssrn.com/sol3/papers.cfm?abstract_id=226736; W. Craig Ridell & Xueda Song, The Impact of Education on Unemployment Incidence and Re-Employment Success: Evidence from the U.S. Labor Market, 18 LABOUR ECON. 453, 462 (2011); See ORG. FOR ECON. CO-OPERATION AND DEV. (OECD), EDUCATION AT A GLANCE: 2011 OECD INDICATORS 116–17, Chart A7.1 (2011) [hereinafter OECD], available at http://www. oecd.org/education/preschoolandschool/educationataglance2011oecdindicators.htm (“Higher education improves job prospects, in general, and the likelihood of remaining employed in times of economic hardship.”). The differences in unemployment between those with post-secondary degrees and those without widens during times of financial distress. Id. at 118–20. 7 See OECD, supra note 6, at 165, 193. A large body of literature suggests that education is positively associated with a variety of social outcomes, such as better health, stronger civic engagement and reduced crime . . . . A small but increasing number of studies further suggest that education has a positive causal effect on these social outcomes . . . There is also research suggesting that education can be a relatively cost-effective means to improve health and reduce crime. Completion of postsecondary education is also associated with lower rates of bankruptcy filing. Abbye Atkinson, Race, Educational Loans and Bankruptcy, 16 MICH. J. RACE & L. 1, 2 (2010). High levels of education for spouses is associated with lower divorce rates, particularly if the education is completed prior to marriage. Torkild Hovde Lyngstad, The Impact of Parents’ and Spouses’ Education on Divorce Rates in Norway, 10 DEMOGRAPHIC RES. 121, 138 (2004); Jessie M. Tzeng & Robert D. Mare, Labor Market and Socioeconomic Effects on Marital Stability, 24 SOC. SCI. RES. 329 (1995). 8 OECD, supra note 6, at 165 (2011) (“Investments in education also generate public returns from higher income levels in the form of income taxes, increased social insurance payments and lower social transfers.”). 9 Id. at 158–60 (reporting that public and private benefits of education in OECD countries, including the U.S., greatly exceed public and private investment in education). 10 Id. at 165–67. 11 Michael Simkovic, The Knowledge Tax, 82 U. CHI. L. REV. 1981 (2015). The higher education earnings premium in the U.S. is often higher than expected returns in the global stock or bond markets. 12 Shanghai Ranking Academic Ranking of World Universities 2017 results announced, TIMES HIGHER EDUCATION (THE) (2017), https://www.timeshighereducation.com/student/news/shanghairanking- academic-ranking-world-universities-2017-results-announced; ShareAmerica, U.S. DOMINATES GLOBAL UNIVERSITY RANKINGS SHAREAMERICA, UNITED STATES STATE DEPARTMENT (2016), https://share.america.gov/u-s-dominates-global-university-rankings/; US leads China in latest global university rankings - University World News, http://www.universityworldnews.com/article.php?story=20171024082849549. 13 Philip G. Altbach, Higher Education Crosses Borders: Can the United States Remain the Top Destination for Foreign Students?, 36 CHANGE: THE MAGAZINE OF HIGHER LEARNING 18–25 (2004); Philip Altbach, Perspectives on Internationalizing Higher Education, INTERNATIONAL HIGHER EDUCATION (2015), http://ejournals.bc.edu/ojs/index.php/ihe/article/view/6975 (“International students are now a significant factor in U.S. higher education. Open Doors reports that more than a half million foreign students spend more than $11 billion on tuition and living expenses”); Institute of International Education, ENROLLMENT IIE, https://www.iie.org:443/Research-and-Insights/Open-Doors/Data/International-Students/Enrollment. 4 Ideology and political representativeness are not part of academic institutions’ mission. Academia is inherently skeptical of dogma or party platforms. Scientists believe in the pursuit of objective knowledge and truth, in adherence to standards of rigor and fairness, and in the elevation of facts above ideological or political priors. There is no such thing as “liberal” or “conservative” science.14 Today, a serious threat to academic freedom and intellectual integrity on university campuses comes from powerful donors and outside pressure groups who sometimes seek to subtly (or not so subtly) influence ostensibly neutral and unbiased academic research to further their own business interests or other political preferences. Many universities struggle to balance the benefits of outside funding with ethical norms that mandate academic independence and intellectual integrity. The best way to protect universities from undue influence may be to secure and expand revenue sources that are indifferent to and cannot sway the conclusions of academic research, such as university endowment15 income, tuition16, and non-discretionary public investment.17 This is analogous to the approach we take to try to protect the independence of members of the federal judiciary18 or the Federal Reserve. 14 Philip Ball, How 2 Pro-Nazi Nobelists Attacked Einstein’s “Jewish Science,” SCIENTIFIC AMERICAN, 2015, https://www.scientificamerican.com/article/how-2-pro-nazi-nobelists-attacked-einstein-s-jewish-science- excerpt1/.; KRISTIE MACRAKIS, SURVIVING THE SWASTIKA: SCIENTIFIC RESEARCH IN NAZI GERMANY 7476 (1993). Social science disciplines often aspire toward a similar level of data-driven, scientific objectivity. MALCOLM WILLIAMS, SCIENCE AND SOCIAL SCIENCE: AN INTRODUCTION 49–69 (2012). Humanities disciplines seek to foster critical thinking, communication, and problem solving skills, not to indoctrinate students into a particular set of political beliefs. DIANE F. HALPERN, THOUGHT AND KNOWLEDGE: AN INTRODUCTION TO CRITICAL THINKING (2013), http://www.taylorfrancis.com/books/9781134637867. 15 George Will, The GOP Tax Bill’s Disconcerting Raid on University Endowments, NATIONAL REVIEW, Nov.9, 2017, https://www.nationalreview.com/2017/11/university-endowments-tax-terrible-idea/. 16 Michael Simkovic, Risk-Based Student Loans, 70 WASH. & LEE L. REV. 527, (2013). 17 Simkovic, supra note 10. 18 WILLIAM REHNQUIST, 2000 YEAR-END REPORT ON THE FEDERAL JUDICIARY (2001), https://www.supremecourt.gov/publicinfo/year-end/2000year-endreport.aspx (“One key to the independence of the federal Judiciary is that Article III of the Constitution of the United States guarantees federal judges tenure . . . and prohibits reducing their compensation while in office. . . . in order to continue to provide the nation a capable and effective judicial system we must be able to attract and retain experienced men and women of quality . . . to perform a demanding position in the public service. The fact is that those lawyers who are qualified to serve as federal judges have opportunities to earn far more in private law practice or business than as judges. . . . We cannot afford a Judiciary made up primarily of the wealthy.”). 5 Cash-for-influence arrangements are commonplace at think tanks,19 public relations and advertising firms, and increasingly media organizations20 which are not financially self- sustaining.21 Lawyers and lobbyists are openly and unabashedly paid advocates. But Society needs universities to aspire to be objective, neutral, and rigorous precisely because we are constantly inundated with paid advocacy, often of dubious quality. Telling the difference between high-quality research and propaganda can take more time and effort than most members of the public or policymakers can afford to spend. The intellectual independence that comes with financial security would benefit all universities, as well as society more broadly. II.   Universities and think tanks have discriminated in favor of conservatives and libertarian scholarship at the behest of powerful donors I have been asked to testify about bias and discrimination within the academy on the basis of political ideology. Discrimination in this context means that individuals who are less qualified by objective criteria of excellence in scholarship and teaching are given advantages—such as employment opportunities, resources for research, supplemental compensation, or admissions to academically selective institutions—because of their political views, political experience or powerful connections. The clearest and most unambiguous example of this form of discrimination is the reservation of specific slots or privileges for individuals who adhere to a set of political views. This form of political discrimination clearly takes place at George Mason University in Virginia22 and Stanford University,23 which host extremely well-funded embedded think 19 Eric Lipton, Brooke Williams & Nicholas Confessore, Foreign Powers Buy Influence at Think Tanks, THE NEW YORK TIMES, January 19, 2018, https://www.nytimes.com/2014/09/07/us/politics/foreign-powers-buy- influence-at-think-tanks.html); Oliver Wright, Big companies ‘buy influence’ with funding for think tanks, THE TIMES, May 12, 2018, https://www.thetimes.co.uk/article/big-companies-buy-influence-with-funding-for-think-tanks- 6x85mpx9q (last visited Sep 17, 2018); Think tanks - SourceWatch, https://www.sourcewatch.org/index.php/Think_tanks (last visited Jun 19, 2018); Philip Rojc & David Callahan, The Hand That Feeds: Can Think Tanks Ruled by the Wealthy Really Be Impartial?, INSIDE PHILANTHROPY, March 28, 2017, https://www.insidephilanthropy.com/home/2017/3/28/this-private-equity-billionaire-just- gave-big-to-support-brookings-research (last visited Sep 17, 2018); The Political Activity of Think Tanks: The Case for Mandatory Contributor Disclosure, 115 HARVARD LAW REVIEW 1502–1524 (2002). 20 Harry Browne, Foundation-Funded Journalism, 11 JOURNALISM STUDIES 889 (2010), https://www.tandfonline.com/doi/abs/10.1080/1461670X.2010.501147. 21 Wolf Richter, Here’s why billionaires keep buying newspapers despite them being in a death spiral, BUSINESS INSIDER, (2018) http://www.businessinsider.com/why-billionaires-keep-buying-newspapers-despite-them-being-in- death-spiral-2018-2; see also Alex Pereene, Billionaires gone wild, COLUMBIA JOURNALISM REVIEW, (2018), https://www.cjr.org/special_report/rich-journalism-media.php; David Weinberger, The Ethics of Using Paid Content in Journalism, HARVARD BUSINESS REVIEW, (2013), https://hbr.org/2013/07/the-ethics-of-using-paid- content-in-journalism. 22 Michael Simkovic, WHEN DO DONOR INFLUENCE AND IDEOLOGY UNDERMINE ACADEMIC INTEGRITY? BRIAN LEITER’S LAW SCHOOL REPORTS (2018), http://leiterlawschool.typepad.com/leiter/2018/05/when-do- donor-influence-and-ideology-undermine-academic-integrity-michael-simkovic.html (last visited Jun 13, 2018). 23 Michael Simkovic, EXTREMELY CONSERVATIVE STANFORD GRADUATE COMPLAINS THAT THERE AREN’T ENOUGH EXTREME CONSERVATIVES ON CAMPUS BRIAN LEITER’S LAW SCHOOL REPORTS (2018), http://leiterlawschool.typepad.com/leiter/2018/05/conservative-stanford-law-graduate-complains-that-there- arent-enough-right-wing-ideologues-on-campus.html (last visited Jun 13, 2018). 6 tanks, such as the Mercatus Center and the Hoover Institution. These embedded think tanks make attractive opportunities available exclusively or preferentially to libertarian and conservative researchers and therefore do not adhere to academic norms of objectivity. There are similar controversies surrounding allegedly inappropriate influence at state universities in Arizona24 and Florida.25 Large donors to universities overwhelmingly have more conservative views on economic issues such as taxes and regulation of businesses than most of the population,26 and have at times sought to use their wealth to spread their views. This can be done ethically and responsibly. For example, The John M. Olin Foundation funds the work of many scholars who simply embrace the methodology of economics, regardless of their political leanings or the policy implications of their research. However, some funders apply political litmus tests, and this is inappropriate. A.   George Mason University and the Mercatus Center Provided Funding Exclusively to Economically Conservative Scholars At George Mason’s Mercatus Center,27 the language of several donor contracts indicated that only libertarian or economically conservative faculty members would be eligible to receive prestigious compensation supplements known as “chairs” or “professorships.”28 For example: “The objective of the Professorship is to advance the . . . acceptance and practice of . . . free market processes and principles [as] promot[ing] individual freedom, opportunity, and prosperity . . . The occupant of the Professorship (“Professor” shall . . . be qualified and committed to the forgoing principles.” In contravention of academic ethical norms, donors such as the Koch family had substantial influence over which faculty members would hold chairs and professorships.29 24 Casey Quinlan, $5 Million is Going to Koch-Backed Think Tanks in Arizona Universities. Professors are angry. THINK PROGRESS (2016), https://thinkprogress.org/5-million-is-going-to-koch-backed-think-tanks-in-arizona- universities-professors-are-angry-a71de4fcbe00/. 25 Dave Levinthal, Spreading the Free-Market Gospel, THE ATLANTIC, (2015), https://www.theatlantic.com/education/archive/2015/10/spreading-the-free-market-gospel/413239/. 26 Adam Bonica et al., Why Hasn’t Democracy Slowed Rising Inequality?, 27 JOURNAL OF ECONOMIC PERSPECTIVES 103–124 (2013); Benjamin I. Page, Larry M. Bartels & Jason Seawright, Democracy and the Policy Preferences of Wealthy Americans, 11 PERSPECTIVES ON POLITICS 51–73 (2013). 27 Mercatus Center - SourceWatch, supra note 19. 28 Nell Gluckman, Why George Mason’s Agreements With the Koch Foundation Raised Red Flags, CHRONICLE OF HIGHER EDUCATION, May 2, 2018, at 7. 29 Donors such as the Koch family maintained control through representation on selection committees, evaluation committees, rights to recommend removal of chair holders, gift rescission rights, and key-man clauses for senior executives. According to press reports, the structure used by the Charles Koch Foundation at George Mason created plausible deniability for the university regarding the level of control exercised by the Koch Foundation. The Koch Foundation was given 2 out of 5 board seats with respect to the selection and termination of chairs. The 2 out of 5 seats apparently meant that a faculty member favored by the Kochs would only need support from one of the three independent board members to receive a chair, whereas a faculty member out of favor with the Kochs would require unanimity to have a bare majority. Koch affiliated board members may have also 7 Rudy Fichtenbaum, president of the American Association of University Professors said “When you start getting into a study of free enterprise then you’re really, I think, stepping into a territory where you’re promoting a political agenda.”30 Donors may specify a topic of study or type of expertise for a holder of a chair; but they should not specify the chair- holder’s politics. Ideologically motivated funding affects what kind of scholarship is produced. Without supplemental compensation from Mercatus, GMU faculty compensation appears to be uncompetitive with comparable institutions.31 Thus, working at GMU may not have made sense financially for economists or law professors who were unlikely to obtain Mercatus facilitated communication and information sharing with the Koch Foundation and lobbied other members of the committee. The arrangement resembles strategies used by activist investors who want de facto control over a target company without the obligations, financial costs, and liability that come with majority control. George Mason says that more recent agreements with the Kochs no longer feature some of the objectionable provisions. Critics say additional levers of control over academic appointments and research for donors at Mercatus and George Mason include rights of major donors to rescind their gifts, including “Key-man” clauses if certain senior administrators are removed or resign. Id. Key-man clauses are common in research funding for principal investigator with unique and essential technical skills or institutional knowledge for a particular project. Such clauses are less common for those in executive leadership positions. Similar key-man contractual provisions were used to entrench Roger Ailes at Fox News. Brian Stelter, HOW ROGER AILES USED “KEY MAN CLAUSES” FOR HIS STARS TO PROTECT HIMSELF CNN.COM (2016), http://money.cnn.com/2016/09/16/media/fox-news- key-man-clause-roger-ailes/index.html (last visited Jun 13, 2018). Executives at Mercatus may have had a disproportionate amount of influence over research topics. Chair holders were encouraged to produce “a research project . . . decided jointly with the President and General Director of Mercatus, and which is closely related to the [Mercatus] Center’s mission.” Given the large donations the Kochs have made to George Mason’s law school and economics departments over the years, those units strong interest in attracting future donations, the explicit ideological orientations of many of the faculty in those units, the Kochs may not have needed board seats to exercise influence. However, the Koch family has used board seats and lawsuits to assert greater control over libertarian think tanks such as the Cato Institute. Jane Mayer, The Kochs v. Cato: Winners and Losers, THE NEW YORKER, (2012), https://www.newyorker.com/news/news-desk/the-kochs-v-cato-winners-and-losers; James Antle, The Kochs and the Cato Institute: a hostile tackover? (2012), https://www.theguardian.com/commentisfree/cifamerica/2012/apr/02/kochs-cato-institute-hostile-takeover; Mercatus Center - SourceWatch, supra note 19. Cato does not seem to have been very independent to being with, considering their advocacy on climate change and tobacco and undisclosed donations from donors’ with financial interests at stake. Mark Ames, Independent and Principled? Behind the Cato Myth, THE NATION, (2012), https://www.thenation.com/article/independent-and-principled-behind-cato-myth/; Id. 30 In at least one case, funds for a “chair” were used to create a “Senior Research Strategist” position for an individual with extensive experience in conservative policy circles, but more limited academic experience. Democratic Senators have unflatteringly described this individual as “an anti-government zealot” and as “ideologically opposed to Social Security”—assessments echoed, rightly or wrongly, by a reporter at the Los Angeles Times. Robert Pear, Driven by Campaign Populism, Democrats Unite on Expanding Social Security, THE NEW YORK TIMES, (2016), https://www.nytimes.com/2016/06/19/us/politics/driven-by-campaign-populism- democrats-unite-on-expanding-social-security.html; Michael Hiltzik, Has President Obama appointed a fox to guard the Social Security henhouse?, LOS ANGELES TIMES, (2016), http://www.latimes.com/business/hiltzik/la-fi-hiltzik- blahous-trustee-20160509-snap-story.html. 31 For example, base salary from state sources for prominent senior faculty at GMU’s law school appears to be relatively low compared to compensation of faculty at similar seniority levels at similarly ranked institutions in similarly high-cost of living areas, such as the University of Maryland or UC Davis. Drew Hansen, Who earns the biggest Virginia paychecks? Check out our new searchable database, WASHINGTON BUSINESS JOURNAL, (2016), https://www.bizjournals.com/washington/datacenter/who-earns-the-biggest-virginia-paychecks-check- out.html. In the interest of propriety, I will not discuss any individual compensation numbers. 8 compensation supplements—i.e., those whose scholarship might support increases in taxes, an expansion of public investment or social insurance, or more stringent regulations of business. At least one moderate economics faculty member says that she “carefully chose [her] research so it wouldn’t be objectionable” to her more conservative colleagues.32 I have corresponded with multiple senior administrators and faculty members at Mercatus and GMU. None of them were able to provide a single example of an economically progressive faculty member who received a Mercatus Chair or Professorship. Mercatus and GMU were similarly unable to provide examples of Mercatus summer stipends funding economically progressive research by reputedly progressive scholars.33 The Koch Foundation asks its grantees to supply contact lists of conservative and libertarian students and faculty.34 Once again, this is generally considered taboo. Universities typically do not track their faculty or students’ political views, perhaps because of the enduring legacy of political purges of liberals and progressives during the Red Scare and McCarthyism, and because of recent claims of much milder forms of discrimination against conservatives.35 The degree of control exercised by the Koch family and other donors—whether it was de facto control or mere influence over compensation and retention—is besides the point. Any control over faculty compensation in the hands of donors who are motivated by political or 32 Gluckman, supra note 29.Gluckman, supra note 28. Conservative and libertarian predominance at George Mason’s economics department and law school appears to have fostered a distinctive, rough-and-tumble culture. One member of the economics faculty provocatively compared redistributive taxation and pilfering food when hungry to rape. Jordan Weissmann, Is Robin Hanson America’s Creepiest Economist?, SLATE, (2018), https://slate.com/business/2018/04/economist-robin-hanson-might-be-americas-creepiest-professor.html. In correspondences with one GMU law professor about a previous essay, which critiqued techniques used by conservative activists to build support for regulating universities, a GMU professor compared my admonishments to accusations of child abuse, domestic violence, and neo-Nazism. Michael Simkovic, A well- organized campaign to bait, discredit, and take over universities is exploiting students and manipulating the public, BRIAN LEITER’S LAW SCHOOL REPORTS, (2018), leiterlawschool.typepad.com/leiter/2018/04/a-well-organized- campaign-to-bait-discredit-and-take-over-universities-is-exploiting-students-and-ma.html. Thankfully, this lack of decorum is not universal—in my experience, the Dean of George Mason’s Law School, Henry Butler, conducts himself as a courtly gentleman scholar, and Tyler Cowen, the faculty director of the Mercatus Center, is a thoughtful and lively scholar. Nevertheless, it is easy to imagine how moderate or liberal faculty members could find the environment at George Mason inhospitable. 33 There are examples of prominent libertarian GMU faculty members offering tepid support for liberal policies such as a carbon tax (in lieu of more restrictive pollution limits) or quietly criticizing specific technical aspects of conservative tax legislation. http://www.gmu.edu/resources/facstaff/senate/Mercatus%20Responses.pdf; https://marginalrevolution.com/marginalrevolution/2011/09/do-all-serious-economists-favor-a-carbon- tax.html; https://www.bloomberg.com/view/articles/2017-11-17/yes-a-corporate-tax-cut-would-increase- investment 34 Dave Levinthal, Spreading the Free-Market Gospel, THE ATLANTIC, 2015, https://www.theatlantic.com/education/archive/2015/10/spreading-the-free-market-gospel/413239/. 35 Ellen Schrecker, The Legacy of McCarthyism, (1994) pp. 92-92, http://www.english.illinois.edu/maps/mccarthy/schrecker6.htm; Ellen Schrecker, Political Tests for Professors: Academic Freedom During the McCarthy Years, (1999), http://www.lib.berkeley.edu/uchistory/archives_exhibits/loyaltyoath/symposium/schrecker.html; Paul Caron, Professors and Politics: What the Research Says, TAXPROF BLOG, (2017), taxprof.typepad.com/taxprof_blog/2017/02/professors-and-politics-what-the-research-says.html; David Oshinsky, Cold War on Campus, THE NEW YORK TIMES, (1986), https://www.nytimes.com/1986/09/28/books/cold-war-on-campus.html. 9 ideological considerations, as opposed to in the hands of impartial subject matter experts who are motivated by producing good science, violates academic standards of ethics and independence. B.   Senior Administrators at Stanford University and Faculty at the Hoover Institution have targeted Liberals on Campus At Stanford, the Hoover Institution has amassed nearly half a billion dollars in assets and funds most of its operations from millions of dollars in annual donations from conservative donors.36 Stanford itself has also benefited from millions in conservative donations. In what may have been a clumsy attempt to encourage political neutrality, Stanford’s long- serving provost recently described (ostensibly liberal) activists on campus as “the threat from within” closely echoing Senator Joseph McCarthy’s accusations that liberals during the cold war constituted an “enemy from within.”37 Shortly after the former provost’s statement, a Hoover Institution scholar asked his university-funded research assistant to help him conduct “opposition research” on a 20-year- old Stanford student who the Hoover scholar thought was too liberal.38 According to his emails, the scholar wanted help "grinding [leftists] down" and wished to "intimidate them."39 The Hoover scholar also enlisted the help of students who were members of the College Republicans and had connections to Turning Point USA which maintains "watchlists" of outspoken liberal faculty.40 Professors appearing on similar watchlists have received hate mails and death threats, and some without tenure have been terminated from their jobs. 41 36 Ade Adeniji, How the Hoover Institution Vacuums Up Big Conservative Bucks, INSIDE PHILANTHROPY, April 21, 2015, https://www.insidephilanthropy.com/home/2015/4/21/how-the-hoover-institution-vacuums-up-big- conservative-bucks.html. 37 John Etchemendy, The Threat from Within, STANFORD NEWS, (2017), https://news.stanford.edu/2017/02/21/the-threat-from-within/. 38 Brian Contreras, Ada Statler & Courtney Douglas, Leaked emails show Hoover academic conspiring with College Republicans to conduct ‘opposition research’ on student, STANFORD DAILY, May 31, 2018, https://www.stanforddaily.com/2018/05/31/emails-between-ferguson-scr-reveal-opposition-research-against- ocon-prompt-fergusons-resignation-from-cardinal-conversations-leadership-role/ (last visited Jun 14, 2018). 39 Zack Beauchamp, A conservative Stanford professor plotted to dig up dirt on a liberal student, VOX, (2018), https://www.vox.com/policy-and-politics/2018/6/1/17417042/niall-ferguson-stanford-emails; Jeet Heer, Niall Ferguson wanted opposition research on a student, THE NEW REPUBLIC, (2018), https://newrepublic.com/minutes/148653/niall-ferguson-wanted-opposition-research-student; Nick Allen, Niall Ferguson leaves Stanford role after ordering ‘opposition research’ on a student in free speech row, THE TELEGRAPH NEWS, (2018), https://www.telegraph.co.uk/news/2018/06/01/niall-ferguson-regrets-error-judgment- suggesting-opposition/. 40 Christopher Mele, Professor Watchlist is Seen as Threat to Academic Freedom, THE NEW YORK TIMES, (2016), https://www.nytimes.com/2016/11/28/us/professor-watchlist-is-seen-as-threat-to-academic-freedom.html. 41 Aaron R. Hanlon, Political Correctness Has Run Amok — on the Right, THE CHRONICLE OF HIGHER EDUCATION, 2018, https://www.chronicle.com/article/Political-Correctness-Has-Run/242143 (last visited Jun 14, 2018). There’s some evidence that among faculty members who are terminated for controversial views, more liberals are terminated that conservatives. Zack Beauchamp, Data Shows a Surprising Campus Free Speech Problem: Left- Wingers Being Fired for Their Opinions, VOX, August 3, 2018, https://www.vox.com/policy-and- politics/2018/8/3/17644180/political-correctness-free-speech-liberal-data-georgetown (last visited Sep 25, 2018). 10