Hunting dogs

“When the law is against you,” goes the adage, “argue the facts. When the facts are against you, argue the law. When both the facts and law are against you….”

Here we may turn for instruction to Jerry Taylor, ringleader of Cato Institute officials in the unenviable position of needing to convince people who embrace contracts and the rule of law that Cato is governed by a Higher Law.

Thus we are instructed by Cato Vice President Gene Healy that the Shareholder’s Agreement relevant to this dispute between Cato and the Kochs is “long-moribund.” Proverb One of the Higher Law: Contracts signed before 1978 are irrelevant.

David Weigel notes, meanwhile, that neither Koch brother gave Cato money in 2011. “They have no special claim on us,” Jerry Taylor insists, “as donors.”

That might be contorted into a devastating admission about what guides Cato’s research, if one were the sort of low-minded person who sees an advantage in taking sentences out of context. All the same, these comments reveal the second proverb of the Higher Law: We can ignore your rights if you haven’t given us money lately.

Taylor insists further that two of the three living Cato founders don’t like what they’ve heard about this kerfuffle, yielding Proverb Three: Takebacks.

(I don’t let my kids get away with this when they trade Legos. That puts me in mind of a new game show idea: “Are you more libertarian than a fifth grader?”)

As for the facts available to most of us, one may find the governing documents here, and the court filing here. A transparent admission here indicates that Cato’s position is that the original agreement is outdated and should be replaced with something reflecting more contemporary views about non-profit governance.

Let’s sum up, then, what we have from the spokesmen of an organization dedicated to the rational elucidation of libertarian principles:

1. This contract is old.

2. The signers of this contract didn’t give us money last year.

3. Some of the people who signed the contract regret it.

4. Changing circumstances dictate renegotiation of previous agreements.

How these differ from the Obama Administration’s justifications for bullying Chrysler creditors into foregoing their contractual rights (a thuggish move decried by Ed Crane only months ago) escapes me. Is the difference that they were on the side of the devil, and Cato on the side of the angels? Is it that Ed Crane’s bacon is now what’s in the fire, rather than that of some UAW worker?

Perhaps the reasons can be divined in the sacred texts of libertarianism, which brings us back to poor Jerry Taylor, thrust into the courtroom with neither facts nor law to bolster his case. Having neither, Taylor must play the magician, whose chief art is misdirection.

Now, I didn’t have a dog in this hunt. I only learned that a shareholder nominated me to the Cato Institute board after Healy, Taylor, and others publicly branded me a heretic. I am, Taylor writes, “a Republican blogger,” who complains about libertarians toking up at political meetings. Healy and others dutifully repeat Taylor’s charges. Following their lead, Weigel gets marginally original by asserting that I sneer at libertarians. Accepting their claims, Andrew Sullivan calls me a “strident anti-libertarian” and a “culture warrior.”

Now, I understand that Taylor is in a tough spot. He needs a conspiracy. Heaven forbid it be a simple contract dispute. Angels prevent that anyone who believes in liberty question why a $23 million organization doesn’t have more impact on public opinion. This has to be about bad people doing secretive things in the dead of night to rob earnest and freedom-loving people of their standard-bearer.

But the thing is, when you start lifting sentences from what someone writes, intellectual honesty — not to mention plain decency — dictates that you provide context. Maybe that’s old-school thinking, way back in the day when we believed in contracts and the rule of law. Maybe libertarianism is all post-modern and stuff now.

Either way, now I do have a dog in this hunt, because I’m one of the people Taylor decided to attack in his fit of self-preservation.

Keep in mind that we’re talking about things I wrote ten years ago. My views have changed a bit, and any fair reading of my work will indicate as much, just as it will quickly reveal that I am neither a Republican nor a libertarian-hater. But let’s stick to the essays Taylor samples.

He observes that I “blogged about ‘the rotten heart of libertarianism,'” a quote intended to suggest that I despise the whole lot of it. In the 2002 essay in question, however, I write (quite obviously with a light heart), that I “originally intended to title this series” as such, but thought better of it. Maybe joking about thinking about something counts as a thought crime, in Taylor’s variant of libertarianism.

I also call libertarianism, as Taylor notes, “a flawed and failed religion posing as a philosophy of governance.” (Religion? What could I have been thinking? That would imply sects and unquestionable beliefs and bitter squabbles over abstruse distinctions…)

But immediately after, I write: “The reason I will address this topic — and the reason you should care — is because libertarianism represents perhaps the best set of potential political solutions to America’s problems…”

The exceedingly clear point, grasped by a wide array of libertarians and conservatives who joined the debate in the comments section of my blog, is that we have to overcome significant hurdles in order to make libertarianism a competitive alternative in the minds of voters. Now, you may disagree with that, but the fact that I believe it does not make me — unless libertarianism has been transmogrified into a church — an “anti-libertarian.”

Next is the accusation that I complain about libertarians smoking pot at political gatherings, a charge repeated by Healy and others. Here’s what I actually wrote, at the tail-end of arguing that too many libertarians focus on the policies that matter to them personally, rather than policies with greater potential leverage to effect widespread social change:

“If libertarians were serious about taking and maintaining power — truly serious — then they would drop the caterwauling over drug criminalization and focus every drop of energy on building schools. The latter is hard work, however, and forces consideration of messy things like moral instruction, and self-discipline, and what makes for good parenting. It’s far easier to toke up in the discounted hotel room at the Libertarian Party Convention and rail against the DEA. Thus libertarianism remains less a force for change than a tool for self-expression.”

The impression Taylor wanted to convey is that I believe libertarians are a bunch of potheads. Any reasonable reader can see, however, that this is not a meditation on the recreational habits of the Libertarian Nation, but a rhetorical contrast set forth to make the point carried in the last sentence of that paragraph.

Wiegel unsurprisingly adopts Taylor’s tactic, implying that I applied the label “sanctimonious” in blanket fashion to libertarians (I was referring to a specific post, now removed, at the libertarian site Samizdata). He also lifts another quote (in a nutshell, that libertarians are too often homogeneous and content to criticize the rest of America for not agreeing with them) and seeks to disqualify it by divining for his readers that I “sneered” it.

If the truth must be told, I most likely sneezed it, because I had a wicked cold that day. And I don’t appreciate Wiegel guffawing such a thing. Or maybe he chortled it. Whatever.

I respect many thinkers associated with Cato. Hearing talks by Tom Palmer and David Boaz brought me into libertarianism as a college student. Bob Levy’s work on the gradual erosion of liberty by the courts is essential, and helped me recognize how completely property rights have been stripped from the Constitution. Radley Balko has waged an almost single-handed battle to highlight police abuse, causing me to rethink my decade-old critique that libertarians are overly focused on drug legalization.

I don’t know if I could mutter whatever catechism one must repeat to be accepted into the libertarian fold, but I’m certainly no enemy. The pity of it is that Jerry Taylor and other Cato leaders have no qualms about deliberately misleading people to believe otherwise. What’s more, I know some of the other people they accuse of being operatives and conspirators, and these accusations ring just as false.

I assume intellectual integrity is essential to the libertarian philosophy, and if so, I wonder who is doing it more harm — someone like me, who has questioned in good faith some of its tenets, or Messrs. Taylor, Healy, and Crane, who appear for all the world like Washington, D.C. bureaucrats trying desperately to keep hold of their tenure.

Comments

  1. Morton L.

    “I didn’t have a dog in this hunt. I only learned that a shareholder nominated me to the Cato Institute board after Healy, Taylor, and others publicly branded me a heretic.”

    Do you know which shareholder nominated you? Why would they do so without checking to see if you would serve?

  2. Peter S.

    Look down at the bottom – Tony is currently reading “I, Claudius.” That means he secretly wants to be Caesar of the Cato Institute!

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  5. Steve

    Tony,

    This is a funny and civil counter to those that would use super-past tense words of yours to label you a “not really libertarian”. Fair enough. Although nothing in this post indicates that it’s a mantle you would ascribe to anyway.

    Most of the Cato-friendly commentariat I have read have freely admitted that they do not know about the legal claims of the case. For most of them, this is beside the point.

    The key issue being argued are:

    1) Are the Koch’s trying to use legal maneuvering to seize control of the board and, therefore, of the management, strategy and mission of Cato?

    2) Would a takeover of Cato by the Koch’s lead to a change in the direction and mission of Cato? Would Cato become more partisan and politically active?

    3) Would such a move advance the cause of freedom and liberty?

    What is your answer to those questions?

    Regards,

    Steve S.

  6. David Andersen

    It’s deeply unsettling to find that institutions and people I held with at least some respect have proven to be no better in their respect for the truth and their fellow man than the institutions and people which I’ve long stopped respecting. Power corrupts so many, so easily.

  7. David Andersen

    Steve S:

    Even if the answers to those questions are yes, yes, and no, there are much bigger issues at stake here.

    Namely that Cato – presumably an institution that (A)cares about respecting voluntary agreements, (B) cares about the truth, and (C) cares about fighting fairly – actually doesn’t.

    The worst thing that could happen to Cato isn’t that it is ‘taken over’ by the Kochs; now the worst thing is that it isn’t and no one respects them anymore because of this. My respect, once high, has evaporated. I’m not an ‘any means justifies the ends’ kind of guy, so to me, Cato is nearly dead despite their overarching intellectual mission.

  8. Grebmörts

    About that adage. There’s a reason that you had to end it with an ellipsis – you spoiled the setup and ruined the punchline. It’s supposed to go: “If you have the facts on your side, pound the facts. If you have the law on your side, pound the law. If you have neither the facts nor the law, pound the table.”

    The drummer hits a rimshot, you thank the audience, and leave the stage.

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    Woodlief

    Morton: I was asked weeks back if I would be willing to serve on the board, and I said yes if I could be helpful. I never heard anything else until reading Gene Healy’s complaint.

    Steve: those are interesting questions that I can’t speak to, because I’m not privy to these discussions. My understanding is that their hand was forced when Ed Crane attempted to pass along shares in a manner that appears counter to Cato’s governing documents. My sense is that their goal isn’t to change Cato (because really, it would be far easier to start something new than change an existing organization), except insofar as whatever changes are necessary to secure compliance with its founding documents. The pesky reality in every attempt to change organizational behavior, of course, is the reality of people, and what they will think/say/believe/do. So who knows how this will end up.

    Grebmorts: Where were you when I was writing my little screed!?! That’s perfect.

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  11. David Andersen

    Anytime.

    Anyone else notice this quote on Andrew Sullivan’s masthead:

    “To see what is in front of one’s nose needs a constant struggle” — George Orwell

    Oh the irony.

  12. Steve

    David,

    You say:

    “Namely that Cato – presumably an institution that (A)cares about respecting voluntary agreements, (B) cares about the truth, and (C) cares about fighting fairly – actually doesn’t.”

    Cato is certainly trying to win a PR battle. Hopefully you can at least acknowledge that Cato’s defenders see the moves by the Koch’s as a threat to the mission and work of the organization. You and other’s are basically saying, “a contract is a contract is a contract”. Your emphasis is that the Koch’s just want the terms of the contract fulfilled. But the Koch’s desire to see the contract fulfilled isn’t happening in a vacuum. They have a reason for it. There is strong evidence that the Koch’s wish to change the mission and strategy of the organization. One fact that is undeniable is that the Koch’s have used their “ownership” interest in Cato to “pack the board” with 4 new board members which required the dismissal of 4 longstanding board members who are better philosophically aligned with Cato’s mission. Apparently, only one of the new board members, Judge Napolitano, would ascribe to the Cato mission. I do not think it is unfair to call the remaining three “Republican operatives”.

    Cato supporters can make a strong case that this, in the long run, would hurt the credibility and influence of the organization. And ultimately, its influence over hearts, minds and public policy.

    So if Cato defenders are “cirling the wagons” and taking potshots that may not be accurate or fair, it’s because they believe a lot is at stake.

    Regards,

    Steve

  13. Steve

    Tony,

    I appreciate your reply to my questions. Here are some questions that I think you probably can answer:

    1) Is it reasonable that an organization’s leadership and founders should want to limit board membership to those that believe in the mission and strategy of the organization?

    2) If you agree, then whether you could “mutter whatever catechism” really is a very important question. You cannot be an elder at my church unless you hold to the Westminster Catechism nor could you be on the board of Covenant Seminary unless you hold to the Westminster Catechism. Cato doesn’t have a catechism but its philosophical commitment to “the principles of individual liberty, limited government, free markets and peace” produce very strong viewpoint consistency for it’s scholars, writers and directors. If you agree with question 1 above, isn’t it fair that Cato supporters would want to understand how aligned your viewpoint with Cato’s? (Granted, apparently no supporter bothered to ask you which really is unfair. You were thrown under the bus as a tool of the PR wars.)

    Warm regards,

    Steve

  14. Steve

    Tony,

    You said:
    “My sense is that their goal isn’t to change Cato (because really, it would be far easier to start something new than change an existing organization), except insofar as whatever changes are necessary to secure compliance with its founding documents.”

    The most plausible reason for them to “pack the board” is that they wish to take over control. And the most plausible reason they want to do that would be to change the mission and/or strategy of Cato. Add to this, Bob Levy’s first hand account of his conversation in December with one of the brothers, and it seems pretty evident that the Koch’s want to use the credibility and intellectual capital of Cato to further their political ends.

    Of course, it’s possible, although highly unlikely, that they just want to get rid of Ed Crane for personal reasons. Once he was out, maybe they would leave Cato alone. Lot of trouble to go to for a grudge. (And granted their are plenty of grudges to go around).

    Regards,

    Steve

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    Woodlief

    Steve,

    I agree that whomever has governing authority over the non-profit should absolutely vet new board members with an eye toward the affinity for the organization’s mission. My issue with Jerry Taylor and crew is that they deliberately misrepresented me and others. Perhaps my views aren’t sympatico enough with Cato, but we can only arrive at that with an honest discussion.

    With that said, I emphatically reject the notion that staff (including an organization’s president) should have any say in board selection. Time and again I’ve seen organizations go awry when senior staff (typically led by an ego-driven president) gain de facto control over boards. The job of the board is — as you suggest — to safeguard the organization’s mission, and to ensure effective pursuit of that mission by the staff.

    None of that is to say that staff should keep their mouths shut about board selections, mind you, I’m simply saying that they should have no authority in the matter.

    As for the control question, my understanding is that Crane et al. refused to abide by the Shareholder Agreement, in effect forcing the hand of the Kochs — they either had to seek legal redress, or let him in effect rewrite the agreement through his actions. Nominating board members they trust to stick to the agreement, then, isn’t about changing Cato, it’s about ensuring that the organization hews to its governing agreement.

    As for Bob Levy’s account, I wasn’t there, but I’ve only ever known him to demonstrate integrity. I’ve also only ever known the Kochs to seek intellectual honesty. What I suspect happened, therefore, is that a request was made not for Cato to alter any of its research results, but rather to focus on topics more immediately useful to citizen activists fighting to shrink government — data on tax loads, etc. I’m only speculating about that conversation, however, because I wasn’t there.

  16. David Andersen

    Steve,

    You’re offering an explanation for their behavior. It’s understandable; but it’s just that – an explanation – not a justification. The ends don’t justify the means in my book.

    Regards,
    David

  17. S.M. Oliva

    Tony,

    You said you were asked “weeks back” about joining the Cato board. Who was that conversation with exactly, and what were you told? In other words, did the Kochs or whomever approached you explain what they were hoping to accomplish?

    Skip Oliva

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    Woodlief

    Skip,
    The person I spoke with explained very briefly that Cato’s officials were trying to abrogate the governing agreement, and that as a consequence the Kochs had no choice but to confront them over this matter. This person told me they trust me to take heat without folding, and to behave with integrity as a board member, and asked if I would be willing, if nominated, to consider being a board member. I said yes, and never heard anything else until Taylor and Healy’s attack.

    Everything I’ve seen and heard indicates that this is about holding Cato’s leadership to its Shareholder’s Agreement.

  19. Morton L.

    You said in your post that you only learned that a shareholder nominated you to the Cato Institute board when reaction from Cato staff came to your attention, omitting the fact that “weeks back” you had been asked about service on the board. Did you not infer that that you might be nominated?

    I think you probably did, but, distraught at the harsh reaction to the Kochs’ nomination of you, sought to paint yourself slightly more victimized than you actually were.

    But from what we know at this point, it seems to me like you were victimized, like Cato staff, by a very poorly managed process on the Koch side.

    You came forward to tell your story, by all means do tell your story. All of it. You’ve conspicuously not named who spoke to you or who nominated you. People would not be wrong to consider this in weighing your credibility and allegiance.

  20. Morton L.

    Sorry to double up – my fascination continues…

    You say: “Everything I’ve seen and heard indicates that this is about holding Cato’s leadership to its Shareholder’s Agreement.”

    Did the person you spoke with ask you or talk to you about maintaining Cato’s libertarian bona fides? Did the person ask you about or did you discuss the direction of Cato in terms of substantive research priorities, communications strategies, fundraising, or other institutional matters? Or was the discussion limited to “holding Cato’s leadership to its Shareholder’s Agreement”?

  21. Tony

    Morton,
    Hearing nothing after the one brief conversation, I assumed my small part in it was done. I don’t know who nominated me, and the person I spoke with asked me to maintain confidentiality, which I promised, and which I must therefore hold to.

    I can say that there was nothing in the conversation about changing Cato. I understood that there might be some dispute coming about governance, and that I was receiving a call because I can be trusted to think and act fairly in such matters regardless of whatever unpleasantness might come from people with axes to grind.

    What fascinates me is that people can in one breath speak of the diabolical cleverness of the Koch enterprise, and in the next breath imagine that they are so stupid as to wage an open war to subvert an organization. Given what I know of the principals involved, this truly is about Charles Koch’s adherence to principle (a written agreement that nobody questioned until holding to it looked to disadvantage Ed Crane) on the one hand, and Ed Crane’s willingness to (as one of his own supporters put it) salt the earth rather than cede authority.

  22. Abel Winn

    Tony,

    I’m ambivalent about the whole soap opera. I’m no lawyer, but the Kochs appear to me to have a pretty strong legal case. On the other hand, I don’t see what is so bad about Cato in its current form. It seems that a path could have been forged that would preserve independence for Cato and the rule of law. For instance, insisting that the shares return to Cato, but letting Crane then buy them up himself or nominate a new buyer. But it’s not my call, and of course I know even less about the details than you do.

    What I’m not ambivalent about is the way you’ve been maligned in all of this. I would have expected much better from the leadership of Cato. I still have enormous respect for its scholars and employees, but I can’t say the same for its top brass.

  23. Steve

    Tony,

    I don’t know if you saw Bob Levy’s response to the Koch’s claims that was published yesterday. It is measured and very persuasive. And as it pertains to you at least he acknowledges “Woodlief seems to like libertarians (and vice versa” followed by another one of your libertarian-bashing quotes.

    The letter is here: http://www.cato.org/SaveCato/kochquest.pdf

    Steve

  24. Tony

    Steve,

    I did indeed see Bob’s response, but thanks for sharing it here all the same, for those who haven’t seen it. Even though I find myself at odds with his compatriots, I have great respect for him, and admire the work he’s done to illuminate how the legal process has been corrupted, and the Constitution violated.

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