By Katrina vanden Heuvel
The Supreme Court will hear oral arguments in King v. Burwell this Wednesday, and once again the fate of the Affordable Care Act will be in the nine justices’ hands. Unlike National Federation of Independent Businesses v. Sebelius, the 2012 case that affirmed the ACA’s individual mandate but gutted its expansion of Medicaid, King turns not on the act’s constitutionality but rather on an statutory issue variously described as “bordering on frivolous,” “nested in a fictional history of Congressional intent,” and “fluff.” But like the prior case, whose result effectively denied health insurance to half of the 17 million intended to have been covered by the ACA’s expansion of Medicaid, King, if decided against the government, could leave another 8.2 million uninsured and, effectively, send the ACA into its oft-cited “death spiral.” Naturally, the Kochs are pulling more than their fair share of strings.
The Kochs and their affiliated groups spent vast sums to try to stop the Affordable Care Act from passing in the first place; to unseat those that backed the law over the course of several election cycles; and more recently, to stymie the law’s implementation (e.g., killing Medicaid expansion in Tennessee last month). And the influence of the Koch network pervades nearly every part of the challengers’ case in King v. Burwell.
As Mother Jones noted last month, “The King case started out as a legal theory hatched by a group of conservative lawyers in 2010 at a conference sponsored by the American Enterprise Institute, the right-leaning think tank.” AEI, of course, is a very large recipient of Koch cash, and David Koch co-chairs its National Council. One of the speakers on that AEI panel wasMichael Greve, now a law professor at George Mason (where the “staunchly anti-regulatory,” Koch Industries–funded Mercatus Center is located). “This bastard has to be killed as a matter of political hygiene,” Greve said about the Affordable Care Act during the AEI panel. “I don’t care how this is done, whether it’s dismembered, whether we drive a stake through its heart, whether we tar and feather it and drive it out of town, whether we strangle it. I don’t care who does it, whether it’s some court some place, or the United States Congress. Any which way, any dollar spent on that goal is worth spending, any brief filed toward that end is worth filing, any speech or panel contribution toward that end is of service to the United States.” Greve has continued to comment on King v. Burwell, including when he recently compared health reform to the Holocaust.
Greve previously worked under the Kochs’ influence at the Center for Individual Rights, but most important, perhaps, is that Greve is former chairman and a current board member of Competitive Enterprise Institute. CEI, which is heavily Koch-backed, brags that it is “coordinating and funding both the King v. Burwell case and the DC Circuit Halbig v. Burwellcase.” It was CEI that reached out to Michael Carvin, the lawyer who filed the King andHalbig cases and who will be arguing King before the Court. Carvin also argued NFIB in 2012.
Shoring up another flank of the assault on the Affordable Care Act is the Koch Army’s Cato Division. The Cato Institute, for its part, has lent much of the substantive heft to the anti-ACA effort. Michael Cannon, Cato’s director of Health Policy Studies, previously worked at other Koch groups, including Citizens for a Sound Economy/Citizens for a Sound Economy Foundation (where he battled FDA regulation of tobacco, among other things). In an interesting twist, Cannon spoke out publicly during the 2012 brouhaha about the Kochs’ taking over Cato. While that might seem to work against his Koch bona fides, Cannon nevertheless said in an NPR interview at the time, “This is a very difficult issue and it’s a very difficult thing for folks at Cato, because we wouldn’t have our jobs without Charles and David Koch. They are billionaires who have funded the libertarian movement. Not just the Cato Institute, but other groups that have—where I’ve worked and others at Cato have worked. We owe a lot to them.”
Cannon and Jonathan H. Adler, a law professor at Case Western Reserve Law, are the lawyers who have most aggressively pushed the dubious legal theory behind King. Adler reached out to Cannon in 2011, and the pair published a paper in July 2012, saying that the IRS had acted illegally and that the ACA’s tax credits and subsides should not be available to those purchasing insurance on the federal exchange. Cannon has been flogging this theory relentlessly—in the media, in Cato products, on Twitter, in his Forbes column, anywhere he can find the column inches or bandwidth. He participated in a debate last month at Georgetown Law, and in an online forum as well. In December, Cannon and Adler filed their SCOTUS amicus brief for King.
Adler’s Koch connections are what you might expect (although, like Cannon, he criticized the Kochs regarding their Cato donnybrook in 2012). He worked at CEI between 1991 and 2000, and he’s also linked to Koch money through his seats on the NFIB Legal Foundation Board, the Cato Supreme Court Review Board, the Board of Directors of the Foundation for Research on Economics and the Environment, as well as through his role as a senior fellow at the Property & Environment Research Center.
Thus, much of the financial and legal muscle behind King v. Burwell directly traces back to Koch Industries. Moreover, aside from the major players in the King case discussed above, a quick glance at the case’s filings finds more Koch-linked amici:
—Citizens Council for Health Freedom (part of the State Policy Network)
—Galen Institute (part of the State Policy Network)
—Jeremy Rabkin (George Mason law professor with formal affiliations with AEI and the Center for Individual Rights)
—Landmark Legal Foundation
—Mountain States Legal Foundation (Donors Trust funding recipient)
—Pacific Research Institute, Individual Rights Foundation, and Reason Foundation
—Washington Legal Foundation
All told, Koch influence informs about half of the twenty-one briefs filed on the anti-ACA side, and little more than half if you don’t count the briefs from states and elected officials. The petitioner might be “King” in body, but it’s Koch in heart, mind, spirit—and bank account.