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SCOTUS Eliminates Political Party Spending Caps · Bloomberg Law

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Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
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Speaker 2: In a six to three decision down ideological lines, the
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Speaker 2: Supreme Court on Tuesday throughout long standing federal limits on
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Speaker 2: spending by political parties, saying they violate First Amendment rights.
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Speaker 2: In doing so, the Court's conservatives reversed a twenty five
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Speaker 2: year old precedent that upheld the caps as a means
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Speaker 2: of tackling corruption. Writing for the majority, Justice Brett Kavanaugh
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Speaker 2: said the ruling will allow all political parties to participate
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Speaker 2: more freely and compete more fully in the political process,
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Speaker 2: and to coordinate more closely with their candidates. That echoed
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Speaker 2: his comments during the oral arguments.
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Speaker 1: That's the real source of the disadvantage.
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Speaker 3: Right.
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Speaker 1: You can give huge money to the outside group, but
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Speaker 1: you can't give huge money of the party.
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Speaker 4: So the parties are very much weakened compared to the
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Speaker 4: outside group.
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Speaker 2: But writing for the dissenters, Justice Elena Kagan warned the
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Speaker 2: decision could bring back quid pro quo corruption by allowing
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Speaker 2: a political party to serve as an alternative checking account
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Speaker 2: for campaign and donors to give as much as half
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Speaker 2: a million dollars to cover a candidate's bills. It's a
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Speaker 2: ruling likely to help Republicans in the November midterms, and
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Speaker 2: just the latest case in a string of cases in
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Speaker 2: which the conservative majority has rolled back campaign finance regulations
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Speaker 2: in the name of the First Amendment, something liberal Justice
1:36
Speaker 2: Sonya Soto Mayor bemoaned during the oral arguments.
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Speaker 5: You're telling us that Citizens United and McCutcheon ended up
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Speaker 5: yes in amplifying the voice of corporations, but Diminian shoeing
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Speaker 5: another voice, that of the party. Now you want to
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Speaker 5: now sinker some more and try to raise the voice
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Speaker 5: of one Our tin cream causes more harm than it
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Speaker 5: does good.
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Speaker 2: My guest is Andrew Shapiro, a partner in Quinn Emmanuel's
2:07
Speaker 2: appellate practice group. He was the former US Ambassador to
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Speaker 2: the Czech Republic. Andy, let's start with the big question,
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Speaker 2: how important is this decision? How much will it change
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Speaker 2: how money is spent in congressional elections.
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Speaker 1: I think it's important for two reasons.
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Speaker 3: So at a general level, it's important because it's the next,
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Speaker 3: maybe almost inevitable step in the evolution of the way
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Speaker 3: the Roberts Court looks at campaign finance cases, and so
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Speaker 3: maybe by itself it's not an earthquake, but as part
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Speaker 3: of a pattern over the last fifteen or twenty years,
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Speaker 3: it says a lot.
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Speaker 1: But then even as a practical matter.
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Speaker 3: It is going to allow individuals to give half a
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Speaker 3: million dollars or more to a party, and the party
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Speaker 3: is essentially free to spend it in support of a candidate,
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Speaker 3: to pay a candidate's bills. Obviously, that's a much bigger
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Speaker 3: bang for the buck that a donor might get than
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Speaker 3: just a seven thousand dollars which is currently kept.
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Speaker 2: So the majority decision was written by Brett Cavanaugh. Tell
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Speaker 2: us about his argument and whether it mirrors the First
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Speaker 2: Amendment kind of arguments that we seem to see in
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Speaker 2: all these campaign finance cases.
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Speaker 3: So Justice Kavanaugh, writing for six members of the Court,
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Speaker 3: set this up as essentially just an exercise in a
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Speaker 3: balancing test. Try to frame it as a fairly narrow ruling.
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Speaker 3: So you have competing interests here. You have the interest
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Speaker 3: that Congress and in some prior decisions the Supreme Court
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Speaker 3: had identified of trying to keep not just corruption, but
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Speaker 3: the appearance of corruption or of a quid pro quo
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Speaker 3: out of our politics. That's on one side of the scale.
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Speaker 3: On the other side of the scale is the First
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Speaker 3: Amendment and the right of individuals or or in some
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Speaker 3: of these cases organizations to use their money to get
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Speaker 3: their views across or support candidates as they wish. And
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Speaker 3: so when you're balancing that, the test that the Court
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Speaker 3: has ultimately developed is it has to be closely and
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Speaker 3: narrowly tailored.
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Speaker 1: I'm paraphrasing here, but essentially you.
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Speaker 3: Have to say this specific restriction on speech is closely
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Speaker 3: tailored to accomplishing the goal that we want to accomplish.
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Speaker 3: And just as Kevinaugh walked through the stated goals, which
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Speaker 3: are avoiding corruption and avoiding quid pro quos, maybe one
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Speaker 3: might say quids pro quote, and decided that existing mechanisms
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Speaker 3: are sufficient. So he pointed to the fact that there
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Speaker 3: is still a cap on how much one can give
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Speaker 3: to an individual or to a party. He pointed to
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Speaker 3: prohibitions against what is called earmarking. That is, I can't
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Speaker 3: specifically and expressly give five hundred thousand dollars do to
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Speaker 3: the Democratic Party or the Republican Party and say spend
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Speaker 3: it in support of this candidate. That's still forbidden. And
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Speaker 3: so Justice Kavanaugh said that's a guardrail and he said
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Speaker 3: that the disclosure laws are a guardrail. Right, the campaigns
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Speaker 3: still have to disclose in most instances, the donors and
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Speaker 3: the parties have to do the same thing. And so
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Speaker 3: the idea that having these things out in the sunlight
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Speaker 3: will deter corruption, he felt was sufficient, and therefore, just
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Speaker 3: when doing this balancing test, said those are enough. It's
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Speaker 3: not narrowly tailored, and so we do not need and
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Speaker 3: cannot justify under the First Amendment having a further restriction
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Speaker 3: saying that parties cannot coordinate their expenditures with individual candidates.
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Speaker 2: You mentioned quid pro quote. Writing for the dissenters, the
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Speaker 2: three Liberals, just as Elena Kagan said, the ruling opens
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Speaker 2: up the same opportunities for quid pro quo corruption that
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Speaker 2: the limits were meant to check, allowing wealthy donors to
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Speaker 2: dodge in individual contribution limits by donating through parties instead.
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Speaker 2: And she did the math sort of about what that means,
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Speaker 2: which you had mentioned before. Explain the concerns that the
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Speaker 2: Liberals have about ever expanding Supreme Court decisions knocking down
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Speaker 2: campaign finance limits.
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Speaker 3: Sure, I think a lot of this has to do
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Speaker 3: with the different views that the majority and the dissenters
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Speaker 3: have about corruption, what does it really mean a quid
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Speaker 3: pro quo? So the majority is taking a very narrow view. Essentially,
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Speaker 3: they say, well, these laws are meant to prevent quid
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Speaker 3: pro quo and corruption, and by that we mean somebody
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Speaker 3: very specifically saying I'm giving five hundred thousand dollars to
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Speaker 3: the party in support of this candidate, and in exchange,
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Speaker 3: I am expecting that I will get some relief from
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Speaker 3: a government investigation, or that subsidies for my industry will
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Speaker 3: be approved, etc.
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Speaker 1: And the justices in.
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Speaker 3: The minority, Justice Kagan and Justices Soda Mayor and Tanji
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Speaker 3: Brown Jackson take a somewhat broader view and say that's
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Speaker 3: overly technical, and everybody knows what's going on, even if
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Speaker 3: I'm not specifically saying, hey, you know, I'm trying to
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Speaker 3: develop a nuclear power plant here and I need approval,
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Speaker 3: and by the way, I'd like to give.
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Speaker 1: Five hundred thousand dollars to the party. That's enough. It's
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Speaker 1: enough to do a nudge nudge, wink wink.
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Speaker 3: You don't have to have someone expressly saying I'm happy
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Speaker 3: to give you five hundred thousand dollars if you approve
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Speaker 3: my nuclear power plant. And there's a lot of force
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Speaker 3: to some of the examples that Justice Kagan gives in
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Speaker 3: that dissent. She points out that the parties can essentially
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Speaker 3: be paying the candidate's bills. And you know, the functional
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Speaker 3: difference between someone donating to the candidate to pay the
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Speaker 3: candidate's bills or donating to the party to pay the
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Speaker 3: candidate's bills.
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Speaker 1: Can be hard to discern.
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Speaker 3: So essentially, now, even though in in name there's a
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Speaker 3: seven thousand dollars limit on what an individual can give
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Speaker 3: to a particular candidate, the party can simply say, we're
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Speaker 3: going to take the money that this individual gave us,
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Speaker 3: and we'll pay your electricity or your rent, will pay
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Speaker 3: for your ads. So she's taking, I think of a
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Speaker 3: more practical.
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Speaker 2: View from what I've been reading. In the short term,
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Speaker 2: at least, this is a win for Republicans. President Trump
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Speaker 2: actually said it's a big win for Republicans. Explain why
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Speaker 2: Republicans might benefit more than Democrats.
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Speaker 1: Yeah, that's right. In the short term.
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Speaker 3: I mean, of course, parties and donors and candidates are
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Speaker 3: pretty good at figuring out how to play by whatever
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Speaker 3: the rules are. As the rules adapt to adapt their
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Speaker 3: own strategies. But right now, the Republican Party itself has
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Speaker 3: been better at fundraising than the Democratic Party. If you're
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Speaker 3: looking in the national committees, they have greater number of
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Speaker 3: donors who are ready willing and able to write.
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Speaker 1: The checks in the hundreds of thousands of dollars.
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Speaker 3: And that's why this case was originally brought by Republicans.
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Speaker 3: It's the National Publican Senatorial Committee.
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Speaker 1: It was originally. JD.
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Speaker 3: Vance when he was a candidate in Ohio, challenged some
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Speaker 3: restrictions against the coordinating. That being said, at least on
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Speaker 3: its face, the ruling frees the Democratic Party or and
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Speaker 3: in some future party freese that party up to spend
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Speaker 3: as much money as it wants as well in coordination
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Speaker 3: with other candidates. Big question for the longer term, though,
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Speaker 3: is whether benefits one party or not. It certainly benefits
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Speaker 3: people who have the ability to write really big checks.
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Speaker 3: Back in the nineteen seventies, after Watergate, when Congress passed
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Speaker 3: the federal Election campaign at the idea was to try
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Speaker 3: to limit the ability of large donors and large interests
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Speaker 3: to impact government policy just by writing big checks. It's
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Speaker 3: difficult to see how that is not undermined somewhat by
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Speaker 3: this ruling. Maybe it's correct ruling, correct application of the
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Speaker 3: First Amendment. I'm not stating a position on that, but
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Speaker 3: I think it's hard to deny that this really will
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Speaker 3: amplify the voices of individuals and industries with the deepest pockets.
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Speaker 2: Are we going to see more TV ads now, and
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Speaker 2: even more political TV ads because of the candidates getting
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Speaker 2: lower rates for TV ads?
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Speaker 3: Well, you know, June, it's hard to imagine seeing more
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Speaker 3: ads than we sometimes see during the political campaign season,
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Speaker 3: but it does seem likely that you will have more
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Speaker 3: money going into television ads now because as you adverted
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Speaker 3: to their typically A party and pats and other organizations
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Speaker 3: did not get the same favorable rates that candidates campaigns did,
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Speaker 3: and now that's essentially out the window because the campaigns
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Speaker 3: can just pay the bills. So we may yet see
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Speaker 3: even more ads, not just on TV, but they're going
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Speaker 3: to be popping up on your computer as well. It's
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Speaker 3: going to be very good for political consultants, I'm sure,
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Speaker 3: and for TV stations as more money flows in. There
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Speaker 3: are a whole bunch of other folks in the ecosystem
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Speaker 3: who will benefit as well.
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Speaker 2: So tell us about this long line of decisions where
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Speaker 2: the Supreme Court has been cutting back on campaign finance regulations.
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Speaker 2: The one that stands out to me is the Citizens
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Speaker 2: United case, which I think during the oral arguments in
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Speaker 2: this case, Justice Alito mentioned that Citizens United was still
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Speaker 2: a much maligned case.
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Speaker 3: He's still fairly maligned, yes, much and unfairly maligned.
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Speaker 2: And no one can forget the video of Justice Alito
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Speaker 2: shaking his head when Barack Obama criticized Citizens United during
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Speaker 2: a State of the Union address. So tell us about
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Speaker 2: this string of cases.
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Speaker 3: If there's been an evolution over an even longer period,
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Speaker 3: going about back about fifty years. So the first case,
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Speaker 3: and the landmark case, was in the nineteen seventies and
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Speaker 3: it was called Buckley versus Valea. And they're the candidate
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Speaker 3: had it was either a candidate or a donor, it's
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Speaker 3: escape ingamy right now. Had challenged the federal campaign laws
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Speaker 3: contribution limits and disclosure requirements, and the Court upheld though
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Speaker 3: saying it's entirely proper for these anti corruption reasons to
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Speaker 3: place limits dollar limits on how much can be contributed
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Speaker 3: to a campaign and to require disclosure. And it articulated
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Speaker 3: this anti corruption rationale, and I think in somewhat broader
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Speaker 3: terms than the court today does.
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Speaker 1: And then, if you remember, there was a law.
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Speaker 3: Passed in the early two thousands, sometimes known as McCain
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Speaker 3: fine Gold. Formal name was the Bipartisan Campaign Reform at
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Speaker 3: and the McCain fine Gold Act said that national party
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Speaker 3: committees couldn't raise or spend funds that mentioned federal candidates
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Speaker 3: with in a certain I think it was thirty days
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Speaker 3: of an election if they were financed with corporate or
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Speaker 3: union funds. And there was a case in two thousand
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Speaker 3: and three called McConnell versus the FEC, which largely upheld
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Speaker 3: McCain fine Gold, and it upheld the soft money ban
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Speaker 3: and disclosure rules and had a fairly broad conception again
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Speaker 3: of corruption and this possibility of circumventing the donor rules
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Speaker 3: by party and outside groups. Now, there was another decision
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Speaker 3: in two thousand and seven Wisconsin Rights to Life, which
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Speaker 3: coughed out an exemption that we're probably all familiar with,
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Speaker 3: and it said that corporations or other organizations could still
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Speaker 3: have electioneering communications.
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Speaker 1: That are issue ads.
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Speaker 3: So that's why you'll sometimes see these ads that say
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Speaker 3: call your representative now, or call Senator Sell and So
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Speaker 3: and say that you disagree with having people pouring over
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Speaker 3: our border with no restrictions. It's obvious that their campaigning
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Speaker 3: against Senator Sell and So. But if it's framed as
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Speaker 3: issues at it was permissible under that rule.
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Speaker 1: Citizens United, of.
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Speaker 3: Course came next, and that was the real earthquake Citizens
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Speaker 3: United in twenty ten.
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Speaker 1: It was a transformative shift.
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Speaker 3: It overruled some parts of the McConnell decision and some
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Speaker 3: prior decisions, and it really narrowed It said that, of
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Speaker 3: course political speech is protected by the First Amendment, regardless
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Speaker 3: of whether the sources of corporation, and it narrowed campaign
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Speaker 3: finance regulation really to preventing these quid pro quo scenarios
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Speaker 3: or its appearance, and it opened the door to unlimited
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Speaker 3: corporate spending.
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Speaker 1: There's one other recent case that came up a lot
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Speaker 1: in the oral argument here.
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Speaker 3: It's called McCutcheon versus the FEC from twenty fourteen, and
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Speaker 3: that struck down aggregate limits on how much any individual
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Speaker 3: could give to all federal candidates. There used to be
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Speaker 3: a rule that said, in addition to a limit on
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Speaker 3: how much I can give to candidate A, I can
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Speaker 3: only give a certain amount to all federal candidates in
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Speaker 3: a particular election cycle. That was struck down on the
15:02
Speaker 3: same rationale that we already have limits on how much
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Speaker 3: you can give an individual candidate. We have disclosure and
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Speaker 3: that's enough. You can see how each new challenge to
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Speaker 3: the remaining restrictions has resulted in, I think, a more
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Speaker 3: and more narrow view of what type of corruption or
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Speaker 3: quid pro quo these laws are aimed at, and it
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Speaker 3: becomes harder and harder to justify these restrictions against the
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Speaker 3: First Amendment interest that here Justice Kavana talks about.
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Speaker 2: In the majority, The majority here overruled two thousand and
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Speaker 2: one decision. That was the second time in two days
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Speaker 2: that the Court overturned a precedent. On Monday, it reversed
15:44
Speaker 2: the ninety year old Humphrey's Executor decision, and Justice Kagan,
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Speaker 2: in her dissent said, the majority must overrule Colorado two
15:53
Speaker 2: to arrive at its outcome. So once again disregards and
15:57
Speaker 2: disrespects the core legal principle of starry decisives. So what's
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Speaker 2: your take on the conservative majority and their respect for president?
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Speaker 3: There are certainly a pattern, right, So the decision that
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Speaker 3: was overturned here that you're referring to was from the
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Speaker 3: early two thousands called Colorado two, and traditionally, obviously this
16:22
Speaker 3: was something that was discussed a lot in the Dobbs
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Speaker 3: decision as well. But the standard has been over the
16:27
Speaker 3: years that the court should or can overturn a precedent
16:34
Speaker 3: only in unusual circumstances, and that there has to be
16:38
Speaker 3: a very high bar, something other than just that the
16:43
Speaker 3: court thinks the prior decision was wrong. And here Justice Kevanaugh,
16:49
Speaker 3: writing for the majority, said, well, subsequent developments in the
16:54
Speaker 3: case law suggests that in this Colorado two decision, which
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Speaker 3: had upheld the restrictions that were struck down in this case,
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Speaker 3: Justice Kavin I said, well, since that time, the standard
17:06
Speaker 3: that we use for balancing has changed, and we apply
17:09
Speaker 3: a closer type of scrutiny to restrictions on the First Amendment.
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Speaker 3: But as Justice Kagan points out, essentially in this decision,
17:16
Speaker 3: they applied the same level of scrutiny, and she calls
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Speaker 3: them out, saying that what seems to be happening here
17:24
Speaker 3: and I think you're right, June, it's happened in some
17:27
Speaker 3: other cases. The Court is becoming more comfortable overturning a
17:30
Speaker 3: precedent simply because a majority of justices on the current
17:36
Speaker 3: court think that the prior decision was wrong, rather than
17:40
Speaker 3: that there is some unusual and identifiable need to overturn
17:48
Speaker 3: people settles expectations.
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Speaker 2: Justice Kegan quoted from a dissent by Justice Stephen Bryer
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Speaker 2: in the McCutcheon case, where he said that the decision
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Speaker 2: eviscerates our nation's campaign finance laws, leaving a remnant. And
18:03
Speaker 2: at the end of her descent, she said, I'm not
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Speaker 2: sure what to call a remnant of a remnant, but
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Speaker 2: that is what the Court has left today.
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Speaker 6: Is this the end?
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Speaker 2: Or do you think there'll be more attacks on what's
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Speaker 2: left of campaign finance laws?
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Speaker 3: There still are limits that was uphelden Bucklet and versus
18:22
Speaker 3: Philia in the nineteen seventies. So there's seven thousand dollars
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Speaker 3: limit to an individual candidate, and these limits which the
18:29
Speaker 3: majority in descent debate, or they debated at least at
18:31
Speaker 3: the oral argument about is it technically forty four thousand
18:34
Speaker 3: or is it five hundred thousand. It depends how you
18:37
Speaker 3: characterize it. But there still are some limits. So is
18:40
Speaker 3: the next challenge going to say you know, limits should
18:44
Speaker 3: be out the window as well, or disclosure. Disclosure is
18:48
Speaker 3: still one of the guardrails against corruption that both the
18:54
Speaker 3: Majority and the Descent pointed to here. You can imagine
18:58
Speaker 3: a challenge sometime in future in which a candidate or
19:03
Speaker 3: a party or an organization says that too is not
19:06
Speaker 3: justified by the as certain need to protect the system.
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Speaker 1: It'll be interesting to see.
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Speaker 2: It's been great having you on. Thanks so much for
19:14
Speaker 2: your insights.
19:15
Speaker 6: Andy.
19:16
Speaker 2: That's Andrew Shapiro, a partner in Quinn Emmanuel's appellate practice group.
19:21
Speaker 2: Transgender Rights lost again at the Supreme Court. A divided
19:25
Speaker 2: court upheld state laws that banned transgender girls and women
19:30
Speaker 2: from competing for their schools on female athletic teams, Siding
19:34
Speaker 2: with conservatives and President Donald Trump on a divisive culture
19:38
Speaker 2: war issue. Justice Brett Kavanaugh wrote for the majority, finding
19:43
Speaker 2: that states can separate teams based on biological sex without
19:48
Speaker 2: violating the Constitution or Title nine, a law that bars
19:52
Speaker 2: gender discrimination in schools receiving federal money. Kavanaugh wrote that
19:57
Speaker 2: given the inherent physical differences between the sex is, allowing
20:01
Speaker 2: only biological females to play on women's and girls teams
20:05
Speaker 2: can reduce the risk of physical injury, and ensure fair competition.
20:10
Speaker 2: My guest is Zane McNeil, an attorney from Lawyers for
20:13
Speaker 2: Good Government's Gender Justice and Health Equity team. So will
20:17
Speaker 2: you explain how the court decided that they don't violate
20:22
Speaker 2: the Constitution in Title nine?
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Speaker 7: Yeah, and let me just do some level setting. I
20:27
Speaker 7: guess okay.
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Speaker 8: First, So, for those who don't know about Title nine,
20:30
Speaker 8: it was a federal law passed in nineteen seventy two
20:33
Speaker 8: for hoping sex discrimination schools and education programs or see
20:36
Speaker 8: federal funding. The Buien administration had interpreted it to protect
20:42
Speaker 8: against discrimination of trans folks, and so what the court
20:47
Speaker 8: held was that Title nine allows schools to pretty much
20:53
Speaker 8: say that female sports teams can exclude may exclude trans women,
20:58
Speaker 8: and that West Virginia had permisely maintained the female sports
21:03
Speaker 8: for what they call biological females, which is sort of
21:06
Speaker 8: like a far right talking point. And so their interpretation
21:10
Speaker 8: of Title nine was that when it was drafted, sex
21:16
Speaker 8: could only mean one thing, and that's what they perceive
21:20
Speaker 8: as the anti trans term biological sex or sex assign
21:24
Speaker 8: at birth. For equal protection. You know, we've had a
21:27
Speaker 8: hard time since SCRIMMETI with it. I mean, the nice
21:31
Speaker 8: thing with the decision is it didn't go as horribly
21:35
Speaker 8: as they possibly could have gone. The court held that
21:38
Speaker 8: West Virginia and Idaho did not violate equal Protection Clause
21:41
Speaker 8: or the Porte by maintaining these, you know, quote unquote
21:44
Speaker 8: female sports teams for quote unquote biological females. They used
21:48
Speaker 8: intermediate scrutiny, so they looked at it as it being
21:52
Speaker 8: sex discrimination or aligning based on sex, and they held,
21:57
Speaker 8: even though it had this sort of heightened scrutiny, that
22:01
Speaker 8: the states didn't actually violate that or really they were
22:05
Speaker 8: able to show that it was at least connected to
22:09
Speaker 8: the purpose of the specific language here. The Eagle Production
22:13
Speaker 8: clause allowed schools to maintain separate teams for female and
22:15
Speaker 8: male athletes. Schools can determine eligibility based on the quote
22:19
Speaker 8: biological sex constitutionally justified by the what they consider vitally
22:23
Speaker 8: important interests of safety and competitive fairness, and so the
22:26
Speaker 8: sex based classification is justified. States don't need to make
22:30
Speaker 8: case by case exceptions. So they found that it was
22:32
Speaker 8: substantially related to the important government objective, But that was
22:35
Speaker 8: challenged in one of the concurrences sodemo Or, Kegan and
22:41
Speaker 8: Jackson concurred and dissented in part. Soina Mayor was arguing
22:45
Speaker 8: that there could still be fact finding about whether that
22:48
Speaker 8: was connected enough based on bpj's specific facts.
22:52
Speaker 2: Has it been proven, has it been shown that there
22:55
Speaker 2: are more injuries when there are transgender athletes in female sports?
23:02
Speaker 7: That's what the states say, right.
23:04
Speaker 8: Twenty seven states do restrict sports and athletics based on
23:09
Speaker 8: your sex assign of birth.
23:11
Speaker 7: The facts are really up in the air. It's not
23:14
Speaker 7: known for sure, you know.
23:15
Speaker 8: And one of the things we've seen with far right
23:16
Speaker 8: talking points too, is that maybe trans girls are trying
23:18
Speaker 8: to cheat their way into women's sports, right or take
23:21
Speaker 8: away opportunities from girls.
23:22
Speaker 7: And that's not the truth.
23:23
Speaker 8: Transgender girls are not biological males, even though the court
23:26
Speaker 8: might have used that term throughout.
23:29
Speaker 7: And what the.
23:30
Speaker 8: Concurrence in Part Descent in Part says is that BBJ,
23:34
Speaker 8: specifically because she was put on puberty blockers, had never
23:38
Speaker 8: gone through what is seen as like male puberty. Even
23:42
Speaker 8: if there were certain facts or studies saying that some
23:47
Speaker 8: trans girls have this quote unquote advantage, that wouldn't be
23:50
Speaker 8: the case for BBJ and so the concurrence and dissent
23:53
Speaker 8: had argued that there need be additional facts about whether
23:57
Speaker 8: the stated necessarily used her an exception to the law.
24:00
Speaker 2: How did the majority distinguish boss Stock from twenty twenty,
24:05
Speaker 2: which is based on Title seven's ban on sex discrimination
24:08
Speaker 2: in employment and saying that that protects gay and transgender workers.
24:13
Speaker 2: Was that distinguished from this case?
24:16
Speaker 8: Yeah, so they said that Title seven and boss Stock
24:19
Speaker 8: weren't just not relevant because of the different statutory and
24:21
Speaker 8: factual context. So Title seven, you know, would be employment
24:25
Speaker 8: while Title nine was on sports, and then yeah, boss
24:29
Speaker 8: Stock was not connected because the question was different there.
24:34
Speaker 8: I do want to just highlight that, you know, it
24:37
Speaker 8: is concerning you know, Gorset in his concurrence seems to
24:41
Speaker 8: really want to expand this decision, right it despite Boss Stock.
24:46
Speaker 8: You know, the Biden administration had perceived Boss Stock as
24:49
Speaker 8: being this broad protection that the Trump administration immediately when
24:53
Speaker 8: they came into office started to try to undermine. Right,
24:56
Speaker 8: and the Court, especially in concurrence, seems interesting, did in
25:01
Speaker 8: really limiting Boss Stock to the specific facts of that
25:04
Speaker 8: case and unemployment. And I think that shows that we
25:09
Speaker 8: might have really troubling times ahead.
25:11
Speaker 6: Tell us more about that.
25:13
Speaker 8: Yeah, So, as we know, the Trump administration, right when
25:16
Speaker 8: he came into office started signing anti trans executive orders,
25:20
Speaker 8: made it the policy of the United States, you know,
25:22
Speaker 8: to keep trans folks from participating in sports that align
25:25
Speaker 8: with their gender identities, implemented anti trans definitions of sex.
25:28
Speaker 8: Attacid Secretary of Education to prioritize these Title nine enforcement
25:31
Speaker 8: actions against educational institutions were sent in guidance documents on
25:35
Speaker 8: transgender quality, inclusive and non discriminary school environments for LGBTQ students,
25:40
Speaker 8: supporting transgender youth in sports, and we've seen the Department
25:43
Speaker 8: of Education arguing the Title nine is not only permissive
25:45
Speaker 8: of sport bands, but also require them, and have been
25:48
Speaker 8: investigating schools who have such gender ferring policies relating to
25:51
Speaker 8: even bathrooms and locker rooms in addition to sports.
25:54
Speaker 7: There's dozens of.
25:54
Speaker 8: These cases that I imagine the Trump administration will take this
25:59
Speaker 8: case and really run with it. We've also seen the
26:01
Speaker 8: Alliance Defending Freedom, which is designated a hate group by
26:04
Speaker 8: the Southern Poverty Law Center, already signaling that they're going
26:07
Speaker 8: to use this case of file increasing lawsuits against schools
26:09
Speaker 8: with gender perming care policies.
26:11
Speaker 2: Kavanaugh said that the law can't plausibly be interpreted to
26:16
Speaker 2: refer to anything other than biological sex and not gender identity.
26:21
Speaker 6: Explain why that makes a difference.
26:24
Speaker 7: Specifically around Title nine.
26:26
Speaker 8: Right, it protects against sex discrimination, and so what Kavanaugh
26:30
Speaker 8: is saying there and what every other justice says there
26:34
Speaker 8: is that cannot be interpreted as including sex discrimination broadly, right,
26:40
Speaker 8: so including discrimination on gender identity or like transgender status.
26:44
Speaker 8: And therefore the s West Virginia is not in violation
26:47
Speaker 8: of Title nine by having this band that affects PPJ
26:51
Speaker 8: because it's specific to sex aside at birth. You know,
26:54
Speaker 8: the decision and the Trump administration, they're really using terms
26:59
Speaker 8: that have been employed to go after an increased discrimination
27:04
Speaker 8: against trans people.
27:06
Speaker 2: What parts of the opinion did the liberals dissent from
27:11
Speaker 2: and what parts did they concur in?
27:14
Speaker 7: They concurred in Title nine.
27:15
Speaker 8: So they agreed with the majority that Title nine is
27:20
Speaker 8: not a violation for these states to have these sports bands. Again,
27:23
Speaker 8: it's may not have to So states may create these
27:27
Speaker 8: sports bands, but it's not mandated under Title Knights. It's
27:30
Speaker 8: not in violation of Title nine. The difference was around
27:34
Speaker 8: equal protection. The majorities were mandated down to the courts,
27:38
Speaker 8: you know, for the preceising since system of the opinion.
27:40
Speaker 8: But the question that the liberals had was that there
27:45
Speaker 8: should be more fact finding. You know, like I said before,
27:48
Speaker 8: BPJ is is a specific case. She did not go
27:53
Speaker 8: through what is seen as like male puberty, you know,
27:56
Speaker 8: and they she didn't get to have those.
27:59
Speaker 7: Facts in those considerations.
28:01
Speaker 8: And you know, the liberals said that the Court's equal
28:04
Speaker 8: protection precedents and majority neither required nor support what they
28:07
Speaker 8: considered contorted logic, and really said that there was a
28:11
Speaker 8: outstanding factual dispute that should have prevented the court's resolution
28:15
Speaker 8: of her claim.
28:17
Speaker 2: One of the plaintiffs here wanted to drop the case.
28:20
Speaker 2: She was no longer participating in sports, and she was
28:25
Speaker 2: approaching graduation. That was in the Idaho case, and I'm
28:29
Speaker 2: wondering why the Supreme Court didn't allow her to drop out.
28:33
Speaker 8: So in kee Cox had brought the equal protection claim.
28:36
Speaker 8: BPJ is the one who brought the Title nine claim.
28:39
Speaker 8: And so you know, in my opinion, it's it seems
28:43
Speaker 8: really harmful, right that they didn't let her drop the case,
28:47
Speaker 8: right because she was facing such amounts of harassment and discrimination.
28:51
Speaker 8: You know, having her name on these cases really increased
28:55
Speaker 8: rates of discrimination. I'm very proud, you know, of BPJ
28:59
Speaker 8: and he Cox for fighting for themselves and fighting for
29:02
Speaker 8: trans youth because they.
29:03
Speaker 7: Just wanted to, you know, play on sports teams.
29:06
Speaker 8: They wanted to be there with their friends, and they
29:07
Speaker 8: fought for themselves in their community.
29:10
Speaker 7: I don't know why the court didn't let Heacock drop
29:13
Speaker 7: the case.
29:13
Speaker 8: I think they are said that there was already so
29:16
Speaker 8: much in here, so much fact finding, you know, there's
29:18
Speaker 8: so much briefing on it, so why not.
29:21
Speaker 7: But from the actual claims.
29:23
Speaker 8: Brought, I don't see how they could be different, like
29:25
Speaker 8: if it was just BPJ.
29:27
Speaker 2: Well, thanks so much for joining me today, that's saying McNeil,
29:31
Speaker 2: an attorney for Lawyers for Good Government's Gender Justice and
29:35
Speaker 2: Health Equity Team. Former NBA players Malik Beasley and Edward Davis,
29:42
Speaker 2: as well as sports agent Paulo Zamorano, and three others,
29:46
Speaker 2: have been charged by federal prosecutors in an expanding illegal
29:50
Speaker 2: sports betting probe. According to the unsealed indictment, Beasley agreed
29:55
Speaker 2: with his former teammate Davis to underperform or overperform in
29:59
Speaker 2: games leading insiders to make bets on how many points
30:03
Speaker 2: or rebounds he would collect in a game. His attorneys said,
30:07
Speaker 2: we look forward to vigorously defending Malik against any of
30:10
Speaker 2: these charges. The case is the latest to emerge from
30:14
Speaker 2: a long running federal investigation into the sports industry that's
30:18
Speaker 2: already led to charges against NBA player Terry Roser and
30:22
Speaker 2: two MLB pictures on the Cleveland Guardians, My guest is
30:26
Speaker 2: Marissa Darden, chair of the Government Investigations and white collar
30:29
Speaker 2: practice at Benish Law. Marissa tell us about the charges here.
30:34
Speaker 9: So two days ago, the US Attorney's Office for the
30:37
Speaker 9: Eastern District of New York unsealed an indictment charging in
30:41
Speaker 9: another six individuals with a conspiracy to commit money laundering
30:47
Speaker 9: on a services product and violating anti petty statutes. And
30:50
Speaker 9: this seems like this investigation had been going on for
30:53
Speaker 9: over a year. At least one of the defendants in
30:56
Speaker 9: the case knew about it. That was Milink Beasley, one
30:59
Speaker 9: of the former and NBA players, and it had been
31:02
Speaker 9: publicly reported over a year ago that he was under
31:04
Speaker 9: investigation for gambling illegal gambling. And this is another indictment
31:09
Speaker 9: coming from the same US Attorney's Office that previously had
31:13
Speaker 9: indicted some other NBA players late last year for a
31:17
Speaker 9: similar crime. So it seems like this is something that
31:19
Speaker 9: they've been looking into for a while.
31:21
Speaker 2: Explain exactly what they're accused of, you know, the tweaking
31:25
Speaker 2: their performance on these so called prop bits.
31:28
Speaker 9: So two of the defendants in this sixth defendant conspiracy
31:33
Speaker 9: are former NBA players, one is an agent one of
31:38
Speaker 9: the agents of the former NBA players, that's Malik Beasley
31:41
Speaker 9: and Edward Davis. And the other individuals would have been,
31:45
Speaker 9: you know, sort of friends, hangers on, keep parts of
31:47
Speaker 9: their entourage that were assisting in creating these prop bets.
31:51
Speaker 9: And there were several games that the US Attorney's Office
31:54
Speaker 9: actually lists right in the conspiracy as part of the
31:58
Speaker 9: online gambling during scheme where the players were actually making
32:04
Speaker 9: decisions early on and discussing with each other that they
32:06
Speaker 9: were going to either shave points or score less rebounds
32:10
Speaker 9: or do any kind of manipulation for purposes of hitting
32:14
Speaker 9: side parlay bets in certain games, which includes a twenty
32:18
Speaker 9: twenty four Milwaukee Bucks Cleveland Cavaliers game, a Charlotte Hornet's
32:23
Speaker 9: game against the Bucks, and this was when again, Beasley
32:27
Speaker 9: and Davis were both playing in the NBA, so I
32:31
Speaker 9: can imagine that the NBA is very concerned about these
32:35
Speaker 9: allegations and has publicly stated that they're cooperating in the
32:38
Speaker 9: government's investigation.
32:40
Speaker 2: How much did Beasley make in this alleged scheme, because
32:45
Speaker 2: he made about sixty million dollars during his NBA career.
32:49
Speaker 9: They don't give a total amount in the conspiracy, but
32:53
Speaker 9: you can imagine it's in the hundreds of thousands of
32:55
Speaker 9: dollars or more. I mean, as you noted, both these
32:58
Speaker 9: individuals were making millions of dollars, although it's been publicly
33:02
Speaker 9: reported that Beasley and Davis were in financial trouble, particularly
33:05
Speaker 9: after they left the league. And I think it was
33:08
Speaker 9: mister Beasley who was in the midst of securing a
33:10
Speaker 9: forty two million dollar multi year contract with the Detroit
33:15
Speaker 9: Pistons when the news.
33:16
Speaker 4: Of this investigation in summer of twenty twenty five came out.
33:20
Speaker 9: So the money, the actual total amount, is really less
33:24
Speaker 9: of an issue here June, mostly because the statutes don't
33:28
Speaker 9: require a threshold dollar amount in order to violate the law.
33:33
Speaker 2: I think it was in October of last year there
33:36
Speaker 2: were the arrests of Terry Rosier and Chauncey Billups. Is
33:40
Speaker 2: it the same investigation that's ongoing or is it look
33:44
Speaker 2: like a different investigation?
33:46
Speaker 9: Again, the US Attorney's Office doesn't say, and so we
33:51
Speaker 9: really don't know whether this all stems from the same
33:53
Speaker 9: investigation or is part of something different. But you can
33:57
Speaker 9: expect that this is something that the NBA and the
34:02
Speaker 9: US Attorney's Office has been looking at for a long time,
34:06
Speaker 9: and if they believe that there are more than one
34:09
Speaker 9: or more than just a handful of players, that the
34:11
Speaker 9: FBI would have established a task force or some other
34:14
Speaker 9: sort of designated team of investigators to look into these
34:19
Speaker 9: allegations and to try to figure out whether this is
34:22
Speaker 9: a systemic problem.
34:24
Speaker 2: In the other indictment, the three defendants in the similar
34:27
Speaker 2: gambling case, an assistant coach Damon Jones has pleaded guilty,
34:32
Speaker 2: so he'll be testifying and I guess that's where a
34:35
Speaker 2: lot of the information will come at trial.
34:37
Speaker 6: Do we know if he's involved in this case as well?
34:40
Speaker 9: Not currently, although the indictment does list several unindicted co
34:45
Speaker 9: conspirators in this case, that are they're just named as
34:49
Speaker 9: sort of co conspirator one or co conspirator two, some
34:51
Speaker 9: of whom were residents of Arizona and in Brooklyn, and
34:54
Speaker 9: there may be some overlap there, and those individuals who
34:58
Speaker 9: are named in the indictment and who are known.
34:59
Speaker 4: To the granjury would be likely to testify a trial.
35:02
Speaker 2: And also there were similar indictments against MLB players.
35:08
Speaker 9: Yes, there's a pending case of former Cleveland Guardians players
35:13
Speaker 9: in my hometown of Cleveland, Ohio that is pending in
35:17
Speaker 9: the Southern District of New York for similar allegations. And
35:21
Speaker 9: fans of the MLB may also know that famous La
35:25
Speaker 9: Dodger Shani otanis his translator and confidant, has been accused
35:30
Speaker 9: of illegal gambling. So it's become pretty rampant, you know,
35:34
Speaker 9: since twenty eighteen twenty nineteen, when sports gambling was made
35:38
Speaker 9: legal and a lot of these online prop bet companies
35:41
Speaker 9: have come up, it's getting harder and harder for the
35:44
Speaker 9: major sports leagues to clamp down on this. I think
35:47
Speaker 9: the NFL has probably done the best at it, but
35:51
Speaker 9: NBA and MLB certainly have had their public share of issue.
35:57
Speaker 2: According to let's see the American Association the American Sports
36:03
Speaker 2: Betting Industry wagered nearly one hundred and fifty billion dollars
36:06
Speaker 2: on sports in twenty twenty four, up more than twenty
36:10
Speaker 2: three percent from a year earlier. Those numbers are astonishing.
36:14
Speaker 2: What is the NFL done that the NBA and the
36:19
Speaker 2: MLB haven't done.
36:22
Speaker 4: I think it's a couple of things.
36:24
Speaker 9: Number One, the NFL ownership structure and group is very
36:30
Speaker 9: heavy handed, and the players understand that they have to
36:35
Speaker 9: abide by the rules. Their player association is not as
36:38
Speaker 9: strong as the MLB or the NBA by any stretch
36:42
Speaker 9: of the imagination. The owners have a ton of control,
36:45
Speaker 9: and so as a general rule, I think when edicts
36:48
Speaker 9: are made by the NFL, by Roger Goodell and the ownership,
36:53
Speaker 9: they are followed because there just aren't a lot of
36:55
Speaker 9: other options. Right if you play football, persue, the odds
36:58
Speaker 9: of you getting into the NFL so low the numbers
37:01
Speaker 9: are really against your favorite, and so people follow the rules.
37:04
Speaker 9: The second thing is, I think it's been a lot
37:07
Speaker 9: harder to create side and parlay bets side.
37:10
Speaker 4: Bets rather than just on major games.
37:12
Speaker 9: So it's easier in the NBA or the MLB to
37:15
Speaker 9: break down statistics in very easy ways that players can control,
37:20
Speaker 9: as opposed to the NFL, where there's a whole lot
37:22
Speaker 9: of other factors involved that make it a lot harder.
37:25
Speaker 4: To create parlay bets.
37:27
Speaker 9: Third, I think most importantly is the culture of sports
37:32
Speaker 9: betting has been more embedded from a fan perspective, I
37:36
Speaker 9: think in the NBA than either of the other professional sports.
37:39
Speaker 9: I can't speak to hockey, but certainly in the NFL
37:42
Speaker 9: and in MLB. You go to any sports stadium right
37:47
Speaker 9: now that has NBA games that play in it, there
37:49
Speaker 9: are several locations where there are betting facilities on the premises.
37:55
Speaker 9: And so there's been a real integration of sports betting
37:58
Speaker 9: into the fandom in a way, particularly in basketball, that
38:02
Speaker 9: there hasn't been in some of the other sports.
38:04
Speaker 4: And I think you're seeing the consequence of that.
38:07
Speaker 2: I mean, the things that they're accused of don't affect
38:10
Speaker 2: the final score, do they? So does that make it
38:13
Speaker 2: hard to find the violation the gambling?
38:15
Speaker 9: I don't think we can say that. I mean, if
38:17
Speaker 9: you have individuals who are accused of, you know, not
38:21
Speaker 9: getting as many rebounds as they would normally go after,
38:24
Speaker 9: or you know, faking an injury like in the in
38:27
Speaker 9: the chouncy Billups indictment. There was one player who you
38:31
Speaker 9: know went out in the second quarter of a game
38:33
Speaker 9: as part of his side bet, you know, sort of conspiracy,
38:37
Speaker 9: and so I think there is a bottom line effect
38:40
Speaker 9: on the outcome of the game. But to your point, Dune,
38:45
Speaker 9: the breakdown of each individual statistic or each individual player's
38:50
Speaker 9: responsibility or role makes it harder to you know, look
38:55
Speaker 9: at this sort of plainly and say they shaved points, right.
38:58
Speaker 9: This is sort of like not your or grandpa's sports
39:01
Speaker 9: betting conspiracy of thirty years ago, where people were much
39:05
Speaker 9: more blatantly obvious about how they would shave points or how.
39:08
Speaker 4: You know, they would go about this. So it's much
39:10
Speaker 4: harder to detect.
39:11
Speaker 9: And that's part of the reason why the NBA, I think,
39:13
Speaker 9: hasn't rooted it out from the beginning without government intervention,
39:17
Speaker 9: is because they just don't have a way of seeing
39:20
Speaker 9: what individual players are discussing outside of the locker room.
39:23
Speaker 2: The NBA has said that they're cooperating with the government,
39:28
Speaker 2: do you know if they're doing anything else on their
39:30
Speaker 2: own to try to stem this.
39:33
Speaker 9: I don't have any specific knowledge of the NBA, you know,
39:37
Speaker 9: doing anything. My assumption based on my experience is that
39:42
Speaker 9: the NBA would have hired a am Law fifty, you know,
39:45
Speaker 9: top tier law firm, or an individual who's used to
39:49
Speaker 9: doing high stakes internal investigations such as Loretta Lynch at
39:53
Speaker 9: Paul Weiss or Mary Joe White at Debavoys and Plimpton
39:57
Speaker 9: or other respectable individuals at the highest level of investigations
40:02
Speaker 9: to come in and help do some internal reviews of players,
40:06
Speaker 9: cell phones, player communications staffing, create interview opportunities to talk
40:12
Speaker 9: to key personnel, and then make recommendations for how the
40:16
Speaker 9: NBA can do a better job of ameliorating these problems upfront.
40:22
Speaker 6: Any final thoughts here.
40:23
Speaker 9: The whole industry I think is really due for reckoning.
40:26
Speaker 9: And I'm just as a bystander, as a fan, as
40:29
Speaker 9: a lawyer, I'm very interested to see how the leagues
40:32
Speaker 9: continue to respond, either publicly or privately. You know, one
40:36
Speaker 9: of the things that is a common denominator in all
40:40
Speaker 9: white collar criminal defense cases is if they take the phone,
40:43
Speaker 9: you know that there's a problem.
40:45
Speaker 4: And in these cases they're often.
40:47
Speaker 9: Made by the text messages between you know, co conspirators,
40:50
Speaker 9: and so you have to wonder, like, is the NBA
40:52
Speaker 9: going to start giving out phones Are there going to
40:55
Speaker 9: be different cell phone usage policies?
40:58
Speaker 4: What can they negotiate with the Players.
40:59
Speaker 9: Association about the type of communications that are going to
41:02
Speaker 9: be monitored?
41:03
Speaker 4: Are you going to have to turn over your phone.
41:05
Speaker 9: As an employee of the NBA or as an employee
41:07
Speaker 9: of a franchise. That type of information, I think is
41:10
Speaker 9: what will be interesting to see as we move forward.
41:13
Speaker 2: Oh those text messages, Thanks so much, Marissa. That's Marissa
41:17
Speaker 2: Darden of Benish Law. And that's it for this edition
41:20
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