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Campaign Finance Caps & Who Gets the Dog? · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.
0:08
Speaker 2: The Supreme Court is considering a Republican led effort to
0:12
Speaker 2: erase yet another campaign finance regulation, this time the federal
0:17
Speaker 2: caps that limit how much political parties can spend in
0:21
Speaker 2: coordination with candidates for Congress. It's the latest in a
0:26
Speaker 2: line of cases where the conservative majority has upended congressionally
0:31
Speaker 2: enacted limits on raising and spending money to influence elections,
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Speaker 2: and two hours of oral arguments showed the entrenched divisions
0:40
Speaker 2: between the liberal and conservative justices over campaign finance restrictions.
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Speaker 2: Liberal Justice Sonya Sotomayor said that every time the Court interferes,
0:52
Speaker 2: it makes matters worse.
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Speaker 3: You're telling us that citizens United and McCutcheon ended up
1:00
Speaker 3: yes in amplifying the voice of corporations, but diminsion sing
1:05
Speaker 3: another voice, that of the party. Now you want to
1:08
Speaker 3: now tinker some more and try to raise the voice
1:13
Speaker 3: of one party. Our tinkering causes more harm than it
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Speaker 3: does good, because once we take off this coordinated expenditure limits,
1:28
Speaker 3: then what's left. What's left is nothing, no control whatsoever.
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Speaker 2: While Conservative Justice Brett Kavanaugh said that the spending limits
1:40
Speaker 2: have hurt political parties in an era of unlimited spending
1:44
Speaker 2: by other organizations.
1:47
Speaker 4: That's the real source of the disadvantage. Right, you can
1:49
Speaker 4: give huge money to the outside group, but you can't
1:52
Speaker 4: give huge money of the party. So the parties are
1:55
Speaker 4: very much weakened compared to the outside groups.
1:57
Speaker 2: And Chief Justice John Roberts, a potentially pivotal vote, said
2:02
Speaker 2: that he didn't see much distinction between contribution limits, which
2:07
Speaker 2: the Court has long upheld, and caps on coordinated expenditures.
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Speaker 1: It seems to me that that's kind of a fiction
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Speaker 1: that you know, they're just coordinating expenditures, they're not making
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Speaker 1: direct contributions.
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Speaker 3: I don't know in substance what the difference is.
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Speaker 2: Doing away with the caps would overturn a quarter century
2:27
Speaker 2: old precedent in a week when it appears that the
2:30
Speaker 2: Court will also be overturning a ninety year old president
2:34
Speaker 2: in a case involving President Trump's ability to fire the
2:38
Speaker 2: heads of independent agencies. Joining me is elections law expert
2:42
Speaker 2: Richard Brefald, a professor at Columbia Law School. Rich Well,
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Speaker 2: you start by explaining the federal caps on spending by
2:50
Speaker 2: political parties in coordination with candidates.
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Speaker 1: So the Federal Ussian Campaign Act, going back to the
2:56
Speaker 1: nineteen seventies when it was enacted in the aftermath of Hortegate,
3:00
Speaker 1: places limits on donations to candidates, and it also places
3:05
Speaker 1: limits on donations to parties. It does something else, It
3:08
Speaker 1: places limits on how much parties can give to candidates,
3:13
Speaker 1: on the theory that donors, once they max out on
3:16
Speaker 1: how much the donor can give directly to a candidate,
3:18
Speaker 1: will then just give to a party to channel the
3:20
Speaker 1: money to a candidate. So there's a limit on how
3:23
Speaker 1: much the parties can give to their candidates. And that
3:25
Speaker 1: comes up in two ways. One is a literal limit
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Speaker 1: on contributions actually writing a check, but the parties are
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Speaker 1: also allowed to engage in their own spending in supportive candidates,
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Speaker 1: and that's called coordinated expenditures. In other words, the party
3:40
Speaker 1: does the spending. They don't give the candidate a check,
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Speaker 1: but they do spending to promote the candidate. Parties are
3:45
Speaker 1: allowed to do that, but the law places a limit
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Speaker 1: on how much money they can spend supporting candidates. And
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Speaker 1: again for the same idea that if there is no
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Speaker 1: limit on how much they could support candidates through spending.
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Speaker 1: Once again, donors who once they max out on the
4:01
Speaker 1: direct donation to the candidate, would then just give unlimited
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Speaker 1: amounts or very big amounts to the parties, and the
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Speaker 1: parties could then use that money to basically support their candidates.
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Speaker 1: So that's what this limit on coordinated spending does. It's
4:15
Speaker 1: higher than the contribution limit, and it varies from state
4:19
Speaker 1: to state based on the population of the state. But
4:22
Speaker 1: parties are allowed to do this in a way that
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Speaker 1: other organizations are not. Packs are not allowed to coordinate
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Speaker 1: at all with candidates. So parties get this extra permission
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Speaker 1: to support the candidates directly, but with a cap on it.
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Speaker 1: And what's going on in this case is the National
4:37
Speaker 1: Republican Senate Campaign Committee and JD. Vance, who this case
4:41
Speaker 1: began was a Senator and a Congressman from Ohio who
4:44
Speaker 1: I think has since retired, have all brought suit challenging
4:47
Speaker 1: this limit on the ability of parties to coordinate their
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Speaker 1: spending with candidates. I should say almost twenty five years ago.
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Speaker 1: The Supreme Court upheld this limit in a case called
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Speaker 1: Color a Republican Aside in two thousand and one, and
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Speaker 1: the Court said yes because of the danger of conduits
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Speaker 1: of party serving as conduits for donor support. These limits
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Speaker 1: make sense and are constitutional. Well, the Sperreme Court is
5:13
Speaker 1: being asked basically now is to overturn that decision.
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Speaker 2: The liberal justices had concerns, and one that lifting the
5:22
Speaker 2: limits on party spending would lead to quid pro quo bribery,
5:26
Speaker 2: so wealthy donors could bypass the individual contribution limits by
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Speaker 2: donating through parties instead.
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Speaker 1: I mean that is the major concern of the liberal
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Speaker 1: justices and of the call of the campaign finance reform
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Speaker 1: community as a whole, is that this will put another
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Speaker 1: hole in the campaign finance laws and make it easier
5:46
Speaker 1: for wealthy donors to channel money to candidates. There's still
5:49
Speaker 1: limits on their ability to give directly, but this would
5:53
Speaker 1: enable them to give through the parties and so that
5:55
Speaker 1: money would still get to candidate. So yeah, that is
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Speaker 1: the core concern. A second con is, depending on how
6:01
Speaker 1: the Court writes this decision, it could be the green
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Speaker 1: light for further challenges to other aspects of a campaign
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Speaker 1: finance laws depending on exactly how.
6:09
Speaker 5: They write this.
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Speaker 1: So it's both upfront making it easier to channel money
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Speaker 1: from donors to candidates and also yet one more case,
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Speaker 1: eroding Congress's ability to place limits on campaign money.
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Speaker 2: What was your take on Justice Soda Mayor telling Nold Francisco,
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Speaker 2: the attorney for the Republicans here, that Elon Musk got
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Speaker 2: his position at DOGE through a quid pro quote.
6:35
Speaker 6: More speech is always.
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Speaker 3: Suggests that the fact that one major donor to the
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Speaker 3: current president, the most major donor to the current current president,
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Speaker 3: got a very lucrative job immediately upon election from the
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Speaker 3: new administration does not give the appearance.
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Speaker 5: With pro quote, Honor.
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Speaker 6: I'm not a one hundred percent sure about the example
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Speaker 6: that you're looking at, but if I am familiar, if
7:09
Speaker 6: I think I know what you're talking about, I have
7:11
Speaker 6: a hard time thinking that his salary that he drew
7:14
Speaker 6: from the federal government was an effective quid pro quote bribery,
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Speaker 6: which may be why nobody has even remotely suggested that.
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Speaker 3: Maybe not the salary, but certainly the lucrative government contracts
7:26
Speaker 3: might be.
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Speaker 1: I mean, I think it's fair to say that the
7:30
Speaker 1: Elon must was by any stretch Trump's biggest supporter, unless
7:34
Speaker 1: the biggest financial supporter in the last election, somewhere in
7:37
Speaker 1: the neighborhood of three hundred million dollars, and I think
7:40
Speaker 1: that allowed him to ask Trump for special favors, including
7:44
Speaker 1: running Doge, which itself you know, obviously he didn't get
7:47
Speaker 1: paid for running Doge, but it put it in a
7:49
Speaker 1: position to influence the personnel and the policies of a
7:53
Speaker 1: lot of agencies that have regulatory functions over a lot
7:57
Speaker 1: of his activities, whether it's the SEC or NASA or
8:01
Speaker 1: other organizations that can affect the industries and businesses that
8:05
Speaker 1: he has.
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Speaker 2: The administration and the Republicans argument centers on free speech
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Speaker 2: rights as these campaign finance cases since Citizens United have
8:17
Speaker 2: done tell us more about that argument.
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Speaker 1: The essential argument is that this is a limit on
8:23
Speaker 1: the ability of parties to speak and that you don't
8:25
Speaker 1: need it. That the combination of disclosure laws, anti bribery laws,
8:30
Speaker 1: and limits on literally earmarking, and that's the term, let's
8:34
Speaker 1: use a donation that a donor gives to a party
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Speaker 1: to be used for a candidate.
8:38
Speaker 5: That that's enough.
8:39
Speaker 1: That those three things banning bribes, requiring disclosure, and saying
8:44
Speaker 1: what a donor gives a party a donation saying they
8:48
Speaker 1: can't literally say this is going to candidate so and so,
8:50
Speaker 1: that that's enough, and that to go beyond that is
8:53
Speaker 1: to constrain the ability of parties as free speech actors,
8:56
Speaker 1: as First Amendment actors to participate in the political process.
9:00
Speaker 1: What do you think, So it's hard to say that
9:02
Speaker 1: this is a big constraint. Parties are free to participate
9:04
Speaker 1: in the process. In a fairly controversial decison thirty years ago,
9:08
Speaker 1: the Supreme Court said that parties are capable of engaging
9:11
Speaker 1: in independent spending. That parties can promote their candidates just
9:15
Speaker 1: as long as they don't coordinate with them, just as
9:17
Speaker 1: long as they don't actually sit down with them and say,
9:19
Speaker 1: what do you want us to say, How do you
9:21
Speaker 1: want us to say it, what media do you want
9:23
Speaker 1: to use? So the court, you know, thirty years ago,
9:26
Speaker 1: created this vehicle for unlimited party participation in elections. So
9:30
Speaker 1: it's hard to say that this is a big constraint.
9:33
Speaker 1: The defenders of the law argue that in practice and
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Speaker 1: coordinated spending, the parties actually don't.
9:40
Speaker 5: Do a lot of literal speech.
9:42
Speaker 1: You're fine, they don't do a lot of actual advertising
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Speaker 1: or promoting that often what it's being used is just
9:48
Speaker 1: to help the candidates pay their bills. So the candidate
9:51
Speaker 1: you know, basically booked a block of hotels is during
9:54
Speaker 1: a campaign swing or you know, was paying for literature
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Speaker 1: or to the candidates, you know, campaign director or makes
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Speaker 1: the commitment buy and then gives the party the bill
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Speaker 1: and says pay this. That's at least the argument that
10:06
Speaker 1: the defenders of the law we're making that in practice,
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Speaker 1: coordinated expenditures are not parties getting out there and saying
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Speaker 1: this is the party message. But there are de facto
10:15
Speaker 1: contributions to help the candidates to freight their bills.
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Speaker 5: That gets constitutional protection.
10:20
Speaker 1: It still enables candidates the campaign, and there's a First
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Speaker 1: Amendment interest, but it's hard to see that this is
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Speaker 1: really squeezing the party's ability to have its own voice.
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Speaker 2: Just as Brett Kavanaugh said, you can give huge money
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Speaker 2: to the outside group, but you can't give huge money
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Speaker 2: to the party, and so the parties are very much
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Speaker 2: weakened compared to the outside group. Is he talking about
10:42
Speaker 2: packs here, is it?
10:43
Speaker 5: Yes, he's talking about super PACs.
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Speaker 1: And indeed, that is an argument that many people have
10:47
Speaker 1: raised who don't like this law, including people who might
10:50
Speaker 1: liberals or reformers. They say this law might have made
10:53
Speaker 1: some sense when it was first adopted, but given the
10:56
Speaker 1: proliferation of super PACs and other outside groups, we be
11:00
Speaker 1: better off if parties actually had a bigger voice, that
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Speaker 1: parties can play a coordination function, that parties maybe can
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Speaker 1: be a little less extreme than some outside groups, that
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Speaker 1: parties have more of an interest in governance rather than
11:12
Speaker 1: being single issue and that actually if we could start
11:15
Speaker 1: all over now that the outside groups have kind of
11:18
Speaker 1: unlimited voice, that anything that strengthens the parties is actually
11:22
Speaker 1: a good thing. And that you see many people who
11:24
Speaker 1: are not conservatives who are taking that position, who are
11:27
Speaker 1: not First Amendment absolutists, but think that in fact, the
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Speaker 1: campaign financystem has gotten unbalanced and it would actually be
11:34
Speaker 1: good to strengthen the role of parties and this could
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Speaker 1: do that.
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Speaker 2: Coming up next, I'll continue this conversation with Professor Richard breflt. So,
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Speaker 2: how is the Court likely to rule? I'm Juan Grasso,
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Speaker 2: and you're listening to Bloomberg. The Supreme Court this week
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Speaker 2: weighed Republican calls for a fresh rollback of campaign finance regulations,
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Speaker 2: questioning federal caps that limit spending by political parties in
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Speaker 2: coordinat with candidates. I've been talking to Columbia Law School
12:03
Speaker 2: professor Richard Brefault, So, rich the Chief Justice suggested that
12:08
Speaker 2: he didn't see much difference between the contribution limits, which
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Speaker 2: the Court has long upheld, and the caps on coordinated expenditures.
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Speaker 2: Do you think there's a chance that the Chief won't
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Speaker 2: vote with the super conservatives on this to do away
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Speaker 2: with the caps, or there's.
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Speaker 1: A chance that it goes the other way, and that
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Speaker 1: once they begin to dismantle limits on coordinate expenditure as
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Speaker 1: contributional limits are next. And there was an interesting point
12:38
Speaker 1: where some of the justices ask mister Francisco, who is
12:41
Speaker 1: the lawyer for the National publican Centate Campaign Committee, well
12:44
Speaker 1: what about that? What about limits on contributions? And he says,
12:47
Speaker 1: I don't want to get into that right now. I
12:49
Speaker 1: kind of want to reserve the right to challenge that
12:51
Speaker 1: down the road. And indeed, some of the liberal justices
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Speaker 1: and the lawyer for people who are defending this law,
12:58
Speaker 1: which I should say is not the government as a
13:00
Speaker 1: federal statute, but the Trump administration will not defend it.
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Speaker 1: In fact, they actually joined in the attack on it.
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Speaker 1: So the statue was being defended by two lawyers. One
13:09
Speaker 1: was a lawyer pointed about the court to speak for
13:11
Speaker 1: the statute. In addition, the lawyer for the Democratic Party
13:14
Speaker 1: for Democratic Organizations also was given permission to argue, and
13:18
Speaker 1: they both argue that basically this is the bate and
13:21
Speaker 1: switch that's been going on in campaign finance law for
13:23
Speaker 1: a long time.
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Speaker 5: Someone says, well, given changes in the law.
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Speaker 1: This particular restriction doesn't make any sense, so you should
13:30
Speaker 1: strike it down. And then they come along and say, well,
13:32
Speaker 1: now you're struck down this one. The next restriction doesn't
13:34
Speaker 1: make any sense either, so strike that down. And there
13:37
Speaker 1: seems to be a kind of a salami tactic aspect
13:39
Speaker 1: to this. A number of the justices are very, very skeptical,
13:42
Speaker 1: more than skeptical about the constitutionality of the contribution restrictions.
13:46
Speaker 1: They don't have to decide that in this case, but
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Speaker 1: the Court has traditionally treated coordinated expenditures as the constitutional
13:53
Speaker 1: equivalent of contributions. If they're going to start protecting coordinated
13:57
Speaker 1: expenditures more, saying that they're more protected from limitation, it's
14:01
Speaker 1: not a big leap to say that that kind of
14:03
Speaker 1: thinking would also apply to the contribution restrictions.
14:06
Speaker 2: The Republicans are bringing this challenge to do away with
14:11
Speaker 2: the federal caps, so one assumes that they would benefit
14:15
Speaker 2: more than the Democrats who are fighting to keep the caps.
14:19
Speaker 2: But Justice Amy Cony Barrett asked the attorney for the
14:23
Speaker 2: Democrats which party would ultimately benefit from a ruling. If
14:29
Speaker 2: there isn't an imbalance in who this benefits, why would
14:32
Speaker 2: the DNC be here? And I believe that was the
14:35
Speaker 2: only question she asked.
14:38
Speaker 1: I think what Barrett was getting at is that the
14:41
Speaker 1: reason you're here, Elias, the.
14:42
Speaker 5: Impressive hear is for pure partisan reasons.
14:44
Speaker 1: That you have less of a merits basis for opposing this,
14:48
Speaker 1: and more you're doing it because you think that this
14:50
Speaker 1: will help the Republicans and if the first knowne requires
14:53
Speaker 1: it, it doesn't matter who's helped, they're not. I think there
14:56
Speaker 1: was also some sort of some effort to figure out
14:58
Speaker 1: why is it if this this is a better restriction
15:01
Speaker 1: on parties, and in fact, why does one party want
15:03
Speaker 1: to strike it down a one party want to keep it?
15:05
Speaker 1: And does it that mean that it operates unevenly across
15:09
Speaker 1: the party? Is not clear that it does, but if
15:11
Speaker 1: it operates unevenly, it suggests that you're opposing it for
15:15
Speaker 1: partisan reasons rather than on a kind of a merits
15:18
Speaker 1: based this is good for democracy.
15:22
Speaker 2: There was also a standing argument that the attorney appointed
15:27
Speaker 2: to defend the law made. It's centered on Vice President JD. Vance,
15:32
Speaker 2: who was a Senate candidate when he originally brought the case.
15:36
Speaker 2: And the argument is that Vance no longer has a
15:39
Speaker 2: stake in the case and so no standing because he's
15:42
Speaker 2: no longer a candidate. And then there was a lot
15:44
Speaker 2: of discussion about, well, is he going to run for president.
15:49
Speaker 2: I don't think this standing argument is going anywhere, but
15:52
Speaker 2: it's interesting, so tell us about it.
15:54
Speaker 1: So Ramon Martinez was the man appointed by the court
15:57
Speaker 1: to defend the law when the government declined to do so,
16:00
Speaker 1: and he opened by saying, this case is a big deal.
16:03
Speaker 1: You know, anytime you're being asked to overturn a president
16:06
Speaker 1: that's twenty five years old, should be very hesitant. You
16:08
Speaker 1: should make sure that this is a case that's jurisdictionally sound.
16:12
Speaker 1: And he basically said it's not for two reasons. One,
16:16
Speaker 1: so this case was brought by some individuals JD. Vance
16:19
Speaker 1: and Congressman Chevaux from Ohio, and also by the National.
16:23
Speaker 5: Republican Senate Committee.
16:24
Speaker 1: With respect to the two individuals, one of them is
16:27
Speaker 1: actually retired and no longer in politics. So that gets
16:29
Speaker 1: it down to Vance, and Vance has pretty clearly said
16:33
Speaker 1: I don't know if I'm running, or more than point,
16:36
Speaker 1: I don't currently have a plan to run. I mean,
16:38
Speaker 1: apparently he was recently quoted saying I might run, I
16:40
Speaker 1: might not run. So mister Martinez's argument was, well, if
16:44
Speaker 1: that's the case, its case isn't ripe. We don't know
16:46
Speaker 1: if he's running, so there's no candidate here to bring it,
16:50
Speaker 1: and therefore there's no plaintiff. He's not a good plaintiff
16:53
Speaker 1: because whether he's going to run a speculative, he doesn't
16:56
Speaker 1: clearly have a stake in this case. And then he
16:58
Speaker 1: met Martinez makes the point that the reason this case
17:01
Speaker 1: goes directly from the district court, it's jump by a
17:04
Speaker 1: three judge panel. There was an appeal within the Sixth Circuit,
17:07
Speaker 1: But the jurisdictional basis for this going to the Supreme
17:10
Speaker 1: Court is the federal campaign financial and gives sort of
17:13
Speaker 1: a special ability to go directly to the Supreme Court
17:16
Speaker 1: to cases that burden voters, certain other special groups, and
17:21
Speaker 1: the national party committees. And his argument is based on
17:25
Speaker 1: a much older Supreme Court case. The only national committees
17:29
Speaker 1: that get that right are the two top committees, the
17:33
Speaker 1: Republican National Committee and the Democratic National Committee, And he
17:36
Speaker 1: points out there was a decision on the Supreme Court
17:38
Speaker 1: back around nineteen eighty that said that the Democratic Senate
17:41
Speaker 1: Campaign Committee couldn't take advantage of that law, and so
17:44
Speaker 1: his point is the NRSC, the National Republican Senate Campaign
17:47
Speaker 1: Committee can't do it either. So it's basically making the
17:50
Speaker 1: argument that there's either no standing or a lack of jurisdiction.
17:54
Speaker 1: Jd Vance could use that, but he's not a candidate.
17:57
Speaker 5: He can't.
17:58
Speaker 1: So there were some back and forth on that, but
18:00
Speaker 1: it does seem unlikely that well, you never know what
18:03
Speaker 1: the Supreme Court, but most of almost all of the
18:06
Speaker 1: oral argument was really focused on the merits of the case.
18:10
Speaker 2: It doesn't seem as clear as in other cases. But
18:12
Speaker 2: can you tell where the justices are on this? Gorsuch
18:16
Speaker 2: didn't even ask a question.
18:17
Speaker 1: It's worth pointing out that in every single campaign finance
18:21
Speaker 1: case the Court has taken since Chief Justice Roberts became
18:25
Speaker 1: Chief Justice and Justice Alito joined the Court, the attack
18:29
Speaker 1: on campaign finance law has won.
18:31
Speaker 5: That's about eight cases.
18:32
Speaker 1: And turn it around, and there's not been a single
18:35
Speaker 1: case that the Supreme Court has taken since two thousand
18:37
Speaker 1: and five on campaign finance law where the law was sustained.
18:40
Speaker 1: That's all I think I need to say about that.
18:43
Speaker 1: So the track record, the Court hasn't upheld a campaign
18:47
Speaker 1: finance law federal or state since around two thousand and three.
18:52
Speaker 2: Okay, then, so then what would be the effect of
18:55
Speaker 2: getting rid of these federal caps. There are some predictions
18:59
Speaker 2: that it will come completely reshaped TV advertising for congressional races.
19:05
Speaker 5: I think that's unlikely. Honestly.
19:07
Speaker 1: I think the system that we have had for the
19:09
Speaker 1: last roughly fifteen years, since the emergence of super PACs
19:13
Speaker 1: in a big way around twenty ten twenty twelve, I
19:17
Speaker 1: don't know that it's going to change that much. I mean,
19:19
Speaker 1: I think right now many of these super PACs are
19:22
Speaker 1: candidate specific superpacks, or they are super PACs that are
19:26
Speaker 1: already run by the parties. Some of the biggest super
19:28
Speaker 1: PACs are the four super PACs run by the Republican
19:32
Speaker 1: Senate and House and Democratic Senate and House leadership.
19:36
Speaker 5: If you look at the top ten.
19:37
Speaker 1: Super PACs by dollars, certainly the Senate once are always
19:41
Speaker 1: in the top ten, and I think the House one's
19:43
Speaker 1: often are two.
19:44
Speaker 5: So I don't know that there's going to be a
19:47
Speaker 5: revolution in this.
19:47
Speaker 1: I mean, it's always hard to tell, and it may
19:49
Speaker 1: take a couple of election cycles till we fully see
19:52
Speaker 1: how it works out.
19:53
Speaker 5: But you know, it's hard to tell. But I doubt
19:56
Speaker 5: they'll be a dramatic change.
19:59
Speaker 1: I think many have wealthy individuals just as soon would
20:02
Speaker 1: run their money through packs that they control through super PACs,
20:06
Speaker 1: and many candidates, I think would continue to want to
20:08
Speaker 1: have a super pack that works just for them. Many
20:11
Speaker 1: of our super PACs now are basically one candidate super
20:14
Speaker 1: PACs on the other And some people do think that
20:17
Speaker 1: maybe it will change the balance and more money will
20:19
Speaker 1: run through the parties, and that could have some benefits
20:22
Speaker 1: in terms of giving the party committees a little more
20:25
Speaker 1: ability to kind of coordinate their candidates. Not so much
20:29
Speaker 1: in the election, but in the government that follows.
20:32
Speaker 5: I think that the.
20:33
Speaker 1: Party committees will have a bit more influence. Maybe holding
20:36
Speaker 1: their party delegations in Congress together a bit more seems
20:40
Speaker 1: to be lately, given parties in polarization in Congress, they
20:44
Speaker 1: tend to hold together pretty well right now, but it
20:47
Speaker 1: could be that at the margins parties will be a
20:50
Speaker 1: little bit more unified in Congress.
20:53
Speaker 2: So if the Court uphols the caps, would you be surprised,
20:58
Speaker 2: fall off your chair? Surprised or that's interesting surprised.
21:03
Speaker 1: Well, probably fall off my chair. I mean when the
21:07
Speaker 1: Court upheld this law in two thousand and one, it
21:09
Speaker 1: was a five to four vote then. And in terms
21:12
Speaker 1: of just the commentary of the Supreme Court, I guess
21:15
Speaker 1: I'm not sure if Justice Barrett has written on a
21:18
Speaker 1: big campaign finance case, but all the others Conservatives have,
21:22
Speaker 1: and they've been rather consistently skeptical of campaign finance. There
21:26
Speaker 1: was a decision in twenty twenty one. I think she
21:28
Speaker 1: was already on the court then. I don't think she
21:30
Speaker 1: wrote on it. She might not have participated given when
21:33
Speaker 1: it was argued. So I'm not one hundred percent sure
21:36
Speaker 1: about her voting pattern. But the other justices have shown
21:39
Speaker 1: themselves to be extremely skeptical of campaign finance regulation.
21:44
Speaker 2: Well, as you cited the history of the Roberts Court
21:47
Speaker 2: on campaign finance, it does seem like an uphill battle
21:52
Speaker 2: for the Democrats here. Thanks so much, rich That's Professor
21:57
Speaker 2: Richard Ruffald of Columbia Law School coming up. Next on
22:00
Speaker 2: the Bloomberg Law Show, A golden doodle in a custody
22:04
Speaker 2: battle is the subject of a case that's made its
22:07
Speaker 2: way through four of Delaware's courts. I'm June Grosso. When
22:12
Speaker 2: you're listening to Bloomberg, there's.
22:15
Speaker 5: No easy way to say this, Wesley. So I'm just
22:17
Speaker 5: gonna come right out with it. Mommy and Daddy is
22:19
Speaker 5: putting out a battle these laws.
22:23
Speaker 7: Wesley's prophet in the outstanding issue is the custody arrangers.
22:27
Speaker 1: I'll a sign a veterinary behaviorist.
22:30
Speaker 3: Wesley is on the verge of psychological disarray.
22:34
Speaker 2: The movie Who Gets the Dog tells the story of
22:37
Speaker 2: a couple who are divorcing and fight each other in
22:40
Speaker 2: court to get custody of their beloved dog, Wesley. It
22:44
Speaker 2: may seem a little dramatic, but it's not that far
22:47
Speaker 2: from real life. In fact, the custody battle over Wesley
22:52
Speaker 2: mirrors the battle over Tucker, a golden doodle whose owners
22:56
Speaker 2: broke up in twenty twenty two and are still fighting
22:59
Speaker 2: in court over who gets to keep him. Tucker's case
23:03
Speaker 2: has been through every level of state court in Delaware.
23:07
Speaker 2: Justice of the Peace, Court of Common Please, Delaware Superior Court,
23:12
Speaker 2: and the Chancery Court, Delaware's elite business court, and now
23:16
Speaker 2: his case is being appealed to the state's highest court,
23:20
Speaker 2: the Delaware Supreme Court. Joining me is Jennifer Kay Bloomberg
23:25
Speaker 2: Law Senior correspondent who has been following Tucker's saga. So
23:29
Speaker 2: Jennifer tell us about the custody battle for Tucker.
23:33
Speaker 7: So let's just establish, in case anyone hasn't walked around
23:36
Speaker 7: their neighborhood recently, what a golden doodle is. The golden
23:40
Speaker 7: doodle is one of these very trendy doodle breeds.
23:43
Speaker 8: They're very popular.
23:44
Speaker 7: My neighborhood has at least four of them. A mix
23:47
Speaker 7: between a golden Retriever and a poodle and the result
23:50
Speaker 7: is a very curly haired, very energetic and affectionate dog.
23:55
Speaker 7: This one is named Tucker. There is a picture in
23:58
Speaker 7: the court violins.
24:00
Speaker 8: Very cute dog.
24:01
Speaker 7: So his owners began dating in twenty eighteen, and they
24:06
Speaker 7: moved in together in the following year, and then in
24:10
Speaker 7: twenty twenty, the ex boyfriend's daughter brought Tucker home as
24:15
Speaker 7: a gift for him, and Tucker was just a member
24:18
Speaker 7: of the family until this couple broke up in May
24:21
Speaker 7: of twenty twenty two. They were never married, so that's
24:24
Speaker 7: an important detail here. If they had been married, they
24:27
Speaker 7: would have gone to family court and they would have
24:29
Speaker 7: split all the marital property as normally under Delaware law,
24:34
Speaker 7: and they would have worked out some sort of custody
24:37
Speaker 7: arrangement for Tucker, and we probably would never have heard
24:40
Speaker 7: about him. But that's not what happened because they weren't married.
24:43
Speaker 7: So Delaware law allows family court to take into consideration
24:48
Speaker 7: the best interest of an animal, a companion animal when
24:52
Speaker 7: there's a divorce involved. But since there wasn't a divorce here,
24:56
Speaker 7: this couple first went to a Justice of the Peace
25:00
Speaker 7: court in twenty twenty two to try to sort out
25:02
Speaker 7: who the dog belonged to. That first court found that
25:06
Speaker 7: the ex girlfriend was the rightful owner, but to subsequent
25:10
Speaker 7: state courts, the Court of Common Pleased and the Delaware
25:13
Speaker 7: Superior Court found actually that they've shared a joint ownership.
25:18
Speaker 8: Of the dog, and so that they would have to
25:19
Speaker 8: work out some sort.
25:20
Speaker 7: Of arrangement, and since they really could not agree, they
25:24
Speaker 7: ended up in chancery court about a year ago, a
25:26
Speaker 7: little over a year ago, asking the chancery court to
25:29
Speaker 7: figure out what to do and just again to remind
25:32
Speaker 7: some of your listeners. Chancery court is where you go
25:35
Speaker 7: in Delaware when you have a civil case where damages
25:38
Speaker 7: really aren't the answer.
25:40
Speaker 8: You're looking for a judge to figure out what's equitable, like.
25:43
Speaker 7: What's happened, was what happened fair? And how to fix
25:47
Speaker 7: it if it wasn't fair.
25:49
Speaker 8: So that's kind of where we are now with this case.
25:51
Speaker 2: And there was a hearing where a veterinary behaviorist testified.
25:56
Speaker 8: In the spring.
25:57
Speaker 7: The chancery court said, look, you guys really can't agree. Fine,
26:00
Speaker 7: we will follow the procedures under Delaware property law. Because
26:05
Speaker 7: Delaware law looks at dogs as property. I don't want
26:09
Speaker 7: any of your listeners to come at me. That is
26:11
Speaker 7: not my personal opinion. I know people have very strong
26:14
Speaker 7: feelings about their for children, but their property, and under
26:17
Speaker 7: Delaware law, there's property and you really can't agree about
26:20
Speaker 7: who gets what the rule is to partition it. Sometimes
26:23
Speaker 7: that means actually splitting something in half. No one is
26:26
Speaker 7: suggesting that Tucker should be split in half here, So
26:29
Speaker 7: the court left it up to this estranged couple to
26:32
Speaker 7: figure out how are you going to split Tucker?
26:34
Speaker 8: Like this is what the law says.
26:36
Speaker 7: We need to partition this property. You need to figure
26:39
Speaker 7: out what that means. They could not figure out what
26:41
Speaker 7: it meant. The couple just could not figure it out.
26:43
Speaker 7: So they came back to court and a part of
26:47
Speaker 7: that was an evidentiary hearing about who's actually taking care
26:51
Speaker 7: of Tucker? Who did what when this couple was actually
26:54
Speaker 7: living together that was three years ago. Now what is
26:57
Speaker 7: Tucker's health and well being at this point? And that's
27:01
Speaker 7: where the veterinary behaviorist came in and said, well, you know, Tucker,
27:05
Speaker 7: I think, like a lot.
27:06
Speaker 8: Of doodles, has a few issues. He's got some anxiety.
27:09
Speaker 7: He doesn't really deal with changes his routine all that well,
27:13
Speaker 7: So that's where the evaluation of Tucker came in. But
27:15
Speaker 7: the court ultimately decided, in this case, if you really
27:19
Speaker 7: can't agree what partition is going to mean is a
27:22
Speaker 7: private auction. It's just going to be this estranged couple,
27:26
Speaker 7: just the two of them. Whoever is the highest bidder,
27:29
Speaker 7: We'll go home with Tucker and the other person will
27:32
Speaker 7: get compensation.
27:33
Speaker 2: So the judge then decided not to base it on
27:37
Speaker 2: Tucker's best interests.
27:39
Speaker 7: That's right, And that's a really interesting point because that
27:44
Speaker 7: is kind of different from the trend in a lot
27:48
Speaker 7: of these cases, and there are more and more of
27:51
Speaker 7: them all the time, even in situations where people aren't
27:54
Speaker 7: romantically involved. There was a trial in Philadelphia recently over
27:59
Speaker 7: a cat named Gary to ex roommates. Each of them
28:03
Speaker 7: wanted Gary. What some courts are looking at is what's
28:07
Speaker 7: in the best interests.
28:08
Speaker 8: Of the animal.
28:09
Speaker 7: They're looking at them as a little bit more than property,
28:12
Speaker 7: and they're kind of borrowing from these state laws in Delaware,
28:17
Speaker 7: in California and New York in other places where if
28:21
Speaker 7: there's a divorce the companion animal, the pet will be
28:25
Speaker 7: evaluated under the question of what's in the best interest
28:28
Speaker 7: of the animal before deciding who is going.
28:30
Speaker 8: To take it. So some courts have applied that.
28:33
Speaker 7: Standard in these other cases where you have a couple
28:37
Speaker 7: that weren't married, or you know, it's roommates, there's no
28:41
Speaker 7: romantic relationship.
28:43
Speaker 8: But here the chancery court judge says, you.
28:45
Speaker 7: Know, I see what other courts are doing, but I'm
28:48
Speaker 7: not convinced that the best interest standard.
28:50
Speaker 8: Is the way to go here.
28:51
Speaker 7: What Delaware law calls for is a partition, which is
28:55
Speaker 7: an auction that will maximize the value of the property,
28:59
Speaker 7: and there's no reason to move away from that default.
29:02
Speaker 2: I mean, just how does the auction work. Is the
29:05
Speaker 2: bidding open and it keeps going up and up or
29:08
Speaker 2: is it sealed bids?
29:09
Speaker 7: So again, unfortunately, the court is kind of stuck with
29:13
Speaker 7: putting it to a couple that really are not getting
29:18
Speaker 7: along to figure.
29:19
Speaker 8: Out what to do.
29:20
Speaker 7: A partition trustee has been appointed by the court, a
29:23
Speaker 7: third party attorney, if you will, but they haven't gotten
29:26
Speaker 7: to that point yet because the ex boyfriend has sought
29:28
Speaker 7: to appeal this ruling to the Delaware Supreme Court in
29:32
Speaker 7: a mid case appeal basically an interlocatory review. He wants
29:36
Speaker 7: to stop the auction and have a high court consider
29:40
Speaker 7: the case before he potentially loses Tucker.
29:42
Speaker 8: This couple, I think the legal term here really is
29:45
Speaker 8: this is a very bad breakup.
29:48
Speaker 7: They've also been fighting over other property. According to the
29:52
Speaker 7: court documents, they've actually been fighting over actual literal property
29:57
Speaker 7: and threatened litigation over something that they all so.
30:00
Speaker 8: Had bought while they were together. So it's not just
30:03
Speaker 8: Tucker that they're fighting over.
30:05
Speaker 2: As I understand it, the woman hasn't seen Tucker since
30:08
Speaker 2: the breakup, so best interests, I guess if Tucker has
30:11
Speaker 2: separation anxiety and distress, would play them with a man.
30:16
Speaker 8: It's very much a he said, she said, kind of situation.
30:19
Speaker 8: If you go into the briefs.
30:20
Speaker 7: The ex girlfriend said Tucker was her companion animal, her
30:24
Speaker 7: support animal during cancer treatments while she was still in
30:28
Speaker 7: the relationship, but then the ex boyfriend after the breakup
30:32
Speaker 7: that he took Tucker out of state and prevented her
30:34
Speaker 7: from seeing him all this time.
30:36
Speaker 8: The ex boyfriend.
30:37
Speaker 7: Says, no, you know, this dog was again a gift
30:40
Speaker 7: originally from my daughter. You know, he was abandoned by
30:44
Speaker 7: the ex girlfriend when we broke up.
30:46
Speaker 8: He's been my best buddy this whole time. I care
30:49
Speaker 8: for him all the time.
30:50
Speaker 7: And it's really the ex boyfriend saying, you really need
30:52
Speaker 7: to look at the best interests of Tucker here, whereas
30:55
Speaker 7: the ex girlfriend is saying, you know, this was property
30:58
Speaker 7: we both shared and we need to we need to
31:00
Speaker 7: come to a resolution.
31:02
Speaker 2: So what's the next step. The ex boyfriend is appealing, So.
31:05
Speaker 7: The ex boyfriend filed a motion for an interlocatory appeal
31:09
Speaker 7: is kind of asking the Chancery court, can we have
31:11
Speaker 7: the Delaware Supreme Court step in here, even though we
31:14
Speaker 7: haven't gone through a final order, and the Chancery Court
31:17
Speaker 7: denied that. So where he's left now is he could
31:19
Speaker 7: go to the Delaware Supreme Court on his own and
31:22
Speaker 7: ask the justices to take his case kind of mid case,
31:25
Speaker 7: to review it. The justices could decide to do that,
31:28
Speaker 7: They could deny him and tell him that he has
31:30
Speaker 7: to wait until the auction happens, which is where the
31:33
Speaker 7: Chancery Court said the case should go. The Chancery Court
31:36
Speaker 7: has said, look, you've had the dog all this time,
31:39
Speaker 7: so you won't be harmed by putting a hold on
31:42
Speaker 7: the auction. But the ex girlfriend will be harmed because
31:45
Speaker 7: she hasn't seen the dog in three years, and a
31:48
Speaker 7: dog only lives so long. You know, this dog with
31:51
Speaker 7: a puppy in twenty twenty when it was first acquired,
31:55
Speaker 7: then it's already five six years old.
31:58
Speaker 2: The cost involved if they've been through every level of
32:02
Speaker 2: Delaware court and now possibly the Delaware Supreme Court, I mean,
32:07
Speaker 2: what are the costs involved here for attorneys, fees and
32:11
Speaker 2: expert witnesses.
32:12
Speaker 7: I don't know a dollar figure for what these people
32:16
Speaker 7: are spending individually, but what the ex boyfriend has said
32:19
Speaker 7: in his briefs is that. You know, he's already had
32:22
Speaker 7: to pay thirty five thousand dollars to the ex girlfriend
32:25
Speaker 7: over the other property that they've been fighting over that
32:28
Speaker 7: they reached a kind of settlement over that, and he says, look,
32:32
Speaker 7: she wants an auction because she knows that she has
32:35
Speaker 7: the superior finances compared to me.
32:37
Speaker 8: So that's not fair.
32:39
Speaker 7: You know, we aren't on equal footing here.
32:41
Speaker 8: Again, I can't.
32:41
Speaker 7: Speak to what exactly each of these parties is spending,
32:45
Speaker 7: but it has to be a lot. If you've gone
32:47
Speaker 7: through basically every level of Delaware State court except family court,
32:51
Speaker 7: and the only reason you haven't gone to family court
32:53
Speaker 7: is because you weren't married.
32:54
Speaker 8: In the first place.
32:55
Speaker 2: So is it unusual for the chancery court to be
32:59
Speaker 2: sorting out dispute so over animals?
33:02
Speaker 7: Most people probably if they know Delaware Chancery Court, they
33:06
Speaker 7: know it, probably because of Elon.
33:07
Speaker 8: Musk over the last couple of years.
33:09
Speaker 7: This is the court that told him, no, you can't
33:11
Speaker 7: have fifty six billion dollars as your pay package as
33:15
Speaker 7: being the tesla ceo. That's a case that is before
33:18
Speaker 7: the Delaware Supreme Court right now. It's also become very
33:22
Speaker 7: unpopular in certain corporate circles over some other court rulings.
33:27
Speaker 7: That's a largely stemming from its role as a court
33:29
Speaker 7: of equity. Again, you go here when damages aren't necessarily
33:34
Speaker 7: going to fix the problem. You need to figure out
33:37
Speaker 7: was a transaction fair, and if it wasn't, how to
33:40
Speaker 7: fix it. But because it's a court of equity, it
33:43
Speaker 7: also has this other role where it has to decide
33:47
Speaker 7: local property cases, and that's where you end up with
33:50
Speaker 7: cases like Tucker. You know you and I spoke earlier
33:52
Speaker 7: this year about another case where Elon.
33:55
Speaker 8: Musk's judge, the one that he probably hates.
33:58
Speaker 7: Most in the country, had to decide what to do
34:01
Speaker 7: with a man who said, my Clydesdale, my horse, and
34:05
Speaker 7: I were in a car accident. The horse was euthanized
34:07
Speaker 7: and taken to a landfill without my consent, and now
34:10
Speaker 7: I want the horse back because I don't want to
34:13
Speaker 7: bury it in a landfill. And so she had to
34:15
Speaker 7: decide that while also deciding matters pertaining to Elon Musk.
34:19
Speaker 7: So it can be this really interesting court where you
34:22
Speaker 7: have very very important corporate questions but also very very
34:25
Speaker 7: important questions to like the local litigants that just want
34:29
Speaker 7: to do what's best for their pet. And you know,
34:31
Speaker 7: it's interesting that the judge in this case, Vice Chancellor
34:34
Speaker 7: Bonnie David. One of the other big corporate cases that's
34:38
Speaker 7: on her docket involves Fox News and the big settlement,
34:42
Speaker 7: the eight hundred million dollars settlement that it had to
34:45
Speaker 7: reach over defamation claims stemming from the twenty twenty election
34:49
Speaker 7: broadcasts that it made. So she also has quite a
34:52
Speaker 7: bit on her docket. But she, in her opinions, has
34:55
Speaker 7: cited a number of cases from other state courts and
34:58
Speaker 7: a lot of them involve pets that were acquired by
35:02
Speaker 7: a couple who didn't get married so they couldn't go
35:05
Speaker 7: through family court. And it's interesting that a lot of
35:08
Speaker 7: them kind of follow a similar path that they take
35:11
Speaker 7: years to figure out, and you really have to think
35:13
Speaker 7: about it and in terms of like how many dog
35:16
Speaker 7: years is this case going to take, because if it
35:18
Speaker 7: can take like four or five human years, that's a
35:21
Speaker 7: long time for a dog. If this auction moves forward,
35:24
Speaker 7: it's unclear.
35:25
Speaker 8: Still, like one, exactly how that would.
35:28
Speaker 7: Look to how much it would cost? And then three,
35:32
Speaker 7: how are you going to enforce it? Like is a
35:34
Speaker 7: deputy going to show up at someone's house for the dog,
35:37
Speaker 7: and then if you appeal it, what happens to the
35:39
Speaker 7: dog in the meantime. There's a lot of unanswered questions here,
35:42
Speaker 7: and we're talking about it because this is a case
35:44
Speaker 7: that is setting all kinds of precedent for the chance
35:47
Speaker 7: of record in these property disputes. Is really the first
35:49
Speaker 7: time it's had to deal with a partition case involving
35:53
Speaker 7: a living, breathing being.
35:55
Speaker 2: So now pre nups have to include if we have
35:58
Speaker 2: a pet, what happened to the pet.
36:00
Speaker 7: You're joking, but that is actually what an animal law
36:03
Speaker 7: expert and attorney practicing in the animal laws here told me.
36:06
Speaker 8: She said, Yeah, you have.
36:08
Speaker 7: To really think about these things much like a prenup,
36:11
Speaker 7: even if you are just roommates, there's no romantic relationship.
36:14
Speaker 7: If you get a pet with someone, you need to
36:17
Speaker 7: make a contract so that you can plan for what
36:20
Speaker 7: happens when you're no longer living together, which I think
36:23
Speaker 7: absolutely no one thinks about when they're looking at a
36:25
Speaker 7: kitten or a puppy.
36:27
Speaker 2: Well, you'll have to let us know what happens to Tucker.
36:30
Speaker 2: Thanks so much, Jennifer. That's Bloomberg law. Senior Correspondent Jennifer k.
36:35
Speaker 2: And that's it for this edition of The Bloomberg Law Show.
36:38
Speaker 2: Remember you can always get the latest legal news on
36:40
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36:45
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36:50
Speaker 2: And remember to tune into The Bloomberg Law Show every
36:53
Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso
36:57
Speaker 2: and you're listening to Bloomberg