In short
This episode of Bloomberg Law focuses on recent Supreme Court rulings reshaping presidential power, birthright citizenship, and campaign finance.
Guests and backgrounds
- Jillian Metzger, Columbia Law School constitutional law professor; former clerk/academic focus on separation of powers.
- David Super, Georgetown Law professor; constitutional law expert.
- Andrew Shapiro, Quinn Emanuel appellate partner; former U.S. ambassador to the Czech Republic.
Key claims and notable examples
- Presidential removal: Court allows presidents to fire independent regulators “for any reason,” overturning Humphrey’s Executor; exception for Federal Reserve Governor Lisa Cook requires judicially reviewable “for cause” removal, protecting Fed independence. Example: former FTC Commissioner Rebecca Slaughter.
- Birthright citizenship: Court upholds 14th Amendment citizenship for nearly everyone born on U.S. soil, with narrow exceptions (e.g., diplomats/foreign military). Example: Celia Wang, ACLU attorney and birthright citizen.
- Campaign finance: Court strikes limits on party coordination with candidates, overturning Colorado II; dissent warns this enables quid pro quo via parties paying candidates’ bills. Example: National Republican Senatorial Committee challenge; individual $7,000 cap vs party spending.
Written by AI. May contain mistakes. Listen to the episode to check what was said.
Chapters
Tap a time to open that second in VOSupreme Court Expands Presidential Power
0:30 to 1:24
Discussion on the Supreme Court's rulings regarding presidential powers.
“For midsize and large companies, that isn't always easy.”
Supreme Court Expands Presidential Power
2:20 to 3:10
Discussion on the Supreme Court's rulings regarding presidential powers.
“But the court was more closely divided five to four in the case allowing Fed Governor Lisa Cook to remain in her job while she fights Trump's attempt to fire her over unproven mortgage fraud allegations.”
Analyzing the Cases: Cook and Slaughter
3:10 to 4:00
A detailed analysis of the Cook and Slaughter cases and their implications.
“Both had posed skeptical questions to the Solicitor General during the oral arguments.”
Judicial Review and Fed Independence
4:00 to 4:50
Exploring the implications of judicial review and the Federal Reserve's independence.
“The chief wrote the majority opinions in both cases.”
Constitutional Theories and Historical Evidence
4:50 to 7:40
Examination of the constitutional theories behind the court's decisions.
“So I think it's unclear exactly whether in practice they would be willing to tolerate pretextual firings, you know, just because the president provides some notice and opportunity for hearing.”
Implications of the Court's Rulings
7:40 to 11:20
Discussion on the far-reaching implications of the Supreme Court's rulings.
“And that's also some degree of guidance to the lower court.”
Implications of the Court's Rulings
14:06 to 14:53
Discussion on the far-reaching implications of the Supreme Court's rulings.
“Support for the show comes from Public.com.”
Birthright Citizenship and Supreme Court Decisions
16:02 to 28:06
Discussion on the Supreme Court's ruling on birthright citizenship and its implications.
“rejecting President Trump's attempt to redefine what it means to be an American.”
Supreme Court's Trust Issues
28:06 to 28:33
Discussion on the Supreme Court's low approval ratings and public trust.
“fact pursuing a legal agenda rather than an ideological one.”
Birthright Citizenship and Supreme Court Decisions
28:33 to 29:26
Discussion on the Supreme Court's ruling on birthright citizenship and its implications.
“of rolling back campaign finance regulations.”
Show all 17 chapters
Campaign Finance Ruling Discussed
31:04 to 35:05
Analysis of the Supreme Court ruling on campaign finance and its implications.
“Throughout longstanding federal limits on spending by political parties in coordination with candidates as a violation of constitutional free speech rights.”
Dissenting Opinions and Concerns
35:05 to 38:02
Exploration of dissenting views regarding the ruling's potential for corruption.
“He pointed to prohibitions against what is called earmarking.”
Implications for Political Parties
38:02 to 40:05
Discussion on how the ruling affects Republicans and Democrats in fundraising.
“So she's taking, I think, a more practical view.”
Overturning Precedents
40:05 to 42:00
Examination of the pattern of the Supreme Court overturning precedents.
“will amplify the voices of individuals and industries with the deepest pockets.”
Campaign Finance and Judicial Precedent
42:00 to 43:44
Discussion on the evolving nature of campaign finance laws and judicial precedents.
“And she calls them out saying that what seems to be happening here, and I think you're right, June, it's happened in some other cases.”
Campaign Finance and Judicial Precedent
44:12 to 44:38
Discussion on the evolving nature of campaign finance laws and judicial precedents.
“If you've ever waited on a refill or couldn't schedule an appointment, you get it.”
Campaign Finance and Judicial Precedent
44:57 to 45:24
Discussion on the evolving nature of campaign finance laws and judicial precedents.
“Paramount Plus is now the home of all your BET favorites.”
Transcript
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2:14David Super:This is Bloomberg Law with June Grosso from Bloomberg Radio.
2:20Andrew Schapiro:In twin rulings this week, the Supreme Court expanded the president's power to fire top government officials for any reason, but carved out an exception for the Federal Reserve Board, protecting governors from being fired without proof of wrongdoing. The court was split six to three down ideological lines in the decision allowing the president to fire independent regulators like former FTC Commissioner Rebecca Slaughter, without cause, despite laws to the contrary and overturning a 90-year-old precedent in the process. But the court was more closely divided five to four in the case allowing Fed Governor Lisa Cook to remain in her job while she fights Trump's attempt to fire her over unproven mortgage fraud allegations.
3:09Andrew Schapiro:Chief Justice John Roberts and Justice Brett Kavanaugh joined with the liberals to make up the majority, reinforcing the Fed's independence from the White House. Both had posed skeptical questions to the Solicitor General during the oral arguments. Your position that there's no judicial review, no process required, no remedy available, very low bar for cause that the president alone determines, I mean, that would weaken, if not shatter, the independence of the Federal Reserve. It seems to me that if there is any level of cause, and you indicate that there is some level of cause, right, Well, then you can't be right about the idea that courts can't order anybody who's been removed to be reinstated.
4:00Andrew Schapiro:The chief wrote the majority opinions in both cases. My guest is an expert in constitutional law, Jillian Metzger, a professor at Columbia Law School. Jillian, would you say that the court drastically expanded presidential power, even if the president doesn't have the power right now to fire Fed Governor Cook? I think it did. I mean, whether this was the expansion or the recognition of what the court had done before, you might quibble on. I think the court had all but overturned Humphrey's executor in some of its earlier decisions. It's a little bit unclear to me exactly what Cook means in practice.
4:39You know, I read one thing where Trump is saying he's going to go ahead and do it again. We'll get a chance to see. But the court really does emphasize in Cook that the removal for cause would be judicially reviewable. rejects the idea that it can't be, and also has language that emphasizes the need for that review in order to protect the actual independence and goes out of its way to emphasize that notwithstanding slaughter, it sees the Federal Reserve is different. So I think it's unclear exactly whether in practice they would be willing to tolerate pretextual firings, you know, just because the president provides some notice and opportunity for hearing.
5:16And that said, what they specify as required is notice and opportunity for hearing are not that elaborate. My guess is that the protection will likely come from the judicial review afterwards, rather than the procedures they outline. But I think, again, we have to see how that works in practice.
5:31Andrew Schapiro:Tell us about the chief justice's reasoning in the Cook case. So Cook came up before the court on an emergency application for a stay. So the question the court focused on is whether or not the government was likely to succeed on the merits to justify granting a stay. The courts below had granted injunctive relief in Cook's favor against the government. And the government made a number of arguments of different degrees of radicalness. They argue that the president had found cause. They argue that the president's determinations were totally unreviewable. They suggested that requiring cause of review might be unconstitutional.
6:07So it's an argument that actually Thomas makes in his opinion, but the government itself didn't really push that argument, they accepted that the court had suggested in Wilcox that the Federal Reserve was different and you could have forecause removal in the case of the Federal Reserve. And the majority does go ahead and says that at least the Federal Reserve, as connected to its monetary policy functions, the Fed in that regard could be an independent agency with forecause removal. And there's some debate among the justices about whether or not the court should do that. And you have Barrett dissenting saying, hey, you know, on an application for stay, this is a tough issue.
6:39We've just done slaughter. We should think about it differently. But really animating the majority seemed to be a great deal of concern to not have questions about the independence of the Federal Reserve lingering out there. That said, there's a tension between the court saying we don't want to leave open questions about protecting the Fed and the fact that all it specifies is fairly thin procedure but then judicial review, which seems to be perfectly expectable that what's going to happen is the president's going to remove again.
7:04Andrew Schapiro:So then does it seem like the case will end up back at the Supreme Court again? And will the justices almost have to take it with these important issues about the Fed left unresolved? Usually I would say this is the kind of thing that the court would take. But having taken it, and one of the things they also do is they do specify that they think that the threshold for what counts as causal, although not as high as Cook specified, is still fairly significant. And they do emphasize the importance of the Fed's independence. And they do say that whatever counts as cause has to be tied to the purposes of the Fed and its goals.
7:38And so those provide some real basis to give cause some meaning. And that's also some degree of guidance to the lower court. So if a lower court applying that guidance, as the court envisions what happened, comes to the conclusion that what the president has done is not cause, and that gets affirmed by an appellate court. I'm not sure that the court would find it necessary to engage further on that.
7:58Andrew Schapiro:Then we had this six to three decision down ideological lines in the slaughter case. And the only way they distinguished the two was the Fed is different? Honestly, I think it is. The decision in both these cases, how they came out was expected. I found slaughter really disappointing in its reasoning, in its thinness. A lot of the court's recent decisions have been thin, the majorities. And one of the things that they just don't deal with in any fair way is the historical evidence. And this opinion, you know, there was great briefing on this. There is at this point a substantial amount of historical evidence and debates, historical debates, to be sure, about the extent to which you had removal protections or the extent to which it was clear that the president had at will removal power at the time of the founding.
8:42You know, serious historians have engaged and studied this. And I certainly think the balance of that evidence pretty significantly does favor the idea that there were a number of different kinds of controls that were imposed and that the historical record is not at all that the country had come to agreement that the president had at will removal power in 1789. And the court, you know, references some of that in taking on the dissent, but really its treatment of the history is so pathetic. It's so thin. It's so unserious. And we're talking about the structure of our government and precedent of the court that Congress has relied on and the country has relied on.
9:15And it really, it's such a one-sided treatment, citing only a couple of scholarship at the point when the opinion discusses the history and claims that this was all decided in 1789. You know, just cites one side of the debate. No academic would ever do that. No serious treatment of the issue should ever do that. And then when the court does engage with some of the counter-history, it's just dismissive of it. It doesn't really take seriously that actually the historical record here is really not in its favor, but certainly at a minimum unclear, as scholars on both sides have acknowledged. And that does really, I think, affect the strength of the majority's argument.
9:48Andrew Schapiro:I mean, the majority opinion is all about the unitary executive theory, isn't it? That the Constitution vests executive power solely in the president. I mean, the majority's argument has been, as it has been in all these cases, it's the Constitution vests the executive power in a president, and that means all the executive power in the president, and they gave up and didn't want to have any kind of board that wouldn't be on a single person in order to preserve energy and effectiveness. And that therefore means the president has to have removal power at will. As a structural inference, there are huge leaps there.
10:19It doesn't follow from the fact that the Constitution vests the executive power in the president, that Congress can't impose any limits on that removal power. Some limits might go too far, but the court just says the two are the same. They're not. They're logically not the same thing. And there's a very interesting bit where the court also just rejects out of hand the fact for the last 100 plus years, 150 years now, we've had independent agencies by suggesting that just because we've deviated from the true path of the meaning of the Constitution, the court's obligation is to go back to it. But what's fascinating is that the unitary executive theory is itself a modern day creation.
10:54The court is giving voice to a theory and understanding of the structure of the Constitution that really took hold in the 1980s with the Reagan administration. And so it's just a deep kind of tragic irony. And in some sense, to my mind, if you want to give a good argument for the unitary executive, it would be that we have, through that, constructed an argument for presidential control and for presidential centrality over the administrative state that didn't previously exist. You could make that argument, but the court doesn't make that argument. It just makes this incredibly thin argument based on its own structural inferences, claims about the text, ignoring the historical evidence.
11:29Andrew Schapiro:The lawed issue in the slaughter case was passed by Congress in 1914. It permits a president to remove FTC commissioners only for cause. And this court has repeatedly said that this issue or that issue is up to Congress. And here, Congress said something, Congress did something, and they're saying, no, it's up to us. And more than 100 years later. That actually is one of the important points here. And this is a point that dissent makes, is that the separation of powers for much of our history has been something that the political branches have worked out. They've hashed it out. The court certainly has had decisions, you know, making important points, Marbury versus Madison, and the importance of independent judicial review, you know, in 1803.
12:12But the separation of powers and the sort of balance between the executive branch and the legislative branch has really been left to the political powers to work out for long swaths of that period. And this court has really discharged up the separation of powers on steroids. And the net effect has been that, I mean, it empowers the executive branch for sure, but it really empowers the judiciary. It's the judiciary that makes the determinations and has the power to say, basically, we're going to cast aside 150 years of governance in this country and the political compromises that result in that.
12:43Andrew Schapiro:In her dissent, Justice Sotomayor says that the majority refuses to say where its theory leads or where it ends. Where do you think it leads? I think the critical questions are how broad is the import of the court's decision? Are we talking about principal officers at the top of independent agencies, all of the recent decisions dealt with the members of a body that was the governing body, not the officers below them or the employees below them. In other words, are we talking about the constitutionality of the civil service? You look at the language of the majority opinion where it says, what text, history, and structure settle our precedent confirms the president may remove his subordinates at will.
13:25Well, employees and inferior officers are the president's subordinates under the unitary executive theory. And if you take that logic seriously, then this isn't just about principal officers. This is all the way down. And that is transformative beyond belief. That is chaos beyond belief. That is just a fundamental redoing of how our government has operated ever since the spoil system of the 1830s.
13:46Andrew Schapiro:The implications of this decision are certainly far reaching. Thanks so much for sharing your insights, Jillian. That's Professor Jillian Metzger of Columbia Law School. Coming up next on the Bloomberg Law Show, the Supreme Court upholds birthright citizenship in a defeat for President Trump. I'm June Grosso, and you're listening to Bloomberg. Support for the show comes from Public.com. If you're actively involved in your portfolio, you probably catch yourself repeating the same actions. Buying the dip, manually sweeping idle cash, putting on a hedge. On Public, you can now create AI agents that handle all these tasks on your behalf.
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16:01Andrew Schapiro:The Supreme Court upheld the long-held principle of birthright citizenship this week. rejecting President Trump's attempt to redefine what it means to be an American. Under Trump's executive order, only babies born to a U.S. citizen or a green card holder would have citizenship. But in a 6-3 decision, the court reaffirmed a ruling from 128 years ago that the 14th Amendment guarantees citizenship to virtually everyone born on U.S. soil. The Supreme Court decided this issue definitively in 1898 and again today reaffirmed that the 14th Amendment means that everyone born here is a citizen alike. That can only be changed by constitutional amendment and that effort will fail.
16:53Andrew Schapiro:The case was personal for Celia Wang, the ACLU attorney who argued before the court. She herself is a birthright citizen born in Oregon to immigrant parents. Chief Justice John Roberts wrote the majority opinion, saying the court was keeping the promise made by the framers of the 14th Amendment, the promise of citizenship to everyone born here. Joining me is Professor David Super of Georgetown Law, an expert in constitutional law. So, David, this was a six to three decision, but not down ideological lines. The chief and justices Amy Coney Barrett and Brett Kavanaugh joined with the liberals to make up the six in the majority.
17:34Andrew Schapiro:Tell us about the chief's majority opinion.
17:36David Super:The chief justice looked at the history of the language of the 14th Amendment and found that going far back into the English common law, someone who is born in a place is subject to the jurisdiction of that place. And when the 14th Amendment says that children that are born in the U.S. subject to the U.S.'s jurisdiction are citizens, he said that that means what it says. They're citizens, except in the very special circumstance of the kids of diplomats, or perhaps people who are born during a foreign military operation. But with those very, very limited exceptions, he found that the framers of the 14th Amendment used well-known terms from the English common law, and we were bound by them.
18:28Andrew Schapiro:And he said there was scant evidence to support the Trump administration's dramatically revisionist view. And I remember during the oral arguments that Justice Elena Kagan pointed out to the Solicitor General that he was relying on obscure sources like an oration delivered at President Lincoln's funeral. They didn't have much law to back them up, did they?
18:50David Super:They really didn't. And they should have understood this. It's striking that what they're effectively were trying to do is overrule a case from the 19th century called Womking Ark, which was handed down by almost the same Supreme Court that gave us separate but equal in Plessy v. Ferguson. One of the most reactionary courts in the history of the country found that birthright citizenship means what it says. And if President Trump is trying to get even farther to the right, even deeper into white supremacy than the Plessy v. Ferguson court, that's a challenge.
19:34Andrew Schapiro:Despite that, you had three of the court's most conservative justices, Clarence Thomas, Samuel Alito, and Neil Gorsuch dissented. Now, Thomas and Alito are no surprise. They even dissented in the tariffs case, but how did they defend their dissents?
19:50David Super:In many respects, there are four dissents because Justice Kavanaugh agreed with the dissenters on the constitutional issue. So only a five to four majority said that the Constitution protects people's birthright citizenship. Three of them thought that the president can take it away himself, and the forth thought that Congress could. And it's instructive that the dissenters really don't come up with a single coherent theory, nor really does the federal government. They're getting a scrap from here and a scrap from there and trying to weave it into something. And they have quite a number of different legal theories going on.
20:33David Super:But they seem to say, well, at some point, the U.S. deviated from the English common law, kind of remarkable from judges who on other occasions treat the common law as practically having been handed down on tablets to Moses. But apparently we deviated from the English common law, but no one's quite sure when or how. Maybe someone said something at someone's funeral, so maybe that's a big deal. But they say that we've gone off to a different theory. But he can't say where. He can't provide legal authority for that. And the legal theories they come up with don't make a great deal of sense. Taking some of them seriously, they would seem to mean that anyone born here to foreign parents, no matter how legal the parent status might be, is not a U.S.
21:27David Super:citizen. And if that's true, then why did they even bother putting that language into the 14th Amendment.
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21:35Andrew Schapiro:Are the conservatives deviating more and more from originalism or textualism?
21:41David Super:It's strikingly unprincipled. And I mean, we've come to expect a lot of this from Justice Alito and Justice Kavanaugh. I had hoped that Justice Thomas would use this as a chance to make a strong pitch for originalism and say, I don't like this result. I do like this president, but originalism tells me that that's what this means. But he doesn't do that. He comes up with this very convoluted theory, which I think badly undercuts originalism. I was also disappointed, frankly, with Justice Gorsuch's position here, because I think he takes originalism seriously. And the case that they were trying to overrule, Wong Kim Ark, is a model of originalist reasoning, something that you would think they would want to emulate rather than try to pick apart.
22:34Speaking of trying to overrule a 128-year-old precedent, on Monday the court reversed a 90-year-old precedent, Humphreys' executor,
22:44Andrew Schapiro:in the case involving former FTC Commissioner Rebecca Slaughter. And on Tuesday the court reversed a 25-year-old precedent in the case involving campaign finance regulations. Both those were six to three decisions with the Republican appointees in the majority and the Democratic appointees in dissent. Justice Alina Kagan wrote the dissent in the case eliminating federal limits on spending by political parties coordinating with candidates. And she chided the majority for overturning precedent, saying it once again disregards and disrespects the core legal principle of stare decisis. Does precedent carry any weight for the conservatives at this point?
23:26Andrew Schapiro:Do they even feel like they have to follow it?
23:29David Super:I think precedent has stopped mattering very much. There are some respectable theories that say that we should follow the best reading of the Constitution. We should follow an originalist meaning or we should follow a textual analysis or something like that. But they don't do that either. And in the case overruling Humphrey's executor, they create a bunch of exceptions because they think these are good public policy. They don't have a coherent originalist theory for these exceptions. Indeed, their theory for the whole slaughter case would seem to suggest that the Federal Reserve should be under the most presidential control.
24:11David Super:But for policy reasons and because they don't want to be blamed for a recession, they create an exception. So precedent doesn't matter, but neither does a coherent theory. This is very policy-driven judging.
24:27Andrew Schapiro:I was going to say that, you know, you hear from Trump and others in the administration complaints about liberal activist judges. But it seems like the Supreme Court's conservative justices have become activists.
24:41David Super:They have become activists, activists in pursuit of what they think is good public policy, which is usually conservative, but sometimes has other wrinkles to it. They're making an exception to presidential power over the Federal Reserve is not really conservative. It's that they don't want to crash the economy. And I don't want to crash the economy either. So I'm glad the Federal Reserve is not under the president's thumb completely. but I don't think that's principal judging. So we're not a court of precedent, and we're not really originalist. We cite old stuff, but not usually definitive evidence of original public meaning, just sort of random old stuff.
25:26David Super:So we're really off on our own with this court doing what they think is best.
25:32Andrew Schapiro:The Chief Justice gets to assign the majority opinion when he's in the majority. And Roberts wrote the majority opinions in two of the most high-profile cases of the term, this case involving birthright citizenship and the tariffs case. And he also wrote the majority opinions in the cook and slaughter cases this week. And that's been a pattern of his over the years. He's the chief, that's his right, but do you think he should give some of the other justices a chance at these high-profile cases instead of keeping them for himself?
26:04David Super:He hasn't done that all the time, but he has certainly done it a great deal. And I think it's because he understands the scrutiny the court is under and believes that he can write an opinion that will be less vulnerable to public criticism than some of his colleagues would. He's a very Teflon opinions, and history suggests that he may be right.
26:38Andrew Schapiro:How did other chief justices handle the assignment of the majority opinion?
26:44David Super:It really varies a great deal. There are some very important Warren court decisions that Chief Justice Warren assigned to himself, most obviously Brown versus Board of Education. He was trying to get a unanimous court, which he succeeded in doing, and felt that having personal control of the opinion as he was negotiating with the holdouts would allow him to make the kinds of modifications that would unify the court. Chief Justice Berger assigned himself opinions that seemed interesting and important. Chief Justice Berger's skills were probably not on the level of either Chief Justice Ward or Chief Justice Roberts.
27:24David Super:And some of those opinions that he assigned himself have puzzled people ever since. My sense of Chief Justice Rehnquist is that he did not particularly abuse the privilege of assigning opinions. He certainly took some important ones for himself, but left as many for his colleagues. So it's a matter of different style. I think we've never had a Chief Justice since John Marshall, who cared as much about the court's public image as the current chief justice does. And I think he correctly sees the tone of these opinions as being very important to persuading the public that the court is in fact pursuing a legal agenda rather than an ideological one.
28:10Andrew Schapiro:As you know, David, Supreme Court approval ratings are near historic lows. So the chief has his work cut out for him to get the public to regain their trust in the court. Thanks so much for joining me today, David, and giving us the historical perspective on the court. That's Professor David Super of Georgetown Law. Coming up next on the Bloomberg Law Show, the Supreme Court continues its pattern of rolling back campaign finance regulations. I'm June Grosso, and you're listening to Bloomberg. Support for the show comes from public.com. If you're actively involved in your portfolio, you probably catch yourself repeating the same actions, buying the dip, manually sweeping idle cash, putting on a hedge.
28:50On public, you can now create AI agents that handle all these tasks on your behalf. Just describe what you want to do in plain English, like if the VIX hits 25, buy a put option on the S &P 500. Or if my cash balance goes above$20 ,000, move the excess into my direct index. You approve the workflow and your agent handles the rest. Monitoring the market, watching for your conditions and executing your strategies exactly as defined. An investing platform driven by your intent, not just your clicks. You can also get full read and write access to your account via the public API. Go to public.com slash market and fund your account in five minutes or less.
29:31That's public.com slash market. Paid for by Public Investing. Brokered services by Open to the Public Investing Inc., member FINRA and SIPC. Advisory services by Public Advisors, LLC, SEC Registered Advisor. Complete disclosures available at public.com slash disclosures.
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31:04Andrew Schapiro:Throughout longstanding federal limits on spending by political parties in coordination with candidates as a violation of constitutional free speech rights. In a majority opinion written by Justice Brett Kavanaugh, the court's conservatives reversed a 25-year-old precedent in ruling that political parties can spend as much as they want in coordination with candidates and resolving Kavanaugh's concerns during oral arguments.
31:33David Super:That's the real source of the disadvantage, right? You can give huge money to the outside group, but you can't give huge money to the party, and so the parties are very much weakened compared to the outside groups.
31:44Andrew Schapiro:But writing for the liberals in dissent, Justice Elena Kagan warned that the decision could bring back quid pro quo corruption by allowing a political party to serve as an alternative checking account for a campaign, with donors giving as much as half a million dollars to the party to cover a candidate's bills. I mean, everybody knows where the money is coming from when it's done this way. So the fact that I have a party as a conduit, the fact that I have a different private group as a conduit, it's not hard to figure out where the money is coming from, either for that person, the original source of the money, or for the candidate.
32:24Andrew Schapiro:The decision continues the conservative justice's pattern of rolling back campaign finance regulations. My guest is Andrew Shapiro, a partner in Quinn Emanuel's appellate practice group. He was the former U.S. ambassador to the Czech Republic. Andy, let's start with the big question. How important is this decision? How much will it change how money is spent in congressional elections? I think it's important for two reasons. So at a general level, it's important because it's the next maybe almost inevitable step in the evolution of the way the Roberts court looks at campaign finance cases. And so maybe by itself, it's not an earthquake, but as part of a pattern over the last 15 or 20 years, it says a lot.
33:14But then even as a practical matter, it is going to allow individuals to give half a million dollars or more to a party. And the party is essentially free to spend it in support of a candidate to pay a candidate's bills. Obviously, that's a much bigger bang for the buck that a donor might get than just$7 ,000, which is currently capped.
33:38Andrew Schapiro:So the majority decision was written by Brett Kavanaugh. Tell us about his argument and whether it mirrors the First Amendment kind of arguments that we seem to see in all these campaign finance cases. So Justice Kavanaugh writing for six members of the court set this up as essentially just an exercise in a balancing test, tried to frame it as a fairly narrow ruling. So you have competing interests here. You have the interest that Congress and in some prior decisions the Supreme Court had identified of trying to keep not just corruption, but the appearance of corruption or of a quid pro quo out of our politics.
34:17That's on one side of the scale. On the other side of the scale is the First Amendment and the right of individuals or in some of these cases, organizations to use their money to get their views across or support candidates as they wish. And so when you're balancing that, the test that the court has ultimately developed is it has to be closely and narrowly tailored. I'm paraphrasing here, but essentially you have to say this specific restriction on speech is closely tailored to accomplishing the goal that we want to accomplish. And Justice Kavanaugh walked through the stated goals, which are avoiding corruption and avoiding quid pro quos.
34:58Maybe one might say quids pro quo. And decided that existing mechanisms are sufficient. So he pointed to the fact that there is still a cap on how much one can give to an individual or to a party. He pointed to prohibitions against what is called earmarking. That is, I can't specifically and expressly give$500 ,000 to the Democratic Party or the Republican Party and say spend it in support of this candidate. That's still forbidden. And so Justice Kavanaugh said that's a guardrail. And he said that the disclosure laws are a guardrail, right? The campaigns still have to disclose in most instances the donors and the parties have to do the same thing.
35:41And so the idea that having these things out in the sunlight will deter corruption, he felt was sufficient. And therefore, when doing this balancing test, said those are enough. It's not narrowly tailored. And so we do not need and cannot justify under the First Amendment having a further restriction saying that parties cannot coordinate their expenditures with individual candidates.
36:03Andrew Schapiro:You mentioned quid pro quo. Writing for the dissenters, the three liberals, Justice Elena Kagan said the ruling opens up the same opportunities for quid pro quo corruption that the limits were meant to check, allowing wealthy donors to dodge individual contribution limits by donating through parties instead. Explain the concerns that the liberals have. Sure. I think a lot of this has to do with the different views that the majority and the dissenters have about corruption. What does it really mean, a quid pro quo? So the majority is taking a very narrow view. Essentially, they say, well, these laws are meant to prevent quids pro quo and corruption.
36:46And by that, we mean somebody very specifically saying, I'm giving$500 ,000 to the party in support of this candidate. And in exchange, I'm expecting that I will get some relief from a government investigation or that subsidies for my industry will be approved, etc. And the justices in the minority, Justice Kagan and Justices Sotomayor and Tanji Brown-Jackson, take a somewhat broader view and say, that's overly technical. And everybody knows what's going on, even if I'm not specifically saying, hey, you know, I'm trying to develop a nuclear power plant here and I need approval. And by the way, I'd like to give$500 ,000 to the party.
37:32That's enough. It's enough to do a nudge, nudge, wink, wink. You don't have to have someone expressly saying, I'm happy to give you$500 ,000 if you approve my nuclear power plant. And there's a lot of force to some of the examples that Justice Kagan gives in that dissent. She points out that the parties can essentially be paying the candidates bills. And, you know, the functional difference between someone donating to the candidate to pay the candidates bills or donating to the party to pay the candidates bills can be hard to discern. So essentially now, even though in name there's a$7 ,000 limit on what an individual can give to a particular candidate, the party can simply say, we're going to take the money that this individual gave us and we'll pay your electricity or your rent, we'll pay for your ads.
38:18So she's taking, I think, a more practical view.
38:21Andrew Schapiro:From what I've been reading, in the short term, at least, this is a win for Republicans. President Trump actually said it's a big win for Republicans. Explain why Republicans might benefit more than Democrats. Yeah, that's right. In the short term, and of course, parties and donors and candidates are pretty good at figuring out how to play by whatever the rules are as the rules adapt to adapt their own strategies. But right now, the Republican Party itself has been better at fundraising than the Democratic Party, if you're looking at the national committees, they have a greater number of donors who are ready, willing, and able to write the checks in the hundreds of thousands of dollars.
39:01And that's why this case was originally brought by Republicans. It's the National Republican Senatorial Committee. It was originally J.D. Vance, when he was a candidate in Ohio, challenged some restrictions against coordinating. That being said, at least on its face, the ruling frees the Democratic Party or some future party, frees that party up to spend as much money as it wants as well in coordination with other candidates. The question for the longer term, though, is whether it benefits one party or not, it certainly benefits people who have the ability to write really big checks. Back in the 1970s after Watergate, when Congress passed the Federal Election Campaign Act, the idea was to try to limit the ability of large donors and large interests to impact government policy just by writing big checks.
39:52It's difficult to see how that is not undermined somewhat by this ruling. Maybe it's a correct application of the First Amendment. I'm not stating a position on that. But I think it's hard to deny that this really will amplify the voices of individuals and industries with the deepest pockets.
40:10Andrew Schapiro:Are we going to see more political TV ads because of the candidates getting lower rates for TV ads? Well, you know, June, it's hard to imagine seeing more ads than we sometimes see during the political campaign season. But it does seem likely that you will have more money going into television ads now because as you adverted to there, typically a party and PACs and other organizations did not get the same favorable rates that candidates' campaigns did. And now that's essentially out the window because the campaigns can just pay the bills. So we may yet see even more ads, not just on TV, but they're going to be popping up on your computer as well.
40:50Andrew Schapiro:The majority here overruled a 2001 decision. That was the second time in two days that the court overturned a precedent. There is certainly a pattern. So the decision that was overturned here is called Colorado 2. And traditionally, obviously this was something that was discussed a lot in the Dobbs decision as well. But the standard has been over the years that the court can overturn a precedent only in unusual circumstances and that there has to be a very high bar, something other than just that the court thinks the prior decision was wrong. And here, Justice Kavanaugh said, well, subsequent developments in the case law suggest that in this Colorado 2 decision, which had upheld the restrictions that were struck down in this case, Justice Kavanaugh said, well, since that time, the standard that we use for balancing has changed and we apply a closer type of scrutiny to restrictions on the First Amendment.
41:53But as Justice Kagan points out, essentially in this decision, they applied the same level of scrutiny. And she calls them out saying that what seems to be happening here, and I think you're right, June, it's happened in some other cases. the court is becoming more comfortable overturning a precedent simply because a majority of justices on the current court think that the prior decision was wrong, rather than that there is some unusual and identifiable need to overturn people's settled expectations.
42:28Andrew Schapiro:Justice Kagan quoted from a dissent by Justice Stephen Breyer in the McCutcheon case in 2014, where he said that the decision eviscerates our nation's campaign finance laws, leaving a remnant. And at the end of her dissent, she said, I'm not sure what to call a remnant of a remnant, but that is what the court has left today. Is this the end or do you think there'll be more attacks on what's left of campaign finance laws. There still are limits. That was upheld in Buckley versus Philea. So the$7 ,000 limit to an individual candidate and these limits, which the majority in dissent debated, at least at the oral argument about, is it technically$44 ,000 or is it$500 ,000?
43:09It depends how you characterize it, but there still are some limits. So is the next challenge going to say limits should be out the window as well? Or disclosure? Disclosure is still one of the guardrails against corruption that both the majority and the dissent pointed to here, you can imagine a challenge in which a candidate or a party or an organization says that too is not justified. It'll be interesting to see.
43:37Andrew Schapiro:It's been great having you on. Thanks so much for your insights, Andy. That's Andrew Shapiro of Quinn Emanuel. And that's it for this edition of the Bloomberg Law Show. Remember, you can always get the latest legal news on our Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify, and at www.bloomberg.com slash podcast slash law. And remember to tune into the Bloomberg Law Show every weeknight at 10 p.m. Wall Street time. I'm June Grosso, and you're listening to Bloomberg.
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From the publisher
Constitutional law expert Gillian Metzger, a professor at Columbia Law School, discusses the Supreme Court’s decision expanding presidential power. Then constitutional law expert David Super, a professor at Georgetown Law, discusses the Supreme Court upholding birthright citizenship. And Andrew Schapiro, a partner in the appellate practice at Quinn Emanuel and the former US Ambassador to the Czech Republic, discusses the court once again eliminating campaign finance restrictions. June Grasso hosts.
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