WEBVTT - Jack Daniel's, Ginger Rogers and a Dog Toy 0:00:03.200 --> 0:00:07.960 This is Bloombird Law with June Brasso from Bloomberg Radio. 0:00:11.280 --> 0:00:15.520 Frank Sinatra was a man. No, he was the man, 0:00:16.800 --> 0:00:23.720 and he loved Jack. Jack as a Daniels on stage 0:00:23.760 --> 0:00:28.560 every night. Three rocks, two fingers and a splash of waters. 0:00:28.560 --> 0:00:35.240 A Frank, this one's for you. Frank Sinatra would often 0:00:35.320 --> 0:00:39.000 hold up a glass of Jack Daniels on stage, contributing 0:00:39.040 --> 0:00:42.440 to the popularity of the country's best selling whiskey with 0:00:42.520 --> 0:00:46.680 its iconic shouldered bottle and it's fifty year history as 0:00:46.720 --> 0:00:51.040 a Tennessee whiskey. Any wonder that Jack Daniels Properties would 0:00:51.080 --> 0:00:55.000 take offense at a chewable dog toy mimicking its signature 0:00:55.000 --> 0:00:59.400 whiskey bottle and bearing the label bad Spaniels the old 0:00:59.520 --> 0:01:03.480 number you on your Tennessee carpet. Jack Daniels says it's 0:01:03.560 --> 0:01:06.959 trademarks are being infringed, but the Ninth Circuit rule that 0:01:07.040 --> 0:01:10.360 the toy maker v. I. P. Products was entitled to 0:01:10.480 --> 0:01:14.800 First Amendment protection because the dog toy was an expressive work. 0:01:15.200 --> 0:01:18.000 Now the Supreme Court has agreed to review that decision 0:01:18.240 --> 0:01:20.679 in a case that will test the reach of trademark 0:01:20.800 --> 0:01:24.120 rights in the face of First Amendment claims. My guest 0:01:24.200 --> 0:01:27.880 is intellectual property litigator Terence Ross, a partner at Captain 0:01:28.000 --> 0:01:31.399 Uchen Rosamond, So Terry tell us about the basic legal 0:01:31.520 --> 0:01:35.880 fight here and the history of litigation. June number of 0:01:35.959 --> 0:01:39.559 years ago, a company called v I P Products, which 0:01:39.640 --> 0:01:43.679 puts out novelty toys especially for dogs, came out with 0:01:43.720 --> 0:01:48.720 a dog toy called Bad Spaniels that mimicked the classic 0:01:48.880 --> 0:01:52.680 Jack Daniels whiskey bottle for its old number seven. Jack 0:01:52.760 --> 0:01:57.120 Daniel's parent company, Brown Foreman, not surprisingly sent out these 0:01:57.160 --> 0:01:59.640 and desist letters to v I P Products, and v 0:01:59.720 --> 0:02:05.080 I P Products brought declaratory judgment action in Arizona seeking 0:02:05.320 --> 0:02:08.480 to a pain from the Court of ruling that what 0:02:08.520 --> 0:02:11.000 they were doing was not a violation the trademark lass. 0:02:11.120 --> 0:02:13.400 The district court had a bench trial, which is a 0:02:13.440 --> 0:02:16.639 trial without a jury, and ruled that it was trademark infringement. 0:02:16.800 --> 0:02:19.160 V I P Products took that case up to the 0:02:19.280 --> 0:02:23.960 Ninth Circuit, and the Ninth Circuit reversed, saying that the 0:02:24.040 --> 0:02:27.359 dog toy is a quote expressive work and it's protected 0:02:27.360 --> 0:02:30.600 by the First Amendment. Jack Daniels took that decision from 0:02:30.600 --> 0:02:33.640 the Ninth Circuit up to the Supreme Court, which refused 0:02:33.680 --> 0:02:35.720 except the game. So the case was sent back to 0:02:35.760 --> 0:02:38.760 the District Court, which entered a judgment on behalf of 0:02:38.800 --> 0:02:42.400 the dog toy maker v IP Products. Brown Foreman's Jack 0:02:42.480 --> 0:02:46.640 Daniels company appealed that decision the Ninth Circuit, which affirmed 0:02:46.639 --> 0:02:50.040 it without even writing anything and in sort of a 0:02:50.080 --> 0:02:53.400 Hail Mary, the company took the case back to the 0:02:53.440 --> 0:02:56.920 Supreme Court second time, and to everybody's surprise, on November 0:02:57.000 --> 0:03:00.120 twenty one this year, the Supreme Court granite surgery or 0:03:00.440 --> 0:03:04.240 on the case and has accepted it's for review, which 0:03:04.400 --> 0:03:07.520 was quite surprised. In the trademark law field, this involves 0:03:07.600 --> 0:03:11.720 the Rogers test, named after Ginger Rogers. Explain a little 0:03:11.720 --> 0:03:15.040 bit about that test for us. The Rogers test is 0:03:15.200 --> 0:03:20.440 judge created rule that comes from case called Rodgers versus Grimaldi. 0:03:20.680 --> 0:03:23.880 It involved the Frederico Felini film called Ginger and Fred 0:03:24.040 --> 0:03:27.000 that was about two Italian cabaret dancers and the reference 0:03:27.120 --> 0:03:29.320 in the title to Ginger Fred was to Ginger Rogers 0:03:29.360 --> 0:03:31.960 and Fred Stair. Obviously, everybody understood it to be that, 0:03:32.040 --> 0:03:34.720 and that's what Frederica Felini intended it to me. So 0:03:34.920 --> 0:03:38.920 Ginger Rogers brought a lawsuit against the producer of the movie, 0:03:39.080 --> 0:03:42.600 alleging that they weren't allowed to market the movie using 0:03:42.600 --> 0:03:45.080 her name. And the case went up on appeal to 0:03:45.120 --> 0:03:47.560 the Second Circuit, which is the federal pellate Court for 0:03:47.560 --> 0:03:49.920 the New York area. And the court said no if 0:03:49.920 --> 0:03:52.640 this was okay here, And they said specifically, it was 0:03:52.680 --> 0:03:56.560 okay to use a celebrity's name in an expressive work 0:03:56.840 --> 0:04:01.200 if it's artistically relevant to the work and not iplicitly misleading. 0:04:01.320 --> 0:04:05.800 And that rule became the Rogers test and expanded beyond 0:04:06.040 --> 0:04:08.800 merely the use of celebrity names, which was the nearer 0:04:08.880 --> 0:04:11.080 holding in the case, to more broadly to the use 0:04:11.080 --> 0:04:15.360 of trademarks in expressive works such as movies, books, songs, 0:04:15.640 --> 0:04:17.880 that sort of thing. So is that the test that 0:04:17.960 --> 0:04:22.160 the Ninth Circuit used in ruling for the toy company. 0:04:22.240 --> 0:04:25.920 Here it is, and it represents one of the very 0:04:25.920 --> 0:04:30.560 first times that an appellate court has ever applied the 0:04:30.680 --> 0:04:35.160 Rogers test to commercial product. The Rogers test was expressly 0:04:35.200 --> 0:04:39.479 directed at so called expressive works and was not intended 0:04:39.600 --> 0:04:43.040 to apply to commercial products such as the dog Chewy 0:04:43.080 --> 0:04:45.720 toy here at issue and so that was a bit 0:04:45.760 --> 0:04:48.320 of a surprise in and of itself. And now we 0:04:48.400 --> 0:04:51.760 have to assume that the Supreme Court has accepted this 0:04:51.839 --> 0:04:55.680 case in order to consider whether the Ninth Circuit was 0:04:55.800 --> 0:04:59.040 right in applying the Rogers test, because if the Rogers 0:04:59.080 --> 0:05:02.160 test is applied, that's sort of a low bar. It's 0:05:02.200 --> 0:05:05.120 a threshold issue. You don't have to then go into 0:05:05.279 --> 0:05:09.680 whether there's consumer confusion in the marketplace. That's correct. The 0:05:09.800 --> 0:05:14.440 Rogers test is intended to protect the legitimate First Amendment 0:05:14.560 --> 0:05:18.760 interests that creators of expressive works have. And indeed, you 0:05:18.800 --> 0:05:21.400 think about this in terms of something as simple as 0:05:21.440 --> 0:05:24.880 a film review. If you need to do a review 0:05:25.000 --> 0:05:27.960 for the newspaper, magazine, television of a new film that's 0:05:27.960 --> 0:05:31.040 been released, you have to mention the name of the film. 0:05:31.279 --> 0:05:34.880 So there has to be some realm of protection emanating 0:05:34.920 --> 0:05:38.000 out the First Amendment even though you're using trademark names. 0:05:38.200 --> 0:05:41.800 The question is how far does that expand so this 0:05:41.880 --> 0:05:45.000 is the very first time that the Supreme Court will 0:05:45.040 --> 0:05:48.880 consider in the trademark context, as supposed to copyright context, 0:05:49.000 --> 0:05:52.279 what sort of First Amendment protections there are that limit 0:05:52.360 --> 0:05:55.520 the applicability of trademark law. The toy company here also 0:05:55.640 --> 0:06:01.640 sells parodies of other popular alcoholic bottles, including Stella r Paw, 0:06:02.080 --> 0:06:07.040 which mimics designs from beer maker Stella Artois, and heine Sniffin, 0:06:07.400 --> 0:06:10.760 which resembles Heineken. So are there any other suits like 0:06:10.800 --> 0:06:14.159 this one? Indeed, this same company put out of chew 0:06:14.279 --> 0:06:17.039 toy for dogs that was in the shape of a 0:06:17.080 --> 0:06:20.800 beer bottle that had the title on a Budweiser and 0:06:21.120 --> 0:06:24.960 looked very much like a bud Wiser beer bottle, and 0:06:25.320 --> 0:06:30.760 Budweiser did not want its beer being associated with people's 0:06:30.760 --> 0:06:34.920 bottoms and went to court suit and one, and that 0:06:35.040 --> 0:06:38.320 product is no longer on the market. Similarly, there's a 0:06:38.400 --> 0:06:42.159 case in the Fourth Circuit that's so similar to the 0:06:42.200 --> 0:06:45.120 case here that it's almos shocking. It was a lawsuit 0:06:45.200 --> 0:06:48.240 in two thousand seventh. The caption was Louis Vutan versus 0:06:48.279 --> 0:06:52.560 Pote Digitty Dog, and it was about a chewy Vton 0:06:53.000 --> 0:06:56.040 dog toy that was put out as a parody of 0:06:56.200 --> 0:07:00.960 Louis Vatan's trademarks. And the Fourth Circuit in that case 0:07:01.200 --> 0:07:05.240 did not even deign to consider the Rogers test. It 0:07:05.400 --> 0:07:08.200 simply said, look, the way you approach case like this 0:07:08.480 --> 0:07:12.640 is to consider whether or not consumers are likely to 0:07:12.840 --> 0:07:17.800 be confused that somehow this Chewy Vaton dog toy is 0:07:17.840 --> 0:07:21.360 put out by Louis Vaton, the fashion house, and that's 0:07:21.400 --> 0:07:24.080 the way you approach this. Indeed, it just went back 0:07:24.120 --> 0:07:27.200 this morning. Look, the Rogers test is not even mentioned 0:07:27.200 --> 0:07:29.760 by the Fourth Circuit, So in a very real sense, 0:07:29.920 --> 0:07:32.880 the Ninth Circuit is the first federal pellet court to 0:07:33.000 --> 0:07:36.920 consider and to apply the Rogers test in the context 0:07:37.000 --> 0:07:39.400 of a commercial product such as a dog toy, as 0:07:39.480 --> 0:07:42.920 opposed to applying it only with respect to express of 0:07:43.000 --> 0:07:45.440 works like songs, movies, and books. So do you have 0:07:45.520 --> 0:07:49.440 any idea why the Court decided to take this case 0:07:49.640 --> 0:07:53.120 the second time around? This is exactly the problem that 0:07:53.240 --> 0:07:56.960 many of my friends in academia have discussed with me. 0:07:57.360 --> 0:08:00.720 We don't really know why all of the Supreme Court 0:08:00.800 --> 0:08:04.360 wants to look at this, and you know that raises fears. 0:08:04.400 --> 0:08:09.119 The only difference in the law between when the Court 0:08:09.360 --> 0:08:13.440 rejected this case the first time and November two, when 0:08:13.440 --> 0:08:16.560 the Court decided to accept it on second go round, 0:08:16.800 --> 0:08:19.960 is that the composition of the Supreme Court has changed, 0:08:20.200 --> 0:08:23.360 and it only takes four votes amongst the justices to 0:08:23.440 --> 0:08:26.320 hear case, and we've had at least my account, if 0:08:26.320 --> 0:08:29.160 I've got it right, two new justices seed it since then, 0:08:29.440 --> 0:08:32.720 So one can't help but wonder if that is the 0:08:32.800 --> 0:08:35.160 driving force here, is that the new justices have a 0:08:35.160 --> 0:08:37.280 different view of how trademark laws should have plot. But 0:08:37.360 --> 0:08:41.400 the fear amongst academics and practitioners who followed this very 0:08:41.480 --> 0:08:44.760 closely is that the Supreme Court might start with a 0:08:44.880 --> 0:08:49.960 much bigger picture and ask does the Rogers test even exist? 0:08:50.200 --> 0:08:53.200 The important thing to remember here is that there is 0:08:53.480 --> 0:08:56.280 no Rogers test in the Lantam Act, the trademark law. 0:08:56.520 --> 0:08:59.760 It was created by Judge Newman out a whole cloth 0:09:00.040 --> 0:09:04.680 in Rogers v. Grimaldi. It's judge made law. And there's 0:09:04.720 --> 0:09:06.960 also this fear that there's a number of justices on 0:09:07.000 --> 0:09:11.120 the Court now who are anesthetical to judicial lawmaking, who 0:09:11.160 --> 0:09:14.640 believe that that's the province of Congress, and they arguably 0:09:14.720 --> 0:09:16.880 have some support in that thinking, and they may be 0:09:17.000 --> 0:09:19.720 wanting to revisit this. Remember, in the Copyright Act, this 0:09:19.720 --> 0:09:22.480 would be handled by the fair use doctrine. Fair use 0:09:22.640 --> 0:09:27.120 doctrine is statutory. It's actually in the Copyright Act. There 0:09:27.280 --> 0:09:31.480 is no equivalent here in the trademark last, So one 0:09:31.600 --> 0:09:35.600 fear is that the Rogers test may not be accepted 0:09:35.640 --> 0:09:37.320 by the court. This will be the first time spcour 0:09:37.360 --> 0:09:40.240 its ever considered does the Rogers test even exist? The 0:09:40.280 --> 0:09:43.120 second question that I think if they agree that there 0:09:43.200 --> 0:09:45.400 is some sort of Rogers test, what is the makeup 0:09:45.440 --> 0:09:48.360 of that test? I mean, he's necessarily simple testing, you know, 0:09:48.559 --> 0:09:52.480 with respect expressive works. Is the use of trademarks artistically 0:09:52.480 --> 0:09:55.840 relevant to that work and not explicitly intended to mislead? 0:09:56.400 --> 0:09:59.080 And then if we get past that, the third question, 0:09:59.120 --> 0:10:01.840 which I think is the one that they absolutely will consider, 0:10:01.960 --> 0:10:05.760 is does the Rogers test apply to commercial products? Because 0:10:05.880 --> 0:10:09.680 in its classic iteration it's limited to expressive works and 0:10:09.800 --> 0:10:13.800 a dog jewey toy does not constitute in my box 0:10:14.080 --> 0:10:17.800 as an expressive work. Does this then have the potential 0:10:18.000 --> 0:10:21.080 to be a landmark case? Oh, this is going to 0:10:21.120 --> 0:10:24.079 be a landmark case almost no matter what the court does. 0:10:24.200 --> 0:10:26.320 If they say there is no Rogers test at all, 0:10:26.520 --> 0:10:28.360 that it was just made up by judge and that 0:10:28.440 --> 0:10:30.960 isn't the way we governed in the United States, then 0:10:31.000 --> 0:10:32.959 that's a landmark issue. If they say that there is 0:10:33.120 --> 0:10:35.840 Rogers test and then lay out what the test exactly 0:10:36.040 --> 0:10:38.559 is that's a landmark decision. If they go so far 0:10:38.600 --> 0:10:41.400 as to say applies across the board to trademark us 0:10:41.600 --> 0:10:44.319 in all commercial products, not just expressive works, that's a 0:10:44.440 --> 0:10:47.000 landmark decision. So, I mean, this is going to be 0:10:47.080 --> 0:10:49.880 a really big case coming out of Supreme Court. One 0:10:49.960 --> 0:10:53.720 of the most significant trademark cases in quite a few years, 0:10:53.920 --> 0:10:56.480 for sure, and it's the second IP case the Court 0:10:56.520 --> 0:10:59.640 has taken this term. We've of course discussed the suit 0:10:59.679 --> 0:11:03.959 again the Andy Warhol Foundation over his Prince series. Thanks 0:11:03.960 --> 0:11:09.640 so much, Terry. That's intellectual property litigator Terence Ross. Senate 0:11:09.679 --> 0:11:13.160 majority leader Chuck Schumer was among the Democrats who condemned 0:11:13.200 --> 0:11:16.960 former President Donald Trump for calling for the termination of 0:11:17.000 --> 0:11:21.920 the Constitution over his disproved claims that the election was stolen. 0:11:22.559 --> 0:11:27.040 Now he's calling for an end to America's constitutional democracy. 0:11:27.760 --> 0:11:31.000 Donald Trump is out of control and a danger to 0:11:31.120 --> 0:11:35.480 our democracy. Schumer asked his Republican colleagues to speak out 0:11:35.559 --> 0:11:39.600 against the Trump comments, but their reaction was muted. My 0:11:39.679 --> 0:11:43.559 guest is Kenneth Gross, senior political law counsel and consultant 0:11:43.600 --> 0:11:46.720 at Achon Gump. He wrote on Truth Social a massive 0:11:46.760 --> 0:11:49.720 fraud of this type and magnitude allows for the termination 0:11:49.760 --> 0:11:53.760 of all rules, regulations, and articles, even those found in 0:11:53.800 --> 0:11:57.120 the Constitution. Do you think these kinds of comments are 0:11:57.200 --> 0:12:00.760 planned at all or just reactive on his part? It's 0:12:00.800 --> 0:12:02.599 hard to say. It doesn't sound like a lot of 0:12:02.720 --> 0:12:06.120 thought goes into it, because it blew up. You know. 0:12:06.200 --> 0:12:10.520 It's one thing too, they ignore rules, but once you 0:12:10.600 --> 0:12:16.200 start touching the Constitution, you're at the third rail, and 0:12:16.559 --> 0:12:19.880 that is not a good place to go. The response 0:12:20.280 --> 0:12:25.480 was kind of weak from Republicans. Republican senators focused on 0:12:25.840 --> 0:12:29.480 the remarks themselves and the importance of the Constitution. I 0:12:29.520 --> 0:12:33.040 didn't hear anyone say, oh, this means I won't vote 0:12:33.040 --> 0:12:36.320 for Trump when he runs for election. It seems like 0:12:36.360 --> 0:12:40.360 they're getting closer and closer to saying that because there 0:12:40.400 --> 0:12:45.120 the criticism is becoming more directed at him than at 0:12:45.200 --> 0:12:48.720 just the remarks, or it's more difficult to separate the two. 0:12:49.200 --> 0:12:52.440 So I am hearing more and more senators really in 0:12:52.480 --> 0:12:58.520 the last hours, Senator Tune and others are becoming more 0:12:58.600 --> 0:13:03.959 vocal in their unhappiness with statements like this and connecting 0:13:04.000 --> 0:13:08.520 them to the speaker of the statements. In this case, Mr. Trump, So, 0:13:08.720 --> 0:13:11.880 you know, I think maybe it's moving like the like 0:13:12.000 --> 0:13:15.560 the lava from Mauna Loa and Hawaii, but it seems 0:13:15.600 --> 0:13:19.319 to be going in that direction. House Minority Leader Kevin 0:13:19.400 --> 0:13:22.840 McCarthy has yet to comment on the post, but in 0:13:22.920 --> 0:13:25.760 what may be a case of bad timing, on November, 0:13:26.559 --> 0:13:29.520 McCarthy tweeted that on the very first day of the 0:13:29.520 --> 0:13:33.120 new Republican led Congress, we will read every single word 0:13:33.120 --> 0:13:35.840 of the Constitution allowed from the floor of the House, 0:13:36.360 --> 0:13:39.959 something that hasn't been done in years. And yet do 0:13:40.000 --> 0:13:44.120 we expect to hear anything negative from him on this now? 0:13:44.240 --> 0:13:48.680 I think McConnell, you know, there is some speculation that 0:13:48.760 --> 0:13:52.520 he may say something. McCarthy. I have not heard anything 0:13:52.679 --> 0:13:55.920 from him or any statements that he plans to be making, 0:13:56.000 --> 0:13:58.600 so it would be speculative to say that he would 0:13:59.160 --> 0:14:01.960 come out and say anything other than you know, what 0:14:02.120 --> 0:14:05.200 he has said historically, which of course doesn't relate to 0:14:05.240 --> 0:14:10.160 these comments directly. The controversy intensified, so the former President 0:14:10.240 --> 0:14:13.560 Trump returned to his platform. Basically he insisted that he 0:14:13.600 --> 0:14:16.440 didn't write what he had written. The fake news is 0:14:16.480 --> 0:14:19.280 actually trying to convince the American people that I said 0:14:19.280 --> 0:14:22.760 I wanted to terminate the Constitution. This is simply more 0:14:22.840 --> 0:14:26.480 disinformation and laws, just like Russia, Russia Russia and all 0:14:26.520 --> 0:14:28.840 of their other hoaxes and scams with a lot of 0:14:28.920 --> 0:14:32.840 capitals employed there as he likes to do. Deny what's 0:14:32.840 --> 0:14:35.920 been said has been something that has sort of work 0:14:36.040 --> 0:14:39.800 for him, hasn't it. Absolutely? You know, He's had many 0:14:39.840 --> 0:14:42.960 strikes at the plate and none of them have resulted 0:14:43.000 --> 0:14:46.880 in him being struck out. So um, it's something that 0:14:47.040 --> 0:14:49.880 we will hear probably over and over again, and if 0:14:49.880 --> 0:14:53.160 the heat gets really intense, it'll just direct the marks 0:14:53.160 --> 0:14:57.040 of those who are criticizing him. So I think it's 0:14:57.080 --> 0:15:00.280 hard to even comment on it, you know, saying that 0:15:00.360 --> 0:15:04.000 somehow the Constitution should be set aside a patently is 0:15:04.040 --> 0:15:06.120 not going to work. So he says it and then 0:15:06.160 --> 0:15:08.360 the next day says, well, I didn't mean that. It's 0:15:08.400 --> 0:15:11.520 the media that's characterizing it that way. We've seen this 0:15:11.600 --> 0:15:16.080 show before. We've been living with Donald Trump politically since, 0:15:17.200 --> 0:15:20.880 and he's continued to amaze both in some of the 0:15:20.920 --> 0:15:23.240 things he said and done and also the fact that 0:15:23.520 --> 0:15:27.360 nothing seems to stick. Do you think the Republicans fear 0:15:27.400 --> 0:15:31.680 of speaking out against him? Is because of this rapid 0:15:31.800 --> 0:15:35.600 magabase that no matter what I mean. Trump said early 0:15:35.680 --> 0:15:38.200 on that if you shot someone on Fifth Avenue, no 0:15:38.200 --> 0:15:40.320 one would do anything to him. That seems like it's 0:15:40.360 --> 0:15:43.520 becoming true almost so nothing he says will make any 0:15:43.600 --> 0:15:46.880 difference to them. It seems so that the Republican Party 0:15:47.000 --> 0:15:50.680 is bound to him. There's no question about that. You 0:15:50.720 --> 0:15:53.840 know that those that are running for office or looking 0:15:53.880 --> 0:15:57.080 at their political standing within the party, they don't want 0:15:57.120 --> 0:16:01.000 to alienate that part of the base. And it's significant 0:16:01.120 --> 0:16:05.520 enough and continues to be significant enough where people are 0:16:05.640 --> 0:16:08.760 very careful in what they're saying. An economist you gov 0:16:08.840 --> 0:16:13.320 poll released last week showed Trump at thirty and Florida 0:16:13.400 --> 0:16:19.040 Governor RN De Santis at in a potential Republican primary field. 0:16:19.440 --> 0:16:23.760 But does anyone have a chance against Trump with the 0:16:23.800 --> 0:16:28.000 base that supports him fervently? Well, if there's a number 0:16:28.080 --> 0:16:32.480 of candidates in the field that will certainly improve former 0:16:32.520 --> 0:16:36.080 President Trump's chances. You know, perhaps if it narrowed to 0:16:36.160 --> 0:16:40.600 a one on one, you know, the Santis Trump the 0:16:40.760 --> 0:16:44.800 base versus those others in the Republican Party, it would 0:16:44.840 --> 0:16:47.880 be closed. As that pole seems to indicate. But it's 0:16:47.920 --> 0:16:50.040 not going to be a head on contest between the 0:16:50.080 --> 0:16:52.120 two of them. Most likely there will be others in 0:16:52.160 --> 0:16:55.800 the mix, and that certainly helps Trump the more of 0:16:55.800 --> 0:17:00.320 the ore than it's a replay of in the way 0:17:00.320 --> 0:17:03.760 that he won the nomination. There speaking of a replay, 0:17:03.960 --> 0:17:07.879 get another runoff in Georgia to determine the Senate and 0:17:07.960 --> 0:17:13.640 Senator Raphael Warnock one over challenger football star herschel Walker. 0:17:14.200 --> 0:17:18.240 Democrats already control the Senate, but the result in Georgia 0:17:18.320 --> 0:17:23.480 will have an impact. The impact on a fifty one 0:17:25.000 --> 0:17:29.440 Senate is very significant. You know, I understand that right 0:17:29.480 --> 0:17:34.360 now the Vice President Harris can break ties and the 0:17:34.400 --> 0:17:40.000 majority is still in the democrats favor. But when you 0:17:40.080 --> 0:17:44.440 have a fifty one vote majority, you get a majority 0:17:44.640 --> 0:17:49.400 on every committee of Congress. You can move things out 0:17:49.400 --> 0:17:53.760 of committee on a partisan basis, whereas with a fifty 0:17:53.800 --> 0:17:56.879 fifty it's an equal number on each committee, and in 0:17:57.000 --> 0:18:01.000 order to move legislations, it slows the process found significantly 0:18:01.000 --> 0:18:03.040 and made and required to go to the full floor, 0:18:03.440 --> 0:18:07.159 so the Vice president can participate. Also, the budgets for 0:18:07.200 --> 0:18:10.920 the committee are skewed in favor of the party and majority, 0:18:11.000 --> 0:18:14.400 so the Democrats will have more money and more staffing, 0:18:14.800 --> 0:18:19.640 you know, to handle their process, which is significant. Uh. 0:18:19.920 --> 0:18:23.639 And you know it also raises the question of the 0:18:23.760 --> 0:18:29.600 power of moderate Democrats such as Mansion and Cinema. Are 0:18:29.640 --> 0:18:34.240 they in a position to hold a vote hostage? And 0:18:34.359 --> 0:18:37.800 the answer is no. Even if the two of them 0:18:37.840 --> 0:18:41.000 are together, you could, you know, they could create possible 0:18:41.080 --> 0:18:45.119 tie and those two you know own agreed, certainly difficult 0:18:45.160 --> 0:18:49.400 for the Democratic leadership and Schumer. But this gives enormous 0:18:49.560 --> 0:18:53.959 increased power to Schumer over a fifty Senate. And I 0:18:54.000 --> 0:18:56.480 think that even though this is being characterized what the 0:18:56.640 --> 0:19:00.959 outcome is not going to change who control the Senate. 0:19:01.040 --> 0:19:04.160 It will be the Democrats either way. The difference between 0:19:04.160 --> 0:19:09.280 fifty one and fifty is very significant in all the processes, 0:19:09.320 --> 0:19:14.240 including moving judges through the process and other presidential appointments. 0:19:14.680 --> 0:19:18.320 There have been all kinds of scandals and questions surrounding 0:19:18.359 --> 0:19:23.040 herschel Walker, even whether he lives in Georgia or in 0:19:23.160 --> 0:19:26.560 Texas where he filed his taxes. So why do you 0:19:26.560 --> 0:19:30.479 think this race was so tight? Well, herschel Walker, at 0:19:30.560 --> 0:19:32.719 least in his tv as, and I think in a 0:19:32.720 --> 0:19:38.960 lot of his sumph speeches has tied this election to Biden. 0:19:39.840 --> 0:19:44.120 Raphael Warnock not so much. He's talked about what he's 0:19:44.119 --> 0:19:47.800 done for Georgia voters and some of the other issues 0:19:47.840 --> 0:19:52.600 that are more local. And Biden still is not that 0:19:52.800 --> 0:19:56.280 popular in Georgia, even though he won the presidential election 0:19:56.359 --> 0:20:00.920 against Trump in Georgia, but his popularity has sunk since 0:20:01.040 --> 0:20:04.199 then in Georgia. So, you know, Walker just says, you 0:20:04.280 --> 0:20:06.919 vote for me, and it's a vote against Biden and 0:20:07.000 --> 0:20:10.800 to stop the Liberal Democrats. And there's still a decent 0:20:10.840 --> 0:20:14.119 amount of people who that resonates with Georgia. I I 0:20:14.200 --> 0:20:17.200 still remain a member of the Georgia Bar and came 0:20:17.240 --> 0:20:20.919 to Washington back in the seventies from Georgia, going to 0:20:21.000 --> 0:20:23.720 law school down there. And while the things changed down 0:20:24.040 --> 0:20:27.720 in Georgia, you know, there's still a very strong red 0:20:28.040 --> 0:20:31.439 representation in that state, and just aligning yourself with the 0:20:31.480 --> 0:20:35.320 Republican Party is enough to get you a large chunk 0:20:35.359 --> 0:20:38.200 of votes, even if you're not the most stellar candidate. 0:20:38.640 --> 0:20:41.280 You know you were from Georgia. Well, I'm not originally 0:20:41.359 --> 0:20:43.560 from Georgia, but I went to Emery Law School and 0:20:43.680 --> 0:20:47.320 I came to Washington with Jimmy carterback in nineteen. That 0:20:47.400 --> 0:20:53.680 gives you those qualifications. The Walker campaign kept former President 0:20:53.720 --> 0:20:58.639 Trump away from this runoff except for one event to 0:20:58.720 --> 0:21:02.920 Zoom event, and Biden stayed out of the runoff as well. 0:21:03.320 --> 0:21:06.600 Former President Barack Obama went in to try to rally 0:21:06.640 --> 0:21:11.240 the voters. There is that good strategy on both sides. Yes, 0:21:11.359 --> 0:21:14.640 I think so. Actually, I think that both strategies were good. 0:21:15.080 --> 0:21:18.600 I think, you know, President Obama is very popular. He's 0:21:18.600 --> 0:21:20.960 a great in getting out the vote, which is what 0:21:21.440 --> 0:21:25.400 the Democrats need more than anything in Georgia. And keeping 0:21:25.920 --> 0:21:29.600 Trump at a distance probably helps Walker. So I think 0:21:29.640 --> 0:21:32.480 a lot of good political strategizing on both sides. The 0:21:32.520 --> 0:21:35.959 aisle there came into play. It's not only exhausting for 0:21:36.000 --> 0:21:39.240 Georgia voters, but it must be exhausting for Warnock. He's 0:21:39.280 --> 0:21:43.440 had to run basically four times in two years five. 0:21:43.840 --> 0:21:46.359 He's been on the ballot five times for as he 0:21:46.440 --> 0:21:50.399 says it, for the same dog on job. That's so true. 0:21:50.520 --> 0:21:53.960 Thanks so much, Ken. That's Kenneth Grows, senior political law 0:21:54.000 --> 0:21:57.440 council and consultant at Akin Gump. And that's it for 0:21:57.480 --> 0:22:00.119 this edition of The Bloomberg Law Show. Remember you can 0:22:00.160 --> 0:22:03.320 always get the latest legal news on our Bloomberg Law Podcast. 0:22:03.640 --> 0:22:06.640 You can find them on Apple Podcasts, Spotify, and at 0:22:06.840 --> 0:22:11.879 www dot bloomberg dot com, slash podcast slash Law, and 0:22:11.920 --> 0:22:14.640 remember to tune into The Bloomberg Law Show every week 0:22:14.800 --> 0:22:18.320 night at ten pm Wall Street Time. I'm June Grosso 0:22:18.480 --> 0:22:20.040 and you're listening to Bloomberg