Did Ron Get Rolled?

By Nick Catoggio

Thursday, March 30, 2023

 

Wednesday delivered one of the most exciting moments of my life as a recovering lawyer.

 

I spotted the Rule Against Perpetuities in the wild, hidden away in a subplot to a major political development.

 

It’s like stumbling across a story in the daily news that touches on something you learned while studying trigonometry or derivatives in high school. At the time, the misery of mastering the subject matter was compounded by the certainty that you’d never, ever use it in your adult life.

 

But then, one day, there it is on Page 1 of your newspaper, the intellectual equivalent of a Bigfoot sighting.

 

The Rule Against Perpetuities is something every attorney-in-training encounters when first studying property law. It’s a common-law rule developed by judges to prevent the current owner of a property from attaching conditions to its use that would bind future owners for all eternity. I quote, in part, from Florida’s version: “A nonvested property interest in real or personal property is invalid unless … when the interest is created, it is certain to vest or terminate no later than 21 years after the death of an individual then alive.”

 

If you need further clarity on that, go ask Sarah Isgur, the real lawyer on the Dispatch staff. It’s enough for our purposes to note that the Rule Against Perpetuities is a live issue in a dispute that might affect the 2024 Republican nomination for president.

 

Namely, Disney seems to have pulled a fast one on Ron DeSantis.

 

Disney antagonized DeSantis last year by criticizing his so-called “don’t say gay” law, a showpiece of the governor’s culture war against the left. He retaliated by moving to strip the company of its authority over the Reedy Creek Improvement District, the local government body that oversees land use at Disney World. Disney had controlled the district for decades, allowing it to set its own rules for the property. A bill signed last month by DeSantis put an end to that, granting him rather than Disney the power to appoint members of the board that governs the district.

 

To classical liberals like me and David French, that was an obnoxious and probably unconstitutional abuse of state power to punish an ideological enemy for expressing its opinion. But to the modern right it was a trailblazing victory over “woke corporations,” a feather in DeSantis’ cap as he prepares to run for president. Republicans want a fighter, as they’re forever reminding us. Well, there was the governor, slugging away at his state’s most powerful business for culture-war glory. He fights. 

 

But does he win?

 

It seems that, shortly before DeSantis’ appointees took over, the outgoing Disney-controlled board of the Reedy Creek Improvement District signed an agreement transferring most of its powers to … Disney.

 

Under the agreement – quietly approved on February 8 as Florida lawmakers met in special session to hand DeSantis control of the Reedy Creek Improvement District – Disney would maintain control over much of its vast footprint in Central Florida for 30 years and, in some cases, the board can’t take significant action without first getting approval from the company.

 

“This essentially makes Disney the government,” [new] board member Ron Peri said during Wednesday’s meeting, according to video posted by an Orlando television station. “This board loses, for practical purposes, the majority of its ability to do anything beyond maintaining the roads and maintaining basic infrastructure.”

 

…

 

According to a statement Wednesday night from the district’s acting counsel and its newly obtained legal counsel, the agreement gave Disney development rights throughout the district and “not just on Disney’s property,” requires the district to borrow and spend on projects that benefit the company, and gives Disney veto authority over any public project in the district.

 

For good measure, the agreement bars the new board from using the name “Disney” or any of the company’s intellectual property without permission. And it lasts forever—or, if the courts should find that term unacceptable, “until 21 years after the death of the last survivor of the descendants of King Charles III, King of England, living as of the date of this declaration.”

 

There it is. The Rule Against Perpetuities! Bigfoot in the wild. What an hour the next episode of Advisory Opinions will be.

 

The governor’s new anti-woke district board has, in short, been reduced to a toothless figurehead unless and until a judge declares that the contract between Disney and the old board is invalid. To the modern Republican base there are only two types of people, suckers and fighters. If fightin’ Ron DeSantis just got rolled, which does that make him?

 

And what does that do to his standing in the primary once Donald Trump goes to work on him over it?

 

***

 

I admit, with strong misgivings, that I’m enjoying this story.

 

If you believe, as I do, that DeSantis is the right’s only hope of defeating Trump then any setback he suffers gets us that much closer to a presidency the country won’t easily endure. There’s nothing enjoyable in that.

 

I even sympathize to a point with our friends, the anti-anti-Trumpers, some of whom have now concluded that criticizing DeSantis is evidence of secret pro-Trump sympathies. Having spent four years biting their tongues about Trump lest Democrats benefit, they’re now biting their tongues about DeSantis lest Trump benefit and insisting that others do the same. No matter which (if either) candidate ends up as president, rest assured that they’ll be biting their tongues about him too come 2025.

 

I have no desire to replace one Republican loyalty cult with another, but it would be good for the country to have smooth sailing for DeSantis politically over the next year. The strategic part of my mind says that Disney rolling the governor is bad news for America.

 

The less strategic part of my mind finds his embarrassment hilarious and richly deserved. DeSantis acted on a thuggish impulse when he penalized Disney for criticizing his pet legislation. And his aspirations for the cronies he appointed to the district’s new board go beyond simple land-use management, as he recently admitted. Here’s what one board member said yesterday upon learning of the sweetheart deal the outgoing board gave to Disney:

There are obvious arguments against letting a private company co-opt an arm of the state to make its own land-use rules, but I’m not sure it’s an improvement to let someone who’s running a culture-war vendetta against that company make those rules instead. Who’s more likely to manage the land efficiently and without ulterior motives, Disney or Bridget Ziegler?

 

DeSantis deserved to get pantsed here.

 

But did he get pantsed?

 

I’m less sure than some of his detractors seem to be that the old board’s agreement with Disney will hold up. The most obvious line of attack, one Sarah and I each mentioned in the trusty Dispatch Slack channel this morning, is that this looks at first blush like a contract that’s against public policy.

 

“Against public policy” is a term courts sometimes resort to when presented with a contract that … just doesn’t sit right, even if there’s no statute that directly prohibits it. There may or may not be a law on the books in your home state that expressly bars you from selling your infant to someone for $100,000, but if you sign that deal and it comes before a judge, rest assured that it’s going down the toilet on grounds that it’s against public policy. Sorry, libertarians.

 

A market in buying and selling children would be bad for society, for (hopefully) obvious reasons. So that contract is unenforceable, statute or no statute.

 

The case that Disney’s deal with the old board is against public policy is also obvious. A government body shouldn’t be able to assign its regulatory power to a private entity, particularly a private entity from which it isn’t operating at arm’s length. If we let Disney’s puppets on the old Reedy Creek Improvement District board sign away state authority, there’s no limit conceptually to letting more powerful government bodies do the same thing.

 

Damn it, if we’re going to let private actors purchase control of public agencies, we should do it the old-fashioned way—through lobbying and campaign contributions.

 

Beyond that, in normal contractual purchases meaningful consideration is exchanged between the parties. It’s unclear what the old Reedy Creek Improvement District board received from Disney in exchange for its extraordinarily generous grant of rulemaking power. A contract without consideration isn’t a contract, it’s a gift. And gifts aren’t enforceable under contract law, which requires both parties to an agreement to have obligations under it.

 

The lawyers for the new DeSantis-appointed board are thinking about all of this, per a statement they issued Wednesday: “The lack of consideration, the delegation of legislative authority to a private corporation, restriction of the Board’s ability to make legislative decisions, and giving away public rights without compensation for a private purpose, among other issues, warrant the new Board’s actions and direction to evaluate these overreaching documents and determine how best the new Board can protect the public’s interest in compliance with Florida Law.”

 

DeSantis might not lose this one after all.

 

Of course, to believe that you also need to believe that Disney’s very capable, very well-paid army of attorneys somehow missed the elementary legal objections to having the old board hand over power to the company shortly before it was about to be yanked away by the governor. Maybe they didn’t miss it and designed this gambit simply as a play for leverage: Even if Disney expects to lose in court, it might believe that the state will be so reluctant to spend years litigating the matter that it will agree to a settlement in which, say, the board gets its authority back but Disney gets to appoint half the members while DeSantis appoints the other half.

 

Or perhaps this is just a first attempt by the company to wrest back control of the district, with a First Amendment suit to follow if the courts decide that the old board couldn’t lawfully cede its regulatory power to Disney.

 

Whatever happens, this won’t be resolved soon. Which means political trouble for DeSantis in the coming primary.

 

***

 

To my surprise, as I write this on early Thursday afternoon, Trump has yet to post on Truth Social about his rival’s apparent pants-ing.

 

But the Trump team is watching. Yesterday, after news broke that Disney had rolled (well, possibly rolled) DeSantis, the spokesman for Trump’s super PAC pounced. “President Trump wrote ‘Art of the Deal’ and brokered Middle East peace,” said Taylor Budowich. “Ron DeSantis just got out-negotiated by Mickey Mouse.”

 

Not a bad zinger, much as it pains me to say so.

 

At first blush the Disney brouhaha looks like a boutique issue that won’t matter in the coming campaign, small potatoes relative to grand disputes like the war in Ukraine. But it’s essential to DeSantis’ populist mystique. The MAGA view of establishment Republicans is that they’re either too cowardly or too beholden economically to corporate America to ever confront it about its progressive cultural priorities. Going after Disney was DeSantis’ boldest statement to date that he’s not part of that establishment. He was willing to sacrifice a good relationship with one of the largest employers in his state to advance the right’s cultural agenda.

 

So keen is he for Republican voters to admire his war on Disney that he dedicated an entire chapter of his new book to the subject, taking care to celebrate his own alleged cleverness. “DeSantis describes a stealth operation (including private conversations with legislative leaders) to draw up the initial bill in 2022 that targeted the special district,” Politico reports. “‘We need the element of surprise—nobody can see this coming,’ he recalls telling then-House Speaker Chris Sprowls.”

 

His victory over the Mouse is one of his great strengths in competing with Trump for populist votes. But Trump has been shrewd so far in attacking those strengths by purporting to expose them as lies.

 

Do you believe Ron DeSantis is an economic populist? Trump is eager to remind you that pre-MAGA DeSantis supported entitlement reform ardently. Do you believe Ron DeSantis is a Trumpist? He’s a Paul Ryan admirer, Trump is quick to point out, and is admired in turn by Jeb Bush. Do you believe Ron DeSantis is a fighter? A fighter wouldn’t have let himself get “out-negotiated by Mickey Mouse.”

 

Most of all, do you believe Ron DeSantis is competent? Wrong again. A competent governor wouldn’t have let himself be blindsided by Disney, which is apparently—and amazingly—what happened to DeSantis. 

 

“All agreements signed between Disney and the District were … discussed and approved in open, noticed public forums in compliance with Florida’s Government in the Sunshine law,” Disney said in a statement yesterday. Somehow the crack DeSantis operation missed it, only finding out nearly two months later.

 

So much for “the element of surprise.” Yesterday DeSantis flack Christina Pushaw assured the faithful on Twitter to worry not, that their guy is always thinking 10 steps ahead, but in this case he seems to have overlooked what was right in front of him.

 

Nor is this the first time one of DeSantis’ key culture-war initiatives has hit a legal landmine. His “Stop WOKE Act” is currently barred from taking effect in colleges by a federal district court and his social-media law was deemed unconstitutional last year by the 11th Circuit.

 

He fights. But does he win?

 

Or are all of these legislative panders to Trump’s base little more than populist fireworks, dazzling the base when they’re first fired off but designed to fade and be quickly forgotten once the courts or superior legal teams get hold of them?

 

Trump’s campaign won’t forget them. On the contrary: With donors reportedly worried that DeSantis is out of his depth as a presidential candidate, Trump and the rest of the prospective 2024 field have every reason to highlight the legal futility of the governor’s showcase populist initiatives. In fact, imagine Trump beating the rap in Manhattan (in case you haven’t seen, the indictment was handed down just as we were putting the finishing touches on this newsletter) while DeSantis goes belly up in court against Mickey Mouse. What will the Republican base conclude about the relative effectiveness of its two prospective champions at lib-owning?

 

All of which makes it silly for Disney to believe that DeSantis might negotiate over the fate of its district and settle rather than litigate this matter, assuming Disney believes that at all. DeSantis can’t compromise. He’s staked his political credibility on winning a showdown with a “woke corporation” that dared to cross him and that he’s positioned as his political nemesis. He has to fight, and he has to win. Losing would get us that much closer to the 2024 nightmare scenario.