[EL] Must Read Toobin article

[JBoppjr at aol.com]

_Click  here: How John Roberts Orchestrated Citizens United : The New 
Yorker_ (http://www.newyorker.com/reporting/2012/05/21/120521fa_fact_toobin)  
   
Jeffrey Toobin writes in the New Yorker on Citizens  United. It is a very 
interesting combination of legal history, case study,  and behind the scenes 
revelations. It takes real talent to make this story  appealing to the 
average reader and Toobin gets it done.

Unfortunately, there a are a few lapses that help conform the story to the  
favorite liberal narrative on CU:
 

(1) Toobin describes the WRTL ads as criticizing Feingold's record on  
filibusters, thereby suggesting that they are really intended to defeat  
Feingold. They do not. The only reference to Feingold in the ads is to ask  people 
to contact him. There is nothing about his previous support for the  
filibusters.
 

(2) Toobin says that Deputy Solicitor Stewart's affirmative answer to  
Justice Kennedy's famous question, whether the FEC thinks it has the authority  
to ban a corporate-funded book if it says vote for a candidate, is wrong. It 
is  not wrong. Stewart's answer is that the book would contain express 
advocacy and  under another provision of the FECA -- the corporate ban on 
express advocacy  communications -- the book could be banned. Toobin say Stewart 
is wrong because  the "electioneering communication" provision would not 
allow banning the book.  Of course this is right, but Stewart was no relying on 
the EC provision but the  preexisting express advocacy ban and Stewart was 
right.
 

(3) Toobin correctly points out that Stevens criticized the CU  opinion of 
Kennedy for failing to decide the case based on narrower grounds that  Olson 
was arguing -- that the EC provision did not apply and that non-profit  
groups like CU should be allowed to do this. However, there is a critical  
omission, in my view, the fact that Stevens himself rejected the validity of  
these narrow rulings. If Stevens had concurred on these narrow grounds,  his 
argument would have had much more force, but he did not. Why would a Justice  
think the Court should decide a case based on grounds that the Justice 
himself  rejects?
 

(4) Toobin recounts Obama's infamous dressing down of the Court in his  
State of the Union address, where Obama said that CU opened the door  for 
foreign corporations to spend money in US elections and Alito's inaudiable  
response "not true." Here is another place where there is a critical omission,  
since then the Court has ruled that CU does not prevent bans on foreign  
corporations spending in U.S. elections. Obama was wrong and Alito was right.  
Toobin only refers to the analysis of CU could lead to that result, but  
ignores the fact that the Court has already ruled that it does not.
 

In any event, great read by a very talented writer. Jim  Bopp
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