[EL] Must Read Toobin article

[Adam Bonin]

Respectfully, Jim, I don't think that's a fair reading of the ad, which
strongly suggests that Feingold supports judicial filibusters. "Tell them to
oppose" implies that they're not opposing a filibuster right now.  Here's
the transcript:

 

PASTOR: And who gives this woman to be married to this man? 



BRIDE'S FATHER: Well, as father of the bride, I certainly could. But
instead, I'd like to share a few tips on how to properly install drywall.
Now you put the drywall up... 



VOICE-OVER: Sometimes it's just not fair to delay an important decision.
But in Washington it's happening. A group of Senators is using the
filibuster delay tactic to block federal judicial nominees from a simple
"yes" or "no" vote. So qualified candidates don't get a chance to serve
It's politics at work, causing gridlock and backing up some of our courts to
a state of emergency.  Contact Senators Feingold and Kohl and tell them to
oppose the filibuster.  Visit: BeFair.org.  Paid for by Wisconsin Right to
Life (befair.org), which is responsible for the content of this advertising
and not authorized by any candidate or candidate's committee.

 

 

Adam C. Bonin
The Law Office of Adam C. Bonin
1900 Market Street, 4th Floor
Philadelphia, PA 19103
(215) 864-8002 (w)
(215) 701-2321 (f)
(267) 242-5014 (c)

adam at boninlaw.com

http://www.boninlaw.com <http://www.boninlaw.com/> 

 

 

 

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of
JBoppjr at aol.com
Sent: Monday, May 14, 2012 8:53 AM
To: rhasen at law.uci.edu; law-election at uci.edu
Subject: [EL] Must Read Toobin article

 

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

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20120514/837a6718/attachment.html>