[EL] Must Read Toobin article

[JBoppjr at aol.com]

Adam why?  It does not say that Feingold is in  the "group of Senators."  
It does not even do that by inference, like  saying that Feingold is a Dem 
and the group of Senators are Dems.  It could  be that the Repubs are 
filibustering and Feingold has been voting against it or  is undecided.  There is no 
reference to what Feingold has been doing.  
 
And what would we say in the ad if we wanted people to call and tell  
Feingold to oppose the filibuster other than that. 
 
It could be written to say what Feingold's position is, for  instance, 
"continue to oppose" or "start opposing" or "change his position  and oppose."
 
Adam, how could that sentence be written to not,  in your view,  suggest 
what Feingold is doing?  
 
And frankly having written that sentence, I know how to write it to tell  
his position but we decided not to, even by inference, and neither do I think 
 there would have been a problem doing so.  It is perfectly appropriate in  
grass roots lobbying ads to say what position the Senator has.  It is even  
preferable.  People want to know what the Senator's position is when they  
call them.  It is kinda ignorant not to know.  Jim
 
 
In a message dated 5/14/2012 9:09:15 A.M. Eastern Daylight Time,  
adam at boninlaw.com writes:

 
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_ (mailto: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



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