[EL] Must Read Toobin article

[Adam Bonin]

Voters likely understood in 2006 that the President was a Republican, and therefore anyone filibustering his nominees probably wasn’t.  And there would be any need to call Feingold and Kohl if they were already committed to doing the right thing – so, if they were, you’d probably say “tell them to keep supporting” in the ad.  If you wanted to tell them to change their minds, you could say that in the ad explicitly: “Call them and tell them they’re wrong.”

 

I don’t think there is a way to do the ad that leaves ambiguous which side the Senators are on, given the context of partisan politics. The best I can come up with quickly is to frame it as “Your Senators have to decide what to do the next time a nominee reaches the floor. Call them and tell them …”

 

From: JBoppjr at aol.com [mailto:JBoppjr at aol.com] 
Sent: Monday, May 14, 2012 9:25 AM
To: adam at boninlaw.com; rhasen at law.uci.edu; law-election at uci.edu
Subject: Re: [EL] Must Read Toobin article

 

    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

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/20120514/15ac1211/attachment.html>