[EL] Must Read Toobin article

[Benjamin Barr]

Oh, come now Jim, we know from *WRTL* that "the less* *an issue ad
resembles express advocacy, the more likely it is to be the functional
equivalent of express advocacy" and "that the ads were run close to an
election is [*remarkable*] in a challenge like this."  Here, "opposes the
filibuster," like "talk about ranching," (
http://wyliberty.org/feature/talk-about-ranching-government-by-waiver-continues-while-the-fec-reads-tea-leaves/)
must mean something else than what the speakers communicated.  We just
don't know it yet.  But the folks at 999 E Street do.  And *Buckley* would
remind us that this determination of meaning is soundly held by the
receivers of the message, subject to their varying and usually
contradictory interpretations of said speech.  Sounds like workable speech
standards to me.

Forward,

First Amendment Ben

On Mon, May 14, 2012 at 9:30 AM, Adam Bonin <adam at boninlaw.com> wrote:

> 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****
>
> ** **
>
> ** **
>
> ** **
>
> *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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