[EL] Must Read Toobin article
Adam Bonin
adam at boninlaw.com
Mon May 14 11:09:19 PDT 2012
I think you’re misremembering. [For the record, I’m not making an argument about the propriety of the WRtL decision, but only Jim’s assertion that the ads in question provided no information as to Feingold’s position on judicial filibusters.]
http://www.supremecourt.gov/oral_arguments/argument_transcripts/06-969.pdf
JUSTICE SOUTER: My question is, why should we ignore the context? How can we tell what something means without the context?
MR. BOPP: Well, there is relevant context, such as the person named, the incumbent is a candidate. That would be a relevant context. It is broadcast within 60 days of a general election, in which he is a candidate as well as a voting member of the Senate. That would be context.
JUSTICE SOUTER: But that -- those don't go to meaning in the sense of, for example, the Faircloth Edwards example does. Why should we ignore the aspects of context which determine meaning, i.e., the understanding that a listener would have?
MR. BOPP: Because it simply -- it would prohibit all speech because no one would know in advance whether or not there would be --
JUSTICE SOUTER: You mean the people in North Carolina were unaware of the Edwards position, they were unaware of the distinction between Faircloth and Edwards?
MR. BOPP: I have no idea.
JUSTICE SOUTER: Of course they knew that.
MR. BOPP: I have no idea.
JUSTICE SOUTER: Of course they knew that. And just as presumably, you knew the position of Senator Feingold in these advertisements, and the people in the state knew because of your other -- because of your other public statements.
MR. BOPP: Because of one or two press releases?
JUSTICE SOUTER: Why should those things be ignored?
MR. BOPP: There's absolutely no evidence that anyone in Wisconsin knew his position on the filibuster.
JUSTICE SOUTER: You think they're dumb?
MR. BOPP: No.
JUSTICE SOUTER: You have a web site. You have a web site that calls their attention, and you think nobody's going to it?
MR. BOPP: But we can't run the ads, we can't --
JUSTICE SOUTER: Nobody's paying attention to what the Senator is doing?
MR. BOPP: If we can't run the ads, we can't draw people’s attention to the web site.
JUSTICE SOUTER: You think the only source of information about Senator Feingold is your advertisement?
MR. BOPP: No, but I don't --
JUSTICE SOUTER: Then if your advertisement is not the sole source of information, then why do you assume that no one in Wisconsin knows what the senator has been doing when he votes.
MR. BOPP: Look, polls show that a majority of the people don't even know who the Vice President of the United States is. So to suggest that they know a particular position --
JUSTICE SOUTER: So your position is that we ignore context because no one -- because the voters aren't smart enough to have a context?
MR. BOPP: No, that we be allowed to speak so we can give that information to the voters.
JUSTICE BREYER: But that's, that's the point, because where I get into my chain. You have an argument. I'm not denying that. I understand it. But it's sort for me deja vu all over again. We've heard it.
MR. BOPP: Yes, but you said --
JUSTICE BREYER: And what happened before --either you can distinguish this, which I don't see how frankly, or you're back into the chain, and if you want to say one more thing about the chain, I didn't draw it to the final ending there, if I take most of the ads --and that's what that Kollar-Kotelly opinion is about. That's what that 1,000-page record is about. That's what the 10,000 pages of testimony were about. That's what McCain-Feingold was about, and all those witnesses. They said in today's world these are the kinds of ads people run just to defeat people. And then they said, moreover, most of the campaign money goes on them. And then they said, moreover, if you let corporations and labor unions contribute to these, well, then they can contribute to the campaign. And the only thing I left out before was, if you're prepared to say the Constitution the Constitution requires us to let corporations and unions buy these kinds of ads, well, how could it be constitutional to have a statute that forbids them to contribute directly to the candidate, something that's been in existence only since I guess 1904? But how could that be constitutional if they can just give this money?
From: Bill Maurer [mailto:wmaurer at ij.org]
Sent: Monday, May 14, 2012 1:59 PM
To: Adam Bonin; JBoppjr at aol.com; rhasen at law.uci.edu; law-election at uci.edu
Subject: RE: [EL] Must Read Toobin article
Adam,
This was the direct opposite of Justice Souter’s supposition during oral argument. He assumed, if I remember correctly, that the voters of Wisconsin would not know anything about filibusters, the president’s party, judicial nomination issues, etc. He basically thought that because the ad mentioned Feingold’s name and was disapproving of something he was doing, it was express advocacy and subject to the ban. In other words, Souter’s view was that we could talk about issues all day long except during those times when something relevant might happen. When something relevant might happen, it might happen because of an action taken by an elected official. Asking them to do something would be express advocacy because it would suggest that they are not doing the right thing right now and, under McCain-Feingold, we could not be critical of politicians when they are running for re-election without breaking the law (assuming you were using the wrong pot of money to pay for your speech).
This points out the difficultly in the pre-Citizens United test. It was express advocacy if the voters knew something and it was express advocacy if they were imbeciles. For a speaker, the only rational choice was not to speak about issues except when it was utterly useless.
Bill
From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Adam Bonin
Sent: Monday, May 14, 2012 6:30 AM
To: JBoppjr at aol.com; rhasen at law.uci.edu; law-election at uci.edu
Subject: Re: [EL] Must Read Toobin article
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
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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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