[EL] Must Read Toobin article

Tue May 15 09:02:08 PDT 2012

My point was that the ad itself does not say what Feingold's position  is.

Adam points to what "voters likely understood," to interpret the ad.   If 
you have to point to something outside the ad like this, then it is not  
already in the ad.

The other problems with Adam's approach is (1) how do we know what the  
voters know?  Most don't even know the name of the VP or who their Senator  or 
Congressman is.  To think that voters know the details of a filibuster  is 
just far fetched.  (2) How are we to know what details outside the ad  are 
ones we are to consult to interpret the ad?  I have said that obvious  ones 
provide the context, like there is an election in Nov. but not stuff like  
Adam consults.

But I agree with Adam that using his approach means that you can never have 
 an ad that does not imply Feingold's position, if you consult outside 
factors  and make very robust assumptions about what voters "know."  My problem 
with  this is Adam's approach is just incomparable with the First Amendment. 
 The  speaker needs to know in advance what his speech means.  Jim Bopp

In a message dated 5/14/2012 9:30:10 A.M. Eastern Daylight Time,  
adam at boninlaw.com writes:

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_ (mailto: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)   
_[mailto:law-election-bounces at department-lists.uci.edu]_ 
(mailto:[mailto:law-election-bounces at department-lists.uci.edu])   On Behalf Of _JBoppjr at aol.com_ (mailto:JBoppjr at aol.com) 
Sent: Monday,  May 14, 2012 8:53 AM
To: _rhasen at law.uci.edu_ (mailto:rhasen at law.uci.edu) ; 
_law-election at uci.edu_ (mailto: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/20120515/04cb915f/attachment.html>