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ney wants to make sure you know who your boss thinks you should vote for. here's part of what romney told a june conference call with self-described small business owners sponsored by the national federation of business. "i hope you make it very clear to your employees what you believe is in the best interest of your enterprise and therefore their job and their future in the upcoming elections. and whether. >>gree with me or president obama or whatever you political view i hope, i hope you pass those along to your employees. nothing illegal about you talking to your employees about what you believe is best for the business." >> eliot: in our political world shaped by the supreme court's 2010 citizens united

decision limits on employers' political speech and plos littizing to employees have been significantly reduced. among the not so call small business owners taking advantage of the change, two of our conservative plutocrats, the koch brothers. with a pack mailed to employees urged them to vote for among others, big surprise, mitt romney. for more, i'm joined by mike elk, staff writer for "in these times" who broke the news on romney's conference call advice and by political reporter mike williams. mike is there a question in your mind about legality or propriety as it relates to this employer process liltizeing to employees? >> no. even the pro union labor laws say under citizens united, previous restrictions forbidding employers from talking to their employees about politics have been lifted. no longer is that recognized as a form of coercion as it was in the past. so it is perfectly legal in both

union and corporate lawyers agree on this. >> eliot: does it trouble you nonetheless, is there something about it that you don't like because you think it is coercion was the operative word you used there. is there something coercive by diverting nature about this kind of communication do you think? >> well, it is sort of like a guy who is a member of the mob coming to you and saying eliot i like that car you got a lot. i wouldn't want anything to happen for it. by the way i'm running for city council. that's what what's going on here. it has a chilling effect on workplace political discussion. imagine if you want to go out and campaign for obama or put an obama yard sign in your front yard and you know your boss is against obama. you're going to be careful about doing that, especially in this economy where folks can lose their jobs so easily and it is important to state that unless you're a member of a union it is legal to fire someone for their political beliefs. >> eliot: mike, i'm not so sure i agree with you. we'll take that up in a second. i understand your view.

joe, you're out there in the political fray day to day. are you seeing many employers actually picking up and running with the suggestion of mitt romney to distribute their political views and if so, how are they doing it? >> what's happening is exactly what mike said. you get a lot of employers saying we can't tell you how to vote. we don't want to tell you how to vote. we insist you exercise your vote but... in a down economy, if we have more of obama's economic policies, you might see that job disappear and a lot of economic uncertainty behind that leads people to double think triple think and reconsider where they might want to go initially. by the way, if it is being said by the leader of the republican party, de facto, mitt romney, it will be echoed in small businesses across the nation,ply of especially those that he constantly cites who don't like obama care. who feel there's too much government regulation. that's practically all of them who lean republican. >> eliot: guys, i agree with you. i think from the romney republican perspective this is an effective way to communicate

because there is some sort of subrows of concern that many workers have. gee, what's bad for the business is something i better not support. having said that from the first amendment perspective i'm rigid on the first amendment issues, i'm hesitant to limit the speech that people participate in, even if it is an employer or a union from either side of the aisle. that's why i guess i'm more sympathetic to the notion if an employer wants to make his views known, wonderful. that's first amendment activity. mike, how should they do it? where would it be proper if an employer greets his employees at the front door in the morning and says today's election day. i hope you vote and by the way just so you know, i'm voting for joe smith. is that okay? >> eliot you know, obviously you know, extortion is speech. somebody says hey if you don't do this to me -- if you don't do this, i'm going to do this to you, threaten them with some sort of financial harm, you know we recognize laws on the book that that is extortion. we put people in the mob and other places. would you argue that mafia

speech related to extortion should be legalized? >> eliot: well, look, not to dig back too far into my past back when i prosecuted the mob i don't remember they made a first amendment defense. the reason is when you attach a threat to the speech, it acquires a whole different nature. i think that's why -- i zeroed in on the word "coercion" that you raised quite properly so in the beginning. if it is done in a coercive way we feel powerful about it. if it is done in an are intive way, it is like an editorial. how you define the line is an issue. did we agree on the conceptual framework? >> i think you know, if this goes the route of where anti-union campaigns go, this is really the framework for this kind of workplace politicking is in anti-union campaigns, you have five meetings. you have an overwhelming majority of voters say they're in favor of the union and right before the election, because they've gone through the meetings with their bosses they turn against them.

>> eliot: captive meeting is different thing. >> that's legalized under citizens united. an employer could hold all day meetings telling voters they need to talk for romney and get workers up in front of their coworkers and ask them question, what their political beliefs are. that's perfectly legal under citizens united. >> eliot: joe, is it more of a subtle and neutral transmission process in terms of letters and other forms of information? >> a lot of times, it is letters, pamphlets e-mails and certain things that you as an employee, have to recognize. you're not going to ignore a letter or an e-mail from your boss. if you're talking about neutral speech or neutral informative speech, you might have an emplo irsaying mitt romney's five-point plan, looks like a good one to me. as opposed to if mitt romney doesn't get elected we're not sure the jobs will be here next year. that is sort of where the rubber meets the road as far as coercion and perhaps using the power of an employer to try to

convince an employee to go the right direction. >> eliot: mike, let me take this in a slightly different direction. you reported about the fact that the koch brothers are invading the space of their workers' social media use and finding out which of their workers, who of their workers is speaking in favor of an alternate political view and corresponding with them based upon that. that's a little creepy for lack of a better legal word. 1984 -- hey guys, now you're stepping over the line. how much of that are you seeing? and where? >> the story we saw at georgia-pacific, a lot of companies have taken facebook and twitter and started implementing these broad social media policies which the nlrb which governs labor relations has ruled against many of them. at georgia-pacific, if you say something that harms the reputation of the company including the reputation of its owners, the kochs that could be an offense. it is a gray area because if it is something related to union matters like i hate the koch's

anti-union policies that is protected but if you say i hate the kochs for their fracking, that's not protected. we had a worker we quoted last year travis mckinney in a story for the nation speaking up against the kochs. he went for a promotion. he was told by his supervisors he was too political. he talked about politics too much. they wrote it down in his evaluation which we obtained and published in the story. so i think this could start becoming a real trend when folks get fired for things they say outside of the workplace on their social media and i think -- you know, one plan i covered in washington, they went from 1200 workers to 450 because of layoffs. most folks even if the policies aren't tailor fit to take down political speech, they're not going to take the risk in this kind of economy of getting fired and having to go to court and do all of those things. >> eliot: joe is this the secret weapon of the romney campaign? are they using their foundation of small business and big business kochs aren't small obviously to radiate out and communicate below the radar screen?

>> many people saying it is a piece of not thorne but you also have the voter identification laws in several states that this is all of a piece not to eliminate the vote or not to try to convince people to go in another direction but to actively suppress people from voting or get them to change their vote based on their interest. so it is not so secret weapon but it is one that's a part of a broader arse that will that they've been using for many months now to get people to double think and think twice about whether or not they're going to cast their vote for president obama if they choose to. >> eliot: fascinating issue of speech and coercion and what is and is not proper for an employer. fascinating issues. mike elk staff writer for "in these times," thank you for shining light on this. joe williams, thank you for being here on the set in new york. >> in the flesh. >> eliot: a voice of sanity on the right and would you jack you're a little boring. boring. boring. [ jack ] after lauren broke up with

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>> still to come strike two against fema. third, kimmel is at it again. stewart and colbert react to the debate. when it doesn't fit anywhere else, we put it in the viewfinder. >> today we did a similar experiment but we made it even more ridiculous. today we asked people what they thought about last night's first lady debate between michelle obama and ann romney. >> who do you think won the debate between ann romney and michelle obama last night? >> i had have to say michelle obama. she did a lot better. her speech was more drafted in. you know, more finely well cut. >> the last person is going to get tough on china is that guy romney. for god's sakes romney was assembled in beijing. >> they talked about a lot of things but everybody knew that mitt had one ace in the hole. libya gate. romney and his running mate have

been hammering the president over this cover-up for weeks. >> that's not what we do. that's not what i do as president. that's not what i do as commander in chief. [ laughter ] >> who do you think won the debate last night between ann romney and michelle obama? >> definitely ann romney. i think she's very classy and a wonderful lady. >> was there anything she said during the debate in particular? >> no. i just like how she looks. >> i hate to say this on fox i hope i will be allowed to leave here alive but i don't think there's any way we can gut spending and not -- to make a meaningful difference, we're going to have to raise taxes on very, very rich people. >> as i've been counseling people don't let these obama administration officials who basically treat women like meat, come on, vote with your lady smarts not your lady parts. >> wow. >> have you read "50 shades of gray"? >> no.

>> what do you think won the debate between ann romney and michelle obama? >> i would probably have to say michelle obama. >> how come? >> because she gets people in like -- hits people like at the core. she has this like -- it makes people feel like some -- have sympathy for her. >> eliot: that's why we love democracy. voters are so attentive to what's going on in the world. defensive marriage act slapped

(vo) during the debates, it's hard to know what candidates are thinking. unless, of course you've stood at the podium yourself. with governors granholm, spitzer, and vice president gore, watch the only truly experienced >> eliot: on friday, september 20 1996, president bill clinton

signed the defensive marriage act which defined marriage for federal purposes as a union between one man and one woman but today the second u.s. court of appeals declared doma unconstitutional. the second appellate and sixth court in a row to do so. george h.w. bush -- they declared doma institutional in the majority decision of windsor v. united states writing... >> eliot: to break down the implications of this rule, i'm joined by richard socarides former president of equality matters who served as an adviser it of lgbt issues to president clinton. you haven't stopped smiling since the decision came down. hugely important day. explain what this means and why it is so important. >> it was a important decision for a couple of reasons. first, because it is a very important federal appellate court.

the second circuit is a very prestigious court. the chief judge is known as a conservative judge appointed by republican president. so you know, all of that makes for a very important decision anyway. but most importantly, this is the first appellate court say when we look at classifications based on sexual orientation, in other words, when a law treats americans based upon their sexual orientation that the government is going to have to come forward with a very strong reason to justify these laws. and no longer should the courts consider things like tradition or because we've already done it that way. and that if the government doesn't come forward with some strong justification, the laws will be held unconstitutional. >> eliot: let me try to compress ecan qual protection analysis to ten seconds. if the analysis need only satisfy a rational basis for the law, most laws are upheld. if they have to specify strict

scrutiny, the law will be found unconstitutional. this one they said is the intermediate characterization of heightened scrutiny and very few laws, survived heightened scrutiny and a serve conservative judge said sexual orientation needs to be tested against heightened scrutiny which means big win. >> it is a great constitutional thought but that's a little -- >> eliot: that's what i learned in one year of law school. >> with due process thrown in there. after today's decision and especially this case is now headed for the supreme court. the supreme court actually is probably going to hear this case and decide before next summer and if this ruling and its rational are upheld, what that means is any kind of classification based upon sexual orientation in any law anywhere in this country probably will not withstand a direct constitutional challenge because you won't be able to justify it any longer. >> eliot: the facts of this case, i think are emblematic of the sorts of facts that will appear in the courts. describe the sympathetic facts for the plfs but typical of what

will appear in front of judges. >> you couldn't imagine a better set of facts for someone advocating on behalf of gay rights. the plaintiff is a woman named edie windsor who is 83 years old. she was married to a woman who died and she was assessed $350,000 in estate taxes because she could not afford herself -- the estate tax federal marital deduction she would have if she was married to a man. so, in other words -- >> eliot: let me interrupt to make it simple. if a man and a woman under traditional law are married and one spouse dice then the money -- the estate goes to the other one and there's no estate tax because they're married. >> correct. >> eliot: here, the federal government said we don't recognize the marriage. it is left and you have to pay the estate tax even though they had been married. >> correct. even to make it simpler here's a situation where a citizen of this country just because she was lesbian was required to pay

$350,000 in extra tax which she would not have owed had she been heterosexual. >> eliot: the facts were compelling even to judge jay -- jacobs who said they can't scrutinize this. >> there should be no justification for it. >> eliot: even under a rational basis it wouldn't survive but having the new higher standard is the end of these laws. >> yes. today, because we're talking about these issues and because they had been in the news, it doesn't seem like such a big deal. ten years ago five years ago to get this kind of ruling from a federal appellate court especially a conservative judge a conservative panel in this prestigious a court right below the u.s. supreme court would have been unheard of. this is the direction the law is headed and hopefully next summer, we'll have this case affirmed by the u.s. supreme court. >> eliot: if the supreme court affirms -- and this gives an easy way for justice kennedy who has been sympathetic to issues of privacy as it relates to same

sex issues, it gives him an easy way to say they don't survive constitutionally. >> he would have to be our fifth vote. we need five votes right? at least five votes. maybe we'll get six. maybe we'll get judge roberts. we're not counting on it. this would be the rational that is directly headed for -- >> eliot: i've said over and over, five is the most powerful number in the country. five justices, you can do anything, get away with anything. very, very, very quickly is it still a separate issue having an affirmative right under the constitution to same-sex marriage, that issue may reach the supreme court next year. >> in proposition eight case chapped by ted and david, the issue is more broadly is there a federal constitutional right to same-sex marriage everywhere that is not the issue presented here. this is an easier issue and the supreme court may or may not reach that be also. >> eliot: only whether federal

law can impose extra burdens on people rightfully married under certain state laws. >> they have decided to allow gay couples to marry. can they impose -- no longer in new york. >> eliot: distinctions maybe only lawyers can fully grasp or care about. hugely important case. huge win. as you say this evolution of our rights is moving at warp speed. richard corn rides former -- richard socarides former president [ voice of dennis ] allstate. with accident forgiveness, they guarantee your rates won't go up just because of an accident. smart kid. [ voice of dennis ] indeed. are you in good hands?

the more you look at mitt romney's tax plan, the more it falls apart. that's ahead. and then from hero to zero, the saga of lance armstrong dave (vo) john fugelsang sees what happens. >> you know, blaming this economy on barack obama is kinda like blaming your hangover on the guy making breakfast. i like mitt romney but i'm more than a crack house mattress. this campaign has become so toxic, beverly hills

housewives are now injecting it into their foreheads. (vo) so current gave him a weekly show. >> i love romney's debate style, but i tell you, if i could be that stiff for 90 minutes, i'd ... (vo) we probably won't regret it. >> eliot: in today's "wall street journal," karl rove asserts that mitt romney fundamentally altered the arc of the presidential race in the denver debate because he came across as a man with a plan. and it is surely the case that despite the president's apparent win on points in tuesday's debate, the races is a near dead heat. mitt romney must have earned a second hard look from a lot of folks who had been somewhat dismissive until now. the problem is that what rove calls a plan doesn't yet measure up. so my continuing request of romney paul ryan and their campaign, that they give us

answers to some of the hard questions about this so-called plan. because as the president asserted in the debate on tuesday, what we have been given so far surely wouldn't have been enough for romney to justify a bain investment and it surely shouldn't be enough to earn a vote. let's get specific. rove acknowledges that the cornerstone to romney's appeal is the public's belief it will be better able to handle the economy and the centerpiece of that claim is his revenue neutral middle class-protecting tax policy. a 20% marginal rate cut for all -- yes the policy with the $5 trillion price tag over ten years. that $5 trillion figure is a simple extension of the current tax code and revenue figures and is really not in dispute. so to avoid adding to the deficit, how does romney fill that gap? so far he's only suggested putting a limit on tax deductions and credits. in the debate, he suggested a $25,000 cap. with a tax policy center, an

independent research group calculated that would only save about $1.3 trillion. even romney -- leaving romney a gargantuan $3.7 trillion short. in fact, even if he somehow eliminated every itemized deduction while cutting rates by 20% and eliminating the amt that would only bring him $2 trillion. that's not even half of what he needs. since romney's vigorously maintains he will not add to the deficit with his tax plan and the only loophole closings that would raise sufficient revenue relating to mortgage payments, charitable contributions state and local taxes healthcare paid premiums by employers are according to romney, off the table for middle class taxpayers. there is clearly a huge gaping hole. this plan really is no more than swiss cheese in its current form. electing a candidate with a plan is one thing. electing a candidate who is selling a mirage is something else altogether. if romney wants the serious second look he's getting to

continue, he owes the public a serious answer to this question... the media has tried occasionally with no success. ryan's answer that he didn't have enough time to explain the plan. surely that didn't inspire confidence. we need credible reasons why this plan will work and the burden of proof when running for the presidency of the united states of america should be higher than trust me, i'll tell you later. that's my view. build a ground-breaking car. good. now build a time machine. go here, find someone who can build a futuristic dash board display. bring future guy back. watch him build a tft display like nothing you've ever seen. get him to explain exactly what that is. the thin film transistor display... [ male announcer ] mmm, maybe not. just show it. customize the dash give it park assist. the fuel efficiency flower thing. send future guy home his work here is done. destroy time machine. win some awards, send in brady. that's how you do it. easy.

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[ male announcer ] did you know that mach3 can last longer than a disposable? mach3 has hd blades coated with 4 strengthening layers so it can last 2 times longer than a disposable. switch to mach3. closer shave, great value. gillette, mach3. >> eliot: it is the fall of lance armstrong. it seems like we've said this before. each time he's been accused of an investigated for doping over the years then again back in august when he said he would no longer fight the doping charges against him. this time, it appears he may have lost the battle for good. the u.s. anti-doping agency released its report last week, containing the most damaging evidence of armstrong's doping yet.

and that has triggered a sequence of bad events for armstrong. he announced yesterday he would be stepping down as chairman of livestrong, his cancer foundation that since its inception in 1997 has raised $470 million for the fight against cancer. nike armstrong's most prominent long-time sponsor announced they were ending their relationship with him releasing a statement yesterday saying... armstrong has also been dropped by sponsors radio shack abn and trek and oakley sunglasses says it is reviewing its relationship with lance. how bad could things potentially get for armstrong? let's hope not as bad as actor josh malina when he joked lance armstrong to have his name removed from his name. joining me now is dave zirin sport editor for the nation and host of edge of sports radio.

dave, you have a strong opinion on everything. certainly on this as well. what do you make of this? is lance armstrong done commercially? done with the public? >> absolutely. lance armstrong is done commercially. you know how we know that? nike set him loose. nike stood by ben roethlisberger through his scandals, tiger wood. it dropped michael vick in 2006 but brought him back in 2008 when he was commercially viable. these are the paragons of virtue from beaverton oregon, otherwise known as nike. they let him go for two reasons. the first is what i said because he's no longer commercially viable. they get that. they do their own polling their own screening and market research. the second reason is news that dropped yesterday which got very little publicity but would have blown up to be a big story this week when it was revealed finally that in 2006, greg lamond, the great cyclist the first american who win the tour de france, his wife, kathy testified in 2006 that nike paid

$500,000 in a bribe to the president of the international cycling union to suppress a positive steroid test. now, nike denied that yesterday. and then today said lance armstrong, we want nothing to do with you. and once nike cut the cord with lance armstrong that not only dominated the news, but it caused this cascade of other sponsors seeing where the nike weather vane was pointing and said lance, are you no more. >> eliot: it sounds to me like your scorn is equally apportioned between lance and nike. you think nike is a corporate hypocrite. lance is a fallen hero. when it comes to lance we'll come back to nike because that's a fascinating story you just told. when it comes to lance will the public be as tough on him as you have just been? he was, you know, early on as this emerged people said but he did such great stuff with battling his own cans, raising the money does that get washed away in this tsunami of evidence that appears to be out o there against him? >> elliott if you asked the

first 100 people you saw name a professional cyclist, they would say lance armstrong. you would say okay, name two. no one would be able to name a second professional cyclist. >> eliot: right. >> that's the power of lance armstrong. he is cycling more than tiger woods is golf. and that makes him somebody who will at least remain in the public eye. in the years to come because cycling is a very rabid sport. he will not be forgotten in that world. and you and i have discussed this. the reservoirs of goodwill that he has generated over the years through livestrong is something that i do not think will wash away so quickly. one reason i don't think it will is because nike and shrek, two of the companies that threw lance overboard announced they would consider their funding of livestrong. lance armstrong himself this to me says so much. he stepped down as the chairman of the board of live strong after nike cut him loose. and that says that he believes that the entity itself, the

nonprofit that is live strong will survive this. i hope it does survive this because it has done a lot of good over the years. >> eliot: let's come back to nike for a moment. you tell the story as though you have -- rightly so, deep-seated sense that they have been playing this for a period of time. do you think this catches up with them? does their image get tarnished because people say nike, you were just a commercial endeavor willing to use bad people until you yourself get caught. >> if reagan was the teflon president then nike is teflon on steroids. look at the nike campus in beaverton, oregon. over the last year, they've had to change the name of the lance armstrong fitness center to just the fitness center, the joe paterno child care center is now just the child care center. i don't know if michael vick -- but this is how nike operates as an entity. if they think they can sell you

something with a swoosh on it, they'll find a 10-year-old child in indonesia to make it and an athlete to sell it to you. have they been hypocrites over the years? absolutely. i have no patience for sportswriters who have been praising nike for this decision over the last 24 hours. if they felt like armstrong could sell something, they would keep him on. >> eliot: all right. i want you to call nike tomorrow and offer to be their corporate spokesperson and see what their response is. all right. we gotta shift away from lance and nike for a minute. i don't know why i'm doing this as a kid from the bronx. should the yankees get rid of a-rod? they're swept. a disaster for those of us who -- what do you do? what is your next step? >> as someone who does not like the yankees as someone who believes that people who root for the yankees are people like what rooted for the hunter that shot bambi's mom, i believe they should keep a-rod because i think his substandard defense awful hitting gimpy legs and the drain he is on the yankees'

payroll o will do marvelous things for brian. >> eliot: i thought you were speaking wisdom until the end. no i don't root against bambi. dave zirin thanks as always for your time. that's "viewpoint" for tonight. have a great >> tonight in the war room, a big day for the romneys. mitt proves once again he's beholding to corporate america. and flip-flops mitt's position on abortion and tagg, yes tagg, physically threatens the president. i swear, it's like we're dealing with the james gang. >> i'm michael shure. jennifer granholm will be back tomorrow. the ceos of some of this country's