Thursday, July 27, 2006

Senate Live - July 27, 2006

UPDATE @ July 28

Comments based on a review of the Record have been added to the end of this post. It's worth the effort to read because the Record contained a couple of obscure but interesting items. Friday is shaping up to be a couple hours of morning business, with the weekend starting at noon or thereabout.

Thursday's post starts below the line ....


A selection of items, most from yesterday, on Senate goings on. The Senate resumed session at 9:30 this morning, with S.3711 - The Gulf of Mexico Energy Security Act being the subject of business.

That bill will pass, and the debate has been more interesting than a superficial observation indicates. Energy policy in general is wrapped up in this lease sale, as are lease revenue sharing (between the federal government and the states), conditions on state spending of shared lease revenue, royalty relief and price triggers to suspend royalty relief, and long term moratoria on development of certain US offshore areas. The short version is, of course, "follow the money."

S.3711
The Gulf of Mexico Energy Security Act

GULF OF MEXICO ENERGY SECURITY ACT OF 2006

Mr. KYL. ... Mandatory royalty relief was provided pursuant to the Deep Water Royalty Relief Act of 1995 as an incentive to companies to undertake investment in the deep waters. The incentive was intended to provide companies that undertook these investments specific volumes of royalty-free production to help recover a portion of their capital costs before starting to pay royalties. The act also gave the Secretary of the Interior the authority to limit royalty relief based on market price. These limits are called price thresholds. Price thresholds act to set a gross revenue ceiling so that companies do not benefit from both high market prices and royalty-free volumes.

These incentives were offered at a time when oil and gas prices were low and interest in deep water exploration and development was lacking. Since the passage of the 1995 act, natural gas production is up 407 percent and oil 386 percent based on figures provided by the American Petroleum Institute.

Despite the program's successes, recent news reports and the administration's own statements suggest that the Government may be unable to collect billions in royalties from leases issued under this act. Many have probably heard the reports to the effect that in 1998 and 1999 the Clinton administration issued leases that did not include price thresholds. Why is this a big deal? It is a big deal because energy prices have skyrocketed and without price thresholds to trigger payment of royalties, we will not see a dime from these leases. GAO estimates that the mistake could cost up to $10 billion in lost revenues.

---===---

Ms. MURKOWSKI. ... Last week, Senator Stevens and I sought to ensure that any revenue sharing proposed in this bill would apply also to Alaska or to any State that allows OCS development off of its shores. We were told at that time that if that provision stays in, it would be a death sentence for this bill.

I have been asked many times in the past few days have I changed my position on this legislation, have I changed my position in support of opening lease sale 181 to exploration and development. I have not. I have not changed that. I remain committed to a sound policy, which I believe this is, that allows for the opening of lease sale 181.


Senate Judiciary Committee "FISA for the 21st Century"
Hearing held on July 26

Testimony

GENERAL MICHAEL V. HAYDEN
LT. GENERAL KEITH B. ALEXANDER
MR. STEVE BRADBURY
MR. BRYAN CUNNINGHAM
MR. JAMES X. DEMPSEY
MR. JOHN SCHMIDT
MS. MARY B. DEROSA

Member Statement

THE HONORABLE PATRICK LEAHY


Republicans losing judge issue
Robert Novak - July 27, 2006

However, Miers maneuvered Livingston to a seat on the New York-based 2nd Circuit. Beyond the White House, Republicans are in disarray on judges. Sen. Lindsey Graham, one of the conservative signers of the June 16 letter, is under fierce attack from the right for opposing Bush's nomination of Pentagon General Counsel William J. Haynes to the 4th Circuit in Richmond, Va., because of his role in handling terrorist detainees. In response, Graham has contended Haynes and two other embattled nominees (whom he supports) are ''wounded'' and asked for new, better-qualified choices.


PRESIDENTIAL SIGNING STATEMENTS -- (July 24)

Mr. SPECTER. ... Additionally, the [ABA] task force has urged the Congress to enact legislation to require the President to submit a report to the Congress of any such signing statement and has urged the Congress to enact legislation. During the course of the hearing before the Judiciary Committee, in my capacity as chairman, I made the request to Bruce Fein, who had been a lawyer in the Department of Justice during the Reagan administration, to take the lead and prepare legislation on the subject. Mr. Fein and my staff have been working on legislation. It is my expectation that, before the weekend, we will submit legislation to the Senate which will give the Congress standing to seek relief in the Federal courts in situations where the President has issued such signing statements and which will authorize the Congress to undertake judicial review of those signing statements, with the view to having the President's acts declared unconstitutional. That is our view as to the appropriate status of these signing statements.

PRESIDENTIAL SIGNING STATEMENTS -- (July 25)

Mr. LEAHY. ... These signing statements are a diabolical device but this President will continue to use and abuse them, if the Republican Congress lets him. So far, this Congress has done exactly that. Whether it is torture, warrantless eavesdropping on American citizens, or the unlawful detention of military prisoners, this Republican-led Congress has been willing to turn a blind eye and rubberstamp the questionable actions of this administration, regardless of the consequences to our Constitution or civil liberties.

INTRODUCTION OF BILLS AND JOINT RESOLUTIONS

Mr. SPECTER. Mr. President, I seek recognition today to introduce [S. 3731] the Presidential Signing Statements Act of 2006. This bill achieves three important goals.

First, it prevents the President from issuing a signing statement that alters the meaning of a statute by instructing Federal and State courts not to rely on Presidential signing statements in interpreting a statute.

Second, it permits the Congress to seek what amounts to a declaratory judgment on the legality of Presidential signing statements that seek to modify--or even to nullify--a duly enacted statute.

Third, it grants Congress the power to intervene in any case in the Supreme Court where the construction or constitutionality of any act of Congress is in question and a presidential signing statement for that act was issued.

Senators Specter and Leahy are following an ABA "Blue Ribbon" report as the basis for their objection to presidential signing statements. The following, by Ed Whelan, are good reading for the counterarguments:

UPDATE @ July 28: Added links to additional comments by Ed Whelan, which include a link to this Washington Post editorial.

ABA Report on Presidential Signing Statements: A Critique (July 24)
ABA Report on Presidential Signing Statements: A Critique (Part II)
ABA Report on Presidential Signing Statements: A Critique (Part III)
Senator Specter's Bill on Presidential Signing Statements
Bruce Fein and Signing Statements
+ The Post Sides With NRO!
+ WaPo to ABA Signing-Statements Task Force: You're Nuts
+ Shut Up, They Explained (July 29)
+ Ted Kennedy Swings and Misses (July 30)
+ Re: Ted Kennedy Swings and Misses (July 30)

And this these by Matthew Franck ...
Random Thoughts on Signing Statements (July 26)
+ Ted Kennedy Swings and Misses (July 30)

And from Marty Lederman, the article ABA Task Force Report on Presidential Signing Statements. Well composed and thorough (as always), but generally advocating the position that there is something amiss about some of President Bush's signing statements.

And on August 6 ...
Larry Tribe on the ABA Signing Statements Report is critical of the ABA and Senator Specter's porposed legislative remedy.


Senate Judiciary Committee Hearing July 27
"Detecting Smuggled Nuclear Weapons"

The testimony makes for interesting reading, and is "must read" for the physics-impaired who also want to understand the limitations of detection. The testimony as a whole contains a good measure of practical insight, and is not partisan in the least.

Senate Committee on Foreign Relations Hearing July 27
To consider the nomination of John Bolton To be U.S. Representative to the United Nations


And so, we're off. The John Bolton hearing is on C-SPAN3.
[direct "mms://" streaming video link]

UPDATE @ 11:00

On the subject of judicial confirmations ...

Sean Rushton - Remember Judges?

... Long delayed nominee Jim Haynes currently described by Senate leaders as "dead" thanks to Republican Senator Lindsey Graham's (S.C.) decision to join Democrats in obstruction is a twofer: He encapsulates not only the debate over the courts, but the fundamental difference between the liberal and conservative visions of the War on Terror. ...

Ninth Circuit nominee William Myers is blocked by California Democrats Dianne Feinstein and Barbara Boxer at the behest of the environmental lobby and its financiers, the trial lawyers. Liberal environmentalists versus a private-property-rights advocate? In the year since the Kelo decision, an entire grassroots property-rights movement has sprung up around this issue. This is another winning debate that the GOP isn't having.

Circuit-court nominee Mike Wallace is a conservative, Harvard-educated lawyer with three decades operating at the highest levels of government and corporate law. But, two members of the American Bar Association's leadership have political vendettas against him dating back to the 1980s. Result? The ABA has rated Wallace "not qualified." The Wallace debate not only puts the Democrats on defense, it will allow conservatives to expose one of their favorite bete noires, the liberal, elitist ABA. Wallace is another obvious, worthwhile fight to push.

Finally, there's the record-setting obstruction of Terrence Boyle to the Fourth Circuit, nominated five years ago and on the Senate floor for more than one year. This journeyman jurist has been attacked from the usual corners, particularly organized labor, and unfairly accused of significant financial improprieties. None of these charges hold water on serious review, and are really proxies for partisan vendettas against Boyle's former boss, Jesse Helms. How to unmask Boyle's opposition? A vigorous debate.

And the response of Senator Frist? To crow about how well the Senate has been doing at confirming judges. I've seen for some time that the interest being protected is Senate collegiality, and this is presented as a balanced, substantive, bipartisan approach to issues - as if balance and bipartisanship represents, of its own right, success, and as if ducking nominations represents substantive advancement.

---===---

Senator Sessions digresses to talk about the Mount Soledad monument, and hopes that the Senate will be able to craft legislation - he notes that Senators Boxer and Feinstein are in favor of protecting the cross that is presently standing there.

---===---

Senator Frist implements a few procedural steps aimed at keeping the Senate on track to pass S.3711. First, he introduces S.Amdt.4713, and asks for the yeas and nays, then S.Amdt.4714, which is a second degree amendment to S.Amdt.4713, then a cloture motion on the underlying bill.

Senator Frist has "filled the tree" of amendments, cutting off farther ranging amendments that would encroach on a planned undertaking of a Comprehensive Energy Bill - nuclear, biomass (ethanol), consumption, etc.

The cloture vote will occur on Monday, he estimates at 5:30 PM. This signals that the business of the Senate won't diverge much from S.3711 for the balance of the week, what little is left.

Senator Reid again expresses disappointment that the GOP hasn't allowed amendments to this bill. That disappointment is not new, it was raised when S.3711 was brought to the floor, and Senator Reid requested agreement for up to 5 amendments per side. This was objected to by GOP leadership.

UPDATE @ 11:38

Senator Sessions back, again on the subject of the cross on Mount Soledad. He's mocking the reversal rate of the Ninth Circuit Court of Appeals as an aside to the issue, as it's an order of that Court to remove the cross.

Some Democrats in the Senate object to the Senate taking up H.R. 5683 - To preserve the Mt. Soledad Veterans Memorial, and Senator Sessions is trying to flush them out of the woodwork, or acquiesce to a voice vote. House passage was noted here, last week. The other item that came over from the House at the same time was H.R.2389 - The Pledge Protection Act of 2005.

UPDATE @ 13:05

Hat tip to howappealing.law.com for pointing to the Chicago Tribune editorial, Congress vs. another chimera, which chides the GOP in Congress for bringing up the marriage amendment and legislation that would prevent the courts from hearing cases that aim to strip "Under God" from the Pledge of Allegiance. I agree with the thrust of this editorial.

---===---

The Bolton hearing continues with the predictable speeches by those members of the Committee who are opposed to his nomination. The same players, the same objections, the same tired rhetoric, with a fresh overlay relating to Hezbollah/Hamas. They've earned their spot on the soap box via election, but this nominee will be voted out of Committee in the near future.

UPDATE @ 13:48

Hat tip to Mose at confirmthem.com, "Kimberly Ann Moore, nominated to be a U.S. Circuit Judge for the Federal Circuit, was voted out of committee on a unanimous voice vote."

UPDATE @ 14:55

Governor Blanco Files Suit Against Federal Government
Political State Report - July 26, 2006

An interesting twist, not related to S.3711, not directly anyway.

See also Blanco's lawsuit aims at helping to restore coast at the Louisiana state government website, and Governor Blanco's statement of July 20, when the state filed the suit.

http://www.gov.state.la.us/assets/docs/PDFs/LS200Complaint.pdf
http://www.gov.state.la.us/assets/docs/PDFs/LS200ComplaintSummary

UPDATE @ 18:25

Talk about a flip flop, Senator Reid wanted the Senate to be able to amend S.3711 - The Gulf of Mexico Energy Security Act, and now he is asserting that he will organize a filibuster and will otherwise work to block the bill if it is altered in conference. The House counterpart is H.R.4761 - Deep Ocean Energy Resources Act of 2006, which was received in the Senate on July 10, and which is radically different from S.3711.

UPDATE @ July 28
Selections from the Record

Voting Rights Act Spat

VOTING RIGHTS ACT REAUTHORIZATION - July 27

Mr. LEAHY. Mr. President, I have been advised by Chairman Specter's staff that the chairman is correcting the RECORD regarding some materials that were inserted last Thursday, July 20, 2006, during debate on reauthorization of the Voting Rights Act. I thank the chairman for correcting the RECORD. Contrary to how it appeared in the RECORD, those materials did not reflect work of the bipartisan staff of the Judiciary Committee.

I understand that the chairman filed a committee report last night on S. 2703, the Senate bill reported by the committee last Wednesday. I have yet to see a copy of that final report, nor is it yet publicly available. Indeed, no draft committee report on S. 2703 was circulated to the committee until July 24, 2006, 5 days after the Judiciary Committee unanimously voted to report it and the chairman had reported it, and four days after the Senate unanimously passed H.R. 9, the bill that President Bush signed into law this morning. That draft report did not contain findings based on the extensive record created in both the House and Senate.

In this highly unusual development, as the report filed should indicate, it does not reflect the views of a majority of the Senate Judiciary Committee. This, in spite of the fact that all members voted to report the bill favorably.

Hmmm. The Senate report came out after the Senate concluded consideration of the House's version of the Voting Rights Act, including its passage on a unanimous (98-0) roll-call vote. I take it that the Senate Report is an effort to make a parallel set of tracks to facilitate future posturing by candidates who are up for reelection. Here is a link to S.2703, the Senate counterpart to the Voting Rights Act.

I thought the timing of filing the Senate report (109-295, text not yet available) was odd, appearing in the Congressional Record on July 26, but didn't give it a second thought. Leahy's rant is an interesting splash - I thank the good Senator for stoking my interest enough to look for the report, and read it when it becomes available.

---===---

Link to speeches by Senators Sessions and McCain - Mt. Soledad

Note: H.R. 5683 - To preserve the Mt. Soledad Veterans Memorial

---===---

Senate Employee Spat

This is a strange looking resolution, allowing of photographs for such a narrow purpose, and not a self-aggrandizing purpose at that. As you will see, curiosity got the better of me.

Mr. LOTT submitted the following resolution, which was considered and agreed to: S. Res. 543

Resolved, That--

(1) paragraph 1 of rule IV of the Rules for the Regulation of the Senate Wing of the United States Capitol and Senate Office Buildings (prohibiting the taking of pictures in the Senate Chamber) shall be temporarily suspended for the purpose of permitting the taking of photographs in the area of the Daily Press Gallery;

(2) photographs permitted under paragraph (1) may only be taken at a time when the Senate is in recess;

(3) photographs permitted to be taken under paragraph (1) may only be used in relation to United States District Court Civil Action No. 04-0026; and

(4) the Sergeant at Arms of the Senate is authorized and directed to make the necessary arrangements for implementation of paragraph (1), which arrangements shall provide that there will be no disruption to the business of the Senate.

United States District Court (of the District of Columbia, before Judge Richard J. Leon) Civil Action No. 04-0026 is "Oscarson v. Office of the Senate Sergeant at Arms." It is a suit by a Senate employee (Wendy Oscarson) against her employer, the Senate. Ms. Oscarson is claiming losses based on the Senate's failure to adhere to the Americans with Disabilities Act (the ADA). She claims to suffer from left carpal tunnel syndrome and cervical disc (neck part of the spinal column) disease.

Wendy Oscarson has worked in the Senate Press Gallery since August, 1983, in capacity as Office Manager, Assistant Superintendent, and Media Relations Coordinator. Her carpal tunnel injury manifested itself in 2001. The civil complaint alleges that office accommodations to her injury/disability were not timely made (the complaint lays out a timeline spanning about one year, from fall of 2001 until early 2003), resulting in aggravation of her injuries.

In April 2004, long after her claim was filed in November 2002, the Office of Workers Compensation Programs found that the work duties and conditions were responsible for her carpal tunnel injuries. She took a medically ordered leave of absence in July 2003, at which time the cervical disc condition was diagnosed.

The complaint paints the Senate offices as rather inept at dealing with a worker claiming injury, to the extent that Ms. Oscarson's doctor dropped her as a patient, citing the burden of "numerous and lengthy forms that the Senate demanded he complete" as the reason. Now that is karma.

Regarding damages, Ms. Oscarson seeks declaratory judgement that the Senate violated the ADA, that reasonable workplace accommodations be made so she can perform the essential functions of her job, compensatory damages in the amount of $300,000 and "front pay" damages in the amount of no less than $100,000, plus attorneys' fees and costs.

Both sides moved for summary judgment on June 13, 2006.

---===---

The Amendments to S.3711 that "Filled the Tree"

Clearly a procedural move here, nothing of substance in these ...

SA 4713. Mr. FRIST proposed an amendment to the bill S. 3711 ... At the end insert the following:

The effective date shall be 2 days after the date of enactment.

SA 4714. Mr. FRIST proposed an amendment to amendment SA 4713 ... as follows:

On line 1, strike ``2 days'' and insert ``1 day''.

---===---

Another Item of Obstruction

The Democrats appear intent on maintaining obstruction of S.403 - the Child Custody Protection Act, as evidenced by these comments by Senator Frist (link) ...

It is very important we go to conference to put an end to this tragedy which occurs all too often in this country. We tried to go to conference. The Democrats on the other side specifically rejected our proposal to go to conference. We put forth a unanimous consent request which was denied, and that is a real tragedy.

I will not proffer that unanimous consent request again right now, but we will be doing so over the coming days. The Democrats have made it very clear that they are going to obstruct the regular order of business in going to conference. I am very disappointed, and I think it is absolutely wrong.

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