Thursday, November 15, 2007

Farm - Iraq - FISA

A few items kicking around the Senate this morning. H.R.2419 - "the farm bill," is the formally pending legislation, but action is stalled and will be until cloture votes (to limit debate on the substitute amendment and on the bill) are taken on Friday. The cloture motions will fail to obtain 60 votes. "The farm bill" will be put away (tomorrow morning).

This in spite of a massive UC agreement, that lists [probably] all of the amendments that have been filed to date, then almost sarcastically says "That the following be the only remaining amendments in order, other than the pending amendments, and that they be subject to second degree amendments that are relevant to the first degree amendment to which offered."


Text of H.R.4156 - Emergency Supplemental, supplemented by limitations on interrogation, a limitation on troop deployment outside of "fully mission capable," limit use of "extraordinary rendition," and a non-waivable statutory order to commence withdrawing troops from Iraq within 30 days. Definitely veto-bait.

Predictions: There will be GOP objection to proceed to this bill, so a cloture motion will be filed on the motion to proceed. That too will fail. Maybe Senator Reid will force the Senate to stay into Saturday to conduct that cloture vote.


The Senate Judiciary Committee is conducting a meeting to mark-up FISA amendment at 10:00 a.m.

On C-SPAN, Representative Rush Holt (D-NJ) indicates that the House will be taking up a version of FISA amendment that does not include amnesty for telecommunications companies. The rule for consideration of H.R.3773 is H.Res.824, placed on the House calendar yesterday. This is the same bill (known as the RESTORE Act) that was reported as being "diverted by a Republican parliamentary maneuver" in mid-October.

The House Rules Committee has added an amendment, the text of which is visible within House Report 110-449.

At this stage of the debate, I take the resistance to amnesty as a blowing off of steam. Some form of statutory telecom amnesty will be passed before the Protect America Act sunsets in February -- if not exactly by then, not to worry because the surveillance in place as of February 2008 is within the statute until the search order expires. By executing fresh search orders in January 2008, the NSA obtains statutory permission that lasts until January 2009.


Airport Screeners Missed Bomb Parts (AP)

The TSA agreed with the investigators' recommendation to introduce "more aggressive, visible and unpredictable security measures," as well as the recommendation to deploy new detection technologies.

One of the testers was able to smuggle dangerous items into the secure area, on his person, and got them past a pat-down inspection.


09:43: Senator McConnell opens, pushing for passing the Military Construction/VA appropriations conference report. Senator Reid did not have an opening statement. On to morning business, which is (unusual) structured with designated speakers and allocated time.

09:56: Senator Feingold asks for consent that at a time to be determined by majority and minority leaders, the Senate take up S.1077 - a bill to safely redeploy United States troops from Iraq. Objection by the Republicans. Senator Kit Bond says the subject is being raised to appease Code Pink and MoveOn.Org.

And then he's off to the FISA meeting, where he will offer an amendment to strike retroactive immunity for telecommunications companies (link is to a press release). No question, the amendment will not be passed in the Senate Judiciary Committee.

Senator Specter is inclined to provide a different form of statutory relief that gets the telecommunications companies out of court, but ostensibly leaves the issue of legality of the surveillance in the courts by making the federal government the defendant. [Specter floats compromise on FISA telecom immunity (The Hill)]

10:59: Senator Reid has H.R.4156 - Iraq Emergency Supplemental, read a first time and put on the Senate's legislative calendar.

14:14: Senator McConnell spoke on the possibility that the Senate would be asked to debate and handle H.R.4156 - Iraq Emergency Supplemental. He points to certain elements of it that result in a certainty of veto: Iraq pullout and the "mission readiness" requirements in particular.

Senator McConnell then asked to proceed to S.2340 - a "clean" emergency supplemental, and before objection was heard, he filed a cloture motion on the motion to proceed. So, dueling Iraq supplementals, H.R.4156 vs. S.2340. [Text of S.2340]

14:25: Senator Stabenow indicates that there may be a cloture vote tomorrow on an Iraq war measure, in addition to the cloture motions on "the farm bill." I'm not sure if this is a reference to McConnell's cloture motion on proceeding to S.2340, or something else entirely.

15:02: Senator Reid asked for UC to take up and pass S.2338 - FHA Modernization Act of 2007 (with an amendment, likely one to provide easy transition into FHA for borrowers caught in subprime lending traps), then withdrew the request, claiming that there would have been GOP objection.

15:06: Senator Coburn asserts that he does object to S.2338, unless it's brought up and debated. His objection is rooted in the bill being "hot-lined," passed without substantive review and minimal opportunity to raise objections, let alone introduce amendments. With regard to the substance of this bill, he notes that it lowers the down payment for a home to 1.5%, and provides government guaranteed loans on $400,000 homes. Senator Coburn doesn't object to the feds stepping in to the sub-prime lending fray, but that a broader range of solutions should be probed before committing to the "solution" expressed in S.2338.

15:21: C-SPAN2 announcer reports that Senator Reid may file a cloture motion on the H.R.4156 version of the Iraq supplemental, and that if he does so, he will file on Friday so as to provoke a cloture vote on Sunday. I doubt that scenario will come to pass, and it certainly isn't MANDATORY. The Senate can consent to an IMMEDIATE cloture vote, as it has done numerous times in the past.


Senator Leahy's Statement preceding FISA markup

At some point I would like to turn to Title II and the important issue of retroactive immunity. Senator Feingold has an amendment to strike the provisions, which I will support. Senator Specter has an amendment, and I intend to recognize him to offer it. The Specter amendment builds on the concept of substitution as an alternative to retroactive immunity. The hope is that it will incorporate a limit on the use of preemptive legal doctrines, like the state secret doctrine or sovereign immunity, so that substitution would provide a way to test the merits of the claims with the government standing in the shoes of the telecommunications carriers.


President Bush Objections to Leahy's FISA Modernization Substitute

The SSCI bill contains a reporting requirement that poses serious operational difficulties for the Intelligence Community. The SSCI bill contains a requirement that intelligence analysts count "the number of persons located in the United States whose communications were reviewed." This provision might well be impossible to implement.


19:14: Senator Reid filed a cloture motion on the motion to take up the H.R.4156 version of the Iraq supplemental, thereby completing the steps necessary to conduct the Friday cloture votes agreed to before the H.R.4156 cloture motion was filed.

The first cloture vote is agreed to be at 9:30 a.m., on proceeding to the GOP Iraq supplemental, S.2340. If that fails to obtain cloture, then a cloture vote on proceeding to the DEM alternative, H.R.4156. If that fails to obtain cloture, then a cloture vote on the substitute amendment for "the farm bill." If that fails to obtain cloture, piss and moan then go home for Thanksgiving.


Judicial nominations include two Circuit Court Nominees
Gene E. K. Pratter for the Third Circuit
Rod J. Rosenstein for the Fourth Circuit

My Circuit Court Nominations Summary has been updated accordingly.

President Bush chastises the Senate for confirmation inaction, but I'm afraid the criticism is too late in his term to make much difference. I obviously think his criticism is warranted, but unfortunately, I find it half-hearted. I think it's half-hearted because he's knuckled under on many good nominees without raising a peep of public protest, he's not beat the "dysfunctional Senate" drum consistently over time, and he's not completed his end of the bargain by nominating in the 180 day timeframe that he proposed in October 2002 and reiterated early in 2003.


20:48: A motion to recommit the House FISA bill was rejected, and the House is voting to pass H.R.3773.
20:54: H.R.3773 passed by the House.

White House will veto H.R.3773, retroactive immunity is necessary because otherwise, companies may not cooperate in the future.

It also is critical to our national security that such companies be protected from litigation, since companies that face lawsuits for allegedly assisting the Government may be unwilling to provide assistance if and when it is needed to prevent future terrorist attacks.

Huh? Is this an admission that even THIS law will be broken, and immunity is required from ALL laws, in order to obtain cooperation? Plus, the new law provides for court orders and contempt of court for failure to provide assistance.

November 16

The Senate will open for business at 8:30 a.m., with one hour of debate before proceeding to a series of cloture votes. If any of these passes, it changes the path of action. I think these three votes pretty much end Senate action this week. Congress as well, seeing the House is presently in recess. Happy Thanksgiving recess!

08:34: S.2363 - Military Construction/VA appropriations is placed on the calendar. Senator Reid blames the Republicans for failure to take up the Terrorism Insurance Act (TRIA), FHA Modernization, and Alternative Minimum Tax (AMT) revisions. He suggests that one or more of these may me taken up later today. A brief view of each shows a degree of contention that precludes any of them being handled today.

H.R.2761 vs S.2285 - TRIA - Insurance Information Institute
Oct 2007 CBO report on FHA Modernization
House Passes Bill to Ease Alternative Minimum Tax - WaPo


09:39 to 10:01: Cloture motion on motion to proceed to S.2340 - Iraq Emergency Supplemental with NO strings attached, was REJECTED on a 45-53 vote (predicted 59-33).
DEM Aye votes: Lieberman
GOP Nay votes: Hagel and Smith

10:04 to 10:22: Cloture motion on motion to proceed to H.R.4156 - Iraq Emergency Supplemental with strings attached, was REJECTED on a 53-45 vote (predicted 48-46).
GOP Aye votes: Collins, Hagel, Smith, Snowe
DEM Nay votes: Dodd, Lieberman

By count, those two votes are mirror images, but some of the marginal senators are different. Dodd, for example, trying to earn some "anti-war" stripes, and Lieberman in the "finish the job, whatever it takes" camp. Senators Lott and McCain are not in the chamber today.


Senator Reid announced that there will be no more roll call votes today, so if TRIA, FHA Modernization or AMT revisions are going to pass, they'll do so on agreement or a voice vote. He also indicates that the Senate will be in session for three weeks following the Thanksgiving break. That's considerably more than the five days of session called by majority leader Frist, last year.

10:23 to 10:40: Cloture motion to limit debate on S.Amdt.3500 - the substitute amendment for "the farm bill," was REJECTED on a 55-42 vote (predicted 57-35).
GOP Aye votes: Coleman, Grassley, Smith, Thune


11:06: Senator Brown asked to take up and pass the conference report on H.R.3074 - Transportation, Housing and Urban Development, and Related Agencies Appropriations for 2008, and was met with GOP objection.

11:45: Motions to reconsider the cloture votes on the competing Iraq Emergency supplemental were filed, and not tabled. This means is that the Senate can redo those cloture votes, without the attention drawn by filing second cloture motions on the motions to proceed to an Iraq funding measure.


A recess appointment? Can't be, the Senate isn't in recess. I wonder what the maneuver was.

White House fills State position - WA Times

The Bush administration has outmaneuvered the Senate to install a loyalist [John C. Rood] in the top arms control post [Undersecretary of State for Arms Control and International Security] once held by John R. Bolton over the strong objection of ... Foreign Relations Committee's chairman, Sen. Joseph R. Biden Jr., Delaware Democrat, and ranking member Sen. Richard G. Lugar, Indiana Republican, [who] made it clear that Mr. Rood would not get an up-or-down vote.

The undersecretary oversees the arms control and nonproliferation activities of the entire U.S. government and "manages global U.S. security policy," according to the State Department's Web site. The portfolio includes the Iranian and North Korean nuclear programs, the U.S.-India nuclear deal, missile defense and other top-priority issues.

Reid shut downs Bush recess appointments during Thanksgiving

Attributed to Senator Reid ...

With Thanksgiving break looming, the administration informed me that they would make several recess appointments.

I indicated I would be willing to confirm various appointments if the administration would agree to move on Democratic appointments.

They would not make that commitment.

As a result, I am keeping the Senate in pro-forma to prevent recess appointments until we get this process back on track.

Looks like a bit of hardball from both sides.


13:47: Senator Webb doing the closing business.

Rename a bunch of Post Offices, confirm non-contentious nominees, pass fresh Senate resolutions, etc.

Bills Read for the first time:
H.R.3703 - exception from the $1 coin dispensing capability requirement for vending machines that do not receive currency denominations higher than $1
H.R.3997 - to provide earnings assistance and tax relief to members of the uniformed services, volunteer firefighters, and Peace Corps volunteers

13:54: As promised by Senator Reid, a series of pro forma sessions: Recess until 9:00 a.m. Tuesday, the 20th; then additional pro forma sessions 10:00 a.m. Friday, Nov 23; 9:00 a.m. Tuesday, Nov 27; and 9:30 a.m. Thursday, Nov 29. Following the Nov 29 pro forma session, the Senate will meet again at 2:00 p.m. Monday, December 3rd.

The Senate stands in recess, as outlined just above.


H/T HowAppealing, Circuit Court nominee Getchell has been sued for defamation and negligence, according to "Bush judicial nominee sued, accused of defamation" in the The Virginian-Pilot. Added to the list of references in the Circuit Court nominations summary. I'm inclined to color this nomination "withdrawn."

November 17

Yesterday, as a rebuttal to the Senate-originated bill appropriating funds for an Iraq Emergency Supplemental, Senator Reid intimated that this procedure is contrary to the US constitution.

Let me repeat that it is a motion to proceed to a Senate appropriations bill. Everyone knows, even in elementary school, that under our Constitution revenue bills must originate in the House of Representatives. So even if the Senate were to pass his bill, the House would refuse to act on it. This would be the case regardless of which party controls the House of Representatives.

Now, he may be right that House would refuse to act on it, but that insertion of "under our Constitution revenue bills must originate in the House of Representatives" is gratuitous, and as an appropriations bill is not a revenue bill, the observation has no significance to the point he is making, that the Democrats in the House will refuse to take up the GOP bill.

Whether or not the Senate can originate an appropriations bill is an old intramural debate. See this 2000 paper (caution, PDF), which contains a summary of the history of this debate. "The first appropriations bill to have originated in the Senate may have been in 1816," and "In 1881, the Committee on the Judiciary of the House of Representatives concluded that the Senate had the constitutional power to originate appropriations bills."


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