Interdependence Month - 2008
Tuesday, July 8 will be dedicated to debating
and passing FISA
[A stack of five votes: amendments, cloture, and final passage; has been pushed into Wednesday, July 9th].
The penciled-in vote counts are quick guesses, mostly to illustrate what I see as a wide gap between
passing and blocking the bill.
For comparison - Feb 7 and 12, 2008: S.2248 Amendment and Vote Summary.
- One amendment to pass or be tabled on a majority vote
Dodd/Feingold/Leahy #5064 (2 hours) Eliminates Title III (strips retroactive immunity)
REJECTED July 9, 2008 at 12:16, on a 32-66 vote (guessed 27-67)
DEM NAY votes: Bayh, Carper, Conrad, Feinstein, Inouye, Johnson, Kohl, Landrieu, Lieberman (I know), Lincoln, McCaskill, Mikulski, Nelson (FL), Nelson (NE), Pryor, Rockefeller, Salazar, and Webb
- Dodd/Feingold/Leahy #5064 (2 hours) Eliminates Title III (strips retroactive immunity)
- Two amendments that require 60 votes to pass
Specter #5059 (2 hours) directs the District Court to dismiss the cases if it finds either that
the surveillance was within statutory bounds, or was constitutional
REJECTED July 9, 2008 at 12:34, on a 37-61 vote (guessed 41-53)
DEM NAY votes: Bayh, Carper, Feinstein, Inouye, Johnson, Landrieu, Lieberman, Lincoln, Mikulski, Nelson (FL), Nelson (NE), Pryor, Rockefeller, and Salazar
GOP AYE vote: Specter
Bingaman #5066 (1 hour) to stay District Court proceedings pending the outcome of an investigation
by the Office of the Inspector General
REJECTED July 9, 2008 at 12:54, on a 42-56 vote (guessed 41-53)
DEM NAY votes: Bayh, Carper, Conrad, Inouye, Landrieu, Lieberman, Nelson (NE), and Rockefeller
GOP AYE vote: Specter
- Specter #5059 (2 hours) directs the District Court to dismiss the cases if it finds either that the surveillance was within statutory bounds, or was constitutional
- Cloture vote on passage of H.R.6304,
as amended (cloture motion filed Thursday, June 26) (60 minutes of debate)
PASSED July 9, 2008 at 14:44, on a 72-26 vote (guessed 69-22)
DEM AYE votes: Baucus, Bayh, Biden, Carper, Casey, Conrad, Dorgan, Feinstein, Inouye, Johnson, Kohl, Landrieu, Lieberman, Lincoln, McCaskill, Mikulski, Nelson (FL), Nelson (NE), Obama, Pryor, Rockefeller, Salazar, Webb and Whitehouse
- H.R.6304, as amended (if amended)
PASSED July 9, 2008 at 15:06, on a 69-28 vote (guessed 68-22)
DEM AYE votes: Baucus, Bayh, Carper, Casey, Conrad, Feinstein, Inouye, Johnson, Kohl, Landrieu, Lieberman, Lincoln, McCaskill, Mikulski, Nelson (FL), Nelson (NE), Obama, Pryor, Rockefeller, Salazar, Webb and Whitehouse
Not voting: Senators Kennedy and McCain. Senator Sessions was absent from the vote on final passage.
14:30: GOP obstruction. Energy prices, H.R.4040 - CPSC conference report [passed 7/31], LIHEAP, Press Shield, DOD authorization and appropriations. GOP obstruction.
15:10: Senator Specter on Judge Walker's opinion in the al Haramain case (holding that the courts ruling on a FISA-based claim can pierce state secret, but only if a plaintiff first shows, without resort to state secret, that he was under government surveillance). He has the opinion entered into the record. Senator Specter focuses on the "exclusive means" aspect of the opinion, but all of that is irrelevant if a plaintiff is unable to get in the door in the first place.
Judge Walker's opinion will also be useful to immunity proponents, and I expect the opinion to be deliberately misconstrued as "letting a plaintiff leak state secrets," and as so misconstrued, being a reason to get the cases out of court.
At any rate, Senator Specter says that it is unseemly to take the case out of court, just as the final result is about to be rendered. He reiterates his objections to retroactive immunity, offers some methods of probing the government's surveillance conduct without exposing the telecoms to financial loss (substitution), and otherwise pontificates on possibilities that will evaporate in the wake of tomorrow's votes. The FISA show is over folks, time to move on.
--- 16:46 ---
Senator Reid pushes the votes on FISA out to Wednesday. The debate on amendments will be conducted on Tuesday. Debate on final passage to start at 9:30 a.m. Wednesday, with voting on amendments predicted to start around 11:15 a.m. on Wednesday. This is a reaction to Senators wanting to be at Senator Helms' funeral in North Carolina.
The 5:30 p.m. cloture vote tonight will be kept open, even though the vote won't be close, because some Senators may be delayed in return to Washington due to air traffic delays caused by storms in the midwestern United States.
18:39: The first of two motions to invoke cloture on final passage of H.R.3221 - Housing Bailout, was PASSED on a 76-10 vote [Motion to Invoke Cloture on the Motion to Concur in the Amendments of the House, Striking Title VI through XI]
Late voters: Salazar @18:29, Allard @18:38
A curious notice in passing - this is the first time I have seen a cloture motion to limit debate on the subject being filed BEFORE the subject was taken up, although Riddick's Rules of Senate procedure indicate the event is not unprecedented.
As for timing, this UC agreement was entered into [about 2 seconds] before the cloture motion was filed ...
That it be in order to file the cloture motion on the bill at any time prior to the cloture vote
Thursday, June 26: We, the undersigned Senators, in accordance with the provisions of rule XXII of the Standing Rules of the Senate, hereby move to bring to a close debate on H.R. 6304, the FISA Amendments Act of 2008. E. Benjamin Nelson, John D. Rockefeller, IV, Thomas R. Carper, Mark L. Pryor, Bill Nelson, Dianne Feinstein, Robert P. Casey, Jr., Barbara A. Mikulski, Claire McCaskill, Kent Conrad, Daniel K. Inouye, Mary L. Landrieu, Joseph I. Lieberman, Sheldon Whitehouse, Evan Bayh, Ken Salazar.
As of this morning, H.R.6034 (FISA) has not been taken up (the motion to proceed has not been adopted), but the cloture motion to limit debate on the bill if/after it has been taken was filed almost two weeks ago.
I believe today is a no-vote day. Votes on FISA will occur tomorrow, with passage of the bill to be completed by 1:00 p.m. or earlier.
10:04: Senator Reid describes debate and voting schedule on FISA, with 105 minutes of debate time to be left over for tomorrow. If voting on FISA isn't done by the time the GOP caucus time comes around, the last vote or two will be done "after lunch" tomorrow.
Portending some future action, H.R.6377 - Energy Markets Emergency Act of 2008, is read the second time, and will be placed on the calendar.
10:06: Senator Coburn and Lieberman will read the Declaration of Independence into the record. That's the start of a quaint tradition. Interesting that the Declaration of Independence is ultimately a Declaration of a human right to conduct violent revolution against the government.
11:30: The motion to proceed to H.R.6304 is adopted.
Senator Cardin already spoke on the subject (he will vote against the bill if Title II remains in), and Senator Feingold follows. Senator Specter after that. Senator Rockefeller after that.
Senator Specter rebuts Senator Rockefeller's misrepresentation of the immunity provisions, as well as Senator Rockefeller's misrepresentation that "Congress has been informed all along."
Short speech by Senator Boxer, followed by Senator Bond, and into the party caucus luncheon at 12:30.
Judge Walker's al Haramain opinion and order of July 2 has been incorporated into the debates.
14:15: Back from lunch, Senator Dodd describes time management as to the remaining debate time, with he managing debate on the Specter amendment, and Senator Rockefeller managing time on the Feingold/Dodd and Bingaman amendments.
Senator Bond is going to explain why he believe Judge Walker's al Haramain decision won't be upheld. Heck, it won't be appealed - al Haramain will lose (the case will be dismissed with prejudice), so the government has no reason to litigate further. Disclosure of state secret is well protected because no plaintiff can get over the threshold of showing government surveillance, using non-state-secret evidence.
Senator Bond's objections to Judge Walker's dicta, that FISA represents the ultimate limit of the president's Article II authority, is, I think, based on a misunderstanding. Judge Walker's opinion refers to making a determination as to whether or not FISA has been violated - which is not the same as making a determination that the president has exceeded his Article II power to conduct surveillance for foreign intelligence (not criminal investigation) purposes.
The question is mooted in practice, anyway, because no plaintiff will be able to show, with non-state-secret evidence, that he was under government surveillance.
14:45: Senator Specter is being a busy beaver today. Now he is asking questions of Senator Bond, first complaining about the small number of Senators in the know, so they can be comfortable agreeing to retroactive immunity. Senator Bond says he wishes the government had briefed more Senators, but that even when Committee work is done in public, most Senators aren't well apprised (can't be, because there is too much legislative activity) and essentially vote "in the dark," and "on trust in the Committee."
Senator Specter comes back, that it's not just deliberate unawareness, but that in this case, few Senators are permitted to inquire - and not all of the Committee members had been briefed. He's used all of his time, but goes to his second question. Does Bond know of any case involving a constitutional right, which has been pending for years and is before an appeals court, that Congress has stepped in and taken the case out of the Court?
Senator Bond says the risk isn't financial liability - the risk is the disclosure of the most secretive methods and procedures used by the government, which would result in terrorists (read "the public") could avoid communication intercepts.
15:01: Senator Bingaman up. He will speak for 15, Casey for 5, Levin for 10. Senator Levin inquires if he is free to use those 10 minutes at any time, or if they must be used "in sequence." He may speak anytime this afternoon. Senator Bingaman's #5066 is called up.
Today's WH Fact Sheet on Retroactive Immunity contains nothing new in the way of arguments.
Senator Rockefeller points to the Senate Select Committee on Intelligence Report accompanying S.2248 as containing sufficient explanation to facilitate concluding that telecoms should not be held to the terms of the FISA statute, for their compliance with orders from the government.
15:39: The quorum clock is running against the Bingaman amendment. Senator Levin is going to be upset if it eats his 10 minutes, after he was told he could talk "anytime this afternoon."
15:44: Senator Leahy - in opposition to the blanket grant of immunity as being an attempt to engineer an outcome in court. He says the public has a right to know who told the telecoms to "break the law." I think that's admitted ... President Bush, AG Ashcroft, WH Counsel Gonzalez.
16:02: Senator Specter calls up his #5059.
16:16: Senator Whitehouse against retroactive immunity.
16:29: Senator Rockefeller - noting that FISA represents a delicate balance, that the House passed it by a wide margin, and that the Senate will pass FISA with overwhelming support. Two out of three ain't bad.
Senator Rockefeller says companies can't be expected to evaluate the constitutionality of orders they are asked to follow. Well hells bells, one of the points of FISA was to give the companies a LAW that they could follow (or not), so they wouldn't have to judge "constitutionality." Now they don't even have to look at the law.
Senator Rockefeller says the al Haramain case is not against the telecoms (i.e., is not an action based on 50 USC 1810), but is rather against the government. That's really a technical call, because if al Haramain wins his case against the government (to determine whether or not FISA was respected or not), then al Haramain would "have a cause of action against any person who committed such violation."
17:19: Senator Warner advocates for telecom immunity. He's pretty much reading the provided script. He likens the telecoms to an all-volunteer military, where secret surveillance on unilateral executive order would not succeed but for the cooperation of the telecoms, and therefore the telecom actions should be applauded, rather than examined for conformity with statute.
Senator Warner switches gears and reminisces about the 55 MPH speed limit, and its impact on conservation. Just a rough estimate, the mileage peak is at about 40 MPH, if Congress is serious about minimizing consumption of energy, in exchange for an increase in consumption of time.
17:32: Senator Specter is unhappy that Senator Warner took time in morning business, and also that there is a UC agreement for 6 speakers who won't be on the subject of FISA, to which Senator Warner says, "Senator Rockefeller said it was okay." Senator Specter then says he thinks time for FISA debate should be allowed for tomorrow, to the extent the non-FISA UC agreement displaces FISA debate. Senator Carper chimes in that amendment debate MUST be used today, and cannot be carried over to tomorrow, and therefore objects to Senator Specter's suggestion.
Senator Carper supports H.R.6304, unamended.
Senator Carper gives a pledge, that he will work with Congress to make further improvements to this and other bills. Heh. Nice pledge. It's probably worth more than the FISA statute is.
Senator Cochran - his voice reminds me of Mr. Haney in Green Acres. At any rate, he's talking about the Medicare (doc fix) bill.
Senator Stabenow picks up the same (Medicare, not Mr. Haney) ball.
18:34: Senator Levin on FISA. Then Senator Chambliss, same subject. Then Senator Reid (who has a frog in his throat). I think Senator Reid writes 10 minute speeches to fit 5 minute slots. It's uncommon to hear somebody mumble so rapidly.
19:00: Senator Dodd's turn in the barrel. He's on speed too.
19:50: Senator Reid calls up Housing Bailout (H.R. 3221) and files a cloture motion to limit debate on the last step that amounts to "passage" of Senate amendments to House amendments; then he "fills the amendment tree" to preclude any GOP modification or stall of voting on the House Message (the bill).
19:54: Senator Dodd closes the Senate until 9:30 a.m. tomorrow. Senator Specter gets his "lost" 10 minutes of debate back, to be used tomorrow.
Vote results will just be input in the list at the top of this post. At some point I'll fill in the names of cross-over voters.
I've been maintaining the Comprehensive FISA Links Page - Congressional Debate and Amendments, if anybody has an urge to look for inconsistencies in position.
Mr. BOND. Mr. President, before the recess I mentioned how the press picked up on the similarities between this bill and the Senate bill [S.2248] and how they kept asking me to help find out the big changes in the bill that no one could find. Well, they stopped asking me that question because they realized there is not much that is significantly different, save some cosmetic fixes that satisfied the House Democratic leadership. ...
... we [this is the administration, DNI McConnell, speaking through Senator Bond] agreed to replace our version of what we call a carve-out from the definition of electronic surveillance [the PAA excluded the interception of international communications from the definition of "electronic surveillance"] said that interception of any communication with their definition of a carve-out which they call construction. Operationally, there is no difference between the two approaches, but we think our approach is more forthright with the American people because we put our carve-out right up front instead of burying it several chapters later in title VII of FISA as they wanted to do.
Why did they do this? I am sure this is not of great moment to anybody here, but let me say that it was clear from negotiations the other side wanted to be able to come out of the negotiations and say: We wrestled the Republicans back to the original definition of "electronic surveillance" in the 1978 FISA Act, but they failed to mention they buried their carve-out deep in this legislation, and it has the same effect.
They also failed to remind folks it was the original language of the 1978 FISA Act that, due to technology changes, got us into this mess in the first place.
Last year, when the DNI first asked us to modernize FISA, he requested we create a technology-neutral definition of "electronic surveillance." I believed then and I still believe we should redefine "electronic surveillance." FISA is complicated enough, and we should be forthright with the American people.
But some other leaders prefer for political reasons to bury construction provisions deep within the bill instead of presenting an upfront, crystal-clear carve-out. One consequence of their approach is that the same acquisition activities the Government uses to target non-U.S. persons overseas will trigger both the definition of electronic surveillance in title I of FISA and the construction provision in section 7.
Essentially, we have agreed to build an unnecessary internal inconsistency in statute as a political compromise. I reluctantly agreed to do this because the DNI and the Attorney General assured us that going for the carve-out now would not create any operational problems for the intelligence community, but we should fix this in the future during less politically charged times.
I think Senator Bond's characterization is fair, as a general matter. H.R.6304 is "smoke and mirrors," and creates an internal inconsistency (when taken in full context, including 18 USC 2511) that the PAA avoided.
The message in Senator Bond's statement is clear and unequivocal. The government considers all international communications to be "fair game" without a warrant, and without any need (as a matter of practice) for prior suspicion. As a matter of law, any and all international communications can be suspected of containing foreign intelligence information.
09:35: Senator Reid says about 2 hours of debate, with voting to start at 11:15 to 11:30. All the votes are important, none of them will be very close (Senator Reid predicts). If the vote is close, Senator Reid will hold the vote open - but he urges the Senators to be in the chamber for timely votes.
Senator Reid sets the order of voting as Dodd, then Specter, then Bingaman. This sets up the ability of a Senator to vote against Dodd, on the rationale of favoring either the Specter or Bingaman amendment. I've noted that the order of votes that most favors Dodd is to conduct that vote last of the three amendments.
On disposition of FISA, he asks UC to move to the motion to proceed to 6331 [Medicare (doc fix)], with a 4:30 cloture vote, followed by an immediate vote on final passage.
... if cloture is invoked on the motion to proceed to H.R. 6331 ... to extend expiring provisions under the Medicare Program ... all post-cloture time be yielded back, the motion to proceed be agreed to, and the Senate proceed to the consideration of the bill, that the bill be read a third time, passed, and the motion to reconsider be considered made and laid upon the table, without further intervening action or debate.
Ordered further, That if cloture is not invoked, then the motion to proceed be withdrawn and the bill returned to the calendar.
Short version: final passage of H.R.6331 will be determined this afternoon, with 60 votes being required in order to obtain final passage.
09:40: Senator McConnell argues that holding telecoms to follow the law will discourage cooperation. The only rational response to that is to eliminate the laws that facilitate holding the telecoms accountable. Where is the call for repeal of 50 USC 1809 and 1810? Oh, there is none? Heh. Smoke and mirrors.
10:11: Senators Rockefeller and Bond enter a colloquy into the record, on the definition of "electronic communication service provider." [The colloquy reinforces that the term is to be construed, by courts, very broadly, and "was intentionally drafted to encompass the full spectrum of entities being sued in a covered civil action"]
Also entered without being spoken, a statement of Senator Feinstein. [Explaining why she strongly supports this bill, in part because "This bill ends warrantless surveillance." Also recapitulating (and overstating the effect of) Judge Walker's opinion that FISA represents a Congressional attempt to define "exclusive means" of acquiring foreign intelligence from people in the US]
Also entered without being spoken, and without spoken notice of being entered, statements by:
Senator Biden [against the bill]; an incoherent section that refers to Rockefeller's bill sunsetting in 6 months and indicating disgust, but support (I think this was part of Biden's submittal to the clerk, for printing in the Record);
Senator Byrd [against the bill - "It will bring an everlasting mark of infamy on the present generation, enlightened as it is, if we should suffer [The liberties of our country, the freedom of our civil Constitution] to be wrested from us by violence without a struggle, or to be cheated out of them by the artifices of false and designing men.]
Senator Clinton [against the bill because the FISC oversight of executive surveillance of Americans is not substantive, and because Senators are casting uninformed votes on immunity.]
Senator Reed [against the bill - "In good conscience, I could not simply trust with blind faith"]
11:54: Voting starts on the amendments. Voting will be in the order of Dodd, then Specter, then Bingaman. The Dodd amendment (strip immunity) was rejected at 12:16, on a 32-66 vote. Voting started on the Specter amendment at 12:20, and concluded at 12:34. The Specter amendment was rejected on a 37-61 vote.
12:38: Senator Reid announces that the cloture vote on final passage, and the vote on final passage, will start at about 2:15 this afternoon. Voting starts on the Bingaman amendment just before 12:39, and the amendment is rejected on a 42-56 vote at 12:54. Into recess until 14:15.
I believe most of the Senators practiced "willful blindness" on this vote, and will claim "I was ignorant of the extent of snooping, and shouldn't be held accountable," if and when the public becomes outraged.
As a procedural matter, being "uniformed" or inadequately informed is the legitimate justification for casting a NO toward the limited debate that follows from invoking cloture. If a Senator isn't informed enough to cast a principled vote (either way), then that person has a DUTY to say "I'm not ready to vote yet." No off the hook for willful blindness, not when the procedural tools are available, and in this case, USED.
On the bright side, keep in mind that FISA law is worthless anyway. It isn't meant to be followed (wink wink). When it isn't followed (which happens in secret, and WILL happen against the H.R.6304 "broadened surveillance power granted by Congress" as the government perceives or imagines a domestically-located threat), Congress has shown that it is willing to adjust its statutory charade. Meanwhile, H.R.6304 can serve its purpose of fooling people into a false belief about the extent of "lawful surveillance."
The actual extent of warrantless surveillance will be whatever each executive finds to be an Article II power. If the secret warrantless surveillance is never used in court, then "the surveillance isn't happening," as a matter of law.
The Senate is now on to H.R.6331 - Medicare (doc fix), and I am on to baseball. The Senate can kiss my ass.
H.R.6304 has been presented to President Bush.
The bill passed per UC (no separate vote required).
"That was a little drama," says Senator McCaskill, as presiding officer. Referring, I think, to the fact that Senator Kennedy was in the Senate chamber and cast a vote to invoke cloture and pass H.R.6331.
16:37: Senator Sessions is back (he missed the FISA vote - and announces he would have voted AYE)
16:41: Senator Hutchison remarks on the return of Senator Kennedy to the chamber (he was in the chamber to vote on the Medicare bill). Senator Hutchison then complains that the Senate was not given the opportunity to debate Medicare (but she voted for it anyway).
17:10: Senator Reid tried to obtain a UC agreement to debate and vote on S.2731 - Lantos/Hyde HIV/Aids Tuberculosis Malaria Act. Senator Kyl objected at the restrictive debate schedule. Senator Reid filed a cloture motion to overcome the objection, with the cloture vote to occur Friday, unless the GOP agrees to conduct it tomorrow.
18:20: Senator Reid closes down the Senate until 9:30 a.m. tomorrow (in recess). The Senate will work on Housing Bailout tomorrow.
Comments have been added below "10:11" above, summarizing material entered into the record without being spoken. Editorial adjustments were made at "14:44."
09:45: Senator Reid says that if cloture is not invoked on H.R.3221 - Housing Bailout, the bill will be set aside. Senator DeMint is named as the GOP Senator who is objecting to the manager's package, which is part of taking up and passing the Housing Bailout bill.
S.3236 - More Medicare, put on the calendar.
09:50: Senator McConnell says the Senate should be working on the number one priority, energy prices; and that the Senate should take up GOP-prepared base legislation that gives states the option to explore the outer continental shelf, and otherwise encourages domestic exploration and production.
Senator Reid comes back, agrees that energy and gasoline prices are a big issue; and is happy that the GOP has dropped insistence on exploiting ANWR. Just the same, he does not think the US can become energy independent on minerals, and that oil companies should explore and develop existing leases, including in the Gulf of Mexico - and that it should be forbidden to export any oil found in the US. He thinks the oil futures/speculation activity needs closer regulation, and the DEMs are working on new legislation in that regard. He urges that the US would begin to tap the strategic petroleum reserve.
09:55: The Senate takes up one hour of debate preceding the cloture vote on passing Housing Bailout back to the House, as amended by the Senate.
10:18: Senator Sessions is wrapping up a speech that advocates expanding nuclear power. Senator Cornyn points to a need for action on the Colombian Free Trade Agreement, judicial nominees, and energy prices.
11:21: The second of two cloture votes to limit debate on final passage of H.R.3221 - Housing Bailout, was PASSED on a 84-12 vote. [Motion to Invoke Cloture on the Motion to Disagree to the Amdts. of the House, Adding a New Title and Inserting a New Section]
Senator Webb is heard saying, "Where's my little gavel here?"
The Senate shifts to executive session with 2:00 p.m. votes on the nominations of Petraeus and Odierno. With regard to S.2731 - Lantos/Hyde HIV/Aids Tuberculosis Malaria Act, Senator Reid says he's open to conducting the cloture vote on the motion to proceed either this afternoon (which is "early" under the rules), or tomorrow.
12:51: Senator Grassley says the AMT is a "stealth" tax, in that the law doesn't accurately summarize the marginal tax rate. That's BS. The law is the law - follow it, and the tax pops out the other end. If AMT applies, it applies. Congress passed it - it's the law, it's not stealth. Likewise for itemized deductions and personal exemptions, none of that is stealth, it is all transparent.
14:46: General Patraeus's new commission was confirmed on a 96-2 vote, and General Odierno's was confirmed on a 96-1 vote. Feinstein was a late voter. The Senate resumes legislative session, and goes into quorum call.
23:22: Senator Reid breaks the quorum call. He claims his slurring of words isn't due to imbibing of alcohol. One Senator is insisting on 30 hours of post-cloture time on Housing Bailout, which forces that vote to be taken no sooner than 5:21 p.m. tomorrow. Now THAT's how to force delay.
Senator Reid asks for a vote on the Hyde/Lantos "Global Aids" bill at 5:30 p.m. Monday - objection by Senator DeMint, voiced by Senator Kyl. Senator Kyl hopes the bill can be completed next week, including opportunities to offer, debate and vote on amendments.
Senator Reid propounds a UC request that has the cloture vote on the motion to proceed to Global AIDS taking place tomorrow, immediately after voting on Housing Bailout, and that all post cloture time be deemed expired, and the motion to proceed to Global Aids be adopted on Monday. There is no objection.
23:35: Senator Durbin closes the Senate until Friday 3:30 pm. Two votes tomorrow. First to pass Housing Bailout, then on limiting debate on a motion to proceed to Global Aids.
15:33: Senate opens. A cloture vote is scheduled for 5:21 to limit the last leg of debate on the Housing Bailout. After that, a cloture vote to limit debate on the motion to proceed to the Lantos/Hyde HIV/Aids Tuberculosis Malaria Act. Senator Reid looks for the velcro "Republican Filibuster" chart, and accuses the Republicans of stealing it. The number is up to 82.
16:18: Senator Levin on energy, and then on absence of an Iraq national hydrocarbon legislation and an absence of consistent US policy on facilitating hydrocarbon exploitation in Iraq. He enters a number of letters into the record (probably a good read).
Senator Reid propounds a UC request. Monday, all post cloture time (on HIV/AIDS) be expired, Biden/Lugar substitute amendment, a number of amendments at 60 vote thresholds. Senator Reid says "I'm reading as fast as I can" as he goes through 10 amendments with brief descriptions, and the steps leading to putting the bill into the vehicle of H.R.5501 to be sent to the House. There is no objection.
Senator Menendez makes an inquiry as to whether or not an objecting Senator has to be present in order to voice objection, and notes that the Senator who objected to shortening the 30 hours of post cloture time on the last Housing Bailout vote was not present to vote. The Senate erupted in boos. They do not like being held over on Fridays.
Into quorum call. Senators can start the weekend now. I'm recalling Senator Reid's comments in June, that Mondays in July would include voting.
18:38: Adjourned until 2:00 p.m. Monday. Then to HIV/AIDS (PEPFAR). He hopes this to be finished next week. He hopes that the past month, with Republicans and Democrats not getting along, is somewhat smoothed over with recent passage of Medicare, FISA.
No votes on Monday (LOL). Will be votes on Tuesday Morning.
I checked to see if the DNC filed it's complaint against Senator McCain, on his public financing violation. It did, on June 24th. The complaint may be viewed at http://www.fec.gov/law/litigation/dnc_08_2_complaint.pdf. [DC District Court Case No. 1:08-cv-01083]
The suit asks the District Court to order the FEC to answer the DNC complaint within 30 days (of the Court order), and that if the FEC doesn't do so, that the DNC may ask the District Court to remedy the violations of the primary campaign public financing rules and statute.
President Bush vetoed Medicare, H.R.6331, and the Senate conducted a veto override vote.
H.R.5501 - Tom Lantos and Henry J. Hyde United States Global Leadership Against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008 (PEPFAR),, was PASSED on a 80-16 vote. (Kennedy, McCain, Obama, and Warner did not vote)
An interesting foreign parallel with FISA is reported by JURIST: "Sweden legal group files challenge to wiretapping law with ECHR" (European Court of Human Rights)
The JURIST article includes a link to a July 1, 2008 decision by the European Court of Human Rights that struck down the use of non-public keywords to conduct communications surveillance, as an impermissible government invasion of personal privacy.
Paragraph 43 of the decision describes a surveillance regime comprising five steps.
- A broad warrant describing physical international communications links to be intercepted ("for example, 'all commercial submarine cables having one terminal in the UK and carrying external commercial communications to Europe'. All communications falling within the specified category would be physically intercepted.")
- A certificate generally describing categories of communications to be extracted from the intercepted communications ("for example, 'national security', 'preventing or detecting serious crime' or 'safeguarding the economic well-being of the United Kingdom'")
- Keyword searching, using keywords selected by the snooper without judicial oversight or publication
- Minimization rules
- Dissemination rules
45. ... [The UK plaintiffs] submitted that it would not compromise national security to describe the arrangements in place for filtering and disseminating intercepted material, and that detailed information about similar systems had been published by a number of other democratic countries, such as the United States of America, Australia, New Zealand, Canada and Germany. ...
There was no legal material in the public domain indicating how the [UK] authorities' powers to select, disclose, use or retain particular communications were regulated. The authorities' conduct was not "in accordance with the law" because it was unsupported by any predictable legal basis satisfying the accessibility principle.
69. In conclusion, the Court does not consider that the domestic law at the relevant time indicated with sufficient clarity, so as to provide adequate protection against abuse of power, the scope or manner of exercise of the very wide discretion conferred on the State to intercept and examine external communications. In particular, it did not, as required by the Court's case-law, set out in a form accessible to the public any indication of the procedure to be followed for selecting for examination, sharing, storing and destroying intercepted material. The interference with the applicants' rights under Article 8 was not, therefore, "in accordance with the law".
Saturday - July 19, 2008
[Wednesday, June 18] Mr. REID ... While we have a good attendance in the Chamber, during July, there are no Monday no-vote days. In July, we are going to work all the work period. We also have a weekend that we have scheduled that we are going to be in session, [Friday] July 25 we are going to be in session. Everyone has a lot of notice now to not plan anything for that weekend.
[Friday, June 27] Mr. REID ... There will be no rollcall votes today. The next vote will occur at 5:30 p.m., Monday, July 7. That vote will be on the motion to invoke cloture on the motion to concur with respect to the housing reform legislation.
05:34 PM Monday, July 7: Roll Call Vote #163 [14 Not voting]
[Friday, July 11] Mr. REID ... We will have no votes on Monday [July 14]. We will have some votes Tuesday morning.
[Thursday, July 17] Mr. NELSON of Florida. Mr. President, there will be no rollcall votes on Monday [July 21]. The next vote will occur Tuesday morning. That vote will be on the motion to invoke cloture on the motion to proceed to the energy speculation bill.
[Monday, July 21] Mr. REID As Senators have known now for well more than a month, we are going to work this weekend. We have work to do this weekend. Exactly what we will be doing depends a lot on what happens during the week ...
Plans for the week: Energy speculation, LIHEAP ... [package of critical bills that have passed the House] Emmett Till Unsolved Crimes bill, Runaway and Homeless Youth bill, Combating Child Exploitation bill (establishes an Internet Crimes Against Children Task Force), Lou Gehrig registry, and the Christopher and Dana Reeve Paralysis Act.
A do-nothing day, on the subject of the motion to proceed to the consideration of S.3268 - Stop Excessive Energy Speculation Act of 2008. A cloture vote to limit debate on the motion to proceed is set up for tomorrow morning.
17:58: Senator Coburn is winding up a barn-burner of a speech, railing against Congress and its spendthrift ways; Congress and it's habit of legislating in private (behind the public's back); and against the majority's practice of limiting debate via "the hotline process." But, notes Senator Coburn, a hold doesn't set what comes up in the Senate - the majority leader's priorities can overcome any hold.
18:42: After a period of half an hour or so of quorum call, Senator Coburn comes to the floor, announces that he is holding in his hands the Senator Reid bill that he previously described, and says "Madam President, I have in my hand the bill Senator Reid just filed. There is no CBO score with this, and I object to the introduction of this bill." This is different from objection to a motion to proceed. This is objection to the mere introduction of a bill.
Riddick's pages 235-237 describes the ramifications. Introduction is postponed for 1 legislative day, but the bill may be introduced as a matter of right during morning business on the next legislative day (See Senate Rule XIV and Rule VII).
18:50: Senator Durbin performs the usual ritual that accompanies passing a bill without notice, and voila, S.901 - Health Centers Renewal Act of 2007 is through the Senate and off to the House.
18:55: Senator Durbin announces that the cloture vote on the motion to proceed to S.3268 - Stop Excessive Energy Speculation Act of 2008 is scheduled for 11:15 a.m. tomorrow; and then he adjourns the Senate for the night. Business is to resume at 10:00 a.m. Tuesday. Senator Reid will be steamed that Senator Coburn objected to the introduction of Reid's omnibus bill.
For anybody following the "Bill Gertz must testify" case (where the government interest appears to be the same as the reporter's interest, to shield the identity of the government leaker), plaintext of the government's sworn declaration, unsealed yesterday.
Some factoids and accusations from Senator Coburn's speech on July 21:
- From 1912 to 1972, only five times in the U.S. Senate was cloture invoked. [There was no such thing as cloture before 1917 -- brief history of "the cloture rule" below.]
- It is the Willie Sutton phenomenon. He robbed banks because that is where the money is. People drill where the oil is.
- It would be surprising to most people where we get most of our oil drilling rigs today. Most people do not realize China produces most of them.
- I have sent two letters to the prime author of [S.535 - the Emmett Till Unsolved Crimes] bill. He has not had the courtesy to answer me once. He held a press conference that impugned I was a racist because I would not let that bill go through. [Senator Dodd's Press Release of June 21, 2007]
- we are going to get a debate this weekend on these 40 bills. We probably won't have done anything significant yet about energy.
Senate Rules from 1789 to 1806 permitted calling the question with a simple majority. See http://rules.senate.gov/history.html, Rule IX. This rule was removed in 1806, and in its place was a requirement to obtain unanimous consent to move to the vote. One objecting Senator could stifle the vote.
The cloture rule was implemented in 1917, on a bipartisan 76-3 vote. (p226). With the concurrence of 2/3rds of the Senators voting, debate would be limited and taking the vote would be set for a time certain.
In 1949, on a 63-23 vote, the threshold was modified to 2/3rds of the Senators duly chosen and sworn. (p229).
In 1959, a 77-22 vote made cloture possible with 2/3rds of the Senators present and voting. (p247). Also, cloture was broadened to include rules changes - this is where the "2/3rds are required to change the rules" rule comes from. The 1959 changes are referred to as the "Johnson (LBJ) Compromise."
In 1975, Senator Pearson introduced a proposal to change the threshold to 3/5ths of Senators present and voting. (p257). That proposal did not pass. In the same year, Senator Byrd's proposed revision to 3/5ths of all Senators passed on a 56-27 vote. (p259).
10:05: Nothing noteworthy in Senator Reid's opening. He asks that S.3297 - America's Priorities. I speculate that this is the omnibus bill that Senator Coburn has openly objected to.
10:07: Senator McConnell's remarks indicate that cloture is not apt to be obtained on the energy speculation bill. He goes through the Senate's history of open debate on recent energy bills, where the debate consumed weeks of time, and contrasts that with the Democratic plan to hustle the speculation bill through in a short time.
Senator Reid reiterates the "GOP as obstructionists" theme. 83 Republican Filibusters - and counting ...
Senator Reid states that he is willing to give the GOP a vote on a drilling bill (or amendment), provided there is agreement to proceed to the energy speculation bill. That ought to change the cloture vote on the motion to proceed from rejection to adoption.
19:31: Senator Brown adjourned the Senate until 10:00 a.m. tomorrow. The subject remains the motion to proceed to the consideration of S.3268 - Stop Excessive Energy Speculation Act of 2008.
10:35: Senator McConnell's asserts that a "speculation only" bill won't reduce the price of a barrel of oil, and he cites various reports, analyses and experts for support. He advocates the GOP alternative, "Gas Price Reduction Act." He says the price of energy has to be fixed by legislation.
The DEM proposed legislative process has a paucity of opportunity for amendment. Senator Gregg indicates that the Senate should entertain an amendment to subsidize or otherwise encourage oil shale, rather than just lifting the Congressional moratorium on offshore drilling.
Senator Kyl delivers backhanded derision to the DEM proposal to pit two bills, each with 60 vote margins (each being a "party position") against each other, with the end result being neither bill passes.
The motion to limit debate on the motion to proceed to
S.3186 - Warm in Winter and Cool in Summer Act (LIHEAP), was
REJECTED on a
GOP AYE Votes: Coleman, Collins, Smith, Snowe, and Sununu.
Pro forma session today.
Still pending, S.3268 - Stop Excessive Energy Speculation Act of 2008.
At 3:00 p.m. on Monday, July 28, 2008, the Senate will resume consideration of the motion to proceed to S.3297 - a bill to advance America's priorities, and the time until 4:00 p.m. will be equally divided between the two Leaders or their designees. At 4:00 p.m., the Senate will vote on the cloture motion on the motion to proceed.
Mr. REID. Mr. President, pursuant to rule XLIV of the Standing Rules of the Senate, I hereby certify that, to the best of my knowledge and belief based upon information provided to me by the committees of jurisdiction, S. 3297 does not contain any congressionally directed spending item, limited tax benefit, or limited tariff benefit, as those terms are defined in rule XLIV.
There are no tax or tariff provisions in the bill whatsoever. Nor do I believe the bill contains any "congressionally directed spending items" which rule XLIV defines as "a provision or report language included primarily at the request of a Senator providing, authorizing, or recommending a specific amount of discretionary budget authority, credit authority, or other spending authority for a contract, loan, loan guarantee, grant, loan authority, or other expenditure with or to an entity, or targeted to a specific State, locality or Congressional district, other than through a statutory or administrative formula-driven or competitive award process."
To clear up any misconceptions, the bill provides only authorizations--enactment of the bills would have no effect on the Federal budget deficit or debt. As the nonpartisan CBO stated in a letter regarding S.3297, "By themselves--that is, in the absence of subsequent legislation--those authorizations [in S.3297] do not cause changes in Federal spending or revenues."
15:05: Senator Reid propounds a UC agreement on the energy (speculation plus) legislation (S.3268), but with 60 vote thresholds and a limited number of amendments. Senator McConnell is pleased by the motion, but before he can object, Senator Reid withdraws the UC request.
Senator Reid offers a second UC agreement, to keep the energy bill pending, notwithstanding invoking cloture on the motion to proceed to what he calls "the Coburn package," which is S.3297 - a bill to advance America's priorities. Senator McConnell mistakes the request as one that will move OFF the subject of energy, and objects.
Two roll call votes are in the works, a live quorum (per the cloture rule) just before the cloture vote on the motion to proceed to "the Coburn package."
16:27: The live quorum passed 87-3. On to the cloture vote on the motion to proceed to "the Coburn package."
17:00: The motion to limit debate on the motion to proceed to
a bill to advance America's priorities ("the Coburn package"), was
REJECTED on a
GOP AYE Votes: Coleman, Smith and Warner
Senator Stevens was finally indicted, on allegations of taking undisclosed
bribes gifts (cough cough).
The indictment was brought in the District Court of the District of Columbia. The charge is basically "false
statements" (lying on Senate financial disclosure reports - not income tax evasion). I doubt Scooter Libby defenders
will defend Stevens on the same grounds -- that until there is proof of the elements of an underlying crime,
lying to authorities is "understandable defense against being framed."
The motion to limit debate on the motion to proceed to
Free Flow of Information Act of 2007 [Press Shield/Privilege], was
REJECTED on a
GOP AYE Votes: Collins, Lugar, Smith and Specter
The motion to limit debate on the motion to proceed to
National Defense Authorization Act for Fiscal Year 2009, was
REJECTED on a
GOP AYE Votes: Collins, Dole, Smith, Snowe, and Warner
Says the GOP, "the number one priority is the high price of gasoline."
Democratic leadership objected to passing the Emmett Till Unresolved Civil Rights Crime Act, S.3344, the Protecting Children from Pornography and Internet Exploitation Act of 2008 [Democrat sponsor Senator Dodd was in favor of passing this bill standing alone], S.3344, titles I and IV [the PROTECT Act and the SAFE Act - Democrat sponsor Senator Biden was in favor of passing this bill standing alone], and subtitle D of S.3297, the Effective Child Pornography Prosecution Act. The Democratic leadership insists on passing a package of 35 or so bills as a bundle, and rejects any offer to pass a popular/non-contentious measure unless the contentious measures are also passed.
Just another "do nothing Friday."
Senator Coburn added material to the Record, on the Emmett Till Unresolved Civil Rights Crime Act, and the desire of one of its determined advocates, Mr. Alvin Sykes, to have the bill passed as amended.
Pro forma sessions, all in recess continuing legislative day August 1st, were set-up as follows:
- Tuesday, August 5, at 10 a.m.
- Friday, August 8, at 11 a.m.
- Tuesday, August 12, at 2 p.m.
- Friday, August 15, at 10 a.m.
- Tuesday, August 19, at 9 a.m.
- Friday, August 22, at 10 a.m.
- Tuesday, August 26, at 2 p.m.
- Friday, August 29, at 2 p.m.
- Tuesday, September 2, at 12 p.m.
- Friday, September 5, at 9:30 a.m.
When the Senate completes its pro forma session on Friday, September 5, the Senate will stand adjourned until 3 p.m. on Monday, September 8.