Forget FISA! Obama’s task in right now is to deliver us a victory!

I applaud all of you for writing letters to the Obama campaign, voicing your objections to FISA. I think it’s great that some of you have taken to calling the campaign headquarters or posting your points of view on the blogosphere. That is what democracy is all about. Constructive criticism is helpful for Obama. It will make him and better candidate and a better president

If you didn't see the Harry Reid "coal is making us sick" video yet, check it out - its only 30 seconds or so, but its definitely tapped into public sentiment, if over 360,000 hits on Youtube means anything.

Harry Reid spoke bluntly on energy issues.  Looking the Faux and Balanced cameras square on, he spoke truth:  

Coal makes us sick ...

This is an important statement.  Reid is speaking truth to an audience that isn't used to hearing it.

It has been 248 days since the ALS Registry Act passed the US House of Representatives by a 411-3 margin.  However, unlike the unicameral Nebraska legislature, Congress has two bodies that must approve a bill before the president can sign it into law.  Republican Senator Tom Coburn of Oklahoma has done everything that he can to prevent the legislation from passing.  About 200 days ago, he placed a hold, a procedural maneuver that allows a single senator to prevent a bill from being passed quickly without a roll-call vote or floor debate.

One of The bills held hostage is the ALS Registry Act S.1382. This legislation would authorize the establishment of an ALS Registry at the Centers for Disease Control and Prevention on the bill.  Time is running out on this congressional session, but there might be something in the works that will save this legislation which is critically important to people affected by ALS.  

I admit this weekend I haven't been available here at the Kos. I have an upper and lower respiratory track infection (in nonmedical terms a friggin bad summer cold) along with last night's gift of an ear ache (in other words I really can't hear my wife's honey do list). So if this brief diary has been published before my apologises and I will take it down.

Sunday I wrote about Seymour Hersh's article in the New Yorker and suggested that George Bush was an evangelical radical trying to spark Armagedon and the rapture. The evidence is there but, many perfer to deny reality in hopes it will fade away. It hasn't and I missed something very important.

More after the fold.

One of the most frequently asked questions about Senate procedure these days is, WTF with these "holds?" Or more accurately, "How come Harry Reid blew off Chris Dodd's hold on the FISA bill, but Tom Coburn gets to have 100 bills on hold and nobody bats an eyelash?"

Well, aside from the fact that eyelashes are, in fact, now batting on the Coburn holds, it seems clear that not all holds are created equal. Here's my attempt to explain why. I tried making this more formal, but it just kept getting bogged down. So here it is, quick and dirty, pretty much the way I discussed it with a friend in e-mail.

Holds, like everything in the Senate, actually have a lot of moving parts. When you put a hold on a bill, the Majority Leader does a private mental calculus, sometimes informed by other political intelligence, whip counts, outright threats, or what have you, and sometimes not.

It goes something like this:

A Senator tells Reid (or tells McConnell to tell Reid) he wants to put a hold on a bill.

Reid asks himself whether enough people give a shit about the bill for him to spend the amount of time it's going to take either to: 1) figure out how many Senators give a shit, or; 2) go through the process of voting on it despite the hold.

Why might Reid want to go through the process of voting on it despite the hold? Well, he might not want to, per se, but the job of Majority Leader in the Senate is different from that of Majority Leader in the House in that in the House, bills come to the floor backed by a decision of a majority. That is, bills that come to the floor under a rulehave already had a vote in which some majority has said they want it there. So majorities routinely tell the minority that it's tough luck if they don't like it, it's coming anyway. In the Senate, the normal mode of bringing something to the floor is by unanimous consent.

That's where the hold comes from. It's just an indication to the Majority Leader, whose job it is to keep the schedule moving, that a Senator will, if necessary, object to a unanimous consent request to bring the bill to the floor.

Now, that's not the only way bills get to the Senate floor. It's just the preferred way. Because if you have a unanimous consent agreement, you can build the equivalent of a House rule into it -- how much debate time will there be, how many amendments, which ones, and so forth. But if you don't have such an agreement, then everything's under the Senate's very open debate rules, including the possibility of a filibuster. If the Senate agrees to a unanimous consent agreement limiting debate time before bringing a bill to the floor, it can't be filibustered after that. Without the agreement, there's a danger of filibuster.

So if one Senator says he'll object to a unanimous consent agreement, it's also an implied signal that if the Majority Leader brings the bill to the floor anyway, the objecting Senator may filibuster.

Now the Majority Leader starts calculating. One Senator filibustering all by himself is a pain in the ass, but nobody can stay on their feet forever. And if the filibustering Senator sits down and stops talking, the floor is open to make a motion that the Senate immediately proceed to a vote. So the next question is, does he have allies? Will they also stay on their feet for hours or even days at a time if necessary? How many allies are there? Enough so that nobody will really even have to work all that hard, and can just take, say, a two hour shift and keep the debate going forever? Or more importantly, does he have so many allies that the Majority Leader would lose a cloturevote? In considering this, the calculation has to include not only how many allies the Senator has on the substantive issues, but also how many Senators would support the filibuster just to screw with the Majority Leader? Or because they have a hold on something too, and need the other Senator's support for it?

The other calculation is about time. If the schedule is busy, and especially if there are any deadlines looming, even a failed filibuster with no allies at all can ruin your week. If the Majority Leader can't get a unanimous consent agreement, his only other choice if he wants to move the bill is to make a motion to proceed to consider. That's just a motion that the Senate start debate on whatever the bill is. The problem is that the motion to proceed is itself subject to a filibuster. So the same calculations have to be made.

Even if the Senator is almost entirely alone, getting a bill to the floor is a pain in the ass. Because the motion to proceed is subject to a filibuster, the Majority Leader will make the motion and then immediately file a motion for cloture on the motion to proceed. That's because a cloture motion must, by rule, wait two days before there can be a vote on it. So it's two days from making the motion to proceed before you can even have a vote on whether or not to vote on that motion to proceed. Then, even if you trounce the objecting Senator in the cloture vote, the rules also allow up to 30 hours of post-cloture debate, if the objecting Senator(s) choose to claim them. So all told, it can take 78 hours of Senate time to overcome the objections of a Senator with a hold. And that's just to get to the start of debate on the bill, which will itself then be subject to a filibuster. As would all amendments to the bill.

If the objecting Senator is still making a stink, you'll want to file for cloture on the bill, too, which means waiting the same 78 hours to get that over with. So it can take a full week of the Senate's time to get to a vote on a bill that's being held -- and that's only if there are no amendments to it. If there are amendments and you file for cloture as soon as the actual bill's debate starts, it can have the effect of precluding debate on amendments, because once cloture is invoked on the bill, that ends debate, including debate on amendments. And some of those amendments are going to be things you and your colleagues want to vote on. You might even find that if you file cloture right away, some Senators who have important amendments but oppose the filibuster will vote no on cloture anyway, just so that they can get a chance to offer and debate their amendments. So you can't file cloture right away. Instead you have to let debate on the amendments begin. And if the objecting Senator just wants to blow up the whole thing, he can filibuster the amendments, and then again you take three days to get to a vote on that amendment. And so on, and so on, and so on.

Of course, someone in the position that Senator Dodd was in last December might want to filibuster the motion to proceed, and filibuster the underlying bill at the end of the process. But he wouldn't want to filibuster his own amendment to strip the immunity provisions from the FISA bill. In fact, a lot of Senators who opposed Dodd's amendment and supported the bill probably wanted to file cloture on the whole bill right away, so that very few if any amendments could have been considered. In the negotiations preceding consideration of the bill, then, that provided leverage for the other side in getting concessions back from Dodd. For instance, the 60 vote requirement for passage of certain amendments might have been something that Dodd found he had to agree to, just to get the other Senators to agree not to file for cloture on the whole bill right away, thereby preserving his opportunity to offer his immunity-stripping amendment.

So the rules actually don't allow a single Senator to simply block a bill forever just by putting a hold on it. But the practical effect of a hold and the threat it implies -- depending on how many allies the Senator has to help him hold the floor -- is that the Senate may have to spend weeks on end dealing with this one bill and its amendments. And if it's a dumb-ass bill that nobody really needs to pass, even if it would be nice to have it, the Majority Leader's mental calculus on the question of should he tell the holding Senator to go jump in the lake, is an immediate "no." It sucks, but it's better just to "honor" the hold and not bother with the time they would waste pushing this bill through. That's the case with some of what Coburn held. Everybody wanted to pass them, they were very popular (i.e., not "dumb-ass" at all), but ultimately nobody wanted to spend a whole week on it.

With Dodd and FISA, the situation was different. A large majority of the Senate wanted to pass it, didn't much care if it took two weeks to do it, and felt it was a reasonable trade-off to have to do it, since the Protect America Act was "expiring" and they'd just have to bite the bullet and be bored for two weeks.

Once that became clear, the question was whether Reid should take the responsibility of making the motion to proceed, or whether he should refuse on principle, only to see Rockefeller make it and win it over Reid's objections (assuming he really was opposed to it). Staying on top as Majority Leader is a delicate balance. The Senate Democratic Caucus is relatively small, and it's filled with egos who all believe they could and should be Majority Leader instead of you. So you want to avoid situations where sizable majorities of your own caucus side with someone else and override you because they perceive you as standing in the way of their voting on a bill that they think will save their asses from Republican attacks. If you get between them and the magic potion they think will win them reelection, they will find themselves a Majority Leader who won't do that to them.

So Reid counts the votes, sees that it's inevitable that this bill is coming to the floor in three days or less, and he can either sacrifice his leadership position on that altar, or read the writing on the wall and move it to the floor and vote against it if he doesn't like it.

And that's the story of the Senatorial hold.

But keep in mind that that whole thing is too complex for any traditional media reporter to write about. No editor would ever give a reporter that much space to explain something that complex, when he's supposed to be covering the actual bill. Instead, it's much easier to just tell people that a hold can magically keep a bill off the floor forever, since in the overwhelming number of cases, that's what the practical effect of it looks like from the outside. So people get used to believing that, and then are stunned when a hold they actually favor goes the other way.

And that's why blogs were invented, and people like them better than newspapers. The end.

It's a temporary reprieve, not a victory, but Senators Dodd and Feingold have worked with Durbin and Reid to delay the FISA vote until July 8.

Feingold's statement (via e-mail):

"I'm pleased we were able to delay a vote on FISA until after the July 4th holiday instead of having it jammed through. I hope that over the July 4th holiday, Senators will take a closer look at this deeply flawed legislation and understand how it threatens the civil liberties of the American people.

"It is possible to defend this country from terrorists while also protecting the rights and freedoms that define our nation."

Dodd's statement (via e-mail:)

"I’m pleased that consideration of the FISA Amendments Act has been delayed until after the 4th of July recess. I urge my colleagues to take this time to listen to their constituents and consider the dangerous precedent that would be set by granting retroactive immunity to the telecommunications companies that may have engaged in President Bush’s illegal wiretapping program.

"When and if FISA does come back to the Senate floor, I will offer my amendment to strip the retroactive immunity provision out of the bill. I implore my colleagues to support the rule of law and join me in voting against retroactive immunity."

The Feingold/Dodd amendment to strip immunity from the bill will be voted on, as will a couple of other amendments. As of now, I don't have complete information on them.

So here's a fantastic opportunity to talk to your Senators, when they're home for the most patriotic of all holidays, about what this bill means to you as a constitutent. If they're having town meetings, please attend and bring up the bill, or try to schedule individual meetings with them.

And, if you have the time and the ink and the paper available, print a copy of the bill (114 pages, pdf), highlight the salient parts (like the WMD section) and ask them to please read the bill, and then decide if it's really something they want to have on their permanent record as having supported.

It's a longshot, but it's the only one we've got.

Something is missing beyond the spine of some Democrats in the rush to legalize warrantless wiretaps, end privacy, and reward corporations for betraying the public trust. Let's call it the beef (or nicely textured soy protein for the vegetarians among us).

I am an empiricist at heart. I want proof in the form of sound evidence before I am willing to believe something is true. I am also deeply cynical and suspicious of politicians because too few decisions favor the common good. That cynicism has grown after our elected officials 'misrepresented' the threat posed by Iraq. In the uproar over the FISA revisions, now is a good time to point out there are some glaring gaps in the evidence at hand.

If this is a trend, I like it:

Senate Majority Leader Harry Reid announced this evening that he will vote against the compromise FISA legislation and work with likeminded colleagues to strip immunity for telecom firms from that bill.

It is a position that puts the Democratic Senate leader at odds with his own party's presumptive presidential nominee, Barack Obama, who also has pledged to fight for the removal of immunity but will vote yes on the final package.

HuffPo: Compromise, At Odds With Obama

More, after the fold.

(the operative word here is "may".  It's entirely possible that the Senate could finish all of the bills they want to push out by Friday.)

Anyone watching C-SPAN?  Senator Reid just informed his colleagues that, because of all the other bills in the queue (like the housing bill, and the Iraq supplemental), FISA may not get a vote until after the July 4 holiday recess.

This is honestly the best we can hope for with this bill.  Sens. Dodd, Wyden and Feingold are ready to filibuster and gamely trying to get colleagues to do the same (Sen. Dodd's speech tonight was a bravura performance), but realistically there aren't the numbers to stop cloture.  However, that could change if the delay continues.  And getting this to the recess means being able to get in a lot of Senator's faces on their trips back home.  In addition, there's going to be a very short window in August where a ton of must-pass bills have to get through Congress, and throwing FISA in with that mess means that anything can happen.

Reid's statement says:

Unfortunately, the FISA compromise bill establishes a process where the likely outcome is immunity to the telecommunications carriers who participated in the President’s warrantless wiretapping program. Sen. Reid remains opposed to retroactive immunity, which undermines efforts to hold the Bush Administration accountable for violating the law. Thus, he will cosponsor the amendment offered by Senators Dodd and Feingold to strip out the immunity provision, and support their efforts to strip immunity on the floor.

Think Progress Link

I will update when I find more information.

... I'm all for challenging Steny Hoyer's leadership position, and Harry Reid is terribly ineffective, but failure by the Congressional Democrats to oust them really shouldn't be what we base our support of the Democratic Party on.

I think this is a good impulse applied incorrectly. To make a somewhat bold claim I think actions like FISA bill should never make us question are support of the Democratic party, so long as the Republican party continues to be so much worse.

It is now clear that Nancy Pelosi and Harry Reid are themselves "Blue Dog Democrats."

When asked to stand behind our Constitution and stand by Democratic principles, they cower before the President and his merry band.  

Rep. Pelosi and Sen. Reid know that no bill could be considered in congress without their aquesence.  They think I'm too dumb to see that, so they offer excuses that they personally disagree with Amnesty, but cry there's nothing they can do.

The United States of America is now in the business of selling Indulgences.  I know they'll get cheaper over time, but I also know they'll never be inexpensive enough for me to afford.

I just can't believe it!

    Simple question.

    ...I may be missing something, but it seems that besides reliable fireplug Howard Dean and a few pundits, there seems to be a serious lack of political--I didn't say "star"--firepower at the upcoming NN.

    Especially compared to last year, when practically every Dem candidate came to the forum.

    If Barack Obama wants to Sister Souljah the netroots by refusing to attend Netroots Nation, that's a serious problem. After all the netroots did for him. (But how much will they do for him in the future if he doesn't pay appropriate respect? And I don't mean a "special videotaped message" from him, either. He can keep that for himself, I wouldn't want to see it.)

    So his absence (and maybe even the absence of others, including a New York senator, a former North Carolina senator, a present Nevada senator and majority leader, etc.) would be a serious comedown from previous conventions. Would the first Netroots Nation even be worth attending? One wonders.
       

Most historians regard the Alien and Sedition Acts as among the most shameful travesties ever passed by Congress. This isn't the first time in American history that Congress was willing to ignore those inconvenient (yet inalienable) rights of ours because we were atremble in the wake of A Foreign Menace. The French!!! Which goes to show how irrational these fears can seem in retrospect.  

Anyways, in 1799 Congress decided to hand President John Adams authoritarian powers that were clearly contrary to the Constitution.  He hadn't even asked for them.

Imagine the chutzpah of doing that at a time that the framers of the Constitution were still kicking. Of course, we hadn't yet developed the near-religious reverence towards "the framers" that those current underminers of all they stood for now affirm.  But it'd be pretty embarrassing to vote "Yea" on abridging the 1st amendment... and then run into James Madison at a cocktail party.

The FISA law is in the spirit of the original Alien Acts, so let's go all out and also draft a New Sedition Act: an Abridgement of Free Speech for the 21st Century.  It might actually do us some good.  

You can follow my twisted logic after the fold... (don't worry: I won't bite)

I'm gonna try and stay real calm about this...

And I might even vow to try and stay real calm about this...

But "what the HELL gives!" when over and over...

...the same damn MEME about OBAMA vowing something amounting to total "bullshit" keeps reappearing on this site??? He made NO such vow.

...the same damn MEME about "better Democrats" voting NO on FISA (good deed done)...distracts from the fact that "NO votes" in the face of what's actually happening without energetically marshalling resources to counter the subtly spreading NON-TRUTHS....is milquetoast at best...and enabler at worst.

...and the same damn MEME that says, "well, pat yourself on the back, we did our best" (self-congratulatory "good fight" crap!), "but we probably couldn't win this fight until Barack is President".

"Wait" is like saying "off the table" (impeachment) =PASSIVITY

The choice between ACTIVE and PASSIVE voice is the like "the difference between lightning (ZAP!) and lightning bug (chirp)" And we have a choice...always! LET'S WAKE UP TO THAT.

Following up on Hunter's excellent post on why we care about FISA, I want to home in on one part of the whole debacle, and why keeping Barack Obama to his vow to try to strip immunity from the bill is important.

Here's Glenn in an important post on the larger issues behind this bill, and Obama's support of it.

It is absolutely false that the only unconstitutional and destructive provision of this "compromise" bill is the telecom amnesty part. It's true that most people working to defeat the Cheney/Rockefeller bill viewed opposition to telecom amnesty as the most politically potent way to defeat the bill, but the bill's expansion of warrantless eavesdropping powers vested in the President, and its evisceration of safeguards against abuses of those powers, is at least as long-lasting and destructive as the telecom amnesty provisions. The bill legalizes many of the warrantless eavesdropping activities George Bush secretly and illegally ordered in 2001. Those warrantless eavesdropping powers violate core Fourth Amendment protections. And Barack Obama now supports all of it, and will vote it into law. Those are just facts.

The ACLU specifically identifies the ways in which this bill destroys meaningful limits on the President's power to spy on our international calls and emails. Sen. Russ Feingold condemned the bill on the ground that it "fails to protect the privacy of law-abiding Americans at home" because "the government can still sweep up and keep the international communications of innocent Americans in the U.S. with no connection to suspected terrorists, with very few safeguards to protect against abuse of this power." Rep. Rush Holt -- who was actually denied time to speak by bill-supporter Silvestre Reyes only to be given time by bill-opponent John Conyers -- condemned the bill because it vests the power to decide who are the "bad guys" in the very people who do the spying.

This bill doesn't legalize every part of Bush's illegal warrantless eavesdropping program but it takes a large step beyond FISA towards what Bush did. There was absolutely no reason to destroy the FISA framework, which is already an extraordinarily pro-Executive instrument that vests vast eavesdropping powers in the President, in order to empower the President to spy on large parts of our international communications with no warrants at all. This was all done by invoking the scary spectre of Terrorism -- "you must give up your privacy and constitutional rights to us if you want us to keep you safe" -- and it is Obama's willingness to embrace that rancid framework, the defining mindset of the Bush years, that is most deserving of intense criticism here.

Glenn is absolutely right. This is a disaster of a bill designed to expand the warrantless eavesdropping powers of the president, to codify the lawbreaking of Bush/Cheney. He's also right that this doesn't need to happen, there's "no reason to destroy the FISA framework." It seems we have a Congress intent upon doing that, nonetheless. But there's a distinction between those bad provisions and retroactive immunity--immunity can't be undone. A President Obama and a Congress with a larger Democratic majority--if it had the political will to do so--could repeal the changes contained in the bill, except for amnesty. Of course, given Obama's willingness to support those bad provisions, too, that possibility is waning.

However, there's no repeal of retroactive immunity--once it's granted, that's that. The terrible precedent of letting these corporations off the hook for knowingly breaking the law can't be undone.

That's why, in addition to the fact that pitting the Constitution against AT&T did seem the most potent way to fight this politically, we have focused so largely on telco amnesty. That, and for strategic reasons, is why we should continue to press Obama, Reid, Dodd, Feingold and others who have said in response to this bill, or in response to Dodd's stand last winter, that they oppose amnesty, period.

Strategically, if immunity is removed, the bill is once again veto bait. Another stalling tactic, maybe, but one that might work to finally kill this damned thing once and for all this session. Delaying it past the Independence Day recess is the goal for now. Pushing it into the short remaining work period for the session in August would land in the middle of a packed schedule of "must pass" bills. There's the slimmest chance that time would once again work in our favor. Granted, that outcome is not likely. Our Congress, including our nominee, seems intent, as Hunter says, "to quite so cravenly negate their own oversight duties."

It's our job to try to stop them, and to convince our leaders that it's the right thing to do and they'll have our support in doing so. Here's how, again courtesy Glenn:

As the extremely pro-Obama MoveOn.org notes today, Obama's spokesman, Bill Burton, back in in September, vowed that Obama would "support a filibuster of any bill that includes retroactive immunity for telecommunications companies." MoveOn believes Obama should be held to his word and is thus conducting a campaign urging Obama to do what he promised -- support a filibuster to stop the enactment of telecom amnesty. You can email Burton here to demand that Obama comply with his commitment not just to vote against, but to filibuster, telecom amnesty:

bburton@barackobama.com

Incidentally, Chris Dodd made an identical promise when he was running for President, prompting the support of hundreds of thousands of new contributors, and he ought to be held to his promise as well.

In addition to Obama, contact Harry Reid (Phone: (202) 224-3542, Fax: (202) 224-7327), Russ Feingold (Phone: (202) 224-5323, Fax: (202) 224-2725) and Chris Dodd (Phone: (202) 224-2823, Fax: (202) 224-1083). Ask them to do what they can to derail this train.

Chances are this train is too far from the station to put a stop to. But our job as the left flank of this party, the activist wing, is not to throw up our hands in despair and accept this as a done deal with our bitter acquiescence.

Our job also isn't go off sulking in a fit of pique because our leaders let us down. Blustering, whining, refusing to play anymore is the least helpful and productive of avenues. I keep coming back to Howard Dean and his admonition to us at Yearly Kos in Chicago that we are working on a long term project here to take our party back. Making this party ours again is going to take a lot of work and a long time. We do that by staying engaged. We do that by telling our representatives, including our presidential candidate (who is STILL head and shoulders better than the alternative) what we expect of them and by making their decisions matter.

As long as there is a fight to be had, we're the ones to fight it and to help our allies in Congress fight it. It's our job. If we don't do it, if we don't stand up for progressive values, who will?

Hello,
I was hoping that we, the Democrats, would finally get a backbone and stop FISA.  You see, in this household, we want someone(s) to go to jail for this and for the War and for torture.  Somehow, this desire was all wrapped up in this Bill and it going through was a blow, but as I think on it, not surprising.

But what I find surprising is all this anger at Obama.  Like with a wave of his hand, he can stop this train wreck.  He's not the President yet.