While there will be no shortage (I hope, probably ill-advisedly) of coverage of the substantive issues at stake in the upcoming FISA debate, there's a bit of parliamentary procedure I think you need to know about in order to be a more effective citizen lobbyist: the motion to recommit.
The motion is used exclusively in the House, and here's the short version of what it does:
A motion to recommit returns a bill to committee, in effect killing it. However, a motion to recommit with instructions is a last opportunity to amend the bill.
The instructions to the committee direct changes to the text of the bill. If adopted, the chairman of the named committee immediately stands and reports the change back to the House. The next step is the House vote on final passage of the bill.
Minority Members receive priority of recognition for offering motions to recommit.
If you're into it, here's the long version.
And if you are insane, here's the version that will make people cross the street to avoid conversation with you about it. (PDF)
As even the short version makes clear, the motion to recommit is generally the prerogative of the minority, meaning that in the current House these motions are offered by Republicans. They come at the end of debate on a bill, and are supposed to be the minority's last chance to get an up or down vote on their own version of the bill, or some key amendment that they believe belongs in it.
In practice, the Republicans have become quite skilled at using such motions to devise wedge issue votes designed to put Democrats on the spot, forcing them to go on the record over just the sorts of issues you might have thought winning majority control of the House would have "protected" Democrats from having to deal with. The condemnation of MoveOn.org, for instance, was presented in the House using a motion to recommit following consideration of the must-pass "continuing resolution" (definition), which enabled the government to continue functioning in the absence of the regular appropriations bills, the federal fiscal year having ended on September 30th.
The reason I bring this up is that the motion to recommit may be crucial to the substantive outcome of the next FISA bill coming down the pike.
I'll tell you why over the flip.
During the short "debate" on the FISA bill passed in early August, the motion to recommit played a shadow role -- but an essential one -- in the disaster that led to the passage of the ridiculously misnamed "Protect America Act." At the time, there there were three alternatives floated: H.R. 3356, authored by House Intelligence Committee chairman Rep. Silvestre Reyes (D-TX); S. 2011, authored by Senator Carl Levin (D-MI), and; S. 1927, authored by Senate Minority Leader Mitch McConnell (R-KY).
How, in a Democratic Congress, did the two Democratic bills fail and the Republican one pass? With a combination of scare tactics (t3h t3rr4h is c0ming!), time pressures (Congress was due for its summer recess), and the threat of the motion to recommit.
As the recess drew near and time grew short, the "administration" demanded the Congress pass its preferred bill and nothing else, the president even threatening to exercise his constitutional authority to force them to stay in session until they passed a bill meeting with his approval. This, I wrote in August, was in itself a "fundamental failure not just of politics, but of the framework envisioned by the Founders," in that Congress would literally be ceding even its legislative prerogative to the president, rather than risk the political repercussions of confronting him.
The upshot of situation was this: the Levin bill, not meeting with the "administration's" demands (and thus not excusing the Senate for its recess), failed on August 3rd by a vote of 43-45. (Note, by the way, that the Senate had already unwisely agreed by unanimous consent to the "painless filibuster" standard, requiring 60 votes for passage.) The Senate instead adopted McConnell's bill, the president having indicated he would allow the Senator to go on their recess if the McConnell bill were presented to him for signature.
The House, meanwhile, had Reyes' H.R. 3356 to consider, which by most accounts was slightly less onerous than the McConnell bill. But the problem with the Reyes bill was that it differed from the Senate's bill, and would require a conference committee (definition) and a vote in each house on the conference report (definition) to settle the differences, all at a time when the Congress was racing towards a recess. In fact, after passing McConnell's bill the Senate adjourned for its recess, making a conference impossible -- unless the House was willing to call the president's bluff and dare him to call the Senate back into session, prolonging the wait for everyone.
Besides, even if the House did bring up H.R. 3356, the Republicans could always threaten to offer a motion to recommit that would instruct the Intelligence Committee to substitute the McConnell bill's language for the House's language. If such a motion were to succeed, the House would immediately be presented with the opportunity to pass a bill identical to that passed in the Senate. No conference would be necessary, and everyone could go home for the recess.
Such an option was apparently too tempting for conservative "Bush Dog" Democrats to withstand. The House Democratic leadership, fearful that Bush Dog defections on the motion to recommit would ultimately doom H.R. 3356 and lead to the effective adoption of McConnell's bill anyway, opted to consider H.R. 3356 under suspension of the rules, an expedited procedure that, among other things, precludes the minority from offering a motion to recommit. Bills considered this way, however, must garner a 2/3 majority to pass -- that's 290 votes. The bill could only muster 218 -- enough to pass under normal procedures, but not under suspension of the rules. So H.R. 3356 was now effectively dead.
With that formality out of the way, early the next morning the House moved to consider McConnell's bill. And as predicted, the temptation for Bush Dogs to simply take what the Senate had handed them and leave town was too great. The bill was passed by a vote of 227-183, and the House followed the Senate out of town.
The moral of the story is this: even with a supposedly better House bill available for consideration (on FISA, or on anything at all for that matter), the House leadership is held hostage to the flighty Bush Dog caucus. Whenever the Republicans can craft a scary-sounding wedge issue that it can shoehorn into a motion to recommit, chances are the pants wetters in the Bush Dog gang can be stampeded into effectively allowing Republicans to rewrite an entire bill at the last minute. With no hearings, no committee markups, no testimony, no nothing. Just an on-the-spot rewrite. Which, by the way, is something no member of the actual majority could ever even dream of being allowed to do.
But Republicans can. By standing on the shoulders of the Bush Dogs.
So now comes word that the House Judiciary Committee has finished marking up (definition) the new "RESTORE Act" (H.R. 3773), and that the Committee has successfully excluded the retroactive immunity provisions demanded by the president for the telecommunications companies who were complicit in his "administration's" domestic spying scheme. Good news.
On the other hand, it seems the Senate's draft bill does include such immunity language, which is really just flatly an outrage against the rule of law. With the Congress yet again eying an adjournment, might we now be watching the very same situation develop? One in which the Senate's inclusion of onerous language (demanded by the president) in a FISA bill ends up increasing the leverage of House Republicans, who can undo all the good work of the House Judiciary Committee, by reinserting telecom immunity using a motion to recommit?
Good lobbyists know that every step of the process is imbued with its own importance, and they never neglect an opportunity to influence that process. The fact that the immunity language has reportedly made it into the committee draft on the Senate side means there will have to be a fight to get it out (as opposed to a fight by Republicans to get it in). That's bad news in itself, but if these provisions survive the Senate committee mark-up process, House Republicans will no doubt consider this even stronger leverage for their motion to recommit. "After all, Bush Dogs, you know it's going to end up in the Senate bill, and therefore probably in the conference report anyway, right? So why not avoid the delays, accept the Senate version, and go home sooner, as an American hero instead of a cut-and-run terrorist lover?"
So if you're calling your Congressional Representatives and Senators to let them know your stance on the new FISA bill (and you should be, if you like the Constitution much), be sure to tell your Senators that you want that immunity out of the bill ASAP. And that means in the committee markup, if you're talking to a Senator with a seat on the Intelligence Committee.
For your Representatives, tell them you need them to stand strong with their fellow Democrats on the House bill and on any motion to recommit.